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32X

BEHRING SEA CLAIMS COMMISSION,

RECORD OF PROCEEDINGS

BEFORE

THE COMMISSIONERS,

UNDER THE

CONVEMION OF FEBRUARY 8, 1896,

MONTREAL, JUNE 16, 1897.

AND AT

HALIFAX, AUGUST 25 TO SEPTEMBER 29, 1897.

■■^(

./'

,k;

The Commissioners under the Convention of Febru-
ary 8, 1896, between Great Britain and the
United States of America.

The Coininissiont'is met at tlio Windsor Hotel, Montreal.
loC'anada. on tli*- l«lth day of June, |.si»T. at half past ten
o'clock. A. M.. in pursuance of the adjoiirnnienf from Vic-
toria. B. C.

At the HMpiest of counsel an adjourmuent was ordered
to the Court of Appeals Rooms in thi; Court House, at the
City of Montreal.

At eleven o'clock, the Commissictners took their seats in
the Court of Appeals Kooms atten<led by counsel for Her
Aiajesty and lor the United States.

The Conuuissioner on th part of tin- Tniteil States:—
I would ask the Secretary to state, for the information
of the Connnissioners, what has transpired since the ad-
journment at Victoria.

Mr. Chandler P. Anderson, Secretary:— For the informa-
tion of the Commissioners I may .state that since the ad-
journment the printed arguments on both sides have heen
tiled at my oftice in New Voik, in pursuance of the recpiire-
nients of the Conmiissioners. adopted at the last .se.ssion.
The argument in chief on behalf of (J real Hritain was fil..«i
,yOM the :!lst of March; theargun)ent on behalf of the I'nited
' Stales was tiled on (he loth day of Mav. and the argu
iiieiit of (ireat Britain in reply was filed on the Isl dav of
.Imif. In each case copii's of these aigumeiits were for-
warded by me to tile Connnissioners and to Ihe opposing
counsel.

There was ;dso tiled with roe. on the I'.lst of .March, a
copy of , I notice of motion .iddressed td the counsel for
(ireat Miitain, which was made by comisel on behalldf
till' Initefl Sf.ites for the iv(e|i|ioii (.f fmtliei e\ idenee at

^ytlie ne.xt ensiling session of I lie ( 'on i mission. loj;etlier with

a leller reporting that tl liginal iiotire of inoiionli.id

been .ilre.'idy served npoii cdiinsel f'nr (Ir.'at M.iilain, ac
coiiipanied by ;i si.ggestion thai it it would better suit
their ((.nvenieiice .ippiication woiiM be made for leave to
bring up this motion at ;i session jiiior to tbi'.session fi.xed
for .lune.

These ail' all Ihe |i;nisailioiis, ap.irt lioin the prinliiig
.-md woiU iii'itaining to the Secietaiy's olhiv. that have
taken place since the ;iilioiiinnier,t at N'ictoiia.

;,, 'I'hc C( lissioneis oiilend tli.it the statement slionid

go ( III t lie pi otocols.

Till' ('oiiimissioiieioii the part of the Inited states:—

.Mr. .Iiistice King desires me to state that the Connnis-
sioners .•ire ready to lie.ir any leniaks that mav be made
by counsel.

Mr. Dickinson: -May it ple.ise the High Coiiiiiiisi,iiier.
I am (piite sine that nothing has occiirred sin.e the ris-
ing of till' Commissioners in Kebiiiarv at \iiloria to
(diinsel of the Cnited States at least - of ,i more |)leasing
"^nature than the reunion here. ; mil to see that Ihe High
Commissioners have remained in good lieallh and to know
that the dislinguished counsel for (ireat Mrilain. mv
learned brothers, are also well.

The motion to which refeieiice has been made
by the Secretary is this. It is upon the i|uestion of the
citizenship of .losi'ph Hoskowii/,. The ipi.stion is nol a

-V

( Oisi'iis-ioii. I

lu'w (Hie. It was raisi'd iM'fon* tin' I'lir seal arliitralioii at
I'aiis. ami the C'nuiiHt'l of llic I'liitt'il Slates, without if-
^;a^tl ti) lliuiiowii views in tlif iiiatttT, wore instructed to
raise the <|neKti()n hefdrc this lii^h Cuniniission. The citi
/enshiii the Matiiializ»"l citizenHliiii— of a person is some-
what <liflietiit to prove atlirniatively, and it is more difti-
cnlt to prove the nenalive. The reasons are: Tliat l)y tlw

loHevised Statutes of the I iiited States a person may he
naturali/.e<l in any I'ourt of the I'nited States, throughout
tile length and hreatlth of that count ry: or in any Court
of Uecord of any State of the I'nited States, throu^;hout
the length and hroatlth of that State. There are many
courts of record of the United States, and there are many
Courts of record in each State. So that, without the aid
of the person who knows, and who alone knows— with. <'f
couise. the oflicers who have taken l)art in the process of
citizenship— whither he is a citi/eii or not or whether he

2olias undertaki>n it, it is difficult to tell. In order to prove
citizensliip hy naturali/ation it would he necessary to
search the recoids of all the federal Courts of the I'nited
States, and all the Courts of lecord of ea<;h State, of
course, with the aid of the person whose citizenship is
sought to he estahlished. it might he asct'rtaiued so as to
effect a search of all those places where he has lesided; hut
it is necessary to depend upon him to so limit the research
hy asceitaining from hnn where In* has resi<led. I'uder
these ditficidties, the High Commission will rememher,

30 instructed as we weic to establish the American citizen-
ship of Joseph Hoskowitz. we seaiched the records of the
pl.ices where lie had lived, so far as we could learn them,
and asi el t.'iincil that he had heeii in several litigations in
which it iMcaiue essential to his interests in these litiga
lions to show that he w.is an .American citizen. After
much diHifiilty, wc loiiiii! and produced, first, his aver-
ments in pleadings that lie w.is an .\inericaii ciii/eii, and
second, in a case m which it w.is essential for him toestah-
lisli it in a suit in the courts of last resort in Ihitish Coluiii-

4ohia, or in a court of nist jirias, we pnidiiced evidence to
show that he had sworn in due form, iiiciiiring all the
pains and penalties otiieijiiry if his siateiiieiit were not
tine, that he was a citizen of the L'niled Slates. Having
done this In-fore the Commissioners ;tt N'ictoria, this oc-
ciiiied: Wi' had siilTicieiiti established his .Xmeiicaii citi
zeiishiji for .ill purpos •.-.. .\ /niiiin linii- case, and a very
strong /(//);/f//W(vV ca.", was made out. that he was an
American <Mtizeii. It i.|)pears hy the record of the pro-
ceedings at Victoria, tint from the time the Comniis-

SOsioners sat ;it \'ictoria. from their o|ieiiiiig up to the
I'lose of that session at \'i>toiia. a period of ah'iut three
months, .losepli Uoskowit/ himself w.is in the City of
Victoria, and was there constantly, day after day, from
the heginning to the end id' the sittiiigof the Commis-
sioners. The evideiic" as to his citizenship h.id been put
in as soon as found. I think three weeks hefoi'c the close
I if t lie session at \'ii;toria. It bad been cb.irged in the
pleadings, evidence of it had been adduced on cross-
e.Naniinat ion six weeks before the close of the session.

f 11 lint the linal leslinioiiy of the admission of Joseph Hosko-
witz uiidi'i' oath, in the proceedings where it was essential
for biiii to make out bis .American litizeiiship. was not
liiuiid and prod. iced until, I think, three wiu-ks before the
close of the session. This thing Was i.nsed in the record
from the beginning of the seal arbiti.ition in I'.iri-^ in
|s!i-j, ;ind it was coll till Med in the record all through, down

(DisciisHinii. I

to tin- closfof tliosrssinii. Ill tlii> iiicaiitiiiic. |ii'ii(liii>; tlif
session (if tlit.' ('((iiimissiuncrs in Nictoria, Moskowitz was
consf.iiiMy in Mu« city. I'lidcr this state of 1liin;;s. at or
soon at'tor tlu' ConmiissioiH'is hail a^rfPtl snhstaiitirillv
that an atljomiiincnt would he falicn on fucrtain follovv-
iiiK Monday or Tuesday, on the last day of the session for
testinioiiy. lonji after the lehntlal in chief of (iivat Hritain

,j, had heen put in. Mr. Moskowitz was jint on the stand
and testified that when he made tiieso oaths h« supposed
he was an .American citizen, hiit he was s.aisfiod he
may have Immmi mistaken, and he said he did not
know whether lie was or not. That, of coui-se. we
would contend, did not rehut the pviimi f'urie case
against his own evidence, on a question whicli was ma-
terial in the litigation. Hut he left the case up to the
last flay of the session in Victoria without that state-
ment. We learned then the name of his father. We

20 learned it within a day or two before that. We learned
wh-jre he lived. We i(>arned where he was horn— and
this hy cioss-examination -that he knew very little about
his father, and the tendency of his testiinonv was to
show that tlujie were not pleasant relations between him
and his father. We arrived at some place where the
name of Hoskowitz had appeared in the I'liited States.
We learned the name of his t'athei and we learned that
it was Aaron Hoskowitz. We learned tlu; name of his
brother ;ind we learned that, it was Igiiatz Hoskowitz. and

-Q we learned the place where .loseph Hoskowitz had lived,
namely, at Mailison. Wisconsin, .uid at Mineral J'oiiit.
where he had tended store. Ofcoursenptotli.it point
we had nothing- to e.xjiiiiiiie as to aiiv statement before
the Commission .IS to bis whereaiioiits. .and up to that
point we had bad no coiiimuiiication from anviiodv as to
where to e.xamine to prove atlirmativelv bv naliiraliza-
tion papers that .loseph Hoskowitz was naturalized. After
learning the wbtival)outs of .io.sepb Hoskowitz and the
possibilities of the nalnrabzatioii of Aaron Hoskowitz, his

-o father, which would naturalize him under the testiinonv,
we investigated the records at Mineial Point and Madi-
son, in the State of Wisconsin, and this investigation was
instituted promptly u|)on our knowledge of sufHcient data
to know wlu'ie to proceed, and the investigation was un-
dert.iken by telegram from Victori.a at lea.st the directions
to pursue the investigation were given. The investiga-
tion could not be completed, and the fact that there was
anything in the iuvestig.ition of a character which would
be competent to the case was not known ti> us before the

JO adjournment. The f.ict that there w;is any possibilitv of
arriving at anything was not known to ns, 1 sav, before
the adjournment of the Ooininissioii at Victoria." Uutlor
these circumstances, taking into consideration the time
at which Joseph Hoskowitz was called before the Commis-
sioners in \'ictoria. taking into consideration the time at
which he should have becMi called and submitted to exani-
niation. taking into consider.ation the fact that the United
States had rested upon the oath of .loseph Hoskowitz in
lestimony that was materi.il. and in litigation where he
^,oliad sworn tli.it he w.is an American citiz-.a; we sui)niit
that in view of Ibis last testiinonv of Hoskowitz. that we
are eiititletl to put in the result of the investigation at
Mineral Point and at Madison.
The Commissioni'r on the put of the L'nited States: —
Would counsel for the l'nited States please read the

I PlMlMISHJOII,)

itiotioii which is now inudo hv roiiiisul nil holialf of the
I'l'itt'd StatJ's.

Mr. Warren, of roiinsel for the rnitt'tl Statt's. read the
niotioii as follows:—

Bkhrino Ska Claims Commission.

OKKIt'K OK
10 ThK Coi-NSKI, KOK THK UNITED StaTKS.

HoNOl'RABI.K FkKDKKICK PeTERH,

Seniot Conns^el for Great Britain
Sir:—

Voii will |)lt)a.s«' take iiotitv that at tli«* next ensuing
sitting of the High CoinniisHioners, {shall move the re-
reption of and offer in l)ehalf of the I'liited States the fol-
lowing evidence:

[I.) The records and tiles of the Circuit Court for Dane
County, in the State of Wisconsin, wherehy it will appt>ar
20 that Aaron Boskowitz, the father of Joseph Boskowitz, a
witness sworn and exainiiied in hehalf of (iieat Britain at
the sitting of the Migh Commissioners at Victoria, did,
on the iMth day of August A. D., I>.">-_', hefore the Clerk
of said Com it, declare on oath that it was htnia fiiU' ]\'ia
intention to hecoiiie a citi/eii of the Tnited States of
.Vmerica. and to renounce forever all allegiance and fidelity
to any foreign Prince. Potentate, State or Sovereignty
whatever, and particularly to the Kingdom of Bavari.i,
wlieieof he was then ,1 subject.
^Q i:.'.! Testiiniiiiy and evidence that tln' tiles !ind records of
saiil Cdiiri of iip|)licatioiis for citizenship hy aliens,
such as ;iic made under the laws of the I iiited States,
two ye.iis nr more atltr sutli declaration ,is the
Slid .Aaron Moskowitz made on the -.'ttli <lay
(if .\iigMst. I^."._'. down to the month of August. Is.m".
fi'itm the ur;:.'ini/;itiiin nf said CouiLiuid fiom April. Is.'i.'i.
to tlie present time, are complete, .nid disclose veiy many
of sticli appliciliiiii-^ lor citi/,eMslii|) hy aliens who liad de-
clared liieir iiileiition ,is at'ores.lid t<i liecome citizens of
4(,tlie rriiteil Slates; hut that the Hies lUid records of s;iid
Court for the time lietweeii the dates last aforesaid have
di-appeared Iroiii the jilace of custody in said Coiu't. and
that thes;uMe have lieen lost, destroyed or ahslracted.

i;'i. I ( )i;il testimony as toliie maimer of access to such
tiles .^11(1 records, and .is to the persons who have had and
have ,i('i-ess to said tiles imii records

' 4. 1 l"',\iileiice I lom the records of tiie ( 'ity Clerk of the
City of Mineral I'oint. in the County of Iowa, in the State
of NViscoiisin (the said City Clerk heing the projjer cns-
cotodian of such lecoiilsi of the |)o|| list ;ind tally list for the
First Ward of the City of Miner.al I'oiiif of the geiiei.il
judicial election held on April il, |s.-,s, disclosing that the
said Aaidii I'.oskowit/ voted ,it t he s.-iid election heldat the
Mayor's olliii' of the First Ward m sjiid city.

t.^.) St;itiile< of the State of Wisconsin that the said
Circuit Court for the County of haiiein theSt.iti'of Wis-
consin was dining the vear Js.'C. and ever since has heen,
a court of record of the State of \N'isconsm. h.iving com-
mon l;nv jinisilictioii and having a se.il .iial .-i clerk.
()0 "''.> Fvideiice ;nid testimony tending to show the time
at whiili the said records and tiles of the saiil Circuit
Court hir the ( 'onnty of Dane were lost, destroyed or iih-
stracted fioui the ollice of their cii-<to(lian. the Clerk of
said Court.

The grounds of this motion are that the testimony of
Joseph Hoskowitz. tending to show th.it he was not a cit-

"v?-

(DiscnsHion.)

izt'ii of tln' I'liitcfl States, was ofTerod (in tlu' la^t day r>f
the sitting of the lli^li Coiimiissioin'is at Victoria, and
was ill direct coiitradiclioii of liis tfstiiiioiiy midci' oath,
piv«'ii ill tin- cause pcndiiiji in the Sii|»ium(' ("oiirtof tht*
rroviiice of Ihitisli Cohiinhia. in a matter material in said
cause, in which lie was interested, wherein he had sworn
ill siihstaiice that he was a citizen of the I'nited States;

loatid ill fiirect contradiction of otlier tesliinony tending to
show tliai he was a citizen of the Inited Slates, .ill as a|)
pears hy the record <d' the testinionv hefoie the High
('oinmissioncrs; tli.it the lestiinoiiy of tlie said .loseph
iioskowitz in tli.'it re;;ard wan a surprise to the (*oiinst'l
for the I'liited States, and that they had no opportunity
to meet the same hcfiire th<^ .-idjoiirnmeiit of the sitting at
N'ictoi ia. :ind no kiiow!ed};e of the same at the time of
such adjonrnment.

i have the honor to Im>,

20 Vonr oht. svt.,

iSif^nedi l><iN M. !>i<kins(in,
("oimsel for the United State.s.
Dated Marcli :!ntli, iMtT.

Mr. Dickinson: -I will state fnrthertii.it for the pur-
pose of saving time, we have here the Clerk of the Ciicnit
("onrt for the County of D.ine in the St.ite (d" WiMoiisin,
and the persons who have ex.imined the record, p.iiticu-
lariy who examined the record at tirst. and who h.ave

examined the record siikc the hiatus in Itie records oc*-
ciirred. I may stale to the lli<.;h ('(iiiiniissioners that
these witnesses .are here in the Court rooin.

Mr. I'elers:— .\I.iy it please the llij;li Conimissionerfi:
Hefore answering the motion m,ide hy my le.inied friend,
I must join with him heartily in the salisf.iction whii h li(>
feels, and which I It ,'!. and which all the counsel for Her
.Majesty feel, that the High Coiimiissioiiers have heeii ahic
to meet here in Montreal, .after such a lengthy recess, and
that we meet your Lordships in good he.iltli.
^o ^\ ilii rt'gard to the motion made hy my le.aiiied fiieiid,
I havi; most certainly to enter an ohjection ag.iiiist its
heing grantee!. 'I"he evidence he ;isUs to put in now is
evidence, theohjectof whitdi is to show that .\aroii Mos-
kowitz the father (d' .Joseph Hoskowitz. at sometime or
other-, hecaiiie a natnialized citizen of the I'nited State's.
Til. it is the ohjt'ct of the evidence, and my learned fritMid
makes a motion now to put in a certain dirt'ereiil class of
evidence. The class of evidence he proposes to put in as
fhst evidence, is evidence that in .1 certain town in

CQilie State of Wisconsin, this man, .\aroii Moskowitz,

took the preliminary steps to Ins heconiing a natiir.alized
citizen of the I'liitcd Slate;;. It is uimeces.iiy for me to
stale that hef(tre lie could het;ome a full citizen of the
Uniti'd States he would have to take further steps, and
that these further steps cannot he taken until a period of
two years has expired, after the original .ipplic.ition had
been made The tirst evidiMice that my le.iined friend
lays hefore the Commissioners is evidence that at one time
Aaron Hoskowitz took the preliminary stejis, and the
fioSecond piece of evidence he jiroposes to give is that in su(;li
and siiih a tiiwn in the Inited States, the records have
been searched and it appears that tlie(;oin[)leleiialnraliza-
tion papers between cerlain years and cerl.iin other years
are not to be found in the records. Therefore my learned
friend wants to bring in that Aaron Hoskowitz did actu-
ally take out tinal papers, hut that something has occurred

(DisciiBHittii.)

ill some fiiwn in tin- I'liitt'd Stiilcs whcirhy tlicH*' rocindH
liav)> lii>('oiiH> in(-<iiii|ili>ti>, anil iii'i> unolitainaltit'. In H<iili-
tion to that, my li'aiM'it liiriiil says, "1 wiHJi to put in
crrtain otlicr cvKJcncc tliiit on a mtain occasion Aaron
Moskowit/ voted in tlir Statcof WisconHin." ami t'roni t.liat
Ik* woiijil at(i'tn|it, I pit'sinnc, to draw the conclusion that
Aaron noskowit/ must liav(> licciia citi/t-ii of the United

loStatesat the time he voted. Now, may it please the Com-
inissioiu'i's, I will take that last point tirst Asa matter
of fact, ill the State ol Wisconsin, any pi'ison who has
declared liis iiitiiitioii of liecoiiiiii^ a <'ili/en of the riiited
Stall's can vote, if he has resided m the Slate of Wiscon-
sin for one year, and it is not .it .di necessary that ho
shi iild lieciime a iialiir.'ili/eil citi/eii id' the riiited States
ill order to eiili le him to vole Therefore the fact that
he voted ai Hill' election or Miled at more than one
election, it ilms iiiit mailer how many - raises no pre

Sosniiiptioii whatever that he had done anything more than
dccl.'ire his iiiteiitioii, or t.ike the original step of n.'itiiral-
i/atioii. (In thai puiiil I would refer the ('ommissioiiers
to the org.inic law nf llie Stale of Wisconsin, which was
adopted hy ('i-ii;;res> mi tlieu'iMh of April. is|t!. 'I'liat de-
clares that the persons entitled to vole in the State ot"
Wisconsin aie those who li,'i\e ilecl;ired their intention to
become citizens of the State, and have resided in the
Slide for a period of twelve months. The (^^mmis-
sioiieis will at once see that th<it Iteinj;' the law, there !:'

30 no presumption thai Aaron i'loskovvit/ ever took tli* iiiial
ste|>s ot iiii.tiiiali/.at ioii.

Mr. iMckinsoii: ^'oii stated the law corn ''y, Hrotlier
I'cters. Th;it is rijilit. We concede the law to he as you
state it. We would have 110 diniciilly were it otiierwise.
Mr. I'eters: Ceitaiidy. The l.iw lu iii^ as I stato. and
my learned friend admitting that to he the law, it is
apparent that the lact that a man voted in thu
Slate of Wisconsin it is not the same in other
States (d the I iiioii- raises no presumption whatHver th.it

40tlu' peisnii who Voted was then a natiirali/ed citi/eii of
the United States. It (allies no further weight witii it
than the fact that he must have declared his intention to
hecoiiie a citizen. 'I herefore, that part of the evidence
which is asked to he put in now, is evidently immaterial,
and coiisei|ueiitly on that ground alone it cannot lie al-
jiiwed, iveii if It could he .illowed oil other grounds, to
which 1 will state my ohjectioii later.

lift me see how the m;itter stands wit li regard to the
general ipiestion as to whether this evidence oiigiit to he

SOadmitted at all or not. My leaiiied friend, Mr. Dickinson,
stall's the iiositioii id' aflaiis as tliey were at Victoria, and
with all di't'ieiice to my leai lied friend, I think he has
put the state of all'aiis liither more favor.ahle to himself
than, perhaps, he was ipiite justitied in doing, it is nat-
ural lh.it he should relate the circumstances as strongly
in his own favor as he can. Now, how does the matter
really stand? .Joseph Hoskow itz was alleged to he inter-
esleii in certain of these vessels, it was alleged tliat
Jo.sepli lioskowitz was a citizen of the I'niled States.

fJoTlie proof id' that fact, that lie was a citizen of
tlie United States, was open to my learned friend. Tlie
onus of proving it was on liini. That was a fact
tiiat lie had to make out in ilia own ca.se, and it
was ids duty to give all the evidence tliat could
lie given on tiiat point wlieii lie was making out
liis case. From time to time as the case went on, my

(l)isciisHitiii. )

lenrii«'<] fiiniil attfiiiptcd to prnv** lli.it Joseph huskowit/.
wns ii citi/cii (if llu' riiitcd Slatis. Tlif luitiiic nt tlio
pioot attfrnptfd til he ^ivcii WiiH tliis: it was allfU'd tliat
III a (frlaiii suit pciuliii^ bftsviM-ti Jdsfpli Itnskdwil/, and
iiiu^ Wai'i'fii, that in tlif loi-iiial pleadings in lliat suit
whifli Mr. Mosknwit/.'s counsel had put in, tin'if was an
allfgatidii that he i lidsknw it/i was an AiniTicaii lilizeii.
Kj'l'hat was the liist pinof put in hy my icaiiH'd trii'iKl.
l«it<T (III still ill inv learned friend's case, he puis in aimther
piece of evidence, iianiely, that ill tliat vaiiie suit tlnie
were seveial suits in coiiiiectidn with these ship-; itdskd
wit/ made .III atlidavil in whicii he ^t,tte(l that he was a
citi/eii df the I'liiled States. My learned tiieiid makes
the statement that these stateinenis of Udskdwit/ t hat he
was a citi/iii (it the I'nileij States were stalemeiits th.it
were tiitii material td the lilij;atidii ill whicli these slate
iiieiiis weic made. I entirely jdin issue with him (in that
20pdinl. They were not statements tli.it wcie at all mite
rial to the lilij;alidn that was then piiiij: dii. 'i'he allega-
tion dl the pl>ailinv;s was that he Cdilld lint hdid ceitaili
fihips h(ran-e he wis a citi/eii of the I'nited Stales. 'I'he
(inly p( iiit that v n- at all material in tiiat cdiiiiectidn
was whether or iK.t he was a lirifish sulijecl. if he u.is
iidl a iiiitisli Mihjecl, whether he was a ciliziii dt the
Tiiitid St-i.s, 1,1 ii (iti/eii o\' Itavaiia. as h.-
originally \\a.;. malteid not. 'I'he point ind the
diily |»diiil, tlial uas matiMial in that case, was
10 whether he was, a. i matter of lad. a citi/.eii df (ireat
Britain, and tin- si.itemeiit that he was a citi/eii df tlw!
L'.iited Slates was in iki way nifiteiial tn lli.it suit wii.at-
ever. The (inly pnii,', .is 1 say, was whether he was ;i citi
zen of tireat liiilaiii or ikiI, and it mattered iidt, whelher
lie w.is a I'.ivarian (ir .i I'liited Stat. 's citizen. Kither
Wduld render it impossihle for him to iiold a Ihitish siiip.
I tlierefdic jdin issue with my learned friend when he
says that these statements were material td the issue at
that lime td he tried.
40 That was ;ill the evider.ce tiiat w.is given, and we, at
the he.iiiiig ill N'ictdria. cdiiteiided that that evidence w;is
tdd slight Id setllu .aiK! determine in a case iidt hetweeii
Hdskdwitz. hut hetweeii otlier parties and tlie linittMl
Sl.ites. llie (piestidii whellier this man was a citizen of tlie
liiited States or not. My learned friend Mr. Dickinson,
however, thought that tli.it evidence was sullicieiit. ami
he closed his cii.se, and havingclosed ins case, as he led us to
understand, as (pii(kly as possihle. and .it the veiv llrst
mom it that we had an opportunity of dding so, and h.id
5oan dppditiiiiity df answering ids evidence, in this respect,
we put in dur rehiittal evidence giving onr stoiv
in the matter. What was the iiiituie of the evideiKe
we gave; We called .Mr. Roskowitz. and we explained
in the first place that so f.ir .is the ple.iding was
concerned, Air. Hoskowitz was ahsohitely ignorant
of what the pleadings contained, and ii there
was any ddiiht upon that point, we calle(l Ciiief Justice
I>»vie, of Hritisli C'olumhia, to prove thai he. when pjiic
tit ig at the bar, liad drawn these ph^idings, and had in
60110 way iiitii cited to iMr. lidskowitz wiiat tlie pleaijings
contained. Vh proved that Mr. Hoskowit/. iiad never
seen the jileadings. If tiiat stood alone it would have
ended the matter so far as that is cdiiceriied. hut it went
further. They had an adidavit signed hy Mr. Bdskowitz,
and Mr. Boskowitz when called before tiie t'ominissioners
made this statement: "True I made tli.it atHdavit, and I

( Hiscnssion.

may also have made statcriifiits io otlier people that I was
a citi/cii of tilt' I'liitfd States, and wlu-n 1 niade those
st.iteineiits I lu'lieved I was a liti/.en of I he I'nited States;
I did not look into the matter, and I (]id not know what
Wiis necessary locunstitnte a citizen of the United States."
Hoskowitz stated all the facts of his caieer in the United
States, and then he made this statement, which left the
lomattci- i)eyond the shadow of .1 ilouht. Me said, "I my-
self never was natnialized." That statement of Hoskowitz
will he foniid on the record, at pa^es litis and I'.tT'.i. My
learned friend says that he was a little surprised at this.
\'>\\\ 111 V learned friends evidence was this: ^'ou, .loseph
Bo!-k(iwil/,. have made certain admissions that yon were
a citizen of the liiited States. Then Moskowitz comes
in and says. ••] may have m.ide .ill these admissioiiH,
hilt I tell yon ;is a matter of fact that I never was
naturalized. '■ My learned friend admits that so far
2oas provinji' that Joseph lioskowitz ever was natnialized is
concerned, he stands mute. My learned friend has no
evidence whatever to show that Hoskowitz was natnial-
ized. He admits that the evidence is comiih'te and clear
that .loseph lioskowitz never was himself naturalized.
Hilt, he say;, he was taken hy surprise in that. He rested
Ids c.'ise on certain ailmissions and we hrouglit in Mr.
Joseph Hoskowitz to explain these admissions. That is
all tiiat happened, that is the whole fact of the case .so far
as that is coiuerned. My learned friend trusted his case
30 to these statements anil we disproved these statements hy
showing' th.it Mo-^kowitz never was naturalizeil. Now,
my learned friend says "I am K"''iK t" prove that the
father ot .loseph Hoskowitz. namely. .-Xaron Hoskowitz,
w;is ri.itnralized." and he asks the commissioners to as-
sume that hecause .A.udii Hoskowitz was naturalizi^d at
such a time, and therefore his son is to he looked upon as
an .Xniericin citizen.

Mr. |)ickinsi)ii:- That is in the i-'ederal Statute.
Ml. I'l'ters: I am perfe<tly aware of that. I am pt'f-
40fe<ily aware that it is in the Federal Statute, if Aaron
Hoskowitz was naturalized hefore his son liecame twenty-
one years of aj^e, and he was then a resident of the Inited
States. None of these facts are in the evidence \ne-
senteci.

Mr. Dickinson: That w.is <alleil out on the testimony
of .loM'ph Hoskowitz .-IS to his :i^e. When he came to
' Dane ("oiinty with hi-^ lather, he was fourteen years of
age. That appears hy the record.

Mr. Peters: My learned fiienil asks you to assume that
5"sonie time or another- he does not know when --this man
was naturalized, and that Joseph Hoskowitz hecanie of
a;j,e ;it a certain period.

Mr. Diikinsoii: Ve<. in the riiited States. He canie
there and lived with his father liefon* he was of age.

Mr. Peters; My learned friend has nothing to show that
Aaron Hoskowitz was natuinlized liefore he was tifty-si.v
years of age. The evidence that my learned friend ten-
ders will not go to prove tli.it. However, the point I want
to come to is this. From the cross ex.imination of .loseph
'^ Hoskowitz hy my learned friend it was clear and ajipareiit
that niv le.irned friend knew all ;ihoiit where Aaron
Hoskowitz lived, hec.iiise he went into the veiv fact, and
askeil him v. hat county he was in at a certain ^ate. You
will liiid that in Mr. iJickiiison's cross-examination of Jo-
seph Jioskowitz, at page I'.tsi .,f the record. He asks him
what county liis father lived in, and tlie witness replied

''m.

(Discussion.)

. tliat lie (lid not know, and lie askod liim especially as to
DiUie County. I do not tliink my learned friend says that
that is the first time he knew that Hoskowitz's father
had heen at Mineral I'oint. At all events, from the
line of his cross-examination it uonid ajjpear that he
knew at that time as to the county where
Aaron Hoskowitz had resided, hecause he refers
loespeciallv in his cross-e.xamination, to wit, at
pap' I'.tsi. to this. 'Die following; occuried: "Mr.
" Dickin.son: Do you remend)er the county in whicii
■' Maiiison is situated? Answer. I do not know. (,)ues-
" tion. Lit me refresh your memory, it is in Iowa County,
■' is it not." It is (piite apiKUcnt fiom this that my learne(i
I'riend knew more aliout the county than .Joseph Hoskowitz
did himseir. He was (juestionin^ iiim on that very point.
Be that as it may, what does my learned trii-nd say now?
He says he telcgra|)hed at once to Mineral Toint to ^o\ fidl
20 particulars aJMiuL this matter. Some days hefore that, lie
iiad tele^r.Mpiied to net inl'ormatit)n on this matter, and
haviii"^ <loiK' so, wt' heard not on(( woid aliout tliis matter
until alter the ai>cument for (ireat Uiitain had lieen d''-
livered, at the end of March, and ii!»td after oui- posi
tion ill the matter had heen laid down and put in Mack
and Aviiite not until that time did my learned friend
make this motion. Of coiii.se. I lay no hiame to him
whatever, as he may have had .some reason for not he-
inj; ahle to fj;et tiie information sooner. lint it is a
3ofact that altlioiij;li he knew of this iiefore the cross-
e.xaminatioii took jilace. and althoii};li lie telei^raplied
for iiifoiiiiatioii. we are allowed to nn on and deliver
our printed ai.uument, and lay oiir position on the
matter clearly hefoie the Commissioners, in tiie most
formal manner, hefore w«i receive any notice tliat this
new evidence was Hoi|i;lit to he put in. I suhinit that
if this W(>re a matter of ordinary litif^atiou, where a
person comes hefore a Court with a inirden of proving a
ceitam point upon him. and if that jieison chooses to rely
40 upon the merest scintilla o\ priiiin fucic evidence, and then
let the other person put in his reply in full, and that
after that reply is in, come on with a new hrancli of the
case which they should have made in the tirst instance, I
sniimit that in an ordinary litigation an application of this
kind would he refused. I contend, your Honors, that in a
ca.se such as the pi'e.seiit one, it ought to he I'efiised also.
My learned frieinl himself staled that this (piestiou did not
come up as a new (piestiou. He stated that it did not
come up for th.^ lirst time at Victoria, hut that it was a
50(piestion that came u|i and which was heing considered,
and was heing investigated hefore the sitting of the Paris
triiiun;d. Siirelv my hoiiorahle friend, and surely the
riiited States, with all the f.icilities ihey jiave for investi-
gating matters of this kind, have had good aiid ample
time to consider this point, which, troiii the heginning,
they have made one of their strongest contentions. J*ar-
ticiilarly so is this the case when they have attempted to
make this (piestiou out as a very large and important
one. They have had ample time to prejiare theii case, ami
60 j contend that their reipiest should not he granted, after
(•reat Britain has put in her ( ase. to icopen the
whole matter again. Voii never know where a matter
of tliis kind will end. There must he some end to
litigation, and there must he some end to the time that a
ju'ison should he allowed to give evidence on a matter of
this kind. 1 suhmit that my learned friend has not given

(Dis •iissioi).')

suffic'iont grounds for askiiiK your Honors to rule that
this ovidoncc sliould be adniittol.

I sultniit hrit'My to tlic C'ouiniissionors tliat tlie evidonci)
that fho (dunsi'l lor tin- Uniti'd States now attempts to
offer should have h(>i'u properly part of their main origi-
nal ca-e. and then'j'ore it is too late to put it, in at tliis
stage of the prorecdin«s. It is rt'openinj; the whole niat-
loter attci' the nliutt.d evidence has heen given. It is
attempted to put in a pie((> of evidence at. the end of the
ease whieh shoidd havi- lieen put in in the original ease,
ami it is niaknig out a new case again Counsel for tiie
United States say they are going to show that some
recoids ar<' lo-I, and they arc going to prove that a portion
of the records of the said Court with reference to applica-
tions t(ii' citizenship weie lost hetween cei'taiu dates.

Mr. nickinson; They disappeared at pecidiar dates.

Mr'. I'eters: 'I'hi' nnnutes of the K'egistrar will prove
20 whether such documents ever existetl or not.

Mr. Dickinson; — Well, we have the clerk here.

Mr. peters: -Have yoa the mimites?

Mr. Dickinson:— Certainly.

Mr. Peters: — I will leave the mattei- for the considera-
tion of your Honors. We snhmit that it is too late to
o|»en this matter now, and that the evidence should not
he receive<l. I may say, as a matter of fact, that I have
a statement of the Clerk of that Court to the ettect that
he knows nothing whatevcM' aoout the records heing lost.
iO Mr. Dickinson: -l''rom .Mr. Parish^

Mr. Peteis:-Krom Mr Paiisli.

Mr. Dickinson: lie is lieie.

Mr. Peters: 1 know.

'I"he Connnissioner on the part of Hei' Majesty : — Is it
sought to connect Hoskovvit/. with the disappearance of
the miinite.

Mr. Dickinson: Does your fh)nor mean hy the direct
testimony?

'i'lie Commissioner- on the part of Her Majesty: Weil,
40 yes.

Mr. Dickin^orr: \\ e helieve it, your Horror'. We expe(!t
to comrect later- on, hut possililv rrot for' this hearing.
The pecirhar ity of it is this. If the testiniorry will he
heard, it wril appe;ir' to the Cohrmissioners, in our opinion,
that an irrtelligerri-e has crcited a hiatirs in these records
hrtweerr .Aprrl. |s.")4, and April, |.s.''),''i, to wit, the exact
|ieri«.d of Piosknwit/ taking out the second pajiers,

.Mr-. Peters: Ther-e is no sugge>tri>rr in tlie notice of
my learrnMl frrerrd that Mr'. Hoskowitz, or any other
Sopeisorrs, either' dir'i'clly or indii-ectly, had anything to
do with takirrg any records from any Cornt. You can-
rrot gather- that in any way from this notice. I
will re.id the wor'ds of the notice, and there is nothing in
it tosho.w airy chargeof that kind. They areas foilows:-
Sectron •_' Testimony and evidence that tht; iiU's and
lec-or-ds of said Coiiit of applications lor (itizeiiship hy
aliens, such as are made under the l;iws of the I'nited
States, two years or more after such ikvlaration as the
said Aaron Hoskowitz made on the :'4th day of August,
^•o l.^.'d', down to the month of August, |s.'i4, from the or-
ganization of said Court, and from April, js,'').'), (o the
present time are complete, and disclose very many of such
applii'.ttioiis tor- citizenship hy aliens who iiad declaied
their- intention as jifoie.said to hiu'ome citizens of the
I'nited States; hut that the files and records of said Court
for the time hetween the dates last aforesaid have dis-

(Discussion.)

appealed from the place of custody in said Court, and that
tlie same have Ix-cn lost, destroyed or ahstracted.

Section ;{. — Oral testimony as to the matter of access to
such tiles and records, and as to the persons who have had
and liav»> access to said tiles and reconis."

In that notice there is no reference at all to the point
hinted at l)y my learned friend. If my learned friend

iosujij!;ests or hints, or proposes to siigjiest or hint,
that Mr. Boskowitz, or any other person on his
hehalf, or any person comiected witli the case of
Great liritaiii, had anything? to do with the dis-
ap|)earan('e of these iccoi'ds, he should have stated
so in his notice, in order tlial we might anticipatt- wiiat
we h;\d to meet. Such an idea nevi-r entered my mind
until this moment, hecause we all along, as the (^)llrt will
understand, have treated this cpu'^tion as one that really
was immaterial, to a great extent. After my learned

2ofriendgave me this notice, I thought it was my duty to
have the records of that part iculai' Court investigatc'd on
my own accomit, and since that time 1 have received in-
formation which 1 never thought of ohtainiug imtil I got
the notiie of my learned friend. I have received a good
deal of information since then, hut that is another matter
altogether. My contention is, that the mimite hook of the
Coiut, if there is such a thing, would show that such papers
had heen tiled, and there is no suggestion made in the
motion that the minute hook is lost. V(»u understand what

30 1 mean. When such a document as this is filed, the recoi'd
that is made of the document is tile<l on a minutt:' hook,
and that mimite hook would show whether the document
was tiled or not. There is no suggestion, as I say, that
the mimite hook has heen lost.

Mr. DickinsoiK-That depends upoii certain circum-
stances. 1 do not know what the proceedings are in the
liecoid Court, hut in the Federal Courts the minute hook
would not show.

Mr. Ti'tirs: According to the information we have, in

40that par ticular Court, there is a complete mimite h(K>k,
showing every transaction.

Mr. Dirkinson:— I cannot say anything ahout that par-
ticular court. Of course. 1 do not know how it is there.
Mr. I'eters: -We suhmit that this evidence should not
he allowed, and that iifter all a large portion of it is evi-
d(>iitly inimateri.il.

The CommissioiKM' on the part of the rnited States; -
Do 1 iiiKlerstand, Mr. Dickinson, that you have your
witnesses here?

50 Mr. Dickinson: Yes, your Honor.

If it is material at all that my learned friend should
state to the Court that he has information from tin- rec-
ords of Dane County, it is cerlainly material that the
Court should know what the circumslances are in the
office of the Clerk of Daiu' County with reference to this
matter. Now, the general rule of evidence with regard
to proving negatives is this, as 1 understand it: That no
one should he called upon to prov« a iieg.ative when the
hurden is 011 the other side, hut there is an exception to

6othat st'img rule, and that exception is this, as laid down
in every hook on evidence, that if the tacts are exclusively
in the |iossession or within the knowledge of the party,
the hurden of jiroof is shifted and he must prove the
negative. Now, I endeavored to state to the learned
Commissioners the peculiarities of the naturali/,ation laws
of the United Slates. Whether a man is naturalized

(Discussion.)

or not is a matter witliin his oxchisive knowledge,
unless you know where he lived all his life. He ic the
only man who can give you the points at which you could
follow the question up, as to whether he had been natur-
alized. There are fortA' courts in Michigan, two hundred
and ten in the State of New Yoi'<— all State courts— and
three liundred and forty in tho State of Pennsylvania,

loand so on, to say nothing of tlu; Federal courts, in which
a man could he naturalized. Therefoie, if there ever was
a case where tho facts, as to whether he might have been
naturalized or not, are peculiarly within the knowledge of
himself, it is a case of this kind, and that makes it a case
where the buicU'M of prof)f is shifted from us. Having
established that this per.son has swoiii, and put in a pa|)er
and signed it, wlietlier he sw<)r(> to it or not, that he was
an American citizen, and where he s^eks to contradict his
admission, which has been put in evidence, the burden is

20 upon him to disclose that he has not been naturalized and
that he was not an Anieriian citizen. They have not
done that. They simply say that they do not know
whether the father of iloseph I^uskowiiz was naturalized
or not. They simply place themselves in a position to say
to counsel foi' tlie l'nite<l States, "Wo do not know;
prove it, you." The buiden. 1 contend, is upon tlieni,
when a prima fariv case is established of Bt>skowitz's
citizenship.

My learned friend says that the oath of Boskowitz in

30 the case we put in, w,\s innnaterial to the case. But
when we tiiul a statement of the pleading, a pleading
drawn out by no less distinguished a coun.sel than the
l)resent t'hief Justice of the Supreme Court of British
Columi)ia, cont.iining the averment that Boskowitz was
an American citizen, surely we nmst conclude that that
statement was material to the case. In that litigation the
question of who owned the bark ''liarbara Boskowitz" —
wlit'ther she was a lirig or a bark or a ship, I do not know
— that thing of value calleil the " P.arbara Boskowitz"

40 was tho issue in that case. The question of ownei'8hii>
came up, and a valuable interest in the insurance came up,
and whether the |)rolits in that floating thing belonged to
one or another, came up. .Joseph Boskowitz claimed that
Joseph Boskowitz bad a v.aluable interest in it. A person
by the name of Warren claimed that his wife bad a valu-
ble interest in it, and Boskowitz swore, in order to lecover
the i>rotits of that valuable thing that was the " Bar-
baia Boskowitz," that Mrs. Warren did not own the
"Barbara Boskowitz," but that it was i)ut in her name,

5" because he (Boskowitz) was an American ,, i-n, and,
therefore, couM not own her. That .soimds to me to he
material to the issue. It seems to m(> to be a st.ite-
nient ni)on which perjuiy could be assigned. If
the statement that it was |)ut in Mrs. Warren'.s
name, because Boskowitz was an American citizen —
if that statt-ment was fahse, Boskowitz <'ould be punished
for it. My learned friend says that the second papers are
not proposed to bo disclosed, and that the voting does not
show citizensiiip. Voting always has a tendency to show

60 citizenship. Now,. Mr. Joseph Boskowitz swore that he never
took out bis papeis.and if the polling list shows that Joseph
Boskowitz votes at Mim-ral Point, as they do, what then?
Well, he did not vote on naturalization papers, and he
nm.st have voted becauso his father had taken out his
second pajjcrs and hecanie a naturalized citizen. The
Federal Statute provides that the first papers may be taken

(Discussion.)

out before a Federal Court or a court of record of the
State on the declaration of intentions and on taking a cer-
tain oath. Tlie first papers were taken out somewhere
after the first of April, isr)2, by Aaron Boskowitz.

Mr. Peters: -Will my learned friend excuse me. My
learned friend is not now proceeding in answer to the
statement that Aaion Boskowitz voted. He is making
10 remarks upon some evidence that he may have, or that be
says lie has, that Joseph Boskowitz voted. ■ I have no
notice whatever of anv intention on the part of my learned
friend to give evidence that Joseph Boskowitz voted.

Mr. Dickinson:— Joseph Boskowitz is shown as having
voted.

Mr. Peters:— I have no notice whatever that my learned
friend intended to give an}' evidence on this point, and I
am not able to test whether it is a correct statement or
not. It raises the question whether my learned fiiend is
20 (piite fair in raising that argument. 1 have beard nothing
in the notice about Joseph Boscowitz voting, and I am
not able to say whether lie did or not. I think by other
facts contained in this record I can prove that be did not
vote. Up to the jiresent time I have not had the first in-
timation from my learned friend thrit he proposes to prove
tiiat Joseph Boskowitz did vote. Surely my honourable
friend will not press any statement of that kind in rela-
tion to a matter of which he has not given notice.

Mr. Dickenson: — Notice is given that we would put in
30 certain copies of the poll lists, or the iioll lists themselves.

The Commissioner on the part of Her Majesty:— That
would he as bearing upon Aaron Boskowitz.

Mr. Dickinson: — But everyone that voted at this elec-
tion is said to be in the polling list.

Mr. Beique: — Joseph Boskowitz was only nineteen years
of age.

Mr. Dickinson:— That is not the evidence. We have

got every man that did vote on the tally list, and among

them is Tgiiatz Boskowitz, Aaron Boskowitz and Joseph

40 Boskowitz. The evidence will have to go in if it is on

the poll list.

Mr. Peters: — That is not what you gave me notice of.

Mr. Dickinson:— I gave j'ou notice with regard to the
poll list.

Mr. Peters:— Kxcuse me. It does not include that. It
says in the fourth paragraph: " FA'idence from the records
of the City Clerk of the City of Mineral Point in the
County of Iowa, in the State of Wisconsin (the .said City
Clerk being the proper custodian of such records) of the
50 poll list and tally list for the First Ward of the City of
Mineral Point of the general judicial election held on
April (i, 18."»!S, disclosing that the said Aaron Bo.scowitz
voted at the said election held at the Mayor's office of the
First Ward in said City."

You say be voted in IS'A.

Mr. Dickinson:— The first papers were taken out in 1852,
and the second pai)eis could not be taken out until two
years after that, namely, in April, IS.H. Now the hiatus
m the naturalization papers appears to be only between
60 April, 1854, and April. 1855. One year has disappeared.
There is therefore a disappearance of the papers that
would follow the Boskowitz two years.

Mr. Peters:— B>om, August, 1S54, to April, 1855, is the
hiatus.

Mr. Dickinson:— We have the list of the naturalization
papers back to the year 1840, I believe.

(Charles E. Parish— Direct.)

Mr. Peters:— It is between August, 1S54, and April, 18.5.5,
that you allege.

Mr. Dickinson:— Just when the period of the two years
came round for the final naturalization papers.

May it please the Court, we submit the motion without
any further argument.

The Conniiissioner on the part of the United States: —

Mr. Justice King desires me to announed, on the i)artof
the Coniiui.ssioners, that they are perfectly satisfied that
under this notice the United States <"ould not read that
part of the tally list, or poll list, which shows that Joseph
Boskowit/ voted. So far we are agreed. As lo .h<' other
]iortiou of the motion, ut> will take it into consideration
during the recess.

Mr. Dickinson:— I wisli to state, may it please the Com-
missioners, that I had never sfcn the .irgument of my
2„ learned friend, the counsel for Her Majesty, when 1 made
this motion.

Mr. Peters:— I stated that the counsel for the United
States had received my printed argument in this matter
before giving notice of this motion. I think that \)rnh-
ably that statement is incorrect. I see, by looking at the
not ice -and 1 desire to correct the former statement I
maile— that it was given on the Sutb of March.

Mr. Dickinson:— Thank you, Mi. Peters.

1 iiavc nothing further to propose on behalf of the
,jj United States.
•^ The Commissioners took recess at 1 i*. M.

At 2.1.') P. M., the Commissioners resumed their seats.

The Commissiimer on the part of the United States: —
My associate decides that I shall make the aiuiouncement
of our conclusion with refeience to the motion filed by the
United States, and presented this morning.

Without assuming to pass upon the fjicts, or the rele-
vancy of the proofs, we have decided to allow the United
*^° States to take out such proofs, pertinent to the motion, as
they have here to be taken out. We, however, reserve
until the close of that evidence, the power lo make such
ordei-s as may be found desirable to protect Her Majesty
in reference to the testimony. We also realiHrm what we
said this morning, that the tally list cannot be read for
the purposi of proving that Mr. Joseph Boskowitz was
registered as a voter, or voted. Wo also, with reference
to the suggestion made that there might be some evidence
connecting Mr. Joseph IJoskowitz with the disappearance
5° of the pjijiers and whatever is .slid to have disappeared,
are of the opinion that the evidence must be limited to the
purpose of showing that the papers and other matters
disappeared; tiiat tlie notice is too general to permit evi-
dence to be offered which would prejudice Her Majesty's
case, beyond that mere fact.

Charles E. Parish was called as ii witness on the i)art of
the Unittxl States and duly sworn.

6o Direct-examination by Mr. Dickinson:

(^. — Where do you live, Mr. Parish? A. — Madison,
Wisconsin.

t^.— Is that the Cai)ital of the State of Wisconsinif A.—
Yes, sir.

y.— In what county is Madison situated^ A — Dane
County.

ir.

^ (Charles E. Parish— Direct.^

* Q. — And wliat is.the highest nisi pi inn court of rocortl
in the State of Wisconsin— court of trial? A.- Wliy. the
Circuit Court.

y. — Asa Circuit Court for each county? A. — No, sir;
tlierc are Circuit Courts, of which Dane County is a part
of the circuit.

Q. -But there is a Cir<!uit Court for each county and
loscveral counties in the circuit? A. — Ves. sir.

Q. — Tiiat is a court of record? A. — Yes, sir.

(}.- Are you at present Clerk of Mie Court? A. -Ves,
sir.

Q. -How loni? have you heeu Clerk of the Circuit Court
for the County of Dane, in the State of Wisconsin? A. —
I was elected first two years a>;o last fall, took office two
years ago last Jamiary.

(}. And you are the custodian of the files and records
of the Court? A. -Yes, sir.
20 y -And have received, have you, the tiles and records
of the Court from your predcce.-sor? A. — Yes, sir.

Q.— Can yon tell us what time the Circuit Court for the
County of Dane was organized? A. Not of my own
knowledge.

Q. —Well, fiom your knowledge as an ()tTicial of the
Court. Of course you were not tliere when it was oigan-
ized? A. 1 do not know.

y. -Ahouthow far do vour records go hack? A. Back
to IS4I.
30 (^. — Who was your immediate predecessor? A. — Wil-
liam Felandt.

y. — Do yo'.i have in the Ciicuit Court for tiie County of
Dane the naturalization papeis of foreigners? A. -Yes,
sir.

i}. — And do you know from tlie recoi'ds, whether
foreigners have been naturalized there since the period
you speak of, ls41? A.— Y'es, sir; they have.

V. — Will you j)lea«e state, Mr. I'arish, whether you
have made any search for the Hies and records of
4onatinalization papers in the office of which you are
custodian? A. — ^ es, sir; I have

Q.— How far hack did yon Hnd naturalization papers of
foreigners? A.--I think, if my recollection serves me
right, it is in lS4;i, the second papers -the full citizenship
papers. 1 am not positive whether theie are any in 1S41.

(.^. — Kunning down to what period? A. -Running
down to the present time.

Q.— Will you please state, Mr. Parish, whether, aside
from the files of naturalization papers, there is kept any
So index or indices, of first pa|»eis? A.— \'es. sir; there is a
sort of record hook, and an uidex also to that.

Q.— That runs from the earliest period to the latest?
A. — No, sir.

Q.— What period does that cover? A. -It starts in with
April fi. I.S.W.

Q.— Of the first papers? A.- The second papers.
(}.— The first papers I am talking of? A. --The fiist
papers; there is a record book— a sort of index and record
book.
60 Q.— From what period to what period? A.— From 1841
to date.

Q. — Now, as to the second papers— we have been speak-
ing of the first papers, or declaration of mtention -as to
the second papeis, are there any records of the papers
filed? .A..— Yes, sir.

(Cliarle^ K. Parish— Direct,. )
Q.— What peiind (lo«'s that, cover? A.— That covers

from April <i. \>:>:>, to tht- present time.

(} - N

ever an

V hefore that? A. -N

O, SI I.

c). — Have yiiu the record of secoiid n.-itinalization
papers? A.- I have the liist hook of the second papers.

Q. -The tiist liodk that was ever made in the ottice?
A. -The first one that was evci' kept in the ollice I can
lotind, or know anytiiin;.; al)iint.

t^. — Will you please j)roihice it?

Witness product

hook.

]k:

Q. The hook yon jiresent is entilled " Uccord of Ad-

issions to ('j(i7,cMslii|)." is it not? A,— I ln'lievc so.

y. And it states on its f.ice " Connnen( inj; .lannary 1,

A.-Y

CS. SMV

(,). They are all similar entries, are they not? A. Yes.
sir, I hc'iicvf they are .ill similar hack, there may he a
little dissimilarity in the form.

t,). It is a hook of lilanks, is it not? A- Yes. sir.

l|). — Tlieie were record hooks running hack, you sav,
• to ls4-.' of llrst papers? A.— IsH.

Mr. niikinson: We w ill state the facts in rej^ard to the
hook, (hat the hook produced appears to he printed origi-
nally as a hook of lil.iidxs, and all the hianks are filled in.
with an inilex to the persons who took out thial papers,
all in the following form:

■ rilK I'MTKd) STATKS OK AMKU'ICA.
30 Rk rr iJivMKMHKKKD. that on this 12lh day of .\pril. in
the year of ( >nr l.oni One thousand eight hundred and
fifty live, ami of the Independence of the Tnited States
the seventy ninth. .lohn N'alantine I'feff, an alien, heinga
free white iiersoii. ;i|ipeared hefore the Oircuit Court of
the State of Wisconsin for D.ane County, and ajtplied to
the Court to he admitted t(» iiecome a citi/en o| the I'liited
States. And the said .lohn Valentiiie rieff having more
than two years ago made a declaration of his intended aj»-
))lication as aforesaid, in the manner and form presciihed
40 in the .Act of Congress entitled "An Act to estahlish a
uiiifoiin I'ule of natiirali/.ation, and to repeal the acts
heretofore! pa.ssed on that snhject.' And the Court luring
satistied hy the testimony of Nelson J'ierce and laither
Thoiiison, citizens of the Cnited States, that the said .John
Valentine IMell' has resided within the United St.ites for
the continued term of five years last past, and within the
State of Wisconsin, aixl th;it dining that time he has he-
haved as a man of good moral chnracler, attached to the
|)rinciples of the Constitution of the I'nited States, and
5^ well disposed to the good ordi'r and happiness of the same.

.And the saiil applicant declaring on oath hefon; the
Court that he will support the Constitution of the L'nited
States, and forever ahsolutely and entirely renounce and
ahjui(> all allegianci' and fidelity to every foreign
I'riiKc. Potentate. State or Soveieigntv whatever, and
paiticiilarly Ma.ximillian Second. King of Havaria, where-
of he was Jiefore a siihject.

Tliei«'U|)on tiMi Court admitted tlie.said .John Valantine
IMetf to liecou'.e a citizen of the United States of Anier-

fK>

ica.

Direct-e.xamination hy Mr. Dickinson, continued.

Q.-- Now. Mr. I'arish, do you know your.self whether
there was any other hook containing the.se records prior
to .January 1, ls.'),"j? A. — No, sir, I do not. 1 found uoue.
1 think there were none.

it covers

lalizatioii
papt'is.
lilt otticc?
lice I call

(1 of A(l-
' so.
aiiuary 1,

A -Yes.
may lie a

, sir.
\(ui say,

ii'd to tlie

ited oiigi-

fillcd in.

il papers.

•A.

.Al)iil, in
idled and
fed State.s
'11. hcin^a

(Vnii't of
a])i(li»Ml to
lie Ignited
dnj; more
lended ap-
picseiibed
stahlisli a
I the arts
)oit being
id LiUlier
■said John
St.ites for
Aitiiin the
liH has he-
led to the
Itates. ami
f the.siine.
before the
the L'nited
nil nee and
i"y foreign
tever, and
ria, wiiere-

Valantine
of Ainer-

iied.

If whether
;ords prior
mud uoue.

« (Charles K. Parish— Direct.)

Q.— Von did not find any on any examination yonliave
niadt'^ A. — I have fonnd nothing later tliait that book.
Tliat was the earliest iiook in tiie ottico.

Q. — Will yon plea.se state whether, in addition to the
hook sncii as this in your files and records, there are kept
the original papers? A. -Yes, sir.

<^. — How are they kept* A. — Well, of late years tlK'V
lo have all been kept in tiles, and placed away in boxes in
the vault, and late years the first paper, or a copy of
the first paper, is fastened to a copy of the oath of allegi-
ance and filed away.

Q.— Those tiles are kept in addition to this bonk? A.—
Yes, sir; aiul also in addition to a separate index.

Q. — Have you made examination of those files to ascer-
tain whethei there were any naturalization pa jiers— second
papers- between April, lsr)4, and April, 185.5? A. — Yes,
sir.
20 y. — Do you find any such files for that year? A. — No,
sir.

y.—After the taking out of the first jtapers, within
what period are the second papers taken out in accordance
with the practice? A. — Not earlier than two years after-
wards. They cannot be taken out until after the expira-
tion of two years.

y.— Is it the custom to take them out in cibout two
years.

Mr. Peters:— It cannot be less than two yeare. I do not
30 think that is a fair question, what the custom is.

Mr. Dickinson: — 1 will waive the question. It does not
make any particular difference.

Q— I think you prepared and certified this copy
of the first papers of Aaron Boskowitz, did you not?
A. — Yes. sir.

Q.— It is your certificate? A. — Yes, .sir.

y.— This is your signature to the final certificate on the
first papers? A.— (Examining) Yes.

40 Mr. Dickin.soii: — I offer a certified copy of the first oath
of Aaron Boskowitz, in which he declares his intention to
renounce, &c., the oath being dated August 24, lM.5ii.
This paper J should state, may it please your Honors, was
the result of a telegram sent to see if there were any first
papers taken out. It did not arrive at Victoria until after
the close of the session, although the certificate is dated
the litth day of January.

Mr. Peters:— If I understand correctly, you sent that
telegram some time in January, before we left Victoria?

50 Mr. Dickinson: — To be sure, I .sent that telegram to
ascertain if there was any one by the name of Boskowitz.
I received that certificate after the close of the session at
Victoria— I think on the day, or the day but one before I
left Victoria. The mails at that time were delayed by a
flood, or something.

ss. :

The oath is as follows: —
State of Wisconsin,
Bane County,

^ To the Honorable

Judge of the Circuit Court in and for the County of
Dane, aforesaid:

I, Aaron Boskowitz, an alien born, being duly sworn
according to law, on my oath do declare and make known
that I was born in Bavaria in the Kingdom of Bavaria,
and that I am about forty-two years of age; that I emi-

(Charles E. PariHh— Direct.)

grated from said KiiiKtlom in tlio inontii of July, A. D.,
1H4B, and entered within the limits of tho United States,
at New York, in the State of New York, in the month of
Augnst, A. D., is4;t, and that I have ever since remained
within the limits of tho United States and that it is
my honnjiih' intention to renounce forever all allegiance
and fidelity to every Fon'ign I'rince, Pow«'r, Potentate or

lo Sovereignty whatever, and more esjiecially such al-
legiance and fidelity as I may in any wis«! oweto Lndwig,
jiresent king of said Kingdom, either as a citi/en or suh-
ject, and that I do not enjoy or posses-s nor am I in any
wise entitled to any order of Distinction or Title of No-
hility hy virtue of any of tho laws, customs or regulations
of the said Kingdom, or any other country; and that I
am sincerely attached to the principles ccmtained in the
Constitution of the United States, and well disposed to
the good order and well being of the same, and desire

20 that this, my Deci.nation and Report, may lie accepted
and tiled, preparatory to my intended application to be
admitted as a Naturalized Citizen of the Unitnd Slates,
in conformity with the several acts of Congress in such
case made and provided.

Akon Boskowitz.
Subscribed and sworn to before me ''
this :i4th day of August, A. D. }-

IS.'iL'.

Elisha Blkdick,
Clerk Circuit Court, Dane County.

Q — I desire to ask when you last made a search of the
files fnr these sectond papei-s for the year 1M54? A. On
Saturday last.

Q. — In the files at Madison? A. Yes, sir.

(^. — Now, that is where they are kept? A. Yes, sir.

y. — Will you please state whether those are public files?
A. They are; yes, sir.

Q — VVhere are they kept? In your office? A. They
40 are ke])t in the vault room.

Q.^ — How large a room is it? A. It is a largo room -per-
haps sixteen by twenty-four, something like that— sup-
posed to he fireproof.

Q.-- Lighted? A. Lighted by three windows on one
end.

Q.— Lighted in any other way at night? A. Electric
lights.

(). -What are the hours that that vault is open? A.
The vault is open to the public all the time tlie office
50 proper is open, and we keep the office open longer than
the regular hours. We are there from about eight o'clock
in the morning until near six. The door is always open
whde we are there.

(}. — Is any one who goes in there accompanied by any-
one connected with i;he office, as a rule? A.— Not unless
they want assistance.

(^. — So theie is ])erfectly free access? A. — Yes, sir; free
to the general public.

Q. — Will you please state where in that vault were the
60 naturalization files kept — in what sort of a receptacle? A.
— They were ke[)t in iron boxes — sliding drawers or
boxes.

Q. — Sliding pigeon holes? A.^Yes, sir; iron boxes
probably a little over a foot deep, so that these papers
could stand on end in those boxes, and shove into other
iron cases.

!!♦

(Charles E. Parish -Ciohs.)

Q. -Were tliose in any way locked iui A. -No, sir.
• Q - So that any onecoulil ^^,vi intotlit'ottice, pull out one
of those iron hoxeH and look at the tiles at his own sweet
will, and he alone in that otHce, could he? A. — Vesi, sir.

Cross-examination by Mr. I'eters:

(^. -Mr. Parish, I think you stated yon took charge of
that oHice whenf A. — In January two years aj^o.

(/ -And ui) to that time you know nothing about that
otTite? A. Very little about it.

if. When did you bej^in to know anythin;; about the
oflicf^ A. Well, for a ureat many yt-ars I have iH-en in
the ollice at dillerent times, but never knew .inythinK
abiiit the praclical workings of it.

(,) -Now. couhl you |»reteurl to say what records were
in that ollice, or what were not in that oHice, before you
went there? A. — No, sir.

(.,». Vou have stated that here is a record of admis-
'.sions to citizenship, and that bejiins in the yeai- Ih."»."., and
it is marked volume numbei'one? A. Ves, sir.

(jf. -And on the first pa^e of that is stated " Record of
citizenship commenciuf? January 1. |ss.">" A. -Yes, sir.

ip. — Now, do you or do you not allege that there was
ever a book prior to that, of the same description < A. — I
have no knowledue of any other book.

Q.-~ Y'ou do not know whether there was or not? — A. I
do not know.

Q. -At all events thisbej;ins number one? A. — Yes. sir.

Q — 80 far as tiiis would show, it is the first record book
that ever was kept of that kind? A. — It has tiiat a|)pear-
ance.

(^.— Have you any doubt of it in your own mind that tiiat
is tlie tii'.st time such a record book was kept? A. — 1 have
no means of knowing whether there were any prior or
not.

Q. That number one was on when you went there? A.
— Yes, sir.
.- Q.— And appears to have been the first record book of
^ that kind? A. — Yes, sir.

Q. — Now, then, have you any record or any trace of
any final citizenship papers before that date? A. I have
no records of any final citizensiiip papers.
^ (^.— Or any trace of any record prior to that date? A. —
No, sir.

Q —And from that date they are all complete? A.— I
think they are. So far as I have examined they are.

Q.— It appears that a proper systematic record has been
, kept since IS.^i")? A.— Yes, sir.

Q.— And it also appears that prior to IS.").") a proper
systematic record was not kept? A. — It appears there was
no record kept.

Q. Nor can you state that there were any before 1^.5.5?
A. — No, sir: I cannot.

Q.— Any final citizenship papers taken out in a Circuit
Court in the County of Dane? A.— I did not understand
that question.

Q.— You are not in a position to state that there were
g^auy final papers prior to that time? A — Y'es, sir.

Q.— How? A.— From the fact t uc there were final
admission papers there on file prior to that date— final
oath on file.

Q.— Any record stating that the Court made that order?
A. — No. sir; there is no record.
Q.~ Here the Court made this order "Thereupon the

50'

c^.

/u^y

I i'

<C'liiirl«'s K, I'iirish—CrosH.)

Court ndinittfd said to l)e(-oni«>ii citizen of

the lliiitt'tl Stfitt'S of Ainciica." I'liorto \s:,:, wiih tlirm
any hiicIi loconl in liin Circuit Court for llw County of
|)an»'< A.- I foniid iiont'. No, »ir.

Q.- Now then you say vou do find records of tliat Court
back as far as tin- yi'Mr IMl? A. - ls4'J i think was the
first tiiiai a<lniissioh I foinid -1 am not |)ositiv«>.
lo (^. What do you call thf hooks that \v»'r»( kept there
prior to that timef A. — 1 fouiul no IxtokH as to final ad-
missions.

Q. — Vou foiMid something about them, did you iu)t?
A.— No. vir.

Q — Nolhiiif; <'it -ill; A. - Not final admissions,

(/-'I'here are no minutes of tho Court; A.-l found
none. sir.

U. - Difl you look? A. -Ves, sir.

Q. — ls tiiere not a hook lalled the Court Minutes? A.—
20 Yes, sir, tlieic is

(^ V\'her«' is that book? Did you l)rinK it «ith you? A. —
No, sir.

Q. — Did you look .it it? A. — Yes, sir.

Q.- Does not what is called the Court .Minutes show nat-
uralization papers, as well as anything;; else? A.— Not
prior to that date.

Q.- Prior to wliat date? A.— Prior to the date of that
book.

l^. — Did you loc t A.-— Ye.s. sir.
30 (.^ — Looli at fl ourt minutes? A.— Yes, sir.

Q --And you I iid notliing in it? A. — B\)und notliiug.
I did not read it all through.

Q. -flow do you know they were not in it? .^ —I do
not. hut I found none.

(./-What i)art did you read through? A.- When I
found the first pajters on file, I would refer to tho court
minutes, to see if there was any mention in tho co irt
minutes, and I found none.

Q. — And you found tlw coiut minutes from what time?
40 A. I coulil not stale posilively.

(^. - Did you find the comt minutes from the year 1842
up to the year isM? A. I think not consecutively. lam
not sure as to that. I)ut I think not.

l^ --Wliat was missed? A. I do not know. I found
some coui t minutes, but I <lo not remember the dates.

Q. -Did you make any special search through those
court miiuites to find what was in tliem in regard to
natunilization papers? A. I did in regard to those on file.

I,). — Did you go througli from the year 1H.52 to the year
50 18r)tl ()•.• IS.').'), ve will take? A. Nothing, only as regards
these papers that, weie on Ide.

Q. — I simply ask you did you go through the record of
the court minutes from tlut year 1S.')2 to the year 18.55?
A. I can only answer you as I did i^efore in regard to
looking at thcjse records.

Q.— That is, you did not? A. No, sir; only to look up
to see if there wore any entries of those papers, of those
persons who had taken out second papers.

Q. — Did you not find between the years 18.52 and 1855
6oa complete set of court records--court minutes? A. I do
not know whether I did or not.

y.— Are you in a position to say yon did not? A. — No,
nor I am not in a position to say I did. I have no recol-
lection of finding a complete set.

Q.— Then, for aught you know, every single thing

Ih tliat
I lookcil

(ChailttH K. PariHli- CV08H.)

about tliiH may appear in tlutse roiirt niimites*
tin* ciiHt'i A.— No, Hir.

y. Why not? A—For the ri'a.Hoii I told you.
to H«'t» if fht'y were «'iit»'re(l.

t,! — Thfii iinavver thiH (|ii»!stioii: Are there or are there
not court niituites fi(MU IstrJ to l^'i.")? A. -F do not know.
There are court niin ;tes alonj^iii those years, but whether
10 they aio coni|)letu or not I do not know.

(^.— Now, then, 1 am Koin>{ to ask you r.nother (piestion
from the same court minutes theie, whether or not vou
have read them thmugh, in orch-r to i»e aide to say w'liat
is or what is not contained in tiiem^ A. — No. sir; I have
not read them through.

f.^. — Nor can you tell me for what period you have read
them? A. — N(», sir; I cannot.

t^. -And as a matter «d' fact you ar«! not in a position to
tell us for what years the minutes actuallv existed^ A.—
-oNo, sir.

(). — Nor what those minutes really contain if A. -No,
sir.

Q. -So that really on this point you are not able to give
us nnich information? A. -Only what I have told vou
before. 1 was looking for certain matters, and that was
all 1 read.

(^.- Now. will you li(> kind enough to tell mo what

searchi's y..u really did make yourself? A. — I made a

seaicli to see if there were any records of certain papers

30th.'it I found there in that tiltice; second, or citi/ensliip

papers.

t^. You made a .search to asc:ertain the citizenship
papers of Aaron Boskowitz? A.— No. sir; I did not.

(^. What did you say then? A. — I made a search to
see if there were any records kept m those minute books
of the |)apers on tile then — the citizenship pajiers

y.— For what years? A. — For the years previous to

is.-,").

y.— Previous to 185,")? A.— Yes, sir. I did not take all

40of tiiese pajters. I took certain ones and then went

through the minute book to see if there was anv record iu

the minute book with regard to them.

Q.- Suppose, then, that you found the citizenship
papers of say, John Brown, you would go to the minute
book and see if it were entered? A. — Yes.

y — And you took three or four of those from 1841
to l^.'i.')? A. 1 probably took a dozen.
y.-From 1841 to 185.')? A. - Yes, sir.
t^. — Could you give me a general idea of liow many
50 papers of that description there would he during that
period? A.— No, sir; I could only tell you about how
many I found.

y. — You just took tlieni here and there? A.— I took a
number.

Q.— Aid as a matter of fact you made no— what you may
call a systematic search whatever? A.— 1 madeasearch. a
systematic search, for those persons that wore natural-
ized.
f. Q.— That is to say, for persons with whom we have
"° nothing to do? A. — Yes, sii-.

y.— How many did you take between the years 1841
and 1855? A.— About a dozen. Of course, I am just
speaking from my re(;ollection.

y.- How many did you find of them in the minute
book? A. — I did not find one.

(Charles K. Parish— Cross.)

nono of them in the miiuitos?

' fi

record? A.-- 1 went

A— The only records
mimite hooks. There

-No,

Q. — You found
None of them.

Q.-Then did you jjo through all the records from 1852
to 185.")* A.— Yt's. sir.

Q. — You went through every
liirough everything.

y. Wiiiit (lid you go through?
ID that 1 could go through vere the

were no hooks of tinal admission duiing those days.

(j). — Ther(> were no hooks of final admission? A.-
sir.

Q. — And no tinal papers taken? A. — I found none.

c). — For Mohody? A. For nohfxiy.

Q. — Was that the only miiuite hook that was kept

there? You expected to find them iu the miimte hook?

Did not you think they were there? A— They are kept in

ihe minute hook now, or not a minute hook, hut iu the

20 court recoid, as they now call it.

Q.— And they have heen ke])t in the Court record for
how far hack? A I rlo not know.

Q. —\Vh<':i did they hegin to keep them there? A. — I
do not know.

Q. -And you expected to find them in the Court record?
A. — I looked to see if they weie there.

Q. — Is your Court record a complete lecord, as far as
you know? A. I do not know whether it is or not.

Q. -At all events, you went hack through the only
3oCourt record that is kept, from the year isr)2 to 18.54, did
you? A. -Yes, sir.

Q. -And you found no trace of Aaron Boskowitz hav-
ing het'u naturalized, according to that record? A.— I
found none.

(}. — You found none? A. No. sir.

(). — And from that, you would assume that he had not
heen naturalized, in that Court, at all events? A.— No,
sir; I would not.

Q. — You would assume it would show nothing ahout it?

40 A.— I would assume there was no record of it, just the

same as there was no record of any other person in

these minutes jjrevious to that date. I found no record of

any person whatevt-r previous to is.")."i.

{).- TluMe is, then, no difference from the year 1841 up
to 18,"),"); you found no record of anythiug during that
time? A. -That is right.

Q. -And there is no difference in any of the years be-
tween is41 and is.").">, no more than there is hetween 1854
ami ls.").">? None of them show the record, according to
Soyou? A. — I found no record.

(,).— Do you know anything ahout the records havii>g
heen taken away? A. — No, sir.

Q. -It is suggested— I do not know who suggested it —
that somehody took them away, hut you know nothing
ah'iut that? A. — No, sir. nothing at all.

Q. — Tiiere is nothing to show it? A. — No, sir.

Q. — And nothing to suggest it, is there? A. No, sir.

t). — So that you know nothing ahout it whatever? A. —
I know nothing about it. 1 only know what I found in
60 the search.

Q.--And you know that no matter how far you go back
you do not find these records before 1855? A. -I have no
lecords.

Q. — In 1855 they began to keep the records in a
systematic manner, and prior to that they did not? A. —

(Charles E. Parish— Cross.)

I do not know what they did before. I liave not any
records, tliat is nil I can say.

Q — There is nothing that you know that would lead
you to suppose that any part of the records have been
stolen < 1 have a certificate of yours in my hand, and I do
not know whether it is correct or not.

Mr. Dickinson: -Siiow me your certificate.
10 Witness: -I do not know whether I am allowed to say
anything with regard to that matter.

Mr. Peters to Witness: — I ask you, is there anything
there to show it?

Witness:— 'J'I'ere is nothing there to show it.

Mr. Dickinson: Will you show nie the certificate that
you ask about now?

Mr. Peters:— The letter is !is follows: "In re{)ly to yours
of June ;{d would say, I believe the certificates already
sent you cover the matter you enquire about and includes
2othe period from August, lsr.4, to April, 1.^55. Myself and
deputy have searched the records upon several (iccasions,
and we can find nothing relative to the final admission of
Aaron Poskowitz. I know nothing about the reconls hav-
ing been lost or mislaid at any period." That letter was
sent on the nth June, 1807, by Mr. Parish to Mr. Strauss,
who was making enquiries into this matter.

Cross-examination by Mr. Peters continued:

y. -That is correct, I presume? A.— Yes. it was cor-

30 '■^^*-

Q.— And it is coriect? A. -I have no personal knowl-
edge of any papers having been lost or stolen. 1 only
know what I found there.

(,).— And you know what you did not find there? A.—
Yes, and what I did find also.

Q. There was kept in tiiis County of Dane what is called
Court minutes? Was that afterwards called a rule book?
A.— I think it was first called the rule book— no, excuse
me. there was a rule book kept and also the Court
.Q minutes. The Court miiuites were kept bv the Court
themselves, and the rule book was a book, if t understand
it right, kept by the clerk in these times. It is different to
what we have now.

Q. -And there was also kept an order book? A.— Not
at that time.

Q.— Later on? A.— Later on the order book took the
place of the itile book.

Q.-Is that l)efore iS.5.')? A. -I cannot state. I do not
know when the change was made. I know that when I
jgWent into tlie otiice there was a rule book kept.

Q. — Now, this certificate that Mr. Dickinson has pro-
duced here was signtnl by vou on the li»th January.
KsttT? A. -Yes. sir.

Q — And that was given in response to a telegram, was
it? A.— Not to me.

Q.— Well, to some other person? A. I did it at the re-
quest of a gentleman who was there.

Q.— Some i)erson came there and made enquiries and
you gave the certificate? A.— Yes.
60 Q — And these certificates are all dated on the 19th
January, 18!>7? A. — Y<jp.

Q.— flow long did it take you to make the seai-ches?
A. — I made very little search at that time. I looked for
the first papers, and foimd it, and my deputy did the rest
of the searching then.

Q.~How long before you gave this certificate were you

I ]''

(Charles E. Parish— Cross— Redirect.)

actually requested to make that search? A.— I was not
requested to make any search.

Q.- You were requested to get this certificate? A.— I
was not requested to give that certificate only after the
records had heeu gone over hy my deputy and another
gentleman.

Q. — How long was it after that your deputy was re-
lo quested to go over the papers? A. — That same day.

Q.— It was all done on the one day< A. — Yes, sir.

Q. — Do you know Mineral Points A. — No, sir; I never
was there.

Q. — Do you know what county it is in? A. — I under-
stand it is in Iowa Count/y.

Q. — There is a Circuit Court there, is there? A.— In the
county: yes, sir.

Q.— Does it sit at Mineral Point? A. — It is my recollec-
tion that it does.
20 Q. — At all events, it sits in Iowa County? A. — Yes.
sir.

Q. — Then there is a court there? A. — Ye.«.

Q. -Do you know how long that court has been in ex-
istence? A. — No, sir.

Q. — Has it been there as long as the Court of Dane
County? A.— I do not know.

t^. — It has been there, at all events, since 1852? A.— I
dii not know.

Kedirect-examination by Mr. Dickinson:

y.— Now, Mr. Parish, what were the papers that are
kejjt on file in regard to second citizenship papers? What
are they made up of? I refer to those that you do find in
your office? A. — Well, some of them there consist of two
papers put together.

Q. — What are they? A. -One is the fiist paper or a
copy (it the first j)aper, and attached to the oath of alle-
giaiicf and filed there.

Q. — The oath of allegiance is the second oath? A. —
40 Yes, sir.

Q. — That consists of the second paper? A. — Yes, sir.

Q. — Wliatilo you call the court minutes? Are there
any court minutes prior to 18;);') in reference to citizen-
ship papers} A. — 1 found none whatever.

Q. — None whatever? A. — No, .?ir.

t).— Tliey never were kept in court minutes at alh A.
-It did not appear that they vveie. I can only testify us
to what I saw.

t^. — So far as your evidence goes, the only record of
50 second citizenship pajiers would appear in those files and
in this record? A. Yes, sir; with an inde.x to these record
books.

y.— Wi'.en did you first make the examination wlierein
you found that the files from August, 1S,54, were not in
your oftice; what date did you make that search? A. — I
Inade that search on the 10th of this tnonth, I think last
Thursday.

Q. — Then prior to the loth of this nionth, you would

not know, would you, if there appeared on the files of

60 your ofltice all the records of citizenship papers, consisting

of the oath of allegiance and tiio copy of the first original

citizenship papers down to 1854? A.— I did not know.

Q. — You would not have known that? A.— No, sir; I
would not.

Q.— Because your attention was not called to it? A.— I
never had occasion to examine or look into it.

-I was not

ate? A.- 1
ly after the
nd another

ity was re-
eday.
es, sir.
sir; I never

i.—I under-

A.— In the

my recollf>c-

'< A.— Yes.

been in ex-
jrt of Dane
1852? A.— I

ns that are
pers? What
on do find in
onsist of two

; paper or a
oath of alle-

oatli? A.--

— Yes, sir.
'( Are there
;e to citizen-

esatallt A.
nly testify as

ily record of
u)so files and
3 these record

ition wlierein
, were not in
?^aicliJ A.— I
I, I think last

h, you would
n the files of
)rs, consisting
e first original
not know.
A.— No, sir; I

1 to it?

it.

(Charles E. i'arish— Redirect.)

Q. —Now, some one applied to you to make out a certi-
ficate that there was no such papers on file. Have you
got the original papers that he prepared for you, and
which yru took to the Judge? A. — Yes, sir; they did not
come to my hand at first.

Q.— Will you please state whether any one came to you
since the date of this notice, March HO, 1897, to get you to
lo sign a certificate? A. — Yes.

Q. — Who was that person who came to get you to sign
a certificate, which I now hold in my hand^ A.— I believe
it was a man by the name of Joseph G. Howard. He was
reported to me as such.

Q. — Did you sign the certificate as he prepared it for
you? A. — i consulted the Judge.

Q.— The Judge of the Court? A. -Yes, sir.

Q. — Did you give the certificate in the form that he
prepared it for you? A. — No, sir.
20 Q. — Have you the form in which he prepared and asked
you to sign the certificate? A. — Yes, sir.

Q— Is this it, which I hold in my hand? A. — Yes, sir.

Q. — This was the original form that was shown to you,
and which you were requested to sign? A. — Yes, sir.

Q. — You declined to sign that without omitting the
words written in pencil? A.— Yes, sir; I objected to it,
and sent it to the Judge who was at Montenello. The
Judge had left Montenello before it reached there and
come back to Madison. I took it down to the Judge's
3ohouseand consulted the Judge and asked him what he
thought, and he told me that under the circumstances he
would advise me to make the changes.

Q.— To strike out the words that are erased in pencil
here? A. — Yes, sir.

Mr. Dickinson:— If my friends do not object, I will read
the certificate.

Mr. Peters:— I certainly do not. It is the certificate he
has sworn to.

Mr. Dickinson: -He would not sign the certificate in
40 full, but he has sworn to what it contanied in full. I will
read the certificate as prepared for the Clerk, before his
consultation with the Judge.

"State of Wisconsin, )
Dane County, )

In the Circuit Court for Dane County.

I, C. E. Parish, Clerk of the Circuit Court in and for
Dane County, Wisconsin, duly elected and qualified and
acting as such, do liereby certify that I am the custodian
50 of all of the records and files of said Circuit Court, embrac-
ing the records and files of naturalization of aliens in said
Court.

I do further certify that I have made diligent search
and examined ail records and files in which the final ad-
mission to citizenship of aliens would appear and find that
such records and files do not show that Aaron Boskowitz
was ever admitted as a citizen of the United States of said
Court.

And I do hereby further certify that the records and

•60 files in which final admissions to citizenship would be

entered in said Court are complete and contain all the

records of admissions to citizenship of aliens from the

year 1850 until the present date.

In testimony whereof I have hereunto set my hand and
affixed the seal of said Court, at the City of Madison, in
said County, this 10th day of June, A. D. 1897."

ss. :

/^^9KM*

L>»'.

:' t

(Lothrop S. Hodges-Direct.)

Mr. Dickinson:— These words written in pencil " would
be entered " and "are complete and" were stricken out?
A.— Yes.

Q.— And yo\i substituted for the word "would" the
word "are?" A. — Yes.

Mr. Dickinson:— I will now read the certificate as you
signed it.
10 " And I do liereby further certify that the records and
files in which final admissions to citizenship are entered
in said Court contain all the records of admissions to
citizenship of aliens from the year 1S50 until the present
date."

You signed that certificate? A. — Yes.

Q. — And you did not sign the certificate in the original
foim as he presented it to you? A. — No.

Lothrop S. Hodges was called as a witness on the part
of the United States, and duly sworn: —

Direct-examination by Mr. Dickinson:

Q.— I think you area practicing counsellorat law? A. —
Yes, sir.

Q.— In the Federal and State Courts of the State of
Illinois, and in the United States Supreme Court? A. —
Yes.

(^). — Will yo«j please state where you reside? A. —
Chicajio, Illinois.

Q. — How long have you lived there? A. — I went there
30 in isOit, and have been there ever since.

(^. — Practicing law? A. — Yes, sir.

Q — I think some time in January you got a dispatch
from me, from Victoria, asking you to proceed to Wis-
consin? A. — Yes, sir.

Q. — Did you, in the course of your proceedings, go to
the Clerk's ofiice in the County of Dane? A. — Yes, sir.

Q. — And you, I tiiink, procured this certificate from the
County Clerk tliat has been put in evidence as to the first
citizenship of Aaron Boskowitz? A. — I obtained from
40 him at that time a certificate— a certified copy of Bosko-
witz' intention to declare.

y. — And the declaiation? A. — Yes, sir.

Q.— And you mailed it to me^ A. Yes, I mailed it to
you at Victoria.

Q. — From Chicago? A. — Yes, from Chicago.

Q. — Now, did you make an examination as to the
citizenship papei-s in the vault room of the Clerk's office in
the County of Dane? A. — Yes, sir.

Q.— About what date? A. — li)th January, 1897.

Q.— Will you please state whether you then found any
' files or lecords of second citizenship papers for the Circuit
Court of the Countv of Dane, Wisconsin? A.--I found
both.

Q. — First and second citizenship papers? A.— I found
both files and records, that is my answer.

Q.— This is as to second citizenship papers. Confining
yourself to that, what did you find in that office of files of
second citizenship papers at that time, on the li)th Jan-
uary, 1897? A. — I found a package of papers which pur-
j, ported to be tiie applications for certificates for naturaliza-
tion from 1841 down to the spring of 185i.

Q.— Of second papers? A. — Yes, sir.

y.— Where were they? A. — They were in this vault.

Q. — Did you go through them! A.— I went through
them to this extent, either I or the Clerk opened up the
package. It was a package of paper about six inches thick.

liled it to

(Lothrop S. Hodges— Direct.)

It was done up in wrapper colored paper, and on opening
the wrapper and looking at the paper I found that there
wasiiiside of it the certificates for each year.

Q.— From what year? A.— From 184J down to the
spring of ISiH.

The Commissioner on the part of the United States: —
10 Do you mean the certificates or applications? A. — i
mean the applications for second papers.

The Commissioner on the part of the United States:—
Applications endoi-sed by the Judge? With the Judge's
initials on them? A. — I did not notice that.

The Commissioner on the part of the United States:—
Were the papers endorsed by the Judge? A. — On the

inside, yes. sir. Let me be sure my answer does not cover

more tiian I intend. Each paper, so far as I could state,
-o was not endorsed by the Clerk, but on each paper was an

endorsement of the name of the applicant and the date.

Whether the Clerk's name was on it or not I could not say.

Direct-examination by Mr. Dickinson continued: —

Q. — Was the Judge's endorsement on it? A.— I could
not say.

Q. — What did these papers inside consist of? What were
they? A. — They were papers similar to those in tiie book
there. They were similar to those papers that are called
^o applications for naturalization papers.

Q. — And were similar in form to those in the book called
Book Nmnber One, a copy of which has been read into
the miiuites? A. — Ves, sir.

Q. —'i'be papers were similar? A — The papers I sought
for and found in this package were what we call the
second api)lication, by the party desiiing to be natiual-
ized, and upon which be obtains iiis final certificate.

The Commissioner on the part of Her Majestj': —
Then they w ould not correspond with the certificates in
4° this book.

Direct-examination by Mr. Dickinson continued: —

Q. - Did the papers, or did they not, have attached to
them in the.se files, a certificate or copy of certificate like
that in that book? A.— No, sir.

Q- Then what do the papers in those files consist of?
A. — They consisted of api)lications by the parties wishing
to have their final certificate.

Q.— Nothing else? There was not a copy of the original
50oatli, or anytliing of that sort? A. — The oath was em-
bodied in that paper.

(^.— You found them regularly from 1841 down to the
spring of 1854, and did you find any .^uch tiles of lec-
ords for any parties subsequent to the s|)ring of IS.H?
A.— I found nothing between April, 1854. That was the
last certificate. That is, in the spring of bs.H. There
was no further certificate. The next record I was able to
find was this book conuuencing on April t>, 1855.

Q. — You have no interest whatever in this matter, ex-
(bcept to make this examination for me at the time? A.— I
have not. I have no interest at all. I do not even know
what the matter is about.

Q.— You are sure of the date you made the search, that
it was the IDth January, 18!t7? A.— On the l!>th January,
1897.

(j. -Then, with these books and the files of papers you

(Lotlirop S. Hodgt's—Diioct— Cross— Redirect.)

found tlie record of naturalization and second papers com
. plete fro(n \H4l down, except for the year 1H54? A.— I
cannot say just that. Mr. Dickinson, but I can say this: I
can say tilat these tiles coveied each year. There were no
years in wliich there were no certificates, except from
"lS.'i4 to IS.V).
l^.— There were ceitificates for eadi ye.u' from 1841
lodowM to the day you examined them? A. — Yes. sir.

Cross-examination by Mr. Peters: —

Q. — There were certificates in 1S.">4. My honorable
friend's notice states that there were no certificates fiom
August. ls:)4, and now you state there were no certificates
from April. IS.H. How do you know it is the month of
ApriU A.— Tiiat covers the time down to August.

Q. — It covers it down to August? A. — Yes, sii'. because
there were none between April. IS,")4, and April. IHS.'i.
^pThere was a hiatus between those dates.

Q. — The notice I have from Mr. Dickinson is that these
papers were to be found do\»'itothe month of August,
18.'>4. and now you say that yen found none from April,
isr)4. Are you sure it is April, because I ])resume that
Mr. Dickinson n)ade this motion in ct)nsequence of the in-
formation you gave him? You say there were no records
after the month of April, 1S.")4? A.— I think that is true.

Q. -That is correct? A. — I think so.

y. — Will yon swear to that? I want to see whether you
are positi.v or not. Did you make anj' memorandum?
A. —I did at the time.

Q. — And that memorandum you sent to Mr. Dickinson?
A. — Yes. sir.

Q. — You have not looked at it since? A.— No.

Q. — And if Mr. Dickinson has put that date in his notice
he is piobably correct and you are incorrect? A. — I do
not know as to that.

y. Will you swear there were no documents after
April, 1M.'>4? A. -I will not swear positivelj' as to that.

(\ VVhtMi did you send the certificate of the 19th
Jamiary, lh!»7. enclosing that notice, to Mr. Dickinson?
A. — 1 think it was the 20th January, possibly, or the
21st.

i). — And you send it to him in the ordinary way by
mail, addressed to Mr. Dickinson? A. Yes. at Victoria.

Redirect examination by Mr. Dickinson:

Q. — You are quite positive there was a hiatus there
from August or April. ls,")4? A. — Yes. I may state that
the certificatt>s of naturalization run for the term of
50 Court, and that term is April. You will not find any
term of Court between April and the fall, and you will
not find naturalization papers from then.

Mr. Dickinson:— I call the Commissioners' attention to
the fact that the two years which the naturalization
papers of Boskowitz took to run would expire in August,
so that no legal natuialization could have oc;curred before
Augustj is,'')4.

I offer a certified copy of the i)oll list in evidence.

Mr. Peters: — My learned friend tenders in evidence the
'^election list purporting to be the poll list and tally list
for the Fiist Ward of the City of Mineral Point, Wiscon-
sin, tor the municipal election held on the (ith April, 1858.
I do not think that there is any necessity that the whole
list should go in to encumber the record. 'I'here appears
to he on that list, and I am perfectly willing to admit it,
the name of one A. Boskowitz. Who he is I do not

-mjl

(Discussion.)

know. But one A. Boskovvitz's name appeals on that
list as having polled a vote on the Cth April, 1858. The
name is just A. Boskowitz, and it miKht he Arthur or
Alexander, or anyhody else, for all I know.

The Commissioner on the part of the United States:—
It says that A. Boskowitz polled a vote.

Mr. Dickinson:— He voted.
'° Mr. J'eters:— Although most of the other names are
given in full, his is not.

Mr. Dickiiison:--lt appears by Joseph Boskowitz's testi-
monv tiiat ho removed to Mineial Point and lived there
at this period.

Mr. Peters:— I do not know whetlior tliat is in the testi-
mony or not.

Mr. Dickinson:— I wisli to tender in evidence the poll
list of the ;3d May, 18.")8, of an election held in the City of
Minerall\)iiit.

Mr. Peters:— Of this we have had no notice whatever.
This poll list purports to show that J. Boskowitz— I do
not know who he is — voted.

Mr. Dickinson:— It is in order to show that J. Bos-
kowitz, A. Boskowitz and Ignatz Boskowitz voted in that
election.

Mr. Peters:— There is no notice whatevi-r given that this
would be put in, and tlie linut is made that sucii evidence
should only be i»ut in as would show that A. Boskowitz
voted.
^ I would like to state to the Commissioners that on this
question we will, at the proper time, biing to the notice
of the Commissioners, the Treaty between Bavaria and
the United States dated 1S&2.

Mr. Dickinson:— We wish to put in the Revised Statutes
of the United States, Chapter on naturalization.

Mr. Peters: — They are all sujiposed to he in.

Mr. Dickinson: -i wish to put it in, to mention it in ref-
erence to this particular matter.

Do I undei^tivnd the Court rules out the poll list of May
"^^S, is.'is, on which it is pioposed to show that the three
Boskowitz's voted ^

The Commissioner on the part of the United States:— I
do not thiid< that anything we have ruled v.-ould exclude
the second poll list in wliicii the name of A. Boskowitz,
or .\aron Boskowitx. appears.

.Ml'. Peters:- I think they ouglit to be confined to that.
Th(! .second poll list does not help them any more than the
first. It merely n't'ers to one A. Boskowitz.
50 Mr. l)i( kinson:— It was in the tally list we put in that
Ignatz Boscowitz voted, ai\d the tally list of .\ray :>, poll
list of May lid, is ottered to show that J. Boskowitz
voted.

The Coninii.'sioner on the part of the L'nited States: —
Do yon intend to wad in the notes iliat Ignatz Bosko-
witz voted?

Mr. Dickinson;— By the poll list of April (i, I8.')S, Ignatz
Boskowitz voted, as well as A. Boskowitz.

Mr. Peters:— My learned friend brings evidence now to
60 show that A. lioskowitz ami one of his sons, Ignatz, vottd
in ;i certain election, and he asks you to draw from that
the conclusion that they were both AnuMican citizens, and
that Ignatz voted because his father was naturalized.
Now, i have Ignatz Boskowitz's linal paiu'is, taken out as
late as the year isds, and they will show that the assump-
tion which niy learned friend attempts to draw caiuiot he

T'f

(Discussion.)

drawn at all. These papers are issued in the State of New
York. Thi'y contain first the original affidavit, dated 12th
Octohei', 18(')8, setting forth liis responsihility and his de-
sire to become naturalized, and then there is the affidavit
of certain others, and the oath of allegiance. I tender the
papers to be filed, and I simply tender them to show that
the assumption that my learned friend attempts to draw

lofrom these poll lists Is altogether without foundation.
This, I may say, is all we have to tender with regard to
this point.

The Commissioner on the part of the United States: —
With regard to the adjournment of the Commission the
Commissioners are entirely in the hands of the Counsel as
to the place and date that the Commission shall be ad-
journed to. Have Counsel any suggestions to make?

At the suggestion ol Counsel, the Commissioners ordered
that the Conimis.sion should adjourn to meet at Halifax,

20 Nova Scotia, on tht iJoth of August next, at eleven o'clock
in the forenoon, at the Provincial Buildings.
The Commissioners then rose.

t9700QI

e of New
^ted 12th
tl his de-
affidavit
ender the
how that

I to draw
jiidation.
regard to

States: —
ission the
!ounsel as

II be ad-
lake?

rs ordered
t Hahfax,
en o'clock

Oommissioners under the Convention of February 8th,

1896, between Great Britain and the United

States of America.

Legislative Council Clmmber of the Provincial Building,
At Halifax, N. S., August 2oth, 1897

20 At 1 1 A. M. the Commiasioners took their seats.

The CoinmisHioner on tlie part of Her Majesty : — Mr. Thomas
R. E. Mclnne.s, who was appointed one of the chief clerks at tiic
session at Victoria, is not present and Mr. W. B. Wallace, of
Halifax, is appointed in his place.

We have met here for the purpose of hearing the oral argu-
ments of counsel and we should he glad to hear from counsel as
to the hours that will be convenient for them.

Mr. Peters : — Counsel have talked over the matter of the
30 length of the sittings, and we have agreed (if it will be con-
venient to your honors) that a session of four hours each day
will probably be sufficient. This, of course, is subject to the
approval of your Honors. We think that a se.ssion from 11 to
1 and from 2.30 to 4.30 would be the hours that would suit
counsel, if it would suit your Honors.

Tiie Commissioner on the part of the United S ites : — It may
be undei'stood that the hours named will be the hours for the
sitting of the Commission.

We desire to say to counsel that so far as the number of coun-

40 sel to be iieard is concerned we will leave that to counsel. We are

now prepared to hear arguments if counsel are ready to go on.

Mr. Peters ; — I desire to say that some of the counsel upon both
sides did not arrive here untilyesterday evening-some of thecoun-
sel for Great Britain and some of the counsel for the United .States.
In ])rcsentiiig the argument on behalf of Great Britain we pro-
pose to divide the work as far as possible. We thinK to prevent
any unnecessary repetition, and as there is a good deal of mat-
ter to be gone over, we think it would be more convenient that
each counsel should take up some especial part and as far as
50 possible conclude that portion of the argument. In that way
we hope to shorten the matter. But from the fact that the coun-
sel on neither side have all been together lately, we think on tliis
side that if the Commission will allow us to begin our argument
next Friday morning it would shorten it very considerably.
\\n have certain matters to arrange with regard to the actual
part that each counsel shall take up, and if we have an adjourn-
ment, although we do not wish to ask for anything out of the
way, it will give us an opportunity to so divide up the matter as
to shorten the argument very considerably.
60 Mr. Dickinson : — As to the number of counsel, of course my
friends representing Her Majesty must be their own judges as
to their presentation of the case on the part of Great Britain. We
cannot in advance make any statement as to the number of
counsel or the division of the work until we have heard from our

(DisciiHHion.)

IcuriuMl frit'iKls. Wc must priwrvi' ai) attitudfof Ik'Iiijj "at rcHt,
but ready," until we hear fi'oin tlii'iii. As to the time oi' ()p('iiiii;f
tilt' ar;iuiiu'iit, we would liavc prclVrrcd to ^o on sonicwliat
oarlirr, l)ut as our frit'iids have made this statcnu-iit and liavc
never in tlu' eovu'se of aryninent asked anytldnj; unreasonalile
]Q for tlieir aeconiniodation we have no ohjection to Hxinj; the tiuns
ns asked for by them.

The Connnissioiier on tlu- part of Her Majesty.: — i'lohahly in
the reply it woidd he a<lvisahle that there should he hut ont>
counsel heard however many we may hear in tiie openin;,'.

Mr. Dickin.son : — We had already ujjreed that tlio reply should
lie oontineil to one counsel.

The Commissioner on the part of Her Majesty: — The order
made in reijard to the appointment of chief elei-k will stand for
the present, hut it may he subject to a slij^ht amendment.

Ah U) the sittinj;s: it is understood that the C'onnuission will
sit upon Saturdays as well as other days in the week.

The Commissioner on the part of the I'niteil States: — It was
not intended that counsel shoidd inform us how many counsel
should l)e hear<l upon each side. Counsel will arrange that
aniont; themselves.

Conunissioner on the ])art of Her Majesty :— In makiufj the
announcement of the appointment of chief clerk it has occurred
to ws that perhaps we had not sutliciently considered the matter
an<l accordinijly we will make an alteration. Mr. Thomas I'.
Owens, who formerly acted as second clerk, will he made chief
clerk, and Mr. W, H. Wallace will he .secoml clerk in Mr. Owens'
place. Mr. Wallace has cordially a8.sented to this as heinjj (|uitc
proper under the circumstances.

Mr. Dickin.son : — In helialf of the Cnite<l States the counsel
desii'e to express their obligation to the officials of this (iovern-
ment for the courtesies which we have received and for the pro-
vision made for the accomuHxlation of counsel iti this building.
Aside from that, and over and above that, the counsel for the
Uniteil States highly appreciate the connnodious ipiarters pro-
An vided for the sitting of the Counnission.

Mr. Peters: — I may say on behalf of the counsel for Great
Britain that we take great plea.sure in joining in the statement
made l)y Mr. Dickin.son.

Conuni.ssioner on the part of the United States- -I will say
in behalf of Judge King and myself that we appreciate the
kindness of the Provincial (iovernment. It is, of course, no
more than we expected from what we know of the spirit of hos-
pitalit}' that prevails in this Province, and we will at the proper
time enter a suitable oriler to be communicated to the Pro-
vincial Government.

If there is nothing further we will rise until 11 o'clock on
Friday morning.

At 11.30 a. m. the Commi.ssionors rose.

Commission Under the Convention of February 8th

1896, between Great Britain and the United

States of America

1 o'clock on

LufjiHlative Council Chunibor of tlie Provincial Buildinjj,

At Halifax, N. S., Auj^ust 27th, 18!»7.

20 At 11 A. M. the ConiniisHiont'iH took tlu'ir .seats.

The ConiniisHioniu- on the part of the United States.: — The
ConunisHioners iie«ir(! to put on reconi an expreHsion of their
gratification with the facilities furnished them by the Province
of Nova Scotia for their sessions at the City of Halifax, and
direct the Secretary to coinnuniicute this expression to the
Lieutenant-Ciovernor of the i'rovince.

-Mr. Peters: — If your Honors plea.se, it now becouies my duty
to follow the printed ari;ument which has already been deliv-
30 cred on behalf of Great Britain with an oral argument In this
we propose to follow as nearly lus po.ssible the line that luus al-
ready been taken. It will also be nece,s.sary for me and for my
a-ssociate coun.sel to contrast the diH'erent jiositions taken on
behalf of Great Britain with the jjositions taken by coun.sel for
the United States, so that by comparing one with the other your
Honors may be in a position to judge whether the contention on
the one or the other side is correct. In our printed arguments
we divi<le the matter into certain heads, these I propose as far
as posuible to follow. It seems almo.st strange that we should
40 be here in the year 18!(7, in the month of August, to tinally hear
and determine a case which arase in the month of August, ex-
aetl}' eleven years ago. The fact that the case did arise so long
ago, as your Honors are aware, has had the etlect of lengthening
the in(|uiry and of making it more difficult for the claimants to
prove their claims. Evidence which might have been obtained
easily a short time after the transactions took place, has been
very much more difficult to procui'e.

This matter arose, as you are very well aware, in 1886. We
have in the introductory chapter of our argument followed the
50 transaction from the beginning up to the making of the treaty, the
making of the main treaty I should call it, setting forword the
main features of the diplomatic correspondence from the be-
ginning of the transaction up to that time, and from that
point we have followed it to the making of the present
convention. It is alleged by my learned friends on the
other side that we have nothing to do with the diplomatic
correspondence ; that we have nothing to do with anything
except the treaty of 1893, the award made under that
treaty, and the convention under which we are now sitting.
60 We join issue with them directly upon that proposition. The
manner in which the dispute has been conducted by the U. S.
Government has, we contend, a material bearing on the question
aa to the damages that should be assessed in this case, and there-
fore we thought it necessary to go into this diplomatic corres-

ffm

(Mr, IVtorH' Arj;uinfiit.)

IMiiidi'iict'. I j)ro|»<)N<' now to hIiow to your HoiiorN from the
listory of tlic cuMf, why we (Icciii it iimii-riiil that this iimtttT
Hhoiiii] ht> lool\c(i into.

Uj» to 188(1 ( 'iiiiiiiliiui Mciih'rHto ii cfrtinn oxti'iit im<l ('iinmlinii
whiiicrH iind ('iiniKliiin tishfrnirn cnjfa^jcfl in ditfcifnt iincH of
tiNhiii;; husincsM hml ;;()iic to Hrin-intj Si'ii without any intcr-
10 ruption. No (|U('.stion wns raisfij no pcrnon Haiij nay to thrni.
They wfiit tiicrt' as ficeiy hh thi-y wi'ut to any other uait of the
ocean to follow tin'ir trade. In 188(!,aH we allej;e, anil as we say
the forreHjM)nden('e pi'oveH, foi' the first time, without warning,
witliout inforniini,' the Canadian tishermen that there was to bo
any interference, without any notice, the I'nited States took tho
practical step of seizing three of our veMHeln. We hr \i; that to
the notice of the CommisHioners at the «)UtHet for this purpose:
if the United States had a claim which they intended to put
forward that they had any exclusive rij^hts in Behrin;; Sea, of
20 course they were free to put that claim forward in such a man-
ner iw they saw tit, hut wiien they, as it were, put the execution
before the judjrment, when they took the stern step of seizing
our vessels without any notice, without makinjj the claim public
HO that persons mij{ht govern themselves accordinjjly, we say that
is a matter which should be taken into consideration by tho
Commissioners, and therefore wo brinjj to the notice of tho
C'onnnission the diplomatic correspondence as found by the find-
ings of the Paris 'I'ribunial. These .seizures were made under
special particular instructions given by the proper authority of
30 the United States Government to the commanders of the dltf'er-
eiit reveinu! cutters, and thest' instructions whiMi they are looked
into will appear to have been instructions to .seize these vessels
under the local statute which stfitetl that it would bo illegal for
any person to hunt fur seal in the waters of Alaska. So that
in the instructiims at the very outset it will appear that the
United States government was not seizing vessels for the piu'-

foso of taking the vessels, but for the purpose of preventing tho
unting of fur .seals. That was their intention from tho
outstart. That was what took place in lK8(i. We claim you

40 have the right to take the fact of want of notice and warning ■
into consi<leration, when you come to the consideration of
what amount of damages we are entitled to.

Then' what follcjws :" A long diploni.itic corronpondence takes
place. We allege that there has been a gr«at deal of flolay, anil that
that delay has prejudiced our case and that should also be taken
into consideration on the ipiestion of damages. How has that de-
lay been caused:* The answer is given, that it has been caused by a
long diplomatic correspondence, by certain .steps taken between tho
two nations to settle the alleged rights of one of them in Hehring

oO Sea. This point stands out all through the transaction that tho
delay took place in the discussion of a very material point upon
which the United States was found to bo in error. The whole
delay has taken place in arguing out a proposition which the
United States claimed to be law,— a proposition of international
law, and which has been held not to be law. So that the whole
delay on this discussion luus occurred on account of the United
States pressing a claim which they !iow admit has been
proved to be incorrect from the beginning. In 188C three ves-
.sels were aeized and two alleged to have been warned. In 1887

t»0 what took place ? No sooner were tho seizures made than Greiit
Britain began, through her proper otficials, through her Am-
bassador, to make protests aganist the seizure and to make
protests against the claim put forward by the United
States. During the course oi those protests, as early as

l-ee ves-

lln 1887

Ln (Jrejit

|er Ain-

make

Uiiitetl

lily as

(Mr. PeterH' Argument.)

188tt, (Ircut Britain niakes i inquiry an to wlicthor or not
then- wi-rn to hv iiiiy ■ ■' miulo in 18H7. On tlio 7th of
DwenilxT, l8H(i, the'.' ..n A tnlnisMiidor wroto U- the Uniti'd
StiitcH .SciTi'tary of Sti. ioHon^h: —

"I \mvv t\w lionor to .1 .to that vi'hhoIh an- t»,i,v, as usual,
i'i|uij)i)in;j in British Cnhniihia for Hshinj; in that soa.

10 "The CanaiJiaii (iovcrnnicnt, thori'fori', in the absi-iu'c cf in-
formation art- (it'sirioiis of asfi-rtaining whi'tht-r H'a-lt vtssst-ls
Kshing in tiic open nvti and hi-yond tht' territorial waters of
Alaska would he exposed to seizure, ami Her .Majesty's (iovt-in-
m('nt at the same time womM be glad if some assuranee would
he given that pending the s:'ttk'ment of the (iiiestion no such
seizures of British veH.sels wil' l)e made in Behruig .Sea."

That was a re([nest made as early as the 7th of l)ecemher,
188G, for information as to what eourse was to he taken in 1887.
Coulil Canadian sealers witli safety embark their money, their

20 vessels and their property in tlie ent('rpri.so of sealing without
risk of .seizure; i What was the answer to that ( The answer
came in the shape of a telegram to the Juilge and District
Attornt^y at Sitka, stating that directions had been given by
the President that the three ves.sels then under arrest shouM be
discharged, and that the crew.s of the vessels under arrest
in connection therewitli should be reloa.sed. On the ',inl of Feb-
ruary, 1887, notice was given to the Ambassador of Oreat
Britain that orders had becjn issued by the Presidents'
direction for tin; di.scoiitimiance of all proceedings and the <li.s-

.'10 charge of the vessels referred to and the release of all persons
un<lt;r arrest. (Jn the 4th of April, 1887, the British Ambassador
again wrote to the United States Secretary of State asking the
(juestion whether the owners of such vessels might rely upon
being unmolested by the crui.sers of the Ignited .States when
not near land. His answer to that was as follows : —

"The (lue.stion of instructions to Goverinnent vessels in regard
to prevent th(! inili.soriminate killing of fur seals is now being
considered, and I will iiform you at the earliest day possible
what has been ilecided, .so that British and other vessels visiting

40 the waters in ipiestion can govern themselves accordingly."

I am putting these inepiirics and answers to your Honors for
this pur'pose. Here was a reipiest innde as early as December,
followed by another retjuest in April asking the direct tpiestion:
what can the .sealers rely upon ! Can they seal in 1887 without
danger of arrest f The first answer is the release of the vessels
seized in 1880. The .second answer is that the t}overnm(;nt has
under consideration the regulations that are going to bo made
and the in.structions that are going to be given, and that as .soon
as th<;y have been decided upon the British (toverinnent will be

50 notified, ,so that thty can govern themselves accordingly. What
happened ? What did happen was this : The United States (lov-
ernment did giveinstructionstotheirotticors,and those; instructions
are dated on the 10th and 28th of May, 1887. But no notice
whatever of the nature of these in.structions or of the fact that
they were issued, was given *:o the British Government or to any
one in tlieir behalf. Now, why do I mention this ? For the
reason that we allege that in 1886 you have the right to take
into consideration the fact that the seizures were without warn-
ing and without notice, and for the stronger rea.son that

60 in 1887 not only were they seized without notice, without
warning, but they were seized after the release of the
vessels seized in 1886, and after an assurance thp.u they should
be notified. The people who were engaged in the business were
lulled into a feeling of security. They naturally thought that

» .-mm

(Mr. Peters' Argument.)

ut all events if any Heiziires wen; conteinpliited they would
recti- •> iiotiee, that if the United States intended to make tlie
seizures before tliey actually made them, and therefore when no
communication was made, no notice given, when tlie British
Government iiad ti>e promise that notice would he given, tiiese
men went into the scaling business in 18!S7 ; and it is true that

10 they did soon a larger scale in ISS7 than in 18S(). They went
there having almo.st tlie a.s.surance from the United States
Ciovernment that in 1887 no .seizures would be niade. I say that
is the natiu'al a.ssuniption that every man engaged in that business
would draw when he started out in 1887 to enter into M\e sealing
business. So you have in 1887 that fact which we conteiid must
be taken into consideration by thisConnnission. Upon that point
my learned friend and 1 are hopelessly at is,ssue. His contention
all through is that it does not matter with what intention the.se
acts were done, that you cannot go into any matter of intention,

20 but you simply have the fact that a ves.sel has been seized, and
that there is a hard and fa.st rule by which the damages must be
a.s,sessed, that the damage is the value of property taken, and per-
haps some interest. That is putting it biddly. We join issue on
that, and we .say that when you come to consider the (|ueHtion of
damages you have the right between nations as between private
individuals to look at all the .surrounding circumstances, to look
at the intention with which the acts were done and the way in
which the acts were done ; that a seizure made with one intention
might entitle a claimant to one amoimt of damages, when a

30 seizure made with another intention might entitle him to another
amount. It is with this idea that we lay before Commission the
diplomatic correspondence which shows that in 1880 no warning
was given, and that in 1887 such things had taken place that
these men were justified in coming to the conclusion that in 1887
there would be no .seizure at all. History tells us t!'at in 1887
there were a large number of seizures. In 1888 the same
question came up. It appears that in 1888 no .seizures were
made ; but by reference to the record at page 184!), line 50, it
appears that this alwence of .seizures in 1888 was due to some

40 unotlicial assurance which was given by tlie United States
(ioveniiiient to the Government of (Jreat Britain. It matters
not to us why it was, but that appears to lie the case. In 1881)
the matter went still further, ami the United States Government
made a large number of seizures, and these .seizures were
followed up with one in 1890, which is a special case by itself,
and there the matter stands so far as these seizures were con-
cerned.

Now, we started out with the proposition that so far as
damages are concerned we have the right to look at all these

50 circumstances, we have the right to look at the manner in which
the acts were done and the intention with which they were
done, the manner in which the officers and cutters carried out the
instructions they had.

As 1 have already .stated, the long delay that has '..iken place
in the settlement of these cases wius occasioned by rea.son or the
..laiiiis of the United States tJovernment, which, so far as they
were concerned, were di.-allowed. We also point"' nit in our
argument on page 10 that the claims put forwaru '■" Jie United
States ditl'ered from time to time, and differed materially. That

(jO they difi'ered is very clear and very plain. We allege at page 10
that the first claim was that Behring Sea was a mare clausum.
Second, they claim that they had a certain right over the waters
for 100 miles from the coa«t line, and, third, that they had the
right to protect the fur seals. Well, it is denied on the other

(Mr. Peters' Argument.)

side that these clmnging chiiins were made. I am not going to
argue th.e (jueslion further tliau this, to point out that these ves-
sels were seized and proceedeil against and dealt with upon' a
charge whieli involved nothing less than the proposition that
Behring Sea was a vuire cl<tuf:um. '''he very libels which we
find set out in the aj)pendix to the Record show under what

10 particular section of the Ignited States .statute thev were being
prosecuted, and show that the Judge at Alaska decided that the
places were these vessels were seized were Alaskan waters and
the statute .stated that its intention was to prevent sealing in
Alaskan waters. So that in the outset, no matter what hap-
pened afterwards, the.se ves.sels were .seized and condemned upon
the ground that Behring Sea was a mare clmtfium. Very well,
they took that po.sition first, but they afterwards change<l it.
They took this positior. in \HHV) and continued it for .some time,
then changed to another positi(.n and finally changed to a third

20 po.sition when the matter was brought before the Paris tribunal.
VVhat does that show when you come to consider the damages
which we should have t There has been a good deal of delay,
and how has that delay occurred I That delay has occurred not
only by reason of the United States pressing one claim, but bj'
reason of the I'^nited States pressing claims which varied from
time to time. When they found that one claim could not be up-
held they put forward another, claiming that it could be upheld
upon another ground. I am not claiming or stating that it was
imprt)per foi- them to change their gromul as much as they saw

30 fit. 'i'hat is a matter, of course, with which we have nothing to
do, but it should be taken into consideration when you come to
the (piestion of delay; when they now say, as they finally said,
that there was one ground oidy upon which the seizure could be
justified, we say why did you not put this claim forward in the
first instance and .save this delay ;* Why lengthen the delay
and make it longer by putting your claim upon one ground one
day and then upon another ground tlit^ next.

All these changes of front, and all these changes of tactics,
added to the delay, and added to the difticulty which theclaim-

40 ants in the.se ca.ses had in proving theii- claims, and it made the
injury which has bi^en sustained by them doubly hard to bear.
We know that these men whose vessels were seized in 188(5 and
1887, and al.so in 188!), worked hard in their business and entered
into an occupation, which it is alleged by the United States is so
dangerous and .so hazardous, and so uncertain that it is a wonder
that any persons would exa-r venture in it. Your Honors know,
because it came out in evidence, that many of these poor people
were absolutely ruined by the loss o( the.se vessels, and the mis-
fortune to them was not altogether so much by the loss of the

^•0 vessels as by the fact o; t!ie great delay which took place after
the seizure. I refer to the delay which they experienced in
having their claims settled. I venture to .say to your Honors,
that even should we receive all the compensation, which at the
utmost we can claim, many of these men will still be at an ex-
tremely heavy loss.

That is the chapter which we put in the introduction of our
argument, and having pointed out to yoiu* honors the reason why
we consider it necessary that that diplonuitic correspondence
should be looked into carefully, let us come to the next heading

GO of the argument. I do not propose to deal with this particular

t)ha«e of the (juestion at any great length, because I will be fol-
owed on this point by one of my as.sociate counsel. But
let us consider tor a moment tlie ijuestiou of the scope of
the Convention. The object of this chapter is to lay before the

*««pltl

(Mr. Pt'tein' Aifjument.)

CoiiuiiiasioiiorH a stiitomont showiiifj our view of wliiit oliiiin.s
arc ]>roj)t'rly bct'orc tlic Cointuission Tliat is oT coiirHc a very
important (|U('stion, and ono which must be carefully I'oiisidcrcd,
and it is a question upon which there is some ditt'erencc of
opinion between my learnecl frienil, the counsel for the United
States ami myself. I.,et us come at once to the practical (piestion

10 wiiich arises before us.

The Commissioner on the part of the United States: — What
chapter of the arf;;ument, Mr. iVters, is that :"

Mr. Peters: — It is contained on pajjes iVom 14 to 18 of our
arjjument. The snmminjj up of that chapter is on jiajje IH
wliere wt; say : —

■' It is therefore submitted that the claims referri-d to arc
"(fll the ritii.ms which iiad been pre.senteii and ur<je(i b}'
" (ireat Britain prior to the date of th<' Convention : and
" further that Creat Britain is entitled to compen.sation from

20 " the United States on iier own behalf, and on behalf of
" every person who was interested in any of the vessels in
" question, their cargjoes and voyaifc, cither an owner,
" muster, mute, member of the creir, or otherwixe."

That is tiie sunnninfj up of that jtart of the contention of the
counsel for Her Majesty. Let ni" ov consider for a moment
tile practical j/ood of considerin'^ tint' in " lion of the .scope of
the Convention ; let us see whe:\ '' piii, ' -^Ily effects the cases
before u.s. We have here someti'iiijj- iik' Zii cases — -'JO .seizures
or interferences with vesst'ls. Tlv •(' '.a very little disptite be-

•10 tween my learned friend, Mr. Dickinson, and myself, as to what
cases are before the Convention. There is a disjuite with r<><;ard
to the " liliiek Diamoncl" case of IcSStj. which has been settleiJ in
a special manner, v.luch the Connni.ssioners will rememlmr.
An<l there i'l ;iiso a dispute as to whether the case of C'aptain
Gaudiii. t^laim No. II, for ])ersonal ilama<;es is properly he-
fore the (^onnnission. Outside of that, there is no dispute
that all tlu'se eases are properly before the Connnission. They
are al! befon' the Connnission with the ex<>eption of these two,
and my learnecl friend, Mr. I )iekinson, contends that these are

•to not before the Connnission .'IS he filso contends with reference to
a special matter which he raisi'd with refjard to the. " Sjiy ward
Costs t\'(se."

Hut. when we come down to consider the piU fi\ ular eases
themselves, there are several jioints upon which we 'H^'t, ami
which, as 1 understami the arj^ument upon tl:.' vvtlier si.je, my
learned friend contends cannot be received hytiie ' '. viniissiim
and with reference to which, we on oMr side 'o;: ciid ■ 'lould l)e
received and adjuilicateil upon.

Take for instance one lai'jre claim. We .■'■lini thai nndi ■ (lie

•'^O Convention yiiu have the I'ie^ht to <;i\e to the i.jiv ■'. of the
crew of each of these vessels a certain amoinit of money — tliat
sum of money is ei\tirely in the disi'retion of your honors — for
dama;,fes for personal inconvenienee jtud personal hardships suf-
fered by the mend>ers of the crew. That is our contention. On
tht> other hand, my learnetl friend, Mr. Dickin.son, says: — "That
is not within the .scope of the Convention, that claim cannot be
received." Your honors, that is one ini.tter which comes up be-
fore us under this heail. nuil it is important i it involves a con-
siderable amoiuit of money, ^'ou will Ho-i :: th" claims pr,t

*»0 forward by ( ireat Bi'itain, that in each • u- v iicre there lias
been actual seizure, we have claimed a siim oi, ' i did\, S.'jGO fcr
hardship and loss to ea''i of the crew. 1 will i. k( otiC case as
an example. At Pajje !>(i you will find in our mimmary of tlie
Oarolcna cir s, a st iteiiient as follows: — " ExpenscH and

(Mr. Peters' Arffiiiiient.)

' hurdship of crew, iiien at ?500 each, S4,500.00. A similar claiiii
is made in all the eases where there was an actual sii^zufe
and arrest of the erew. Ft is included in the eases for lS8(i,
and 1 believe in nearly all the eases for 1887, and in the ajj^re-
}jate it amounts to a very considerable some of money. It is
for your Honors to decide which side is rijjht in their contention,

IQ and to that (juestion I would ask the att(>ntion of your Honora.
When von come to consider the (]uestion of the scope of the
Convention, it will at once occur to you to ask : — [s that a matter
which is Ix'fore you and which you can consider, or is it not. I
venture to submit that these claims avo fairly before you uudei-
the .sco[)e of the (^)nvention. Any person who has heard the
evidence in this ca.se unist come to the conclusion that the mem-
bers of the crews of those vessels are as much entitled to flamajje
for their hardshi])s and for their losses as were the masters and
mates of the vessels in (piestion. The story of the hardshipB

20 *''"^ tiiese men ex|ierieneed M-hen tluy were imprisoned at Sitka
ami Ounalaska are set forth in the evidence. Not only is the
story of their hardships told when they were at these places,
but also the story of their hardships on their journey
to Sitka and the journ(>y from Sitka home. Several witnesses
have depose(i to that. T will not referat lenijth totbat evidence,
but your Honors will re)nt>mber that in some cases members of
the crews of the.se ve.ss(>ls had to travel over 1500 miles at sea
in open canoes. Your Honors will remember that afterwards
when the same Indians were wanted to go seal huntinjjj, their

30 answer was they wo>ild not <jo becaust^ they were afraid of
seizures, and they allejjed that some of them had died on the
way from Sitka and Ounalaska on the oeea.sion referied to. Yoii
will also remember that many of these men were taken in
crowded vessels from Ounalaska to Sitka — vessels which
then carried double the ninnber, or three times the
tiumber of men that they wei-e ever intended to carry.
Yoin- honors will remendier that they were taken to
Sitka and kept under airest for a eonsidei-able period of time;
that some of them were allowed t ) get home tin? best way

40 they could : that s;)me of them wer(> sent to San Franci.sco to find
their way home a-i best thev eoidd ; and that some of them were
turned out on Vaneouvei- Island, Innidreds of miles froui Vic-
toria, to find their way home in whatever way they could. If
your honors come to the conclusion that th(> claims of these men
are within the jurisdiction of the (^)mmission, there is no rea.soli
in justice and fair play why they should not be indenuiitied for
the personal hardship they underwent, just as W(>ll as !iny other
men who are atl'ecte(l by the seizuirs of these vessels.

Now your honors, I submit to you the ((Uestion, which side is

50 '■ifl''t '" t'lis contention. We on our part claim that you have
these dainis before you inidir the Convention. \V(> claim that
that Convention mi'iitioncd eertiiin claims. My learned frieutl,
Ml'. Dicknison. points out in his arunnuent in iuiswer to lis, that
W(> would not be entitli'd to L;n into thi' (|iii'stion of dama;fes, for
instance, foi- some person bfiny- prcv cntiM from wii.ilinj;' or some-
thinji of that kind. We are not el.iiininir here to <;■() beyond the
claims that are mentioni'd in the Convension exei'pt iicrhapsili
the cases of the " HIack Diamond'and t'ajitain Cauilin, which
We claim, are nientione() in the Convention, but which the othet

(JO ''i'''^ claim are not. We are not askin;f to u'o beyond the claitilh
htentioned in the t'onvention ; we do .say th.it in that Collvehtiob
thbse claims are s|1ecitieally mentioned. These elaimrt tlult I rti-
ft'rred to are tnentioned as you at(> a\Val-l', ftituitlv ivy {m ilrtnle
bt thb VesSbl Hntl by tertaiil ^etriohal bliiiJtlS. Wb tib clAliil tltai

I ii

(Mr. Peti'is' Aif^unu'iit.)

wlu'ii we (>()iiu> to tivko into consideration any parti<'ular vcshoI.
any vcssol tliat is nanuMJ, tliat wo liavc a rii;lit to i-laini (ianin<;(Ns
on bt'lialf of I'vcry juMson who lias hoi'u injurod by reason oi' tho
Hciznre of that vessel. That is our claim.

Let ns see if we support that hy reasonable arijinnent or not.
In the first place, on iia<j;e 14 of our ar;;unient, wo first stiite tlie
10 articles of ('onvontion and .say :

" Articles 1 ami -i of the Convention provide that all claim.s
•' on accotnit of injuries su.stainod by persons in who.se behalf
"(treat Hritain is entitled to clain* conipen.sation from the
"United States and arising' by virtue of the Treaty of 1S!)2,
" the award and the tindinjjs of the Tribunal of Arbitration at
" Paris, as also the additional claims mentioned in the alxjve
" introduction, siiall be referre(l to Commi.ssioners who shall
" doterniine the liabilty of the United States in respect of each
" claim and assess the amount of compensation to be paid on
20 " account thereof."

Then we add :

" The first (luestiona, therefore, are : What are the claim.s; and
"in who.se behalf is Great Britain entitled to claim coni-
" pen.sation !"

Here 1 make the .statement with which my learned fri""d,
Mr. Dickinson, Joins issue, and that statement in the argi nont
i.s as follows :

" In this coiniection it nuist be borne in mind that at the tiino
'of the Treaty of l^fi)2, protests had been made on behalf of
30 " CJreat Britain, and particulai-s of claims had been formulated
"and presented to the Ignited States (iovermnent. The framers
•' of the 'I'reaty and (\)nvention had the.se protests and claims
" Ix'fore their minds in .settling upon the terms of said Treaty
'and Convention."

We are now upon the (]uestion of the construction of the
Treaty and my learned friend, Mr. J)ickinson, on the one hand, so
far a.s I can understand, his argument, says this: Vou have the
claims that were before the Paris Tribunal; these claims contain
certain items of claim and you are not allowed to claim one
40 single item now that you diil not claim before the Paris Tribunal.
Ami he .says furtln'r : That the con.struction of the Treaty is
very clear and very plain, and thereftire you cannot look
beyond the.se three document.s. First, the convention
itself; second, the main Treaty of 1Hft2: and
third, the Awar<l and findings of fact. M\' learned
friend, Mr. Dickin.son, says further, that if you <lo
not find anything in these three docunients you cannot in any
way help yourselves to construe the Treaty l)v looking outside
of them. We differ from om- learned frii'nd in that. \N'o say
50 tl»at a Treaty is made and a Convention is made, and that that
Treaty and ihatConvention weremaile; wiiat for/ For tlu'pin"[)ose
of settling certain <lisputes. What disputes ! How are you to
find out what these disputes were f 'I'lu'se disputes are certain
disputes that have arisen by virtue of claims of the United States
in coiniection with the Behring Sea. How are you to find that
out ? I say that you are to find it out by l<M)king and .seeing
what claims were [iresented, what disputes did ari.se, and that
then 3'ou must construe the Treaty with reference to the dis-

Kutes that had arisen. I contend there is no practical difference
I'tween the construction of a statute and the con.struction
of a treaty. If you come to construe a statute, what
is the first question that you bring your mind to bear on I
A statute is piussed to remedy some evil, and the first eiK pi iry you
make is: what wan the evil which that statute wiuj postied to

1 ^1

(Mr. Peters' Arfjuincnt.)

reinody ? How (Jo you (iiscover tlmt ? Yoii may be able to
disfover it bctweeii the four corners of the statute, and you may
not ; and if you are not able to discover it from the statute
itself, vou must look outside to find the evil which that statute
was passed to correct, an<i then you nuist construe the statute in
the lifjht of the evil it was intended to remedy. 1 contend, your
10 Honors, that it is just the same in this case. We find that
certain claims were jnit forward, thatcertain protests were made,
and that certain action wa.s taken by the (lovernment of (Jreat
Hritain, and we say that when you come to consider the Treaty
which was passed for the purpose of settling these di.sputes and
of dealinjj with these disputes, and dealing with these protests
you cannot do it intelligently unless you look at what has taken
place bt'fore the Convention was made.

Now, my learned friend, Mr. Dickin.son, makes a very ex-
traordinarj' statement— perhaps I should not use the word
20 extraordinary — but he makes a statement which it appears to
me is altogether inconsistant with statements which ho here-
tofore made. At page (i of his argument, what does my learned
friend, Mr. Dickinson, say. He says this :—

" Notwith.staniling the statement impliedly to the contrary
"and expressly made at page 14, folio 10: ("Particulars of
" claim.s had been formulated and presented to the United States
"Government) and at page 15 folio 30. (" the claims actually
" submitted by Great Britain referred to in the notes verbales ")
" Great Britain in distinct departure from her own preceilcnts
HO " and from the rules of international law in .such cases ; where
"one nation .seeks indeiimit}' from another for injury to persons
" or property ; never caused the claims to bo audited or formu-
" lated in any nnmner for presentation to the United States and
" never presented them.

"On the contrary, on April 18th, 1888, as appears by the
" records. Her Majesty's Ambassador formally connnunicated to
" Mr. Bayard the following: —

' Her Majestj''s Government have just received the particu-
" lars of the claims for compensation on account of the British
40 " sealers seized and warned off by the United States authorities
" in Behring Sea."

" A just assessment of these claims appears to them difficult
" withoiit investigation and verification, and they therefore wish
" to ascertain whether the United States Government would be
" disposed to a;j;ree to a mixed commission."

My learned friend in conclusion adds further: —
" These claims were not presented in an}' form until the Paris
" Trihunial camo together in 18!):$, and in the n.eantime negoti-
" ations were pending between the governments, wherein the
,50 " position of the United States claiming jurisdiction to make
" the seizures in (juestion, and denying their liability for making
"them, was not challenged by Great Britain, etc."

In other words my learned friend states that Great Britain
departed from her usual custom and in a most careless manner
never had these claims audited, and nt^ver presented them. If
the claims were not presei.t-d, an<l if that actually took place,
as stated by my learned friend, I would call it rather negligent.
But let us see, is the statement borne out by the facts. I will
refer your honors to the record, page 56, where a discussion camo
(50 up before yours honors, as to whether or not we should put in lliis
diplomatic correspomlenco. It was suggested that I .should give
the grounds upon which I tendered that evidence, and I then made
this statement : —

" It is proper for us to show here that we took every means to

I ^ifmmm

■r\

I i

(Mr. Peters' Arfjuinent.)

" press our claims, and to press tlioin promptly, and the whole
" correspondence from bi-fiinninj^ to end hrinj^s that point out
" very clearly, and that point we have the rifjtht to show; also
"the honn jiile manner in which it was presented by the British
" Government from beginning to end. There has been nothinij
" like Idchrs in the presentation or prosecution of the claims."

lO "Mr. Dickinson — And nothinjj of the kind is asserted or con-
tended f(tr."

Therefore at pai;e 56 of thi.s record, when we were actually
trying this case, we have Mr. Dickinson's statement. My state-
ment was that we put in this correspondence to show that we
were jjuilty of no laches; and Mr. Dickinson says, " VV'e do not
" contend 3-ou were Jjuilty of any Itwlies" Notwithstanding
this statement of the learned counsel, lie alleges in liis argu-
ment that we were guilty of lurkes in a very serious particular.
I do not allege that we have before Your Honors, any di.stinct

20 and plain evidence that on a certain day these claims were taken
by the Ambassador for Great Britain and hand(>d to the Secre-
tary of the Treasury of the United States. 1 tio not allege
that. But I do take the argument which m , learned friend,
Mr". Dickin.son himself uses. In connection with these notes
vet bale, my learned friend say.s himself: You mu.-tt remember
that many things took place between the Ambassador of Great
Britain and the Secretary of State of the United States, which
are- not put in the form of ^tters; ami you must remember that
many verbal comniunicatii s took place between them. I .say,

30 that when you have before you the fact that on the l.Sth April,
1888, Mr. Bayard was informed that the British Government
had these claims presented to them, and when you find a special
request that a tribunal .should be established to settle these claims,
and when j-ou find here that the counsel for United States .says
that there was no laches, what conclusion can the Commissioner.s
naturally come to ? They mu.st come to tlu^ conclusion that a.s
a matter of fact, these claims were delivered — it maj' lie
unofficially — but delivered by the Amba.ssad!)r of Great
Britain to the Secretary of the Treasury of the United States,

40 and that the latter gentleman knew all about them. Is it to be
suggested for a moment that they entered into the making (jf a
Treaty which contemplated the settlement of these claims,
without the officials in some waj- finding out vrhat the claims
were? I submit to the Commissioners, that the only conclusion
they can draw from all the facts is, that these claims were all
delivered.

If these claims were not delivered, at all events the protests
were delivered. That part of it is (|uitc' plain for it appears in
the correspondence itself. Your Honors may remember that the

50 question as to these particular claims for hardship to the crews
came before you at Victoria. They were first brought before
you, it appears, after the case hail gone on for some time. TIte
Counsel for Great Britain, being under the impression, and having
shaped thoii evidence under the impression that there was no
question at all but that these claims were before the Conmii.ssion.
It appeared for sometime that Counsel for the United States
were under the impression that we were not pre-..sing these
claims, and from t\w expressions used by the Commissioners,
3'our Honors were evidentlj- under the impression thatthese claims

QQ were not being pressed at that time ; and as .soon as that state of
affairs developed, your Honors will remember that I brought it
tlearly and plainly before the Commissioners that we were
hiaking these claims, that we always did make these claims, and
that it was onr intention then to press them.

(Mr Peters' Argument.)

le whole
point out
u)w; also
10 Briti'sh
1 notliin.i;
ilaiins."
Gil or con-

e actually

My state-
V that we
We do not
ihstanding

his argu-
particulaf.
ly (lihtinct
ivere taken

the Secre-
not allege
led friend,
these notes
; remember
or of Great
ates. which
leiitber that
em. I say,

18th April,
government
nd a special
,hese claims,

States says
mmissioners

sion that a.-*

it may !>«

of Great

lited States,

Is it to he

iiaUing of a

lese cliiiuis,
the claims

y cuneluiiion

mis were all

the protests
appears in
iher that the
,() the crews
)Ught before
time. The
uml having
lere was no
Commission,
lilted States
ing these
mmissioners,
ttheso claims
that state of
I brought it
we were
e claims, and

Ijotv (Iocs the matter .stand then as a question of law ? Are
we I'lititli'il to have th'sc claims put in or not? In the tir.st
• pliiec we iiointcd out that certain |)rotests were made. At page
14 if tlic argument we pointed out: —

■ fii hi-* ilcKpateli to the United States Secretary of State

■ 'iatiil 21st October, lSS(i, the liritisli Ambassador says:'l have

10 ■• tin; honour to inform you that I am now instructed liy the

' Ivirl of Iddcsligli. Her Majesty's I'rinciiml Secretary of State

' lor foreign Att'airs, to protest in the name of Her Majesty's

• ( Jiivcnimeiit against such seizure, and to reserve all ri;/hta to
' ciiiiipeiisation.' "

Tliat was the first protest. The .second protest whicii is .set
out at line 40 of the same page was put in; it related to .seizures
nt' I,s,s7. and b\' it a claim was made similar to that made in the
CISC of the "(hiward," the " Carolena " and the "Thornton,",
ani it leservi'd all rights to C(juipensation on behalf of the
20 o'.viicr-i and crews. Then furtiier we note the fact that the un-
■ I'lsigiied (that is the British Ambassador) is in consequence
in^t meted : —

•■ The imd.rsigned is in consequence instructed formally to

lifotest against such interference a" d declare that Her Britannic

' Majesty's tioverniiientmust hold theGorerninentof the United

• Srates responsible for the consequences that may ensue from,
" iiitu which are contrary to the established principles of inter-
" I'litioiKil taw"

Tliat is " all the consequences." We then proceed to point

:iO out that the claims theiiiselvea (the actual claims that were filed,
and for this purpose it is immaterial when they were filed,
Khitiier belore the Treaty of l«i):l or after the Treaty of 1893)
C'lintain a demand for compensation to the crew. We pointed
mit. several cases of that kind and mention them here.

Now what is the argument u.sed on the other side. It is
Miii|ily this : — "That you cannot claim for these damages at all
1 . laii^i- tln-y are not specifically mentioned in the findings of
r.ici .'^nd not mentioned in pages 1 to (iO of the British case before
tlio I'aris Tribunal. That is their argument. We say this:

40 liint in the Convention under which we are sitting there is no
niiiiiion of anything but the names of the vessels, and that we
all' entitled to recover all damages which accrued by reason of
the si'izure of any one of these vessels no matter under what
lii'ail. or which occurred to nil}' of the crew. There is the dis-
tinction and dirt'erence between counsel for the United States
and myself. That point will he more fully referred to by my
lijinied friend who is to follow mo, and I do not propose to argue
it at length at the present time. I propose merely to indicat'"
that that point arises between the Counsel for the Uniteu

"lO Stites and the Counsel for (ircat Britain. It is perhaps the
iiHi-t important question arising under this head. As I stated
lici'ore, it is not disputed that all these claims are before the
Coimnissioners — at least with regard to the most of them. It is
only disputed that with regard to this item and one or two other
it 'lis, they do not Come within the jurisdiction of the Com-
mission at all.

Now having dealt with this matter, I propose to come down to
■iiinther question which, to my mind, is one of the most im-
portant so fur as the amount of damages is concerned.

(iO The t/'ommissioner on the part of the United States: — Is that
part of the British case anywhere in the record here ?
.Mr. Peters : — It is in the American reprint.
Th(! Commissioner on the part of the United States : — I mean
in our record ?

fir

(Mr. Pi'terw' Arijuinciit.)

Mr. Peters : — It in not in tlu' record.

Mr. Dickinson. — It is in evidence j'oiir Honor, and we pro-
duce for the argument tlie wri;,'inul Biitish .scliedule as presented
at Paris.

Mr. Peter.s : — Pa;;es 1 to (JO of the British case really consist
of the affidavits.

10 The Commissioner on tliopartof tlie United States: — I merely
wished to know whether they were in the record hoforo us.

Mr. PeterM: — They arenot actually printed in the hound Record.
There was an ar>.;uineht hijl'ore the Coinuiissioners as to wlu-ther
we should put them in evidence or not, ami the Commissioners
ruled, I think, that as a matter of fact they were not evidence,
but that we could refer to them whenever required.

Your Honors, I do not wish to dwell on this point more than
simply to .say, in what respect, in our opinion, the que.stion of
the .scope of the Convention becomes material under that one

20 heading and on .some other points also.

Th^ question I now proceed to deal with is the question of the
proper measure of damage. I begin by calling your Honor's
attention to one particular case, namely, to the case of the
"Carolena" and I Hnd that in that case in our claim the follow-
ing item is contained : —

" Balance of estimated catch from the first to the thirty-first
August, four canoes and one stern boat. 904 skins at S7.00 each."
There is also a further claim for the year 18iS7 in this con-
nection I shall deal with that matter again on the question of

3Q amount in that particular case. We know that in all these cases
there are some points in which there is no difference of opinion
between my learned friend, Mr. Dickinson, and myself. For
instance, when we come to the question of the value of the ship,
although we differ as to the amount, yet wherever a ship was
seized and taken, there is no difference between us, but that the
value of the ship — whatever j'our Honors conclude to be the value
of the ship — should be paid. There is no ilifi'erence of
opinion but that the boats and the guns and sueh otln'r
things as were .seizeil and taken should be paid for. Tiiere

40 is no difference of opinion that any article wliieh was aettially
seizttd should be componsatrd for. My learned friend. Mr.
Dickinson, sa3's, and I say, that we are entitled to receive the
full value of those things.. Wo all agree on that. But when we
come to the question of what is called the prospective catch, we
difier widely. My learned friend, Mr. Dickinson, lays down a
certain proposition, which he says governs these cases, and if
this proposition of his bo right, then we are not entitled to coin-
per. .ation for the prospective catch If the propositions which
he lays down are wrong, then we are entitled to ci)inpunsation

50 for the prospective catch.

I propose to deal with this question with a considerable amount
of detail, because of the large amount involved and the position
taken by the other side. I will first come to the argument used
by my learned friend, at page 9.'}, where ho lays down the gen-
eral proposition which he saj-s ou^ht to govern j'our Honors in
coming to the conclusion as to what amount of compensation
you should award. Hu lays down this proposition : —

"The theory of all law on the subject of the loss of personal
property, is, that the party deprived of it or abandoning it to

go the converter, may immediately supply its place in the market
with its money value if he .sees fit ; and therefore his measure
of recovery is limited to the value of the property lost "

The following propo.sitions are maintained under this head : —
The claim for prospective catch is settled adversely to Great

(Mr. Peters' Aij;uinent.)

Britain by the Geneva case. TIuh is the first proposition, and
tiien he laj's down tiie proposition that " tlie chiiiii for prospec-
tive catch, prospective profits, and the liiie, in cases of marine
torts or captures on the high seas, however tortious, has never
been allowed by any tribunal or court administering inter-
national law, or by any authoritative judicial judgment of either

10 country, whether administering international or the municipal
common law." So that his proposition on the question of pros-
pective catch divides itself into two heads. First, he says that
the decisions of international courts have been, that prospective
catch can never be allowed. Secondly, he .says that on appeal to
the tribunals, (prize courts, for instance, and Admiralty courts)
in collision cases and cases of that kind, that there it never has
been allowed ; and he argues from that, that in this particular
case it cannot be allowed. With this general proposition of the
law I entirely di.sagree. Now, what is our propositions? We

20 lay the proposition down in the first place at page 30 as fol-
lows : —

" It having now being determined beyond question that there
was no foundation in international law for the assertion of any
of the claims put forward by the United States, the ordinary
practice among nations requires that the damages should be
assessed upon a scale so liberal as to leave no room for doubt
that any form or class of injury sustained has been left without
a full and just reparation."

That is our first proposition, and then coming to deal par-

30 ticularly with the prospective catch, page 25, our proposition is:
" Great Britain is entitled to recover for loss of catch as being
the direct consequence not only of the acts complained of, but
as being the very object of such acts.'

In that statement we contend is the whole matter. On that
point turns the question whether or not we are entitled to this.
Take now the question of collision, and take the cases in prize
courts where vessels have been improperlj' and illegally seized
bj' privateers, and cases of that kind, where restitution is ordered.
Take these cases and he say.s, " your damages are confined to the

40 value of the vessel and interest," or something of that descrip-
tion. What is the clear distinction between the two cases. In
the case which we have before us the United States sent their
cruisers, not to take our ships because they had a claim to the
ship, but for the purpose of preventing the carrying on of legal
ami legitimate business. Their intension was to prevent us from
carrj'ing on that business. They wer successful in accomplish-
ing their intention, and are therefore liable for damages for
loss of catch, when the damage that has actually happened was
the actual thing which the per.son who did the wrong intended

50 should happen. There can be no question of remoteness.
Nothing actually intended can be remote, and as to uncertainty,
and if the damage is uncertain, it does not lie in the mouth of
the person who has committed the injury, with the intention
thatthat very damage should happen, toafterwards turnaroundand
say ' I will not pay damages because it xnay be uncertain what
amount of damages are actuolly sustained.' Here is a distinction
which exists between the cases relied on by the United States
when you come to the question. "Take the ordinary
Adtnirality case of a collision of two vesssels at sea.

(50 The point of distinction between that case and thi.s is
that, in the case of a collision, nine times out of ten it happens
by accident, by negligence, by carelessness. For instance, if one
ship runs into another, and the ship that has been run into hap-
pens to be out on a fishing voyage, or something of that kind,

I -"mm*

i':!;

i ''i .

Iti

(Mr. Pftfi's' Aif^iiiiient.)

tlip ship which ran into lior iievt-r iiitciuled to break-up tlie
voj-iiijc. Tii(! coIUhIoii itself \v:is ucciiifiitnl ami tluTcfore no
intention could exist; theret'ore the courts iiiy down tlie ratlier
hard and fast rule in some Admiralty cases tliat the damaife to
be allowc'ii is confined to actual value. Then, a^oiin, take the
case of I'rizt! Courts wlieru a .ship 's inipi'operly seizecl and
10 ordered to be j^iven back ai{ain or daniaj^es paid. Tlie rule laid
down is, so lonjx a.s it is the policy of the (Jovernment to allow
these jirivateers to seize vessel.s, that it would be improper and a
bad policy to keep them too strictly, and, unless tlioy have
acted in malice, they are to a certain extent to bi; protecte(l. I
pi'opose, in order to make clear the position 1 am takiufr in n..
Hard to this, to examine the cases that my learned friend relies
on, that is, both international cases and cases in Admiralty
Courts and Prize Courts; and I tidnk the examination of these
cases will make the point that I take come out very clearh'. I
20 first refer you to the case of the '' Lively," reported in (ialli.son'H
Reports, cited in my learned friend's argument, page 101. It i.s
u lengthy case, but there is only one part referring to this point
and I will give you that. The statement is laiii down as fol-
lows : "Where, after an illegal capture, the vcsstd and cargo
have been wholly lost, the prime cost and interest is the mea.sure
of] damages. Freight not a proper item." On page 324 the
learned judge deals with that point and says: "But the most
important item, that of lo.ss of profits deserves a more exact
consideration." I should have been glad to have seen an
30 authority approving of such an allowance under circumstances
like the present. How have these profits been lost ? The
voyage was not broken up, nor incapable of being pursued. On
page 32o he says :

"After all it would be calculation upon conjecture, and not
upon facts. Such a rule, therefore, has been rejected by the
courts of law in ordinary cases;" Not that I am not disputing the
proposition that, in ordinary cases, that rule is correct. "An
uniform ijiterest has been applied, as the measure of damages
for the detention of property.',
40 Then he goes on further to show the reason of the rule in
prize cases saying on page 32() as follows : —

" It would also operate as a discouragement upon the public
service. So long as public ships or private ships are armed with
warlike commissions of the government, it is the iluty of courts
of justice to grant due indulgence to the nature of the service
and not to punish every irregularity with penalties amounting
to a prohibition of captures."

He says " public ships, as well as private .ships, n)ust be gov-
erned by the same principles, and if an erroneous capture were
to bo followetl by a compensation of all the po.ssible profits of
the voyagi% no person in the service could be safe."

There is in this case, as in all the eases cited by mj- learned
friend, an ab-olute want of the element, as I say, which settles
his liability — the element of an intention to cause the damage
that was caused. He cites again the ease of the "Amiable
Nancy,' which is reported in 3 Wheaton. This case my learned
friend relies on very considerably. This also was a prize case.
The head note is :
(jQ " The prima cost or value of the property lost, and, in case of
injury, the diminution in value by rea.son of the injury, with in-
terest thereon, affords the true measure for estimating damages
in such a case."

This case ia gone into very fully ; all the items are set out,

rule in

pul>lic

set out,

(Mr. Peters' Argument.)

anil the same reason is given. Justice Story, on page 201, gives
the rea.son. He says :

" While the Ooverninent of the country .shall choosn toauthor-
" izc enployment of privateers in its puhlic wars, with the
" knowledge that such enployment cannot he Hxempt
" from occasiomi irregularities and improper conduct,

10 " it cannot be the duty of courts of justice to defeat the policy
" of the Government, by burdening the service with a responsi-
" bility beyond what justice require.", with a responsibility for
" unliijuidated damages, resting in mere discretion, and intended
" to punish offenders."

The rule applied to prize cases is the rule of public policy,
which has nothing to do with cases of this description. A man
has a privateer and resides in Halifax or New York, as the case
may be : he sends his privateer out ; he has to employ this man
and that man, and whilst you will, if an improper seizure is

20 made, restore the property, you will not hold the owner of the
privateer, who really has but small control over these men, for
such liability as, if put into practical force, would make the
burden so great that no man would ever enter into the business
of a privateer at ail ; and he says that so long as the policy of
having privateers exists, .so long you must be careful and not
put too great a burden upon them.

The next case that he refers to is the case of Le Amistad
de Rues, cited at page 101, of my learned friend's argument.
This is also a prize case. At page 074 Judge Btcry gives the

30 following judgment: —

" The last (luestion will be first considered. And as to the
" item of damages for loss of market, we are all of opinion that
" it is clearly inadmissable. In cases of mariii" torts, this court
" has deliberately settled that the probable profits of a voyage
" are not a fit mode for the ascertainment uf damages," and he
cites the " Amiable Nancy."

It is considered that the rule is too uncertain in its own
nature, and too limited in its applicability, to entitle it to
judicial sanction. The same principle must govern in the present

40 case. Then he proceeds : " But a more general objection is to
" the allowance of any damages in cases of this sort, as between
" the belligerents. The doctrine heretofore asserted in this court
" is, that whenever a capture is made by any belligerent, in
" violation of our neutrality, if the prize come ■ oluntarily within
" our jurisdiction, it shall be restored to the o >ginal owners"

He then goes on to hold that in that cufe they have no
jurisdiction to give any damages except the restoration of the
property, or the actual value of the property, so that that case,
when considered, is no authority in my learned friend's favor.

50 But, outside of that, it is impossible to hold them in cases of this
sort too strictly to the amount of damages. Now, in regarl to
Admiralty cases, cases of colli"^!'.!-. the same principle will be
found if you refer to the en > (♦ collision mentioned by my
learned friend. He cites as the leading authority upon the point
the case of the " Columbus," 3 W. Robinson (by mistake cited 2),
a judgment by Lushington. He cites that at page 101. This is
cited as a leading authority, and, of course, my learned friend
has taken the precaution, in citing these Admiralty cases, to cite
the judgment of very strong men, such as Lushington and Mr.

GO Justice Story, and he says that their decisions have a binding
effect everywhere.

Mr. Dickinson : — I only intended to give you the leading
cases, of cour.>e.

Mr. Peters : — I say the same distinction runs through them

■i ^ ji

l,s

(M?', I'cti'i"*' Ar^utiii'iit.)

all ; Hiiil, if you woiiM look tlirnin;li ono Iminlrt'il of tlusiii, you
woiiiil notcarry yourself (I siii;;liisti'p furtlicr. TIki " Coliinilius"
is a collision casa and lias no luiaiini^ on tliis case, wlicic tiiM
seiziirHs maile wero of vcss^'ls cariyin;,' on a Icj^itiinati' hiisiiicss,
vvilli lliu intfiition of preventing' them from pursuing,' that
busiiiens. This remark applies to all the eases cited, and there is

10 a remark made hy thu ji'dj^o in the " Colunihus " case, to which
1 draw your attention, at page 14 of my reply ; the Judi»i', in
his decision, asks if a vessel liail heen hound on a voyage to the
East Inilies " with a valinilile carjjo on hoard, for the transporta-
tion of which not oidy would the owners I ntitled to a lar^'o

amount of prolit, liut iIk^ master must In entitled to consideralile
continj;ent jirotits, from allowance niadi' to him upon such a
voyBj,'e, could thi.s court take upon itself to deciile upon the
amount of this ? " This is the (luesiion that the ,iudt>e puts, and
he answers this ([uestion in the nej,'ative. Hut if one other fact

20 had lieon ad<led to the case, namely, that the collision was caused
purposely, with the olject of preventing' the nuister I'lom makinir
these profits, would he have yiven the sameanswei- ? Hut if you
put this -nse : Suppose two vessels at sen, hoth i^oinj; on a
fishing tiip, the one likely to interfere with the other; suppose
that one runs into thi! other (m the purpose of ])rev(>ntini,' the
othei from j,'oiiii,' on that H-hing voyaije, and so henetittiti^ her
own chance, can it he ai;j;ued, if that intention existed, aii(| if tl i.'
eH'ect of the net was to cause the very thiui,' that was intende I,
tluit tlu^ dania<,'es would he simply confined to the value of the

30 schooner, which mii,dit he a smiill amount compari.'d to t'lO
possihle i)rotits of the voyage :" I say all the cases relie<l on liy
my leariitMl friend ditl'er from this cise in this material respei t.
that, in cases (jf collision aiul priz -ases, no intentinn exists of
preveiitinj,' a certain liusiricss; ' \y, in this c.'is • the direct

intention was not to tidvC the sh to stop them fmni sealing.

What was their conduct, your hoi. .s, in the year !NM>r You
remember that in the years 188(1 and liSS7 the vessels that were
seized were actually taken to Sitka ami forfeited ; hut in 1SH9
the commanders of the revenue cutters saw that they would

40 carry out their ohject just as well without going to the trouble
and hoiher of taking thiise vessels to Sitka, an<l they simply
went on hoard, took oti' the skins, took away their arms, their
spears and guns, and let the vess(d go, telling them to go to
Sitka, which, of course, they did not do. They accomplished
their intetition just as well in 1!SS!) as they did in I8S(J and 1NH7.
Their object was iK)t the taking of the vesi-el, but the prevention
of the sealing, and Just as in the case 1 have put of the two
lishing vessels going out on a fishing voyage, and the one i uuning
iito the other to stop her fiom fishing, so in thi-; case you have

oO accomplished what ynu have intended, and should be satisfied.
New, what is the next thing my learned friend says? He says
there is another class of cases which siiow that these damages
cannot be given, and refers to the well known ease of the Geneva
Arl itration, and lays down his proposition very clearly in these
woids : —

The claim for prospective catch is settled adversely to Great
Britain by what has been seen is conventii)nal or positive inter-
national law, fixed and binding on both nations, viz., a decision
of the precise (piestion on analogous facts by the adjudication of

GO the Tribunal of Arhiltation at Geneva."

That is his proi)osition, and he cites from the proceedings in
that case at considerable length. Now, we join issue with him
in regaid to the applicability of that authority. We say tin.'
same distinction exists with reference to that case as in Prize

(Mr. Petor»' Ar^jumont.)

cases; and, in order tliat yoii mfty sod liow clnarly it is drawn, I
wisli to refer vour Honors to a partieular citation in tlio ar^'u-
incnt of (lie United Stales co\insei at (hmeva, Atpafji^22l of
what is called tlie " Ar;,Mnnent at (Jeneva," the citatioti I am
to make sliows tiiat tlie United States coiinso! at tiiat time liad
in tlu'ir minils the very distinction which I am attomptin;,' to
10 daaw luTu. The connsel was argiiinj,' the (]iiostion as to what
(hinia^cs were to he aih)Wed in their written arj^ument and
amuiiu'st other thinjj;s counsel said : —

" We come now to the class of claims, some private, some
general, which in r(!cent discnssions between tlio two Govern-
ments are olijected to hy (Jreat Britain as beinjj indirect. 'I'hese
are: — (I) " Eniianced rates of insurance in tiie Unite<l States,

occasioned by confederate cruisers."

• ••«««

(2) " Transfer of the maritime commerce of the United States

20 to Oriat I'.ritain."

This was a national loss. " i^rowinj^ out of the acts" of the
cruisers, and liavin<^ them for its distinct and sole cause.

It was a loss to the Unite<l States, constitutinjf (rain to Oreat
Britain. We do not say that there was culpable nei^lect of the
ubliL'ation.s of neutrality in order that she might thus gain
theiel.y. There is the very ditference that e.xists between that
case and this case. United States counsel say that in the
" Ahtliiiuia" case they ilo not claim that (Jreat Britian was guilty
of lU'glect with regard to nt.'Utrality in order that (ireat Britain

30 might nuvke a gain. In this partinidar case wi^ sa}' that you
seized our vessel- for the purpose of preventing British people
carrying on the .ishing business, so that you might carry it on
solely yourselves. Tlie very thing that was not in that case, is
in this case ; an<] therefore the argument that is used by my
learned friend, to which [ call your attention does not assist him.
He says thi.s at page i)!) : —

" But it IS stated in the opposing argument (p. 2')) that a
" radical tlistinction exists between the Alaliama case and the
" present. In the case of the Al.abauia it was not contended that

40 " it was the design jf the (Government to cause the loss which
" ensued, nor was such loss the; direct result of the negligenco with
" which they are charged."

This he says is answered in tlie Briti.sh argument : —
" The charge of tin; United States before the Geneva TrilMinal
was coiisidei-ed by Her Maje.stj''.s Government as ' a charge of
injurious negligence.'" Then, my learned friend goes on to
argue that because there were the same stiong wor<ls used in the
award and because it is called " injurious negligence " and
" culpable negligence " a"d that sort of thing that therefore it

50 became the .same as this ca.se. But all through the Alabama
case lan this point. The ground upon which Great Britain was
eondenuied. and the only ground was that she ommitted to do
something that she ought to have done. This is entirely ditl'erent
case. Let ine refer you on that point to the award itself and
you will see that that case comes out very clearly. I'ermit me
to point out to you the award which I find in Forei^ n Relation.s
Geneva Arbitration, Vol. I. It recites certain faf.ts, beginning
on pages 4!) and oO. Now, what are the facts that it recites ?
" And wherea.s with respect to the vessel callcJ die ' Alaliama,"

60 " it cleiirly results from all the facts relative to the con.struction
" of the ship at present designated by the number ' 290 ' in the
" port of Liverpool, and its equipment and armament in the vicin-
" ity of Terceira, from the agencie.s of the vessels called the
" ' Agrippina ' and the ' Bahama,' despatched from Great Britain

r h*mm

(Mr. Peters' Argument.)

" to that ejiu, thr.i the British Government failed to use due
" diligence in the performance of its neutrality oliligations, and
" especially that it omitted, nothwithstanding all warnings and
'• official representations made by the diplomatic aj,'ents of the
" United States during the construction of the said number ' 290,'
" to take in due time any effective measures."

10 And when they came to the operative part of the award in
the Alabama case, four of tliS arbitrators say that they are of the
opinion that Great Britain has failed by omission to fulfil the
duties prescribed in article third ; and further on, when the}'
come to give the judgment in tiie " Florida" case, they say that
Great Britain has failed by omission to fulfil the duty, and so
on. With regard to the other cases, the judgment was that
Great Britain did not fail by any act or omission to fultil and so on.
So that we start with this proposition that in the Geneva
Awanl Great Britain was compelled to pay compensation, not

20 because she did iinything, not because her officers did anything,
not because she had any intention of injuring the United States,
or any subject of the United States, or any property of the United
States, but because she had omitted to do something which, under
the Treaty, she was bound to do. There is all the difference in
the world, in a case where the act was not done intentionally, or
with wrong motive, but where, under rules of International law,
it was held that a nation was IjounJ to a certain amount of dili-
gence in seeing that neutrality was observed, and if it failed in
this diligence it was made liable. And a case like this where the

30 injury was wilful and done with the express intention of causing
the loss of profits, what does the finding to which they refer
amount to? It amounts simply to this — -that in the case where
Great Britain was charged with an act of omission, there could
be no recovery of damages foi prospective profits. That is all
the decision amounts to in relation to that point. That decision,
no doubt, is one that ought to be receivetl by every international
tribunal with great weight, — but it can only be authority in so
far as applying to cases where thecircumstsnces are similar, and
if there was wanting in that case what e.xists in this case — an

40 intention to do the actual wrong, then the " Alabama " case is no
authority on behalf of the contention of my learned friend. It
\h an authority wanting, just as the other authorities were want-
ing, in the one particular of intention.

The Comntissioner on the part of the United States : — I do
not find the page in the reply, in which you refer to this matter,
and cite the Geneva case.

Mr. Peters : — Part of the citation whicli I made to-day was
not in my reply. Tlitr portion cited from page 221 of the argu-
ment of the United States counsel at Geneva, was not in my

50 reply. Now, I also refer you on this same point, to th(! o))inio.i
given by (,'liief Justice Gockbuin on that occasion — to show that
the decision which they airived at upon the question of prospec-
tive catch, is not applicable to this case. He deals with the point
at page o.'}? of the volinne, kriov :i as the "Geneva Aibitration —
Foreign Kel.itions." In onh-r to get at what was the decision of
the arbitiators in that case, it is ne'!essary to look at the opinions
of the' difleient arbitrators upon the matter. Here is an opiniiui
of the arbitrator that most strongly contend against any liability
for a prospective catch : —

'iO Mr. Dickinson : — In the Geneva Arbitration there was no

discussion about prospective catch, except as to whalers.

Mr. Peteis : — That is correct. Chief Justice Cockburn con-
tended that a prospective catch could not be allowed for — and
he gave reasons for his contention.

(Mr. Peters' Argument.)

The Commissioner on the part of the United State.s : —
But the award does not ii.se the words " prospective catch " — it
uses tlie words "prospective earnings," does it not ?

Mr. Pwter; : — Yes. Let me refer to tlie reasoning of Chief
Justice Cockhuia, in the Geneva case, as to why a prospective
CP.tch could not be alijwed for. Every point that was

10 fiecideil has to be taken into consitleration, in reference to
ihe facts before tlieiii. Tiiey had no right or power to lay
down some general proposition applicable to some circum-
stances different from the circumstance.s before them, such
a coun-e would be outsi(ie their jurisdiction. The arbitra-
tors in that case had no more right to give a judgment
on some, matter inapplicable to the facts l)efore them, than
have t)ie honorable commissioners in this case. (Jhief Justice
Cockburn is the only man who gives the reason why prospective
earnings were not allowed in the Geneva Aibitration case. This

20 is what he states at page 537 :

' Now, there can be no doubt that the only damages which the
" tribunal i;; authorized to award, under the Treaty, for the
'■ indoninitication of American citizens, must be to find the loss
" actually sustained by destruction of ships, cargoes, or personal
"effects. Where damages to property arises, not directly from a
"wilful injury — but indirectly only frotn want of due care, an
" indemnity against actual loss is all that by the law of England
" and America, or by any principal of general jurisprudence,
" can possibly be awarded."

30 Mark these words : — " Where damages to property arises not
directly fiom wilful injury." Chief Justice Cockburn makes
that distinction himself, but in the present case, the damages
was direct and wilful. Now, compare the language of Chief
Justice Cockburn, with the language of the United States
Counsel, which I have already (|U()ted. Both the arbitrators for
the United States and Great Britain seem to agree that there
was a difference between a case where damage was caused from
a wilful and direct act, and a case where the damage was
indirect and unintentional. The distinction to my mind seems

40 clear.

There is another consideration in connection with the Geneva
Award to which I shall call attention : It is alleged that, in the
Geneva Award case, it was decided that damage for prospective
earnings, or catch, should not be allowed, but as a fact the
arbitrators did not allow for .such damage. I made that state-
ment, and my learned friend denies it with some little warmth ;
and he says at page !)4 of his argument ;

" A somewhat remarkable statement is found in the Briiisli
"argument (p. 2.5, fol. 20), as follows : A reference to the pro-

50 " cet'ilings before the Geneva Arbitration will suow that as a
" matter of fact aii,'. ugh this general proposition was laid down
" in the Award, a '•uin in lieu, of pvoxpedive prufiti^ ivds allourd
"to the govern ,>>L By leference to protocol No. 20, it will
"appear that t:.b .iward was finally made upon the basis of
" allowing a sum eijual to 25 per cent of the value of the vessel
"and outfit in lieu of prospective catch, this sum amounting in
" that case to S!)8,S,000."

My learned friend proceeds to say that " this is a .-itriking
error." I propose to answer that .statement by referring to the

€0 protocols at hngth. My lenrncd friemi ;;nly referred to them
shortly, and retVrence to these protocols will show that my
statement is correct, and that as a matter of fact, in the CJeneva
Award, an amount waj given in lieu of prospective earnings. At
pages « and 9, appemii.K to my reply, 1 have set out these

I r

t I

(Mr. Peter8' Argument.)

protocols in full, and I have set out in the three protocols, " 29,
30 and 31." My learned friend at papje !)5 of his argument says :

" After a very full and mo.st exhau.^tivo discussion of the
"question of a prospective catch, and after both sides had raised
"the entire argument on August l!)th, 1872, given but ten days
" before the first forma! ruling against prospective profits—- the

10 " arbitrators requested the Counsel for the United States to pre-
" sent a table of the claims of the United States, and then in
" these tables as stated in accordance with the suggestions of
"some of the arbitrators, (the Counsel say). \vc have eliminated
"from the tables the claims submitted in favor of the whaling
" vessels for a prospective catch — the amount of which would
" bo four million nine thousand three hundre<l and two dollars
" an<l fifty cents ; and it appears that these claims were so
" eliiidnated for the purposes of the tables, and for the use of the
" arbi'rators, although not wholly withdrawn." « • * *

20 Now, under protocol XXIX, by which the British argument

here stated, as above q\ioted, it will appear that the award was
finally maile upon the basis of allowing a sum equal to twenlj'-
five per cent, etc., in lieu of a prospi'ctive catch. It appears n,s
a matter of fact, and as .'^tated in the protocol itself, that, the
only titvires presented were not an awar<l, but a finding, and that
Mr. Stnempfli, as one of the arbitratois, presented to the
tribunal copies of tlie synoptical tables which he hail prepared
as a pi'oposition for the <letermination of a sum in gross. Now,
let us look at this protocol. It shows that the tribunal first

30 considered the (|U(!stion, aii'l Mr. Staempfli presented to the
tiibunal copi(>s of tin; synoptical taLle. That table contains
three headings: First, an American table; Second, a British
allowanci-. and then a mean, between the two which he proposes
to give. The claim for prospective catch was struck out of ttie
last, but in the mean which was by Staempfli and (yncklmrn, the
sum of S'iMS.OO!) was allowed as wages in lieu of proqiective
piofits— that is — it was called "prospective profits." This 2o
per eerit is expressly stated to have been given in lieu of the
daieages claimed for prospective profits.

40 Sir Alexander Coekburn presents certain objections to this
claim, 'i'be objection of Coekburn is as follows: —

"The new claim of one million four liutulred and fifty thou-
"sanil dollars — advanced for the first time — on l!)th August last.
" As to the claim — Mr. Staempfli declared that he would exclude
"it from consideiation. It is important toobserve that this new
"claim comprises over and above the entire unsupported claims
'• for shares of vessels and for ailditional personal effects, a claim
"for wages extending ovei long and varying periods. The
" tribimal has decided that one year's wages, in respect to the

50 " whalers, should be allowed, in lieu of prospective catch. For
'this one vear's wages Mi-. Staempfli has made a separate allow-
"ance of S.'jSS.OOO.''

This (piotation is cited as authority by my learned friend that
the CJeneva Award deej.led that a prospective catch could not be
allowed for. But here is Chief Justice Coekburn — the man who
.strongly objects to this class of claim — who states that the
tribunal decided that one year's wages should be allowed in lieu
of piospective catch. I am not now discussing the amount
wdiieh should be allowed at all ; and the point that I make is

CO that, notwithstanding that a general proposition was recognized
— that prospective earnings should not be allowed for — at the
same time in that particular case they recognized the ju.^tice of
the claim under particular circumstances and decided that one
year's wages should be allowed in lieu of prospective catch.

were so

use of the

# •

(Mr. Peters' Argument.)

Chief Justice Cockburn proceeds to argue that the allowance
on. that point was excessive, but that is not material to my ar<^u-
ment. Then as to the two protocols, 30 and 31, my learned
friend desires to make it appear that there is certain distinction
in the dates which should be considered. He saj's that this all
occurred on September 2nd — seven da^-s before the formal tinding

10 of the arbitiators. My learned friend argues that because a
formal award was signed afterwards, that formal award must be
taken as ovcr-ridiiig everything hitherto done, but it nuist be
clear that the arbitrators decided certain questions from time to
time, — for instance, on that same day they took up the (juestion
as to whether interest should be allowed, and they decided that
it should be allowed, and then they took up the question of
prospective earnings, and they decided that it should not be
allowed, but that a certain amoiuit should be allowed for wages,
in lieu of prospective catch, and then they decidoci on the amount

20 of an award before the final protocol. The fact is that the last
protocol was simply putting into a form what they had together
agreed to before — it was e.xpressiug in black and white what
they had decided from time to time as they went on. So that
ther(! is reallj' nothing in the point raised bj' my learned friend.
His statement is that the award was not made until the 9th of
Septendjer. What is the fact ? There was n hearing on the Gth
of Se|)teuiber. At that bearing a record of the proceeding of the
arbitration was read. The conference was held with closed
doors. The protocol was read anrl approved and signed by the

30 President and Secretary of the urbitratoiN, ami the Tribunal pro-
ceeded to consider th(> approval of their decision ; and then, at
the request of the Tribunal. .Mr. A<lams and Chief Justice Cock-
burn undertook to give a tianslatioii into English, so that the
whr>le mattter was settled and deterniine(l upon long before the
date referred to by my learned friend. \Vi^ therefore have these
two facts broadly brought out — that the arbitrators in the
(Jeneva award ilid allow a certain amount in lieu of prospective
catch : and we find, with regard to the decision which they gave
us upon the ()i stion of prospective profits — that decision was

40 arrived at liecause the cliargi> was not that Great Hritain had wil-
ftdly seized, or clntic anything w r 'Og, to these ships, l.iit that she
had committed an act of neL;lii;ince which they held made her
liable for certain consequences that followeil.

At one o'clock the Commissioneis took reee.>s.

At half-jiast two tlie Commissioners lesumed tli ir seats.

Mr. Peters: — Before proceeding with my argument upon the
r)0 question of damages and the right to ri'cover damages for
prospective catch, there is a matter which I should havt" brought
to the attention of your Honors this morning. It appeals by
reference to the record and l)y reference to the loiinal pleadings
tluit were tiled in this matter before your lliiiors at Victoria
under the rule laid down by the Commi-■^nlll, that the formal
amount claiuied in these pleadings in many instances falls short
of the amount that wo claim has bc^en proved by the evidence.
My learned friend on the other side, in Ids argument at page 137,
has pointed out tnis ditt'erence, and has tabulated the different
00 figures so that they can be seen at a glance. By reference to
that table I find that in all the ca.ses, with the exception of two,
the claims as we say they are proved, exceed the claims set out
in the formal statement of claim. Wo do not at all thiid< that
the mere fact of an amount being claimed at the end of a

I ';(;*^«i|Pi

ri!^

I, .

II:

> t

(Mr. Peters' Argument.)

statement of claim in any way affect? our right to recover
whatever amount is proved by the evidence. I simply state that
it is our desire that the pleading.s be considered as amended so
that we may recover whatever amount we have proved. Uf
course the statements of the amount in the formal pleadings
were put in as a matter of convenience, and of course in these

10 cases, where evidence had to be obtained so long after the
tran.sactions took place, it was difficult to obtain it all and to
get at the facts as fully as we did afterwards get at them. We
do not think that we should be bound by any statement of claim
so as to prevent real justice beii t done if we have proved a
larger amount. I do not know that there will be any objection
made by my learned friend on the other .side to our amendment ;
at any rate, we make the application.

Mr. Dickinson: — I do not myself see the necessity of any
amenduient. Of ourse if from anything my learned friend has

20 said it would seem to the Commissioners that we had taken any
such technical objection as that he was bounil.asat common law,
by his ad (^amnuHi clause without aunndment, I think the Com-
missioners would be wrong.

The Coinmivsioner on the part of the United States : —
I did not get the impression that tlie Counsel so stated your
position.

Mr. Dickinson : — I do not see the necessity of the amend-
ment. We <lo not make anj* such contention as that he is bound
by the dtl ilanivam clause as in a declaration at common law.

30 We utilize it only to make this point, tliai the claim was
unknown to the parties themselves, and that their claims were
extiavagiint. We make some point of that kind, which we shall
amplify in argument. I very much <lislike to have the record
amended so as in any way to demonstrate that our figures are
not correct. I do not see the need of iin amenruient or of a
change in the record. If I maintained an}' such contention as
that they were bound by any figures in their declaration, it
might be necessary for them to make this motion, but I make no
such contention, except as it beai's upon the evidence of

40 exaggeration of their claims.

Mr. Peters: — With that understanding I have no desire to
have any amendment made. My learned friend has .said clearly
and distinctly tliat he does not take the point, and so there is
no necessity of making any formal amendment. M}' learned
friend is at liberty to use the argument that these claims are
extravagant. I don't object to his use of that at all, and, on the
understanding that we are not bound by our statement of claim,
I do not see myself the need of any amendment, and it is
perfectly satisfactory to me.

50 Mr. Dickinson: — The only question that can be made is

upon the schedule in the Jiritish case, pages 1 to fiO inclusive.

The ('onunissioiiur on the part of the United States: —
That is a fuudaniental question which cannot be atJected by any
amendment.

Ml'. Peters : — Yes, if that is a sound proposition as laid down
by my friend no amendment would cure it, and if it is not a
sound proposition then the amendment is not necessary.

Commissioner on the jiart of the United States : — The
notes will sliDW the whole matter.

00 Mr Peteis : — I was referring, when we a<ljourned, to the

case ar (Jeneva, and I was attempting to show, and I think I did
show, tiint there was a railical distinction between that case and
the case here. That we laid down in these words in our
argument at page 2.") : —

(Mr. Peters' Argument.)

" Apart from thi.s, a radical distinction exists between
" the ' Alabama ' case and the present. In the case of the
"'Alnl'iama' it was not contended that it was the design of
■" the British Government to cause the loss which ensued,
" nor was such loss the direct result of the negligence with
" which they were charged."

10 That is the proposition which we lay down with regard to
that. It has been argued, for instance take the Geneva case,
which is a peifectly con ect argument so faras the persons whose
ve.sseis were seized l)y the " Alabama," or the " Florida," or any
of the privateers, that these vessels had no right to complain
themselves. A state of war existed and tTiey had a right to be
seized ; they had no cause of complaint. Their causes of com-
plaint arose not from the act of seizure, not from the fact that
the vessel was taken, but because Great Britain hail omitted to
do something, which, if she had done, tliese vessels would not

20 have gone to sea at all. That distinction is taken in several of
the oases that arose on this matter afterwards, which I will refer
to a little later on.

Now passing from the " Alabama " case, my learned friend
cites another ca.«e as a case arising out of international ditierences.
That IS known as the case of the " Canada" and is cited in the
argument on the other side of pages l();j. In that case the facts
were those, to show your Honois how inapplicable it is to the
present case. The sliip belonged tf< the Utdted State'', was fitted
out for a whaling voyage and went ashore by accident some-

30 where on tbecuastof Brazil. According to all international law,
and common sense as well, the master of that ship bad a right to
use all proper means to get that vessel off. The Brazilian
authorities while tlu> ship was ashore, and while the master of
the ship was doing all that be could to get his ship ofi'and with
hopes of success, allowed an armed force to go on board the
vessel and umlersome imaginary right or claim to take charge of
the wreck, took charge of the vessel and prevented the ma.ster
from getting her ott", and the vessel was lost. Under these
circumstances a claim was put in, and that included prospective

40 earnings or profits of the voyage. The matter went to arbitra-
tion and was decided Ijy Sir Edward Thornton, who was then
British Minister at Washington. He decided that in that
particidar case piospective profits coidd not be obtained.
He decided it upon several grounds, some of which were applicable
to that case otdy. In the first place, before you come to hi.s
actual deoisio!!, there is again wanting in this ca.se the element of
intention to prevent tlint vessel from carrying on its legitimate
business of whaling. The Brazilian Government claimed that
they could take charge of the wreck because it was a wreck.

oO Tliej- had n(j desire to stop the vessel from whaling, the}' had im
desire to prevent those on board from carryirg on tb.e whaling
business. What did Sir Edward Thornton do ? He said "I will
not give pro.spective profits for iwo reason- ; in the (irst place,
thi.s voyage is about beginning and for ought that appear-,
before! they could get, on the whaling grounds the vessel uduht
be lost. And in the case before him for the leason tliat this
captain appears to bav^ run this vessel ashore at a point where
there was no jiarticular or specuil danger, almost in the dny time,
it might be very doubtful whether a nuiti who was so careless

(iO and negligent would make anj' profitable voyage." The case
will be found in 00 Biitisli and Foreign State Papers at page
20+. I will read that part of his judgment that refers to pros-
pective profits, page 209.

" The undersigned, however, cannot admit in anv cu.se

(Mr. Peters' Argument.)

" tlie riglit to probable profits ; becau.se the ship might have
'been lost at the beginning of the voyage, or the expedition
" might have been ultogeth(!r a failure and profitle.ss. In
" the present case this objection ha.s the more force, inasmuch
" a.s the Canada was commanded by a captain who, veiy little
" after sunset, and wlien it hardly began to be dark, ran hi.s
10 " ship aground on a reef, of whose existence and position lie
" ought to have been perfectly aware. Still the undersigned
" cannot admit the validity of any argument that would exempt
" the Imperial Government from the payment of intere.st."

Now he is deciding the case that was actually before liim,
upon the facts that tRere existed, and those facts shew no inten-
tion on the part of the people who took the vessel to prevent
him from carrying on the business of whaling, which is the point
to wl)ich I wish to call 3'oiir Honors' attention, and it makes the
case entirely ditl'erent. If that had been a case where the vessel
20 was seized by the Govtrnnient for the purpo.se of preventing
him from whaling, the prospective profits would have been
allowed, but no element of that kind existed in that case. Thei-e
was another thing which attention is called to, and that was the
negligent conduct of the master which ren<lered it very doubtfi'l
if the vovage would have been profitable at all.

Mr. Dickinson ; — He docs not use the neglif'ence of the
captain as a reason for the rule that he lays down.

Mr. Peters: — He says in the present case this objection has
the more force inasmuch as the " Canada" was commanded bj- a
30 captain who did so and so.

Mr. Dickinson: — He lays down the universal rule, lie says
in any case.

Mr. Peteis: — Applicable tn cases, the cii'cunistances of which
were like the case he then had to decide. He iloes not la}' down
a rule to a])ply to a case in which the circumstances were
ditl'erent. He does not lay down the rule nor dues he say that
if tlio Prazilian (Jovernment had seized that ship for the purpose
of preventing her from whaling they would not be liable for the
conse(|uence.s and the damages.
40 I have carefully followed out all the autliorities cited by my
learnod friend, and a good many cases besides, with the object of
finding out if this rule had been applied to any case where the
act was done with the intention of stopping the carrying on of
the business, and I am satisfied that no such authority can be
fonnd. No authority can be found to the effect that where the
act is conunitted with the intention of stopping one from carry-
ing on !i certain business, and the act has that ellect, that you are
estopped from claiming damages for the profits that you would
have maile if U)u had been allowed to carry it on. The distinc-
50 tion is clear aiiil broad. I have followed through to find out
whether there is any case, International, I'rize or Adinir-
altj' where, if th i, element existed damages have been
refused. It is this distinction that I want to impress upon the
Couit, and if I succeed in making myself clear there is a whole
argument in it. The damages recovered must not be too remote.
That proposition I admit; it is laid down by authority after
authority, and j-et I say when the damage is what was actually
intended by the person who did the act, tiiat damage can never
be too remote. If it is in your mind to cause a certain damage
CO and you do the act with that object, and you efiect what you
intend to do, that efiect is not too remote l)ecause it is the very
thing that was in your tnind to do at the time you did the act.
That distinction is one which I claim runs through all the cases
whether in contract or tort. When you come to the question of

lie saj's

(Mr. Peters' Argument.)

(fontrafit, for in.stance you are to .supply machinery, and you do
not supply it, and it is proved that it was wanted for a certain
mill, and that by not having it yo\i were not able to cany on
*the mill the question is whether it was intended at the time the
contract was made, did both parties at the time know, and did
they intend that these damages should be taken into considera-
10 tion at the time the contract was made. It is .so in the cases of
tort. If you do an act intending that the consequences shall be
.00 and so, and that consequence follows, surely that cannot be
looked upon as too remote.

I shall proceed to comment upon some other authorities cited
by my learned frienfl to .'^how that prospective profits cannot be
allowed. Let me take the case of " Apollon " reported in the
9th of Wheaton 3G2, and cited by my learned friend in his
argument, page 109. I wish to point out the distinction which
exists there. In that case the head note states :
20 "The probable profits of a voyage, either upon the cargo
" or frtught, do not form an item for the computation of
" damages in cases of marine tort."

At page 376 and 377 the matter we are now considering was
particularly considered by Judge Story, who drew the opinion,
and this is what he says :

" The principal arguments against this decree have been
" directed to the allowance of demurrage, as a just measure
" of compensation. The Attorney General contends that it
"ought to be disallowed as far too high a compensation; the
30 "counsel for the libel'ant as an allowance unreasonably
" low. This court on various occasions, has expressed its
" decided opinion, that the probable profits of a voyage,
" either upon the ship or cargo, cannot furnish any just
" basis for the computation of damages in cases of marine
" tort The basis has accoidingly been in every itistance
"rejected. VVliere the vessel or cargo are lost or destroyed,
"the just measure has been deemed to be their actual value,
" together with interest upon the amount, from the time of the
" trespass. Whei'e thee has been a partial injury only, that
40 " loss being ascertained, a similar rule has been applied. Where
" the property has been restored after detention, demurrage
" during the period has been generally allowed for the vessel,
"and interest upon the value of the cargo."

A few lines further on he shews that this rule he is laying
down is not a rule of universal application, but that there are
exceptions to it, and some of these exceptions are pointed out
by Judge Storj* in this very judgment. Ho says :

" Such, it is believed, have been the rules most generally
" adopted in practise in cases which did not call for aggra-
50 " vated or vindictive damages."

Now, there is a proposition clearly and plainly admitted that
there are two exceptions, that where it is a case tlu.t calls for
aggravated damages, or where it calls for vindictive damattes, in
neither of these cases would this rule apply.

Now, my fiiend has argued that this is not a case for
vindictive or aggravated damages. I do not agree with him in
that reipect. I .say, putting aside the word vindictive,
that there is something here in the nature of aggravated
damages, because the act was not only wrongful, but wilful, arJ
CO therefore it conies within the exceptions laid down by JuVge
Story. Here you have a case of a wilful wrong, and I say tnat
it is a case which would as much form an exception to lids
general rule laid down by Judge Story as a case where you
would be entitled to aggravated or vindictive damages.

28
(Mr. Peters' Argument.)

I
s

Now, there is another case whicli my learned friend refers to
and that is tlie " Amiahie i^ancy."

Commissioner on the part of the United States : — You
have ah'eady referred to that.

Mr. Peters : — There is one part of tliat judgment as
referred to on page 19 of my reply that I do not think I
10 have referred to. There i.s one j)art there where they say as
follows :

" They, (the (nviu-rs of the privateer) are innocent of the
"demerit of this tiansaction, having neither diiected it nor
" countenancefj it, nor participated in it in the slightest
" degree. Under such circnmstance,«, we are of opinion,
" that the}' are bound to reyiair all the real injuries and
" personal wrongs sustained liy the liiiellants, hut ihey are
" not Idiind to the extent of vindictive dnninges."

Such are tin- authorities that my learned friend relies on
20 upon this (ju(!stion (jf prospective profits. I shall now refer 3'ou
shortl}-, ill the fii;st place to some of the facts and prove the
existence of the intention to prevent seal fishing, and I want
them to i-efer to all the authorities we have cited to make the
point that we have positive autlmrity for our contention. The
facts aif that in USSO, 1.S,S7, l.HSS and ISHi), a largo number of
ships Were sealing in Behring Sea. It is proved that these
ship.s, at the time tlii^}* weie seized, were in almt)st every case in
the midst of the sealing season, and for the most part doing
remarkiilily well, and that the etlect of the seizures was to pre-
30 vent many British shi[)s fi'om engaging in the business. Our
learned friend tries to make this appi'ar I'alher small

At the first part of his aiginnent, puge 11, he refers to the
fact that after all onl\- a few vessels have been driven out of the
Hehiing Sea. He makes this statement:

" It is estimated that great fieets have been driven from the
" Behring .Sea by the United States from year to yi'ur. This is
" true, but the}- have not been the fieets of Great Biitain. They
" have been the vessels of citizens of the United States, in the
" proportion of loss to that of the subjects of CJreat Britain as
40 " a thousand to on"."

I do not know from what part of the record my learned friend
got any evidence in support of that statement- I turn to the
sche<lule in their own case before the tribunal at Paris, and I
find that in 1886 there were 84' vessels in tiie sea, of which 2.')
were British and 11 American; and I find that in liS87 there
were 47 vessels in the sea, of which 1!) were American, 27
British and 1 German ; and I find that in 1S88 there were 3!)
vessels in the sea, of which 21 were British, 17 American and 1
Geiman; and I find tli.it in 18S!) there were 69 vessels in the
50 sea, of wliieli .'{(i were British, and 1 German, and the balance
American ; and I find that in 181)0 there were 61 vessels in the
sea, ipf which '.]!) were British, 1 Gm man and 2') American ; and
I find that in l8'Jl then.' were ()•"> British vessels in the sea, 48
American and 6 unknown; and I find that in 1892 there were
(i7 British vessels in the sea, 46 Ameiican and 9 unknown.

Mr. Dickinson : — Where do you gta that citation !

Mr. Betels : — l'"'rom the Aineriean reprint.

Mr. Dickinson: — You will find the whole matter schetluled
in thfit volume of the British ca^e. We will come to that in the
60 argument and I will iu)t interrupt you now.

Mr. Peters: — I simpl}' make this statement in answer to a
statement made in the Argument of the ITniied States. Here
was the fact that in all these years we have mentioned, according
to the showiiiif of the United States, British vessels were to a

(Mr. Peters' Aifjuiiient.)

greater extent carrying on the businei^sof sciiling in tlie Beliring
Sea tlian,tlie vessels of any other nationality.

■ We know now tiie liistory of tlie state of afl'airs that existed
in IHSli. We know that it was only a yi ar or two before lliat
the great value of the pelagic sealing in Behring Sea had liecouie
really known. But comparatively few sealeis went into the

10 Behring Sea in 1880, fewer still in 1885, and fewer still in 1884.
The first year was 1880, when a large niiinlier of sealers went in,
and the largest jiart of the vessels that did go in were British
ves.sels.

Now what was the intintion with which these British vessels
were seized hy tlie Revenue cruisers of the United States ? 'I'hat
intention is very clearly shown by the evidence we have before
us. It is most clearly shown by the report of asnb-agent of the
department, Mr. Tingle, to the Secretary of the Treasury at
Washington. That report i.s dated the i8th August, 1887. I

20 may point out to your Honors that tliis is just about a fortnight
after the fii'st seizures were made. This American officer was
reporting to his chief officer — and at page '1^ of the e.xhibits
Appendix B you will find the following report: —

" Office of Special Agcvt of the Treasury Department,

San Fravcixco, Au;/. i^', ItlDfl,
Hon. C. S. l<'Air.cHiiJ>

Actiiuj Secretary/ of the Ireaituri/, Wuxhinglon, D. G.
" SlU, — On my ariivivl at Oiinala^ka I met the revenue cutter

30 " 'C'orwin,' Captain Aiifiey, in charge of four .schooners, viz.,
"'San Diego,' 'Onward,' ' Tliointoii,' and ' Carolena,' the last
" three English from Victoria. C'liptain Alibey has, unfurttinately,
" been short of coal or he would have made more seizures. He
" has, however, been very active and done good work. I urged
" him to remain if he could, cruising around the island until the
"' Bear' arrived to relieve Inm. If he s'lould be obliged to leave
" the waters earlier on account of the non-arrival of the coal
" vessel, which, up to the time of our leaving Ounalaska, had not
" been heard of, it will be unfortunate as the fleet of schooneis

4Q " will play havoc iiiuong nnd with the seals. If the case.s now
" under seizure are convicted, the marauding will be broken up ;
"if not, seal life will be seriously as.sailed next year by a larger
" fleet of ves.sels.

" I earnestly hope that no efforts will be spared to convict
"Captain Abbey's prisoners, as V.e has certaiidy done his part
" well. I telegr;ij)hed yovt as per his request, also of my own
" arrival. I am, ^ery truly, .

(Sgd). George R. Tincji-k,

Treasury Aijent.

oO I bring this to the notice of your Honors for the purpo.se of

showing what the intention of the officials of the United States
Government was at that time. It was clearly to seize these
vessels as a warning to others ; to seize all tlie vessels they could,
so that, as he writes : ■ If the cases ri"w under seizure' are coii-
" victed, the marauding will lie broken up ; if not, .seal life will
" be seriously assailed next year by a larger fleet of vessels,"
They use the word " marauding " because they claim that no
person has a right to hunt seals in Behring Sea except them-
selves. That letter' from Mr. Tingle is in itself the most complete

GO evidence of the intention with which these seizures were made.
It was to prevent " marauding" as they called it. It was to
.s-ave seal life; it wis to prevent pela'..;ie sealing. That same
spirit runs through all the reports uiude by these revenue
officer.".

!; -M

(Mr. Peters' Argument.)

I may also call your Honors' attention upon this same point
to the written reply of the United States to the British claim for
damages before the Paris tribunal, page 130, volunie 7, American
reprint. It is as follows ;

" The United States charge that each and all of the vessels
" when so seized were engaged in the hunting of fur-seals in the

10 " waters of Behring Sea in violation of the statutes of the United
" States, anti that such seizures were made in accordance with
" the laws of the United States enacteil for the protection of their
"property interest in the fur-seals which frequent Behring Sea
•'and breed only upon the Pribilof Islands, which islands are part
" of the territory of the United States ; and that the acts of the
" crews and owners of these vessels in hunting and catching seals
" were such as, if permitted, would exterminate the Alaskan seal
"herd and thereby destroj- an article of commerce valuable to
'all civilized nations'."

20 There is the formal contention put forward by the United
States Government in a reply to the argument of counsel for
Great Britain, and here we have the statement made by the
seizing officer of the United States at the time he actually maile
the seizure, I think, your Honors, I have said enough on that
point, to make clear that the seizures were made with the inten-
tion of preventing us from catching .seals.

Now then, I shall pass on from that point and let us see when
the}' seized us with that intention, what reason is assigned for
saying that we should not get the damages in this respect. The

30 reason they assign is ; all these damages aie too uncertain ; they
depend upon to ninny probabilities or improbabilities ; you
might catch seals, and you might not catch seals ; They sum that
all up ftt page 208 of their Argument, in these words: —

"The contingencies which enter into the speculation of how
" many seal skins may be secured during a bunting ciuise in
" Behring Sea, which have been preser.ted in detail with the sub-
"stantiating evidence, may be bricHy summaiized as follows ;
" The smallness of the ves.sels employed ; the extraordinary
'• perils of a voyage to and cruise in Behring Sea ; the experience

40 " ar d skill of the master, hunters, and crew ; the unreliability of
" I.idian hunters through their ignorance and superstition; the
" frequent inclemency of the weather; the provalency of fogs
" and rain : the condition of the animals when hunted, and the
' uncertainty of finding seals. Those coiitingoncies, the United
" States claim, are of such a nature ns to make impossible any
" method of computing an ostimuted caich which will be just."
Now, 3'our Honors. Jam still arguing on the (juestion of fact,
and Counsel for the United States make that statement. They
say you are not to recover the prospective catch because it is so

50 uncertain. In our reply we answer that statement in this way,
and it will be found on page 27:

" Even if this statement were correct, which is by no means
"admitted, it is submitted that nearly every sea fishery is
"carried on under similar difficulties. Take, for example, the
" cod fisheries as they are prosecuted on the banks of the
"Atlantic; the persons engaged in them have to contend with
" the most severe weather ; the condition as to storms and fogs
'•are at least as disadvantageous as those in Behring Sea; they
" have also to use small boats in rough and foggy weather ; they

CO " have to employ fishermen more or less expert. Public records
" will show that the casualties in those fisheries are much greater
" than seal hunting.

"Again in the mackerel fishery, the same difficulties exist to
" a greater or lesser extent.

aine point

I cliiim for

American

bhe vessels
enh in the
;he United
lance with
on of their
shring Sea
ds are part
icts of the
ihing seals
askan Heal
aliiable to

the United
;ounsel for
(le by the
iially made
^h on that
1 the iiiten-

as see when
ssigned for
.pect. The
rtain ; they
iities ; you
!y sum that

tion of how
I ciuise in
til the sub-
as follows ;
traordinary
I experience
eliability of
stition ; the
icy of fogs
ed, and the
the United
possible any
ill be just."
tion of fact,
lont. They
ause it is so
in this way,

ly no means
I fishery is
xample, the
inks (if the
untenil with
ns and fogs
g Sea ; they
athei ; they
blic records
nuch greater

ties exist to

(Mr. Peters' Argument.)

" The same may be said of the hair seal lishery, and of the
" lobster fishery, which are pro.secuted to a great extent along
" the coast of the North Atlantic ; instances might be multiplied.
" The argument of the United States implies that, with regard
" to any one of these fisheries, should the person who prosecutes
" them be intentionally and wilfully prevented from carrying
10 '• on the same, the element of uncertainty is such as to debar
" him from recovering any damages except the mere value of the
" property seized or interfered with.

" Whatever may be the opinions of witnesses as to the exist-
" ence of elements of uncertainty, the result of years of experi-
" ence has shown that people properly equipped for seal hunting
" as iu other fisheries are successful when not molested or inter-
" fered with."

That is the answer we gave to their argument On the one
hand. Counsel for the United States says, everything is uncertain ;
20 and on the other hand, we say everything is not uncertain. We
contend that there is just as much certainty with regard to
the hunting of the fur seal as there is in regard to any other
fishery. I shall undertake your honors, to prove to this court
from the record, that such is the case, a matter of fact. At page
75 of our argument there is a tabulated statement made out, show-
ing all the vessels that we have evidence of, that were engaged in
seal hunting in 188G, 1887, 1888, 1889 and 1890. The particulars
given there are the name of the vessel, the number of boats or
canoes, the time she was in the sea, and the number (jf seals taken
30 as shown by the evidence. I might state with regard to that
schedule, your honors, that there is an error in one of the figures
that I wotdd like to correct, as it might lead to a mis-calculation.
With legard to the ship "Onward," it is .stated to have
caught 400 seals, when as a matter of fact the " Onward " had
400 .seals on board when she was seized, and she had caught 507
seals before that and had transferred them to another ship, so
that the " Onward's " catch should have been 907 instead of 400.
With reference to ship " Black Diamond," referred to in that
Schedule, her catch should have been 80G. There is another
40 error I have to correct. In the year 1889, in the case of the
" Minnie" (the third vessel in 1889), the " Minnie" is stated as
having caught 420 seals. The facts are that the "Minnie"
caught 429 seals up to the time of seizure, which was the 15th
of July, of which 150 were taken before entering Behring Sea,
leaving 270 which were taken in the .sea, and 483 which were
caught after seizure. The total would be 753 instead of 420.
There is al.so a misprint there with regard to the " Ada." She
is entered twice. According to the evidence of Captain Gaudin
in 1887, she entered the sea on the 15th July, whereas as a
50 matter of fact .she is referred to there as having entered on the
28th June. The first entry is right but the second one is a mistake.
1 am now on the question, your honors, as to whether my
learned friend is right in his contention on the facts, that seal
hunting is so uncertain that you cannot go on any basis of
calculation with reference to it. Then, if it is a matter of law,
which I do not admit, because I will come back to the old point
that when you intend that a wrong shall be done and you do
that wrong, you are not to get out of paying the damages
because it is difficult to find out what the damages are. I have
60 taken this list of vessels and made with regard to them a very
simple calculation, and with your honors permission, I will give
to each of your Honors a copy of the calculation I have made,
and shall also give a copy of it to my learned friend. The
calculation which I made is this —

(Mr. PetoiH Arf»uincnt.)
18H6.

A'rtm. of rtiHl. C'lUh ,„;,■ ,hi/. Catch i>n' dny /" r Imal.

" Carolena" 31)(i8(i(22 4)22

5.')0 per ilay per canoe.

10 G2 • •

"Mniv Ellen" .-,7)2:U).X+2 5)42

228

8.40 per day per boat.

11.5
114

"Savwm-a" 49)15!Hi(:}2 8)32

147

4.2.') per day per canoe.

-^ 126

"Dolpliin" 40)20:?7(o() 12, V>

200

4.15 [icr day per canoo.

" Fathtinder ■' 35(1460(42 5)42

140

3Q 8.40 per day per boat.

"Theresa" 58)2000(34 5)34

174 —
7 per da/ per boat.

260
232

"Adele" 32)000(27 3)27

64 —

40 9 per day per boat.

260
224

"Grace" 41)1700(41 11)41

164 —
4 per day per canoe.

GO
41

50 "Favorite" 39)2374(61 10)61

234 —
6. 1 per day per canoe.

"Vanderbilt" 58)134.5(23 5)23

116 —
5 per day per boat.

185
174

60 "Anna Deck" 48)1141(23 8)23

96 —
3 per day per canoe.

181
144

V I

per canoe.

y per boat.

(T per canoe.

y percanoo.

ly per lioat.

boat.

y per boat.

y per canoe.

\y per canoe.

y per boat.

y per canoe.

i<3
(Mr. Peters' Argument.)

yamt q/" veutl. Caleh prr itaf. Catch ptr day pir hoot.

"Onward" 25)400(16 8)l(i

25 —

2 per day per canoe,

150

^^' Thornton" 27(403(15 4)15

27 -

' 4, nearly, per day per

133 boat.

135

" Black Diamond " . . 34)763(22 - 9)22

— 2.44 per day per boat.
83
20 Warned July. 68

1887.

" Mountain Chief " . . 20)700(35 4)35

700

8.75 per day per canoe.

" Pathfinder " 50)2200(44 6)44

2000

7.33 per day per boat.

30 "Adele" 32)1200(37 6)37

6.11 per canoe.

"Ada" 41)1871(45 8)45

164

5.62 per canoe and 1 boat.

231

205

" Mary Taylor" .33)700(21 5)21

*" 693

4.20 per day per boat,

June, no good.

Or if you leave June out, —

28)700(25 5)25

700

5 per day per boat

"Kate" 40)1800(45 11)45

50 1^00 _

4 per canoe per day.

" Mary Ellen " 32)1 530(47 6)47

128

7.83 per day per boat.

250

224

•' Favorite " 47)1884(40 10)40

1888 —

CO 4 per day per canoe.

This is assuming she had same number of canoes as in 188C,
the number for 1887 not being given.

" Alger " Data not given.

JV'^f

lit

(Mr. Peters' Argument.)

yatneofvesud. Calch per day. Catrh ptr day per boat.

"Ada" 41)187(i(45 7)45

1845

6.42 per day per canoe.

"Triumph" 18)426(23 4)23

10 414

Warned. 5.75 per day per canoe.

' Black Diamond ". . .15)1000(66 8)66

990

8.22 per day per canoe.

" Vanderbiit" 56)1250(22 5)22

112 —

4.4 per day per boat.

130

20 112

"Alfred Adams". .. .Outfit not given, but large catch. 1,382
catch 10th July to 0th August.

1888.

" Viva " 55)1568(28 5(28

1540

5.60 per day per boat.

„f, " Favorite " 50)1834(36 13)36

1800 —

2.7 per day per canoe.

"Annie C. Moore".. 41)8{)0(19 0)19

779

3.16 per day per boat.

"Mountain Chief" . 37)900(24 5)24

888

4.80 per day per canoe.

■*^ "Triumph" 44)1802(41 12)41

170

3.41 per canoe.

44 (I boat, 11 canoe.s.)

"Juanita" 41)1018(24 6)24

984

4 per day per boat.

50 1889.

'■ Marv Ellen " 51)125.'?(24 0)24

1224 —

4 per day per boat.

"Annie C. Moore" ..41)1316(32 6)32

1312

5.33 per day per boat.

"Minnie" 43)753(13 9)17

00 731

1.79 per canoe.

(8 canoes and 1 boat.)
•She was seized 15th July and spears taken, and had to leave
early.

boat.

(Mr. Peter.s' Argument.)

Name of reasel, Caieh per ilay daieh pe.r day per boat,

" Maggie Mac" 55)1290(23 6)23

1265

3.83 per day per boat.

"Beatrice" 40)630(16 6)16

^" 640

2.66 per day per boat.

Green Hunters lost three canoes at best of season.

" Say ward " . .42)1812(43 13)43

1 80(i

3.33 per day per canoe.

" Viva " 46)2180(48 6)48

20 ^'^^^ —

8 per day per boat,

"Favorite" 43)130.X30 11(30

1290

2.72 per day per canoe.

" Sapphire " 26)1641(63 15)63

lfi38

— — 4.20 per day per canoe.

3f, " Penelope " No data. 1600. Left 26th August.

" Junnita " 28)620(22 7)22

610

3.14 per day per canoe.

" Ariel " 35)844(24 6)24

840 —

4 per day per boat.

Warned on July 30.

40 " Pathhnder " 28)854(30 5)30

840 —
6 per day per boat.

■ Theresa " No data. 600 skin,s.

" Kate " 1 6)700(44 8)44

704 —
5.5 per day per canoe.

'Triumph" 7)72(10 8)10

''^ 70 —

— 1.2 per day per boat,

I took each one of the.se .ships, beginidng with the " C-iro-
lena," and I 6nd that by reference to the schedule which is
already in our argument, that the " Carolena " was in Behiing
Sea for 31 days in the year 1886. I find that she caught 680
.seals.

Mr. Lansing : — She ent'ired June 6th.

60 Mr. Peters :— My learned f.iend says .she entered June 6th.
There is one piece of evidence made clear by witness after wit-
ness and that is, that so far as seal fishing in Behring Sea in
June was concerned, theie was almost no seals caught. The
evidence upon that point, which I .shall refer to in more detail

!^mi»mn

nmtrnimnmm

*■ I'

(Mr. Peters' Argument.)

afterwards, is very clear. The catch of seals commenced in the
early part of July ; very few were caught until about the 6th
July ; some were caught on the 2nd or 3rd of that month, but
in the month of June you could catch no seals in the Behring
Sea. The seals were then going towards the islands, and the
evidence is that there were no seals caught in June in the
10 Behring Sea. There were seals caugiit outside the Behring Soa
on the " Fairweather " grounds in that month, but they were on
their way up to Behrin;; Sea, and as a matter of fact there is no
evidence that in the Behring Sea itself any seals were caught in
June. For the purpose of this calculation I give the " Carolena"
the whole month of June fishing, which is all the fishing season
she had in the Behring Sea. Now, what do we find from that?
I find that by making that calculation with regard to the
" Curolentt," that taking her catch it would give 1 "v 22 seals per
day. I find that she had four canoes and that would give her
20 5.50 .seals per day per canoe. I took all the vessels in the same
way, and if your honors look over the list you will find that it
is surprising how closely the average for each vessel comes out.
It is perfectly surprising how close the catch per boat or per
canoe per day is. The " Carolena " averaged 5.50 seals per canoe
per day. That, I think, is the largest catch per canoe of any of
the vessels in 1886, and the reason for that, in the case of the
" Carolena " is very apparent. Your honors will remember that
thp " Carolena " was provided with canoes manned by white
men armed with guns, and you will remember that she happened
30 to have particularly good sealers and excellent shots. She was
therefore armed a little better than a vessel which simply
carried Indians and canoes. Now let me follow the calculation
out further. The " Mai y Ellen " caught 8.40 seals per day per
boat. The "Say wan!" caught 4.2.i suals per day per canoe.
The "Dolphin" caught 4.15 seals per day per canoe. The
"Pathfinder" caught 8.40 seals per ilay per boat, which your
honors will see is exactly the same as the catch of the " Mary
Ellen."

Mr. Lansing: — Is that calculation based on every " lowering"
40 day?

Mr. Peters: — No. This is for the time they were in the
Behring Sea, irrespective of whether the days werj good, bad
or indifferent. This is for the time thej' were sealing or trying
to seal, whether they were prevented by bad weather or not.

The Commissioner on the part of Her Majesty : — You
are counting from the first week in July as I understand ?

Mr. Peters : — I count from the first day of July in the case
of the " Carolena." I am not now for a moment, as your Honors
will understand, giving up the calculation which we made in our
50 original argument. Your honor will remember that the calcula-
tion we uuide in the original argument was based on the catch
of the " Mary Ellen." The answer put in by the United States
in regard to that was, trnxt, the catch of the " Mary Ellen " was
exceptional; that she was particularly lucky. I bring this cal-
culation forward to sliowthat apart from her luck altogether the
" Mary Ellen " only sliowt>d tbo same average catch as the other
vessels. The '■ Mary Ellen " was carrying boats and she caught
8.''0 seats per day per boat. The " Pathfinder," carrying boats,
caught exactly the same number. The "Theresa,"' carrying boats,
60 caught 7 seals per ilay per boat. The " Adele," carrying Vioats,
caught 9 seals per day per Imat. Now in the case of the '' Van-
derhilt," which also carried boats, she only caught .5 seals per
day per boat. Your Honors will remember that the gentlemati
who gave evidence with regard to the " Vanderbilt" was a captain

iced in the
)ut the 6 th
month, but
he Behring
ds, and the
ine in the
Jehring Sea
ey were on

there is no
e caught in
' Carolena "
ling season

from that?
ird to the
22 seals per
d give her
n the same
find chat it

comes out.
boat or per
Is per canoe
e of any of
case of the
jember that
i by white
ie happened
). She was
hicl) simply

calculation
per day per

per canoe,
canoe. The
which your
' the " Mary

'lowering

vere in the
good, bad
tig or trying
r or not.
esty : — You
tand ?

^ in the case
vour Honors
made in our
the calcula-
pn the catch
nited States

Ellen " was
ing tliis cal-
together the
as the other
d she caught
rying boats,
rryiiig bouts,
rrvin;^ boats,
)f "the ' Van-

r> seals per
le gentlemiui
wasu captain

(Mr. Peters' Argument.)

named Meyer, a witness called by the Utnu-d Stales, and rclif-d
upon to a certain extent by them. His evidence went to prove
to my mind the assertion made by .several of our witnesses, that
there coulil be better hunters obtained in Victoria than in San
Francisco. The " Vanderbilt" came from San Fraiicisc) .and liHr
catch per boat was not so iarj^e. New let us take the vessels that
carried boats in 18X7. We have the " Pathfinder," and she carried
boats, and her catch was 7.33 seals per day per boat. You have
the" Mary Ellen," with boats, and she caiigl'.t 7.S3 seals per day
per boat. Then in the year 1888 you have the " Viva" and she
caught .5.00 seals per day per boat. You have the " Annie C.
Moore," and she caught the very small catch of 3.IG seals porday
per boat; but it will bo remembered, that for certain reasons, she
went out of the sea. Tlieyear 1888, as your Honors will remem-
ber, seems to have been a poor year ail arournl, and not very suc-
cessful, and the average catch per boat or per canoe per day seems
to have been lower. Then we follow on for the year 1880, and
you will find that the " Mary Ellen " had four seals per day per
boat; the " Annie C. Moore" 5.33 seals per day per boat; the " .Mag-
gie Mac" had 3.83 seals per day per boat. In this year 188!), your
honors will notice, that the average catch is smaller; but you
will also remember, that in that year a great nutnl)er of tiie ves-
sels were interfered with by tlie American Cruisers, and that they
kept out of the proper hunting grounds and the best hunting
grounds for fear of seizure In that year the " Viva " had eight
seals per day per boat. A good many vessels in that year were
se"'ed, ami also a good many of them carried canoes. Let us
take the catch of the vessels carrying canoes in the same way. In
1880 the " Carolena " carried canoes and her average was .5. .50
seals per day per canoe ; the " Sayward's " average was 4.2.3 per
day per canoe; the " Dolphin's " average was 4.1.5 per day per
canoe ; the " Grace's " average was 4 seals per day per canoe.
Tne " Favourite" was commanded by Captain AlexancJer McLean,
and no doubt his great capacity as a sealer, as. my learned friend
Mr. Dickinson will contend, gave liim a larger average. His
average was (J.Ol seals per day per canoe.

The Commissioner on the part of Her Majesty: — What
proportion do you allow for tlie stern boat catch ?

Mr. Peters: — I have not taken the stern boat catch into con-
sideration, because in the list we have made we have put them
down when we could get them. So much for the stern boat.

The Commissioner on the part of the United States : — •
I do not quite understand you, Mr. Peters ?

Mr. Peters : — I have not taken any account of the stern boat
catch at ail.

The Commissioner on the part of the United States : —
You have not counted the stern boat as a sealing boat ?

Mr. Peters : — I have not done so in any case, so that it is the
same thing all around.

The Commissioner on the part of Her Majesty: — Still the
ca^ch is in the total.

Mr. Peters : — Yes ; but it is very diificult to make it up.

The Commissioner on the part of Her Majesty : — Of course
it was.

Mr. Peters : — There were a tew cases where we could separ-
ate the stern boat catch, but we could not do it in every case.

The Commissioner on the part of the United States : —
That catch has gone into the total ?

The Commissioner on the part of Her Majesty : — Your
totals will show to some extent a larger catch per boat per day
than if you had counted in the stern boat catch.

^ip'

■1 . i<!J|if;:|

! I i

I !

(Mr. Peters' Argument.)

Mr. Peters ; — That is equalized l)y the fact tliat every vessel
had a stern boat, so it is the same tiling with refjard to every
one of them. There were very few of them that liad irot stern
hoats. There wore one or tw that had a canoe in.steiid of a .stern
boat, and, for instance, the " Carolena " lost her stern boat.

There is one cn.se ^iveii on Pa<;e 77, the "Viva," where the

10 catch was 1,5GS — 0.") for the stern boat. The "Viva," a.s we are all
aware, was perhaps one of the most successful sealers that sailed
the Behring Sea. She was commanded by Captain NVentworth E.
Baker, and, if the Commissioners remember, he was the most suc-
cessful man in that year w ho went out, and her catch by her stern
boat would be about asnjood acatch as an}" stern boat of anj' vessel,
and this just gives you an idea what a small proportion of seal ■
were really caught by the stern boat, and it i.s evidently fair all
round to leave the question of the stern boat out of considera-
tion altogether, liecause there was a stern boat in nearly every

20 case I think if j'ou will loiik over the list that we have given
here you will find very few vessels that have the stern boat
actually proved, and I have no doubt some stern boats could not
be proved. Now following ot\ with what I was saying to show
how close together these figures come: In l!S8(> the " Sayward"
had 4.25 per canue, the "]>(jlphln" had 4.15, the 'Grace" had 4
per canoe, the " Favorite" had G.l per canoe, the " Anna Beck"
ha<l 3 per canoe, the " Onward" had 4.3G per daj' per canoe, the
"Thornton" nearlj- 4 per day, and the '' Black ])ianiond", which
was the ve.s.sel that was warned, if you remendier, and which

30 kept out of the way and went out of the sea at a certain time,
had the smallest average of any — 2.44 per canoe. Following
out the same with regard to 1887, you will find the "Mountain
Chief" got 8.75 per day per canoe. There is a rea.son why. her
average should be so large. She seems to have been well
handled and in addition sht* seems to have been only a
few da3's in the Sea, 20 days of the best part of the hunting,
so that would naturally give her the largest catch for
the time she was there. The "Idell " got G.l 1 per canoe, the
" Ada" 5.02 per canoe, and the " Mary Taylor" 4.20 per boat, and

to the " Kate " 4 per canoe, the " Favorite, " 4 per canoe, the
" Triumjth " 5.72 per canoe, and so on all through. So with re-
gard to 1889. Therefore, in answer to the .statement made by
my learned friend, that there are a great many contingencies
which make it difficult to hunt seals, and that there are a great
many probaliilities against getting a good catch. I take the
years 188(), 1887, 18S8 and 188!), the very period we are talking
about, and I say I agree in what tliffieulties surround seal hunt-
ing. I agree tliat seals sometimes sink when shf t, or that there
was .some fog there, or some storms in August, or that the rain

50 interfered with sealing, ami taking all these into consideration, I
haveproved as a fact thatevery vessel properly ecpiipped inBehring
Sea (luring tlio.se years, per bout or per canoe, obtained about an
average lunnber of seals per boat, they got somewhere between
9 and 7, per canoe they got somewhere about 4 during those
times, less in 1888, because all tiie evidence shows there were
more difficulties to contend with that year. Wo are not now
looking forward and asking to get damages for a number of
seal.s we might catch in this year, but we are looking backward
to facts before us of what those vessels did get. We are taking
60 things as they have actually happened, not as they are going to
happen. We are looking back and .saying : Here is a fact now
made apparent to the Court, that all these vessel.* got an average
number per boat or canoe during all these .seasons, notwithstand-
ing all tlie difficulties, and we simply ask the Court to draw its

Bvery vessel
rd to every
1(1 not stern
1(1 of a stern

I llOHt.

where the
as wc are all
s that sailed
'eiitwortli E.
he most snc-
liy lier stern
if an}' vessel,
•tion of seal ■
■ntly fair all
if considera-
nearly every
i have fiiven
e stern boat
its could n(»t
ring to show
i " Say ward"
jlrace" had 4
Anna Beck"
er canoe, the
nond", which
r, and which
certain time,
. Following
le "Mountain
son why. her
e lieen well
lieen only a
he hunting,
it catch for

canoe, the
per lioat. and

canoe, the
So with re-
eiit made by
;()ntingencies
e ai'e a great
I take the
p are talking
1(1 sea! hunt-
or that there
that the rain
i.sideration, I
B(l inBehring
lied about an
lere between
luring tho.se

there were
are not now

number of
iig backward
'e are taking
are going to
is a fact now
(t an average
otwithstand-
t to draw its

(Mr. Peters' Argument.)

conclusion. Take for instance the " Carolina" in the -^O days of
Jul}' .she was there, or .'H days; she got (JGO .seals. What reason is
there, admitting that the seals were therein large quantities, that
she would be less successful in the month of August than other
vessels there during that same time and at that same place. She
had made a good catch in July, she had every appliance for

10 making a good catch in Augu.st, and when this thing comes out
as it does, I say as a matter of fact it answers the cor.tention
made by my learm-d friend that there is so much uncertainty about
seal hunting that you cannot make a basis for calculation. This
argument I am now using is in addition to our main argument,
which I do not propo.se to read to your Honors becau.se it is here.
We have already pointed that out, .shewing our original con-
tention, and wc only bring in this statement in order that the
Court may thoroughly understand our position. Rightfully
we put forwaid the claim for the prospective catch based upon

20 the catch of the " Mary Ellen. ' We base that calculation on
the ground stated in our argument, that the " Mary Ellen " was
perhaps the only one of the vessels shewn not to have been inter-
ferred Nvith in ]88(). My learned friend on the other side comes
in and says : You have no right to take the catch of the
" Mary Ellen " into consideration at all, because it is an
exceptional case, and then my learnetJ friend with ntuch ingenuity
picks out one or two of the cases I have mentioned here and
shews that they would have made n smaller average than the
" Mary Ellen." In answer to that argument, for the purpose of

30 al. owing the Court to see to what extent this matter really goes,
I take every one of these ships and I make a very simple calcu-
lation in regard to them, and I shew that the catch comes out
almost even. Here and there there is u ditt'erence. Here and
there some man fell short, but in every such case you will find
tliere was some interference preventing him making his catch.
For instance, Victor Jacobson tells us that when he was seized he
lost his guns and .started his men out with spoars that they mana-
factured on board the ship, and he goes out after having been
seized and of course makes a smaller catch than with the

40 proper equipment, and there was a deticiency in that case, but,
putting aside special cases, you will find on examining the
evidence on this record that it comes out wonderfully close, and
facts are stronger than words. It is all very well for my learned
friend to argue : " You ought not to have got so many seals, that
the chances are you woukl not catch .so many. My answer i.s,
taking everything you .say for granted, admitting all the diffi-
culties and hardships you .say existed, notwithstanding all that
in lhS(J, 1887, 1888, 1881) we have .hewn that every boat that
went out made an average catch if it was equally well equiped.

50 Therefore there is no reason to suppo.ic that we would not have
made as good an average as these men made. That is oa the
question of fact.

To the present time, so far as the law is concerned, I have
confined myself to examining the position my learned friend
takes. What is our position ? It is very clear and very plain.
We say tts a matter of law that we are entitled to recover for
prospective catch the gross value of the number of .seals that we
would probably have caught on the ground that the United
States intentionally prevented us from carrying on that which

60 was a legitimate business. Now take that proposition in pieces,
as it were. In the tirst place was it a legitimite business? The
United States cannot now argue it was not. Whatever their
contention in 1886, 1887, 1888 and 1889 was, they are
now forever precluded from arguing that wo had no

'1 Jt

ir,f

(Mr. Peters' AiMruiiieiit.)

risi;bt to catcli seals in «ri\' part oF tlie Belirini; Sea.
We sny as a inattiM' of fact t!'at tliey seizeil these
vessels with the intention of preveiitinj^ us from eairyinu
on that business, So faf we have stati'il the facts Now, leiw
does the law stand on the matter ? I nnliniit that there is p.^i-
tiVe authority l> tli in International cases anil als.. in Civil cases

10 to the effect that wi; arc entitled to recover these dariiaj^es, and
I propose now to refer to some of those authorities. As it i-
weil to beijfin at the very latest point, I ))ri)piise to refer t" p'^r-
haps the latest authority tliat can be found on tliis suiiject first,
that is, the "(Josta Rica Packet" case deeiiied by that widl
known international lawj'er. Professor Martens. In oi-dci- to
facilitate reference to this e;ise, we have set out a iruod part f it.
Mr. Dickinson: — Does this bear on the (juestion of pros|)i'etiv(>
catch ?

Mr. Pet(>rs : — Most decidedly.

20 M'". Dickinson ; — This case is not cited in the briefs, which is
the reason for luy enijuiry.

Mr. Peters : — It is not cited in my brief oi'iyinally for the
reason that I drew the ori^dnal brief Ixd'ore I had it, but I fur-
nished my learned friend with a copy of the case as .soon as I
got it. It was decided (piite lately. As a matter of fact it was
laid on the table of Parliament in lMi;^land in Maj- 1S!)7. I
heard of the case and ijot an advance copy sent to me before it
was actually laid on the table there, and, as >o()n as I ii;ot it ;ind
made my i-eference to it I sent it to my learned friend. As a

30 liiatter of fact the " Costa Rice" case ijoes even further tlian it
is necessar\- for me to contend for here. It allows the pros-
pective earniriLjs that have 1 n made durin;,' a cert.iin time,

even althonL,di the cpiestion of intention did not come up. The
facts of this case as set out in the appendi.\ to my reply, ])aL;i.'
13, I want to draw particular attention to, iind they are as
follows : —

The "Costa Rica" was a Bi'itish ship, re^istei'ccl at the poi-t of
Sydne}'; she was registered as owneci by a Hritish (Jom[)any
named IJurns k, Co. The ship was fitted out as a whalt^" under

40 the British Hag in the .Moluccas Seas on a series of voyages
covered by the years 1S,S7 to iSi)l. on wliieh voyage she > .^
commanded by Mr. C'arpenter, u naturalizeil British subject, who
had a spijcial knowlcilge of the sea currents thei-e prevalent, the
habits of the whales and where found at particular tiue's. T'^'s
fact led to just anticipations of the profit to be derived from
any whaling cruise by a vessid of which he was master, and was
the chief inducemi;nt to undei'take the eiit'-rprise. There was
the first proposition laid down. The whaling season is alle^fed
to be from the 1st Noveivbcr to 10th .lanuarj'. In Jamiary

50 1888 the •' Cosa Rica" sighted a tlerelict prauw. I need not fol-
low on through all the facts This jirauw was found floating
and the " Costa Rica Packet" picked it up and ajipropri'it'-d
certain of the goods on board, chi(>fly consisting of gin, whiskey,
brandy and things of that kind. It was on the high seas, out-
.side the jurisdiction of any country except the country tl.at
owned the ship. She took these goods After a while the
sailors got drunk on the brandy and whiskey, agreed that it was
not very good in any case, and they pitchetl it overboard except
.some small amount of stuff". Some time after Carpenter landed

60 in the territory of the Netherlands and was arresti;d on
the charge of improperly taking charge of this prauw
and taking goods belonging to a subject of the Netherlands,
alleging that this was done within their waters, within three
^nilcs of the shore. He suffered a very considerable amount of

(Mr. Peters' Argument.)

rinjf Sou.
jied tlit'st!
I ciiiTyiny;

Now, ll'lW

iTc is piisi-
Civil oases
imi^'cs. lunl
As it is
t'cr t'l |)'T-
liiji'ct tii'st,

t'imt well
1 iinlci- ti)

pMft f it.
ji'dspii'tivn

<, wliicli is

ly foi' tlie
, hut I lur-
; soon lis I
tact it was
• lWt7. I
I' licfori' it
ijot it ami
'tul. As it
lifP tliaii it

tlie JH'ils-

tiiiii time,

up. TIh^

ivply, pM-x'

icy aru as

tile poi't of
(>)uipaMy

rtllT UtlillT

)t' vovaLCi's

,■ s!,;. .; ,s

lijoct, wlio
vali.'iit, tlic
m-s. T'-'s
ivcil from
r, ami was
riicTL' wai

is alli"ri''l
1 .Fanuary
0(1 not t'ol-
(1 floating
propri'it'"!
1, whiskey,

seas, out-
iiitiy t!.at
wliilo the
;hat it was
inl L-xci'pt
tor latidud
:Test(.'(l on
lis pruuw
•tlierlands,
thin three
amount of

hardship, wa.s kept under arrest for a considerable time under a
prelimenary process and never was tried. It was simply a
warrant of arrest, as they call it, a '' precautionery warrant,"
that is a warrant necessary to make liim attend at the trial of
the matter. He was imprisoned .some considerable time, 15 or
20 days, and it is quite clear during that time he was not
10 detained because they wanted to prevent him from whaling, but
for the purpose of this prosecution. The prosecution was never
carried on. He was discharged after some considerable delay,
and it was alleged that ho suffered a good deal of hardship, and
was very harshly dealt with when he was in prison. The matter
came up for consideration before an arbitrator anil one of the
items claimed was for loss of amount the ship would have earned
if she had been allowed to go on her whole voyage. During the
time he was impri.sone<l his vessel did not go whaling and the
voyage to a certain extent was interfered with, and Mr. Martens
hail to give an award under these circumstances. Now I would
call the attention of the Court to how he gives that judgment.

The Commissioner on the part of the United States : — Who
were the parties to the arbit'-ation ?

Mr. Peters : — Great Britain and the Government of the
Netherlands, Great Britain acting for these parties. At page 17
his award is given, and I need hardly say that the award of a
man like Martens ought to carry with it a verj' considerable
amount of weight. He is an authority recognized everywhere
on matters of intcrnatianal law.

Now what does he say :— " I pronounce the following award
on arbitration.

Consiilering that the right of .sovereignty of the State over
territorial waters is determined by the range of cannon measur-
ing from the low water mark;

That on the high seas even merchant ve.ssel."j constitute de-
tached portions of the territorj' of the State who.oe Hag they
bear, and, consequently, only Justifiable by their respective
national authorities for acts committed on the high seas;

That the State has not only the right, but even the duty of

40 protecting and defending its nationals abroad by every means

authorized by international law when they are subject to

arbitrary proceedings for injuries comuutted to their prejudices."

♦ * * » « ♦» ♦♦

" Whereas, the appropriation of the cargo of the aforesaid
prauw by Mr. Carpentei-, having taken place on the high seas,
was oniy justiciable by Engli.«<h tribunals and in no wise by
Dutch tribunals;

Whereas, even the identitj- of the above mentioned derelict
with the lost prauw belonging to Mr. Frie.ser is in no wise
50 proved;

Whereas, the authorities of the Netherland Indies who had
arrested Mr. Carpenter in November 1891, on the chai'ge of his
having committed the act in 1888, outside the territorial waters
of the Netherland Indies, abandoned of their own accord, bj'
the decision of the Macaser Council of Justice, datetl the 28tli
November, ]8!H, the prosecution of the accused was irrefutably
established by this action the illegality of his detention as well
as of his forced transference from Ternate to Macaser;

And whereas, all the papers and deeds produced go to prove
the absence of an)- real cause for arresting Mr. Carpenter and
confirm his i-ight to be idemnified for the losses sustaineil by
him ;

Whereas, the treatment to which Mr. Carpenter was subjected
to in prison at Macaser, appears to be unjustifiable in view of his

itm

I I

(Mr. Peters' Argument.)

being a aubjeet of a civilized State, wliose detention was only a
precautionery measure, and tiiat consequently this treatment
entitles him to a fair compensation ;

Whereas thr unjustifiable detention of Capt. Carpenter caused
hhn to miss the best part of the whale Jishinii season.

I call 3-our attention particularly to the formal recital there.
10 If my learned friend's contention be correct, that the
supposed piotit of the earnings of a whaling season are .so
uncertain, why ilo we find this great international lawyer in
giving a decision between (Jreat Britain and the Netherlands
reciting :

" And whereas, the unjustifiable detention of Captain
Carpenter eau.sed him to misH the be.st part of the whale fi.shing
season : and

" Whereas, on the other hand. Mi'. Carpenter, on being set free
was in a position to have returned on Ijoanl the ship "Costa Rica
20 Packet" in January 1892 at the late.st, and whereas, no con-
elusive proof has been ])roduced by him to show that he was
obliged to leave his ship untril April 1802 in the port of Ternate
without a master, or, still less to sell her at a reduccul price ; and

" Whereas, the owners or the ('aptain of the ship being under
an obligation as a precaution against tln^ occurrence of some
aeciilent to the Captain, to make pi'ovision for his being replaced,
the mate of the "C^osta Rica Packet" ought to have been fit to
take command and to carry on the whale fishing industry; and
" U'hereas, thus, the hxs is sustained by the proprietors of
30 the vessel " Costa Rica Pitcket," the oHicers and the crew, in
consecpience of the detention of Mr. Curpi-iiter, is not entirely
the necessary consecjuence of thin preoaution'iry detention."

Your Honors will see that in coming to this coMclnsinn he was

careful. In the first place h(> says: — " Tin' Ijest part of the

" whnling season has been lost." On the other band he savs : —

" The los.s need not have been so great a>< a matter of face it

" has been, because Mr. ('arpenter could have yone back sooner

" than he did go back. He was compelled ti lose so many days

" of the whnling season, but he did not lose it all, and in making

40 " ln> award Mr. Martens takes into consideration on the one hand

" that the best part of the whaling season is lost, and on the other

" hand that he need not have lost so much time as he actually did,

" and he takes further into consideration that they themselves

" were a little negligent in not having placed on boaril the ship

" a mate who could have taketi charge in case the captain was

■ interfered with, but with all that, be makes his award."

He sa^'s : — " Whuieas, in so far as tlie indemnity to be paid

, " to Captain Carpenter, tli(,' officers, crew and owners of the ves-

" sel, " Costa Rica Packet," is concerned, the documents produced

50 "and, in particular, the expert opinion to which reco\irse has

" been had at Brussels, do not furnish the necessary elements for

" fixing the amount, and whereas a sufficient iniienndty will have

' been given by granting the sum of .£3,150 to Capt. Carpenter,

"the sum of £1,(JU0 to the ofiicers and crew, and the sum of

" £3,800 to the owners of the ves.sel, ' Costa Rica Packet.' "

For these reasons I declare, and he gives judgment for these
sums and for £250 cost.'. It may lie noted in this matter the
award given was much lai-ger than the amount origitiallj' pre-
sented, that will appear by reference to the full claim. In the
CO case of the " Alabama," where it is argued that you should not
get these prospective profits or prospective catch, or whatever
you chance to call it, I say they may be all right under the cir-
cumstances of that particular case, and with the explanation that
the " Alabama " case was not the direct consequence of the act of

(Mr. Peters' Argument)

Great Britain. .Great Britain did no act, it simply omitteil to
do something, but here in thi.s case is the distinct authority of
one .of the ablest international lawyers of the day, and his
authority is to this efiect : — You shall have damages for losing
the best part of the whaling season. You shall have damages
for that because here is the law which says the direct conse-
10 quences of your act must be compensated for, the captain was
necessary to carry on that voyage successfully ; you prevented
him from going, the conse(]uence is that certain part of the whal-
ing season is lost, and you are to be compensace<l on the basis of
finding out what would be the probable amount he would have
caught during the best part of the whaling sea.son, So far in
regard to that ca.se, I contend that that case is a distinct
authority. The position taken by my learned friend may apply
to many cases, but it does not apply to all cases, and in this ca.se
you have standing over above and far beyond every consideration
20 that the lo.ss of the pros()ective catch is the very thing which was
intended which was an element which did not exist in the
"Costa Rica Packet" case, and the fact that it does not exist
makes the case still stronger authority in our favor.

Tile facts on both sides of the case are .set out fully in our
reply, and I would like the Court to glance at them. At page
15 of the Appendix is the contention that the counsel for Great
Britain made :—

" It is submitted that the airest and removal of Captain
" Carpenter, whose presence and activity were necessary to the
30 " adventure, under the above circumstances put an end to the
" adventure and to the possibility of profit being obtained from
'' the adventure of the owners, master or crew. It was, therefore,
" in the circumstances, a necessary consequence (construing the
" word ' neeessar}' ' reasonably and with due regard to the nature
" of the case) to the arrest and tlie preventive detention of Mr.
" Carpenter, that the owners lost their outlay and hope of profit,
" and the loss on the .sale of the ship, and that the crew lost their
" hope of profit from the adventure."

" The damages claimed are therefore the necessary con-
40 " sequence of the wrongful act of the Netherland ofHcial.s in
"arresting Mr. Carpenter, and are not too remote, particulary as
" the Netherland authorities might reasonably have expected,
" and in fact were warned (as hereinbefore shown), that their
" conduct in arresting Captain Carpenter and dealing with him in
" the manner they did would probably occasion loss or damage
"siuiilar to that which was actually sustained and in respect of
" wliicii comfiensation is claimed."

There did exist in that case the fact that the parties were

warned. The contention of the other side is cited on page 16.

50 We reply upon that case as a direct authorit}' ; and an authority

of great weight in international disputes to show that damage

of this kind can bo recove'-jd.

I shall now refer to another authorit}' which my learned
friend does not seem to regard as entitled to any weight. Some
years ago a dispute arose between Great Britain mid the United
States with regard to what are called the Bay of Fortune
claims. The facts in the case are perfectly familiar to your
Honors. Somethi'ig like twenty United States fishermen went
to Bay of Fortune for the purpose of catching herring, and on
60 a Sunday went into a certain bay, threw some of their .seines and
began to catch herring. There were interfered with by the
natives of Newfoundland, who by their own law were not per-
mitted to fish on Sunday. A large number of these vessels
were prevented from seining, and after some trouble their

r ?

(Mr. Peters' Argument.)

clttims were fortnulateil and placed bef jre the Government oi
. Great Britain, and finally were compromised.

1 NJiall call attention to tlu'sc claims to show tiiuir nature.
The United States now arj^ue that prospective damage caii-
not be granted, but it ought to be remarked, that in every case
where their own interests arr" concornod, and where they were

10 what miglit be called plaintitls, you will find them claiming
that prospective damage should be granted, and accepting com-
pensatioti basL-d upon such claim, wlii're they can get it. Now,
how were the claims in the Bay of Fortune case made up ?

The (Commissioner on the part of the United States: — Where
is that case referred to in your argument ?
Mr. Peters :— At page 32, ,'};} and 34.

There are several of these cases set out. I wish now to call
attention to the actual claims themselves; —

111 our printed argument we only took two or three cases,

20 but when an actual reference is matle to the papers in all these
cases the point becomes strong. Furthermore, as I understand
my learned friend's answer, lie contends that these claims were
not claims for prospective profits, but that tlie herring, as a
matter of fact, wei'e caught in the seine and were reduced into
possession. 1 think a glance at the cases themselves will disprove
this contention. I find in the foreign and State papers for
l.SSO, Volume, 78, that the matter is fidi}' tcone into. The cases
are all the same, except one or two, whore herring were act\ially
in the seine ; and in these one or two cases a special particular

30 claim was nuide, but in all the other cases they make a claim of
loss of profit. Take the case of the schooner " Lizzie and Mary."
The claimants claimeil certain expe!is-es that they were put to,
and then make a claim for profits, compared with the previous
year's, and then they de<luct certain returns of merchandise, etc.
So in the case of the " Edward E. Webster." The claim is made
up in the following way: The preceding trip netted fifty-four
hundred dollars ; the expenses were twenty-five hundred dollars,
leaving a profit of twenty-nine hundred dollars, which they
accordingl}' claimeil. The case of the " William E. MacDonald "

40 is made up in the same way : a claim being made for the probable
profit calculated on the voyage of the preceding year. So with
the schooners " Grace," and " Smith," and " Hereward," and other
claims. I need not read them, but thcj" all go upon the same
basis, except in one or two instances where they make up a
claim in a verj- special manner. Take the case of the '' Maud B.
Wetheiall," page 19. This vessel was capable of carrying twelve
hundred barrels, and she was able to obtain only eight hundred.
The actual expenses incurred were §20.18, and a claim is made
on the basis of prospective profits, it being (juite apparent that

50 she calculated that the chances were that she would have got a
full cargo. Now here was a case where the United States
was making a claim upon Great Britain for what? "For
compensation." Why ? Because certain of her fisheries had
been prevented from carrying on their lawful occupation, not by
Great Britain, or by the revernie cutters of Great Britain, but by
what is described in some places as a " mob," and at all event.s
by private individuals. The case is similiar to our own case in
this way, that in both cases the intention was to prevent men
carrying on the fisherj% antl in both cases the intention was

CO successfully carrieil out. It must be assumed that the claim was
propel ly audited by the United States, and if the claim had
been properlj- audited, tlie United States were claiming to he
paid an item of damage which they now say never could be
claimed, accordinir to the rules of International law. If it was

ernment of

r nature,
lainatre caii-
i every case
e they were
•in claiming
epliny coni-
>t it. Now,
le up ?
,es: — Wlieic

now to call

three cases,
in nil these
nnder.stanil
claims were
errinj;, as a
•educed into
,vili disprove
papers for
The cases
'ere actually
il particular
;e a claim of
i and Mary."
were put to,
the previous
:liandise, etc.
hvim is made
L'd til'ty-four
divd dollars,
which they
MacDonald "
the probable
r. So with
and other
)n the same
make up a
le '• Maud B.
ryin^ twelve
i»ht hundred,
aim is mai'e
jparent tliat
1 have ^ot a
nited States
hat ? " For
isheries had
ation, not by
•itain, hut by
,t al! events
own case in
prevent men
itention was
he claim was
e claim had
liming to lie
ver could be
If il was

(Mr. Peters' Arf,'ument.)

rifj;ht for them to make that claim in 1887 or 1888, is it not
right for us to make a similar claim now, or does my learned
friends say that, the United States not oidy made but obtained
payment of a claim which could not bo made or obtained under-
the International law. That is the position in which my learned
friend puts himself in his present contention. How does he

10 answer tliat ? The total claim made in the " Bay of Fortune"
case was 810.").000. The matter went on for a considerable time
in the way of diplomatic ct)rrespondence, and it was finally
couipronused and an amount paid which was between seventy-
five and eii,dity thousand dollars, or about two-thirds of the whole
claim ; and as a ycry lari,'e portion of the whole claim consisteil
of a claim for prospective profits, it is jierfectly plain that the
United States not only asked, but obtained i)ayment of a large
claim for prospective profits. In the face of that, how can they
now argue tliat it is improper for one nation to claim from

20 another, on behalf of subj' is whom they are protecting, that
prospective! profits should I e paid ?

My learned friend's answer to this point is found at page IIS
of the argument of the (Tnited States' counsel : —

" There are .some unfortunate omission in the statement of
" facts in this citation which will be supplied. The claim was
"for §120,000 — while as stated— ' there were but four ve.sscls
" out of the fleet of twetity-two actually fi>hing' — it appeared
" that those four vessels were handling the seini's in ■ liehalf of,
"and for the benefit of the entire fleet of twenty-two."

DO It further appeared, anil was proved uncontestably that in

the seines at the time of the tort ami therefore in possession,
there were sufficient fish to give a full cargo to every one of the
•22 vessels, and that by the act of the tort fea.sois the property
in fish so actually at the timi? in possession of the Heet was lost
to them. The claim, therefore, was not for- prospective jtrofits —
but for property actually t ken from the fleet. There was no
agreement or decision gis.ng estimated profits, or average
profits, or prospective catch, or prohaljle catch. The result was
the payment of §75,000 on the claim thus made for §120,000.

40 'i'his authority is adverse to the British conl-ntion. There was
absolute certaint}' as to amount on the e\idence. Of course
none of the vessels were lost to the owners. The statemei't in
the Uritisli argument as compareil with the record of the cases
appearing in Vol. 72 British State papers, 1880, 1881, particu-
larly at pages 1282, 1289, 1307, and with the following quoted
from that record : —

" The evidence in this case shows that the catch which the
" United States fishing fleet on this occasion actually realized
" was exceptionallj' large, and would have supplied protitai)le

'){) " cargoes for all of them " (page 128!).)

Now, I look at these claims, and I find at pages 22 and 23
of these claims in Stat(> Papers, a couple of claims put iri f;)r
vessels catching herring which they had actually in their seines.
What ilo they amount to ?

Ill tlie case of the .schooner " New England," they put in a
claim of two thousand pounds, which eviderrtly must have been
intended for barrels, two thousand dodars ; and in the case of
the next vessel metioned, a similar claim is made.

Mr. Dickinson ; — There appear to liave been two vessels

CO outsid(? of the twenty-four — which also had seines, and their own
nets outside, in addition to the full nets in the four.

Mr-. Peters; — I can only read the claims as they were put irr.
There were oidy two claims put in where it was alleged
that they actually had herring in their seines. The othci-i

! ill

(Mr. Peters' Ai^'Uiiient.)

Hi'i' all put. ill (III tli(> ;rt()iii)il of fstiiiiateil catch, and eHtiiiiatud
pro'it.

Ml. Dickinson :- It should ho stated in that connection that
the net ol' violi'nco destroyeil the iiots, and thu Hsh in tho m-ts
c'scnpiMl.

Sir. Pi'ti'is : — Thcro is no iloulit that is tlm case, with regard

10 to soini' of tlu'iii, tint I am jinttin^j tlin clniiiis as they were
Hctiiully prefi'ircd, ami I ictVr to the chiinis of the vessels whieh
(lid not have liny Hsh. There were oiil_v two cases where Hsh
were tictiially in the .seines, and all the other claims were for fish
ihiit they would have can^dit.. 'i'liey have to stand hytherlaiiim
as they put them in, and they have put them in, in the very
wiinis iiM'il liy themselves — " jiroHts ciimpared with previous
years"- or the "profit, calculated upon the voyaj^es of previous
years." In these cases it is not aile^ecl that there were many
herriiiy;s in the scenes, hut simply " that they would havecauf^lit

20 a full cai;;o if they had heen let alone." Therefore I contend
that We have, as a^'ainst tlu! (ieneva case, first the "Costa llica "
case, a distinct, authority lioldinit we are eiilitleil to recover for
piiispective catch ; and in the Itay of Fortune case, an instance
wheie the I'niled Slates claiine.l, and successfnlly pressed the
claim, for prospective profits The result of the elaiiiis hein^f the
payment of a lari,'e amount, which sum was doulilless paid under
the very heading of prospi'ctive catch. Now, while ! am refer-
lii)!,' to the liay of I'"ortiine claims, I would like also to mentinn
a matter which co s up also indiiectly. and I will mention it

30 now in order to closi' my reference to tht' Buy of Fortune claims,
It will lie fiiun<l in the former part <;i my liained friuml's arj^'U-
nieiit. At lia;,'e ■i of his arj,'ument he refers to our reference to
the Hay of Foitune elailns us follows: —

" In the hiiy of i""orlune claims, leferii'd to in the Hrifish
" iirief. Ml. Kvarts sulimitted to (ireat ISiitaiii the claims of the
" Ihiiteil States for attacks upon and damatjes to '2'2 vessels
" under the American thi),' on Au^rust 1st, 1.S7!». He received a
"reply from (ireat Britain on April .'hd, I.S80.— ' Foreii,'n Kela-
•• lions,' (Jreat Hritaiii, ISHO, vol. 72 (pa;,'e 1277 et secj.)

40 At this point of his aiMjuinent my learned friend was on

another point, in contendini,' that in the present case there had
been no delay.

.Ml. Dickinson ; — No culpalile delay.

Mr. Peters: — My learned friend did not use the word
"culpalile." My learned friend, in eH'ect, said: "You cannot
plead there was delay, liecause, in every case of inteinatiooal
dispute, delays have occurred and must occur in tlie natural
course of affairs." And, in order to prove that, lie refers to the
very case we are now considering,' — the I5ay of Fortune case;

50 and he slates that that dispute aiosi? in lH7!t, and that claims
were sulmiitted in 1IS7!); and that no reply was c^iveii until
April, IH.SO. We answered that point, ainl we showed, as a
matter of fact, tlic^ reason for that delay ; and we showed that
the arj,'ument that my learned friend attempts to make there,
is one that he cannot successfully make

At pa^re 1 of our reply we tiay : " It is claimed that the
Fortune Bay case of claims were submitted in Aui,'ust, IS7f),'
whereas, the reply from (ireat Hntain was on the Srd day of
April, 1.S80. In point of fact, as the record in that case shows,
(iO oh the inth of March, l,S7H, the United States representative in
London broujrht the matter to 'he attention of Her Majesty's
Government for the Hrst time, with a recpiest to cause investi;,'a-
tion to be i.'iade into the all(!(»ed facts of the case, intimating at
the same tii.ie that uiller inforni.ition would be transmitted.

(Mr. Peters' Aigiiment.)

On tlin 2.'{ril Aiij{ust, Lord Siilisljmy forwanl'il ii tin- (TnitoJ
Strttcs itinro-toiitative (vrt'iiort of tliti naval ottieiT vlio had hern
fiitnisteii witli tlio duty of iMstiluliii^,' on»iniry int( tln' iimttor
on tlm spot. T\u' (Tniti'd Stiitfs Hcfit-tiirj' of State, mi tli" 2Mtli
Scptfuiln'r, 1H7M, sent a dt^splltt•l1 (!i>nniiriitiri;; on tld.H riiport,
wldcli was coninjiinicatcd liy 'Aw. United State.s Minister to liOi<)
10 Sulisluiry on tiie 12tli Oftolier, an<l nnswered hy Lord SaliHluiiy
on tile 7tli Novendier. 'I'lie de.spateli of 1st Au^jnst, 1 871),
referrerj to in tlie opposing' iir^'iiinent. was roniniiinicated to
liord Salislmry on the I'Hh of that month. This dt(s|)atch was
a len;,'thy review of the ipiestioii involved, and it refernMl to a
roinnninieation of the lith Fehniary, I MHO, which e.xplained
the ren.soiis " why a certain time has iinavoidahly cdapsed."

I simply refer to this point now, hecaiisi' I do not wi.sli to
come hack aLfain to the Fortune Hay case at all. There is a lonj^
correspondence, and Ion;,' dispute with rei,'anl to lluit mattiM'. I

20 do not think that it will lie lu^cessary for mi^ to draw your
attention to any other part of it — that which I have read.
There is another (piestion, which comes up in this connection.
My learned friend makes this statement, and to a ;L,'ieat I'Xtent I
Hi;ree with him — " that we are hound hy the iiiles of Interna-
tional law, and that you are to he hound by those rules in
settling' compensation." Hut he contemis that Municipal
decisions really have no weijfht at all, exc(>pt where they are
taken a;,'ainst the nation of the court which decides them.
Now, I say, that there are many cases win re Municipal

30 decisions, and decisions of civil courts should he looke(l at, —
especially where the law in these Municipal courts does not
diiler in th(! two cotintries. If, for instance, tlie law upon the
(|Ui'sti()n of com|)ensation is one way in the United States and
another way in Cireat iiritain. and a disputi- arises hetween the
two nations, it is apparent that the Municipal decisions of
neither party co\ild hav(! any heaiin^', liecause they hein<j
opposed. You cannot jjet them to a<,n'ee, and you must appeal to
to the rules of International law. Hut, in the absence of
' direct authority in International law, anil where tin; leyal

40 decisions of both countries ayree, I submit that you have the
rij,dit to refer to these decisions. Let me refer to u very old case
decided by an eminent jud^e. Lord Kenyon, to establish a prin-
ciple in dispute here. My learned friend says that you cannot
recover any dan)ae;e for prospecsive profits, as the claim is too
remote. But take the case of Tarlcton v. McCawley, Peak's
Nisi Prius, pa;,'e !270. I would not citt; a iiini prius case here
uidess it were a Jiidi,'ment of such an emiruuit jud^'e as Lord
Kenyon. We have referreil to it in our argument at pa^e 3L
That case brings up the very point we are at issue upon in t'lis

50 case. The facts of the case are very short. The owner ot' a
ship was tradini; on some p.irt of the coast of Afiica. Anoth'f
owner of another ship did not wish him to t!a<le upon that
coast, and in order to prevent him he took a certain step, and
this was the step. A canoe full of natives was cominij; out from
the shore, not in any way connected with the plainliti' in the
.suit, that canoe full of native.s was cominj; out from the shore
for the purpose of tradinff with the plaintitt', and whilst on their
way out from the shore, the othei' ship fired upon the natives
with cannon and killed several of them, and thus prevented

GO them from carrying on trade with the plaintiff. It was apparent
under tlds state of facts that there was no direct cause of
action by the plaintiff, who was prevented from trailing against
the man who had fired the shot, not at him, but at some other
person. Nevertheless, an action was brought, and the action

^!- \ ■

(Mr. Peters' Arjjmnent.)

alleged tlmt this was dont! by the (lefemlant for the purpose of
prcvontinij the. piaintitl' carryinij dii his husiness. I will road so
much of the (loclarntioii as is lu-ci'ssury to show the exact cause
of action.

"The declaration charjjed the defendant contrivirifj and
" nialieiously intentlinjj to hinder and deter certain natives from

10 " tradinij; with the plaintiff's ship, with forcn and arms, tired
"from a certain other ship at a canoe tilled with natives and
" kifled one, whendiy the saiil natives of the snid coast were
"deterred and hindei'ed from tradiiii,' with the plaintiff 's ship
"and the plaintifl" lost their trade."

Xi)w, in fhat particular case what was the cause of action?
It was not the firiiiif, liecause that did not injure the plaintiff.
It was not the ir.jui'y the deftndunt did to the natives, hecause
that did not injure the plaintifl', but it was the fact that the act
was cloue liy the plaintifl with the intention of preventinii;

20 those natives from trailini; with the plaintiff That it was <lono
with that intention and that the intention was successful and
the trade prevented that j^'iive the plaintiff the cause of action.
What was the tfist of the eau-<(! of action ? The i.jist of the
action was that the plaintiff had been prevented from carryiu}^
on the trade, and apparently from makin<; certain profits, this,
acpordini^ to my friend's contention never could be the basis of
any (ianiMLies whatever beeaU'<e the jirotits were so tuicertain.
How ccuilcl the plaintiff tell to wluit extent these luitives would
have traded with him, if ihev had come to his ship f How

30 could be have told whether if tbr\' eamt' to his slii|) he would
have made a profitable or an unp)'ofitalile trade? All these
thinus bavi- a certain amount of uncertainty and a certain
amount of doubt ; but Lord Kenyonsays;

" This action is broUL;bt by the plaintiffs to recover a satis-
" faction for a civil injury which they have sustained. The
"injury complained nf is, that by the improper- conduct of the
" defendant the natives were prevented from tradirii; with the
" plaintiffs. The whole of the case is stated on t\w. record, and,
" if the ])arties desir'e it, the opinion of the court may hereafter

40 " be taken whether it will sujjport an action. I am of opinion
" it will, 'i'he case has been likene(l to cases which it iloes not
"at all reseirrble. It has been said that a person en;,'afjeil in a
" trade violatin<:f the law of the country cannot suppoitan action
" ajjainst anofhet for hiirderinf» him in that illei,'al ttaflic. That
" I etrtirely accede to, but it iloes not apply to this case. This is
" foreijfu law ; the act of trading,' is irot itself imtru)ral, and a
"_;i(.s 2)<'.s(7/(n/»((. is not binding' on fcu'eirjners. The kinj^ of the
"county, aird not the defeinlanf, shinild have executed that
" law. Had this been nr. accidental thin;; lu) action could have

50 " been maintained, but it. is proird tlmt the defendant Ixul
" cxjursned av intention not to permit ani/ to trade until a debt
" due from the mttiven to hiviself va" satit/led. If theri^ was
"any court in that country to which he could have appliecl for
"justice, he mij;ht have done -^o, but he had no riLjht to take the
" law in his own hands. "

Ther.' in that old ciise iiord Kenyon draws a distitrction. He
says that if this shooting; bad been accidental — just as iti the
case of a collision which is accideirtal — ^lu) action would have
lain. Hut it was proven that this aetien was clone by the

GO <li'fi'irilairt with the intentiort A' preventirrjf any person tiadiiifX
with the natives for a eertaiti lirrre, and that beirijj the case it
j,'ave a siaind basis for an actiorr aj,'ainst the ilefi'tidant.

It was the intentional part of the act of the defendant that
^ave the cause of actiorr to the plaiittiff

X-.'

ctioii. Ho
lis ill tlie
)iil(l liavo
.' hy tlu"
III tiiidiii!:;
no e&!^ti it

(Mf. Peters' Argument.)

Mr. DiciiiiiKon :— It cnino np on (ieinurrer in Uie case.
Mr. Peters:— Yes.

Mr. Dickiiisnii : — Tliiit question came up cm (ieinurrer in tlu;
case tlecided liy Ijoni Kenyoii, and wns referretl, mid there is no
evidence of wlmfc tlie daii nge awarded was.

Mr. Peters: — My poini is this, that tliat action could not bo

10 maintained at all unless daniaije, which in itself was a sntficient
dnmaife, was piopeily alleged, the damage was the gist of tiie
action and that if it lu; true that you cannot recover for protits
liecause they are uncertain, tlu? allegation of the loss of future
profits in the case decided by Lord Kenyon would liave been
uncertain and tlie declaration would liave been defective. Hut
Jjord Kenyon was of o|iinion that because the injury was inten-
tional that it was a good allegation of daninge. I will presently
show your honors that there ar(^ otlier cases which support that
sMiie ilistinction.

20 The Couiirissioner on the part of the United States: — My

leaTiied assov ,ite and myself, both understand that we will sit
four hours to-nioriow, Saturday, the same as on otlier days of
the week.

At ■t.40 p. III. the C'oiiimi.ssioners ro.se.

Commissioners under the Convention of February 8th,

1896, between Great Britain and the United

States of America-

Leirislativi' ConiR-il Clminber of tlif Prnviiipial Piiililiii<i;,

At Halifax, N. S., Am^nist 2,stli, lSi)7.

At 11 A. M. till' ('oMiiiii.ssiiMii'rs took 1 heir seats.

Mr. IVtors : — Yoiif Honors, bcfoie pi( cfCilinji; with lln^ line of
arHiiiiiont that I was pursuiiiL,' yesti'fday wlien tlio court
acljourncil, 1 wish to adil one or two ri'iniii<s with rejiard to the
Hay of Fortune cases, witli reference to liie point taken by my
leartieil friend in his iirief ; tiiat the United Stutes scliooners
had actiialiy encioseil in their seines sutlicient iierrinj,' to h'ad all
their vessels at the time they were inteil'eied with. 1 diiiw your
honors' attention ton h'tter written hy Mi. I"]varts to Mr. Welsh,

SO who was then the Minister of the linited States in liOndon,
dated the 1st Aujfust. ISTil. which will i found in the State
Papers, \dliime 7)S, pajj;e 1, in if. Mr. Ev i- :. ■ 'e.s a statement of
the whole tiansiiction from his jioint (;f \ it .v. in one |i:irt of
that statement, at pa^e 4, he savs : " After a carefid comparison
of all the de|iositions furnished to both j^overnmenls, the (Tnited
States is of opinion that the followini; facts will not lie disputeil :
" Twent_v-two vessels lielonyiinjf to citizens of the [Jnited States
(he ;;i\es tlieir names) went fi'om (iloucester, Massachusetts, to
Fortune Pay, Newfoiindhind, in the winter of l.S7<S foi- the pur-

40 pose of proeui'iiiL; herriiii;." He then makes other statements
that they had waited for aceitain time — statements which it is
not necessary to read, and he continues, " that on Sunday, Janu-
ary Otli, the hcrrinij entered the bay in ;,'reat nnndiers, and that
four vessels sent their boats with seines to commence tishinjjr
operations and the (ieet were proceeditii,' to follow." Tliend'ore,
your honors, in-.tiail of havim; completed their tishin;,' operations,
and liaviii;; alieady enclo--ed in their seines sutlicient heniiii,' to
load all lh(' vessels, the statement ot fact made in the most formal
manner by .Mr. i'Aarts w, " that some of iheir Imats had bei^iin

.')() their seining- o|ieialions and the otheis were proceedin:.; to
foliow. " Tlieii Mr. I']varts ;,'oes on to slate that the parties then
seiniiiif were coni|)eHed by a liir^'c and violent mob of the inhabi-
tants of Newfoundland to take up their seines, dischari,'e the tish
already enclosed and aliandon their lishery, and in one case at
least, the s<'ine was destroyed." Kiirther on he states, that these
seines were beini; used in the interests of all the I nitcd States
ves.sc'ls wiiitinj,' for carj,'oes in the iiarbour, and that the catch
undistiirbiMl Would have been surticicnt to load all of them with
protitable carmies."

00 1 call your Honor's attention to the words " the catch undis-

turbed." 'i'he eatch h,id not been made, init it they Wire
uiidistuibcd in makiiii; it a jfieat (piaiitity of the tish would
lia\e been taken. All this is contrary to the idea put forward
in my leurnud friend's brief, that, as a matte- of fact, when thi.s

jruary 8th,
lited

'.iiililiiifi;,
, 2Sth, 1S!)7.

li till' liiR' of
tlin court

'Jjlllll to tlu!

vUi'.ii by mv
>,s .scliooilers
n to load all
1 iliiiw xom-
ii Mr. WVlsli,

in Lomlon,
n tlio 8tato
^tuti'iiicnt, of
Dill- iKirt iif

c'oinparisori
, tli(> fTiiitcil
lie (liNimtcil :
liitcil States
It'll usi'tts, to
for tlu^ jiiir-
r stati'iiii'iits

wliicli it is
unlay, .laiiu-
:'rs, anil that
tMici' tisliiiii;
'I'lii'rct'orc,
1^ opi'iaiioii-:,
it lu'i-iiti,' to
most furiiial
1 hail lii';4Uii
■occi'iliii;,' 111
parties tlu'u
f tilt! iiiliiilii-
ar;;(' tin' tish
I one. case at
's, that these
iiiteil States
at till! catch
f tiu'Mi with

catch uinlis-
they Were
■ tish woiilil
)Mit forwaiil
•A, when this

(Mr. Peters' Ar;;ument.)

(listnrhance did take phico they l>ad actually enclosed the tish.
Such was not the case, Tlieii njiain Mr. Kvarts says : " None of
" tlie United States vessels made any further attempt to tisli, hut
" tiireo <ir four which were in the neijj;lihoiirhood purchased
"some siuall supplies of herrin<jf." All the United States affi-
davits show that the iMiited States vessels were afraid ton.se

10 their seines, and that after this they left for home, miist of them
ciiiiiini,' home in hallast. I wish tii call your HotKir's attention
to this statement, to show that whereas a certain (iiiaiitit}- of
herring had hceii enclosed in the seines, at the same time tlie
real fomplaint was that they were prevented from carryirifj on
their seiniii;; operations. The same poin. is made more clear by
lookiiii^ at some of the ai1iii<.vits used in the case.

Mr Dickinson: — In th" same communicatiiui you will find
the summiii!.;' U{) of all the evidence: "The evidence in this
•' case shows that the catch the Unitei States tishiiiLf th^et liad

20 " on this occasir.n actually realized was exceptinnally lai^^'e, and
"could have supplied prolitahle carjjnes .'or all of the vessels."

.Mr-. Peters: — That is provided tliey 'iH're not disturbed. We
must take that statement in connectioM witli tlie statement here-
tofore made. And to put that matttir beyonil all donbt. let iiu;
refer to the very (daiiiis [uit in and to the- atlidavits on which
they are based. I have heie in one ease the atiiilavit upon wiiich
the claim is based. It ap])ears at pane '21 of this same doeu-
nieiit, and is the iitlidasit of one Peter Smith, who was the mas-
ter of an American schooner called the "('harles ( '. Wairen."

',]{) 'J'liis is his atiidavit:

" Oti the morriiiii;- of the (!th .ranuiiry, heitinj;- made tlieir
" ap[)earance in close jiroxiiiiity to the shore, in yicat abiiiiilaii'_'e.
' I was provided with two seines with which to take hei rinij,
"and should have loaded my ves.sel and others on that day. I
'had my seine in the boat. 1 was pre|)arin;.f to use it wlien an
'attack was muilc on the oth"r American seines and I saw them
"destroyed, i found that a nioti of '200 or- DOlt ISritish men were
"determined to ilestroy every seine in the water. "

The claim this man makes is that he wiis ready with his seines,

40 iHid had he been allowed to use them, would have yiit many
herriui;, but the moli prevented hiii! from usinij; them; and that is
his claim. 1 do not think that my eiiined friend, .Mi'. Dickinson,
should lake a simple statement made by Mr. Ev.irts and say
that ihat is the coiiclusion that was readied in the case. He
should lake the wholi- matter- fr-oiii the be^innine; to tiie end,
paiiicularly the piii I where .Mr. Kvarts cites the details and says :
" these are facts which will not be disputed. " .My learned friend
should take the whole thitiL;- in connection with the actual claims.
I have already pointed out the distinction between th' survey of

'){) the claims, where in some cases they were put for the loss of
catch and in the other cases for the .ictual heriin;; that were
enclosed at the time the seizin es took jdace. So far with le^aid
to that matter.

I wish also to make a few remaiks with reifjiid to the case of
the " Canada," so as to point out more clearly than perhaps I
did yesterday, the distinction that exists between that ease luid
the present. The distinction is, that in tlie jiresent ca.ses (iiere
w as an intention to |)ievent us carrying,' on a lei^itimale Imsiness,
and in the "Canada" case tliere was not only tiie lack of

(iO evidence of any such intention, hut there was also a circumstance
in rhe case which showed positively that no such intention
existed, but that the seizui'e in that case was nuide with a very
dillei-ent oliject J lefer your Honors to the aw'iird of Sir
Edward Thornton, wliicli 1 read yesterday, and particularly to

'il'!^

(Mr. Poters' Arj^urnent.)

tlie part of it wliich is to be foutifl at paije 2()G of tliis volume of
the British ami B'oreign State papers, to which I did not call
your Honors' attention yesterday: —

•' It is possible that the officer th(m;^ht the ship woiiM run the
" risk of sinkinij; in deep water, and, in the interest of the
" Brazilian Customs, deemed it his duty to avoid exposini; it to

10 " such dani^er ; but he cerlaitdy exceedeil what was reipured of
" him, for on board his own ship the captain is responsible for
" its nnvisi;ation and safety, and siiould be supreme."

He points out in that sentence that the reason ailei^ed by the
Brazdian oflicers for making; the seizure is a reason which
excludes th(> idea that the}- had any intention of prevontiny him
carrying on his business. It was a reason connected with the
supposed duty or I'iLjht they had to ])rotect that vessel from
beiiiL; taken off in perhaps a leaky condition into deep water
where she would be lost, so that they inifjht protect their own

20 customs. That mie sentence makes clear the distinction be-
tween the case of the "Canada"' and the cases we are now
eonsiderinj,', more so than perhaps any other part of the
award.

Now, after having' made these few remarks with rcifard to
the cases that I have mentioned. I propose to call your Honors'
attention a little more in detail to some of the arguments which
we have advanceil in our main argument, on the (piestiou of the
loss of the catch. In the first place, at page 25 of our argument,
a nd'erence is made to the argument of Mr. Blod;,'ett befori' the

30 Paris tribuiud. That argument, as your Honors will lemi'udier.
was a printed argument, and puts forward his views upon this
point. He relied to a very great extent upon the Geneva cases.
It should be noted on this point that Mr. Blodgett was put
forward by the T^uiteil States as the coiuisel, wdiose special duty
it was to deal with thecjuestion of dauuiges. Apparently in that
argument, one (counsel made himself I'espotisible for one l)ranch
of tlie case, and another counsel made himself responsible for
another branch of the case ; and with regard to the (juestion of
damages, Mr. Blodgett seems to be entirely responsible ft)r the

40 line taken b)- the United States. This point I think should be
considered in this connection.

The line that the Ameiican counsel took then, is the line
that they nnist stand by now. They deliberately took a certain
course at that time, ami we propose to show that there are
reasons vvhy the line that they then took cannot be sustained.
I have dealt with this nuitter at the bottom of page 25 of the
Argument, and at the beginning of page 20. I have ventured to
state that the claim of tlu; IJniteii States at the present time,
and now put for\var<l, can be reduced ml (ibsarduDL I direct

50 your Honors' attention to this statement: —

"The argument against giving damages for tlu prospective
"catch is capable of being reduced <ul (ihnardu.n. 'I'ake the
" casi' of n, vessel found on sealing grounds with every appliance
" for catching seals ; the seals are there to be caught; it must be
"an incoirect profiositiou to assert that the person who illegally
"prevents the ship's erew from catching seals should not pay
" damages

" The United States have contends 1 that the tribunal slmuM
" yive o?dy the valui; of the ship am (Miinpinent, and pos^ilily

(JO " interest on that value. Assume then a case ipiite p()s-,ible
" where a United .Stales sinp illegally takes charge of a sealer,
" tows her to n safe harbor, and ihire kee|)s her without injury
" until the sealing season is over. According to the atgumeiit
" put forward no damnges for loss of catch could be reeovereil

*
*

volume of
1 not ptiU

111 rnii tho
est of the
psiriij it to
i><|nirt'(l of
)Tisilile for

jfeil liy tlie
son whieli
jiitiny; him
I Willi the
esse! fiom
t't.'p wilier
their own
iietioii he-
e are now
rt of the

ie<j;ar(i to
ur Honors'
■Ills whie.h
tion of the
• iir^niineiit ,
liefori' the
lemeuiiier.
! ii[)on this
[leva cjisfs.
t was put
peeial thity
iitly in that
me l)ranch
onsihle for
]uestion of
lile for tlie

shoniil be

is tho line

a certain

there aie

sustained.

25 of the

centure<l to

esent time,

I direct

prospective
Pake the
y appliance

it must lie
ho illegally

hi not pay

iiial slidiiM

id lios^ilily

tc pos-ilile
if a sealer,
unit injuiy
ai i^iiiiuni
e recovi'red

(Mr. Peters' At|rument.)

" because it may be uncertain how many .seals the vessel would
"have Cftuj,'lit during' the period of detention."

1 shall ]K)int out a little later on the distinction which my
leained friend lakes l)etween cases where there lias been an
actual .-eiziiro of the vessel, and cases where there has been
simply a \varnin;(. My learned friend, Mr. Dickinson, in hi.« aif^ti-
10 meiit states, that in cases where the ship is actu.ally taken, you can
<,'et no compensation for prospective catch. He says that th(>ie
is a diH'eretice between these cases anil the cases of vessels
warned, fie savs, tlirt even in the cases of wnrnini; you can-
not 1,'et prospective ca ch, but you can |,'et damaiji . in the iiiitun,'
of demurrage, or damaifes in some way calciiluted upon that
basis; hiyh or low aceordinjr to the circumstances of the case.
But, if I am correct in the proposition that we are arjruinj:; for
now, namely, that we are entitled to damai,'i's for this prospective
catch, the diti'i'ieiice in the casi^ of a vessel that is seiztii and tlie
"20 case of a vesscd that is warned ahsoluti-ly disappears, because
the loss of catch would bi; the same in both cases and no
ditl'eiiMice could i'xist At pai,'e '2G of our argument we setfoiih
the followiii;^ in continuation of the last extract which i have
lead : —

" This proposition is laiil down by Mr. Blodj,'ett, but lu^ nfter-
" wards conCiites it by saying: — While it is conceded that there
" has been some relaxation of the rii,dd ruh- of the early ciises
" in Kiii^laiiil and the f^nited .States, in regard to the allowance
'■ of profits as an element for the award of damages or com-
:{() " peiisation, it is undoubtedly still the rule in both countries, that
" profits can onlj- be allowed as damages wheie they are in the
" contemplation of the parties, in cases arising on contract, and
" where they are tin; necessary ami piciximate result of the
" injury in cases of tort, and in those latter cases only where
" they can be proven or estalilished with substantial certainty."

'i'liat is ^lr. BIddgelt's statement i>\ that statement he
admits that the old lule with regard to not allowing any allow-
atices for profits has to a certain extent been relaxed. And he
says fiirtlier : —
40 " I'rofits can only be allowed as damage where they are in

" the contemplation of the parties, in cases arising on contract,
"and where they are the necessary and a]ipi(iximati> result of
" the injury in cases of tort, and in those latter cases oidy where
" they can be proved and established with substantial certainty."

If 1 am right in the point I iiave already taken, namely
that the damage which was actually intended must always be
looked upon as proximate, then his jiroposition and ours would
agree.

I now propose to call your attentimi to eer'ain statements by
50 some of the text writers upon this matter. I do not intend to
read all we have set forth in our brief, but I iirojiose to call your
attention to one or twn of the most .salient points that the para-
giaphs there set out contain. In the fiist placi; you have the
citation of •• Sedgwick on Damages," where he says :

" Com|K-nsation may be recovered for such proximate los-.es
"as are also the natural result of the wrongful act either in the
" nature of things, or in the light of special circumstances of
" which the wroiig-doi^r had notice."

1 dntw ;«ttention especially to the words 'in the light of
CO special circumstances of which the wrong-doer had notice"
The giMieral rule, as my learned friend contends f(ir. is like
e^ I ry other general rule, subject to exceptions ; and the viuy
!iist general statement made by Sedgwick is: ' or in the light
of spi'cial circumstances of which the wrong-doer had notice."

(Mr. Petuis' Ari^uiiient.)

In the pivseiit ease Ijcforo us we have the fact that tliese vessels
were out at sea in a place where seals were plentiful, anil where
they coiilil catch seals; ami we have also the fact set forth
plainly that the seizure was made, for the purpose of preventinjij
them eatchinj,' seals. Are not these .special circumstances which
must lie consiilered in a ipiestion of this kiml ? Sed^'wick (,'oes

10 on to state: "In order to be compensateil a consecpiential injury
"must he such a result of this injury, as. aceordini; to coininon
" e.\perieiice i.i.j the usual course of events, mij^ht reasnnalily
" have Keen ( nticipateil."

All that c,)m[ili(!s with (he tacts in this cise. .Attain, as set
foilli in our 'irief, Sedmvick cjiiotes from an authority, which
my learned frieinl, Mr. Dickinson, will nodoulit consider of very
i^rent weight. He qunres from the Supreme Court of Miphi<ran,
and says this : —

" Al'solute certainty is not retjuired. The Hue lule mi the

2t " suhji'ct is annoiMiced hy the Supreuii.' tlmir. of Michii^an in a
" well-reasiitied case .Shall the injiired pnitv .... he allowed
"to recover no dan iires (or merely nominal) liecaiise he cannot
" shnw tlu! exact ai lonnt with certainty, fli()Ui,di he is read\' to
" shnw lo tlie sati' action of the jUiy, that he has suH'ered ]ar<,'e
" damaj^es liy the injuiy ? Ortainty. it is true, would he thus

" attained ; lint it wotdd lie the certainly of injustice

" Juiies au> allciwed to act upon proiialiie and infentntial, as
" well as direct and pnsitive proof. And when, from the nature
" of the case, the amount of the dama^fes caiuiot he estimated

30 " with certainty, or oidy a part of them can he so estimated, we
" can see no ohjectioii to piacinj^ hefore tl." jury all the facts and
" circumstances of the ease havinii;any tendency to show damae;es,
"or lluir piohalile amount, so as to enalile ihem to make the
" most inteliiuilile aiiH prohahle estimate which the nature of the
" ca.^e will |iermit. In Sali'liivrll \. Willidoin, Pliidps, J., said
" that it was no olijeelion tiiat the defemiant could ( idy sfaLe his
" ilaimii,'!' appro.ximately, thou<jh it would ho to sh )W that his
" evidence was so vajrue and uncertain, that the court could not
' deduce from it liiat the defendant had sustained anj- particular

♦0 " amount of dainaij;e." " The chief ditheulty experienced is in
" cases of pmsiieetive loss "

That is, where damaffes have not hap|H'iic(l, hut ai-e antiei-
j)ateil. Siippose a man is injured in a railway accident to day,
and he says that tin- etlects of the injury is ;joini^ to la^t for t"n
years, or forliis life, and he (?!aimsprosp. ctiv(; damai^es for what
he is here.ifler to sutler, of cour.se there would come in another
element of difficulty, hut the tact that that element of ditfienlty
comes in. has never yet prevented jirdifcs from charnim,' juries,
thai the jury was entitled to compensate the' person who was

'■>() injured for injiii-ies he rtuilly did not suH'er at that time, hut
wliich he was uoiiii,' to suffer in the future The stron<fest case
on that point is I'/dlHii.-- v. T/n: Great North- \V<'i'f<'i-n littUnKiji
('(iiniiii II I/, where a lar;4;e amount of moire\' was i_riveti for' dam-
a;,'es siisiaitii'd hy a cehhrated doctor in a railway accident,

The ( 'ommissioner on the part of the rnited States: — lie
soon after recovered and went on practicino Ins profession.

.Mr. I'ettus: — Vis; hut that is one (»f the leadin;f cases on
the |)oint of ohlainiui,' damaif(!s for somethin;,' that is to happen.
A fjood many of the authorities that are cited here relate to that.

(1(1 I cannot help poiiitiu;; out, that, with le^^aitl to that class of
darna;.':es, you have anothei' (dement of uncertainty winch does
not at all exi-,t in th ■ eases now hefore us. In the present cases
we can take a i'etio|iix'tive view atrd look at the seasotis of l.Sliti,
1H1S7, ISS.Sand Issil. We can lind out what did happen, and

(Mr. Peters' Argument.)

wo are not all in the dark as to what would happen. It' such a
thing were possible as to bring 'his aetion liefore tlie close of one
of these seasons, even tlien tlu re woidd he nothing to stop you
from giving damages as to tli(.' future ; hut you would, in such a
case, hav" an element of uncer ainty nhich does not e.xist here,
iieeiuise you know now what did happen in succeediTig years.
10 We know now what happi'Mi'd in the Beliring Sea in these years.
We know from the evidence whether the fishing was a failure or
whether it was a success, iind the element of uncertainty is to a
great e.xtent eliminated.

At page 27, line -J.'), Sedgwick again says: —

"This • reasDiijilile cei tainty ' does not mean absolute cer-
" tainty, but reusonalile probability."

And further :

'■ Hut the fact and amount of fiiture loss is a question for the
"jury, which has discri'tion in estiiniting if."
20 Again he says :

"The allowance of ])roHts, when not exchiiled as unnatural
" oi- remoti;, is wholly a ipiestion of the ceitainty of proof.
" Wherever th(^re is an interference with, or withholding of pro-
' pertv, ."r breach of contract, or (ommission of a toit, the gain
" preven.'.'d, if provable, may lie recovered."

There is a general proposition : " Wherever there is ... .
"commission of a tort, the gain pievet>te(l, if n''ovabie, niay he
" recovereil."

Again he says:
30 " The geneial rule is, then, that a plaintiff' may recover coni-

"pensation for any gain which he can makt^ it appear with
"reasonable ceitainty the defendant's wrongful act prevented
" him fr-oni acipiirini,', subject of course, to the general principles
" as to remoteni ss, compensation, &c., already stated. His eoni-
"p^nsatiiin will he measured by the most liberal >.ealt' which he
" can show to be a proper one. Damages for interru|)tion of the
" business of a mantifacturer, for instance, niay be measured
"either by the rental \alue of the property kept nnpif)ductive,
"or by the profits of maiiufiicture lost, if the plaintiff' can show
40 "that they would have been greater than the rental value.
" The ("inestions that arise in the cases are, therefore, questions of
"the sufficiency of pioof, and it is to he expected that the courts
" will not in all cases agree in their interpretation fif facts; but
" the decisions show, under the ciicunistances, a surprisinu' degree
" of harmony."

I have made this note on this (luthoi'ity, which seems to me
to be peitineiit.

Tlie text says that the general rule is that you can lecovcr
thesi' damages, subject to the geneial rule as to remoteness. 1
50 say that if the damage was " intended " it cannot be too remote,
and that if it were intendeil remoteness is out of the (piestion
altogetlier. '{'he author then proceeds to draw a distinction
between damages recoverable in the case of the immediate
destiuction of pidjierty and cnse.s where property is siinply
improperl}' detained. This is flie distinction thau my learned
fr-end, Mr. Dickinson, puts in, in the veiy commencement of his
aigument, in i(d'erence to damages. If your Honors will note at
tie very first of his argument, my learned friend lays down on
pa •(' il;{ this jieneral rule :
♦iO The theory of all law on the sul)ject of the loss of personal

" pn oeity, is, that the party d( /irive<l of it or abdndoning it to
'"the I onverter may immediately supply its place in the market
" with ^s money value if im sees tit ; and therefore his measure
" of YGC ery is liuuted to the vulue of the property lost."

(Mr. I'eters' Arji[uinent.)

Tliat is the general proposition lie lay^ down. It i.s a propo-
.sition tliat tlie rule, that yoii arc* only to j,'ive the value of
{iroperty is based upon the fact, that a person wlm loses his ship,
or a book, or an article of personal property, which is taken
from him impi'operly, can plaee liiinself in the same position l)V
,1,'oini; to the market and buyini; that book, or shi|), iiid, tliere-

10 fore, that the proper mcasiiie of (hima;,'es is the viilue of the
article, the amount for which he could replace it at that tiTue.
My leaMU'd friend s.iy-; that, the whole rule is based on that.
But your honors will see that the reason of the rule, upon which
he .says the rule is founded, does not apply in this case; and if
the reasoti of the rule disai)|)ears, and if the basis of the rule is
not i\\istent here, then tlie rule itself disaiipears Let us applv
my learned friend's tiieory to the cases now before us. A sliijjis
seized in the ndddie of JSehrinj^f Sea, hundreds of nnles from any
place wli'jre the shi|) could lie replaced. My learneci friend, Mi-.

20 Dickinson, says thai the rea'-on of the rule is that you can ^'o to
the market and replace the article taken. Now, the fact is here
that \ ()U could not rejjlace the article seized or destroye(l. The
ship was out in the J!eh?in;j; Sea, the time was in the middle of
the si'alini,' season. As a mer(^ matter of time, it woidd he
impossible for any one of tin; owners of the e ships to replace the
ship in that place, or to buy another ship so that the seal fishinij;
could be carried on. Accoi'diiiLj to all the evidence here, it
would take at least ten days to send from the place of seizure to
Victoria : yes. it would taki^ more, li.'caiise the fact-; are that the

30 shi])s wei'e taken to Sitkii, ami in that ease a me--sa),'e wnnld have
to be sent from Sitka down to Victoiia, then a new shi]) juii-
chased, then all the supplies put in, ;in I then you would meet
with the ditliculty which we know e.\ists in this ease, that uidess
you yet your hunters at the couniienctnient of the season you
could not get them at all. My lenined friend, Mr. Dickinson,
says that his rule is based on the idea that you nnnht
immediately supply the place of the article in the nuirket. Now,
your Honors, in this ease that was impossii)le. I submit, your
Honors, that the reason for th(^ rule havintj failed, the iide itself

40 completely fails also. One more (pu)tation from Sedge wick will
serve to exerrrplify the point that the general rule r'eliud on by
the other side is subject to exceptioirs within which these cases
fall. The learired author draws a liistirrctioit between cases of
the innrrediate destr'Uetion of pi'operty, aird cases of nrere
irrrpiopei' detention of property, and adds: —

" liui although in this class of actions (trairrely, cases of
'■destruction) the value of property destroyi'd with interest for
' the time the owner was deprived of it, will compensate him for
" the loss if no special or- extraoidinary darrrage oecurrt'd, yet, ii

oO " th(! injury irf)t ordy caused a loss of property, but also other'
" proximati' loss, further compensation should be given to that
" extent."

Is not that a very clear' statement liy this very learrK.'d author
that the gi-neral ruh' is sirbject to exceptions, atfd that the
exceptions are, if there (-re sjiecial circtrmstances which catise
s|iecial dairrage, tile damage caused by these eircurrrstance should
be taken into consjdenitiorr, even in eases of total loss, ami added
to the amount to I e awanled.

Iir this case we claim that having regard to the place whei'o

00 the seizures occiriied, having regard (o the circrrrrrslances uridei'
which thej" took place, to the place where vessels were taken
after- seizure, to lire iirrpossibility of replacing therrr, to the fact
which is apparent to this court, win ther' as a mailer' of law or
irot, \ouare conrpelled to say we would not have caught airy

57
(Mr. Peters' Argntiuint.)

seals at all, as a matter of fact any porson wlio lias listened to
the evidence in tills case must come to tlu- conclusion that
althouf^li you may not perhaps agree exactly us to the tinnihcr
of seals that were j,'oin!,' to be cau<:flit, it is perfectly plain that
in each one of these years these vessids would have caught a
cnnsiderahle miinlter f)f seals if allowed to gn on. Add that to
the fact tl'.at this was done intentionally for the purpose of pre-
ventint,' us from takinji; them, do you not com(> within the
exception laid down hy Sedjjewick, in which he says : —

" If the injury not only caused a loss of |)io[)erty, hut also
"other pi'oximate loss, further compensatiini should he ;,'ivnn to
" that extent."

My learned friend says that you are hound, where a vessel
has actually been seized, to i;uide yourselves in these cases bj'
the ordinary rule in an action of trovei' or mi action of conver-
sion for the taUinjr of a hor>(^ for instance. I join issue with him
there, and 1 say W(^ have a rij^ht to look at all the facts and cir-
cumstances. We cannot shut ou?' eyes to the fact that in addition
to the loss of the vessels there were other ijieal losses ; theie was
a direct loss, much laif^er perhaps than the loss of the vessel
itself. Let me exemplify this by referrinj,' to some other Kshet ies.
For example, we know very well when a person is successful in
some lines </f Hshint; that the catch is sometimes far more valu-
able than the whole outfit. Take, for in^tanci-, a person enifML,'ed
in the nuickerel Hshei'y ; we know that in cei'tain years inackiTel
briuf,' an exhorbitant price; we know if a person happens to be
lucky and i,'ets a larire s"ine full of mackerel, he makes jierhaps
in one day a larfje sum of money, perhaps lar;,'er than tlie value
of his whole vessel an<l outfit. Take a ease of that description :
a schooner is (jut mackerel tishintf, slie has her seines all ready ;
another schoont'r is out, and just when the seines are tujiiij,' put
out that other pel son takes charjje of those seines and destroys
them ; she may do iinthinif but take the net itself ami destroy it.
Now, wdiat is your judgment ? Is it the value of the net phis,
perhaps interest, accordine; to my learned friend ? Would that
he the real damage ? Would there not be special circumstances ?
The seine was all ready, the boats all out, and you simply have
taken the seine, which perhaps is worth one thousand dollars,
and perhaps you have prevented that man from catching four or
five thousand dollars worth of irackerel at one scoop. Hut my
learned friend sa\s there is a hard and fast rule laid down in
cases of trover and in cases of conversion, and that that hard and
fast rule must he followed, I say tliat the very hooks that lay
down that rule also lays down an exception, and that exception
I say this case comes within. A<;ain, I cite a short portion of
tl'L same page, wdieio it says : —

" It has lon<j been well recognized law, that when deprived of
"such business \>y slander, compensation for its loss may be
" recovered in this form of action. And why not for its loss by
" this more direct means ? And of what iloes this loss consist
" but the profits that would have been made had the act not
" been performed by afipellants ? And to measure such damages
■ the jury must have some basis for an estimate, and what more
" reasonable than to take the profits for a reasonable period next
" preceding the time when the injury was intlieted, leaving the
" other party to show that by depression in trade, or of lier causes,
" they would have been less ( Nor can we expect that in actions
" of this character, the precise extent of the damages can he
" shown by ilemonstration. By this means they can be ascer-
" taineil witli a reasoiialile degree of certainty."

We say that in this case in claiming for" loss of business, or

JJS

i'll

■iff

(Mr Fetors' Arj^uiiient.)

loss of tt vi'iUurc of any kind, yon aiu not pci Imps, in I'stinmtiiii,'
ilnni(i<{i>.s, to suppdsi' tliiit tlii^ Vfi-y lu^st was ^'oinj,' tolmppi-n, tiiiit
it was f^oint; to ln' alisolutely sncci'ssful. We conic in and sliow
wiiat \vt' C'iin;;lit in other years, what vessels cau^^lit in that year,
the av<'raj,'e of what were tai<en. It is open for tny h'arned
friend, of e()Urse,()ii tiiat ijuestion to show that there were leasoiis
10 why we would not perhaps have cau^^dit as many seals as we
elainied we would have eanj^ht. That is fair. That roiitention
lias to lie Weighed on the one side and on the other. Hnt wdien

he ^(les to the extent of sa\ in;; liecause some little elellient of
uncertainty exist-- in the niatler it is to lie excluded alto^'ether, I
say the leading; nf those anilioiities shows that tliat contention
cantiiit lie upheld. A;;ain at )iiii,'e 20 of my ar^'unieiit, the same
author, in dealiiiif with the (piestion of what should be alhiwed
for mental suH'eriii^' in certain actions wlii(di can he lirou^ht,
states thus ; —

'20 '■ That the iinioiint of dama^'es allnwuhle in such a ca-e as

' this is not cMpalile of easy and accurate iiiatliematical coinputa-
" tioii is fu'ely ciineeiled, liiit that should not I'c a siitlicicnt
" leasiin for refusing; or defeatin;f the ri^dit nf action alto|,'ether,
" for the same ohjection may he ur^'ed with the same foice in all
" cases where mental and Imdily sutleiiiiL; are treated as proper
" elements of dania^i'. '

Yiiiir HiiiKiis will see this position; I do not know that I
have ]iiit it in so many words, Init the uljection to allowing' the
piotits for jiidspective catch or the value is two-fold : — First it is

30 allcLjed that it is ton reiuote ; secondly, that whether remote or
not it is too uncertain. With re^'ard to the (|uestion of reiuote-
fie-s We eliininnte it altci;.;etli(r liy saxiii;; that tlieie was an
intention to do it. With le^jard to the (piestion of iinceiiainty,
these cases show that ilaniaLjes are coiistiuilly :,'iven i:i actinns
jvhere the (|Uestioiis of nncerlainty is dmilily njcire tliiiu here.
I'like the ease of a peisnii seeking' to recover for mental sud'eiin^'.
liy what ninde of calculation a juil;j;e or Jury can find out how
iimeli a man should he pai<l on account of metital siitlerinLf it is
ditliiMilt to say, lint at the same time we do not allow for it and

40 for liodity sutieiin^f also. This is all unciMtain. One cannot say
tiiai it is tlfiy, one hundred, or live liundreil dullais. One jm\'
iiiiuht ;,five five tlniusaiid dollars in a case, and another jury
iiiiulit ;,'ive tive hundred dollars, and llociuit, tinless the amount
awarded was very outrat^eoiis, would interfere with the verdict
of either. The (dement of uncertainty exists there to the greatest
extent, I'Ut the answer is thatoti^dit not to he a sutlicient reason
for lefusin^' or (iefiatin^' the ri^'ht of action alto^'ether, for tin;
same olijectimi may lie uref(id with thi^ same force in all cases
where mental and hodily sutl'eiin!,; are treated as proper elements

50 of daiiia^'e.

Then aeain, I wmild lefer to some statement, made hy Mr.
Sutlierlaii(| on daniayes, and I may fioint out that " Sutherland

•'"•"•■ '■■; ■'■ .- ' •' *■"•••" y" """" •'"'■

on Damages" is nd'erred to hy HlodLjett in his aide ar^'umen
hefiire the i'aris Triliunal as a slandanl authority in the Wriitei.
States, whieli we wcnild have known without his sayinf,' it, hut
it is referred to hy Mr. IJIod^ett as heintf the standard work on
the suliject. At pa^'e "J!> he says as follows :

"The liahility for the profits wdiich would have lesulteil from
' the performance of a contract is co-extensive with the jiower
(iO " to ctintiact ; and tin; i,'overnnient is liable therefor t(> the; same
" extent as an individual. The rii^dit of a party to recover the
•' piuHts he would have made in fultillin^' a contract depends
'• solely upon the fault of the other party to it, and plaintitl's
"ability to show that the profits claimed were leasonabl}' certain

b -l;

'I*:

I'stiriiiitinij
a|)()i>ii, tliat
1 nrul sliow
1 that yciii',
my leiiiiiLMl
ere it'ii.suii.s
ii!als as wo
ponti'iitioii
lint when
t'li'int'iit of
lt,(ii,'('tlu'r, I
conti'iitioti
t, tlie saiiio
be allowed
lie liroiii;lit,

I 11 ca-e as

II coinpiita-
i sufHeifiit
altoc,'ctlicr-,
fiiico ill nil
I as proper

(Mr. Peters' Arijiimenfc.)

" to have been realized hut for the wrotii,'fnl act ooinphiined of.
"It is not an insnpi-nihle objection to their recovery that they
" cannot be directly and absolutely proved;"
He j;oes on fuithcr: —

"The j,'enerHl tnicertainty attendini,' human life, and the

"special contiii^'encies as to its duration on accoiint of the

10 " physical condition of an individual whose rii,dits are involved

" doiKit prevent the recovery of daniajfes for causing his death

" iiijuriiii,' or his person."

Then he goes on further: — •

" In the nature of things, where performances has Ikmmi pru-
" vented, the proof of profits cannot be direct and absolute.
" The injured party must, however, introduce evidence legally
" tending to estal)lish and siillicieiit to warrant a jury in coiiihig
" to the conclusion that the damage.s they find have been
"sustained; but no greater degree of certainty in this proof is
20 " required than of any other fact which is essential to be
" established in a civil action."

And, I must point out to your honors that there is his
decision, " but no greater degree of certainty in this proof is
re(|uired than of any otluM- fact which is essential to be
established in a civil action."

Kven if you were looking ahead to .see how many seals we
might have caught next year, you might make an estimate, hut
as a fact you now have the benetit of hxd^ing back and seeing
what was actually done in those years, and with those facts
MO before you, it W(juld lie almost ab.surd to say that you are
ilebarred by a rule which says because there is some little
unceitainty about these things and therefor you cannot enquire
into them at all.

Again under the head of " Tortious Interference with P>usi-.
iiess," he says :

" In actions for torts, injurious to business, tlie extent of the
" loss is provable by the same testimony, and recovery may be
" had for such as is proved with reasonable certainty ; it is
" enough to show what ttie profits would prolmbly have been.
40 "t'ertainty is very desirable in estimating damages in all cases ;
"and where, from the nature and circumstances of the case, a
" rule can be discovered by which aiiequate compensation can be
" Hccuiatelj' measured, it should be applied to actions of tort as
" well as to those upon contract. The law, however, does not
" lequiie impossibilities, and cannot, tlierefoie, demand a higher
" degree of certainty than the nature of the ease ahniits. If a
" MMiiilar and establisheil business is wrongfully interrupted the
" dai!iiig(> thereto can be shown by proving usual profits, for a
" reasonable time anterior to the wrong coinplaiueil of. But it is
'lO "otherwise where the business is subject to the contingencies of
" weather, breakages, delays, etc. There is no good reason for
"requiring any higher degree of certainty in respect to the
" amount of daiiiages than in respect to any other branch of the
" cause. Juri(>s are allowed to act upon probable and inferential
" as well as dii-ect and positive proof. And when, from the
" nature of the case, the amount of the tlaniages caiuiot be
" estimated with certainty, or otdy a part of them can be so
" estimated, no objection is perceived to placing before the jurj*
" all the facts and circumstances of the case having an}' tendency
GO " to show damages, or their probable amount, so as to enable
" them to make the most intelligible and accurate estimate
" wiiich the nature of the case w-ill permit."

Then again, on page HI, he .says as follows : — " The chance,
" so to speak, of obtaining that advantage by performance ot the

IMAGE EVALUATION
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23 WIST MAIN STRUT

WHSTH.N.Y. MSM

'716)«72-4S03

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"^"^ipwpw

(Mr. Pctfis' ArtjiimL'nt.)

" contract, ami the conjiinctinii nf tin- noct'ssftry Hul>se(|upnt fiicts,
" nmv tif viilimlilc Tlu; nature of the continj^i-ncy must Ik^
" c<)n>i(lt'rt'(l. If it is piiifly coiijcctuinl, luiil cannot ln! reiison-
" iiiily Hnticiputcil to luippcn in tiii' iisiml coiirNi; of tliin>;s, it is
" too unci'i-tiiiti. 'I'iuTf iiHist lie proof Icijiiily tt'iulin"^ (osliow niui
" sufticit-nt to satisfy lilt' jury tlmt i'. woulii liiipp»;n." Tlien iio

10 cites llif cast! of till' cimnct! tlmt a fullier would pay a son's dclit
to sociirc his rcli'asc from custody, lins Itei-n licld capalile of
•■stiniation, iil'!i(Pii;,'U I must say it mii^t have lu-i'ii a prctt)' liard
thin;; to cstimat)'. Kollowin;; on that is tin; statement laid down
liy these two text .vriters, aii<l I think we proiiahly liave somi;
more. The coiu'hision that we draw from the statemeni,s of
these text writers is, that whilst it is tiiie, as a ;,;eneral rule, that,
ill an ordinary action of coiiversioTi or trover tlu^ dama;;es to In-
reeiAii eel are. for the value of the propeitv at tlit time takeii,
ano mill 1 St peih.ips until the matter is settled, thai whilst that is

20 true as a ^.'eiieinl rule, like all other ^reneral rules it is suliject to
many except ion-;, and out- exception is that wheri; there are
special ciiciimstaiices which make the takini; of the artich;
speciallv iiiiini(>ii>. and which special circumstance is hefore thi^
miml iif ihe person iloini; the injury. and more particularly when
it is dmie inientiomilly for the purpose of causing; that injury,
that that is an exciption, and the rule that you can simply re(M\iT
for the valiu- of the article does noi apply at all. I would now
like to lefer to one ov two eases meniionecl in my lirief, to show
that there is positive authority that this class of ilama^esc'in he

.SO recovered in eel iiiin cases. NVithoiit actually lakiiiL; lie' hook
and refeirilii.' In it. 1 will cite to your Honors the case of the
" llisiiliito," eited on )iii_'e :tl of u\\ luief. 'I'he note liiere is, and
it i-. a very full one, as follows : —

" In this casf !i Kreiicli fishing; hrii; of 1+2 tons, employed in
" the cod fishery oil" the hanks of Newfoundland, came into
"collision on lie liih of .luly. IHSI, with an Italiai', tianpu'. and
" in consei|Uence nf the collision was compelled lo put into port
" foriepaiis. hut her re|iairs having; heen completed, returned to
" the tisliiiij; i,'rounil hefore the close of the tishin;; season. In

40 "an action for damayi's instituted on helialf of the ini;; aifainsf,
" the hnnpie, the ( 'ourt pronounced the hartpic suleiy to hlame
" for the collision, and referred the ipiestion of damages to the
" l!e;,'istiar and merchants."

In ei\ iii^r liis decision the |{e;,'istrar said : —
" A sum of •i'jnuo francs was allowed for loss of Hsliin;;.
' The vessel had a clew of twenty men ami eii^lit small hoats,
"it liein^ llie practict! for the hoats, with two men in eaci) and
" lony lines, to surround the vessel whilst tishiii;;. An immense
" numher of h'reiich, us well as nativi- and somewhat smaller

50 " vessels are eii^iiijeil ill the trade, some of them lamliiii; their
"fishing; from lime to time, and others, includiii;; the "Emma,'
" lakiiie every Ihin;; they catch to lioideaux, receivin;.; a licunty
" for so doin;; from the French ^'overnment. The codHshery
"reopens laie in April and ends in Novemher. The " Kmnia"
" had left Dieppe as Usual al out the middle of March, with the
" necessiiiy salt, to pieserve the tish to lie cau^^ht hy her, t;oiii;;
■'strai;;hi to St. I'ierre to procure lierriii^js as hait for the ^aily
" Hshin^. arid afterwaids, having; daiiia^ied her windlass, she had

• returned to St. \'' 'rie, ami liavini; i.'ot a supply of hait for the
00 ' later Hsiiiii;;, had oidy just resumed tishiiii; when the collision

" in ipieslion occurred. At the close of the season she (irucei'ded

• to lioidiaiix and laiuled an>i sold ."111, 474 cod, which realizd
" .'17, >*•'>■'> francs |r was proved that the average numher of fish
"caught liy other vessi Is in those Hcas j^reatly exceeded that

ih.n

e(|iipnt fiict.s,
»cy must. h«
it III! rivisoii-
tliinj^s. it is
toslidw iiiid
." Then 1.0
a son's (ic'iit
1 ciipaliitt of
I pit'tt)' lianl
tit laid iliiwii

,• liaVl- SOIMH

tatonifnis of
■rai ruli', that,
inia;;cs to hi)

time taken,
whilst tlial is

is stltijcct to
(• iheit! are
the artiele
s hefore the
•iilaily when
that in jury,
mply n-ciiver

woulil now
rief, to siiuw
liases (Mil he
\i^ till' liiMik
■ ease of the

iliere is, and

i'ni|iloyed ill

came into

l>ar(|iie. and

lilt into port
returned to
season. In
)rii; iiLjainst
Iv til lilaine

lac'c^ to the

of Hsliin^r.
small hoais,
ill I'lieh and
\ll iliimeiise

lat siiialler
indinir their
le " Kniiiia,"
iiLj a iM.uiity
eodfisliery
le " iMiinia "

h, with the

her, ;;oin;;

ir the faily

ass, Hhe liad

liait for the
the eollision
le proeeedecl

icil reali/'il
mlier of lish
ueeded that

■4

(.Mr. Peters' Argument.)

" quantity, and unless that was tlie case, the proceeds would not
"cover the expenses. 'I'lie lle;4istrar and meiriianis therefore
" cRiiie to tlie eoncliisitJii, on the information fmnislied especially
" l>v tlie defendants, that 22,000 francs shouhl he allowed as the
" hiss siisiaineil hy the interru|ition to the fishin;; occasioned hy
'■ the collision, an allowance for dijiiiiiriaj^e in the usual way
10 " lieiiijL' inappiicahle to this ease."

I I'raw your Honors' attention particularly to these few
Wolds at the close, '• an allowance fur deiiu.rrM;,'e in the usual
wav l"'in^ inappiicahle to this case." I'ut n>'u\>' fur the moiih'iit
the case of seizure, and takt? the case where my learned friend
ailmits there is to he an allowance for demiirraj;e — the case of
warniiiif — does not that remark exactly apply to it, " that an
allowance for demiirraj,'e in the usual wav lieiny; inapplicihle to
this case" — utterly iniiplicahle to it, and why ' 'I'ake the casi-
of til" " Carolina," for instaiiee, according; to the arL^iimeiit put
20 forward on the other side, which i do not admit as a matter of
fact, hut from their point of view, that the season end" on the
20th Aiitfiist. Then the "t'arolimi" had hut twenty <lays to
make what she was yoiii<{ to make, she niijjht i;i that time make
thousands of dollars, just as this vessel on the Hanks of New-
foundland, or wherever she was tishinj^. had hut a short time to
make hi-r cartro of codlisli, wiiich, when iii.nle, would he of very
ciinsideiahle value, ill the case ,)f the " llesohite, " till- Ki'j,'istrar
said, "the ordinary rule of Admiralty <loes not apply." and in this
case that would he douhly true, for hut twenty days were left to
'Ai) make the venture a succes.s.

I'lie L'oinniissioiicr on the part of the United States; — Was
that ca.se ilppcaled from the Admiralty Division i"

.Mr. I'eteis :— I will ;;ive it to you here, y.iur Honor.

Mr. Dickinson : — It was not your lionoi, it was a decision of
I'hillimore on the ie|)ort of the Ueiristrar only.

Mr. I'eters : — -Dr. Philliiiioie is certainly a ^ood aiiihoiity for
matters pertainin<; to Admiralty.

Mr. Dickinson : — .See what he .says on that jioint of prospec-
tive catch.
40 .Mr. I'eters : — The citation I read was from the report of the

lle<;istrar. I rend what follows:

" On the ittli of .\iiirust, l!SS2, the solicitor for the defendants
"tiled in the rei;islry a notice of ohjectioii to the report, and
"liavin;; ohtained the consent of the plaintitl's to the ohjec-
" tioiis lii'iiiy taken on motion, siih,sei|Ueiitly ^'iive notice that the
" juiljfe in court would he moved to diiect the Re;jistnr's report
"to he amended hy reducing the allowance in the matter of
" deiiiurrii^fe, on the i^rniund that the amount allowed was uiirea-
"soiiahle, ami such a> was not usually allowed hy the Re^dstrar,
50 "anil that the rate per ton allowed for demuiraiie was excessive,
"and that the evidence did not warrant the sum allowed in
" respect to the snid item." • • •

It was said counsel for defendant aryued :

' In action for damaj,'e where compensation for detention
" diliili;,' repairs has heeli successfully claimed in the re;;i>«try, the
"Usual practice of late years has lieeii to allow demurraj^'e iiecord-
" iiij; to her ciistoumry rate per ton per diem, and in cases where
"this course has i.ot heeii adopted the praeiice has heeii to
"estimate what profits would most prohahly have heeii ohtitined
€0 " if tln're had heeii nocollision. In order to I'liahletlie Reiristrar
"and merchant" to estimate what such prolits should have heeii
" in the present case, the plaintiff's oii;,dit to have shown on the
" refiMeiice what net piofits had heen earned hy the "Knima"
" herself whilst en;,'ftrred in codtishin;,' durinir .liily and August,

i .

(Mr. PetiTs" Ar;;UiiuMit ')

" ill yeiiiN prior to ISHI. This tlit-y <li(i nut di). Imt nicivly pro-
" iliict'd (in liii; rcfiTcmv cviilciu'c us to tiu' hvithlJi' niimlicr of
'■ coil tiikfii tiurinj; tin- sciiMon of ISSl liy various otiirr vessels,
'■ not of till' sniiii' loniiiiijt' or fvcii iniiniu'ii liy tlu' simii' niiinluM'
"of nicti On tliis siM'iMiliitivtM'viiit'iu'i' tiif l{fj,'istriir iippt-iirs to
' linvi- liiisi'il liis clccisiiiii, ami on tliis ^rroinxl hIoih-. even iissiim-
10 " irii; tliiit (lie rati' of (Ifiimi rajrc to In- iillowcil in I'liscs of
■■ ti-^liiii;; vi'ssi'ls is to lif ijill'i'i-t'iit from tlic nili' bIIowim! in
" otliii- ciisc* it is suliniitti'il that tin- report oiii,'iif to he
■' aiiien<li'i| "

I iia.l tiist the point taken hy (lie (•ounsel wiio is oiijeetini^
to liie report anil then tie answer to that, 'i'lien- they said as
follows: "The I'ijjht of the persons intefi'sled ill a tishiinr vessel,
" ilaiiiai;ed ii\' a wroiiL.' doer, to recoviM' in an aetion of ih'niin'rni,'t',
" coiisecpieiitial daniaiies, where, in conseipienfe of the collision,
" a tishiiii; ad\entiiie has hcen inti'i riipted, has heeii reco:,'Tiiz.-d
20 "in many clecidi'il cases, of which the ease of the ■ ( 'lareiici',"
"which came lud'ore Dr. liUshin;,'lon in l^.")0. is one. The Heijis-
" trar ntid nieichaiits have acted in accordance with the ))rinciples
"of these cases, and have allowed a fair and leiisdiialdi' snin in
" respect of tlie detention of the ' Kiiinia."

Now then, says Sir Rohcri I'lnllimore : I do not think I need
■ fllllhel ll'ollhle the counsel for liie plaint iti's."

There is a distinct and cleat decision hy Sir U.dieit I'hillimore
for whatever it is wurtii. I am lU't here to contend that this
court is I onnd l.y tie' ridiiijr of any jndije in admiralty in Kn;,'-
.'!() land any nioie than of a jiid;,'e in inlniiialty in the I'nited States,
but Sir K'diert I'hilliniore is iindoiihtedly a man id' veiy lar^e
»'X| erieiice. es|iecially in adinirally ca»e-. tn wliiidi I think ho
contines lu^ailv the whole of his attention, and the opinion (>f a

imill of his I xpi lielice is entitled to sone- weight aid roli-idera-

tioii ; mill when it is only followini,' mit ili' exception to the rule,
which a can fill leadili;,' of tllese te.vtdiooks shews to exist, then-
is no reason why it should not he adopted.

I would like to refer your Honors now to another a Imiraltv
case cited at pH;,fc .'12 of my ari;iiinciit, hnt which is not ipioted at

40 any leiii^ih, the ca-e of the " (ilennei," :{ .\sp. This is an action
liMini;lii a;.'ainst the trawl "(ileaner" hy the uwie rs of a smack
called the ■ .Maud and Kloreiice," to lecover ilaiiiiii;es in re-pec t of
tlic collision lietwoeii the vessels, wliereh\ the ti-hilii; !,'car of the
'■ .Maud and Kloreiice" was lost. That i-all that was lost. The
" .Maud and Klureiice." on the lOth Octolier, 1.S77, was drif; Hsh-
in;^. Iiiid aliiiiit sixty nets out. While so enijam'd. the "(ileaner."
which \va- trawline. ran into and fouled her iiei>. These nets,
with Certain nther parts of iter •n-iw, they were ol.li;,'ed to cut
adrift, and only ten of ilie sixty nets were saved. The plainlilis

TiO diirinj; ne;,'otiations hefoie action claimed .Clo") foi value of nets
and eear, and aUo compensation for tiie loss of tisJiiiiL,', hut the
dtd'eiidant not paying tlie amount clainn'd. tlie plaintitl's applied
for leave to coniiiieiiee action in the lli;;li Court u|inii an atlidavit
setliiii,' out the ciiciinistances of collision, aim alle^diij,' that the
value i)f the nets lost weie .C I ")."), and that in addition theleto
the plaintiir had a claim for ooiiseipieiitial dama;;es for loss of
tishiiii,'. The amount recovcrahle was uncertain, and it was
di'sirahle to ;;o to the Hiuli C ".irt, The iictinn was nroui^lit.
'{"he defendants admitted lialtility for .t I. ").■). The claim was put

f)l) in liefoie the registrar and merchants as follows :—

" l,.iss of 4 weeks lishiiif,' from lOth Octoiier, lh77 -£200.
" At the reference the defendants alto^'etiier disputed the
" plnintitis rij,dit to recover for loss of tishin^' upon two i.Tioiind." —
" (irst. Iiecau.se the dainnjjfes wert; too remote ; secondly, hccaiise, as

t tliiiik I Mci'il

(Mr. IVters' Arfjument.)

" tlicycontiMiiliMl.tlic plaiiitiHs mij{ht liiivo procured more nets and
'■ linvi- iMintiriiicd tin- fishiii);."

Tlmt i-i tlic very contention innde licrt'.

'I'lu- followiiii,' iillowanct's witi' iniidc : — Tlfy iillowed for loss
.^f Wsliin;; four week •* from tlic lOtli of Octohi-r to the 7tli of
Novcniln'r. C72 wit i interest. The Hej^istnir ;;ives lii.s reasons
10 in full, luid with retjard to thiit .C72 he .says : —

" With reyiird to the iilnolltit alhiwed UTider this head. £72,
" we fiiinii'd our estimate from the evidenee- lud'ore us of what.
■' tlie i^ross earnini,'s of tlie smack woidcl iiave heen if siie liad
" coniiiiiieil Hshiiij; for four wi'cks on her nsunl >;round. Kroiii

" tiiat esiimati' we have maije di'ihiclions fo|- tlie ex|)enses 'hat

■' woulrj ii.'ive heen incurred l)y tliem, also for wear and ti'ar of
' tlie smack and of lier nets and warps, etc., and fortiiei' for the
'■ amoiMit the iilaintitl's did actually earn in the sulistitiitcd occii-
" patioii tlicv had recourse to."
20 The m.itier was afterwards lirou^jht u|) hefori' the court and

the linditi^ was not intorfcied with. My learned frieii.l comments
lljioti that case.

'i'lie Commissioner for the United Stiites : — ^It was lejieil on
hv till' Italian counsel in the case you have leferre I to. It was
the onl\- case cited hy him.

Ml-. Dickinson : — Wa?, not there a (jucstioii of cost in thecase ?
Mr I'l'teis: — Yes, hut this also ap])ears :

' 'I'he ilefend'inis ilid not oliject to the report which was
" taken up hy the plaintills, ami the Heiristrar havini; made no
;!(• " rrcoMimeielatinii as to cost~, the plainlitrs ;;ave notice that they
" should mcivi' the judiri' to Certify that they were entitled to
" their co-its of action, and to condemn the defeiulants and their
" hail therein, and in the costs of the reference."

lint this |)oint stands nur prominently, that in thecase tried,
after proper reference, it is taken for u'ranieil that that was the
pro|)ei way of estimatine; dauui^^es, ami this view w:s not even
ohjected ti'. Till ipie-tion as to whether the claimant could j,'et
costs iif suit cjime up, and indirectly the main claim was aj^uin
Coll-ideied.
40 Sir Uiilurt I'idllimore said ; — " As to the cost of reference,

" the plaintifis ask for the costs upon the :,n-oiind of the peculiarity
" ot tlieii' claim 'i'heir claims consisted of claims for loss of irear
" aod for hws of the season's tisliiiiir. The defeiulants tendercil
" the amount claimed foi- loss of eeai, hut icsisted altogether the
" claim fur loss of tishiiiLT This course of action on the part of
" the •lefeiiiiants Iris iindoiiliteilly occasioned costs, an>i 1 am of
"opinion that, corisiderine; the pecolidrity and natiiie of the
•claim of the jilaiiuitts, they are entitle I to some costs.'

I'lierc is not a word of ohjeetion hy Sir Robert PIdllimore as
50 tti the nature of the claim. As a matter of fact, it was in lino
with this verv case.

Mr. Dickinson .--The other side never raised the ])oint.
Mr. i'eters: — That circumstance is one of the very siron;,'est
thiiies in our favor It seemed to he taken for granted that this
clas-. of claim for (laniai;c can he reco^ni/.ed. Indeed it was so
ileciiled ill the " {{esohite ' case. In this earlier case it was
taken for jTi-anted, the Hcgistiar was a man rf cousidcrahic
experience and his report was not ohjected to. I will also refer
to the case of the ' Aryeiitinn, " 14 Appeal Cases, .")1!), cited on
(iO pai,'e 42, hut not at lenj,'th. This case was hefore the House of
Lords in Kni^dand ; it was a case of a collision hetwecn two
vessels, the " A " and the " CJ," shortly after a contract iiad been
made hy the owners of the " A " that, upon the completion of her
then voyajje, she should proceed upon another voyage. The

«p*n«pn

*: '

;.!-•

(Mr. I'etcis' Arjfiiiiieiit.)

ri'imir.x to tlie " A," iiiailf m-ct'^^ar}' liy tin' colliMion, could not lie
coin|ilctril in tiino to I'lialili' licr to fiillil tlic coiitnift. In im action
liy till' ownciN of tile "A" a^'iiiiiHt tin* owm-rs of tin- "(J," (lie for-
nicr I'IftiiiH'il clanifitjo in ri'spcct of tlic loss ;if tlic t-arnin^s wliicli
v.'oulil liiivi' liiTii ili'i ivi'il from (In- fni|iloyini'iit contractrd for: —

" //(■/</, atlirniini; tin- ilfiision of llic ('ourt of A|)|>*>al (!;} 1*.
10 '■ ]). I!M ) tliat till' ilaiiia^i's clainit'il wi-rc not too ri'niotc, Imt
" fiillo\v(.'il ijiri-ctiy and naturally frnui tlit> colliHion, and that
" Hiicli cl;iniM;;i' sin nld I <• alhiNVt'd as Wdllid icpri'si'iit tllf loss of
"ordinary and fair earnings of sucli a .slii|i as tliu " A," having
" ri'ijaid to till- fact lliat tlii' Cdntract had lii'cn i-ntt'n-d intii."

In that case llu'V si'itlcd on the aiudunt of di-niurriii;<'. and I
Nini|ily refer to the case to show that that class of daiua;^ri's can
lie consideriMJ. I do no' |>ro|iose tocit"' I'liilifix V. Till' l.uiiiliin il''
Aoi ll'i' islirii /ii'i(//(''((7 ( '() , hecause the facts of that ca>e are so
well know n li> i\ I'rylMnly that it is uniu'cessarv to refer to it here.
20 Mr. Dickins.m : -'riiai was (he " Sinx'eon " case .'

Mr. I'eter.s: — Ves Now tlieie me two cases referrecj to liy
my le'iried f I lend, under (his head, at |ia;.'e ION of his ar<.>umeMt.
One is tile case of the " \Vashin;;ton," which I onnnitteil to nicniioii
yesteiilay. lie refers to the " \Vashini;iiiii " in thesi- wonls: —

' The case (if tiie ' \\*i\shin','ion," li.fore the .Mixeil ( 'ommissioM
"in I.S.");!. was in eveiy resjiect analoi^'otis to the jiiesent case,
"(ireai I'lriiain claimeil a juriscjiction over the liay of Kundy as
" (eriitoriai waters, 'i'he ' Washin^jton" was seized (en miles fioni
" shoie. It was held tha( the water> wer<' not tei ritorial, and thut
30 '■ the seizme of the ' Washilij^ton " wn> Miad>' on the hiffli seas.
■' 'I'he ship was owned I'V .American ciliz^'iis and was under the
"Alneiican lla;;. It was thend'oif a c;ise of seizuM- in |irinci|de
'■ |iri'eisely like the case leMe."

Now. iipt I til It piiint my leartiecl fiieiid ispnicticall\ coirect.
My learned ffieii'l. furthei (in, pKiceeds to say : — "She had lieen
"condemned li\ a Ihitish cmnt, and, with her 'ei|uipment and
" stores, sold under the order of the court. At, the time of the
" seizure she was eni^aued in tishinj,', and she nuide claim for all
" daina;^es including 'mark thesi' words — "it is assumeil her
+0 ■■ prolialile catch and inlerist."

There is !i most important udniission made li\- my learin-ij
friend here. " Includiii;; it is assumed her prohalile catch and
interest." Who assumes it (' H" does. .My iearneil friend,
represeiitiiiLj (he I'nited States, in ell'ect says, that, with re;,'ai(l
to that claim which was nwele in l.S.'i;), he assumes that the
I'n tc'l Slates claimed then, as they always have claimed, for
pros|iielive c.iteli, and for hiss of profits, lie says in eH'ect : —
" I take it f<ir ^'rallied that they wnidd not omit such it claim."
He assumes that tlu,' I'nited States did in that case what tliey
•'lO did in the May of Koitnni' case ami in oilier cases, whilst at the
sane' time he says that 'Ireat liritain lia^ no ri<;ht to make a
similai case.

.Mr. Dickinson: — rnforliinaiely (hey never j;ot anything;
fmm ( iieat Hritain for it.

.Mr. I'eters: Well, (he I'liited States j,'ot (he claim rccoj;-
nizi'd in the Hay of Kortiiiie case and aUo I contend in the
(leiieva case. Now li't us refei to this case itself.

.Mr. Uickiiison : — There is no detailed statement so that yon
caniKit tell how it is made u|i.
00 M r. I'eters ; — Wei I, my leai lied frieii(lcit( s the case is amil(.;,'oiis.

He as-unies at one moment (hat prospective proMts were claii 1

and (hell he chancres his ^'roiind and assumes that that claim
was not allowed. Tin' case is icleired to at pa;;e 170. Now,
ilieic is no statement here as (o details of daimi;'e. All tha( is

£}

■«

.'(it, iiiivtirni''

It sii tlllVt VOll

(Mr. P»;t«'rs' Ar;{iiiii('iit.)

Slit out is, Till' Sclioiiiifr " \Viivliin;,'t<in," wliilo fiiiployi'il in Ji-h-
iii;; in tins Iky "f Fiindv. liii niilis <li>ttiint. fmni lin- slioro, was
si'izcil I'}' luT ISritaiinic Miiji^tv '- iTuisci , ini'l tukiii Id Viki-nmuth,
in Ndvii Si'iitifi, anil conilriiini'.l nn iIm- yiMiui.l of liciii^^ iMi^ajjed
ill lisliirii,' ill lliitisli walci'-, in vidlutiun cif tin- |prc)vi>iiiiis of tlin
ti(iit\- nlalivc til tl)n lisliiiii s. I'lit'ir.! iiitn ImIw.-cii the riiitiiil
10 Stall's ami tlic lirilisli (liiviTiitnriit in Ortoiiir, ISIS. Claim of
ilaiiin;;!'-. was iiiaili' lii't'ni'i' tin' <'iiiiiiiii-'4i>>n on l)ii> •;roun<l tliat
llic .si'i/iiit' was ill viiilaiioii ol tlic prox i>iuiis of tjuil li-ialN , and
of til.' law of till' iiitioiis Tl..' il.c i>...ii .^riv.'ii l.y tin- riiili'd
Stati's ( 'oMiiiiissioiicP was one way, ainl ly tlic ( 'oiiiiiii^-'ion for
(iri'iit l!i ilaiii anotlii'l- was , aiicl (Ih' ailiitral"i s liici.li'ij aj;ain.st
(iiiat, Ulitaili. All timt lie sai'l was this, - Tlii- owiuis of tliB
' \\'asliiii;,'t()n ■ or tlicir Iri^al rcpr' sfiitativc-, arc llit'ii'fore
entitled to coiiiiM'tiNation, ami ai.' Iicr li\' awanli'l not tlie
iiiiinnnt of tlirir <'laiiii, (('///'cA i!* >.rc(s.<. C. Iiiil llic sum of tliifU
20 tlioii«aml iliillais, lint' on llic I "illi .laiuiary, |S.'..")."

I caniiol sii- liow my frii-ml i'mii nil any ^ojaii- fioiii ii t-atise
of tliis dssci i|iiion in wliii'li wc ilon't know wlntliiT iIhtc wasa
fiiiiin for |iii. iH'ctivc |irolit or not, anl wliirli dealt wit li, (list, liy
assuiiiini,' that .slicli a claiiii wis iii:iili> ami tln-n a-siiiiiiii^ tliat it
was ijisalliiwi'd. Tlic iiinjiiri' in tlii> iiim- was u ^I'litli'iiMii
nanii'd I'lalis, wlin was not an Inli'matioiial lawyer, liiii a iiii>r-
cliaiit liriiu;;lit in for llie |iiir|>ii>e of ilei-i'iiii^ in a i-niiiiiioii sense
way, npoii ceitain anioiints, tliat sjionlil lie |>a\alili' to this VL's^el
mill thilefiire the ('Use I'oes not ('nine liefmeiis with thesaiiii!
SO wi'i<,;lil to whii'li it Would lie eiitii 1> d if the ('iiniiiiis-ioiier had
lieeii an intei nat ioiial :iii( horil y.

.Mr. Itickiiison : — lli- was, hmvevei-, a Hiilisli umpire and
condiicted the ]iri)ci'i'diiii,'s with ilie IIIII10--I fairness and jiiohaiily
with leiral advitu'.

.Mr. I'elii's: — I ill) not dis|iute the fact of his fairness. ]
merely reinaik tiiiit he was iml a lawyi r, and when it comuH
diiwii to a ijU'sliiin of alistriise nji'iiion ii|iiiii iiiteiiiatioiial law,
lie is no aiillinrity.

Tlicrt! is aiini her case lefenel ti liv mv le.irned friend — the
'10 case of the " Hiawatha," iiieiil ioin d I'V my le.irned friend on
|iai,'e ION. Whili this ease ciiiiies ti he louki-i at it will be
i'oiiml that it does not help this liiliiiiial.

in the (irst place, it. was the case nf an ill.';,'al ciiptiire of a
vessel alleged ti he tiyilii; to run the lihiik.'ide. |)ill'ere|it peo-
|)le interested in that ship made dillereiii clainis. One of tlie
einims was a chiiiii for indemnity for tie- loss of coniiiii.ssinn
which I'lit for tin- capture would have lieeu realixed. Apart
from tlie point wiiieh I took yesterday in regard to cases of
captui'e, that they stand on a dillnnt I iisis altoj,'etl,er from
[50 other cases and that on the ^'lomid of piihlic policy they sliould
not lie followed Up to the extent of LjiviiiLj a ;.,';; ravated diimai't)
there is also the otliui' iplestion thatlliese (laliia;;es Welt- never
in conteiiiplatidit of the captnrer. There was no intention to
prevent tliese pai ties f,'eltin;,' their hoped for ciinimission which
they iiiij;lit have made if the vessel Imd lieeii allowed to yo it.s
course. That case really lias very little to do with this mutter.
My learned friend cites s«veial other cases at pa;{e 10!) of his
ar;,{ument. I referred to the " Appollen " case yesterday and I
do not think it is nece.s.sary to refer to tln^ other cases at all.
[60 But on pB{,'c 109 he refers to "Sutherland on Damages," and 1
would like to make a reference to the very (juotation which he
makes : —

" The value of the property constitutes the measure or an
" element of damages in a great varie'i of cases both of tort and

Ilf

I-

(Mr. I'i'tcis' Arjjuini'iit.)

" ciinti'Hct ; iinil wlicic tluTi' (in- no sucli a;;i;i'iiv«ti()ris ii"* calli-il
" for or jtistiticil cxi'iniiliiry clniiini,'i's in actions in wliicli siicli
" iliinia^'t's arc rccovciiililc, tlu' vii'iuc is u-oi'itnini'il iinil ixinpti'il
" as till- niuasurc oi' uompi'iisati'in for lu'in;; (Icpi'lvod of ilio
'■property, the snini' in actioiis of luitas in aciions upon ronlnict.
" In liotli t'a.ses the value is tlie le'^'i;! anil Hxeil measure of tiani-

10 " a^'t'M anil not discielinnary witli lliejury."

I couhi admit that i,'enir il proposition wliicli runs tlirttiiiili
all tlie lii))ks and wliicli i-- I'f cnurse siiliject to exci-ptions. My
friend closes liis aiu'innenl on that pari of the case at l)ai,'c ll((,
und lit? there says : —

" It results that the decisions of International courts and of
"courts of hoili coiinti ie^ aii' wit hunt i-xceptioii in direct conllict
' with the position taken in lie' openitii,' iii';;nment, in every case
" wlu'ie the ship of the clainniiit is lost lo him \>y tnit, either \<y
" desirnctiiin, capture, or tin- aliiindonnieiit I'V the owner to coii-

20 " deninatiiin pioceediiiL;s, <ii to ih" captor, or in any other case; of
" nclual loss of the propel ty. I 'ases of detention and possihly
" of warninj,'s stand upon a dilferent fo itiiii;, and in such cases
" liotli of contract ami tori, daiiia;jes in the natun- of demnrraue
"aie always allowed, and in >cime cases where a loss liy the
''detention can he shown iininul ifxiii iituiii with certainty some-
" tliin<; more than ilie unliniiry clt'murra<re may he allowe<l ;
" never, even in such cases on sprfiilative evidence, where there
'■ are contiii;,'rncits oi chunei s."

lie lays down thai piopu^iiion, ami then at pai;e 1 1(1 he deals

30 with till' i|iKsli(in a-- to w Iml. daiiiii;;e shoiiM lie ohliiilied in cases
where theie was ijieiily a wai ninj,', and he finds liiiiiself in a
position that is u lilih- pi'( nliar. It is a fact admitted hy the
authoiities thai th. re may I i- cases where a vessel may actually
yet mole daiua^es when simply detained than if it had heeii
.seized and enntisealed. My haiiied friend draws this distinction
at pa;.4e 1 1.1 (jf hi-. aii,'iim<'iii , " it will he seen liy the record that,
with the (Xctptioii of scho(i|i"is owiiecl in whole or in part hy
American citizens, there are l>ul two cases mi which any suh-
stantial recoveiy can he lanl, as for " warniiij^s oiil," or as to

40 which the i|Uestion of damages is wortliy of consideration." 1
think that I'y the time iny tin lel Mr. |!' iipie ha- dealt with the
case of the " Favorite," my learned friend for the I'ldteil States
will concede that theie is a third such case, and when another
counsel a>sociated with nie deal< with the " !$h'cl: ])iamend"
case, it will he conceded that ihere isafoutth such case. My
learned friencl also says : " J i the other cases of warnin<,'s it
"appears by tin.' evidence eithi>' that there was found to hr no
"warning; hy the I'aiis TiiKiinai or the wariiin;^ so found was
" not heeilcd, so far as to mater.ally aliect the voyaj;c. It is

50 " conceived that on principal cases of warninj{ should he treated
" as are ca.ses of marine tot I, resiilii,irr not of course in loss of tl;,.
" Resolute' or any part of it, hut in (letention or interniptioii rif
"the voyajje, univeiHally considered under the head of 'partial
" los.s."

In such cases the doctrine heretofore discussed, as has heeii
seen, applies with etjual force a<^ainst prospective profits as such
—the rule against contingencies being equally strong. This di.s-
inction in the rule of damages in cases of partial lo.s.s or detesj-
tion from earning is nowhere more clearly drawn than hy Dr.

60 Lu.shington in the ca.se of the " Columbus." Later on my
learned friend states the conclusion that he arrives at frotn these
authorities, and the distinction tliat he draws is that in these
cases of warning the claimants were entitled to something in
the nature of demurrage. At page 124> of his argument he says : —

2(»

(Mr. IVUth' At-^iiinfiit.)

' What nhoul(l Im tlio riiUi then in the l-hm- of wiirnitii,' nnd
" tlie lirts of iho seiiMoii's hnsincHs ? Is shouM Im lioini' in niiml
•' that iht! coiii|)t'nsiitioii to lio n-eovcroil <:an only Im applii'd to
"to thu h)S'< of a senMon in Heliiin^' Sni."

That is right. Wo do not ch»ini any niort' tlian that.

"On thfl otlitir, nnlikti thf cases of drtt-ntion whcri^ hn-iincsS
is h)-.t tluTu is no WKur and tear to lie cNtiinatrd as tiic ship did
not cntt'i' Upon thu v^tyn^^' for dt'ti-ntinn from which cunipcnsii-
tion isciairniMl. Qainid thii t<irt cviTy ship and i-i|iiipnii'iit was as
ijood as tsvi'r aftt-r the period of delay. A fair cliai ter value in
niich eases woulil he the rule. Hut on (he whole it is sulMui'ted
that hy International law hetweeii nations there is no rule as to
inti'rest or the rate of interest, something in the nature of a
■uhstnntial return on the amount investeil shniild he awnrded to
the owner of the ships of Hritish suljects for the season's sealinir
voyage for which thu vesscd was eipiipped and from realising on
which she was |irevente(l hy the wurrniig. The principle uilopted
hy the Hoard c)i' Trade in their report on iho claim (d'the whalers
in the case l)efore the (jeneva Tiihunal is a reasonahle one."

Now there is a proposition that he lays down as a general
rule. He says tiie general rule is that in casi! of a shij) taken f)r
seized you can get no damage for prospective catch ami nothing
in lieu of prospective catch, Imtin the case where a ship is sini|)ly
warned although you still cannot get damage for prospective
catch, the couri ought to allow what he calls a fair charter value,
or some large rate of interest that will give some srdistan'ial
reinrn on the investment the sealer has made. If the \\\\{>, that
we attempt to lay down is uhcertain, is not the ride that he gives
diiuhly uncei'tain '. What is the u.se of telling a cnurf or a jury
that they should allow something suhstantial ? What is suh-
stantial ( is not that term uncertain >. One man ndght say
twmty-Hvt! per cent, would he a suhstantial return, an 1 another
man ndght .say twtdve percent., and still another man might say
six per cent. With regard to the uncertainty of this rule that
you should award a siilistantial return, meaning from four up to
fifty per cent; tinder oiu' rule, it is true, there might he uiu-er-
tainty, hut it is an unci-rtainty made almost certain hy tht>
evidence we have shown as to the earnings of these vessels that
hav(! tished in that locality during the very years in qm-stion.
Under his proposition you have no means of getting over the
uncertainty involved in it, hut under our proposition the uncer-
tainty can he an<l has heen renu)ved hy evidence.

Hut the point I take with regard to this whole matter is this.
There is no diti'ereiu'e whatever in the damages that should ho
alloweil for the loss of catch whether the vessel is seized or
50 whether the vessel is warned. The loss is the same in hoth cn.ses.
We say this, when a vessel is seized her voyage is Jiroken up and
she is stopped in her sealing, and we are entitled to ilamages for
that : when she is warneil out of the sea she is deprived of the
sea.son's fishing in the same nmnner. In the one case yoti liave
the loss of tlie property, plus the prospective catch, and in the
other you have the catih without the value of prf)perty taken.
The two coses we submit stand in exactly the same position.

My friend has taken the trouble to cite a large number of
authorities to elucidate this point — what is tlie proper measure
60 of dauuiges in a case of partial loss, or, the measure of damages
wdiere a vessel Idis not been seized, bul, simply detained. I am
not going throujjli these authorities to any great extent because
they are all subject to the same defect, so far a» this case is con-
cerned. There is not one of them which he can cite that has

(Mr. h'ti'is' Aryniiu-nt.)
tl Iciiiciil 111" ind'iilii! I to caiisr tin- actiml injury timt wan

t'illlM'll.

'I'lii'ii- is iiiH' CISC I wiMiM like (i) citll viiiir atti'iitiiin purticu-
larlv tl' liccaiiM' it nuiics ilic iicari-st (u liaviii;^ tin- iiiti'iilion in
it than any case tliat has liccn ritcil. That is Urown iij^aiust
Smith, cilcil un |>a;;i' 1'2+ iif my iVirnil's ai'^^nnn'iit, ami it is
10 ii|Miilcc| in l*J Cii-hin;;, .'tiKI, .\i (iist si^hl it appiand |o mo
that this ra>i> canir vriy ni'arthf |Miihl as hrin;; a casi' whrrcthi'
man haij the intention nf cutumit in;; thr injnry which was

"jniii'. I'lir I'.iitsiir tl asc wiTc tlicsc: A master was

i'm|i|ciyfii as cajiLiin <it' a whalin;; Vessel, unij while lie
was iiut iin ihe viiya;;;e, after he hail Keen some time
at sr.i. lie ;;iil tireil ul' whalin;,', ahanilnneij the vuya;;e
aii'i an ariinu was linai;,'!ii ehiimin;.; IVum him <lama;;e.s for
the loss 111' the \nya;;e aii'l i'lir the liiss III' the tishiii;; ami all
tiiat suit tl!" ihiii;;. They ln'M in that case that reasimalile
0() i|.iiii,i;;es I'ur IneaUin;;' tljillie \ iiya^Je <'i illjil he ulilaineil, hut that
ciiiijeetiiiai or ["'■'•-ilile |iiiilils III" 11 whaling; \iiya;;e caninit lie
taken intii ciiiisi'leiation in estimatin;; the (lania;;es. It struck
meat liisi si^ht that that a|i|)eareil tn lie a case rather a;,'ains(
(iiir ciinteiitii'ii, I r miu'hl he tiseil as slmwin;; that there was
siinietliiii;^ like ail intentiiin tn cause the llama;,'!' that was
caiiseil. However, w lu'ii We coiiie to look at the matter ami sec
liow the case came n]!. it really a|i|pearei| that t he decision iliil
not amount to th.il. Tin jury i'oiniil a verilict for the plaintill
aii'l the ilefemlant tonk the case up on motion to .set it asiilc on
Hi) the ;;rounil of misilirei'tion hy the court. The Jtify were in-
siriuleil lliat the plaiiilitr was ako entitleil to reasoiiahlc
il,pma;;es for tlie lireakin;;- up of the voya;.'e, hut thai no con-
jiiiural or possilile profits of a wlialin;.; voya;;e couM he taken
' into eoiisideialion liy the Jui'y in est imat in;,' such ilama;;es. 'I'he

(iefeiidaiil eouM Hot oliject to that part of the cliarp' that tolil
the jur\ ihi-y uiusi not timl conjectural ilama^je.s. He ohjecteil
to ilial part of the ehar;;e which ;;a\e the plaintill' any ilama;,'es
at all for the tu'eakiii;; up of the voya;,'e. The jui|;,'ment was
;;i\eii ami the ilei'eniianl s oliject ion was not reeii;,fni/ei| ami the
4(1 juilnineiit had to slaiiil. They saiil that the rulin;; on t he ipies-
t ion of llama;;! s was correct. ( )f course, the defendant could
have no olijection to that part of the char;;e that tlu' plaintill"
could mil recover conjectural dama;;es. All the other ciises arc
suhjiit III the very oliji'dion I lia\e stated with re;;ard to other
matters thai none of them come u|i to the point of sliowin;;
that there was any intention to causi> the actual injury which
was causi'd. \\\ can he explained, or all can lie shown to he
ditt'ei'i'iit. i)n that >^i'ound. Mill I do not intend to take up
the lime of yunr Honors hy e;oiu;; thrnu;;h these
,j() authorities, Ui'CiUisi' one Inoad distinction covers them
all, and, if \ ttni ri;;lil in my contention, ii<> distinction
lielween a wvvv\u>»;i and actual .seizure, and therefore 1 think I
can leave tlial \ioint wheri' it is. If my learned fiiond after-
wards makes mil that a distinction does exist, I will have an
opiMirtuiiity to answer iiim in my reply. At the present time it
a|ipears to us that there is no distinction wlmtevt'r, and that
therefore we are entitled to dama;;cs in liotli cases for
jirospecti ve catch.

Now, that is what I jirojiose to say to jour Honors upon this
(iO (piestion of jirospcctive catch. We claim it is tho direct con.so-
queiice of the act that was done hy tho ofticers of the United
States. We claim that the act was done with an intention and
purpiwe to cause that injury, and that being the cn.se we are
entitled to damages. We claim the authorities show that where

(Mr. I'l'tcrM' Ar^uiiwMit.)

(lie ii"t wiiH intent ioiml ami wilful, us it was in tliiH case, — I tlo
iii)t UNI' tli*-.si- wtM'ils in any Iiiii'hIi sense hut the act was in-
tenliiinal, the aet was wilful, ami whei-t> that is the case the
authorities that I have rea<l say that the ciuestinn is tint thcsanio
as it wouM he whei'e the wi'on^ was not inlenilvd.

Mr. Uickinson : -Tponlhat i|Uestion I a.ssuuie that u\y learned
10 fi'iend will eite any authorities on the doctrine of intention that
III' may have at this time.

.Mr. I'eters: -I do not j)ro|)ose to cite any authority without
;,'i>iii;,' my leai'ned friend full notice of it. If I should discover
any new authority which [ ])ro|)ose to cite I shall certainly n\y*>
him ample opportunity to see the authority and to comment u[>oii
it.

Now, there is one remark which I wish to make, (n the
hrief Nuhmitleil hy n»y.self and my a.s.sociates, we cite certain
authorities from writers upon Civil Law. These will Ihj

20 found in the chapter on the Measure of Dama^^es, pa<;es
22 to 24. Now, I think there is a misapprehension. My
learned friend comments upon this at pa^i^ I'Xi of his ar);ti-
nient. You will notice lliat Pothier says: "The principles
which we have hitherto estahlished, do not fail when it is the
fraud of my ilchtor, etc." Now, the word " fraud " is used in
many instances through that passaj^e, and it is al.so u.sed in the
passai,'es cited from the ("ode Napoleon. My learned friend com-
ments u])on this at pa<;e 1H:{. lie .says: ': The ipiotations from
i'otliier. Laurent, and from Memolhe reijuire hut two comments :

no Kirst, these arc cases of fi'aud ; and, Hect)nd, it need hai'dlv Iw
saiil that the rule of ilama;;es under the civil law ditl'ers from
that of the connnon law, and has no ap|>lication here, neither
has any code which has the civil law fta* a pai'eiit. "

I think my leained friend will find that in niatters inter-
national if there is a ditlei-ence lietween the civil law and tlio
common law the civil law will he adopteil. Hut with re;;ard to
the woril " fraud " that he vises there, it does not mean fraud in
the sense used hy our Kn;;lish writers upon common law. It
means .somethin;^ — for instance, culpahle nei^lijrence is fraud. It

40 is the rlislinction hctweeii a tortious act and one that is not ft
t'li'tioiH a-'t. It has a murh hroader meanin<; in the civil law
than it does at connnon law. The author is drawing a dis-
tinction not hetween fraud as we understand it, hut Himi)ly a
tortious act. adiHerent thing altoi,'ether. My learned friend com-
ments upon that as if fraud was construed as it is hy our Knjjiisli
authors wheie it is u.sed in the contractefl .sense, as something; of
a dero^ratory natun.': whereas Pothier uses it in a nujch hroader
sense. .So nuich with re;;ardto that.

Now, your Honors will excu.se me for takinjj up ho much time

50 upon this ipiestion of prospective catch, but tlie amount of dol-
lars au'l cents involved, which depend upon the decision
of this (piestion, is so large that I deemed it my duty
to ff) pretty fully into the matter and bring before your
Honors as clearly and as forcibly as I could the authorities that
bear upon the matter. The conclusion to wliich we come from
these authorities, so far lus we make them out, is this. In mat-
ters of international dispute, claims of this kind have heretofore
been allowed, notably in the ' Geneva" case and other cases that
I have cited. They have also been allowed in collision cases iu

60 the Admiralty Court. In collision cases where they have not
been allowed there has been the v.-ant of element of intention.
The cases in Prize Courts have no application whatever to this
case for the element of intention does not arise. These are the
principles upon which we place this claim.

1 .

(Mr. I'l'tfTN' Arjfiimi'iit.)
Niiw, I Imvf nil.' wiinl iiKirc to niiv. Wf Miihniit tliiit in «|U«'h-

(iiillM iif tllin kiml lirtwrcll two ^I't'llt llllliulis wlict'f u (liN|illttt

liiiH iiriNi'ii will) I'l'^riii'il to till' I'laiin nl' our ii|iiiii aiintlifi', tliat
wlirii ill till* ciiiii'M' III' tliiit iliNpiiti-, i'lir thf |iiir|)<iMt' of l)riii|;iti^
till' ilispiili' til a III nil, till' ri^lits nf jirivatc imiiviihialH who liavi-
liiM'ti iiijiiri'ij ail' Niiliiiiilli'ii In iirliitratinii. tli<- iiatiuii wlio in

10 a^ki'il In rii|ii|ii'tiNiit<' tlii'lil, ><liiillli| lir anki'il tii ilii so witll II
iilii'iiil liiiinl. ami. iii^ti'inl i>f i-anl'iilly Ncaiiiiiii;; i-vri-y ili'iii,
wlii'iii-vi'i' it is |iiis.silili' til ilii s<i, tlii-y mIiiiiiIiI \»' di'iilt with in tin'
tiiii.st liltrral iiiaiiiifr. I''ni' iiiHtaiici*, iimli'i' tlii.s iiriul nf
|iriis|)rctivi> catcli, if tlir ciiiirt nIhuiIiI coiiit' to tli<' ctiiii'lusiiin
iliat \\r arc nititliil to tlint itiiii. tiny hIihuIiI a])|ily tn tliiiii tlio
innf<t |;i'iii'i'iiiiH nili' ; tn ii^r till' wnnls that \vi' havr put in niir
hriff "till' <l«iiia;;i'H hIhiuIiI lir ushcnm'iI in such a way as tn Iriivi'
iinilnulit that I'Mrli iiuli viiliial who waM injui'rii liy thr action of
till' I'liiti'il Stall's sliniilil III' ('nni|ii'iiMati il in thr fiillt'st antl

20 aiiipli'Mt iiianni'i'." That in thr iiriiii'ipli' wr claiiii Nhntihl liu
ai|i>|i|i'i| with rt'frri'iK'f tn jiriispirtivi' ratch. It is thr iniiiciplo
that has lirrn ai|npt«>il hy ail trilmnals that have litnl tliis (pirH-
tiiin lii-fni'i- thciii. Taki' tin- inaiiiiri' in which the (icncvii
nwanJH were iiiaih-. Whiit <liil they iln :• The iiiimite ( irent
Uritain was fniiml In lie wiiin<^ the Arhitratinn tnnk very little
time iipnii the ijiieNtinii nf (laiiiap's, hut Ncttleil tliein on a scale
(if the iiinst liheral kiln). I.iink at the i|lleNtinll nf the ilailinp'H
claiiiieil in the 'Cnsta Uica'case. Theaiiinimt nf <laiiia;;es nctiially
pi veil wusiiinch lar^jer than theaiiiniiiit claimed. I say that wlieii

I'lO the en: e cnlllesilnwil tn a i|l|i'stinil nf cnliipelisat inn there siinillil be

no ijiiuht left in the minil nf any persnn that the compcn-
Hatinii allnweil is as full ami amjile as pnssihie. I feel satistieil
that my learneil frieinl takes the same view nf it, liuiL when
the ciise comes ilowii to a i|Uestinn nf ilnllars Mini rents he docs
not want any item nf iiama;;e which this Trihunal tliinks to be
n prnper item tn he <,nveii in auythin;; hut the nin.st ample nil full
inanncr. In the "("nsta Rica" ca.se the claim tileil hy the
claimants ainnunted tn .C-.'iOO and the damape.''i allnwcd were
£.'J,l."iO. That was fnr dainafjes tn the master.

4 There is another i|iiest ion upon which we are at i.s.sue. We

claim that the proper cniirse tn he |iui'sui'd hy this 'I'l'ihunal is to
a.sMcss all the dania^jes under all the heads— damages fnr value
tn the ship, the prnspective catch and all other daiiiap'M, add them
nil iipaiid then coiiipiite upon this amount interest at a certain
rate from the time the injury was done until the present time. My
learned friend Joins issue >\ith me to a certain extent. He dncH
not altn;,'ether claim that we are not entitled tn interest, but he
claims that we are only entitled tn interest iipnn certain specific
items. lie says if you are tn ;;et deiiiurra;;!', or if you are to

50 pet prospective catch, or anything of that kind, you arc not to
pet interest upon it : 3011 may pnssihiy he entitled tn interest
upon the value of the ship, upon the irxt the thiiip that was
tnkeii, hut no further. I join issue with him entirely, and we
Htnmi iijKin this proposition, that intereHt is a proper item to ho
taken into considerntion in all matters betwe«'n nutioiiH where
questions of conipensation roiiie up. It fornm a pnrt of the
coinpensntioii, and we take the prniiiid further, tlint there is no
diH'erence wimtever whether it is upon the property taken or
what tlie nature of it is.

60 I will cite now at the very outset, this case of tlie "Costa
Rica,' where thin i|ueHtion amo came up. You will find the
judpment on the very last page of our reply, page 18.
tor these reasons :
" I declare the Government of Her Majesty the Queen of the

(Mr. IN'tiTu' Arpmudit.)

NitlicrlaiulM ri'Hjxiiisililc, iiiid I, c(inHfi|ueiitly, fix tho itidcinnity
Ui Ih' |iaiil, at

"Till' Hiiin liital i>f £:»,!;■>() tn Captain C'ar|i<iitt'r.

"Till' Hiiiii liital III' 1 1. (»(>(> ti) lilt' iiHiffi-ii ami crow.

" Till' Slim li'til of .i;:i,S(K) ti> tlif uwiiiTM of till' vi'Hm'l " ('onta

Hii-a I'ai'ki't."

' With iiitiifst nil all tlii'.><r i'liarj,'i'.s at tin- rati- of 5 por font.
" MIT Miiiiiiiii. Iriiiii till' -ml Nnvi'iiiliri', JHIH, till' ilati; i)f the
" illc';;al airist nl' Cniitaiii ('Mrpi'iil"'!', ami I put tin- rxpi'iisi-.s at
"till' tntiil sum i>f .t2."iO, tu lie paiil liy tlio < liiviTiuiu'iit ol" Her
" .Maji'Mty till' <7ii>'i'ii uf till' Ni'tlirrlaiid.s. '

Sii lii'i'i' Ih a lii.Hlimt lii'cisiun, tlif viry lati.st, iiiiuli' liy an in-
tiTimtinnal lawyiT nl' ;,'roat ropiito, tliat in making; up liiH coni-
pi'iisjitinri 111' wiiulil allitw inliTiNt fniiu tlio tiiiii' nl' tli" ni'i/uri'
(ir till' anrsi in tlial partii'ulai' ra.Ho. Tlii'ii, wo I'liiiii' tu another
iiiitliiii'ity, I rrfiT yiiii also to a casi' wliirh 1 dn not think is oiti-d
20 in my i)ri;;iniil lirii'i', liut is roliid upmi \>y n»y loarni'd friond, —
till' .'aNi' III" till' Canada ' In that award hy Sir Hicluird
Thornton, ho niakoH up at tho ond of it a dotailod Ntatoniont of
till' diU'oront itonis wlnoli li<' I'uvo. I want to oall thi; attontiun
of tho oourt to till' naturo of tin' ■ itom.s. In tho first plaoo he
allows tiio ship !<l(>,()()(); tlion. Im propnration !:<:i*J,()()U ; thon. a
oortain amount for oil, and a oi rt.iin amount for food and cloth-
ing;, and for tho passajjo of 'id moii to tho I'liitid States; throe
inontlis' |iay of tho inato "i crow, iind tlu' wiiolo tiling aniountH
to ?<.").'i,l)(i:<. And thon ho addsthi.' itoii, , ' Intorost at (! percent.
30 for I'ih years from Doconilior 1st, iSoti, to .June Ist, 1K70, making;
8-l-">,OI)0 iii'iro." So, in that emo. In ijavo iiitorost upon ail the
items claiiiiod. Tiiat is a dooisimi which appears to he a^aiaift
tlioiii on that {..lint.

1 mi;;lit also rofor a;,'ain tu another case not roferriHl
to in my liriof upon that point, and that is a ca.so cited
liy mv frii'iid tho ' .-Vmialilo Nancy," wliidi is re-
ported in I{ Whoaton, •")<••■<. 'I'ho judgment jjivo.s tlie items
on paj;e .'>.')(!, so mucii for tlio loss of tlie owner of the
sciiooiior, oxpon.sos duriiij; iior dotoiition, etc., and tiion intore.st
is addod on tlioso sums at tho nito of 10 per cent, from tlio Ist
of .lanuary, LSI."), to tho Ist of Siptonihor, 1SI7, two years and
oi;,'i;t months.

riioro is another case I will refer your Honors to in 1 Ung-
pirt, l)a;;o MO.'), 'i'liis was an applic.ition to lirin;; certain prize
money into coin-t, and it was ordered that it siiould bo hroujfiit
in and application was made for one per cent, interest a laontii,
ami tiiat order was al.so made.

Now, passini; from tlio cases liotwoon parties to otiier caaeH
between nations it will lie found tiiat interest is allowed in
60 almost every ca.so. In some cases interest lias not Ix'on allowed.
In tiio ca.so when" Mr. Mates was tiio Aliitrator, wliicli I liave
already referred to, lie did not jjivi- interest, but that case cuiues
before us witii no standing; of tlio Arbitrator, as an inter-
national lawyer.

At one o'cloclc tlie Coninii.ssionors took recess.

jueen of the

At half-past two o"cliM>k tiie ClommiHaiimorH resumed their aeattt.

Mr. Peter.s: — Your Honors, when the adjouninient took place
I was pr(Kreedi"v' to make some remarks with regard to the case
60 of the " Canada . Tliat case is commented upon by my learned
friend, Mr. Dickinson, in paije 1411 of his nrfjument. He com-
ments on the quotation thai was made from the " Canada" case
in our brief in the following manner : .

" Ihe award of Sir Edward TUomton as umpire in the case

t I

■fvispvv^^WMrnr tmj]f9 i|^.i

■'

(Mr Pi'tors" Ar>j;unu>iit/)

" of tlir Uiiitfif Stiitfn aijiiiiisf HiukU is cltvil. Tliis ciisc lias
" U't'ii lumly/.t'tl ill this Krjjuim'iit, ami it iij^poars, an Sir Houiult'll
" I'lilinor Mtatos, that the tltrisioii |iroci'('(liMi u|>(>n ' ordiiiarv
"judicial jiriiu'iplcs', and he rccitt'.s tlic t'sju'cially rockli'ss ami
■■ wilful character of the wronjj in this sci/.nrc ci>iimiittc<l hy the
"military forces of Hra/.il, the ship heinj; then under that

10 " nation's jn-otect ion. He further shows (as does the Record)
"that 'the jiayment of the couiptMisation and indenniity, thoujjh
•' promptly claimed at the time, was for many years delayed ' ".
I think, your Honors, this .same remark niii;ht he math' with
rei;ard to the cases hefore us, my learned friend, Mr. |)ickii».si)n,
continues in his written ar;;timent to say :

" I'he ' ordinary judicial principle' to which Sir Uoundell
'.' Palmer adverted, demonstrates, as he .shi>ws, that that ca.se
" came within the rules where iiitt'rest should he ;;iven in tlie
"way of damaijes as for a reckless or malicious tort, and

20 "also irhfi-f thrir has hem ' inireusoimhlii ii<lity' in the payment
"of the compensation, when promptly claimed, and withaniin-
•' tlis|)uted hasis for it, .set forth in the claim".

Now hearinij in mind these remarks, let me refer a>;ain to the
award of Sir Kdward Thornton, as we (ind it at l>a}je 2()!> of tho
British and Korei;jn State Papers, Volume 2(i(). This is what
Sir Kilward Thornton says with rej^ard to interest :

" In the ]>resent case tliis ohjection (that was the objection a8
" to prospective catcti) has more force, inasmuch as the " Canada "
" was comm.inded hy a captain who very little after sunset and

no "before it was dark ran his shiji a;^roinid on a reef of whose
" existence and position he oujjht to be aware, still the inider-
" sij^ned cainuit admit the validity of any ar;jument that woulil
"exempt the Imperial (lovernnient from the ]>ayment of in-
"terest. If the claim itself can be maintained, of which the
"arbitrator has no doubt, the claimants have a ri>^ht to interi'st.'
Sir I'idward Thornton does luit j)Ut the claim for interest on
any ipiestion as to whether the wroii}; was a wilful or nialieious
wroiii^. or as to how the delay was cau.sed in the settlement of
the claim, lie puts it on a dearer and more understandable

40 tjrounil. namely, that if the claim it.self was a proper claim, aluiut
which he had no doubt, it followeii as a matter of course that
interest shiiiild ;;o with it. The remarks made by opposinj;
counsel in thiseoniiection appear to me to be without any weie;ht.
In the " Canadu " case, as 1 have stated, they allowed the interest
from the timeof the seizure until the time of the award, a period
of \',i years. We have in our brief, your Honors, set out several
other international cases at pai;e 'i'>. \Vt> first cite from the
arj^ument at (ieneva. and we say "so in the ca.se of an award for
" daniajjes by the Kinperor of liussia. in a (>laim of the l'nite«l

."iO "States apiinst (ireat Ih'itain, under the Ti-eaty of tJhent, ad-
"ditional damaj^es were awarde(l in the nature of dama>;e8
"(interest M from the time when the indemnity was due. In
"that ca.se Mr. Wirt holds that, accordinj; to the usaj;eof nations,
"interest is due on international transact ion.s. "

We cite hei'o on this .same paije ',\!\, all these statements from
the ar^junient of the Tnited States at tJeneva, and that arjju-
nient comes Itefore us in this nuinner. Not only did the I'nitcd
Strttes argue that they were entitled to interest, but they suc-
ceeded in gettitifj it, and the wliole tribunal were uimiiinivnis —

00 I think 1 am rijjht in saying this I — that interest was a j)rop«>r
subject to be obtained. Then again we cite in our argument, the
argument for the Ignited States as placed before the Ueneva
tribunal ; and we cite the argument of Sir Koundall Palmer in
answer to that, so that the positigii of the two nations can i.iirly

It wa.s II jiroper

(Mr. IMiTs' Arjjuiiu'iit.)

bo jiitlijt'il of hy l<M)kiii;;a( tltf ojiposinj; iirfjimu'uts iis tlicn pre-
HciittMl. lirn't'crrinj; to tliost- ai'<;uiiifiits we say in i>ur brit'f : —

•' III iiii.swcriiii; tliism-jjiiiiH'iit, Sir Koumlfll Paiiiicr, (or (Jrotit.
" Britain. rcfiTrin;; to tlic ca.scs inidtT tlif .lay Treaty, citi'd by
" the I'liitcil States (."tmn.st'l. says :

"This apiin, was a ease ot" thcawarii of interest on a priiieipjil
10 " value, aetiially ascertained ami jirovi-d to be reooverabie by
" ai)|>ro|iri;iti' evideiiee, in re.sjiect of property lieloii^jin;; to eiti/eiiH
" ot the I'liited Stati's, wiiieh bad iieeii sei/eil and iqipropriateil,
"and unjustly detaiiuMJ, and (in some eases) sold or ollierwim-
" disjiosed of for their own beiielit, by |ieisons aelinj^ iliiiler the
" jiulilie authority of the Crown of (ireat I5i-itain. In Indli
" these es.s.sentiai points this ])reeedent of I"!I4 stands in direet
"opposition and eontrast to the elainis now hefore the present
" triiiunal."

That was the nrfjuiiient then presented for (Jreat Ifritain,
20 namely, that the amount was not aseeitained. and that they
eould not allow interest on it ; liiit notwithstanding that ar<;u-
iiieiil interest was allowed. We have therefore the faet.that the
I'laiiii was iiiaile by the I'nited States, we have the ^^round upon
whieh it wa.s made, we have the opjiosin;; i;rounds of ( ireat Mritain
and wf tinally have the uiianiinous award of the Tribunal hoKi-
ini; that interest shoulii be allowed. 'Ihat (ieiieva ease is a direct
authority upon the tiuestion of interest.

If your Ho!u>rs will follow on with the brief as \vt' have pre-
sented it, you will find that we make a i-eference to the opinion
30 of the I'liitecl .States Attorney-* ieneral Wirt in a case in whieli
the Kinperor of Ku.ssia was arbitrator between the I'liitiMJ States
and Hra/il. Mr. Wirt's ar;;ument upt>ii that point appears to iim'
to be very stronj;, and I have stated it at pa<;e ,'U). Mr. Wirt says:

" 1st: Is interest a part of the indemnity awarded by tlie
Emperor ?"

Anil a little further down on the same Jtap' : —

" After the most th'lilu'rate consiileration of all the ar^jumeuts
" which have been uifjed, pro and eon, 1 am clearly of the
" opiiiitm that iniei'e.st at least is a netvssary part of the indeni-
4(* " nity awanled by the Kmperor."

.\iiil at pH;;e ;{| lie makes the followinj^ remarks: —

" .\iid then the only remaining; eiujuiry is, what is the awards
" It is, that the I'niti'd .States are entitled to a just indemnifi-
" cation for the slaves and other jtrouerty carried away by llu'
" British forces, in violation of the iir.st articles of thi'
■ treaty of (ihent. What is just indemniticatioii for a wron^ i*
" Is it the reparation of the one half or two-thirds of that
'• wrone; I* Is it anythinj,' less than a reparation of the whole
'• wrone; / On these few simple ideas the whole i|Uestion turn.s.
60 " If an injury is ju.stly reel. es.sed which is only half redre.s.sed.
" then the British Commissioner is riijht ; but if an injury isonlv
"redressed when the redress is coiiieiisurnte with the whole ex-
" tent of the injury, then he is wroiij;. Let us put asiile the
• emphatic and strikiiij; word just, and take the word iiidenmi-
"ticat ion alone. What does the word ' iiidemniticat ion' mean (•

I think that the word 'compensation', and " indeuinitication"
arc synonoinous a.s far as we are conoenied in this cttsc. Attor-
ncy-(ieneral Wirt ^oes on to sav :

" The .saviiifj harmless from daiij;er. Is that man .saved harni-
t60 " less from .ii.iifjer who is left to bear one-half of the dnnmjre
" him.self ' The ipiestioii seems to nic tiK) plain for di.scussiou.
" Tlie British Commissioner (Sir .lohn Nicholl), who composed
"part of the boftrd under the seveutli article of the treaty
"of 1794, BoeniH to have eiiterUiined a very ditl'ereiit opinion on

1 ^ '^f

r^n

1 J ilM

•1 ll'lli

(Mr. Peters' Argument)

" this aubject from Ihh coHntryman who is now Hitting to execute
" the Emperor's nwaitl. His words are : ' To reimburse to chiim-
" ants the original cost of their property, and all the expenses
" tliey have actually incurred, together witli interest on the
" Avhole amount, would I think, be a just and adequate
" compensation. ' "

I ask your Honors to note the words " upon the whole
Amount;" not upon simply the value of the property, but upon
the whole amount of the damjiges which should originally have
been paid. Attorney-Oeneral VV'irt continues ,

" This, I believe, is the measure of compensation usually mad*
" by all belligerent nations for losses, costs and damages
•'occasioned by illegal captures. Now, at the time of the wrongs
'* now under consideration, we were, as to Great Britain, neutrals
•' and friends ; and stood protected by the most sacred of all in-
■' struments — a treaty of peace:

" In violation of this treaty, the slaves and other property of
" American citizens were carried away in the year 1815, and
" have been detained from them ever since. They have thus
" lost the use of this property for eleven years. Is the meagre
"return of the average value, at the time the slaves and
" property were thus taken from them, a just indemnification
" of the whole wrong ? That the act of taking away the
" property was a wrong, is no longer a question. Whatever dis-
" position there may b<»to make it a (juestion, it has been settled
" by the tribunal of the party's own choice, and can no longer
" hp made a (juestion. The first act of disjMSsession being thus
•* established to be a wrong, is the continuance of that dispos-
" session for eleven years no wrong at all ? Is it consistent with
" that usage of nations which Sir John NichoU recognizes, to
'• redress an act of wrongful violence by the return, at any dis-
" tance of time, of the naked value of the article at the date of
•' the injury ?"

That is the rule which the Attorney General of the United
States lays down.

Mr. Dickinson : — Did he successfully lay it down ?

Mr. Peters : — He successfully laid it down.

Mr. Dickinson : — Mr. Wirt made the argument for interest, but
it never was yielded.

Mr. Peters: — I nm not prepared to state at this moment
whether in that particular case it was ceded or not — I am rather
under the impression it was. I am not going to contradict my
learned friend on that point, but I will say this : that that very
same argument was used as part of the United States case at
Geneva and was successfully used. To show that I am correct
in that contention, I will quote from Hackett on the Geneva
Award Case, page 120, In a note he says: "The language of
" our coun.sel at Geneva in the supj)lementary argument on the
" subject of interest ought not to nave been overlooked. It is a
" matter of the greatest interest to both nations, that the actual
" injury to private sufferers from the depredation of cruisers for
" which Great Britain shall be responsible, shall be fairly covered
" and satisfied by the portion of the award which shall be ap-
" applicable to and ba^cd upon it ; that this cannot be expected
" without the allowance of interest is obvious. "

Let me put this question, outside of the ({notations from au-
thorities. My learned friend, Mr. Dickinson, admits, practically
admits, in fact he cannot help admitting that if you take the
GMe of the mere seizure of a vessel, a vessel taken in the year

ing to execute

)ur8e to claim-

tlie expenses
.erest on the

ud adequate

»n the whole

^^is^^l

rty, but upon
riginally have

i^^^^l

usually mad*
and damages

of the wrongs
•itain, neutrals
red of all in-

%^^^^H

L'r property of
ear 1815, and

'S^^^^^m

ley have thus

Is the meagre
le slaves and

idemnification

''Wm

ng away the
Whatever dis-

ns been settled

can no longer
on being thus
f that dispos-

'^^B

.onsiHtent with

recognizes, to

■■^Ij^^^^M

rn, at any dis-
at the date of

'^^m

of the United

;m/m

or interest, but

(Mr. Peters' Argument.)

1886, and compensiition is paid in the year 1897, the value of
the ship and interest ought to be given. He cannot dispute that
proposition. Practically speaking, he does not dispute it. But
he says there is a diH'erenee with regard to the claim of pros-
pective profits. Let me ask your Honora, wliy should there be
any difference >. If we are entitled to prospective profits, then

10 we should be entitled to interest on these profits, We were
entitled in the Autumn of 1886 to compensation for seizures
made during the season of 1886. We were entitled
in the Autumn of 1886 to full compensation, being the value of
the vessel seized plus prospective catch. The amount of the
compensation was uncertain, but id cerium est quod certum
riddi potest, and now we, for the first time, obtain accurately
what that amount was. We have evidence to show now what
amount we were entitled to recjive in 1886, and using the
argument of Mr. Wirt, in order to indemnify those people, and

02 to compensate them, you are obliged to put them as nearly as
you can in the same position as if no injury had been done to
them. Now then, what should the United States have done if
this dispute had not ari.sen, and if all these negotiations had not
taken place ? In the year 1886, if we are correct in our argu-
ment, they would have paid us the value of the ship seized, plus
the amount that should be coming to the owners for the pro-
spective profits. If that amount had been paid by the Umted
States in 1886, and if the owners had simply taken the money
and invested it from that time forward until now, at such a

30 rate of interest as tliey could have obtained, then in this year
1897, they would have been possessed not only of the original
amount of prospective damages but they would be in possession
of that amount plus the interest up to this date. According to
Mr. Wirt's argument, you should place the person in the same
position as if the injury had not been done him, and in order to
do that it is necessary that you should allow him compen-
.sation for the injury done him, as well as the interest on the
amount of that compensation. I submit your Honors, that on
the simple ground of fair play alone )'ou should grant interest.

40 If a man owes* me i^lOO and he pays it when it is due I take it ;
but if he says I will not pay it to you until ten years after-
wards, and he granted me no interest, the amount I would lose
on the interest would be larger perhaps than the original sum.
And when we come down to questions between nations ; one
nation standing in the po.sition of a wrong doer ; one nation
putting forward a claim, the putting forward of which
caused injury, and that nation comes to court and asks what the
amount of that injury is, I submit that the duty of the Commis-
sioners docs not confine them to .say: we will determine what

SO the injury was in 1886. I submit that your Honors duty is, to
see that at the time the compensation is going to be paid that
the amount of money payable to the person injured should place
him in the same position as if the injury had not been done.
You cannot place him in the same position without allowing in-
terest. That line of argument, as I have pointed out, was the
line of argument followed by Attorney General Wirt, was the
line of argument followed by the Uuited States counsel at
Qeneva, and was the line of argument that led the arbitrators at
Geneva to give the award in these words : " It is just and reason-

€0 "able that interest "hould be allowed at a reasonable rate."

My learned friend, Mr. Dickinson, in his argument at page
145, then refers to the citation I hare made from Mr. Wirt's
opinion : —
" The ai-gument of the Attomey-OeiUfal of th« United States

II!" .! ->•"• 'fi.

I :

(Mr. Peters' Argument.)

"(Wirt) under the (indiiif/ of the Emperor of Germany ia cited.
" It is true that that advocate argued that the United States
" should have interest in that case as part of the indenintiy
" claimed by that government ; but the case is not an authority
" for Great Britain, for the rea.son that the Coniniissicners did
" not agree upon a decision an<l tlic result was anotiier suppie-
10 " mentary convention between the two coui tries. "

That may be true, and no doubt is true, but it does not detract
from this fact : that the eliief law officer of the Uniteil States in
a verj- carefuiij" jirepared and argued out opinion, not only stiites
the principles that interest should be allowed in these inter-
national disputes, but gives strong reasons why it should
be alloweil. The fact that there had to be a supplementary
convention to settle the dispute does not in the slightest degree
detract from the weight of the authority holding this position ;
an authoritj' which I frankly ailmit would not be an authority
20 against (Jrent Britain but which certainly is an authority as
against tlie United States when we tind thum in a dispute some-
what similar to this, putting forward as the ground upon which
thej- stand, aground which tliey contended was the right rrronnd
and when afterwards we find them pressing that before the
Geneva arbitration and pressing it to a successful issue. Wo
refer again in our brief to the case of Ekins vs. The East India
Company — and I wish to call your Honors attention to this
point:

" In the case of Ekins vs. East India Company, it was decided

30 "that interest should be allowed for a ship's cargo taken by the

" tlefendant ; and this being done in the Indies, Indian interest

' was alloweil, (al)out 12 per cent.) deducting the charge of return

" from the Indies.

It was objected :

" 1. That the value of the ship and cargo being uncertain, it
" could not, in the nature of it, carry interest, but from the time
" it was ascertained by the jury.

" 2. That the plaintiH'had, at this time, rested thirteen years
" upon his own bill, and therefore to allow him Indian interest
40 " would be to mkke him a gainer by his own delay.

But the court decided :

" If a man has my money by way of loan, he ought to answer
"interest; but if he detains my money from me wrongfully, he
" ought, a fortiori, to answer interest. And it is still stronger
" where one by wrong takes from me either my money or my
" goods which I am trading with, in order to turn them into
" money.

"Therefore, let the defendants pay interest ; and this being

'• transacted in the lu'lies, where the person who acted by

50 " authoritj- umler tliem, and for their use, must be presumed to

" have nuide the common advantage that money yields ♦ . the

" companj' must answer the interest of that country."

I think that note gives all the information there is in the
case. There isi a note to this case at page 390 which saj's:
" This decree was affirmed on appeal to the House of Lords."
That decision therefore, conies before your Honors as the
decision of the highest court of appeal in Great Britain.
Again I would refer your Honors to a very valuable book entitled
' Notes to Treaties," by Mr. Davis, who, I think I am correct
CO in saying, was the agent for the United States at the Geneva
Convention.

Mr. Dickinson : — Mr. Bancroft Davis. He is now the reporter
of the Supreme Court.

Mr. Peters : — Yes ; he is a man who speaks with a good deal

nauy is cited.
United States
10 inileiiiiitiy
. an authority
lissicners ilid
lotiiur supple-

es not detract
ited States in
lot only states
» tlu'sc inter-
hy it should
upplenu-ntary
ij^iitest dt;<;ree
this position ;
! an authority

authority as
dispute soinc-
id upon whicli

rij^iit (Tronnd
at before the
ul issue. Wo
'he East India
;ntion to this

it was decided
I talvcn by tlie
idian interest
arjie of return

; uncertain, it
from tlie tiino

tiiirtoon yoars
ndian interest

'j\\t to answer
ron!j;fuily, he
still stronpfcr
money or my
rn them into

rid this being
10 acted by
presumed to
Ids t . the

ere is in the

which says:

se of Lords."

onors as the

roat Britain.

book entitled

I am correct

i the Geneva

V the reporter

h a good deal

, (Mr. Peters' Argument.)

of authority on these matters. Referring to interest Mr. Davis
in his " Notes to Treaties " says: "According to the usage of
" nations it is a necessary part of ajust national indemnification."

Now taking these treaties, let us examine the proposition as ]ai()
down by my learned friend, Mi. Dickinson; at page 143 of his
argument, and lot us see whether there is any ground for the
flO distinction he attempts to draw. He says : " In limine, it may
" be said that interest was never before claimed upon prospective
" profits, or upon anything given in lieu of prospective profits.
" The only reason ever given for the allowance of interest at
" connnon law, or by the civil law is, that as prospective profits
"or future earnings cannot be given, interest shall be allowed to
" represent future earnings, or future profits, as the near«st
" approach to a just rule that the law can attain.

" But here is presented a claiiu for future earnings, as well as
"for the actual values, all, too, embracing the theory of punitory
[20 "damages, and withal, a claim for interest superadded to the sum
" of all these."

1 doubt very much whether that statement is absolutely
correct.

Mr. Dickinson : — " Or upon anything given in lieu of prospective
" profits."

Mr. Peters : — I take the Costa Rica Packet case, and I find
that interest was claimed and granted. That is one instance at
all events — and I think also, that a proper reference to the
Geneva Arbitrati(m will show that interest was claimed and
30 granted. It must have been granted because the amount given
for interest in the Geneva Arbitration case must be a very large
sum. We can never get at the exact amount, because the amount
of the award that was given was far larger than the tables put
in by Mr. Staemphli, and it was difficult to say what interest
was granted.

Mr. Dickinson : — It was far less than the Staemphli table.

Mr. Peters: — Well, I will not make a statement that my
learned friend says is not quite correct. I say that with regard
to the Geneva Arbitration, we cannot get at the exact amount ot
140 interest they did allow, but there is noiloubt they allowed a lump
sum, taking interest into consideration. M}* learned friend, Mr.
Dickinson, in his brief states the following : —

" In limine, it may be said that interest was never before
" claimed upon prospective profits, or upon anything given in lieu
"of prospective profits." The only reason ever given for the
" allowance of interest at common law, or by the civil law, is, that
" as prospective profits or future earnings cannot be given, in-
" terest shall be allowed to represent future earnings, or future
"profits, as the nearest approach to a just rule that the law can
" attain.

" But here is presented a claim for future earnings as well as
" for the actual values, all too, embracing the theory of punitory
" damages, and withal, a claim for interest superadded to the sum
"of all these."

Now, your Honors, I submit this proposition. Admit for the
sake of argument — which I do not need to admit, and which I
only admit for the sake of argument — admit for the sake of
argument, that there is no case where interest has been given
upon prospective profits. -Supposing interest has not been given
in the past or has not been claimed ; is that any reason why in
a case where it is shown that ju.stice requires interest to be given,
that you should refuse it. It is no reason whatever. But let us
go further in that matter. The position that my learned friend
takes is a little inconsistent. His position is, that proipee-

mm ifwrjijrr ■

(Mr. Petoi-H' Aifjuiiu'iit.)

tive profits or prospdctivi* catcli liavo no-, or been allowed
in matters ititcrnatioiml. It followN as a matter uf
course tliat if prospective' profits or prospective Caitcli have not
heretofore fiecn allowoil in niattors of international dispute
that interest upon that prospective profits or prospective catch
coulii not he allowed That ;^oes without sayin;;. if this claim

10 has alwa3'a heeii disallowed, then a fiirtinri the interest has
alwayn heen disallowed. But is the statement of m^- learned
friend, Mr. Dickinson, correct that interest has not heen allowed
or that it should not he allowed. Sir Kdward Thornton sayn :
"If the claim is j,'ood it follows as a matter of coui'se that the
claim for interest is also f^ood." I douht very much that my
learned friend can carry out his proposition that interest has
never l)een allowed on prospectivt; profits. If it he aihnitted
that we arc entitled to ohtain such an amount of money for
prospective profits in 1S(S(I, there is no sound reason wh}' we

20 cainiot LTct inten.'st on that just as much upon the value of the
.ship which we lost in IMSfi. And your Honors, as has heen
sufjgested to me, the very same prinei])le that I have heen
attemptin}^ to arirue in re;,'ard to tlio allowance of prospective
pr(<fits at all applies to this ver)- samt^ case. In the inter-
national disputes up to the pri'Sent time, where this question
has fieen decided, yuu do not find the (luestion of "intention"
comin;.; in at all. That al.so a|)plies to the ipiestion of interest as
much as it does to tlie (piestion of the valu> of the prosjteetive
catch." The two things are interniinLtlod to;^ether, and it one is

30 a,Ilowed the other should he allowc(l. The arLfuiiient that my
leariKMl friend jints forward with ri';;nrd to the disallowanei,' of
interest is as follows. He takes our I'l'ferencc to "Sedgwick on
Diimaj,'es " and he says :

" Where money is due without an}' definite time of payment,
"and there is no conti-act, express or im])lied, that intei'est shall
" he paid, the Kniflish rule, independent of statute, is that it can
"not bi! claimed."

That is applying to nnuiicipul matters altogether and it stec'rs
clear of the point that is clearly laid down in ordinary actions

40 of prohate, namely, that interest is recover ihle as part of the
damages. That ;s coiii...oiily tlio c ; ;■. My learue I frimd
(juotes the rule of the New York pidgment as to interest, as
follows : —

" In two actions against the ma-tcr of a ship foi- non-delivery
"of goods, it was held in New \nyk that the jury ndglit give
"Uanuiges if the conduct of the ilefendaiit was improper, i. e.,
"where fraud or gross misconiluct could he imputeil to him ; hut,
" it appearing that such was not the f^et, it was not allowed ; and
"that interest nuij' he given hy way of pTuiishment for any

50 " illegal conversion or use of another's property "

Well, your Honors, it is not altogether punishment. There
are two sides to that st(jry. " Interest may lie given liy way of
" punishment for any illegal conversion or use of another's
"property," — hut it is not necessary that it should he given as
punishment. I submit, your Honors, that if one man takes
another man's property for, say ten years, and gives him the
value of his property without interst ten jears afterwards,
.someone undoubtedly would be punished, but it would not ho
the person who took the property, hut the person whose property

t>0 was taken. It would coiie clearly with the " intention " here
and the rule as I have laid down before.

Tiien he cites some other cattes which I do not see support the
position, and refers to the opinion of Attorney-General Wirt.
All I have to say in regard to that is that that same gentleman.

(Mr. Petera' Aryuinciit.)

Attoriiey-OeiHM-ftl Wirt, liiy.s down tlic yciii-ral proposition that
intcrcHt is a propt-r itfin to Ite coiiHiilcrcd in a jiiHt iiulrnniitica-
tion in rt-jjanl to international wron;;.-;, mh I liavo alrt-ady Htati'd,
and ln' cites tlu- casr of tlic " Mont ijo,' i|notinj; from tin- opinion
of tin' nnipire. Tlic riili' is <;ivcn I litre as follows:

First, lit'cansc tlicrc is no settled rnio as to tlie payment of

10 interest on claims on countries and j;overiiments;

•Secondly, liecausc it seems open to ijuestion whether interest
should accrue during' the pro>,'ress of diplomatic ne;;otiations,
which are often protracted in their character :

Thirdly, Tlii/i leatiiin. (titpUfx irilli Sjieriid finri' to nt'i/oliations
uliick result in an arhitration or friendly arran;;ement :

Fourthly, That whilst doin;,' what he considi'i-s strict justice
to the t'laimants hy ;;ivin;^ to them the full value of the use of
their vessel durin;; her detention, In- desires to avoid any appear-
ance of fill nixlii III) t\ii' Columhian peoph; at larj;e for an act

20 with which veiy few of them had anything; to do, and which
attected no ('olumhian interests heyond those of a few speculntofH
in revolutions in I'lmama.

All tlii'se ar;;uments useil there would ec|ually well have,
applied to the (ieiieva award case — every one of them, if it was
the case that there was no settled rule, hut I do not admit that
proposition. I say thoauthorititss show there isa settled rule with
re;(ard to the jiayiiieiit of interest ; and ho says it seems open to
fpiestion whether the interest would accrue durin;; the projfress
of diplomatic. ne;,foliation.s. The diplomatic ne;,'otiatioiis went

30 on for a lonj; time hefoi'e the (ieiieva arhitration was made an
actual fact, hut notwithstanilin^ that, interest was allowed. It
does not matter now whether allowed on IIk- value of ve.s.sels or
what ; hilt if tln' ar;;ument used hy the arbitrator in the case of
the " .Moiitijo" was correct it would have a|iplie<| also to the
tieiieva arhitration ami more than that, under what he says, it
seems open to (juestion. It mi;;hl have so seemed to him at that
time, hut it is not open to ipiestion at tlu' present time when we
have .so maii3' authorities upon the point. The umpire jfives a
reason thei'e and it is as I have alreaily read ; and there is

40 another reason — "that he- desires to avoi<l any appciranoe of
puiiishin;f the C'olumhian people at lar^e for an act with which
very few of them had anything; to do." Mow <Ioes that rea.son
niiply here # The act done? here was rlone hy the act of tlio
United States (Jovernment directly, and the United States is
ahsolutely accountabh^ for everything; done. In the other case it
was done hy certain people actinij independently of the govern-
ment — r.ctinij on their own i-esponsihility. The umpire who
decided the ca.se sayiii}.; that, lookinj; at the facts ami circum-
stance.!, he desires to avoid punishin<; the whole people of

60 Columhia for the act of a few of thorn, for which they were not
responsible. Therefore there was a particular reason there
which has no application to the present case. That decision was
made a long while ago, I think in the year 1871. He cito.s
tinally Sir Christopher Rol)inHon, wlio was the reporter of Lord
Stowell, the great English authority on public and private inter-
national law, on the t|ue.stion as to whether interest should be
allowed to the United States on the award of tlie Emperor of
Ru8.sia against Great Britain. The following is the opinion :
" The question of interest presents a (piestion of considerable

60 " importance and delicacy, and to which it will be difficult to
" apply the analogy of rules derived from legal proceedings, in-
" dependent of the political considerations, which may have
" regulated the conduct of the power making compensation in
•' the particular case. lu that view it seems to be a reasonable

■ww^lPiipp"'

(Mr. PfU-rs' Aij,'»nu'nt.)

" distiiictiun wliich w raisod, tlmt soveri'ijjn poworH «lo not
" umially pay intfit-Mt unless tlicy stiuuliiti' so to <lo.

" TIh' <)l)lij^iitit)ns of fjovernnicnts lor civil injiirit's are inatteis
"of niro (K-currt-ni'i', and dcj)ond, in I'onM and Huhstanei-, nsnnifh
"on liberal coni'fssions, or on reciprocal en}^a;;eiiients, as on the
" intrinsic justice or eipiity of the claim. Tliei/ are usually

10 " eonipen.sations niiulf on tjuextiouH in diiuht, nfler conaidcrahle
" iiiti'fviili* of time, }»j wliivli intvrial in luui-h cnlinnccil. 'I'liey
"are al.so coiupen.sations for the acts of othei's: for tlie conse-
" (lUences of error or niisumlerstandin;;, rather than of inten-
"tional injury, anil for cases in which no ])r()tit or advantap* has
"accrued to the parly liy whom .such compensation is madt!."
Mark n>;ain the tlistinction — you can hai'dly take up an author-
ity that does not ;;ive it. He says, " 'I'hey are al.so compensa-
tions for the acts of otiu'rs." In this ca.se the compensation is
claimed for the direct act of tlw United Slates (iovernment

20 it.self: "for the consei|Uences of error or misunderstandin;r
rather than of international injury." Thert! was no nnsunder-
standinir here. It was the intentional act of the Unite<l .States
(iovei-nment to .stop that .soalin<;. The intentional act has
turned out to he wron;; — wrony from the point of international
law, and I take it that the rule that applies with rejjard to com-
mon law applit's also to nations with rejjard to international
law: As to the connnon law, every man is supposed to know
what that is, and he cannot ccjinc; into court and char;;e that iic
has done this or that inider a misapprehension of what that law

30 is. 'I'he same I suhmit should a])ply as between nations. A
nation makes a certain claim, as the I'nited States did in this
case, that it had absolute jurisdiction over Behrinfj Sea. The
United States I submit, and their officers were boinid to know
what the international law on that ])oint was. and if they put
forward a claim which an international tribunal afterwards
decides to be an impro])ei' claim, they cainiot when the (piestion
of compensation arises turn round and say: We made a mistake
alx)ut the law. Tlh\' are lM)und to know wdiat the international
law is just aH much as ])rivate individuals are Iniund to know

40 what the common law is. So there is this distinction on the
the face of the authorities. The claim of the United States
(iovernment was not oidy to ja-event the killin>r of seals, but to
prevent it for a cei'tain specific reason — in order that they and
their subjects mi<;ht for their own exchisive use and benefit kill
tho.se si'als, only killin<j them in a different way from the way
we claim to kill them, so that they not only did this intention-
ally, but w itii the object and intent of ;jettinj4 back a diri-et
pecuniary benetit to the {government and subjects of the United
States. The case that my learned friend cites here is therefore

50 utterly inap])licable as an authority in his favor. an<l, if any-
thiiiff, tends to assist our case. What does he .sa^' further:

" Considerations of this kind seem to require that, if interest
is to be paid as j)art of the compensation bj' treaty, it should be
a matter of special arran<^enient as to amount and particu-
lars.'' What are the facts here your Honors ? In every .sin^jle
claim presented and contained between pages 1 and GO,
about which my learned friend i.s 8o particular, except I think
the claim of the ' Say ward Costn " case, in which we do not claim
interest, wa.s fixed at a certain specific rate and the United States

60 Government and the Government of Great Britain, according to
my learned friend's own argument submitteil to this tribunal,
that question of interest as well as every other question, and if
an agreement was required that this question of interest should
be submitted to this tribunal, we have the agreement on the face

iW'tTH do not

[•H lire iniittiTH
.iiiici', UN much
iitN, UN on the
I me u»ii(illy
;• coiwiilcriilde
(iiki'cil. 'I'lit-y
for tho oonHf-
liiui of Miti-n-
lulvantiijjc hiiH
tioii is niiuh;."
up im MUtlior-
Iso ponijM'nHa-
>ni|K'iisalion ih
4 (iovi'rnnii'nt
uiiil('i'.stanilin>;

no niiNumli'i--
Unitt'd Stall's
ional act lias

international

[•cjfard to coin-

■ 1

) uitornationai

posed to know
charge that iie
what that law
•n nations. A
t's did in this
inj; Sea. The
tM)und to know
nd if they put
lal afterwards
•n the (piestion
lade a ini.stake
iternational
H)un<l to know
inction on the
United States
)f seals, but to
that they and
nd henetit kill
from the way
this intention-
hack a direct
of the United
■re is therefore
I', and, if any-
further :
hut, if interest
y, it should be
an<l particu-
n every sinj^le
1 and GO,
except I think
e do not claim
United States
I, acconlin^r to
this tribunal,
(uestion, and if
nterest should
ent on the fac e

(Mr. Peters' Argument.)

'.m

of tlie docunii'iit itself. " And the reasonuhhrness of that c.\-
I)ectation .supports the distinction ••Uj^j^ested, that, where no such
«tii)ulati<in is made betsvecn Soverei^^n Powers, inti-rest shall not
be ciinsidereil as due. "

1 would like to .say one more word with rejjnrd to a case I
have already referred to, the " Montijo, " which is cited by my
10 learned friend, ami to point out that on the rpiestion of interest
tlint case should not be considered as an authority. He says here
• It was a special treaty, and the treaty was this way." It is
clinr on cvimt piinciple of the plainest justice, that 'some one'
oU'dit to |)ay fur this act anil itsconse(piences. That ' some one '
could not be llerrera and Diax because their responsibility was
siived by the treaty of peace and its accianpanyin;; amnesty.
We liavi! then to fall back upon the State of Panama, which
j^ranted the amnesty and stipulated, moreover, as one of the con-
ditions of the treaty of peace, that it wotild pay for the tise of
10 the " Ab)ntijo;" but that State has, for its own reasons, failed to
do so." So it was a spi'cial contract, and all they were to pay for
wa» tho us(! of the " Montijo". He contends fiu'ther, citing from
the samt! authority tliat "'I'he rules of law, so far as they maybe
applicable to this (piestion, do \\u{ favor claims of interest except
under special circumstances, as in tin; cases of af{reement, ex-
pressed or implied, or of the possession or enjoyment of inter-
mediate profits or of injury, |)roperly .io termed, in respect to the
tortious nature of the act for which the compensation is to be
made. "
jo Kvcry one of these authorities when looked at carefully put in
the very exception as in this case. There you have got the man-
ner in which the act was done, the tortious manner in which done
for their own benefit, tor the purpose of nntkin^ so many more
dollars .so far as the United States was concerned. In the Geneva
case, he said, certain interests were allowed, wdiolly in the
discretion of the arbitrators, in lieu of certain earnings, where
it appeared that the Anu-rican government had presented the
claims, which were passed upon by the arbitrators, immediately
at the close of the war in 18(j(i.

Interest seems to have been allowed at the lowest rate from
the date of the filing of the claims and not from the date of the
capture of the ships.

I do not know whether they allowed it from the date of the
filing of the claims.

You will remendier that I pointed out at the beginning of my
argument at a certain time, 1888 I think it was, the British
government made known to the United States government that
the claims hr.d been presented to them, and they wanted to have
a counuisston appointed for the purpose of having these claims
settled and adjusted. The answer was that the amount to be
paid in damages was a .subsidiary question — not the main ques-
tion — that the amount of compensation to be paid could not be
settled until the main question was settled. On page 15 of my
argument appears the following : — " A number of the claims in
question having been filed by the parties intere.sted with the
British government the following notes verbaies were exchanged
between the two governments: —

" Her Majesty's Government have just received the particulars
"of the claim for compen.sation on account of British sealers
" seized and warned off by the United States authorities in
" Behring Sea.

"A just assessment of these claims appears to them difficult
" without investigation an d verification, and they therefore wirfi
" to ascertain whether the United States Government would be

, '.,("[£.

f f

" [

(Mr. I'ttciH' Ar;;iiiiii'iit,)

"disposcil ti> ai(rn> t" a mixi'il <M>iiimissi()ii, to Ik- rfntrictfil to
" fni|uii'in;r in i-acli casi- wlii'tln'r ('i)iii|i(-n>*nti<in is 1 1 no ami tlio
" MiiiDiiiit (if .siicli (■iiiii|ii'n''atii>ii."

Tliat was tiii'ir prupcisitioii. Tlic aiis\vt>r to that is; —
'• llcs|ioii(lin;; to (111- iiiilr irrlniff id' Sir liinncl West, datrd tlio
" IStli iiiNtiint. it is sn;,'L;t'Hti'ii <iii lichnll' nf tlic I'liitril States
10 '■ tliat, as till' cases of seizure of Uritisii v(>ssi'ls in IJeliriiin Sea,
"tlierein refeiTe'l to, are now in eonrt |ien:lin;{an a|i|>('al from a
"jnilicinl deeision, it is preferalile to await the jiiil;{nii'iit of the
"Appellate Conrt in the premises"

The first answer was: " No, we will not liave any com-
" mission to settle these elaims ; wait until oiu' courts have
" ileeided the a])peal peiiiiiiii;," no douht refi-rrin^' to the appi'al
in what was known as the " Saywarii " ease. Afterwanis, when
tlie eorresponcienee went on further, and from tlie treaty itself,
it appears elearl}' and plainly that the Ih'itish (ioveininent ail
20 aloii;; wanted to have tliesc elaiiiis jiaid in the first instance.
On the otiier side the United States ;;overnment contended that
the main (piestion shonhl Ix scttleil first, anil ahove all tldn^s,
that the (pivstion of re;^rulatioiis shoiilil lie di'alt with liefore tlu;
matter of eouipensation was actually settled. I only point this
«)Ut to sliow the delay in this ease, tlip delay, for which
wo claim interest, and for which we have a rii^lit to
claim interest, has iieeii caused iiy the Uniteii States tak-
ing a position which has turned out to lie nntenalile,
and while they nii^lit have settled those claims hy havini; a
'to commission at an early <late. tln-y inttMitionully put It off as a
sulisidiary matter altogether and as a matter of less importance
than matters to he settled liy arhitration. The delay in this
matter wi-sulimit lias heen cansi'd hy the United States ijovern-
ment and we sniimit that interest sliouM most clearly h' allowed
to these claimants. The pe<ipleon whose liehaif Cii'eat Britain is
claimin;r here had no power whatever to press these claims.
They could not take one sini,'le step except it was done hy the
governnii'iit of tireat Ih'i tain for them. They eould not act on
their own hehalf as in an ordinary case iii'tween individuals
40 where laches can lie charifi-d or anythiie^ of that kind. The
imlividual himself is resp msihle for ia^'hes, is responsihle for his
m'i;lect and his carelessness in carryin;^ his case on ; hut in a case
of this kind he can take no step unless the i^overiimeiit takes it
for him : and not tlien uidess the opposin;^ ;4overnment consents,
a,iid I sulanit that when a private individual is put in that p<isi.
tion and delay is caused hy reas<in of ailis])uto hutween the two
nutions in which he cannot interfere, and which he cannot in
any way deal with, that he is in no way responsihle for tlu;
delay, and after these internatioiuil disputes have heen ,setth;d,
50 antl settled aiiversely to <ine jiarty, that one party must admit,
we think, that they are entitled to compensation, and their
i^dniission means this; that they were wronj; in ISSti when they
took tho.se vessels and that then and there they should have paid
us the compensation. They have iiot paid the compensation for
eleven years afterwards, ami we .say it would he a case of very
great hardship if interest claimed should not be allowed.

So much for the (piestion of interest. 1 am not goinfj to
weary the court hy taking any further time on that nnitter.
We simply contend that interest is allowable on every item "f
(iO damage which is found to be due. We claim damages whatever
they were in the first instance should be assessed as if they were
being as.sessed in lS«(i, l««7, IHHH or ISM), as the case may be,
having regard to the fact whether ve.s.sel was seized 188G, '87,
'88 or '89. We claim the proper course would be to make up

(Mr. I'cfcrs' Ar;;iiiii('iit.)

till' (liiiiiii;,'iM wliich yon wnnld Imvo nssi-Hscd if siuinj^ nt timt
tiiiMi, himI in nnlurti) ^ivi* tlioroii^li iiiul cixiiiili'tt' ii)<lt>iiiiiiticatii>ii
ti> iiii'l ti> tlit'sit iiiiniiii{i"4 tin* amount of inti-i'fflt that woiiiil |iiit
MS in till' Niinii' position iis wo would then have Ikm'U.

'I'l'tTi' ii oni^ word I would iikt> to sny with it';,'ard to tlie rate
of interest, and I snlmiit that the case I have citi-d, the " 1'.
10 Williaiiis" is an authority that such a rate of interest should lie
allowed that the |iarties, situated a^they were, livin^j where tiiey
Were in Hritish Colnntliia, conld reasonalily havo heon supposed
to have l:een ahle to horrow money at that time. We have n
eonsideralile amount of evidencrt* on that point ; the evidence of
hankers shewin;; the ordinary rate of mercantile men who lior-
row money on paper. We have also the ordinary rate of interest
paid liy men who lK)rrowei| money for hin^ terms. All these
rates are much hii^her than the .tmoiint we claim. We ^jave somo
j;eni!ral evidence that inten-st in Hritisii ('o'umliia wont as hi;L,'h
20 as 12 per cent. ; that S per cent, was a low .atp. We claim only
7 per cent. The law of Mritish Colnmliia wms also put in evi-
dence as a stiitiitary ri^ht toolitain intere-'t and the rate ut which
it should lie chnr;,'eci accordin.; to the laws of Mritish L'olnmliia,
and I think I am correct in saying that hy ])roof put
iti hy .Mr. Hodwcdl, in which .Sir. Dickinsnn (loncnrred,
and which he n<lmitted to he a correct staUMiient of thu law of
Hritish t'olumiiia, that the ordinary rate of interest allowahle
liy law of Hritish ("olinuliia was (i j)er cent. So you have to
choose lietween these, and I sulimit that the weight of ••videiicD
;{0 shows that till' rate we claim, 7 per cent, will no iiiore than in-
demnify these men for the want of use of the money which
sliiiuM have lieen paid to them at these distant times. Of course
the rate of interest to he paid is a matter which lies in the dis-
creti n of your Honors, hut I do .suhmit that, lo'ikin^ at the
ipu-stion of interest, as with re^anl t > every other item of
damai;e that you are called upon to deal witli, in a matter
lietwei;n nations you ouiji't not to weii^li that with line scales ;
that thy teinleticy should he to pay full iiiilemnity, so as to put
parties aN nearly as you can where tliej- were hefore No award
4-0 that you can reasonahly give will put some of these parties in
the. position they were in hefore these seizures took place, hut I
say that the amount slraild he quite liheral with rt'i^ard to iii-
tei'est. Any case of douht after this leii'.^th of time sjiould lie
decided in favor of the person L'laimin<^. So much with re;;ard
to th(> (juestion of interest.

There are one or two other points to whicli I wish to refer on
the ijuestion of danin;^es.

In the tirst place, havin;; left the question of interest, I would
like now to ;^o hack to the h.'jrinnin;^ of the ar<j^umunt on the
question of damaijes, aiut call your Honors' attention to the
citation I was ahout to make from Sutherland on Daina<^es on
the question of a^f^jravation.

1 here seems to run throufjh my learned friend's argument a
contention that in nieasurinij the damB<»es as a^rainst a (lovern-
ment, anytliin;,' that is called a<^i,'ravateil damaires, or vindictive
(iaiiiaires, should not he consideieil at all. I suhmit that that i.s
not the true rule of law, and that his idea springs from a
misconception of the position of the matter.

The Commissioner on the part, of the United States : —
You use hotli expressions, " aggravated " and " vindictive "
damages. Which do you mean ?

Mr. Peter.-: — I .say that we are entitled to receive here
aggravated I'ainages, aiid that there is no difference between the
claim againi^t a nation and against an individual. Sutherland

."lO

(iO

"ym

(Mr. Petern' Argument,)

layn down the rule aa to what aggravated danmgeH uieann at
page 728 ;—

" It is frequently naid that in actinnx f.'- deliiln evidence in
" admittable in aggravation of, or in mitigation of the damngeH,
" but thif*, it In conceived, iiioanH nothing more than that evidence
" ia adinixHable of factH and circiimNtnnceH which go in aggravation

10 " or mitigation of the injury itNelf. The circumstanceH tliUH
" proved ought to l)e thoau only which belong to the act com-
" plained uf. The plaintiH iit not juntly entitled to receive
" compennation beyond the extent of Ium injury, nor ought the
" defendant \m coripelled to pny to the pluintiti' more than the
" plaintitf ih entitled to receive, '

JuHt in thix case w« Hay that the fact that in lH8(i there waa
no warning, Ih a circumatance to I u taken into connideralion, and
aUo that in 1887, nftt rour vessels had almost been told thnt they
would not be seized, they were seized, and again in 188!( the

20 same circumstance transpired. The manner of the soi/.ure, the
treatment of the men, and all the circumstances which took place,
and which, as the author ways, " ought to be tliosu only wliich
belong to the act complained of," should be taken into con-
siderati(m just in the same way ns if they were the act of a
private individual. In the argument liefore the Paris tribunal,
Mr. Blodgett, in connection with the contention of the United
States on tliis point, actuall}* cited the maxim, " the king can do
no wrong " and stated that that applied to this case. I humbly
submit that that principle does not come in here at all, and that

30 if that principle applied as between nations it would be an
answer, not only to the ((ue<iti'>?i of prospective catch, or any
item of damage, l>nt it wool ne an answer to the whole cluim,
and I submit in view of tlf irds used by Mr. Sutherland, that
this is one of the cases w .re we have the right to claim
aggravated damages, and that the circumstances of the case
should be taken into consideration. Take the word " aggravated '
damages — something that goes to increase, enlarge, or make the
injury wor.se than it otherwise would be.

Now let me turn to page 133 of my learned friendV argument,

40 where there is a cliapter on " Legitimate (Compensation and
herein of Extravagant Claims." " Hereafter, under the proper
" heads, the testimony of the .several owners of the respective
" vessels, and the other evidence, will be analyzed so that what
" may be deemed the highest limit of fair valuation and fair
" compensation for injuries may be arrived at from the testimony."
I call attention to these words as indicating that the Uniterl
States want to pay " the highe-it limit of fair valuation and fair
compens'tion for injuries." That is a proposition which I agree
with. My learned friend wants to arrive at the highest limit of

50 fair valuation and fair compensation for injurie.s, but I do not
see that in his analysis of the evidence he has gone altogether
on the same line as I wouhi in order to tind the highest limit of
fair valuation. My learned friend has a way of laying down
propositions which .seem remarkably clear, and if he will only
follow up these propo.sitions when ho comes to deal with the
facts, and apply these propositions to the facts, we si.n cut this
argument short, but he proceeds to put forward an argument in
regard to which, to adopt his own expie.ssion in relation to .some
of our arguments, if it were not for the respect I have for my

60 learned friend I am not sure that I would reply to it. He says :
" The tendency to preposterous exaggeration by claimants against
" nations, and especially under Claims Commission.s, has been
" universally observed and is authoritatively tet down in the
" books as a matter to be treated as a general rule in arriving at

(I iiieanH at

evidence in
ht! <iHiiini;oii,
lal evidence
BVh'ravation
HtiineeH tliim
u> act coni-
to rec«'i ve
r oii^'lit the
tru than the

there wa»
elation, and
)ld that they
n ISN!) the
Hci/.iii'e, tiie

1 took llJHCf ,

only which
■n into con-
he act of a
lis trihiinal,
tlie United
i^inj; can do
I huniltly
all. and that
i'oidd he an
tch, or any
^hole chiini,
leiland, that
ht to claiiii
of the ca-**'
aicjjravated
or make the

V arifuniont,

nsntion and

the proper

e respective

that what
on and fair

1 testimony."
the United
ion and fair
hich I agrfe
hest limit of
)Ut I do not
3 altogether
ie.st limit of
aying down
e will only
al with tlie
!£n cut this
ki'gument in
tion to .some
ave for my

He says :
ants against
i, has been
)wn in the
arriving at

(.Mr I'lterV Argument.)

" valiialioKj." 'riieii he citex <«eviral canes in which healh'ges that
(•.\ni;;;rrnti'cl cliiiiiit hiivi- ln'i-n iiindf. Ilnw ciin that !»• Ipmu^ht
Id lii'iir nil IiIh iii'guiiii'iit ill this cum- ' W'liiit is liui at'i>iii|ili'd
aii,'iimi'iil ' Kivf nr mLx cases timk pliice ten or twenty, or iimri'.
veiirs Hj,'ii, and in some id' these <!ttses exti'ava).;aiit claims were
iiimie, and Itecaiise extiaviigant claims were then made he atgiicN
|lO timt tlieclaiiiis that .ve make here are ex«;.'gerated. I CMiiniit see
where tile coniieciion cdmes in. Kvery case is to hi' weii,dieil in
reference til its own cii'dimstaiiees, nd it does imt fnlluw that
lieeiiiise ii elaimiiiit snine years ago made \ claim tliiit was
esiigdeniterl, tlierefiire this claim is exa;,".,'eiateil. lie saVs that.

miller the Mrilish and Aiuerican Claims ( 'onveiitiuM of IS7 I,
lifter lifty-livo thnusand [irinted pages of testimony were taken,
and the MggreL;ate nf claims pieseiited hy Mritish siilijects iiHiiiiist
the I'liiied States was ninety-six million dollars, and the lotiil
award of the ("oinmjssion on these claims ngi,'regnled iitily one

I 20 million nine htiiidieil and twenty-nine lliousiind eii;lit, hiimlrod
and nineteen dollai's. and then I inesiiiiie that he wishes lo iiigiie
that yoii ought to reduce the award tliut we claim, which is
something over a million dollars, in the same proportian. lie
makes this statement, ahoiit the Claims ('onvention of I.S7I
witliiMit mentioning the leasons for the lediietioii of tlrs claims
ill that I'M-e. lie cites several other claims, and he draws the
assiimpliiin or asks soiiieiioijy to draw tlie conclusion that liecaiise
these claims were exaggeialed. therefore our claim is also
exa;,'gerateil. 1 answered that contention at page iA of our

tiO reply in this way : —

" A good deal of ingenuity iind lahor is disjilayed in the
'■ United States Arguments (|(. I.'iS and followini.'! for the pui-
" pose nf showing that with regard to claims in years gone hy^
•' presented liy persons aileniu^r themselves to he injured hy the

" act of II foreign nation, the anioiint of such claims were often
" greatly exaggerated, and piirticuhir reference is made to claims
" presented under t he C'laiiiis Conventions of iS.VJaiid IM7I ; also
" to the ( 'laims Convention hetween the Ciiited States and Mexico
" of INT.S, and lo the chiini- hefoie the ai hitratois at (ieiieva.

40 " What argument can he drawn from the fact that exaLjgerated

': claims were presented in other cases, unless it is contended
" that liecausu there was exaggeration in previous cases, a
presumption arises that there is in this case."

That seems lo me to he a complete answer to what my friend
1ms ])ut forward under this head, and in the same chapter fol-
lowing up this idea of exaggerated claims, hi; makes up a tahle
and he says that 'vlion we |)resented our claims originally they
weie so much, and again at Victoria they were so much more.
Hut the reason forthis increase must he very apparent to the Coin-

50 missioners. In the first place, wdien the claims were presented, a
considerahli! mistake was made upon one very important item —
an item that my learned friend does not dispute wi; are entitled
to recover for. In the claim hefoie the Paris trihunal a claim
was put in for a large amount for the skins actually taken and
the skins thev were going to take. When we c-ime to i,'ive the
evidence at Victoria -ve found out that with regard to some of the
years at all events for which we claimed for compensation the value
of the skins had lieen put entirely too low. I simply point out
that as a reason why a dirt'erence should exist hetween the claims

€0 as proved in the evidence and the claims as presented at Paris.

There is enother point al.so for consideration. When the

claim was originally presented hefore the Paris trihunal, I admit

that theie was no claim put in for the personal hardship to the

crew.s, hut when we came to give evidence, and it was disclosed

■wfpr

S(i

(Mr. IVtiT.s' Ai-Ljr-mMit.)

linw inudi tlii'so ci'fws lind siitr.-rcil, wo dtM-iiu'il it ounliity d) pvt
in a spfciiil claim od account, of tlic Imidsliips intlictfi) on tlu'in.
Tilt' ("omiiiissioncr on tlic part of tlu' ITnitfl States; — WluM'o

do vou inn

kf til

for per;

sonni nniiiv :

Mr. IVters: — 1 will rcfi-r to it ut. UMi<j;tli later on. I am
poin'in^' out now Imw it is that tlie claim a.s proved in cvidcneo

10 cxcirds till' amotMit tliat was ()ri;;inally put in iit I'aris. 1 have
refeiit'd to the increase in tlie value of the skills, and the
oinissi'in of nnv claim for the hai'dshi|)s of tiie crow. 'l"ho
aililitii'.n of these items of eonr>.' adds very materially to the
amount of the claims, hut if we are rij;lit in our contention tliat
we are entitled to recover upon these specific items, we cannot
he char^'ed with makin;.; e.xtravnjjant claims, nor can any ar<»u-
nieiit lie drawn from ihe fact tliat we did not originally put
these items in. We may be riejht or wronj; with regard to
claimiiii; allowance under anj- particular item. We may be

20 rijiht or wron;,' in claiiiiini,' dnnuijjje for hardsliips of the crew,
but if we are rii,dit in principle in claiminij; daniafies for these
hardships, which in souk! instances were worse than arrest, I
submit that no jiidejes, sitting as you do, can say tliat the amount
of five hundred dollars is too larj^e an amount to award in such
cases. I do not think that my learned friend, if the court were
to come to the conclusion that we are entitled as a matter of
law to have the ])rinciple of the item allowed, woulil dispute
much as to the amount it should be. I do not propose to discuss
these cases at the present time, because we propose takini; tip

30 each one of these cases in a sliort manner, pointiiiir out concisely
any particulars which W(^ think oui;ht to be brouglit to the
notice of the Court, ami then^fore when we come to consider
any one of these cases it will be the best time to lay before the
Court the reason a certain amount should bo allowed or dis-
allowed, and therefore I will say nothintj more about those
allorjed exaj:fi:;erated claims at the present time.

The last and third claim whicli worries my learncnl friend,
and which he .says is larj^e, comes before the ("onimissioners in a
ililferent form. The original statement of the claim was ex purtc.

40 'I'he present statement is an estimate sworn to by witnesses who
were subject to severe cross-examination, and at this point I am
doinf; no harm in sayinj;; that the United States has done itself
ample Justice in appointing Mr. Dickinson to represent it in this
e!ii|uiiy, as \w. has taken pains to si^e that if Great Hrifain
obtains a large amount of compensation, there will bo one tiling
sure, there will be no item obtained which has not been carefully
scrutinized by the counsel for the Ignited States. Kvery item
has been examined down to the smallest details, and I am glad
of it, for I hope that when this award is made it will be an

.lO award which can be justitied by any person wlio takes the
trouble to road the main |)oints of this record. Wo want on
our side a fair awai<l, an honest award, which will stand the test
of any person who chooses to examine tiio evidence upon which
the award is based.

There is another point my learned friend brings before this
tribunal, that is to bo found at page l;5S, under the heading,
" Personal Damages for False Imprisonment and Fain and
Sutiering." What is the line of argument that he takes witli
regard to this point '. The facts are that in the \'ear IS.Sti the

fiO cajitains and mates of tliret; vessels were arrested, ami taken
before tiie court, and wore cliargod with having violated tlie
laws of the Unitc<l States, and were put on trial and convicted
and imprisoned and fined, except in the case of one of tiiem who
dies during the course of the proceeilings. Tiiey were inipris-

(Mr. Peters' Arf^iiment.)

oned lit Sitkn, nnd were put toother hanlsliips, which have heeii
ilescrihed in tlie evidence. I nil) not 1,'oiiii; to refer to these cnsos
now, lint your honors will tind them in the evidence of Mari,foticli
nnd other witnesses. What is the answer of my learned friend ?
|{es(iys: —

'■ As to these a tnl)li> is snhniitted showinij their <,rrowth in
■' iimoiiiit. 'I'he testimony in support of tliem is hereinafter nn-
' alvzed under the jiroper heads, The Mar^otich story, which
"seems still to he >;iven ciedence in the Ihitish arjjnment, is a
" .story of hnrdsldp, hut it is not helievjd after the investi^'ation
'• at Victoria, that the I'omnii.ssioiiers will {,dve it any credit.

" The si,i|lerint;s nnd losses,' naviiratinij four ves.sels from
'■ Unalaska to Sitka, of (."ai)tain Warren, John lleilly, Captnin
" Kerey, A. 15. Laino;, Louis Olson, Michael Keefe and (.'aptain
" Petit, of the Warren-Cooper fleet, mif,'ht possil.ly ho considered
" irrespective of the actual American ownership of the vessels
" on whicli they saili-d, with the exception of Warren and Laing,
" who hail full knowled>,'e that tlie nati<mnl character of the .ships
" on which they .sailed was not Britisli, hut American. In any
" case, the amounts charj^'ed for the hardships all appear by the
" tahle presented.

" What these Hntl'erinj;;s and los.ses were did not appear at the
" liearinjT at Victoiia, hut it did appear for the first time at that
•' hearinji that Warren, Petit, and Keefe wero occnpied during
" their ' detention ' in Alaska at a very hijjh price of compen.sa-
"tion paid by the authorities of the United States government,
30 " for their .services tinder voluntary contract.

" It did appear that while (\iptaiii Petit and Keefe were otV
" on a v<)3'a<je in that behalf, all the other.s named, who were not
" sutferinji; like themselve.s, and Captain Warren, had departed
" for home.

"Among the prisoners of .188(3, aside from Margotich, are
" Guttormsen, Monroe, Norman, Ogilvie and Black, all of the
" Onward," " Thornton "nnd the" Carolena." Setting Margotich
"aside, the tale of suffering of these men is related by the witnes.s
' Dillon, who, as it turned out on cross-examination, actually
40 " remained about the jnil, not as a prisoner, hut as a deputy of
" tlie sheriff, and remained becaii.se he got better wa^es in that
" employment than in following the sea. There i.s no claim for
" wages in these personal claims, and not a word of testimony
" except that of Margotich and the witnes.s juHt mentioned as to
" any actual damage suffered.

" The testimony of Captain Raynor dispose.s of the Ogilvie
"claim, and it is not thought necessary to argue the question a.s
" to whether the item which Mr. Munsie cliarges for cash lost
" through liim is a proper charge against the United States.

" The personal claims are of a character in any case which
" linve neviM' been allowed in a case of unlawful capture at sea.
" They are claims for punitory dnmages, which, as we have seen,
" can not furnish the rule of damages here.

" It appears through all prior commissions, and notably under
" the Commission of 1S71, tJiat all personal claims of masters or
" members of crews of

ips

ips.

" otherwise, wero presented separately from the ships, by indi-
" vidiials, because a Hiiding was recpiired on 'each ' claim, as in
" this case. It follows, on this ground also, that no claims can
60 " he entertained tliiit are not scheduled."

Now the position we take is this : — In ISSfi these six men
were arrested and falsely impri.soi>"d My learned friend says
that that is punitory damages, dnd you cannot give any sucii
diiiiinges. Again I full back on my late discovery, the case of

,| - m I ipiiiiiipiii iiini

i ^^t|j

{\\r. I'lMi'is' Aii^imu'iit /I

till- " ( \<st;i IJu'.'i." iiiiil 1 .'i^k \vli;it il.'unn^^i's wi'i i> i;i\ I'li lliiMi- if
till' i1;\iii;1l;i's Wi-ii" iiiit I'lH t'(ils(> uiic-.! tilitl iii>li|'iMii\iiii'iil ' I'lu"
i-ilpliUli 1,11 lli.'it m't .l"i>.l.'<0 fiir lii'in:; inniiisiiiinl IWi'Uly iliiV'-
Mr, nii'UinsvMi 1 thou^'lit tli.-il w.w for |>i<is|n'cuvi> i-uti-li,
Mr I'l'ti'V-- Wi'll 11 is p.'ii'! fur iiiii> nnil piiri for ilu' iiitu-r
I'lU I Ills IS oli'jir ili.'U lu' w.'is iiiipiisoiu',! fi>i t«i'iiiv >ln\ s, iiiul III-

10 iiuiili' lli.'U 11 ciiusi' of I'oiiiiWiiini, Hill! Ill' w.is p.'iiil for h I'lii'ii'
w.'is no ii';»soii \vli\ 111' shoulil iiol ln' |>.Uil for it It is not piiiii
ti\<' ilniiin ',.'-. lilt .lMiii:ii;i's in tlii> iiaiuri' of ji^i^riiv ati'ii lirtiiui^^i's.
Till' lU'fi'iH't' llwit I'iiii all tluou^li iii\ li'.'inii'il frii'iiil s i-iiss
>'\'>iiiiiitUioii in ii'i;.'U'<l to till' imprisoiuiii'iii of ilir nirn in ISSi;
was trill', wi' iiiii'iisoiu'il von at Siika, inii', wi' iinlawfnilv
arrrsti'ii \ oil an. I look awax vour pi'isonal liln'iix- for a I'l'ilain
tiiui' lull \vi' iniprisoni'.l \ on in latlu'r a I'oiiifortal'li' sort of a l;,!.'!.
wi'iiil not actiiallv put von in oon vii-l I'Kitlu's, an. I w i' .ii.i not
iiiipii^.'ii \ .Ml iM wliat lu'ro wonl.l Li- I'alli'.l a ^^aol What

'20 answrr liaxo \ .'u I.' a stati-iiii'lit of that I'laiin 1 t.iok avva\
voiir libiTtv. lait I liiii noi luu t yon \ I'ly niiu'h afti'i 1 ooi \o\\
If lli.'ii' is oiii' tliiiii; upon wliii'li till' Ann'iit-an lawNi'iaiiil tho
i;iili--h law \ I'r Mi;rri', II is this That pi'isoiril lilu'itv isathliii,'
to hr 1 i's|ii'i'ti'.l ahoxi' i'\ I'lN tiling oKi' It is a iiilo in Kiilisli
I'oiiriN ^an.l if I am ii.'I iiiistiiki'lO it i- ihf nih' in llir I'oiiits of
til.' t luti'il .''^ta'i's, thai wlii'ii a iiii-ii.'lu'r .'f t lu' hir. In- lu' I'Vfr so
iniu.'r. r, lull's to iimki' applii-at ion for a writ of /ni''f'.(s i\trj'iis lir
has till' ii^lit t.> -pi-ak liisi.no inaitrr what oKi' is ^oin^ on,
\\ li\ ' rui'.'in-M' iiiiili'r till' law of tiii-al l>iit;iin. an.l, 1 think, of

.'H> llu' I'nitril Stall'-, till' pi'isonal lihi'il^- .'f ovi'i v iii'in is a
tiling looki'.l upon Willi thi' hi.,^lii'st r.'spi'i'i, airl wlii'ii thai p'l
soiiiil lilu-rlv Is iiiti'i frri'.l with, .'iii' \ on to Ih' t.ihl that v.'ii .'iri'
to liavi' only noiniiial .Jaina^i's hi't-aiisi- ihi' j^aol at Sitka happ. lu'.l
to 111' a loom ovii wlu'ii' tlu' ju.'i^i' -at aiul lii'lil his I'oiiii ' I
I'.'Ui' II. 't whi'tlii'i \ ou .ill iiiipi isoiii',1 ill a iliiiiiji'iiii or in a p'l'ai'i',
if vour pi'isonal hln'it\ is laki'ii fr.im N.ni. in llii' .laiihu

.1 li

■ l.'il all till' i'iii'iiiii--l,'iiii'i's t>( ih

an.l if ihi
ai'ur.'iv a(.

.1 il

(•lli'linisi.iiu'os .'111' ai;:M,'i\a
lllll:^ ^

li'.l hi' shonl.i ro

40 In l.sV

I I'l'iL'iiii iiii'n wi'ii' also aii'i'sti'.

,t.uiiit that 111

l,s>7 ilu'V Will' n.'t prosi'i'iitiil in tho s.uii' w

a\ that ilu'X w 1

l.s.Si'i Thi' Inili'.! Stall's took tlu'ni \\\ tlu'ir sliijvs ai^aiiist

(lu'ir will, fi.'iii till' plai'i' w lu'ii' tlii'v wi-io si'i.'cl t.> ( >nn,'»l.'iska ,

llii'i i',.'iL;.'iiiist til ii will, in tlu'ir o\\ n ships siimo tun rs an.l

.'iiiil I r.ini

to.ik tlii'iii to Sitka, ki'pt thi'iu aboaiil, ai

sonii'liiiii's 111 anot hrr

il 111 not allow ihi'iii to liavi' inti'ioonrso with tlii'ii ow n iiu'ii. Tlu'N

took
lIu'ii

.f tl

11' nii'ii tlu'iiisi'lvi's p

nit thi'iii niiiliT oath aiut ma

1 t;tvi' ilrpositions ai;a<li'-l tlu'if own captain aiiil mati-s w h.i
• iin.ii'i aiust, Whiii tlu'V ;;ot tlii'iii to .Sitka what ilnl lIu'v
\ pill thi'iii iiliili'r till' i-hai;;i'of tin' I'luli'il ,S|,'»ti's
111.1 whili' lh;\ w il't' iiiiihr arrrsi ki'l't tln'iii iin.ii'r

■n

nia siial

tiiri t niitil siii'li linii' as tho I'viili'iici' wliu-li tlii'V lia.l hoi'ii f

It'i'tiiii; of pi'isoni who Will' to oi\i> rv iilinco. so that it -lioiil

iiiakf It ph'a-..int f. i tlniii to I'onii' to Sitka aiiil sustain tin

i,'hiii'L;i

;i^.'iins| thi'in

It'll till

'lli<

iliil

anu.' thi'v

iliil

til)

not ai'Uially ijo on with tho prosi'i'iil ion I say thai in 1 SsT
allhoii:;li thi'io Wiio no i\i'tiial prosoi'iit ion i iiistitntiil. an.
altlioiii^h llii"-i' mill Will' nut ('oiiili'iinnii aiiil tiiu'il as iIu'n woi
111 ISM'i. at till' sann- tiiiu' tln'V wi'io iloprivi'ii of llnii p

lat Is sii iha

I tiii'Xt'iv I'lit'sh aiiil .Viiii'iii'an snliii-i't

iinjiistilialily inli't I'l'i'i-il willi.anii fir thai w i' t'lailn iln

W'l' rlaiin ilamauis not pnnitivi' iiaiiia:;i's, not f.M tin' piiiposi' of

punishing ihi

ri.itiil Stat

I's or t hi'

nitrii Stall

lici'i s tor

iliat was wioiii'-. lull for tlio inii

pill p. s.' ot I'l lllpi

L;i\t'l> tluMi-. it"
iimu'iil ' Tlio
\\ rut y liny-i,
[•rtivc i'i\tfli.

tor I 111' iilhi'W
\ ilil\ -i. iii\.l lu'
I'oi- II rii.'ii-

ll i-i u.>I piiiii
V ilti'ii ilMllifliji'S,
I I'U'iiil -i CI 1 -is
r nii'!i ill ISSii
\ 1' niil.iwfiilly

fill !1 I'l'l IMlll

(' M>rl iif 11 i^Mol.
i\,l \vi' iliii iioi

-;U>1 \V!l;lI

1 l.>.'lv :i\\,'i\
I'l.'i 1 t;,>l _\ .Ml
:n\ \ I'l .'Ul.l I lu>
u'llN Is !\ I lime
I ult> ill Hi itisli

llii> fotirts of

•, 111' 111' I'Vl'T si>

'itMs i\>rj'us lu-
>!' i-< l;oiiil; oh
iiitl. I think, of

;'l\ IIIIU I-- .'l

vlu'ii tluil i<''i
>1 iliiil y.Mi nri'
■>illv;i liJll'jHiir.l
I Ills foiirl ' I
or ill II iviiMi'i',

.llUlllliJi's 1-1 I'l'
'S of I lit' iMsi'
tioul.i I'l'l'l'lNf

s!'

Mr. l'i'li-r>" Arijiiiiioiii.'l

liiii; flii'M' |ii'i'|ili' for llic iiiiiifi't'ssiiry itisiili, for Iim\ iiiij miiioi'i's
.-jirilx mill iiii|'ro|ioil\ iiili'iloroil witli tlu-ir liln'rtv. I >.'i\ lliMl
is a I'aso lliMl >lioiilil 111' I'oiisiilori'il l>y llii> rriliiiiial in tlic >aiiu'
\\:i\ llial 1 liaN :i-l\i''l il to In- ooiisiiloroil in oilu r iiiiitlois aiiil
ii >lioiil.l l>o iloall w illi lilii'rall\ .

Wo ail' toKl thai thoii' art' no cases where liiis class of ilaiii
a^i's liaM' heeii j;i\eii, that iiiuler the same ( "iiiiiinissinns in I. •so,'!
iml ISVI the personal claims w ere ilisalloweil. I take this report
ol the " Costa IJica Packet " ('ase, aiiii what lio I liinl '. lleif is
a iinlijiiient j;i\eii hy Mr, Marliii>. It ii'cites that;

■W'lien'as the treatment to w Inch Mr. rarpenter « as .siih
" jectcil ill prison at Macassar ap|>e.irs to he iiiijiistitiaMe in \ iew
•• oi his heiiii; the suhjei't of aei\ili.'eil State, whose lieteiitioii
•• was only a precautionary measure, uiul that, coiiscipieiilly, this
• lii'atmeni entitles him ton fair comiieiisation."

We ask iioihinj; more than a fair compensation l>iit we
ileiu the principle that these men can turn iiroiiiiil ami say :
I'me, we imprisoiieii \oii, interl'ereil with your liherty, hut we
iliil not hint \oii \er\ much; we iliil not treat you liarslilv : we
iliil not actiialK put \ ou to any \ery i;reat peisoiial iiuiijjnitN ;
wt' oiilv took voii 111' in a enimpcil m'sm'I. intertereil with voiir
personal lihi'ity ami pl^•sceute^^ you in soiiu' eases, ami were
yniiit;' to in others, hut tor reasons we ilo not know we stoppoil
there with the pitoeeiitioiis. If these pers'iiial anx'sts were put
hefoit' any onliiuiry irilumal. t!ie :irirmiieiit that the pnnishinent
was not seveit', that the trealmeiit was nut very harsli, woiihl
not he listeneii to. ami still less slioiiM it he listeiieil to in a
court of this ilescription, when we come lu'fore it with the state
meiil of ni\ learneil frieiul that he wants to ^el at the hijihest
limit of \aln.ition So much with rei^aiil to that matter. 1 am
not tr»>iiij; to exaumie the e\ iiience in th.it We lia\i' in onr
written ais;iimcnt put forwaiil a nooil ileal ol the reconl e\ i
ileiice on tlial point

In the arraiii;:emenl that we li.ive maile helween counsel, it
has heeii alloitcil to me to open the ease ii|>on the ipiestion of
ilamaiies. In the iitlicr \ery import, iiit ipiestioiis that will he
ilealt with it is the intention of my learneil frieiuls on this side
to iliviiie up. We have arraiiijeil hetwcen lis so fli;it perhaps not
more than one counsel w ill ileal with Imt one i|Ue>lii>n There
are some 'Jt'> cises, iml the course wc lia\e taken in rejiai'il to
those is this: it is app.ircnt that in I'acli .'lie of the cases M«me
few remarks will liaNc to he iiiaile, short ii'inarks in some cases
ami a little moix' evteiuleil in others. |!ui 1 think time will he
saveil, so tli.'it not aii\ oi tliein will he K'linlhy. 1 sui;i;est that
it woiihl he hettcr if the counsel on this siile slionhl he alhiwed
to ileal lirst with lhej;eiier,il in. liters raiseil, auil after that anv
remark.s to he maile on the special cises w ill he iieiile hv the eoiin
sei, who ha\ e hceii selccteil to ari;ue .iiiv particular case, "riuii w ill
not leuirtheii the matter, ami if \ our (lonois will consent to that
course it will he of coiisiilerahle coin enicnee to the counsel on
I'lir siile, aiiil, 1 think, also to my frieiuls on tlu' other side

Till' ( 'ommissioner on the p.irl ot Her MajesiN : If it is
consented to, that seems to us a reasonalile course.

Mr. l>ickiiisou' 1 think that will conduce to an orderh
hcariiii; of the matter

Mr reteis; M\ friends will follow me upon the particular
it points they are to speak upon, and then wi' ;ir«' to lake up the
pirliciilar cases. Now. that is all I have to sjiy at the pn'setil
time iii'on the piMsptn'tix e ealcli and the inteii-sf and daniaift

l-IO

e piMpo,se now to deal with the other i|Ueslions in

somewhat the same line that we have denit with tlii
.\t half past tour o'clock the ( 'ommissioneis n

Commissioners Under the Convention of February 8th,
1896, between Great Britain and the United
States of America.

Lc{i;isliitivo Coiuicil (^liaiuber of the I'rovi iciiil nuildiiij;,
At Halifax, N. IS., Aufinst :5(ttli, IS!»7.
20 At lO.'M* A. M. tlie (\)iniiiis8i()iierK took tlieir seats.

Mr. n(M(|UC : — In rising to follow my learned as.»oeiate, 1 am
(loeply impressed, as well with a sense of tlie duties devolvinjr
upon eoiinsel on both sides, as with the eonvietion that the very
important (|uesti()ns at issue will he finally and satist'aetoriiy
disposed of hy your Honors. In agreeiufj that these (piestions
should, in the first instanee, he suhmitteii to two Comndssioners.
and in dealin>; with the a|)pointment of an umpire as a merely
eontiufrent necessity, each t)f the Sovereifrn i)owers showed a

;}(> strikins, impartiality and unl)ia.sed
judjiment. Ihat this contideiute has l)een amply justified is a
matter as to which I need .scarcely say there is thoruUf^h accord
between our adversaries and ourselves. For the discharjie of
these duties, you are entitled ro receive from counsel on both
sides, the l)est assistance we can ijive you, and to commaiul that
we ;;ppntach and carry out the discussion of the several im|)or
taut (piestions now enfjaginj; your attention with the courtesy

40 and the wise and liberal spirit, which alone are beconnnf; to the
occasion and the two i;reat branches of the Anj^lo-Saxon race here
represented.

1 take it, and have taken it from the outset, to be an import
ant duty of the coun.sel for Her IJritannic Majesty to see on the
one hand that ail the claims fallini; within the scope of tiie
Convention be properly presented, and, on the other hand, that
none but legitimate claims be preferred. The learned counsel on
the other side will jtermit me to add that wi' had expected, and
still expect, to be met by them with the same spirit, as otherwise.

AO to use the very expression of the Claim's Convention, it would
render it extremely ditlicult for the liability of the I'nited States
{j;overniiient to (ireat Britain to be definitely settled and com
nen.sation made for any injuries for which compensation is due.
The High ConnnissiiiU would then fail in what I take it to be
its princi|)al object — the removal of all causes of friction ami the
increasing of the fraternal and kindly fei-iings which should ever
actuate the government and peojile of both countries in their
political and social intercourse with each othei'.

Let me pause here for an instant and say that, ditlicult as

00 would be my task even were I to address you in my own
langinige, I must beg the favor of your indulgence under the
still more diflicidt circumstan(-es in which I am placed.

After the very able argument which has been presented by
inv learned associate, and aware, as I am, that whatever remarks

February 8th.
United

'iiil Building;,
*t notli, KS!t7.

St'lltS.

1 iiss(K'iatt>, I iini
lutii's (Icvolviiijr
(11 that tlio viTv
11(1 siitiHt'iU'torilv
tlicso (iiiestioiis
Coiimiissioncrs,
)irf us a iiicrclv
)\vers showed a
inoiit of a ("oni-
on, which would
y and iinhiascd
ily justified is a
tlioroufi;li aecord
lie diseharfje of
counsel on lioth
eoiiiinand that
several iinpor
til the coiii'tesv
•econiinjr to the
Saxon raee here

to he an ini|)ort-
t_y to see on the
e scope of tiie
ther hand, that
led counsel on
1 expected, and
it, as otherwise,
ention. it would
le I'nited States
■ttled and com
nsiition is due.

I take it to he
friction and the

ich should ever
miitries in their

that, ditlienlt as
nil in my own
cnce under the
ilaci'd.

II presented hy
latever remarks

(Mr. Beique'.s Aifjument.)

I may otler to your Honors will he most ably and keenly reviewed
and criticised by the learned counsel on the other side, I can but
feel that I will be deficient in the task which I have undertaken.

The first point to which I desire to call your attention is as
to the scope of this (Convention. Thiour;hout some twenty paijes
of the brief of the United. States, the learned counsel have
attempted to show that the scope of the Convention is to be limi-
ted to entpiirin^ into claims which were presented at Paris,
included in paf^es 1 to (iO of the schedule to the British case and
to the additional claims. I propose to .show that there was no
such limitation and that your Honors are not only entitled, but
that it is the duty of this court, to enquire into all claims that
have been presented here. It will be necessary for your Honors
to bear with me and follow my reading of the principal part, and
I niav say of almojrt the whole of the Claims Convention, the
Treaty, and the Findings of Facts. Before doing so, however, I
think it would be proper for me to say a word of introduction as
to what has brought about this Claims (.'onvention.

That in 188(;, 1>S.S7, 1>S8D, 1890, 1891 and 1892, seizures of
British vessels while fishing on the high seas weie mode ; that
the masters, mates and crews were arrested, imprisoned and, in
several cases, submitted to other hardships ; the whole by the
authority of the United States and for alleged breaches of tlicir
municipal laws, is, I believe, admitted.

The seizures were made the subject of a long diplomatic cor-
respondence, through which repeated protests were made on the
part of Great Britain, are to be found with reserved of all rights
to compensation. This correspondence resulted in the Treaty of
Washington of 1892.

The main investigation under that Treaty was as to the
assumed exclusive jurisdiction of the United States in Behring
Sea, and the right of protection of or property in the fur seals
fre(pienting their islands in Behring Sea. Either party was,
however, at liberty to submit any questions of fact to the Paris
Tribunal, and to ask for a finding thereoii, the question of liability
upon the facts thus found to be the subject of further negotiation.

I need not recall the fact that the questions involved were
decided against the United States. First, that the United .States
had no exclusive jurisdiction over any part of Behring Sea, or
the seal fisheries therein outside of the ordinary teiritorial
waters ; and, second, that the United States had not an)- right
of protection or property over the fur seals frequenting the
islands of the United States in Behring Sea when such seals
were found outside of the ordinary three mile limit. Certain
facts submitted by Great Britain w-ere admitted by the United
States and found accordingly by the Paris Tribunal. The nego-
tiations liotvveen the governnients were resumed and resulted in
this (Jlainis Convention.

Now, taking up the question which 1 announced a moment
ago, and referring to page l.S of the argument of the United
States, I find the following proposition:

"The scope of the convention in this case is defined and
" limited by the language of the convention itself, and the docu-
" ments, which, by its terms, are made a part of it by express
" reference and identification in its body."

That tlu! .scope of the Convention is defined and limited
by its language is not ilenied. I am likewise ready to admit
that if any light is to be derived from the Treaty af Washing-
ton, the Award, or the Findings of Facts, either party may be
at liberty to refer to the same ; but I take issue with the state-
ment that the ,-cope of the Convention is limited, as claimed hy

I 'V

I-

(Mr. Beique's Argument.)

the (Jociinients referred to. I am likewise disposed to acquiesce
in the other propn.sition, found at page 23 of the same brief :

" The meaning of treaties of every i<ind is to he'ascertained by
" tiie same rules of construction and reasoning which we apply
"to the interpretation of statutes and private contracts."

Now turning to page StS I read this : " Kor the ascertainment
10 of the jurisdiction of the (^omuiission over the subject matter
the Convention of Kehruarj' 8, ]8!)(), consists of three docu-
ments : —

"(1) The Convention standing detached, which does not dis-
" close what claims are referred to the Commission, or how they
"'arise,' or what they are, and is unintelligible on the (piestioii
" of jurisdiction without reference to the other two documents
" which are named in it."

I clo not admit that the convention is in itself so unintel-
ligible us it is pretended to be, which I shall have occasion
20 presently to show.

' (2) The treaty signed at Washington on Februar}- 2f»,
" 1892, named in it ; and from this it appears that the claiinx
" referred to the Commission must be t'liinis ' arising ' under tiiut
" treaty : that is, the Commission is lim't'Ml to the consideration
"of claims for injuries that arose out of the assertion of tliu
"claim of the TJnitccI States to jurisdictional rights in tlif
" waters of Behring Sea with reference to seals, which is the
" subject matter of the treaty."

I need not say that to this we entirely agree. I proceed : —
30 '■ Clearly, he"' is a limitation which prevents this Coiii-
" mission taking cognizance of any claim for injuries committcil
" by the I'nited States, generally, as, for instance, on a merchant,
" ship or a whaler on the high seas, which would have liecii
"cognizable under tlie conventions of l.S.i3 and 1.S7I.

" (;{) The Awarcl ami the Findings of the Tribunal of
" Arbitration are found specitically referred to in this conveii-
" tion tiy date, and especially find tiieie specified certain Fndiii^^
'■■ of Fact ; and so tlie ' claims ' nitist ' arise ' as well by tlii>
" Award and the Findings of Fact as by the Treaty : and in this
40 "award -".id tindings of fact so referred to as defining what tlii^
" Comiiiission shall take cognizance of (a limitation in addition
" to that which wc have seen attached by the reference to tiic
" Treaty of 1892), we find our way to the carefidly prepared
" scheilule of claims, prepared by (Ireat Britain, and sworn to by
"the claimants, of whicli this Commission is given jurisdiction
" in this encjuiiy.

" The sidject matter of that finding, to which at relativi'
" words and repetitions refer throughout the finding, article by
" articli', is stated in number one of the Findings and Facts, and
50 " is this :—

" These several searches and seizure's, whether of ships nr
" goods, and the seveial arrests of masters and crews, respect-
" ivelv, mentioned in the schedule to the IJritish case, pp. 1 to
" GO. inclusive, etc."

1 call sjiecial atterjtion here to the statement made that tlie
claims " must arise as well by the Award and the Findings of
Fact as by the Treaty;" and that therefore the Treat}', the
Award and The Findings .of Fact are to be considered as two
independent limitation^ to the Claims Convention. This is tin'
00 wholi? contention (d' the other side. The words used in Article
1 of the Convention are these : —

" The high contracting parlies agree that dli rlnitiis an
" (irvoiii)t of liijarlcs xustidncd hij prrnoiis in whiise be/ml f (rirat
" liritiiiii v'.-i entitled tti claim coinpenKiition from the Cnilid

o.setl to acquiesce

sinne brief :
lie' ascertained by
wbicii we apply
or.tracts."

lie ascertaiiiineiit

subject matter,

s of ibree docu-

cli does not dis-

ion, or bow tliey

on till! (luestioii

r two (locun>en*>

tself so iinintel-
11 luive occasion

in February 29.

1 tbat tbe claiiiiM
isinj; ' under tliut
tbe consideration

assertion of tliu
il ri^dits in tlic
!als, wbicli is tin'

e. I proceeii : —
vents tbis Coin-
juries coniinitteil
ce, on a nierclmnt,
,vould bave been
1 1X71.

tbe Tribunal of
o in tbis conveii-
d certain Fndini,'s
as well by tlii'
reaty ; arid in this
efiniii^ wbat tliis
ation in addition
! reference to tlic
arefiilly prepared
, and sworn to liy
given jurisdiction

vbicb at relative
inilinj;, article by
f^s and Facts, and

ether of ships or
id crews, respect-
isb case, pp. 1 to

nt iiiado tbat the
the Finding's of
tbe Ticat}', the
oiisidered as two
ion. This is the
s used in Article

it ((// cllliUlS (III

vluKsc behalf (hnit
Crom tlie L' niii'd

(Mr. Bei(|ue's Arp;ument.)

" Stidea, and arixinf] In/ virtue of the treati/ aforeniiid, the aw(a'd
" and the findinps of the mild tribuval of iir\iitration,&9 also the
"additional claims specified in tbe fifth paragraph of the
" preamble here, s/ta// 6c ?v/cr)y;(/ to two rommissioners, i)ni\ of
' whom shall be appointeil by Her Britannic Majesty, and the
" other by the President of the United States, and each of whom
" shall be learned in law.

" Appended to this convention is a list of claims intemled ' to
" be referred.' "

The words •' as well " are no where to be f'.unil here, or any-
where else, and their introduction is an attempt to alter the
nieaiiiiif^ of tbe Convention.

I have just stateil that the Convention taken alone is not as
uriintelli<;ii)le as is claimed by my learned friends. Let us refer
to tbe preamble of the Convention :

" Whereas, by a treaty between H(.r Majesty the (Jjueen of
" the United Kini^dom of Great Britain anil Ireland and tbe
" United States of America, si(,'ned at Washin^'ton on February
" 20, 1<S92, the qaentiovn which hud oriseii between their I'espee-
" tive ({overnments covrervivij the. jurisdirtionol riyhtu of tlie
" Uniti'il. Htatci* in the icotevn of Jiehiivf/ .SVk, and concerning;
" also the preservation of the fur-.seal in, or haliitually resortinj^
" to, the said sea, (uid the rii/hls of the cilizenn and milijerln of
" either country as reijanh the tokiiuj of far seal in, or hahil-
" xudl;/ risortivg to. the naid watern, ivere sahinitted to a trihunal
" of arbitration as therein constituted."

Tbis para^'raph refers to all the questions wdiicli have arisen
between (beat Britain and the United States in connection with
the subject matter in question, inclndin;,' the ri^^hts of British
subjects, as expressly stated of takinfj fur-stalsin Bebring Sea,
as luiviiij; been su'.nnitted to the Paris tribunal.

" And whereas, the lii;,'h contract in;,' jiarties have founil
" themselves unai'le to ai.;ree upon a reference which should
" includi? tbe question of the liability of each for tbe injuries
" alle^jed to have been sustained by the other, or by its citizens,
" in connection with the c'liiins presented aird iirj,'ed by it, ilid
"by articli! VIII. of the said treaty, ayree that either party
" might submit to the arbitrators any questions of fact invijlved
" in said claims and asked for a finding thereon, the question of
" the liability of either government on the facts found to bo the
" subject of further negotiation."

This paragraph is also perfectly plain in itself, and is verbally
the recital of article 8 of the Treaty of Washington. I read
fiiither : —

" And whereas, the agent of Great Britain did, in accordance
" with the pi-ovisions of said article VII I., submit to the tribunal
" of arbitration certain findings of fact which were agreed to,
" as proveil by the agent of the United States, and the arbitra-
" tors did uiianinioii-ly find the facts so set forth to be trui\ as
" appears by the award of the tribunal rendered on the loth
" day of August, I8!»;{."

A reference is made here to the awanl, evidently for the
purpose of ascertaining what facts ivlating to or involving
liability have already been established between tbe two govern-
ments, and limiting the enquiry to any reiirairiing facts which
m.iy be pertinent to the claims involved.

Now comes the leading and most iiiiporlant paragraph of
the Convention : —

" And whereas, in view of the said fin din (jn of fact and of
" the decision of the tril)nval of arbitration eoncrrnln(j the
" jurisdictiovul rights of the United States in lieh ring Sea, &i\d

1^1

jm^mfim

(Mr. Beique'« Argument.)

" the ri(:jlit of protoction or property of the ITnited States in tlie
" fur-seals frociuentinjj the islands of the Uniteii States in
" Hehring Sea, the yuveriiment of the United States in drsirotis
" that, ill nu fai' (IX its litibiliti/ in vot idreadii fixed and deter-
" mined by the findltii/s of fad and the decixiun of milil tribunal
" of (trbitnition, the iiuextion of Huch liability/ should be delin-

10 " itehi and full 1/ settled aud detenu ined and, covijiensation made
" for aui/ injuries for whieh, in the eoutem.plation of the treaty
" aforesaiil , ami the aivard and fiudiu(/s of the tribunal of
" arbitration, couipensation may be due to Great Britain from
" the United States."

Witii this wordinjr that " the United States is desirous that,
in so far as its liahility is not alreaijy fixed anil deteiniined hy
the Findings of Facts and the decision of the Trilninal of
Arliitnition, the (jiiestion of sudi lialiility should ho detinitely
and fully siatled and di!terinined," how can it he pretended that

20 tlie lialiility is to he limited to tliat arising from the Award and
the Findings of facts or that such Award ami Findings of facts
are to stand or to he taken as uhsolute limitations to the scope
of the Convention ?

And what of this expressed desire that " compen.sation he
made for any iiijui'ies for whicli, in the contemplation of the
treaty and the Award and the Findings of the Trihunal of
Arliitration, cowijionsation may he due ...."?

In plain language, is it not a declaration that compensation
is to he made for all injuries, whether tiiey were in contemplu-

30 tion of the Treaty, of the Award or of the Findings of facts.

The words used " its liahility " arc as compreliensive as can
he and evidently inteinled to cover any lialiility incurred hy the
United States for nets ilom; in the assertion of their assumed
exclu.sive jurisdictional rights in IJehring Sea and wiiich acts as
the result of the Paris Award were illegal and unwarmnted.

The word " compensation " used in ti)c same paragraph, is
co-extensive witli the w(/i >1 "lialiility" to which it refers and
was likewise intendei', I respectful!}' suhmit, to covei comp3nsa-
tion for all injuiies sutiered.

40 The portion of the preamhie f)f the Convention I have read
•••o far, heing general in its terms and comprehensive enougli, as
I have said to cover all claims, arising from acts of the United
States in the assertion of their assumed exclusive jurisdictional
rights in liehiing Sea, the next paragraph may have heen more
or less necessary.

" And whereas, it is claimed hy (Jreat BritaiTi, though not
"admitted hy the United States, that prior to the saiil award
" certain other cliiims against tiie United States accrued in favor
"of Great iJritain oi. account of seizures of or interference with

50 "the following named Bi'itish sailing vessels, to wit: the

' ' WandiM'e
and Hatti

the ' Winnifred," the ' Heiu'iettsi

md tlie 'Oscar

and it is for the mutual interest and convenience
" of hotli the high contracting parties that the liability of the
" United States, if any, an<l the amount of compensation to he
" paid, if any, in ropeet of such claims, and each of them
" should also he determined under the provisions of this con-
" venti(jn."

Apart from the leason which I will give later on, tins para-
graph may he explained hy i. desire on the partof (ireat Britain
00 to inform the United States as fully as possihle of all the claims
it, had in mind at the time. And the fact that the United States
though not admitting its liahility in connection with tlie vessels
mentioned in this last paragraph, consented to the claims heing
thus specially lefeired, slujws an intention and a desire on its

(Mr. Beique's Argument.)

F)art to avail itself uf the pre.sent Coiiiiniasion to e.xhnust all its
lability.

The only limitation to be found as to liability or compensation
is that resulting from the follmvinj^ portion of the preamble of
the Convention, " all claims by Great Britain nmier Article V
"of the Modus Vivendi of April 18th, 1892, for the abstention
ilO " from Kshint; of British sealers diirinjj the pendcncj' of said
"arbitration having l)oen definitely waived before the Tribunal
" of arbitration."

Article 1, of the Convention is in accord with its prean>ble:
— " All claims .... arismg by virtue of the treaty aforesaid, the
" award and the finding of the said tribunal of arbitration . . . ."
L(^t me now refer to the Treaty, the Award and Findinjjs in
(jiii'stion and see whether a limitation of liability is to be found
in, or inferred from them.

" Her .Majesty the Queen of the ITnited Kingdom of Great
[20 " Britain and Ireland, and the United States of America, being
" deslroiix to pnivide fur (in. (unicitble nctt.emtnt of the iiueationti
" witicli Imce (iriscn hetiirev their rei*i>ertive governitientu ronccrn-
' inij the JurindieJlonol riijlifs of the I'nited Stdtea in the icater
" of liehrinij Sea, (ind concerning also the preservation of the fur
" seal in, or liabitiiall}' resorting to the said sea, <ivd the rights of
" the citizens und 8u1)j<'etfi of either coiintri/Kx regardu the taking
" of far seal in or hitbitaullg resorting to the snid ivdters, have
" resolved to submit to arbitration, the ijueMions i nvulved, a.nt\
" to the end of concluding a convention for that jjurpose, have
[30 "appointed as their respective plenipotentaries, etc."

Is not this wording as ample as can be and does it not cover
all the ipiestions which have arisen between (ircat Britain and
the Fnited States concerning the subject-matter mentioned ?

Take again Article 1 of the Treaty: "The questions tchich
"have arisen between the Government of Her Britannic Majesty
"and the Government of the United States concerning the juris-
" diclional rights of the United States in the u-aters of Beliri' g
" Sea, and concerning also the preservation of the fur-seal b. or
"habitually re.sorting to the said sea, ami the rights of the
40 " citizens and .mbjccts of cither country as regards the taking of
" fur-seal in or habitually resorting to said waters, shall be sub-
" mitteii to a Tribunal of arbitration," &c. What was to be
subndtted ? Was it not all the questions which had arisen ?

It wil/ possibly be contended bj- my learned friends on the
other side, that a restriction is to be found in Article VIII of the
Treaty in as uiueh as the liability therein mentioned was that
" in connection with the claims presented and urged and it will
" be aigiied that the claims therein referred to were the claims
"appearing in the schedule to the British case.— pp. 1 to CO."
|50 What, however, becomes of this argument if it be true as
stated on p. 7 of the United States brief that "the claims were
" not presented in any form until the Paris Tribunal came
" together in IcSO.I." Does it not follow that the claims referred
to in Article VIII of the Treaty of the 29th February, 1892,
were such claims generally, as ndght arise from the seizures and
other acts of interference complained of by Great Britain in the
course of the dip'omatic correspondence anterior to saiil Ti-eatv
and on account of which all rights to compensation had been
repeatedly reserved.
BO Article VIII. stated that the contracting parties had failed
to agree upon a reference including the liability of each for the
injuries alleged to have been sustained by the' other, or by its
citizens, in connection with the claims presented and urged by
it; but that they had agreed that either might submit "to the

i«

!■ lllj.mUJI.il

(Mr. Beiiiiios' Ari; iiii nit.)

arliitrators any (jiie.stion of fact involved in said claims and ask
for a timlinj,' tluMvon, tlie (lucstion of the lialiility of eitluT
govt'inini'iit upon the liicts found to \<v the sul>ject of further
m-i^otintiun.

Was it not open to (iivat Hritain iimler the Tn^aty, ami
especially under Article Vlll. thereof, to ask for a tindin<{ of
10 facts as well in connection with one class of claim as atiother ^
Will it he pretended for instance that there could have heen
nn oliji't'tion to the Mliick Dianmnd hein;,' mentioned in the
Hchedule of Mritish claims amongst the vessels warned in KSfsO,
or to tindin;;s of facts heinj^ asked foi in conm^ction with the
arrests or suHerini,'s of Captain Uauilin, the nuister of the " Ada ?"
Evidently not.

When the treaty wassij^iii'd, what !• now known and referred
to a> llie sclu'dule to the Ihitish case, pp. 1 to GO not heiii;^ in
existence, or at least not havin;; heen communicated to the
20 United States, it could not have heen referred to in said Tii-aty.
Now let us take the award and the lindin;,' of facts and see
whether there is in the award, or in the finding of facts, any
limitation such as is claimed hy the other side.

" Wheieas, hy a treaty hetween the Tinted Slates of America
" and ( ireat Itritain, sijjneil at Washiiic^ton tlu^ 21tth February,
•' IMI:? til" ratifications of which hy the ^oveinmeiits (if the
" two countries were eAchan},'ed at London on the 7lh May,
'• 1MI2, it was. amiiiij,' other thin<js, a^^need and concluded that
" the (piestions whicli had arisen hetween the i,'overnments of
30 '• the United States of Ameiica and the government of Her
" Britannic Majesty, conceiniii}> the jurisdictional riijhts of the
" Tnited States in the waters of llehrinLj Sea, and conceinin;;
" also the jireservation of the tor seal in or hahitually resmtiii;;
" to the said waters, and the rij^hts of the citizens and suhji'ct^
" of either country as lejjards the takinj; of fur seals in or
" hahitually resortin<; to the said waters, should he suhmitted to
" a triliunal of aihitration to he compox'd of seven arhitrators."
Alwavs the sanie lan;,'uaj,'e and reference to all the (piestions
which had aiiseii hetween the two ^(Dvei iiments.
40 " And whereas, liy ArlJcle Vlll. of the said treaty, after

" recitini,' that the hi;;li contractinjr jiarties had found themselves
" nnahi(! to a^'rt;e upon a reference which should include the
" (|Uestion of liahility of each for the injuries allejjed to liave
" heen sustained hy the other, or hy its citizens in connection
" with the ch ims presented and ur!.;fd hy it, and that " they
" were solicitous that this suhordinate ijuestion should not inter-
" rupt or loii<,'er delay the suhmission and determination of the
" main ipiestions, the hijjh contractin;^ parties ajjreed that
" either of them miij;lit suhmit to the arhitiators any ipiestion of
50 '• fact involved in said claims and a-k for a finding thereon, the
" (piestion of the lialiility of either f.'overnment upon the facts
" found, to he the suhject of fuitlu-r negotiation."

This is a;,'ain a mere recital of Article S of the treaty, and
no limitation can he inferred from that. It is unnecessary to
read what follows. I now take the la-^t paratjraph of the recital :
'• And whereas the |;overnment of H.-r Britannic Majesty did
" suhndt to the Trihunal of Arhitration, hy Article VIII. of the
" said tieaty, certain (piestions of fact involved in the claims
" rcfeiied to in the said Article VIII., and did also suhmit to us,
GO " the said 'riihunal, n statement of said facts, iis folhiws, that is
" to say :" —

I have shown that article S of tin; tieaty could not have
referred to the schedule which was not then in exislenci'; it
referred to the claims which Great Britain had expressed her

(Mr. Beiqiie's Arj^nment.)

intention of preferrinj; ajjainst t'-.o Uniterl StntcH. Tlif nniteil
Stntcs linil not coniciitml to onqiiirt! as to those cliiinis, ami tlicrt'-
foic till' occasion hn,.l not y«t proseiituil itsi^lf for (Jreat Hiitain
to formally pre*";nt tli(!ni.

I claim tint the leference which in niailc tliroiij^hoiit these
(lociiincntv is not a reference to the scliediile to tlu! Hritisli cnse,
hnt merely to the claims as arisin^r from tin? ille;,'nl acts of the
I'liiteil Stntcs and for which (Jreat Hritain had expressed her
intention to demand c-mpeiisiition on lielialf of her siilijects. I
now take the tin(Iini,'s of the facts : —

" Kindin^'s of fact j)roposed l>y thea;i;entof (ireat I'iritain and
" ai,'ieed to as proved hy the aj,'pnt for the United States, iiml
"Milimitted to the 'l'i-iliunal of Arhitration for its consideration."
" 1. That the several searches and seizures, wliethor of ships
" or ;,'oods, and the several arrests of masters and crews, respi!c-
" tively mentioned in the schedule to the British case, pp. 1 to

iO "(H). inclusive, were made tiy the nnthority of the United States
" rjovernment. The (|Uestiors as to tin? value of the said vessels
" or their contents, oi either of them, and the (piestion as ti
" whether the vessels mentioned in the schedule to the Uritish
" case, OI any of them, were wholly or in pait the actual jiioperty
" of citizens of the United States, have lieen withdrawn from,
" and have not heen considered hy the Tiihunal, it lieiiiLj iinder-
" stood that it is open to the United States to raise these (|Uentiotis,
" or any of them, if they think tit, in any future nej,'f)tiations as
" to the liahility of the United States j^oveinment to pay the

80 '"amounts nientioned in the schedule to the iiritish case."

Heference is made liere in this pararjraph to the schedule to
the liritish case, liecause the claims therein mentioned were the
o?dy claims as to which (Jreat Britain had deemed it advisalih*
to ask lor findiuLts of facts under Aiticle <S of the treaty, Imt
(irent Britain nerer waived any of its iif;hts for further claims,
especially at a time when the United States had not yet ajfieud
to make coiii|iensation or even acknowled;;e their liahility. (ireat
Hiitniii surely never waived the liyht to prefer any claims to
which llrilish snijeets mijjlil he entitled hy reason of the illej;al

to acts of the United States.

"That the seizures aforesaid, with the exception of the
" Pathfinder," seized at Neah Hay, were made in Behrin^j Sea at
" distances from shore to shore mentioned in the schedule annexed
" hereto, marked (('.)

" That the said several searches anil seizures of vessels were
" made h\- puhlic armed ve.ssels of the Unitei' States, the coni-
" mandeis of which had, at the several times when thej' were
" made, from the executive department of the Government of the
" United States, instructions, a copy of one of which is annexed

50 " hereto, {<() and that the others were, in all suhstantial respects,
" the same. That in all the instances in which proceed itiifs were
" had in the District Courts of the United States residtinjj in con-
" demnation, such proceedinnfs were hefjun hy Hlin;; of lihels, a
" copy of one of which is annexed hereto, marked (B), and that
" the lihels in other proceedinrfs were in all substantial resjiects
" the same ; that the allejjed acts or offences for wdiich .said
" several seaiches and seizures were made, were in each case done
" or committed in Behrin<j; Sea at the distances from shore afore-
" said ; and that in each cnse in which sentence of condemnation
" was passed, except in tho.se ca.ses when the ves.sels were leleased
" after condemnation, thest^izure was adopted hy the government
" of the United States: and in those cases in which tlie vesseh
" were released the seizure was made hy the authoiity of the
" United States ; that the said tines an 1 imprisonments were for

(Mr Ht'i(|UH's Armiiiiptit.)

" alloj^oil liipachoM of tliH iniiiiici|ml Ihwn nf llio niiiti'tl States.
" wliifli all»'j,'fc| lirciicln's wtMc wliolly cominittt'il in Holiriii/,' Sea
"at till' ilistiiiiccH from slimt' afort'sftid. "

" 'I'liat tlic Nfvi'iiil oiili'iN inrritioncil in tlic scliciliili- ntitifXi'i!
"hfTt'to iiikI niari<('il ((,'), wiirnini,' vessels to leave or imt tii enter
" lieliriii;; Sea weif made iiv |iiililic armed vussels of the Fiiited
10 " Stiites, tlic pumiiiaiiders of wliicli lind, at. tlie several times when
" tliey wcrp j;iven, like iii>tnu'tions as meiitioneil in limliny; ."t,
"and that the v.isseis sn warneil were en;,'ai,'eil in sealini; or nro-
•' secuiini; vo\M;,'es for that piiipose, and that such action was
"adopted liy the !,'overniuetit of the I'nitud States."

" 'I'liat the district oints of the I'niteil States in wliir'i any
" I)r()ceedinj,'s were had or taken for tlie purpose of eondei, ninj;
"any vessel seized as mention.td in the scheclidt! to the i-aso of
" (iieat Ihitain, pp. 1 to (iO, inclusive, had all the juris lietion and
" powers (d' courts of admiralty, ineludiri;; prize jurisdiction, Imt
20 " that in each ease the sentence pronounceil liy the court wns
" hiisrd upon the ^-rounds set forth in the lihel."

Ainiex A is a letter of the actinu' Secretaiy of State to the
comiuanilei' of the revenue steiinu'r " Hear," as follows: —

" 'I'riasuiy Department, ( >llice of the Secretaiy.

\VaHhin';ton, April 'Jl, INSd.
'■ Sir,—

" lleferiinj; to .leparlnicTit letter of this date, directing you
" to proceed wiiii revenue steamer ' Heiii ,' un ler your (MUimand,
" to the si'iil islands, etc., yon are herehy clothed with full po'ver
.')() ■ to enforce 'he law cotitained in the provisions of .section IDofi
"of the Tnited States revisecl statutes, and directi'il to seize all
" vessels, anil arrest and dtdiver to the proper authorities any or
" all per-ons whom you may detect violating,' the law referred to,
after due notice shall lie ^'iven."

" Vou will also seize any liipiors or firearms attempteil to ho
" introduceil into the country without proper peimit, \inder the
" provisions of section l!l').') of the revised statutes, and the pro-
' claniation cd' the Piesiclcnt, dati'd tlie 4th of Fehruary, l.S7().
"Ke.spectfullv yours,
40 (Signed) ('. S. l-'airchil.l,

Acting Secretary.
Captain M. A. Healy,

Commanding revenue steamer Hear,
San Francisco, California.

Annex U is a lilud of information showing that the whole
proceedings were done liy authority of the Cnited States and
shnwing al-io that it was for an alleged lireaeh of their municipal
law. It aKo ciiiitains these allegations;

" That Charles A. Ahliey, an olHcer in the Revenue Marine
."iO "Service of the United States, and on special duty in the waters
" of tile district of Alaska, heretofore, to wit, on tlie 1st day of
" August, l.SSti, within the limits of Alaska Territory, ami in the
" watert thereof, and within the civil and jmlicial district of
" Alaska, to wit. within the waters of that poition of liehring
" Sea lielonging to the .-aiil district, on waters navigahle from
' the sea 1>3' vts^els of 10 or more tons hurden seized the ship or
" vess(d, commonly called a schooner, the 'Thornton,' her tackle,
'■ a|)parid, hoats, cari;o, and furniture, lieing the property of some
"persons or persons to the s.iid attorney unknown, as foifeited
(10 "to tlie Cnited States, for tlie following causes:

" That the said vessel or schooner was found engagecl in
"killing fur->ed within the limit of Alaska territory, and in the
" walfus thereof, in violation of section IDoG of the revised
' statutes of tlie United States."

(Mr. IU'ic|iie'M Ar^jtiiiu-nt.)

Annex (! shows tlio minies of llit* MiiliHli vcssuls soizod or
will ni'cMiy the (Tniteil rfVtdiiie witters from 1M.S(! to IMDOaiid
the (ipproxiniiite distiince fioni liiml whi'ii seizoil. The tubh<
eontiiins tlie foMowin^' heails : tlie naaie of the vessel, (hite r"
seizure, till' iipproximiite distance from land when seized and tl
United States vessid makinL,' tlu; seizure. And the award doses
( with these piini;,'raphs ;

' And whereas the i,'overninent of her Hritannic Majesty did
• ask the said arhitrators to find the said facts as set forth in iIki
"said statements, and whereas the aj^ent and counsel for the
'■ United States i;overnment thereupon in our presence informed
" Us that the said statement of facts was sustained hy the evi-
" dence, and that they had a;,'iced with the i.^'i^nt and eoiinse! for
" hei' Hritannic Majesty, that we, the arliii:;itiirs, if we should
'■ think lit so to do, mi;,dit tiiul the said statement of facts to ho
" true."
20 " Now, we the said arhitrators, do unanimously liii>l the facts
■' as set forth in the said statement to Im- true."

[iCt mi' sum up hen; the jfround \ have covered.

Tlu^ preaudile to the convention, e^|)ecially lead in the li^rlit
of uiidouhted historical facts, in etleet provides —

That the United .States has asserted and exercised curtain
jurisdiction over Hehrin;^ Sea,

That (ireat I'ritain, had not oidy protested ajjainst the asser-
tion and e.xercise of such jurisiliction, hut hail presented and
urLjed claiii's occasioned therehy ; always using these words in
30 the sense of annomicin;,' its intention of claiming; on hehalf of
Jh'itish suhjects and urtjinj^ the United States to consent to the
takin<j; np of the claims.

'I'hat the (piestion concerninij the alleged juris'lictional rij^hts
of the United States has heen suhmittecj to arbitration.

That the parties had found themselves unahle to a^rei^ upon
a reference wliich should include the liahilit}' of each for the
injuries allejj;ed to have heen sustained by the otiier or by its
citizens in connection with the clai us, but bad aj^reed that any
questions of fact involved in said chiinis mii,dit be submitted to
[40 arbitrators; the liability of either f^overnment on the facts
found to be subject to further nei^otiatioirs,

That an awani had been rendered, whi'ih nej^atived the exist-
ence of the jurisdictional rifjhts asserted and exercised by the
United .States ; and also made Hndinj^s of fact on certain ques-
tions of fact submitted to liieru as aforesaid,

" 'I'hat in view of .saiti decision on the juri.sdictional question,
"and in view of the findinjjs of fact," here I am ajjain ([uotinj^
from the preamble of the Convention, " tlie gevernmeiit of the
" United Stales is desirous that in so far as its liability is i^vit
[60 " ahead}' fixed and di!termineii ly the tinilini,'s of fact and the
" decision of saiil tribvinal of arbitration, the question of such
" liabilit\' should Ik; definitely and fully settleil and determined,
" and compensation made for any injiiri(!s, for which in the con-
" templation of the treaty aforesaid and the award and findings
" of tlie tribunal of arbitration, compensation may be due to
" (jietit Britain from the United States."

Now, what was meant by the words "such liability' ?" Evi-
dently, all liability caused by the assertion and exereis(! of the
jurisdictional rights, which had been held to be unfounded and
j60 unlawful.

Any narrower meaning would be in conflict with the text
and, under the circumstances, most improlialile. One gi ~'it
nation had admittedly incurred liability towards another, and
was desirous to discharge that liability by compensation. C'ln

tHiP'"'; !■'

ii?

100

I t

(Mr. Beique's Argument.)

it 1)0 believed that the United State.s would liave oH'eied, or Great
Britain . -.-^epted, iiiiy thing short of full compensation ; that the
former would liave proposed or the other permitted a repudiation
of any actual liabilitj* ?

The United States contention amounts to an athrmative
answer to these questions. They object to claims which, apart

10 from the alleged liu)ilations in the convention, ur.douht.edly are
in every respect a.s good and valid claims against the United
States as thos» which are admitted to come within its scope.
They tlieret'ore argui' that claims on behalf of persons who are
entitled of right to the protection of Oreat Dritain, claims which
it was not only the right but the bounden duty of (Jreat
Britain, to present claims which she had actually presented, were,
without the least cause, and without the assignment of any
reason, at the last moment abandoned.

'J'Ih' United States, as I understaixl it, defend this extraor-

20 dinary conclusion as follows: —

(1.) That the word " liability " in the •'th paragraph of the
preandile refers to the " liability " mentioneil in the seeund para-
graph. 'I'hat the liabilit}' last referred to means " liability in
connection with tlieclnims presciited and urged by (Jreat Britain,"
which they say means the claims included in the schedule to the
British case at Paris, pp. I-(iO;

{'!.) That the tirst article of the Convention restricts the
claims to those "arising as well by virtue of the award and the
tindings of facts as iiy the treaty ;" /. c, that the claims must

30 arise uiidei' each and all of these categories.

The Treaty of l!S!)2 coidd have had ni reference to the
schedule to the British case at Paris, because not oidy had that
schedule not yet beiui prepareil, but also because, as T said before,
if we are to balieve our ii'a!lie<l friends, no claims at all had been
presented to the I Tnited States. Xor eouhj it have meant that
no claims should th(0"after be entertaiiUMl but such as might
thereafter- lie presented to the arbitrators at Paris. That would
have lieen a ]ierfectly senseless stipulation.

'i'he arbitration was not for the deterndmition and asst'ssuient

40 of cliiiuis against the I'nited States, but for the srttlcnient of
(piestions of law, the decision of wliicii wo\dd atl'ird a Imsis for
the subsi'ijuont and final adjustment of any claims thine might
be. In other words, the arbitrators were not a court f(U' the
settlement of claims or the li.\ing of liabilities, but wi-re rathera
boaid entiusteil with the duty of declaring what was the law
which governed the claims. 'I'lu^ right of the arbitrators to
deciee liability was expivssly lU'gatived. Why then reipiire the
parties to present to the arbitrators claims that the latter had no
p(jwer to clecide :* There wen; lu) reason for it, and it ci'rtainly

50 could lu'ver have been nu'ant. It is true that 'the jiarties wei-i?
entitled to tile claims, and to ask for lindings of facts. But this
was a mere nuitter of convenience ; the coid'ening of a privilege,
not the imposing of an obligation. Either paity was at bborty
to present all his claims, none of them, or as many as it pleased.
To suppose that the piesentatiou of claims, nnder those eiicum-
stani.. s, and for that purpose, should debar v Jreat Pritain from
presenting other claims, is to suppose that tlu! august .i 's to
this niost important treaty acted in a most irrational and arbi-
trary manner.

(!0 I theiifoieconlidently submit that Article VIII. of theTieaty

of 1MI2 dill not ii'sirie' (!real Pritaiii's right of ciuiipi-nsiitiou to
sMch claims ordy as it might present, at I'.iris ; that the woi'd
" liability " in the secmd |iarngraph of the preamble to the t.'on-
ventioii is there used in no sudi restricliMl sense: an<l that the

)Heie<l, or Groat
fition ; that the
111 a repiuliiitiix)

an atfiriiiativo
ns whicli, apart
I'.douhtt'dly arc
inst the United
'ithin its scope,
lersons who are
n, claims which
duty of tJreat
presented, were,
i;niiient of any

III this extiaor-

irai,Ma!ili of the
lie sceoiid piirn-
u» " lial)ilitv in
( I real Britain,"
scheilule to the

on restrict-* the
award and tlie
lie claims must

•ference to the
b only hud that
as I said hefore,
< at all had liecn
ave nieai;t that
such as niii^'ht
<. That wiiuid

and assessment
si'tflemi'llt of
I'li'il a iiiisis for
uis there mifjht
I court for the
It wi-re rather a
at was the law
arbitrators to
hen recpiire the
le latter had no
.nil it certainly
le parties were
facts. Hut this
; of a privilejje,
was at I'lierty
ly as it pleased,
r those circum-
at llritaiii from

11,'Ust ,it 'S to

ioiial and arhi-

I. of the 'i'leaty
ompi-nsation to
that the word
Me to the (.'i)U-
: and that the

101

(Mr. Beique's Argument.)

word " liability " in the fourth parai»rapli of the preamble of th»
Convention refers in no way to the " liability " mentioned in the
second paragraph.

Article 1 of the Convention, which says that the claims
referred to are those arising by virtue of the treaty aforesaid,
and award and finding* of the Tribinial of Arbitration means,
according to the contention of my learned friend, that the claims
must arise not only by virtue of the treat}% but also in addition
by virtue of the award and finding of facts. Now, if I have
shown (as I think I have) that any such limitation would have
been unreasonable, the learned counsel are driven to rely upon
the little word "nnd,"asthey seenito do in their brief to sustain their
contention. This, with all respect, I submit is a play upon words.
Whether the treaty is strictly grammatical is very doubtful, but
it is eleiuentaiy that the word " and " in contract or statute is
read as meaning "or" and vice versa, in order to carry out the
intention of the parties or the legislature. It will be sufficient
for me to refer to a couple of authorities on this point. Max-
well on the interpretation of statutes, section 303, says : " To
carry out the intention of legislature it is occasionally found
necessary to read the conjunctions "or" and "and," one for the
otiier. Indeed, these words are conceded to be CvUivertible into
each other as the sense of enactment and necessity of har-
monizing its provisions require." Numerous authorities in sup-
port of this are found in this and the following section. Then,
in Hardcastle's, page 102, it is said : —

" Another important rule as to the meaning which is to bo put
upon ordinary words or expressions when used in Statutes is if
the words are susceptible of a reasonable and an unreasonable
construction, the former construction must prevail."

But it may be contended that the additional claims wore
enumerated. Why was this done if the scope of the convention
is as wide as claimed by Great Hritain ? The answer is that
the additional claims stand on a ditl'ereiit footing from the others.
The liabilit}' referred to in the second and the fourth paragraphs
of the convention might reasonably have bnii taken to mean the
liability occasioned bj- the unfouiidi'ij aHsninptinn or jurisdiction
in liehriiig Sea and the admitted exercise of such jurisdietioii by
seizures and w/ir'dngs at the time when sealing in that sea was
open to all persons, whether l!ritisli subjei-tsur Anierieaii citizens.
Tile additii iial claims accrued diiriiig the modus vivendi at a
tini' when iii'ithi'r Mritisli subjects imr eitizciis of the United
S.,it''s eruld lawfully seal in lieliriiiL;- Sea. Tlii'iefore to e*,!
ally eiur.iierate the latti'r class of el lini
ali;iiidoiim.^'iit of the former, as
doiog so.

Now, 1 de-^iie here to especially end vivu- lloiuirs iitleiition
to one more fact which of itself it sei'ins to me is a enuclusive
solution of the i|Ui'stioli. The best | roof thul the scdji,' of the
convention was never intended to be limited to the cluims as
appearing ill the schedule of the Hritisli ea-e is that the peiscmal
claims for llSSii mid I.S>s7, which are ailmiltcd tu form a jiart of
the convention and to fall within its senpr, do not apinsr in the
ihitish case, or the schedule of the I'.ritish ease.

The ('ommii<siiiiier oii the |)art of the I'nited States: I

understand it is distinctly enumerated. Ilnfortiiiiatelv I have
lost my volume wliieu contains the British ease, but in looking
at the re-print which you furnished 1 find them named th^re.
Mr. Dickinson: —Every o..o of them is named there.
The Coiiimi.ssioner on the part of the I'nili'd States: I do

'-pcci-

ijors iifit import any
thiTi- was a clear riason for

! 'r

'^nppifpi

102

! i

(Mr. Beique's Argument.)

not niL'iiM to say tliiit all the personal claims, but cortnin masters
and mates were nameil aeeoriling to my recollection of it.

Mr. Heiijue : — Kvidcntly I have overlooked the fact.

It will he hardly necessarj- for me to an.swer the contention
to he founil in the opposing hrief on page 'iG that the word
" arise" is us(>d in the sense of " having their originals,"
10 " presenting themselves," "appearing from." The phrase is too
plani to yive rise to any di.seussion. I see that reference is
made to the Dictiomuy. Hut it seems to mc that it is not neces-
.sary to refer any dictionary. The claims arise from the treaty,
the award, ami the rindingsof the trihunal of arhitration in the
.same .sense as an ohligation arise from contract. It is claimed
anil has now to he ailmitted that the United States have com-
mitted illegal acts in this assumed jurisdiction over BeiuMng
Sea. In the assertion of these acts th«?y liave infringed on the
rights of British suhjects ami n liability has arisen from that.
20 Tlie treaty of Washington was made for the purpose of ascer-
taining mainly whether those acts of the United States were
warranted or not, whether the United States were entitled to
treat Behring Sea as a tnnre ddnsaia, and whether United States
were entitled anj- right of property or of protection in fur seal
bearing animals in Behring Sea. Undei tli. t treaty an award
was rendered negativing the assume ' ri;.:*, o*' .,iie United States,

1' ' arisen from the

frot;. the illegal acts re

and therefore I say that when we
treaty of Washington it means ari'^e
ferred to- in said treaty.
30 Now, ri.'ferenci' tr. th(^ dillerent drafts of this claims conven-

tion exchanged between the two governments, as mentioned on
page 4 of the British arguni-'iit in reply, entirely disproves any
intfutioii on the \y,u't of (Ireat liritain to waive any of her
rights, or for the riiitcd Slntps to deny or esc.ipe any part of its
lialiilil\'. Here is wh.it I lind on page -i of our wiitten i-i'ply : —
"In the first draft proposed hyOri'at liritain, the ui'tiele
referring to the assessment of compiMisation simjily stated
that: —

"Tlie two ('omiiiis-.ioiiers shall assess the amouTit of eoinpen-

40 saticin ti) he paid in respect toeaeheliiim " v.'iHiuut referring

at 'ill ti the n.:Ui"ii!ility oi' tlie elaimrnt.

In the counter draft jii-oposed by the United States, .\rtiele
1, stated ; -

■ Till' high eontraeting [larties agree that </// rhis- ,.■■:
ish fiiihjr('ls fur liijiii ii'ff Kii-ilitiiK'il hij lliciil in lit' n ur/
which coinpensiition is claimed to be due fi-oiii th' I iv .
under the award of the tribunal of aibiti'ati. i i i
fern.l -'

In the next dral't, the ^^•^biago of tlu' as'i'ssin.>nt el.
•50 alteri'il s'j .'IS to : ead ; -

iitr.ietiiig p.'U'ties agree that "// chiiiiku at

''■ •' for
States
■ ' re-

.e V i-

lu-li

Brilin'i stilij'rls fur injuries sustained and for which compmi
sation is ehumed to le due from the United States under tlir
award of the tribinial of arbitration shall be rel'(>rred — '

This claUM- was aUu m:idr thr subji^et >>\' ubjceliun and anothri
draft was pr(i|)osei| in which the assessment eliiusc read as
follows:

■ The high ('ontraeting parties agree Unit n'
fiir'iiijuiiifxiiftiilitf'tl and IVr which coni|)i i .^
to be due I'lom the United Sl.lti'S inider til
be referred.

Subse(|uently this ehiuse was amended and tie . ianse in the
present Conventi Article I, linally ngreed upon.

It is therefore .i nareiit tl'.i.^ in the negotiations previous to

nrltisli ('III i Ills
I'l i; claimed

■ -■'■■.' \-c sii,-ii;

103

(Ml-. Bei(iue'H Argument.)

the final settlement of the present Convention tlie Unitoil States
contenilcd for terms which would strictl}- limit the entiuiry to
the claims of British subjects, whilst Great Britain all alon<r
contendeil fcr a broader aKreoment, and has finally crystailizod
into Article !), aU ddhnu on accoaiit of any person, it nuitters
not of what nationality, in belialf of whom Great Britain is

10 entitled to claim compensation are to be considered."

The chan<,'es in the different drafts submitted liad reference
only to the question of nationality and in no way to the acts
out of which the claims arose. If you take the drafts of the
Uniteil States as well as the drafts presented by Great Britain,
you will not find any intention on the part of the United States
to avoid any liability or to e.xcluile any of the claims to which
the alleged assumption of tlie United States had given rise.

The difierent drafts of the Claims Convention show also and
as otherwise appears from the wordi>ig used in the final draft,

10 that the words " a list" in the la.st paragraph of Article I, which
reads as follows: "Appended to this Convention is a list of
claim.s intended to be referred," were intended to be illustrative
and not limitative.

Thus the first three drafts of the Convention do not refer to
any list. Article I of the fourth draft, which was agreed upon
at "the Ottawa Conference, October, 18t)."), provides for submission
of " all Jiritish chthnn. for injiirirs siisliiine<l, and for wliich
compensation is claimed to bo due from the United States,
under the Award of the Tribuna' of Arbitration (ind indtuUng

Bo tliosv rfjerri'd to In Appendix A. At tlie end of Artiei(> 111 of
the fiftii and sixth drafts, alternative drafts, of which the first
was said to be acceptable to the I'rosident if the United States as
the result of the Washington Conference. October, IcSDo, and the
second was accepted by CaiiadM. are the woi'ds: " Ajipendeil to
this Convention is o hd. of the cloinix intended to be referred."
The same words also are found at the end of Article 1 of the
.seventh draft which was proposed by the Unit(>il States Secre-
tary of Stiite after Canada had agreed to the sixth draft, and
which was in tui'n agi-eed to. In the actual Convention, how-
§40 ever, thi; word "the" was struck out and tl: ■ Article ends :
" ,\ppended to tliiiv ('on\'eiition is (f lint of cloitns inti'iided to lie
I'efei'reil. ' This oiiimission of the definite article must lie
jiri'suiiied to have been intentional and its signitieanee is self-
evident.

Again, on jaige '.U> of the opposing brief it is contiMuled
that the claims referred by the Convention are not ri,.\i.Ms
QV \'i;gsi;r.s, but eliiim-. on account of " I'kusons." Thry art-
neither the one nor the other. In the wni'cling nf Article 1 of
the convention they are "all clailiis on aeeotnit of injuries

dO sustiiihi'd l)y ]iersiins in w hu^e lu'lialf Great lii'itain is I'niilird
t<i elaini eonijiensatioii fniin the Iiiit i-cl States .■imi arising t'ldin
the subject matter in (|U<sti(iii.

I respectfully submit that the arginiients 1 have thus far
ad<i need are e<inclusi\ c as to the scope ni' the convention. If,
howe\er, there should be any doubt left I hope it will at h'ast
be c(aieeded that 1 ha\'e ojieni'd the door In my referring to the
diplomatic eorresiioildeliee between the t Wu governments. On
this point the following i|Uotation from (ireenle.if is made on
page '2'.] of the brief of the Uniteil States in support of their

10 contention that the (|i])lotnatic eori'espon<lenee cannot be resorted
to ir 'he interpretation of the c(ai\ention : -

" \\'hi'ii pai'ties have ileliberately put their engagements into
writing in such terms as import a legal obligation, witiiout an\'
uncertainty as to the object or extent ot such engagement, it

■ |— ■■pnpqpimiM

104

(Mr. BeitiUf's Arguinoiit.)

i.s conclHsivoly pivsuiiifd tlmt tho wliolo ciijjn<;i'im'nt of the
parties, and the oxtcnt ami inaniier ol" tlu'ir uiuliTtakiiiy, was
rcduci'd to writiiifj : and all oral testimony of a previous collo-
quium between the parties, or of conversation or declaration at
the time when it was completed or afterwards, as it would tend
in many instances to sulistitute a new and ditierent contract foi-

10 the one which was really a;j;reed upon, to the prejudice, pcssibly,
of one of the parties, is rejected."

The sentence imnie(liately following; and some other passages
from the same work will more fully explain the authors mean-
in;;. — The passage (]Uoted continues as follows : —

" In other words, as ihe rule is now more hriofly expre.sised
parol contemporaneous evidence, is inadmi.ssible to contradict or
vary the terms of a valid written instrument."
Ami on page ;j.")2, jmragragh 277, tireenleaf says: —
" It is to he observed that the rule is directed only against the

20 admission of anj' other evidence of the language employed by
the parties in making the contract, than that which is furnished
by the writing it-^elf. The writ'niq, it ix true, may be read bif
the lujld of fiu) roll lid i II ij ciicumtilitnci'n, in (,rder more per-
fectly to understand the intent and meaning of the parties ; but
a«i thej' have constituted the writing to he the only outward ami
visible expression of their meaning, no other irords are to ' ,•
added to it, or substituted in its stead. * * • It is mer.ly
a luty of interpretation ; «'. e. to tind out the true sense of the
written words «.v the paities Ufiedthcm; and of construction,

yO i.e. when the true sense is ascertained, to subject the instrument
in its operation to the establisheti rules of law.'

Tile claims objected to by the United States as not coming
within the scope of the Connnission ai't; the following : —

1. For expenses, and hardships of the various crews.

2. The " I'.lack Diamond" (18S()).

.S. I'aptain IJaudin, Master of the "Ada."

4. Mate of the " (Jrace. '

;"). 'I'he costs of the " Say ward" case.

Heb'rring to the diplomatic cori'espondence in connection
40 with the Convention, it will be seen, that on .lune 7th, liS{)4, the
Miitish Audmssadur at Washington i^eiit a note to tln^ I'niteil
States Seci'etary of State in which he said: —

".Sir: .\d\ crting ti) the verbal ciimmunieations which have
i)a.ssed between us, respecting the mode of verifying and ad-
ju^iling the Hritish claims for compensation fur tiie sei/.iu'e of
liiitish sraling vessels, 1 h.-ive now the honour to transmit here-
with, ii\ diriitioii of Ibr M.-iji'sty's Principal Seci'etary of Stat.'
for {'"iireigii Mlliiirs. a cniiiiilrie list MiidMiiiimary of tlmse eliiims.
t(ii>i'tlii'i' with MeiHor.'iiid.'i III' llir .'idditiiins ami anieiidineiits
TjO made siiiir ihrir oiigin.-d presentation. I .iiii .'it lhe.s,inie time
til iii.iki' the I'nlliiw ing Miggi'stidii. with ji \ iew to iidjiistmelit of
t liiisr cl.iitiis, willi till' Icist piissiiiji' ixpcusr mill delay.

The wlicili' 111' ihi' el.liliis, eseeptillg lli.'lt nf the 'Henrietta"
ami that of tlic ' I'llaik I Hiinioiid. ' 1. S.St J, were iaiil before the
Trii)un:il of .Vi'bili.itioii at Paris, togctln r with the e\ ideiier in
Mlpiiiirt nf them. The filets (111 which they lest Were found by
tlie ,'ii'bitrators as pi'o\ided by .Vrtieie \' II I of tin- 'i'realy of
Al'bitl'Mti<ili and foriiieil part of the award, lu view of the de-
cisinii 111' till' 'riiliiiiial on tiie <|iie.''tioii of law sniimittecl to them,
(in it (iiil\ now reinaiiis to assess the damages, lain aeeordingly
.lilt lii>ii/ed by till' Kill'! of Kiiiilni'ly tn ]iinpiise that, fur the pur-
po,se (if such asscssiiu'iit. each ( iovei'iiiiiciit should appdiiit a duly
(liiiiiiticd ( '(iiiimissidiicr, wiiii shdiild be ,i lawyer, ami, if possible,
iiiisses.s ,s(i|iic InIkiW ledge of the edll(|it ioiis of tile seal industry.

105

ijjeiiuMit of t)if
iiih'rtakiii}^, wh.s
})ivvit)iis collo-
)!• tici'liinitioii at
iiH it would tt'iid
ivnt I'outriu't for
'j)i(lit'i', possibly,

e other pussnjjos
e authors uicaii-

n-iclly cxpivsst'd
to contradict oi-

ijs:—

Old}' against tlio
ge eniphjycd hj'
lich i.s furnished
may be trad by
.rdor more per-
the parties ; but
dy outward and
fcurds are to ? j
* It is nier.lj-
ue .sense of the
of construction,
;the instrument

s as not condng
owing : —
lis crews.

in coiiiu'ctioii
ic 7tli, IS!)4, till'
to the I'nited

t)iis whii'h have
rifying and ad-

tlic seizure of
I tr.Misiiiit lierc-
ntMiy of Stat.-
(il I liiisi' claiiiis,

I Mliiendnients

the same time
I .idinstment of
delay,

e ' lleliliella "
Llid liel'nrc the
till' e\ idrliee in
Wi li' fuUlKl l)y

till' 'I'teaty (if
\ iiw iif tlie de-
iiMtled to them,

II aeeiirdiiigly
iMl, hir the pur-

a|i|)iiiiit a duly
imd, if |iii.ssi!)le,
M'al industry-.'

(Mr. Bei(iue'8 Argument.)

I shall call your honors attention to the fact that not only iii
this letter of .the 7th Jinie, 1«!»4, from Sir Julian Pauncefote to
the Secretary of State, Mr. (iresham, is a special reference made
to the " Hlaek Diamond" of 1S«(), but a reference is also made
to the memorandum ac<'omp'anying the despatch ; the memoran-
dum being intended to enumerate all the claims for which (Jreat
Britain suggested the appointment of a nnxed Connuission. In
that memoniMilum we tind under the heading of " Claims for
LS.ST" the following: " To be added to 1H8(), per.sonal claims
Captain (iaudinof the " Ada, " 8:5000 :" and un(K-r the heading
"Total claim, " we find " extra for .luanita" 8:{,002.(i(). Extra
for "Black Dianuaid," (lH8(i) !<7,r)00; and extra for |'Ada, "
.?i;{,00t). In the recapitulation of tlie .special claims we find the
following item: " Costs of suit lu'fore the Supreme Court, United
States, ni re seizure of "W. P. Say ward," S(i2,H47.r2. That was
the very amount which was mentioned at Paris to and wiiich
exception had been taken there by the United States. (I
might here give a reference to pagi' 24 of the record in tliis case,
wlu're this matter was (piite fully argued by coun.sel on both
sides). This I say was the occasion for raising objectioii.s to the
claims if it was tlie intention of the United States to do it. They
were presented with a list of the claims, which list comprised the
claims to which I liave referied, and what is the answer given ?
The answer is to be found in a letter of the 2 1st Augu.st,
18!t4, from Secretary of State, Mr. CJresham, to the British Am-
bassador, Sir Julian Pauncefote, which was as follows: —

" Heferring to our verbal eomnnniications of a recent date, I
" have now the honour formally to acknowledge the receipt of
"your note of the 7th .Fune last, in which you propose, in behalf
"of Her Majesty's (iovernment, the establishment of a mixed
"Commission for the purpo.se of verifying and adjusting the
"British claims for compen.sation for the seizure of British
"sealing vessels in Hehring Sea.

" While no serious ditliculty is anticipated in .settling aud
"deteriiiiniiig the claims by means of a mixed conunission, it is
"a matter of iiitel'est to both governments that they should, if
" possible, be dis[)osed of in a simpler and less ex])ensive way.
'■ Proceedings by a mixed commission, while always more or leas
" formal and cund)ersome, are, like all other processes of litiga-
" tion, necessarily attended with expense, not infre(|UentIy
" coiisidei'.ible ill amount, as well .as with delay.

• In the present case, the award and tindiiigs of the tribunal
"of arbitration in I'.iris li;i\e, to a great extent, deterniiiied the
" facts iiiidtlie iniiu'i|)les uii which the claims should 1h' adjusted ;
"and ill the course of the negotiations for a mixed commission,
"tlitv have been subjected by both governments to a thorough
" (Xaiiiiiiiition both u|>on the i)riiiciplea and facts which tliey
" involve."

We see that it is clearly in the mind of the United States
secretary of state, that there was to be no such limitation as is
claimed by the Cnited .States counsel here. The Secret.'iry of
State says in etleet. that the facts have not all been pa.s.sed upon,
but they have been to a great extent d.terniined at Paris;
implying that .something is left to be done in determining the
aiiioiiiit of the liability and in eni|uiiiiig as to the fact.s. It maj'
be added that the parties were then, as appears from the corres-
poiideiice considering the settlement of the case by a lump sum
— at least the United States suggested tlu' settlement by a lump
sum. As your Honors are well aware, (Ireat Britain aci|uiesced
in that view and consented to negotiate on the basis of a lump
sum, liut with a clear miderstanding that if the lump sum was

i'.%

100

(Mr. Beit|ue'.s AryiiiiR'iit.)

not iijjrced to — as it wiis not into^idcd to roprcsent the full com-
pensntion whieii (iroiit Hiitain uiiiiiiu'd her Mubjocts wt'iu »'iititlcd
to tliat it would ]k' without prcjudicL'.

Mr. Dickinson: — Wv hardly need jiri^uc that. We have made

no contention that you were iMjund to anythinijyou said in that

correspondence.

10 .Mr. Heique : — .Vfter all, our contention is in harniou}' with

that part of the I'nited Stutes hrief, pa;,'e I.S, where it is stated :

" .\s to compensation the United States hold to the .same atti-

" tude now that was atuiounced hy their counsel before the Paris

" Tribunal, aiid has been consistently maintained before this High

"Commission, namely, that their lial)ility having been tt.xed, th(;

" (jovernment desires to pay compensation to (!reat Britain on

" account of all iH')'i<onn in whose behalf (irent Britain is entitled

"to claim compensation from the United States, and to pay that

"ct)mpen.sation at the earliest time when the ])roper amount can

20 " be a.scertaineil."

It may be .seen from this that there was no intention '^■'^ limiting
any poi-tion of the claims, or limiting the power of the 'ommis-
.sioners to a <'ertain number of the claims, btit that the Uniti.'il
States should pay compen.sation on account of all pevmins in who.se
behalf (Ireat Britain is entitled to claim. I might add that the
position taken by the Uniterl States Counsel at the present timt!
seems to be in contlict with the jmsition taken by the Counsel
for the United States at Fai'is. ' - appears from the United
States i-e-print, page 77H, Mr. Blocjgett in his argument before
30 the Taris TribuMa! said : -

" We, however, preface that we have to submit on this featiu'e
" of Ihe ca.se l)y saying that if it shall be held by this tribinial
" that these seizures and interferences with British vessels were
" wrong and uiijustitiable under laws ami treaties a[)plicabl(*
" thi'reto, then it would not be becoming in our nation to contest
'■ these claims, in so far as they are just and within a fair amount
" of the damages actually sustaineil by British subjects."

Mr. Blndgett does not say : So far as the claims of a certain
number only of liritisli sul)jects are concerned, but he says:
40 " the elaiiiis of :dl Ihitish subjects " who may have suffered by
the acts uf the United States.

I agi'ee with that part of the argument of the Counsel for thi'
Uniteil .States which says, that claims for national injuries such
as may tris" from acts in derogation of the inviolability of the
flag, the <lignity of the sovei-eign, the respect <lue to the jui'isdic-
tion of the sovereign ancl the like, committed on the high seas or
on that sovereign's territory, ai'e distinguishable from national
clain"is made in behalf of subjects or citizens, and are not before
this Connuission. And I submit that there has been no attempt
50 to [)ref('r any such claims here.

The claiius as filed inay be classified as follows:
1st. llleg.il boarding, search and arrest of ves.sela ;
2nd. N'alue of vssels, their outfit and cargo, or in certain
cases the di-jjn.'ciation in value only ;
;>rd. I'rjiniums of insurance paid ;
4th. Time ami personal e.\pense of owner ;
5th. Legal expenses :

6th. Balance of ewtimated catch for the season ;
7th. Estimated catch for the following season ;
60 8th. Value of the use of the vessels for the period between
the two fishing seasons ;

!)th. Kxpenses, illegal arrest, detention, imprisonment and
other hardships of Masters and Mates, and in certain cases, the
value of their time ;

107

he full coin-
vi'iu entitled

'(' have made
Haid ill that

irinonj' with

it irt stated :

le same atti-

)re the Paris

)re this Hij^h

vn tixeil, tht;

t Britain on

in is entitle(l

to pay that

amount ean

in ' '^Mmitiiig
tht 'ommis-
t the United
ons in whose
add tiiat the
present timt;
the Counsel
the United
iment before

1 tliis fi'ature
:his trihunal
vessels were
'S applieable
on to contest

fair amount
ets."

of a certain

ut he says :

surt'ered by

unsel for the
njiu'ies such

bi'lity of the
the jurisdic-
hif^h seas or

om national
e not before

1 no attempt

L-ls :

)r in certain

riod between

lonmont and
ain cases, the

(Mr. Beiijue's Ar<,'ument.)

10th. Expenses and hardships of other members of the
crew, and in certain cases the value of their time ;

lltli. Interest from date of loss;

1 2th. Tl'.e costs in the " W. I*. Say ward" case.

I proprose to take these seriatim, but very briefl3^

Before doinjj so, however, I desire to take up some other
10 branches of the present entjuiry.

I have thus far shown that the wording of the Claims Con-
vention is wi<le enough to admit of jour pa.ssing ujjon the
merits of all claims pres(>nted.

Let us see now whether, as pretended by the other side,
Great Britain under the rules of international law, is debarred
bv rea.son of the nationality or residence of the person ag-
grieved, from urging any of the claims.

( )ur learned friends, the counsel for theUnited States through-
out their written argument assume that the nnniicipal law of the
02 United States as embodied in section l!».5()of the revised .statutes
has an extra territorial eti'ect (pioad their own citizens and foreign-
ers domiciled in the Uniteil States and that therefore in several
in.stances, (ireat Britain is claiming for injuries done to persons
while in the act of violating a municipal law of tneir country* of
allegiance or domicile.

I will give a few references as reganls this assumption, and
I might give more. (Jn page 14 and 15 of the United States
brief J tind the following :

" A foreignei' permanently domiciled in the United States
30 "like the claimant Cooper, although unnaturalize(l, owes during
"the duration of his domicileil allegiance to their government,
"ol)edianc(! to their nnniicipal law.s. an*! especiall}' to their
" national assertion of what is variously teraied dominion,
".sovereignty, or jurisdiction.

" Son constat such a person may owe original allegiance to
"(ireat Britain, and non cr;;is^<< he puts his ships under a British
" llag, and a British registry, lu( is still a resident of the United
•'States, and so amenable to their laws aiul absolutely bound b}'^
"their assertion of sovereignty.
40 " \Vliati'ver<iuestions there may be us to violations of national
" dignity, of the flag, and the shiji (wholly (|Uestions of dignity
" between nations), in such case he is not a person who can enter
" any municipal court, much less an international commission
"on claims, and set up that he is a person " in whose behalf
"(ireat Britain is entitled to claim compensation from the
" rnite(l Stat(!s" for injuries which he has sutiered in common
"with other civil citizens of the United States, no more amenable
" to their laws, for doing the same acts against the policy of the
" sovereignty and laws of their common government, for which
50 " they have suH'ered.

" Aside from (piestions having to do with the inviolability of
" the flag and of the deck, whereon the high seas, sovereignty is
" said to be present as upon its territory on land, tiiere is no
" doubt by the authorities that this as.sertiou in its cxtremest
" form is one entirely of national dignity, in respect of the
" sovereignty itself, as distinctly distinguished from the claim
" on account of the private ownership of a ship made by the
"same nation, in respect of subject or citizen. In no court
" before has it been claimed that the immunity of the flag and
60 " and of the deck from molestation by other nations on the higli
'• seas carried with it in courts of admiralty anywhere, or in any
" international court ever held, any exclusive presumption of
" private ownership.

" On the contrary, in the courts of England as to foreign

j>«--

ttfl

108

(Mr. Bei(iut''n Aigument.)

" ships, and in the courts of every civili/A'd nation, pas.sinjr the
" ([uestion of national ilifjnity, it is conchiHiveiy lielil that
" natiuntdity folloti'Aoii'tietxhip.

" A citizen of the Ignited States, wlierever resident or donii-
" ciled, nntil lie becomes naturalixe(l in (Ji'cat Britain, is still
" bound to his original allej^iance to the I'nited States in
10 " respect of : —

"(a) Their assertion of jurisdiction and sovereignty over
" territory or property.

" (b) All nntnicipal laws havini; an exterritorial ett'ect."

A<;ain, on pajjes 40 and 44 : —

" There arc fiiv (7(^s>•(^s of ' iie.vsoiin' muotig ihese. claimants,
" )cho, hij the settled and atljudiciited priiKiiplea of international
"hue, are not ' persons' in whose hehalf Great liritain is en-_
"titled to claim compensation from the United States."

These are : —
20 "(1) Orijjinal subjects of Cireat Britain still owing that
" nation a (pialified alle;;iance (in respect of .sovereif^nty and cer-
" tain e.\territt)rial laws), l)ut who by domicile in the United
" States, without naturalization, owe allejjiance to the .sovereign
"claims of the United States, and obedience to their municipal
" laws.

" (2) Citizens of the United States, alleged to have been
" domicile(l in (h'eat Britain, who had not become naturalized in
" (ireat Britain, but who owed allegiance to the United States,
" obedience to the jurisdiction a.sserted by the authorities
30 " of its sovereignty — executive, legislative and judicial — and
"obedience to their exterritorial laws."

At page 44 : —

"The logical positions of Great Britain as to Cooper are
" these : —

"(a) That his ownership of the vessels seized must betaktMi
'■ as conclusive. (In this we fully agree, but on other and dis-
" tinct gi'ounds from tho.se taken by (ireat Britain.)

'•(b) That although domiciled in the United States since
" boyhood, and for nearly iialf a century, because he was not
40 '' uiitui'jilizi'fl, and because he was an original British subject, he
" Cduld, under the nnniielpal l;iws of (Jreat Britain, take out a
" Britisli registrv for Ins ships, and put them inuler the Bi'itish
" flag." [

We unijUestioiiMbly contend, and nothing has been shown to
the ctaitrary, that Cooper although clomicileil in the United
States territory, was ciititleil to own liritish vessels ami lia\e
them registered as such.

" (cV That so domiciled, by virtue of such r. gistry and flag
"alone, in .lireet violation of the munici|)al laws of the United
50 "States of exterritorial force, ami indirect violation of their
"original statutes, alsd of extei-ritia'ial force, and in direct
"detiance of the national claim ami assertion of jurisdiction
"over the .sealing waters of Behring Sea (a soverein claim made
"authoritatively by all the Ijranehes of the government) he
"could send his vessels to take seals in those waters."

There is no doubt that it was claimeil at one time bv the
United St.'ites ( ioveinnient that the United States territory ex-
tended ovei' the Behring Sea, but this assinnption it seems to
me has been set aside, and it has been .set aside by a Treaty
()() wliich to-day forms part of the law of tlie land in the I'nited
Stati's. 'i'lierefore. we have it here as an undoubtefl fact, as
resulting from the Paris Award, that these assumptions on the
part of the (lovernment of the United States were erroneous
assumptions, an<l thei'efore that any acts done contrary to these

109

■ ht'lil Hint

flit or (loiiii-
aiii, in Htill
1 States ill

ri'ijiiity over

I I'tik't."

\e chtimanis.
niernalional
y'lUtln is en-

tC8."

owiiij; tlmt
jiity and fer-
tile United
lie Hovereij;n
.'ir municipal

to have been
aturalized in
nited States,
autliorities
udicial — and

o Cooper are

lUst bo taken
tlier and dis-

States since

le was not

1 subject, lie

take nut a

tlie Hritish

'11 sliown to

tile I'liiteil

'is and have

-try ami llaj;
the I'liited
loll oi' their
(1 ill direct
iurisdiction
I claim macjt;
•ernmeiit) lu'
■I."

time by the
territory ex-
it HeeiiiH to
by a Treaty-
"the I'liited
bted fact, as
tions on the
re erroneous
I'ury to these

(Mr. Hei(|Ue's ArjfUiiient.)

assumptions, — whether these aets weic done by United States

citizens or British siil)jects, -were perfectly le;,ralaiid were in no

' way in contravention of any laws of the I'nited States. We

have as a result of the treaty and of the award that the.se

assmii'it- HIS were erroneous, and that Article ID.jli of the Hevi.sed

; Stilt 111 "s of the United Stati's, was not to be interpreted as was

10 claimed liy the United State's and had no such iiieaiiinjr as

was intended, and did not extend to liehrinj; Sea beyond the

tlirei' mile limit.

I coiitiiiue to read from the saiin' part of the ar«,nimeiit of the
United States Uounsel :
t "(d). That concurrently with his, the ve.s.sels of Cooper's

I " nei;;iiboiirs in .San Krancisco, who were native born citizens of
r " the United .States, jn'oteeted no more than himself by the laws
"of the United .States, liavilij;' bei'ii sent by them to take .seals in
"the same waters, may be seized and condemned, under tlio.se
"laws, while at the same time their owners, his neij^hbours and ■
"fellow citizens of tliirty-ti\e years, witness his ileets oo and
"come, and take seals with impunity."

There ayaiii we have u reference to laws that had no existence
at all. I atfaiii ijuote from the arj^ument of my learned friend,
Mr. Dickinson :

"(e). That if in these eirciimstances the United States
"enforced the law alike and with equal hand upon the property
"of all their citizens of San Fratieisco, be he a citizen by domicile
" or like his neighbours b}- nativity or naturalization, that Cooper,
"by reason of his orii^inal political alh'iriance and by havingr
" put his vessels in a British re;i;istry ami under a British
" llajf, is a per.son on account of whom, for these penalties that he
" has sutVerecl, and while still retainiiif; his American domicile,
"(ireat Britain can claim compensation from tlii' I'nited States.
" ^^^' atllrm that no such monstrous doctrine can be tolerated
" for a moment.

I leave it to your honors to < oiisideras to wliether tlu^ position
vvhicli is attributed to the coiiiisi.1 fur (ireat Britain, and of which
we are willinjf to accept the res])onsibility, is " monstrous," as
stated ill this brief. Aijain, on |)ai;'e 4(1: —

" I'rotectiou can not be invoked by domiciltMl forei<>'ners, except
" for diseriminatioii and arbitrary acts," as distinguished from
•' penalties and punishments incurred by the infraction of the
"laws of the country within whose juri.sdietion 'he surterera
"have placed themselves."

At pa<;e 47 of the ari^ument there is a remark to the same
effect, « i|uotation from jlr. .Mar-'v, Secretary of State of the
Uniteil States, which I need not read.
At pai;e 51 there is the followinij;: —

"* * * but the added objection in Cooper's ease is that
" he was enf;n<ied in violating the laws and defying the
" sovereiijntv of his domicile. "

" It can not be seriously onteniled that in behalf of her sub-
"jects residinj,' in the United States as provided in this treaty,
"and enjoyini; complete protection and security of their laws,
"but subject to their laws and statutes, as provided and stipu-
"lated ill the treaty, Creat Britain can make reclamation on
"nccoimt of any such subject for inju.-ies suffered at the liands
"of the United States while in the act of violating those laws
"and statutes, more especially when such statutes are in the
" nature of regulations of trade and commerce of exterritorial
"effect, directly applicable to all citizens of the United States
" everywhere and " all persons. "

™

(Mr. Bcii|iic'H Ai'ijuiiii'ijt.)

Tlie Inst referiMico 1 will rciul from is on paf^t; 5!) hn follows :—

"Ah to <'itizt'iiH of tlif I'liitcd Stiitcs, tlicii, iiHNiiininj,' tliat
" tlit'y were lioiniciii'd imt not iiitturali/.c<| in (Jrcat Britain,
" wliat ar(( tlicir ri'lations as claimants to ^lio rnitcil Stattss and
"(irt'at lii'itain in rcsju'ct of injnrii'H suHcrt'd while scaling in
" Hcliriiif; Sea, in tlic act of violatin;; llic lawH of tlie I'nitcd
10 "States in i|Ucstion, and in defying anci attempting to <'liide the
"jurisdiction of the rnitcfj States claimed liy that Oovernment
" in the waters where their ])rojiei'ty was taken in that act ;' "

\\'e have in our written argument shown how unfounded thiH
contention is. And 1 might here I'efer to what we said on that
Miil)ject on pag*' 2 of the reply of counsel for (ireat Britain :

"The jiropositions asserted on pages I4-I(i of the opposing
"argument, rest on the assum])tion that the persons against
"whom the}' are urged have violated a munici|)al law of tho
" Uniteil States, namely, section IKot; of the Kevieed Statutes.
20 "As thifl law only forhids the killing of seals ' witldn tlie limits
" of Alaska territory or in the waters thereof,' and the sealing
"operations which constitute the alleged oti'ence took place else-
" where, such assumption is manifestly unfoundeil. It is useless
"to argue that the Tnited States may bind tlx'ir citizens by
"e.xtra-territorial laws. Section l!lo(i applies only to United
" States territory.

" Kipially unavailing ia the ai-gument that the citiztuis and
"courts of the United .States must accept as American territory
"whatever their goverinnent may claim to be such."
30 The Commissioner on the part of the United States : — It is
setted the other way in the Ignited States. The bi'oad jjroposition
lias lieeii .settled over and over again by the Supreme t'ourt of
the United States. I ikjw i'efer simply to thebroail proposition,
but whether it applies to this case or not is another ([iiestion.

.Mr. Beii|ue: — I am aware of that your Honor, and I do not
intend to advance anything contrary to that proposition. I am
aware that it has been settled o\('r and over again, that tho
Courts of the United States were boiinil by the assumed juris-
diction as maile })y the political department, and it is not intended
40 to say anything against that: lint the Courts of the United
States are bound only so long as this assumed jurisdiction exists.

The Commissioner on the part of the Unite<l States: — That
is another ([Uestion. I merely call your attention to the broad
proposition.

Mr. Beiijuo: — That paragrajih which I liave read is explained
by the other paragraph which follows: —

" In the ])resent case, the claim of the United States' Ex-

" ecutive is in conflict wi*h and must yield to the Paris Award,

" which lias the force of law within the United States treaties,

50 " under the constitution of that country, being part of the law

" of the land. "

Tlia five paragraphs should be read together.

The Commissioner on the part of the United States : — I
merely refer to the very broad proposition laid tiowii. It may
not come up in this case exactly.

Mr. Beicjue : — My contention docs not go so far as to say that
the United States courts were not Ixiund previous to the Award,
but I say that the moment tlie Award was rendered ; the Award
being rendered by virtue of a treaty forming part of tho law of
60 the land, then the contentions of the political department of the
United States are to be considered as having beeu erroneous from
the beginning, as having been of no avail, and as never having
bound the courts of the United States. I go furtiier your honor,
and I say that so far as the citizens of tlie United States them-

Ill

!• UH follows : — ■
iiH.Hiiiiiiiij; that
(iicat Hritain,
iti'il Statt!H and
liilc Mcaiinf; in
of the L'liitt'd
n;,' to I'liidc tho
at (ioviTMincnt
1 that at't f"
uiifouiidt>d thiH
we Haid on tliat
at Hritain :
f tho opposing
itTsoiiH against
pal law of the
viBcd Statutes,
itliin tlie limitH
and tin- sealing
took plaee else-
I. It is iiselfss
H'ir eiti/ons by
only to United

he eitizens und

'lican territory

h." ^

d States: — It is

road proposition

preme Court of

lad proposition.

ler (piestion.

)r, and 1 do not

iposition. I am

again, that the

• assumed juris-

isnot intended

of the Tnited

•isdietion exists.

I States : — That

II to the hrond

cad is explained

?(\ States' Ex-

le Paris Award,

States treatie."*,

part of the law-

ted States :— I
ilown. It may

ir as to say that
s to the Award,
red ; the Award
't of tho law of
partnient of the
erroneous from
18 never liaving
her your honor,
;d States theni-

(Mr. Beit|Ue's Argument.)

selves Mere coneerned, if any eourts of the United State.' oon-
siderin;. themselves hound hy this ii.ssumption of the political
department of the Uniteil States, had reiwlered decisions against
ITnited States citi/ens in eon.s(|Uenee of such a.ssumptiotis, after
the renilering of the Award— the Award heing a declaratory
law; it was not a new law: it was not a law merely to have
etl'ect in fiituro; it was declaring what had heen tho
law from the outset : it was declaring that .section UirAi
of the Revised Statutes of the Uniteil States had never
exteiiiled to Hehring Sea, that HehringSea forme.l no part of the
Alaska territory, and therefore that section I ,i)rjf) couM not have
extended to liehring Sea— I say after the rendering of tho
Award, the United States should "have made restitution to their
own citizens if they were previously aggrieved by any decisions
of the courts on the wrong assumption of the political
department.
i20 The t'onnnissioner on tho pai-t of the United States: — I
understand you perfectly Mr. Heinue, you <h) not think it neces-
sarv to maintain the broad proposition, and you do not maintain
it. '

Mr. Hei(|Ue : — Oh no, it is not necessary.

The Commissioner on the part of the United States; — You
claim that this action is retroactive ?

Mr. Hei((ue : — I claim that it is retroactive.

The material portion of section lOotJ of tho United St.it'>s
Revi.sed Statutes under which the seizures were made reails
30 thus:—

"Section ntno. No person shall kill any otter, mink, mar-
''ten, sable, or fur seal, or other fur-bearing animal, irithin the
"limits of Aldshii territory, or in tin- waters thereof; and every
" per.son guilty thereof, shall, for each otf'ence. Vie tine.: not less
"than 8200, nor more than 81,000, or imprisoned not more than
"sixuKjiiths, or both: and all vessels, their tackle, apparel,
'• furniture and cargo, found engaged in violation of this .section
" shall be forfeited. » • * • *'•

Section .'{ of the Act for the protection of tho salmon fisheries
4o of Alaska, approved March 2n<l, IH.SO, provides. —

" Tliiit si'clior l!)-'it> in hcri'bij dcrhired to inrhide <tn<i npi'ly
" to till tlie ilominion of the United States in the waters of
" Behriiii/ Sea : and it shall be the duty of the President it a
"timely .season, in each year, to issue his proclamation and ause
"the same to t)e {)ublished « * * warning all jh 'aons
" aif a inst entering said waters for the purpo.se of violatin;; the
" prov'sioiiH of said section. * ♦ * •"

As clearly appears from its terms and from the declaratory
act of 1880, section lOSti, was not intended as an extra-territorial
50 law ; it applied solely to territory of tho United States, and
within such territory was binding on a'l persons alike, on
foreigners as well as on citizens of the 1': ii "d States. Such
being its character, it was not infringed by uay of tho claimants
because the sealing operations took place outside the United
States territory, on tho high seas.

As reference has been made on this point in our written
brief to " La Ninfa" case, I may state that the holding in
tnat case was as follows ; I have taken the liead notes from the
official report and they are as follows :
CO "(1.) By the award of the arbitrators under the treaty of
" arbitration between the United States and Great Britain (27 U. S,
" statute 948), it was settled that theU hitedS tates have no exelu-
" sive jurisdiction in tlie waters of Bohring Sea outside the
" ordinary three mile limitand no rightof property in,orprotection

t "

wmmmm

112

(Mr, r!t'ii|ue':4 Ar;,Miiiicnt.)

" osir the I'nr hoiiIs frciiucntiii^ tlic InIiiikIs of ilic liiitcl Stiitis
" ulicii rmiiKl ouIs'kIc iif Mifli (line iiiili' limit. '

'I'licnfdic the net of Miiicli -.'ml, I.S.H!t, ili'diirin;: tliiit Itcvisid
Slatiii's, sec. Ilt'itl wliicli I'lirliiilN llir killing,' of fur liciiriii;,'
aiiiiniilM ill Altiskii mid llic wiitiTM tlicirnt' shiill M|i|ily In all tlir
<l<iiiiiiiiiiii (p|' llic I'liitcd Slates in the waters nl' lieinin;; Sea
It) iiiiiht lie ediihtrue*! to mean tlie waters within three iiiiieH ol' the
>li(ire III' Alaska.

"(2.) Ashy the terms of t he t leatv nl' ailiit i at ion t he rie;|its
" nf t he ('it i/eli.s and .Miliji'cts nl' eil her ((Hint I V Wi'I'e iliVdlved ill
" the (lefisinli of the ailiit liltols, eili/elisof the rnileil Stales
" have the same rielu to icly ii|ion the Award as to their ri;,dils
" iinih-r the statute as the citi/eiis and siihjects of (Ireal llritain.

"(H.) An award liy arliitiators under a treaty hetweeii the
" I'niled States and iinotlier nation I ly which liie contracliii;;
" nations ae;i'i I that a deeisioii of the Irilaiiial of arhitral ion sliall

20 "he a linal selll( llielll of all i|llest ions sllliliiitted, heconies the
"Mi| nine law of llie land, and is as hindiii;,' on the coiirls as an
" lU'l of ( 'oliejress, 4!l l'"eil. ')".'">, reversed."
At one Ol I .i k the ( 'omniisHioiiers rose.

't.

At lialf-pnst two o'clock tlie Cominissioner.s resumed tlieir .seats.

Mr. Beiiiue :— When your honors arose, I was just ahout to
rend from the opinion of Mr. Justice Hnwiey in tlie case of " La

20 Kinfa," in connection with section l!t.")li of the ]{evised Sliitutes
of the United Slates, and section .'{ of the Act jirovidinj,' for tlit!
I'rolection of the Salmon Kislicries of Alaska. The learned
jud^e says : —

" Ijy these provisions, the (|uest to what the lionndaries

" well' over which the United S ml doniinion, was not

" intended to be and was not determined hy the amendatory
'• Act. The (Hiistion WHS left open for future consideration. By
' reference to the proceediiies in ('onj;iess, it appears that the
" aniendiiient to section l!l."t) was hrou^dit ahont in the fo! lowing,'

40 " manner : A hill was introduced in the Senate and passed,
'• umeniliny ••ectidii l!l(i;i of the lievised Statutes, and, to pro-
■' vide fo)' I etter protection of the fur seal and salmon lislieiics
" in Alaska, and had reference to tisliin^ and fisheries only.
" When this hill came to tlie House of Uepreseiitatives, an
'' amendment was pioposed and adopted, That section IJtofiof
" t)ie lievised Statutes was intended to include and apply, and
" is liereliy decreed to include and apply to all the waters of
" Ik'Jirin" Sea in Alaska enihraced within the boundary lines
" mentioned and desciibed in the treaty with Russia, dated

50 " March 150, IMIT, by which the territory of Alaska was ceded
" to tl.o United States," kc. The bill, as thus amended, was
" returned to the Senate. The committee on foieij.'n relations
•' report"d the House auiendnient with a recommendation that it
•' be dis.ii^reed to, Senator Mor<,'an of the committee said : " tliat
" in the report U'ade by the committee the rii.jhts of the {jovern-
•' ment of the Uniteil States were not considered, and not
" intended to be considered. We only arrive at the conclusion
" that the question presented in the amendment of the House is
'• of such a .serious and important character that the foreijjn

GO " relations would not undertake, at this time, to pronounce that
" kind of judgment upon it which is due to the magnitude of
•' such a (juestion . . .

" The bill, as it passed the Senate originally, should pass,
" because it protects the salmon and other fisheries in Alaska,

I'llitcil StillcN

led their seiits.

ll.'i

(Mr. Hi'i<|m''s Argument.)

" nliiiiit wliieli then' is no ilispiito. Hut this pnilieiilitr (lUcstion
" is one i)( very ;,'n'(it ;,'niviiy iiml scrioiisinss, niid tin- cmii-
" Miitt^i' (III r(in'i;{ii I'l'liitiuiis, tir 'it Iciist u iiwijurily of tliii eiitin^
" [■oiiiinitlci', <iiil not I'i'i'l wjirnuittMl in iimli'rtiikitiL; Id coiisiilcr
." it lit tills rinif. . . .

" Till' iiinciiiliiiciit iniiili^ liy till' llotisi- was iiisii;,'iri'i| to. A

" coiiiiiiitl r confcri'ticc WHS iippoiiitnil. Tlic rcsnlt wiis tliiit

" till' (li'SL'riptioii n's to tin' lioiimiiirirH in tlx^ lloiisi' iiini'iiiliiit'nb
'■ was stricken (Hit, iiml the words ' hcrt'liy clccliiri'd to includt!
" and apply to nil tlin doiiiinions (d" tlic Ifnitnl States in tlio
" waters of Hehrin;,' Sea,' insc-rted in lieu thereof. Ft tliiis*
" appears, as is nninifest liy tln^ Act itself, that the ipiestion as
" to the liounilaiies ovei- which the United states had dominion
" was not intended to lie, and was not determined when the Act
" was passed.

" The (iovernnient relies solely ii|ion the provisions of the
" statute to sustain the deeiee of the District Court, .'iiid con-
" tends that the decision of the Sii|iieiiie Court in rf Cooper,
" 14:J. I). S. 474, jllsti^il^s the atlirmiince of the decrt.-e that
" decision does ?iot reach the dirrcl- ]ioiiit here in the cintroversy.
'■ The eomt tlieri! held that the (|Uestioii was u political one in
" which the ITnited States'had asserted a doctrine in opposition
" to the views contended for liy till' petitioner; tliiit the neL;o-
" tiations were then pendiii;.', in relation to tht^ puiticiilur suhject,
" hut the court declined to decide whether the (Jovermiieiit was
" rii,dit or wron^' in its contention, or to review the action uf tlio
" political I'epai tineiits upmi the (luestioii under review. Tho
" opinion siiows that the e iiiit considerecl it a i,'rave ipiestion.
" it recites iiiucli of the iiiij iiant histoiy reliitivi' to the dis-
" puted (piestinii, hut the ipustion itself was not decided. I'lio
" case was disposeil of upon other i,'rouiids. What was said
" concerniiiif thi^ disputed ()uestioiis had leiereiice to thu ondi-
" tions then e.xistiiii^. Thu conditions now existini; tiro entirely
" ditlerent. The nej^'otiations then pendini,' were liroutjht about
" liy the asserted claim of the United States to proprietary
" lights iji the waters of Behrini; Sea and in the fur-hearini,'
" animals which friipient it and its islands which was disputed
" liy other nations, |)aiticidarly liy Knuland, tlu^ jirojierty of
" whos(,' suhjects had lieen fi'oni time to time seized hy till)
" United States for alle^'i'd violations of the statutes in (piestion,
" and these controversies resulted in sulimittii)<,' the disputed
" Ipiestion to an arhitration (U. S. Stat., !»4.S)."

Then he refers to Artitile I. of the Treaty ivnd the questions
suhniitted to the arliitrators, and continues : —

liy the XIV. Article of the treaty, or convention, sntiiiiit-
" tiui,' the ipiestions to arhitration, it was provided that the hii,di
" contractiim' parties eii^fa;,'e to consider the result of the
" proeeedini,rs of the Triliunal of Arhitration as a full, perfect
" and linal settlement of all the cpiestions referred to liy tho
" arliitrators. In .^uliinitlini,' the ipiestions to the hiah court of
" arhitration, the i,'overnment aj,'reed to he hound hy the decision
" of the arhitiiitors, and has since passed an Act tojrive effect to
" tiie award rendered liy the Triliunal of Arhitration (28 U. S.
" ")2). The award should therefore he considered as havii',;.'
" finally settled the ri<,dits of the United Stales in the waters d
" Alaska and Hehrin^' i! :n, and all ipiestions concerninif the
" iii,'hts of its own citizens and suhjects therein, as wudl as of
" the eitizi-ns and suhjects of other countries."

The learned jud;,'e here no douht had in minil this portion of
the award — the first paiaifraph — where it stated " Whereas, hy a
treaty between the United States of America and Great Britain,"

114

i-i:^

(Mr. Reiqut^'.s AtLfuiiu'iit.)

lilrc., " tlio r.'tilicatio" of wliicli," &c., " it was, iiin(in<jst otliof
tliiiiijs, ii<j;roeiI ami conclniU^d that the (piostions wliich had ari.sen
lu'twi'i'ii tile i;ovi'rmiioiit of the (Tnitcd States of America and
tlie nr,)vermiieiit of Her l^ritatmic MaJestT, concerning' tin; jui'is-
dietional ri'dits id' the United States in tin? waters of Jitdiriti"
Sea and concrninj; also the preservation of llie fur seal," &e.

10 "(Hill the rli/ltls (if Ike fifizcnx tind .fuhji'i'ls of rithcv I'oiuilri/ kn
ri'f/itrilo tin: takiitii of fur xeiih in or hahituallv resortinsj; to, the
said waters, shoiiKl lie snhnntted to a Tribunal of Arbitration Ui
be composed, I'vrc.

Mr. .lustice Hawley continues:

" The true iiiter|iietation of section lO'iO, and of the amend
' ment thereto, depends upon the dominion of the United States
" in the waters of Heiirin^ Sea ; such domiidon tlurein as was
" 'ceded hj- Russia to the United States hy treaty of 1SC7.' This
" (|uesti()n has lieen settled hy the award of the arbitrators, ainl

20 " this settlement must be accepted ' as final.' It follows there-
" from that the words 'in the waters thereof,' as used in .section
"'!).')(>, and the words ' dominion of the United States in the
'' wateis of liehrint,^ Sea,' in the aniendTuent thereto, must be coii-
" strueil to niean the waters within three miles from the shores of
" Alaska. On cominif to this conclusion this court does not
"decide the (piestion adversely to the political department of
" the 'j;overnment. It is umloubtcdly true, as has been decided
" by the Supreme (\)urt, that in [)endinLj controversies doubtful
"i|!iestions which are undecided must be met by the political

SO " department of the ijovernment. ' They aio beyoTid the sphere
'of judicial co^fnizance,' anil if a wronLj has iieen done, tlw
"power of reilress is with Congress, not with the 'judiciary.'
' (The Cherokee Tol)acco, 11 Wall, 1 l(i-121). Hut, in the present
" case, there is nn pendiui; (piestion left uniietermined for tiie
" political department to decide. It, has been settled. The
" award is to be construed as a treaty which has bee ;me final
" A treaty, when accepted and ajfreed to, becomes the supreme
" law of the land. It binds court.s as mucli as an Act of (Jon-
"<rre,s.s. In Head Money Oases, 112 U.S. ;,SO-.J!)>S, the court

40 ".said: — A ti'caty is primarily a contract between independent
" nations. It depemls for the enforcement of its provisions on
" the interest and honour of the i^overnments which are parties
'• to it. A treaty then is the law of the land, as an Act of Con-
" ;»ress is whenever its provisions prescribe a rule by which the
" rii;hts of the private citizen or subject may bo determined.
" And when such rights are of a nature to be enforced in a court
" of Justice, that court resorts to the treaty fov a rule of the de-
" cision for the ease before it as it woidil to a statute."

Heferences are made to Cliof Ht'utiij v. ('. S., 112 U. S. .'jIIO-

,-)0 ">40-.-)0.'i, and i'nitcil StuteH v. Hunsrlier. 11!) U. S. 407-419.

"The duty of courts is to constrini and ijive eti'ect to the
" latest expression of the sovereij^n will, hence it follows that
' whatever may have becin the contention of the eroverninent at
" the time in re ('oo|>ei- was decided, it has receded thend'roiii
"since the award was rendered, by an attn.'ement to accept the
" same ' as a full, completer antl (inal settlement of all (piestiotis
" referred to by the arbitrators,' and from the further fact that
" the j,'()vernment, since tht- reiKlition of the award, has passed
"an Act to 1,'ive idl'.'ct to the award rendereil by the Triliunal ot

()0 " Arbitration."

" It is su;,'L;e>ted in the brief of the learned counsel for the
" Uidted State-; that ' It may be the present policy of the
" eovernment t,i make record evi<lence a-< to the consistencj' of
" its ciintention from the bei,'inninji; upon the important (pn^stion

115

|50

(Mr. BieqiiuH Argument.)

" i)f its lijfht.s to protect it.s property and sea! fislieries ....
" It may lno that it is tlie policy of tins Government to punish
"its o\^n citizens and ve.ssels and not the citizens and
" vessels of Eiij;lan<l. All these and other cotisiderations
"make the (piestioii ono essentially political, so that would
" at least hesitiit" »o enter any Held I lyoiid that of constrninrf
I '• the statutes under which thi.s case is piesented.' There
" is nothinj; in the award which denies jurisdiction of the
" United Stutes over her own merchant vessels on the hij^h seas
"at any plac.o not within the jurisdiction of any sovereij^nty.
" Thes(! cjuestions have no hearinii; as to the interpretation to be
" ('iven to the statiites under review. These statutes whatever
" their interpretation may he, must lie applied to citizens and
" sulijects of all nations, and were not intended to apply only to
" eitizens, subject.'- and vessels of America. Hy the terms of
" Arbitration ' the vijjhts of the citizens and subjects of either
" country were involved in the decision of the arbitrators, and it
" necessarily follows that th(> citizens and subjects of the United
"States have the same ri<^ht to rely upon the award as to their
" liLrhts, under the statute, as the citizens and subjects of England.
" Tliere are no provisions in the Act of April (), I8t)4, ' to give
"effect to the award rendered by the Tribunal of Arbitration,'
"which indicate any policy upon the part of this government
" to enforce any rights against its own citizens, under the statute,
" consistent with the contention made, ' from the beginning upon
" the important questions of its right to protect its property and
" seal tisheries.' On the other band, the entire Act clearly
".shows that it is the policy of the government not to nuike an}'
"such distinction. The Act was passed enacting certain rules
" relative to the control of its own subjects in the exercise of
" righ'. which, under the award of the arbitrators, the two
"co\u)tries had in common to kill seal outside of the three-mile
" limit."

I thouglit it ailvisable to read so much in the notes, because
it seems to me that this opinion is very important in the present
case. We do not admit that we have to go so far as to .show that
the United States citizens themselves have the right to recover.
Wo consider that we can support the claims that have been
preferred here without going so far as that : but when I can
invoke a decision so well reasoned as this — such a valuble
opinion— where it was held by the courts of the United Sates
that the United States citizens themselves can avail themselves
and take the benefit of the award, of course it makes our case
very much stronger.

The ( 'onindssioner on the part of the United States : — Do you
know, .Mr. Bei(]Uo whether or not there was an appeal in thi.s
case to the Supreme Court f

Mr. lieique : — I do not knov that there was.

Mr. Dickinson: — It is appt-f iuble of course under the Court
of Appeals Act.

Mr. Heiqui' : — T do not fi 'i:k it was appealed.

! might also refer your l.oiiors to the argument presented by
the Chief Justice of England at Paris, United States Reprint,
Vol. l.'{, piiges ;{!).') and .'!!)(), where he made clear that .section
lll.")(i was a municipal law and could not be taken advantage of
as an extra territorial law.

Mr. Diekirrsoii : — As against citizens of Europe merely,

.Mr'. hei(|ue : — I think he di.scussed thi; iniesiion, ii I recollect
correctly, from a br-oader point of view ; from the very wording
of it in fact Mi-. Justice llawley, in the opinion I have just
read, takes very .sti-ongly the same position, and it .seems to me

Hil

h: :. -i ' '.'

116

' 1

' 1 if

(Mr. Bieque'.s Arnfuinent.)

he makes that point cloar. Therefore all iiuestions of violation
of municipal law may be entirely (iisniissuil from the picsent
enquiry, anil the points at issue discussed as thoui,'h the seizures
had taken place on any high seas, whether Behriny Sea or the
Atlantic ocean.

In theii' brief, counsel for tiie United States have recourse

10 in a "Treat many instances to princi[)les and autiioritii^s wiiich
obtain only in time of war or in prize co\irts, which of course
are altoifi'thcr ituipplicalilL' in time of peace and to the present
case.

Objections are raised in the United States l)rief on the
•fround of nationality as to the followinj.; persons anil vessels :
First, Thomas H. Cooper, as ref^istereil owner of the '' Grace."
the " Dolphin," the " Anna Beck " and the " \V. V. Sayward ;"
second, Ale.vander Frank, as owner of the "Alfred Adams," the
" Black Diamond " and tiie " Lily ;' tliird, Andrew J. Bechtel, as

20 owner in whole or in part of the " (^irolena " and " I'athtinder :'
fourth, Daniel McLean, as owner of 22 shares in the '■ Triumph ;"
tifth, Alexander McLean, as half owner of the ''Onward" and
the " Favorite." As to Joseph Boscowitz, the defense of the
United States has so utterly faileil, it seems to me, that it is
useless to waste an\- jnore time over it.

As 1 have already pointed out, and as is nu'iUioue 1 in tin'
pieamble ol the Ccnvention. " compensation is to be niibh^
for an", injuries for which in the contemplation of the treaty,
till- .'iward ancj findings of the tribunal of iiriiitration, compeii-

30 sation may be due to Oreat Britain from the United States." The
wordiiii,' of Article I. of the ('onvention is : —

" The hitrh eontractiniif i)aities ai'ree tli.it all claims on account
" of injuries sustained by persons in whose behalf (Jreat Ibitain
'■ is entitled to claim compensation from the United Stales," \:c.
On reference to the case of (ireat Britain, United State.-
reprint Vol. 1\'., paj^os 12 and 1215, it will Vie seen that the claims
Were presented before the I'aiis Triiiunal in the folio winii; words,
and these are the only places where any reference is made to the
presentation of the claims. 1 read from paj^'e 12: —

40 " With rejrard to the points raised undiM' Article VIII. (which

" refer to (juestions arising; out of claims for damai^fes) it will be
" contended on behalf of (Jreat Britain that the seizure of the
" ships was unlawful, and the arbitrators will be asked to tind
" that in each ease the seizine took place in non-territorial
" waters, that such seizures were made with the atithority and
'• iin behalf of the (to\ '■rnmeiit of the United States, and that
" the amounts of damaj^es which (Jreat IJiitain is entitled to
" claim III! liehalf .)f the owners, masters, and crews, are thr
" respective amounts stated in the scludule of particulars

50 ■' appended to this case."

There is liiMe a clear indication that (iieat Biitain at that
time contemjilated that the I'iiri> Tribunal miL'lit pass upnii the
claims, but a.s your Honors aie Lware, exception was taken to
that course, and it was finally decided that the jiirisdictioii nf
the Paris Tribunal did not extend thus far: all that cmld ln'
dune was to tind as to cerluin facts which either jiarty niii,dit
choose to suliiiiit, liul without pif-iii^ at all, at least directly, on the
<lUestion of liability nf tin- I'niled Stales. Tlierefiili' theantici-
jiations of ( ireat Britain, as contHineil in this hist p.ii aL;i.iph, a-

GO to the amount of damages which >lie was entitled in chum nn
behalf (;f the owiu IS, masters and cie"s were not r.alized. .\s
a result, the Tiibuiial of Aibitialinn was not called upnn to piis^
upon these amounts, 'i'lue it is, that it may be nroucd. leit oid\
what it is worth, that (ireat Iiritain at that time had in mind

'"'"ill

117

ns of violation
111 tlie present
i<fli tiio seizures
iii;^ 8ea or the

liiive recourse
tliorities which
I'liicli of course
to tlie present

s liiief on the
IS anil vessels ;
if che '■ Grace."
'. v. Saj'ward ;"
L'd A'hiuis," the
w J. Bechtel, as
1 " Pathfinder :'
;he '• 'rriniiiph ;"
• Onward " and
defense of the
) me, that it is

mtioiied in the
is to he made
of the treaty,
ration, conipen-
jil States." The

aims on iiceouiit
If (treat liiiiain
ited Stales." \:c.
, United States
1 that the claims
'ollowinj; words,
e is made to the
■) ■

cle VIII. (which

liases) it will he
seizure of the

3 asked to find
non-territorial
authority and

States, and (hat

I is entitled to
crews, are the
of particulars

Diilain at thai
t pass upon the

II was taken tn
['. jurisdiction of
I that ould hi'
ler parly mi^dit
^I diieclly, on the
•efiii'' ilie antici-
st ));ii ul;i iiph, as
led lo claim on
lol ii'alized. .As
Ird upon to plis^

ary'iied. Ii'it oiih
me had ill miinl

(Mr. Bieque's Argument.)

only the claims then presented in its .schedule of claims : I cannot
see, however, how it can be argiied that, becau.se Great Britain at
that time had only such claim.s in mind, she is debarred so long
as the question is open — .so long as the question of liability is
pending — from presenting additional claims, whether it be by
way of amendment, by way of correction of errors, or otherwise,
provided they fall within the four corners of the decision of the
Paris Tribunal, and result from the illegal acts of the United
States, which acts were passed upon by that tribunal. Then the
schedule of claims was brought in this way, at p. 123 of the
same volume in these words :

" The schedule annexed to this case contains particulars in
" connection with the claims presented under Article V^III ot the
" Treaty of Arbitration, and the facts and evidence contained in
" the schedule are submitted to the consideration of the Tribunal
" for the purposes stated at p. 12 of this case."

That is the wdiole reference that was made to the claims or
scliedule, before the Paris Tribunal, and it is the way in which
that schedule of claims was brought up ; and unless, as I sa\', it
can he argued that, from the fact that Great Britain took that
position, she is .debarred from that day to urge any other claim,
the contention of the United States should not prevail.

I want to call your Honor's attention to the fact that this
wording does not make the claims those of any person in par-
ticular. I mean the wording used in the schedule of claims or
in the reference made to it. They remained the claims of Great
Britain on behalf of parties in interest, whether owners, masters
or crew, and the schedule was handed in inerelj' as a matter of
convenience in relation to the particulars of the damage claimed.
The question as to what particular person might ultimately
claim the amounts, remained immaterial. There was merely a
reference made to the vessels and to ihe masters and crews. Of
course, there were, as a matter of fact, certain persons named in the
affidavits that were filed, but that had nothiniif to do with the
presentation of the claims, nor was that material. The claims
were presented in the same nanner before this tribunal, except
that no particulars were fui nshed. I submit that Great Britain
remained entindy free to piw\-.' wlm were the parties interested
and on whose behalf she is now claiming ; and 1 would go fur-
ther and say that she is not even obliged i indicate the persons
on whose behalf she is claiming, except that the United States
may be raising the question of liability by ;iroving thai >uch
persons are United States citizens in the wording of the reserve
made in that respect in the Convention. If that re.servc had not
been made in the Convention in favor of the United .States, the
laising (jf the question of liability, in other words, goiiii; beliintl
theflagand registry, itseemstome it would be perfectly unneces-
sary here to show who are the persons interested, or what are
the persons who will ultimately recover the amount which may
be awarded.

As to the facts concerning the persons on whose behalf it
is stated Great Britain is not entitled to claim, I ha\ .• maile, I
believe, a correct summary of the evidence. It is very brief.

Cooper, it is adniitteif, was domiciled in the Ignited States,
but he was at the time a British subject. He had, uiuler the
British law, every qualification entitling him to obtain legistrn-
tion for his ships m British ships, and no one before a British
court could have successfully denied that his ships so registered
were British vessels in every sense of the wonl,

Tl'.ere has been a statement made to the contrary in the
United States brief ; no doubt it was taken for granted that the

I ;i|l '""• mum ^npipi

118

(Mr. Bieque's Argiinient.)

law ill Great Britain was .somcwiiat similar to the law in tlu'
I'liitt'd State's ill tliis respecf. ; under tlic Uniteii States statute,
United States citizens doinicileil in a foreij^n country are not
entitled to own Aiiierieiui vessels, lint no such provision is found
in tlie Britisli Mercliant Sln|)[>inf^ Act, ami Cooper, tlioiii^li
domiciled in tlie United States, was perfectly (iiialitied to own
10 Britisli sliips, I iiiii,dit at once refer to section 1<S of the British
Merchant Shippiiij,' Act, the ori<j;inal Act which was then in
force, the Act of LSr)4, which will make the point clear : —

" Sec. IS. No ship shall he deemed to he a British ship unless
" she lielongs wlioUy to owners of the followiiifi; description ; that
" is to say :" —

" 1. Natural liorn British sulijects."

" Provided that no natural British horn suhject who has taken
" the oath of allei,'iance to any foreijj;n sovereign or state shall
" he entitled to he such owner as aforesaid, unless he has, suhsi>-
20 " (|Uently lo takin;;; such last iiientioiied oath, taken the oath of
" allegiance to Ilei' Mii j.'sty, and is, and continues to he during
" the whole peiind of his i!o heing an owner, resident in sonic
"place within Mer Mtijesty's Dominions, or if not so resideni,
'• niemlier of u British faetnry, ora jiarliier in a_ house actinilly
" currying mi Imsiiiess in the United Kingdom, or in some otlui
" place within Her M.ijesty's dninitiions."

" '1. Persons made denizens hy letters of denization, or
" naturalized hy or pursuant to any Act of the Imperial Jjegishi-
" tore, or hy or pursuant to any Act or (^rilinance of the proixr
l?0 "legislative auihmity in any British possession ;"

" I'rovided that such pi'isoiis are and continue lo he diiriiii;
" tlie whole period of their heirig so owners resiiU'iit in some jilaec
" within Her Majesty'.s Dominions, or if not so lesident, memhers
' of a British l'a<'t(irv, or partnei-s in a house actually e.iiiyi'ig
"on liiisiii -.s in the United Kingdom, or in Mime other place
" within Her Mnjesty's Dominions, and have taken tin" oath of
" allegiance to Her NIm jesly sul)se(|nently to the Jieriod of theii
" lieing so made lienizelis or natuialized."

" ;). Hiidies corpiirate estahlislied under, sulijeei to the laws
411 " of, and ha\ iiig their jirincipal place of business in the Unite 1
■ Kingduiii. or some ihitisli possession."

(,)!' eoiiise here the limitation is made for jiersons who have
heeonie Brili'-li suhji'cts hy heiiig natinalized; that is. jiersoii-.
hiuii ill another eoiiiitry and have hecome ihitish suhjects hy
taking tlie oath <il' nllegianee. These persons are entitled to o\\ ii
I'liil :>li ii'gislei-eil \ esNiK oidy so long as they reside in Britisii
teiiitciiy, or aie nieiiiln is of firms or coui|)anies as mentioned in
the Act But so fill as ('ooperwas concerned, he heing a Jhitisli
suiiject li\ liirtli,an.l never having heen naturalized in any otiici
"lO eonnfiy. there can he no i|uestioii under section IS that lie was
clearly entitled to own British vessels,

'I'lie p^iitimiof llie I'nite.l States argument where an asser-
tion lo tlie cotitrarv is to lie touiiil is on page ,")2 : —

" ( "ooper was at the tiiiie he hecaine the legal owner of these
" \ essels, and at the time of the seizures ipioail the United States
"and in their relations to him as iigain.st, (Ireaf Britain, an
" American citizen, and as such his ships, as we sjiall see, were
'entitled to eariy nulla;,' hilt, that of the United States, and
" Were not e\en cntitlc'l to Biitisii registry."
(iO Here, tl .le is an announcement that th" (|Uestion is to be

i'ollowed up, hilt I has e searclied ill vain in the United States hiief
to lind any further reference to the matter', and I conii lentlv
stale thai tlie lemiied coun^id for the United Stales will mil
iitieni|i! to supporl tliat proposition or to controvert the assei-

119

) tlie law in tlu'

.'(1 States statute,
country are not

irovision is found

Cooper, tliouj<li

(luiililied to own

iiS of the Britisli

icli WHS tlien in

nt clcnr : —

iritish ship unless
description ; tlmt

ect who has taken

ij^ii or state sliall

I'ss he has, sulise-

aken tin; oath of

lies to lie during;

resident in some

not so resident,

ajiouse actually

or in some othei

of deiiiziition, or
linjiei'liil lii'ijfishi-
lice of the proper
1 : "

inue lo lie diiriiiL;
ilent in some jilac''
resident, nieiiilieiN
iU'luiilly carry i'l',,'
some other plm-i'
,aken the oatli nl'
he period of their

uliject to the laws
less in the Unite 1

persons who have
: that is, persmis
r-itiNh suhjecls hy
Lre entitled to own
■ reside in liriti-^h
•s as mentioned in
ln' heinj; a Ihilisli
ilized in any other
m IS that he was

it where an assei-

,,'al owner of tle'se
the rnited States,
Oreaf Britain, an
we sjiall see, Weli'
'nited States, aiel

<|Ueslioll is to 111'
I'liiteil States liii'f

and 1 conti leiit'y
ted States will not
It iMVert the assei

(Mr. Bieque's Argument.)

tion I have made, that Cooper wa.s entitled to own British
ves.seN. , . ,

The fcontention of the L nited States amounts to this, that if
Cooper whtn he went to the United State.s, had left behind him
in British Columbia, ships that had been rejristered a.s British
shii)s before his departure, his chanrfo of domicile would ipso
fiiclo have changed the nationality of these ships. That is the
lo-'ical sequence of the position taken in the United States

biTef.

Moreover, thoup;h the rej-istered owner, Cooper had really no
interest in these ships at all, the real owner was Captain Warren,
a domiciled British subject, to whom Cooper had lent his name
for the jmrpose of the re<,dstration. This is clearly proved by
Coo))er's evidence. (11. p. 1837, 1 .S3 & .soq.)

It will not do to pretend that the ren;istration of the .ships in
Coojier's name estops Great Britain from provinn; who is the
party really interested. If it is competent for the United State.s
to go behind the register and prove facts inconsistent therewith,
it must be ofpially competent to Great Britain to do the same.

The United States case, might po.ssibly in this respect have
been somewhat stronger, if Warren himself were the adversary,
if for instance he had been a plaintiff before a United States
Court of Claim.s. But even then I submit that it would have
been competent for Warren to prove his interest.

As to Alexander Frank, the evidence shows that in 18SG
Frank made by affidavit affirming the correctness of an inven-
torj- which stated that the deceased owneil one-half interest in
the'' Bliick Diamond " anil in the " Lily " formerly known as the
" Alfied Adams," but he e.xplains he did it merely to protect
himself, Gutman's estate being irsolvent, and he (Fraid<) having
assumed all the li;ihilities of the firm.

The I'liited States counsel have invariably argued that
ex parte, affidavits of third jier.sons cannot be used in any way
against the United States. When we atteni{)ted to put in
atlidavits as printed in the proceedings at Paris, your honors will
reiiu'mher that our learned friend, .Mr. Dickinson, argued that
they were ex parte atlidavits and were not of the character
contemplated by this Convention. In face; of this contention I
do not see how they can derive any benefit from the ex parte
atlidavits that were thus made by Frank. Of course, if Fiank
were proved here to be a party interested, I would xinderstand
that there would he a distinction to be made, but on the contrary
Frank comes hen^ and swears that he was not a party interested.
If he is interested it is only to this extent an interest in the
venture of the vessel for a certain time anterior to 1SS8; surely
it cannot be siip]H)sed that Frank, if ho was interested in the
vessels, would destroy his claims forever liy coming before this
Commission and swearing that he has no sueli interest. Ho
could not have failed to understand that after coming before
this ('(Hiimissiun and swearing that he never owned any portion
of the vessels, he could ever recover, whatever the award i. light
be. His statement would be conclusive against him : all his
interest was the other way, showing that he was a party
interested. I submit, therefore, that his statement in that
respect should be most conclusive. This affidavit of Frank's was
given for a foreign purpose, u purpose which had no connection
whatever with tlu> present eiupiiry, an affidavit that might have
been loosely drawn up by his counsid at the time. Tliis affidavit
is urged, not against Frank, but really against tin; owner of the
vessel — the estate — of Jacob (Jiitman, and cannot be urged
against that estate; or, even better, against Great Britain.

'PP^P^W

120

(Mr. Bieque's Argument.)

Reliance is also placed on anaffiilavit of Gutman'sadininiMtrator
(exhibits, p. 214) in which the vessels are said to belonff to the firm.
At the time Moriitz Gutman riade this affidavit he was just
of ago, and I believe that when he was examined, he stated that
he knew nothinf» of the business ; Frank was merely appointed
administrator until Morritz Gutman wouM liecorae of ajje, when.

10 as a brother of the deceased, he was to take the administration.
The statement was apparently made without tiie necessary infor-
mation.

Mr. Dickinson : — Let me ask you, so that there may be iio
misunderstandinjj hereafter, do you claim for the estate of
Gutman in this connection ?

Mr, Beique : — 1 say that wc are entitled to claim for the estate
of Gutman for acts anterior to 18SS ; that the lOth November,
1S8!S, the vcs.sels having been sold to Morris Moss, we claim from
that diite for the latter. My argument refers to the facts in 188G

20 and 1887, and I refer to these facts principiiily on account of
this, as I shall at a later stage point out to the court, that the
United States are to be kept within the reserve found in the
Claims Convention ; namely, that Great Britain assented to
their adducing evidence whenever the}' would be able to do so
that the vessels were owned by American citizens, but I claim
that the Uniteii States should be lindted to the reserve and
therefore allowed to rnise the contention or use the evidence, if
at all, ordy in cases where they have succeeded in proving that
the vessels were really owned bj' American citizens ; therefore

30 this portion of my argument is directed to show that it lieiii^
proved that Jacob Gutman was in 188() and 1887 the ownoi- of
the ves.sels, whatever evidence may have been adduced caiuiot
lie of any vnliie, and should Ik; treated as irrelevant and as con-
trary to the rules of international law, because, as we shall have
occasion to show under those rides, the LToitod Slates, but for
that reserve, should not have been allowed to go behind the flag
and registry.

In anj- case, if Frank ever had an interest, he paited with it
in Novendier, 1888, when the vessels were sold to Morris Moss.

40 The bills of sale were tiled and are printed on pp. H7'J and 108
of the Exhibits. Therefore he cannot bo interested in the claims
Nos. lo and 10 for seizures made in 1889.

Bechtel, a United States citizen by origin until 1S!)2, when
he was naturalized as a British subjoct, was doniicilod iri
Victoria, wliei'e he carried on business at tlu; tinu; of tin; seizures
and for many years before. This is clearl}' proved by his evi-
dence on page 1 45 of the Record.

The United States relies on an atlidavit signed by liechtel
himself, in which he declared that in 181H), hi,"! " present usual

50 ])laceof residence or abode'' was in Auburn, California. There is
evidenci' that lie went ht some time or other to California fur
his health. This, anyway, so far as it may ditl'er fi-iun his other
testimony, could only prove that lieelilel g»ve ditl'erent testimony
at ditl'erent times, and it would remain for the Counnissioners to
decide which stor}" is true. As to this, then- can be no doubt.
When liechtel swore at Victoria that he had nuide his home aiul
done business there for 2.'J years, he niaile a statement which, if
false, coulil have been contradicteil by an »' number of witiu'sses.
Tiiat there was no such contradiction proves that it was true.

(JO Of course th(! alKdavit cannot be treated as an admis.sion, us this
is not Bechtel's case, but that i>i Great Britain. It is moreover
proved that he had no ownership in either the " Carolena " or
'■ I'athtinder ;" his oidy interest w:is that of mortgagee of a
portion of the " Carolena." Munsie proves (8ll-!)0 Record) that

121

n'sadininiiitrator
ielonf]f to the firm,
vit he was just
(1, he stated that
lerely appointed
ine of a^e, when.
! administration.
I necessary infor-

liere may be no
r the estate of

liin for the estate
lOtli November,
w, we claim from
the facts in 1880
' on account of
! court, that the
ve found in the
ain assented to
e able to do so
ens, but I claim
tlie reserve and

the evidence, if
in provinff that
tizens : therefore
w that it liein;;
i7 the owner of

adduceii cannot
k-ant iinil as con-
as we shall have
States, but for
) behind the Hag

pai'ted with it
to Morris Moss.
:M\) and l!tS
letl in the claims

til 1S!)2, when

IS iloniicilod in

of the seizuns

veil by his evi-

ned by liechte!

" present usual
oi'uia. There is
California foi'
from his other
ferent testimony
onniiissioners to
an be no doubt,
le his home and

nient which, if

ler of witnesses.

lilt it was true.

linission, us this

It is moreover

" (.'aroiena " or
inortj^aLjee of a
)0 Record) that

(Mr. Beiciue's Argument.)
owner of the " Carolena, " first nurchasin;,' one-

in 188') ho became , , , . .-.

third sliare, and afterwards buyuij^ out the shi.re.s of his co-
si owners; aiid that in order to raise money in connection with tlie
^' several transactions lie borrowed money from Hechtol and gave
■ hiiii-a niortu'iiL^e of '.V2 -rliares of the ves.sel, which was paid and
disehnrtjed TmImX). lie swears positively that from 1885 to the
lb time of^tbe seizure, no one but iiimself bad any interest in the
: shin, except Beeht-1 as uiort-n^'ee ('J()-!)l). This evidence is eor-
. roliorated by that of Hechtel, and by the ref,nstration of the
.1 niorti^M.i^'es before the .seizure, and is quite uncontra-iietecl.

'['he" rej^'istration of the mortifa^'es, before tlie .seizure, it
seems to me is a fact which shows beyond any question that the
statement must be correct. Tlie parties coulii not have had in
mind the seizures, nobody could have ilreamt, noliody could have
expected any siiznre takitiL; place. ISrfore tie:' seizure these
niort'^iLtes were re^'istered, tliey were made pubiie, the position
could" not be altered in any way by ai,'reement between Rechtel
and MuuMi', and how can it be contended that tliis was all a
sham and tiiat Inehtel was not really the iiiongHni.'e, but a part
owner in the " Carolena ?"

As to the " I'athliniler," there is no evidence that Bechtel was
connected with her in any vva\ , i .■<.•, j.t that he had acquired an
half interest in the profits of the .sealini,' y(;yaj;e.

Of course, as I have already stated, and as was pointed out
in our written arx"nient, pa;,'e '.]'.), the fact tliat a United States
citizen was morti,'!i^ee or interested in the promts of a Tessel is
quite immaterial. The Convention permits the United States
(loverniiient to rai.>e the ([uestion of its ' liabilty" hi casr of
proof lli'if a irtifii " fan vlmlhi or in /'oii tlir octiKil ftrojicrty
of (i fit i If II of Ihf Uiiitcil Stiitrs." Nothini,' but actual owner-
.shi]) by American citizens, of whole or part of the vessel itself,
entitles the United States (iovernment to raise the ipiestion of
its liability.

Daniel McLean was re-natr.ralizod as a British subject in
October. 188(1, and the .seizure of the " Triumph," the vessel in
question. t(jok place in 1887. The certificate of naturalization
ajipears on page J !•,")? of the Record. There is no proof what-
ever that he was dondciled in the United Stat(;s, and the pre-
sumiition is all the otlier way, as he was the master of the
'• Triumph," a rejristered British vessel, wliich sailed from the
port of \'iecoria, and a I5ritish subject b\- liirtli. The learned
couiisi 1 for the United States have cited authorities which are
unriuestionably correct, that in the absence of proof to the con-
trary, the domicile of birth is sup})osed to continue. Here, from
the fact that Daniel McLean was born a British subject, born in
Cape ISreton, in tlie absence of proof to the contrary he should
'^IBO be deemed to have been domiciled in British land.

Alexander McLean wa.s born in Capo Breton and became
a natralized citizeti of tlie United States in 1882. Between
1884 and 188(1 (the seizure of the "Onward" and warning' of
the " Favoni'itt!," the vessel in (juestion, took place in 1880), he
resided in Victoria. It clearly appears that this residence^ was
.such as to constitute domicile. Aloreover. there i.s no evideiu'e in
the record which show.s the accjuisition of any domicile other
than his domicile of orii;in.

Any difference of opinion between our learned friends and
ourselves liearinjjj on the appreciation of the facts as to nation-
ality or domicile, cannot, however, seriously affect any of the
claims, as I will presently show.

It is pointed out in the United States written argument, page
68, that :

,y:i

122

(Mr. l^ii(HK''s Ar;;uin('nt.)

" Wlintevci; of invioliiliilit.}' from nnd conclusivoiioss ngiiinsi
"inquiry tlinn- may have l)i'i';i orwlmtovor otiier nuestion of
" natioiml liii^nity iimy imvo hcen involved, it is sulpinittiiil at thr
" outsot that all tlicso coiisicU'ratioiis liave in'on set aside hy thi
"provision of tli(! Convention itself, reserviiiLf to tlie Uniti'd
" States (whatsover the l!a;jf. the reijistry, or tlie dif^nity.) thr

10 " HKiilTti) en(|uire into ownership, especially with re'fen.nei' to thr
" defence rostintj on ownership."

" The ilenial of liahility on the part of the Ignited Slatfs, it i-
" clear, ifoe.t not only to tlii^ (daimlike that of ('ooper, who for the
" purposes of this controversy was a citizen of the United .States.
" liut to the claims of the native-horn or naturalized American
" citizens who are alleged to linve h(!en ilomicileil in (ireat Britiin.'
" It would senm to be the position of (ireat Britain that tlie
"award of the arbitrators at Paris, and the present Convention,
" wliicii was its direct issue and He(]ue], did a wiiolly vain thini^ in

20 " ])rovidin;j for tlie inquiry into citizenship of owners."

" It is said, true, the United States may raise the question of
liability on ovvnersliip, and show that the " actual " owners of
the seizL'cI ships were, in fact, American citizens, and maj' rill the
entire record and occupy the time of the Commission for month.s
in adducin;^ testimony u|ion that point, and (Jreat Britain may
occupy other months witli counter testimony, but that after all
this is done, this is tin; utmost extiuit of the purpose of the pro-
vision: that immediately after the evidence shall be cloied, and
the record made, both sides are in the same position they

30 were liefore, in this: That the registry, the Hajjf, and so
on, are still a conclusive presumption oti the question of
owiicTsliip, i. e.. that the showinj^ of the British tla;^ and the
British reujister is conclusive evidence that the owners
of a vessel are British sulijectsl "

This contention of my learned friends, that the rij^ht reserved
to the United States of aililucin<r evidence for the purpose of
proviiiii that the vessel. s were wliolly or in part the actual
property of one of its citizens, implies a waiver on the part of
(ireat iiritain of the rij^dit of raisinii; the question of conclusive-

40 ness of the tin;,' and rej^istry, in time of peace, is at least open to
considerable doubt. May it not be arj^'ued that as no one is
presumed to renotnice his ri^dits, the reserve in cpiestion must be
construed as narrowly as a reasonable construction of the
laiiijuai^e used will jiermit ; that the reserve was made solely for
the purpose of allowiui,' the Unitecl Stat(>s to raise the ijuestiou
of liability, without waiver, however, on the part of Cireat
Britain of the iienetit of any law of nations which miffht vender
the <widene(! inoperative?

As appears from the proceedin|,fs before the Paris Tribunal,

50 the (juestion as to whether a siiip in nationalized by its tiajf was
one of the many (piestions on which the two ^reat nations failed
to a;,'ree. No Wonder, tliLii, that the United States wished it
to be clearly understood that it intended to raise the question
before this hij,di commission and reserved the rij;ht of adducinj;
such evidence as would enable them to properly do it.

The rifjht to raise a (juestion and the etlect of its being raised
are quite different things : In other wor<i.s, to concede tlie right
of raising a question does not imply an accpiiescence in the con-
tention of the party who raises .such question.

CO On this point may I not retort against the United States —
their statement of the law as appearing on page 40 to ,52 of their
brief — changing, of course, the words Great Britain for that of
the United States and yiee versa ?

On page 40 of the argument of the United States they say :

isivciiL'ss ngiiiiisi
-laT (|iiustioii of
iil)iiiitte(l at tlir
sot aside l>y tin-
to till! United
ii> ilijjiiity,) till'
rt'fcn lice to till

iti'ii Stiit'.vs, it i-
ipiT, who for till'
L- IJnitiMl States,
ilizi;il American
1 (ireat Britain,"
Britain that tin-
cnt Coiiveiitioii,

y vain thing in
vners. "

tlio que^^tion of
inal " owners of
and inaj' till the
sion for months
lat Britain may
it that after all
pose of the pro-
be cloiod, and
I position they
e Haij, and so
10 question of
■ill flag and the
it the owners

3 I'ii^ht reserved

the purposo of

part the actual

on the jiart of

•n of conclusive-

at least open to

ftt as no one is

uostion must lie

motion of the

nind(! solely for

ISO the (piostioii

part of Great

;ii iiiiirht render

Fiiris Tribunal,
by its Writ ^fns
it nations faileil
Itates wished it
ic tlio question
;ht of adducinj^
do it.

its being raised
ncede the right
ence in the con-

Jnited /States —
lO to .52 of tlieir
tain for that of

tates they say :

'4V

123

(Mr. Ueii|ue's Argunii^nt.)

"There are two classes of 'pi-rsons' among these claimajits,
who, by the settled and adjudicated principles of international
Uw, are not "persons in whose behalf (ireat Britain is entitled
to ol;iiiii ooiiipeiisation from the United States."
These are : —

(I.) Original .subjects of (ireat Britain still owing that
10 nation a (lualilied allegiance (in resjiect of sovereignty and certain
exterritorial laws), but who by domicile in the United States,
without naturalization, owe allegiance to thi^ sovereign
elaiiinof the Uniteil States and obedience to the municipal laws."
On page i)'2 the stnteiiieiit is still liroader: —
" Cooper was, at the time ho became the legal owner of tliiiso
vessels, and at the time (jf the seizure's (pioad the United States,
and in their relation* to him as against (ireat Britain, an Ameri-
can citizen, and as such, his shijis, as we shall see, were entitled
to carry no flag but that of tiie United States, and were not even
entitled to British registry."

in other words, if Cooper because of his domicile in the
United States was to be considered, as is claimed in this brief, an
American citizen ijuoad the United States, cannot we retort the
argument an<l say that Frank, or any American citizen, domiciled
in (ireat Jiritain and doing business there quod tJreat Britain
should be considered a British suiiject to the same eH'ect that
Cooper could be considered an American citizen ?

An authority bearing on the point is cited on page 4(j of the
United States brief from Lord Stowell : —

" A person domiciled in another country is to bo taken as a
subject of such country. • * *■ Jlc cannot tdkr advantnije
of I'olh cli(iri(ct<'i:i at the KiDnc time."

We do not acipiiesce in that doctrine. (Jur position is, tliat
Cooper was entitled to own liritish ships and that the seizures
— a fact which goviirns the whole of this enquiry — were not in
United States territory, but in V'riti-ii territory. As I shall
have occasion to show, the seizures i.i.'ing made upon the high
seas, and tlu; liigii seas for the purpose of the present inquiry
being considered under the law of nat.ons as a piirt (A' the
territory of the nation whose vessel is na/itating upon it, I say
that this iiKpiiry is to be considered as if the seizure had been
made in tin- port of Victoria, or any other British port.

But let us suppose for argument's sake that ( Jreat l^ritain did
waive all ((Uestioiis of conclusiveness of Hag or registry, it will
surely iKJt be seriously coiitendeil that the e insent involved any
more than jiermission to the United Stitos to go behind tiio
registry, subject to the a|)plicatioii of the rules of international
law as to etl'oct of any evidence which might be adduced.

We are agreed on both sides, I believe, that the law of each
nation is supreme within its own territory and binds alike its
subjects, or citizens and foreigners.

Another principle on which there can lianily be a <lirterence
of opinion is, that a ship at sea is regarded, under the law of
nations, as a portion of the ti'rritory whose flag she carries and
as subject to that jurisdiction.

If I am not mistaken this is admitted in the United States
brief, hut at any rate it will be sufficient to refer to Mr. Carter's
argument at Pari.s where he very deliberatolj- reduced to writinc,
80 that thoy might be clearly before the Tribunal, his propo.si-
tions of law, and among them were the following : — " Inasmuch as
I wish to be precise upon this poii>t, I have drawn up a series of

Eropositions which embrace the views entertained and asserted
y the government of the United States upon this particular

I
'1

ir 1

•4

It 4

;]()

-10

l-.'4

(Mr. Hi'i(|iic's Arf^unicnt.)

subject. And till!}' lire tlii'Sf : " I mil rt'iidiii;,' from vol. 12 of
his Oral Ari,'niiu'iit on lifliulf of tlio Uiiiti'd Stiitcs, |»i;^'i' 254.

" Fii'.st. Tli« tcri'itoiy of n nutioii coiisi.sts of tlic iniid within
its doiiiiiiion and wimt arc coinnionly failed its territorial WHters,
wliii'ii embrace intei-ior ;;nHs. or iiays nearl}' enclosed liy its
territory, liut connected witii tlie sealiy narrower straits separated
liy tieadlands, and a narrow lielt of tiie open sea aloiij,' tlie .>.liore,
of the widtli, as conniionly allowed, of three miles, or u c.iniion
.shot."

"Second. 'I'll.' exel'cise of the sovcreiun legislative! power ol
the nation is limited to its territory as ahove descrihed e.xcejit
in speiial in'-tances where, loi' ii'asons of necessity, a nation njuy
cxeicise a limitril leni,slati\e jiowerover neij;hhorinn' parts of tin
sen heyund the narrow heltalove mentioned. Outside of the
territory of the imtioii its laws, as laws have, except as ahove
nuntioned, no operation or etl'ect. T'lr .-liiiisofn nui khi. Ikhi-
( ri i\ (I r< . I I'l II Arlii'i) mi (he lii'jli "i"^. ilitnnil to lie u /mit of it^
territory."

Third. Nor can a nation, with the sjiecial exeeiitimi alove
ni( ntioiu il. take any action outside of its territory for the pui'-
pose'of enforcini; its laws, oi- pnnishiiii; a hre:uh of tlu in. its
wiit-.. nr other processes, or orders of its courts, cannot he law-
fullj- executed outside ol' its territory.

■ Fourth, Two .••o\ erei^^ii nati(.iis cannot exist to;^ttlicr upon
the same lan<!. 'J'lie so\ eniiinty of one must nece.^sal•ily yield to
that of the other. lUit all soverei;;n natii ns may co-exist U]ioii
the SI as. Tlu'V may i^o and he there as indi\idual persons upi^n
terms of al solute ei|UMlity. In lenal contemplation l/n i/ iin
till 11' ii'lii III 11 r Ihr iiitnifl.-f uliir/i llnlj iirr Imii ml to ilifi ml .utiih
iitt till I r jii ojnili/. till 1 1' III I :i'iif, or I he jirojii rli/ oj tin i r rit iK //.^.
(Ijf till ;('•

Thesr |)i oposit ions ari' elrnieiitary and they w ill not. I am
sure, lie contested.

'i'he laws of each country prescriliiii;^' the (|Ua!iti( ation ic-
(]nired in order to own xissels. ate essentially municipal laws,
they form no ]!;irt <d' the law of iiati(ais. This alM) is an tie
meiilaiy jiropositioii.

I'!aeh ( iilintlV is therel'ure eutitlecj ti

.such iiil' s as it lik

'1'

.Mthouirli not usu.'il, aii\' countrv ((Hild.

for instance, enact laws iiermitt iiiij' fiiniiiners to own and lei'is-

. . . ' . .

ter ves^. els within its tei litoiy. If such had heeii the law of

(ileal iirilain at the time of the seizures, what would heconie ol'

if the I'nited .States, on the irrounds of nationalil \

tlie .ihjectiii
or domicile

i'^

ir It can

h.'irdh

he denied, that from the fact.

that

loreii^liers \\(i

uM I

i;i\ e lieeil thus in\ i

ted t

) own a

ml I

eiris-

ter \essels in iJritish teiritorv, thev

r,o

le corresiioiiiiin

lii

I5iit

nil aii'ainsl

ri;;'lit (
tl

would lia\'e, i/isi) jiiiii

f heili;^ protected hy (i|

•eal

nations in the use and einovnieiit ol such

vessi'ls w ithin liritish teriit

or\-.

Su]ipose, for iiistaiiie. that the law of Oreat Itritain wer(

rtl'eet that I h

list stated.

d that the law of th

T'nited States were not only to the contraiy etl'ect, Imt that it
madt> it a crime for any one of its citizens t<i own liritish ves-
sels; would it lie pretended that it would lia\e heeii open to the
I'nited States to come, for instance, into the port of \'ict()i'ia and
destroy a vessel owned hy one of its citizens, and that (ireat
(iO Jiritain would ha\ e heen deinived of the rij,dit of ]in)teetini^ that

American citizen. M\- learned friends,- the counsel fc

I'nited Slates, in their hrief i;o to that extent. They afHrii
and they repeatedly reatiirm, that there is no rifjht of protectioi
as against tlie country of ori<;iiial allcjjiance, but it st'cuis to m

125

nun vol. I'J ol'

I"*, pULI,'' -.")4.

Llic Iniiil witliiii
•I'itdriiil watcis,
•iu'l<isi'il li}' its
traits .s('jmnit''(l
ildii;^ till' !-liiiii',
t's, or u (Miiniiii

• liitivii [lowir (il
•■-(•ril.ril i'.\ci|it
y, a luitidii iiiuy
\u'^ |inrts oi' till
Oiilsiilc of tin
rxccpt IIS aliovc

(I lllllKlll, Ikiii-

ic a [III it of it -

xccjitioii al'oNi

IV for till' |)ur-

li'of tin III. It-.

ciiiiiiot 111' law-

^t to^i tlicr 11] oil
'('.^Sillily yii'ltl l"
ly co-exist iqion
lal jicrsoiis ii|ioii
latioii III! [I II f
I lo iliji ml. ,s(((7.
iij fill i r nt i:( n/-.

\ will not. I aiu

i{U:ilili( atioii re
iiiiiiicilial laws,
al^o is an rlr

in tliat ifsju'ct

fotintry (niiM.

own and i(';,'is-

I'li till' law ol'

VOllld llCCOllll' of

s of nationalil \
t from tilt' faci.
own ami r(.'i;is-
a\(', ijino Jiirtii
I'cti'il liy (iri'lii
lyniriit of siuli

I'liilain wci't' to
till' law of till'
feet, luit tlial it
wn I'liitisii vts-
icrii ojn'n to till'
t of N'iftoi'ia mill
imi tliat (ircat
[" jinitritinjj tliat
oiHi.sfl for tlif
t. Tlit-y atHriii.
;ht of jirott'ctioii
t it si'fin.s to nil-

(Ml". F<('ii|in''s Ari,'um('nt.)

that tlif smiiiiiiiosH of the propo.sitioii I liavi! ciKninct'iI appcarH
on it.s own fact'. It .sccni.s to ine to he plain, that whether or not
the law of the I'liited States made it a crime for American
citizcn.s either to own a Uritish ve.s.sel or to own propi-rty in
British territory, tliat it would he a violation of the laww of
natioiiH for the I 'nited States to come within r<ritinli territory
for the purpo.sf of piniishinj; an American citizen, or for tlie
purjiose of enforcini; their municipal laws. If it be true, as is
admitted on hoth sides, that the liij;h seas for the purpose, ho far
as merchant vessels are coiicoriied, are to he considered part of
the territory whose lla^' the vessel carries, I say that the same
rule aiijilies whether the seizure of such vessels owned liy
American citizens domiciled in Ftritish territory he madi; on the
hi;,'li seas, or whether it he madu in the port of Victoria. On
this iioiiit 1 desire to refer to some of the authorities that are to
he found on pa^'es .")() and T)! of the British Ari^umeiit : -

Vattel, Book 2, ch. H, sec. 104 ;

" The soM'i't'ii,'!! ouj,dit not to ;rraut an entrance into his state
" for the |iui']io.se of drawini,' foreij^ners into a snare ; a.s soon as
" he admits them, he eiijjaifes to jirolect tlu'iii as his own sub-
" jects, and to art'ord them perfect security as far as depends on
"liim. Accordine'ly, we see that every soverei;;n who has jjiveii
"ail iisylinii to a foi'ei;,fni'r, considers himself no less oH'eiided by
"an injury done to tlie latter, than he woiilil be by an act of
"violence committed on his own subject. "

My learned friend, Mr. Bodwell, will make a more complete
ri'feieiice to some of these cases, and I will mia'ely limit myself
to iiicorjioratiiie; a short extract here. I take the followinj;'

fi ihe r. S. Sen. Kx Doe. 21— 40, 2 Sess., 44 Confj., p. :iK.

Commenting; on the aliove i|uotatioii in Worth case, Rayner .1.
Bays : —

"This principle of international law is nu-o^jnized as a part
"of the municipal law of Kuf^land and of the I'liited States.
"The Kiii^lish courts have decided, ai^ain and aj^ain, tliat not
"only is a foi'ei;jiier resident in England entitled to the protee-
" tioii of her laws to his per.son and property ; but even in the
"case of ail alien enemy, if he ipiietly and peaceably obeys
" her laws and performs the duty rei|uired of him, he is not only
" entitled to the |irotection of her laws in sueinj; for his rii;lits
" ill her courts, but he is entitled to protection to his person,
"cffii ax iiijdiiint ill! liiuil of Ills )i<itiriti/,"

1 refer to the«e iiutlioritieH principally^ to aii.swer the state-
ment which appears in the riiited States brief, that the protiic-
tion i^iveii in no ouse extends a<;ainst the nation of origin. I
quote this other pas.saj;e from the same .ludjje : —

• * « • " And if the contlict had been directly between
"(ireat Britain and the Uniti'd States, and there liad been an
" intent on the jiart of (Jreat Britain to harm or in an\- way to
" wroni; them while under our protection, all the authorities
" would ifo to prove tliat our (lovernment would be bound to
"defend and jirotect them in their ri^dits, ^t^/j itifninut thfiv own
" (tovi'Dniieiit. Our complaint ajrainst (Jreat IJritain was not
" that she had dii'ectly or intentionally wroiiffed our (iovern-
•' meiit or its citizens, but that wroiiif had been done through
" her neglect to observe her neutral obligations."

That was in connection with the Alabama claims.

Mr. Dickin.son : — Do you understand the learned Coinniis-
sioiier in the Alabama claims to mean there, that he speak.s of
direct conflict, a state of war between the United States and
Great Britain i

Mr. Beiipie : — Whetlier he does or not, what I am an,swering

.-''1

i^
M

rmmmm^m^

ite

(Mr. n('i(|iieH Arj^iimpnt.)

in llic liioiul iiMMcrtiiin with rcrcrt^iii't' to tin* limit of |)roti'ctinii.
'I'liiit is an assertion in tiic l)ri('f of my learned rriemi tlic
counsel for tlie I'liiteil Stiiti's, wliieli is ijiiite material ami ijuile
iin|i<irtaiit in llie present en(|uiry. 'I'liat assertion of mv leariieij
fi'ieiiil Mr. DieUinson is.tliat in no case can lii'eat Hritain protect
Anieiican citizens a;;ainst the rnileij States. I have hccn

10 eiuleavourin;; to show the iNuitrary hy the examples I have
mentioiieii. and liy supposing; laws that mij,'ht ;,'ive rise to sucli
interferences. I iiave ti'ied to show, hy refi'rrin;,' to hypothetical
acts done in tlieixirt of N'ietoi'ia.that ( Ireat Mritain would undoiihl
edly he eiilitleci to protect .\iiierican citizens a;;ainst the I'niteil

States, and I liavi' I n nderrinj; to these authorities in support

of my Nialemeiit. There are a innnher of other authorities tn
which I nii;;ht refei on the same point. I'mler the Hritish
municipal law. Uritish suhjects'only are entitled to own Hritish
rej^istered vessels, and any contravention o|)erates //),>*() /</<y() as

"20 a forfeiture of the vessel |4i Her .Majesty. Section l(t:{ of the
I'liilish .Merchants' Shi]i|iiMe; .\ct of IS.')4 says :

■t'lll. The (iU'ence-, In icimifter meiitioiieil sliall he piirnsji
"ahie as fuljnws; (that is to say)

"(I) If any persmi u>rs the linlish \\\\'^ and assumes tin'
" livilix/i National Character nn hoard any ship i)wncd in wholi>
" or in pait, hy any person not entitled hy law to own lirillsfi
' .•.'// /'/s, fur the pui pose of inakiny; such shi)) appear to he a
" ItrUlsli ^llip, such ship shall he forfeiti'il to Her Miijesty, unless
'• such as»iMn|ition has hcen iii.ide for the purjiose of escapiie,^'

30 "rapture hy an enemy or hy a l<'oieii;ii Ship of War in eX(>rciM'
"of some iiellii,'eicnt rii,dit ; and in any piiiceedini; foi- eiifoifiie,'
" any such forfeiture the hurden of |)rovini,' a title to use the
' li ilis/i lliii,' and a-^^iimie the lir\ti.<li Nationid (Jliaiactcr shall
• Ki' '10 ai the person ii^ini,' and assnmitii;' the same."

' ('!) If the master or owner of any liritish sliip do(^s or
"permits to he done any matter or thiii^;, or c.iiiies or |H'rinits
" to he carried atiy pa|)ers or chjpuments, wi h inf it to conceal
" the Ihitisli chaiacter of such ship from an;, pirson entitled hy
'■ liritish law to iiupiiie into the same, or to assume a Korei;;ii

40 ' chnra('ti>r, or with intent to deceive any such |iersoii ;is Instlv
" liereinlH fore nieiitioiieil, such ship shall le forfeitecl to Her
" Maji'sty, ami the mastt>r, if he commits or is privy to the
" commission of the otl'ence, shnll he j,'uilty of a misihiueaiior."

(M) If any iiM(|Ualilied peison, exce])t in the case of such
" transmitted interests as are lu'reinhefoio mentioned, acquires
" as owner any ititerest, either lethal or hetieticial, in a ship usim,'
' a Ih'itish tla^' and assnmiiiLj tla; Hritish character, such inteiest
•' shall I'e forfeited to Her .Majesty."

" (4) If liny person, on hehalf of himself or any other |)ersoi\

'}() " or hoily of persons, wilfulK- makes a false declaration touchitii;
" the (piidilic.ition of himself or such other person or hody of
" persons to own Ihil'ifli ships or any shares therein, the ileclarant
" shall he ;r'iilty of a misilemeaiior ; atal the ship or share in
" respect of which s.^ii declaration is made, if the same has not
" heen foifeiteil under the fore^'oin^ provision, shall, to the
" extent of the interest therein, of the person making the Dec-
" laration, and, iiidess it is shown that he had no authority to
" to makt^ the same, of the parties on ladmlf of whom such
" declaration is miide. In; forfeited to Her Majoty."
()0 This leaves room for no atidiij^uity.and therefore it is perfectly
plain that from the mere fact that there would have heen an
attempt on tlu; part of any citizen of the IJnittMl States to own
nn interest iti any of the vessels in (juestion, under tlio
municipal laws tjf Great Britain, these vessels would have heen

127

lit of proti'otidii,
iirni'd I'rii'iiil Ihr
ati'rial find i|iiiir

nil nf iiiv li'lirilnl

it Britain pnitcci
H, I liavi' lii'cn

Ullllpll'H I huvr

;ivc' lisf to MK li

'^ In ll\ potlicticill

woiilil iiikIoiiIiI
;aiiis|, tlic Ciiitril
ii'itii'M ill Miippoii
■r aiitlioritii's lo
I'Icr till' Urili^li
I to own Hiilisli

lies ipso fiiili) )!>,

I'tiori lO.-'t or till'
I sliall lit' piMii>|i
mill nssiimcs tin*

)W1H"1 ill Wllllji'

V to own Uritlsh
ipjicar to 111' a

r Miijisty, iinlcvs

losi' of I'M-apiiii,'

War in cxtM'ciM'

inj,' for t'lifoieiiii,'
titli' to use till'
Uliainctt'i' slinll

MIC,"

isli -.hip lilies III'
ui it's or pcriiiils
int' ii to coiici'ul
■;'s()n t'lititlcii iiy
ssiiMie 11 Kor('i;,'ii

|ii'rson PS Instlv
fiirffiti'ii to Hit

is privy to tin'
iiiisiifiiieaiior."

the caso of siicli
iitioni'd, ncrpiiirs
I, ill a ship iisiii;^'
tur, such iiitoK'st

any other pi'rsun
laration touching'
rsoii or lioily i)f
I'in, the declarant
hip or share in
tile same has not
m, shall, to the
nakiii;,' tlie Dec-
no authority to
of whom such
ty."

'ore it is peifectlv
Id have lieeii an
m! States to own
tion, under tlio
would have heen

(Mr. Beiijuo's Arj,'iiiiioiit.)

ipHi) fnrto forfeitnd to Her Majesty and therefore (in^at liritaiii
would he entitled to claim.

liCt me now ask whether my learned friends are prepared to
.say that they intend to (piestioii the validity of this law or its
operation, whether British siihjects or Ignited States citizens he
therehy afl'ected ;' Their attemptinj,' to do anything' of the kind
would lie a direct violation of the law of nations i,'overninj,' thin
controversy.

On reference to paf,'e Ki of the British Arijiiinent in reply, I
Hnd a citation from ('liii.'f Justice Marshall of the Supreme
Court, of till! United States, which is of some importance and
which 1 will read : It is taken from ('ranch 4, paife i?!* in the
case of liose V. Iliiiu ly.

"It is conceded that the le;,'islation of every cmintry is

territorial, that heyond its own territory it can onl}' atl'ect its

' own siihjects or citizens. It is not easy to conceivo a power to

'execute a niiinicipal law, or to enforce ohedieiiee to that law,

' without the circle in which that law operates. A power to

' seize for the infraction of a law is derived from the Sovereij^n

'and must he exercised, it would seem, within those limits which

' ciiciimscrilie the Siivereij,'n Power. 'I'lie rights of war may be

' exercised oil the \\\i^\\ seas, hecause war is carried on upon the

'hi;,di seas; hut the pacific rii,dits of sovcrei^mty must tio

'exercised within the territory of the Sovereign. If these

' propositions ho true, a seizure! of a person not a suhject, or of a

vessel not l)elon;,'injf to a suhject made on the hii,di seas for the

lireach of a municipal rej,'ulatioii, is an act which the Sovereiifii

cannot authorize."

Wheaton, Klemeiits of Int. Law, Part II, Sec. 7S, p. i;{;{, says :

" The se(;oiid ;,'eiieral principle is that no State can, hy.its
" laws, directly affect, hind, or rcLjulate property heyond its own
" tei'iitoiy. nor control persons who do not reside within it,
" whether they he native h in siihjecls or not. This is a conse-
" queiice of the first i,'enei'al iirinciple (Foelix, Droit Int. Prive',
'■s. it); a different system which would recognize in each State
"the power of rejjulatinf,' persons or thin;,'s heyond its territoiy,
" would exchid" the ecpiality of rij,dits aiiioiii; different States,
" and the exclusive Snveri'ii^'iity wliicli helongs to each of them
"(Foelix, Droit, Int. Prive', s, 10),"
Ai^aiii (I'art II, Sec. lOO, p. Id!)):

" Both the puhlic and private vessels of every nation on the
" liigli seas, and out of the ti^nitorial limits of any otiier State,
" are suhject to the jurisdiction of the State to which they
" helonjf. Vattel says 'i,lie domain of a nation extends to all it.s
" first possessions : ami h3- its possessions we are not to iinder-
" stand its territory only, but all the rif,dits ('droits') it enjoys.
" And he considers the vessels of a nation on tlie hi<,di sens as
" portions of its territory (Liv. I, cap. 19, sec. 210 : Liv. 21 1, cap.

" 7, sec. MO) This jurisdiction, which the nation has

" over its public and private vessels on thehii,di seas, is exclusive
" only so fai- as respects offences a^oiinst its own iminicipnl laws.
■' Piracy and other ofiences ni,'ainst the law of nations, being
" crimes not against any particular State, but against all nian-
" kind, may ho punished in the competent tribunal of any
" country where the offender may he found or into wliicli fie may
" he carried, although coinmitted on hoard a foreign ves.scl on
" the high .sea.s."

Halleck, Int. Law, vol. I, p. 215, says: —

" Puhlic and private vessels on tlie'high .seas, and out of the
" territorial li.nits of any oilier State, are suhject to tlie juris-
" diction of tfie State to wliicli thev belong. The ocean is

' •

H' ill

■•i

;■■,#•-

ill

128

(Mr. Beiqiie's Argument.)

"common to all mankind, and may bo successively used by all
" as thfiy have occasion."

The whole doctrine is properly expounded by Sir Travers

Twiss, in his book on the Law of Nations, chapter X.secs. 157-8 :

" The right of civil and criminal legislation in respect of all

" property and persons within the territory of a nation, is an

10 " incident of the right of empire. It follows, therefore, that the
" laws of every nation bind, of natural right, all property situate
" within its territory, as well as all persons resident therein,
" whether they be natives or strangers, an<i that they control and
" regulate all the acts done or contracts entcjred into within its

" limits A nation cannot by it.s own laws directly bind

'' property which is beyond the limits of its territory, nor
" diiectly control persons who are not resident therein. This is
" a iiceessary constniuence of the proposition advanced in the
'' preeeiiing section ; for it would be inconsistent with the abso-

20 " lute character of territorial empire, if the laws of a nation
" biiiil persons or property within the territory of another nation,
" and so contiol the operation of tiio laws of the latter nation
" within its owri territory Rodenburg has accordingly observed
'■ that no Sovereign Power can of riglit set law beyond the
" limits of its t.nitor}'. Constat igitur extra territorium legem
" diecte neiiiini licere ; si fecerit (piis, impune ei non pareii,
" ((nijipe ubi cosset statutorum fundainentum, cessaat robur et
" jiirisdietio ("Rodenburg de Statutis," Tir, I, chap. 3, sec. 1.)
'' Jioullc'iiois lays down a similar rule: ' Of strict right, all the

30 " law< of a Sovereign have only force and authority throughout
" his dominions.' (ii)iielliMiois, " Traite' des Statuts," I'rincipes
" ( Jeiier.iux. Vi.) Vattel concurs in this view when he says :
"The Emjiire uniti'cl to the domain estabiisbes the jurisdiction
"of the nation witliin its territory. It is its province, or tiiat of
" its Sovereign, to exercise justice in all the places under its
"empire; to take cognizance of the crimes that are committed,
"and the (litrcrences that arise in the country.' (Vattel, "Droit
" lies Gens," II 11, Siu;. Si). ' No law is accordingv operative,
" jiriprio v'ujure, beyond the limits of the tiuritory of the State

40 ' which lias set it.' (.Martens, ' Precis dii Droit des (Jens,' sec. Sti).
"'Then; is no doubt, writes Chancellor Kent, (Kent's Commen-
' taries, Tom H, Sec. 4.')7) ' of the truth of the genei-al proposition
" that tire laws of a country have no binding force bi'vorul its
" own territorial limits, and their autliority is admitted in other'
" States, not c.r priiprio riijorr, lait ex ciiiniti(t<',»v in thf language
"of Huber-, " (j|uiitenrrs sine pracjiidicio indulgentium tii'ri
•' potest,'" \-e. Another eminent authority, Chief .Justici; Pai-ker',
" has recogirized a similar doctrine in an ehiliorate judgment, in
" the comse of which he observes that ' the laws of a State cannot

'iO " l\V arry irihei-erit aothoi-ity be entitli'd to res])ect exti'a-ter'ri-
" torially, or' bi'yond the jirrisdiction of the States which enact
" therrr ; thi-* is the ni'Cessar'}' result of the iirdepetnlencr of
" distinct Sovi'r-eignties.' Jihinehuril v. Hii^ai'll, 13 Massachusetts
" Report, p. 4)."

•' I*. 'J.S.'j, sec 173. The open sea is, strictly speaking, nail ins
" t<'rritoi'iani. No nation can claim to exfreise jririsdiction over
" its water's on any grornid of exclusivtr posse-^sion. On the
•' other- hand, it is the pulilic highway of nations ii])on which the
" vessels of idl nations rrreet on trrrns of iMpiaiity, each vessid

GO '' cari')irig with the laws of its own natiorr for- the govertnneirt of
" those on lioard of it in their' mutual relations with (;ne anolhiM,
" but all subject to the common law of nations in matters of
" mutual relatifin between the \essuls themselves and their
■ cr'ews. '

120

^'ely used b}' all

by Sir Travels
r X.secs. 157-8 :
II respect of all
a nation, is an
reforo, that tin-
property situate
3ji(lent thtMuin,
ihey control and
into within its
s directly hind
i territoi-y, nor
lerein. This is
Iviinced in tlie

with the ahso-
ws of a nation
another nation,
le latter nation
liiiiifly observed
iw beyond the
ritoriiun le>];eni
ei non pareri,
L'ssaat robur et
shap. 3, see. 1.)
■ rin-ht, all the
ity throii^lioul
lUs," I'lineipe.-i
ivheii he says :
he jurisdiction
ince, 01- thiit oF
iices under its
iro coniniitteil,
Vattel, '• J)roit
nj^y operative,
y of the State
Gens,' sec. SCi).
'ut's Ooninien-
ral proposition
ce lieyond its
litted in othei'
'1 the ianjj;uai;e
i,'entiuin tieri
ustice Parker-,

judffuient, ill
a State cannot
it extra-terri-

whicii enact
lependiMlce of
Massachusetts

(Mr. Beique's Argument.)

References are made to Hall (International Law) to the same
effect, and to Sir William Scott, v/hicli will he found on page 18
of tlie Arf^ument of Great Britain in reply.

I therefore submit tliat whetlier tb.ere was or tiot an attempt
on the part of tlie United States citizens at holdinfr any of the
vessels in question, it makes no dift'erenee liecause if tliere was
any such attempt it remained abortive, the vessel becoming for-
feited as Her Majesty's property, and re;^i,iining to all intents
and purposes a British ves.sel entitled to the protection of Great
Britain. I liave not referred to the aiitliorities concerning the
quesiion, as to wliether in the absence of tlie reserve or even
with tlic reserve, as it appears from the Convention, tliu
United States can go behind tlie Ha(j of the Registry, tliat (ques-
tion will be dealt with by Sir Charles Hibbert Tupper wlien lie
comes to address your honors. J niiglit add that the position
we take is further strengtliened by tlie fact tliat all the owners
BO of the ships and parties interested in their cargoes and ventures
were Biitish subjects, or doniiciied in British teiritoiy. The
authorities to wliicli I liave called attention, a moment ago, apply
principally as against the contention of tlie learned counsel for
United States in legard to their dealing with the question under
discii.ssion, as if there had ficen a violation of a municipal
law proper, or whether they call it a iiituiicipai law with ex-ter-
ratorial etl'ect, 1 claim fioiii these authorities that sueli law couM
in no way be invoked here. 1 claim that as a result of tlio
treaty, as a result of the Award, it is an aci|uiied fact, that tliere
was no such law, that thei'e has been only an attempt on tiie
part of the political Depaitment of the United States at con-
stiiiiiig section ][}')6 of their statute as exteii(lii.:>; to liehring
Sea. but tliat this attempt is now admitted to have lieeii
erroneous. I go fuither and say tliat even assuming that there
was such law, and assuming tliat it would have had an extra
territorial effect, under the authorities I have last referred to,
tliis extra territorial law would not have extetided to Great
Britain's teiritory, or to Britisli ves.sels navigating the high seas,
because the high .seas for the purpose are considered to form part
of the territory wliose flag tlie vessel carries.

As it is half-past four o'clock, I shall not now take up
anotlier branch of the suliject.

The Commissioner on the part of the United States: — Inas-
much as tlio room in which the Ciuumissioners are sitting is
reijuired for another purpose to-moriow, we iiiiil it necessaiy to
adjourii until half-past ten o'clock on Wednesday morning.

At half-past four o'clock the Coiuinissiotier'j rose.

I fe^

;«■ 3

!4'

iking, naUltis
■isdiction over
■iioii. On tlie
)on wliicli the
', each vessid
;overniiieiit of
ti one aiioth(,M',
n matters of
'es and their

■'k

il •?!

' r*''TW|

Commissioners under the Convention of February 8th,

1896, between Great Britain and the United

States of America.

Legislative Council Cliambor of the Provincial Buildinn;,

At Halifax, N. S., September 1st, 1897.

At lialf-past ten A. M., the Coinniissioners took their .scats.

Mr. Iii'i(nie- — 'i'lie day hefore yestonlay I was rlcaling with
the cnu'stion of iiationalit}' and domicile and esjiccially with that
propositiiin to he fuuni! in the I'nited States hiief, that the local
.s()V(>reij,'nty cannot protect its domiciled inhaliitants as agaiiHt
the countrv of (irij^inal allcojance for wrongs committed within
the terricory of the local sovereignty. I referred to several
authorities on this point, and will add only one more which is n
very stiong case in point. It is the Koszta case referred to on

30 jinge (]') (if tile United States brief and on jiage 8 ot our own
aiumiii'nt in I'eply. Koszla, a native born Austrian subject, not
naturalized in any other eonntry and domiciled in the United
States, had, it apjiears, otlenii i| Hgiiinst the law of his country.
An attfm])t to take him was made, not in the territory of tlie
Ignited States, but in that of Turkey, which of course makes
the ca--e niuch strong(.r ; but tiii! United States interfereil on his
behalf, and if they could i'lterfeie in a case of that kind, it
seeiiis to me that they would have much more right, as they
have themselves asserted the right, to have intiU'fered in the case

40 of Koszta, if h(> had been arreste<l in the territory of the United
States, The Wording in the reference on page 8 of our brief in
reply is veiy ]ilain and very strong ; it is taken from Wharton s
Digest ol' Nati(jnal [/iw, VohiTU(> 2, jiages 4.S.') and 48(i :

. . . ." Anil what i'eas(-ns can be given why, so far at least as
" lei'ards protection to peison and pi-(j|ieriy aliroad as well as at
" hoTiie, his rights should not bo co-extensivcs with the rights of
" native born or naturali:'.«'d citizens, liy the law of nations they
" have the same natiunalily ; ami what right has any foreign
" power, foi' the puipose of making distinction between them, to

oO " look behind the ehaiacter given them by that code which regu-
" lates national intercourse f When the law of iiiitions determine
" the mitioriality of any man, foreign goveitiments are bound to
" respect its decision.

. . . ." If the conclusions iieietofore arrived at are correct,
" the Austrian agents bad no more right to take Koszta (who
" was nil Austrian but domiciled in the United States) fiom the
" soil of the Tuikish dominion thuii from the territory of the
" United States, and Captain Ingrahain had the same right to
" ileniaiid and enlorce his release as he woidd have had if Koszta

fiO ' had been taken from Atnerican soil and incaiceratu'd in a
"national vessel of tlu' Austiiati lOuiperor. in this (|Ui'stion,
'■ cotilineil as it is to tlu! United States and Austria, the place of
" the liatisaction is immaterial, unless the Austrian mimicijial
■' laws extended over it.

February 8th,
E United

cial Buildinc;,
tember 1st, 1897.

5ok their seats.

ivas dealing witli
it'cialiy with tliat
ief, tliat the local
litants as against
•oiiMnitted within
ferred to several

more which is a
,se lef'orred to on
ri> 8 of oui' own
;rian subject, not
ed in the Fnitcd
\' of his country.
I territory of the
of course makes

interfered on hi-;

t)f that kind, it
ire right, as they
rfeiecl in the ease
iry of the Uniteil
H of our brief in

from Wharton's
,11(1 48(1 :

so far at h>ast as
oad as well as at
;ith the rights of
w of nations they
has any foreign
between them, to
code which regu-
lutioiis determiiH'
'iits are bound to

1 at are correct,
like Koszta (who
States) f 1 0111 the
territory of the
til! same right to
ave had if Koszta
iiearceiated in a
In this (juestioii,
itria, the place of
istrian munici]ial

131

(Mr. Beique's Argument.)

. . . . " The conclusions at which the President has arrlved>
" after a. full examination of the transaction at Smyrna, and
" respectful consideration of the views of the Austrian Govern-
" ment thereon, as presented in Mr. Hulsemann's note are, that
" Koszta, when .seized and imprisoned, was invested with the
" nationality of the United States, and they had, therefore, the
" right, if they chose to exercise it, to extend their protection
" over him."

The examination of the authorities cited in the United States
brief in support of the proposition to which I have referred,
will .slunv that they do not support the proposition at all, and
, that to make away with the right of protection two things must
occur — that there be an offense against the law of the original
allegiance, and that the party be within the jurisdiction of his
own country.

Now, taking again the few cases involved in the objection on
90 the grounds of nationalit}' or domicile, the dispute may be
^ rediiceil to the following propositions : —

As to Cooper, so far as the " Grace," the " Dolphin," and the
" W. P. Say ward," are concerned —

First, is Great Britain to be debarred from showing that a
person alleged to be the owner was not the owner, though the
.ship was registered in his name? I think I have shown that
the evic'ence adduced in that respect is jierfectly legal, and that
Great Britain cannot be so debarred from showing that Warren
was really the party interested.

Second, even if (,'ooper is to be considered the party inter-
ested, he heir';; a British subject, and as such under the laws of
Great Britain, competent to own British ships, is h.c to bo
deprived of Her Majesty's protection when such vessels are on
tlie high seas ? It seems to me the (juestion finds its solution in
the mere statement of it.

As to Frank for the " Black Diamond " in 1886, claim No. 5'
and Alfred Adams, claim No. 8 : —

First, his interest being limited to that of a partner in the
registered ve.s.sel, are the United States to be allowed to go
behind the register? I have already called attention to the
teriii.s in which the government of the 'United States has reserved
the right to raise the ([iiestion of its liability-. The wording is:
" In liny ease where it shall be proved that the vessel was owned
in whole or in part by a citizen of the United States." This
slumld be lather narrowed than extended, aiul therefore it does
not apply to any interest in any vessel. Moreover, on reading
the British .Merchants' Shipping Act, what is referreil to is
interest by way of ownership in a vessel, I do not think that the
British Merchants' Shijiping Act prevents anybody from being
interested in the venture of a vessel. It ainounts to entering
into a charter for the vessel, and we have in fact referred, I
believe, to authorities on that point in our written argument.
The British law permits such charter parties to be made between
foreigners and owners of British vessels.

Second, Iceause the ves.sels in whose venture Frank was
interested were British ve.ssels, carrying the British Hag, and it
is a well-known rule of law that a ship in time of peace is national-
izeil by its papers which are conclusive as against foreign nations.
Third, because Frank, when tlomiciled in Briti.sh territory
was entitled to tin; protection of the British law.

Fourth, because the United States have no right or status to
enquire whether a foreigner is entitled to own Britisli ships.

We have referred on pages 44 and 45 of our brief as an
authority on that point to Wharton, paragraph 327 :—

132
(Mr. Beique's Arguiiiont.)

" A eertificato uiulur tlio authority of tiie United States must
" be taken by i'oreinjii powers as fjemiine, aTitl can lie impeacbed
" by tiieni onl^' by application to the government of tlie Unite^l
" States. This has fieen heltl as to natiiraii/ation certifieati'-.
" (tiiipvd, section 174 a), and the same principle as was held in tli.
" Viiginius case (Kiijira, sec. ;12?), applies to ])apers certifyiii_
10 " under the authority of the United States tliat the vessel lioi<lin::
" them is a vessid of ilw Ignited States. If such papers iii-
" fiandulent, the parties forging or wrongfully using them ar ■
" liable to punislime!it in the United States, and the Unite i
" States will not pennit them to be employed as the basis of ,i
" claim agaitist foreign powers. But the United States must \i.
" the sole judge of their validitj' so far as concerns proceedin^^
" on the high seas. \o foreign power can lie permitted to deter
" mine ns to such validity (sui>rii, ss. .S2."), tf).

Fdtii, because even if Frank was not to have been deenu'd
20 entitled to ba\-e an iiitrrest in the venture of vessels, sueli
interest would have been forfeited to the benetit of (ire.ii
P>ritain. All thes- i masons, except the first, applj- to Ale.Nand. i
McLean, with this ditl'erence, tliat bis interest instead of bein-
in the venture of the vessel was that of part owner, iircht. i.
in connection wiih the interest in the venture of the " Pathtindei
occupies also the same position as Frank, with this e.\cepti(jii
that be had beeome a British subject before the sigtiing of tl, ■
Claims Convention. As to Daniel McLean, the rjuestion seelll^
to be so con(•lu^ively settled by bis papers of re-naturalizatinn
30 that 1 need nut dwell any more on tiie law as to his case. Ii
not having been suggested that any "f the vessels were iiavi
gate(l by Ignited States citizens, the olijection does not apply ~'i
far as niembers of the crews are concerned.

I liave alieaily referred to the following paiagraph, to le
found at page ."):J of the Tni'ted States brief: —

"Cooper was, at the time he became the legal owner of tlii--e
" vessels, and at the time of the seizures (pioad the United Stati n
" and in their relations to bim as against (Ireat Britain, iiii
" American citizen, and as such bis ships, as we .shall see, weiv
40 ' entitled to carry no flag but that of the United States, aii'l
" were not even entitled to iiritish registiy."

Three propositions are involved in this paragraph : First
that because Ctxipt'r was domicileil in tlie United States he was
f|Uoud the Ignited States and against (Jreat Ihitain an Ameiii'aii
citizen.

Second, that his sjnps wete not entitled to British registry.

Third, that although he never renounced his British allegiance,
his ships, becatise of his domicile, were entitled to carry no tin-
but that of the I'nited States.
50 ] woidd like my learned friends to reconcile these prop i-

sitions with their statement which we tinil on page IG of the saiiii;
argtnnent, that citizens of tin; L'nited States wlierever domicileil
are not persons on whose behalf (ireat Britain is entitled tn
claim compensation from the laiited States. t)ne can banlly
see why the jiositicMi of tireat Britain shoidd thus be atVecti'l
quoad Coo|)er, becuirse of his domicile in tiie United States, ainl
that tlie position <d' the Fniteil States shoidd not be the same sn
far as Bechtel, Frank and Alexander MacLean as American citi-
zens ih)iniciled in British territory are concenieil
60 It is ([iiite evidetit that national law is here somewlml

moidded to suit the purposes of the United States

I have shown b\' referring to the liritish .Merchant Sliip]iiiiu'
Act that (hooper was entitled to own Biitish vessels. A refn-
ence to the Uevise(i Statutes of the United States will disprove

Jnited States iniisc

can lie impeaclu'd

eiit of tlie Unites i

i/atioii ci>rtificati' ,

as was lii'ld ill tlh

papiTs certifyiii,

tlio vessel lioldiii:^

f sueli papers ai

y usinir tlicin nv ■

;, and tlie Unite I

as till' Ijasis of ::

I'd States must li.

icoriis proceediiii.'^

pel iiiitted to deter

lave been deeiiieil
of vessels, sii"li
lieiiefit of (ii'e.ii
pply to Alexand. i
t instead of beiii-
t owner. lU'cliti 1,
f the "Patiitilidei,"
itli tlii-i exeeption
the si;;nini; of tl,"
he .|ilestion seeiii>
)f le-iiaturaiizatinu
IS to his case, it
ve>.sels were navi-
does not apply ~ii

,' painyraph, to 1 .■

vij^n.] owner of tlu--r

d the United States

Great Hritain, an

we .shall see, weiv

United States, and

])ara<Traph : First,
liteil States he wa-
>iitain an Aiiiei icaii

liritish re^Msti y.

s liritish allei^iance.
led t(j carry no tlnu

oneile these prop i-
pa^fe 16 of the same
wlierever domicile i
itain is entitled to
i. One can haidly
dd thus he atVecteil
! Unite<l States, aiiil

1 not he the same sn
in as American ci li-
ned

is here soniewliiit
>lates

Merchant Shippiie,'
h vessels. A refer-
States will disprove

133

(Mr. Beique's Argument.)

the contention to be fou. ' in my learned friend's brief, that

althouefli Cooper never renoiint. 1 iiis orij.dnal allejrianee, his ships

because of his domicile in the United States becainu American

p-aperty. I, of conrse. in referring to the United States law, tio

so subject to correction on the part of my learned friends, anil I

invite them to point out any material sections of the statute

; which 1 iiiav leave out in the citations that I am going to make.

I intend to refer to sections 41:J1, H.S2, 41.S8, 4U{4, 41.S6, 4142,

|414;5, 410.") and 41()(). All these sections are, 1 believe, most

[important, and have a great bearing on the present contro-

( versy.

. "Sec. 4Un. Vessels registiM'od pursuant to law, and no

I" others, except as shall be duly qualified, according to law, for

["carrying on the coasting trade and tislieries, or one of them,

' shall be deemed vessels of the United States, and entitled to

'the lieiietits and privileges appertaining to such vessels; but

' fliei/ xlidll not oijui/ the. mime loiujcv IIkid t/wi/ s/kiU continue to

' be uliolli/ ou-iu'it III/ citizens und to he eoniindixleil hi/ u eitivn

' of the I'niled St((les. Anil oijiccrs of cetiKeln of the United Stutes

', " ah'dl in alt cuKex be citi:ena of the United States."

As apj)ears fioiiithis section, a necessary coiuiition for the
registering of any Ignited .States vessel is that its iwner be a
, Uniteil States citizen, and it seems to iiie that what is conteni-
; plati'd liy United States citizenship is evideiRly a native born or
at least, a naturalized citizen and not merely a doiiiiciled citizen.
This is made clear by subsequent sections of the same statute.
Section 41. '12 is as follows : —

"See. 4i;^2. lV,s',sr'/.s liuilt within the United Slates, and,
" belonc/ini/ tcholli/ to citizens thereof and vessels wliich may be
' captured in war by citizens of the United Sttites, and lawfully
" condemned as prize, or which may be adjudged to be forfeited
" for a breach of the laws of the ("nited States, being wholly
" owned by citizens, and no others, may bo registered as directed
" in this title.'

AiiDther essential condition is that the vessid be built in the
United States, except it be condemned as mentioned in that
statute.

"Sec. 41.'].'). No vessel shall be entitled to be registered, or
" if registered, to tile benefits of registrj-, if owned, in whole
" or in part, by any citizen of the I'nited States, vho usuall;/
" resiiles in a fpreiijn countri/ during the continuance of sucli
" residence, unless such citizen be a consul of the United States,
" or an agent for and a partner in some Ikjiiso of trade or co-part-
" iiersliip, consisting of citizens of the United States actually
" carrying on trade within the United States."

Tlieiefore, under this section, lieci.tel, and Alexander McLean,
as long as they reside in British territory, were disqualified to
own American vessels.

Mr. Dickin.son :— Or British vessels; they were distpialified
from registering in either place.

.Mr. Bei(|ue: — Section 41.S4 is as follows:—
" No vessel shad be entitled to be registered as a vessel of
" tht! Uniteil States, or if registered, to the benefits of registry,
"if ovned in yhole or in partbu any person naturalized in
" the United States, and residinij for viote than one year in the
" eon iitr;/ which he originated, or for more than two years in any
" foreign country, unless such person be a consul or other public
"agent of the United States."

Again a <lis(|ual:fication for Alexander McLean, although he
was a iiaturalize.l citizen, as he di<l not reside in the IJnited
States, and went to reside in Briti.sh territory, wdiicli of cour.se

.. p-

;m1

,i;,-'

rrllfliP

- ~%

1S4

(Mr. Beique's Arj^ument.)

he was (loirij>- wlion lie was navij^atini; Britisli vessels as master.
The .soctioii proceeds :

" Notliiiifi; contained in this section .shall be construed to prc-
" vent the rcgi.sterini^ anew of any vessel before registered, in Ciis.j
" of a .sale tliereof in good faith to any citizen resident in tln'
" IJniteil States ; but satisfactory proof of the citizenship of thr

10 " person on whose aecoiint a vessel may be purchased shall hi;
" e.xhibited to the collector, before anew register shall be granted
" for such a vessel."

" Sec. 4130. The Secretarj- of the Treasury may issue a
" register or eiirollinent for any vessel built in a foreign ci)untr\-,
" wlienever such vessel shall be wrecked in the United Stat('>
"and shall be purchased and repaired by a citizen of tlie Unit,.,|
" States, if it shall be |iroved to the satisfaction of the secretarv
" that the repairs jiut on such a vessul are ecjual to t!'"ee-fourtli>
"of the cost of the vessel when so repaired."

20 "Sec. 4142. In order to the legistry of any vessel, and oath
" shall be taken and subscribed by the owner, or by one of tli.-
" DWiieis thereof, bi'fore the oflicer authorized to make such
" registry, deelaring, according to tin- best of the knowledge and
" belief of the person so swearing, tlu! name of such vessel, lui-
" burden, tlie place where she was built, if built within the Unite. j
'■ States, and the year within which she was built ; or that sin-
"has been eaiitured in war, specifying the time, by a citizen of
" of the United Slates, an<l lawfully condenuied as prize, |)rn.
" d\ieiiig a copy of the sentence^ of condemnation, authenticatei]

30 ' in the usual forms ; or that she has been adjudged to be forfeiti'l
" for a iireaeh of the law^ of the United States producing a likr
"copy of the adjudication of forfeiture: and declaring his naiin'
" and place of at'ode, and if he be the sole owner of the vessel
'■ that such is the case; or if there be another owner, that tluTc
" is such other owner, specifying his name and place of abud".
' and that he is a citizen of the United States, and specifvinir
" the |iroportion belonging to each owner, and wln'ii an owrii r
" resides in a foreign country, in the capacity of a consul of the
" Utiited States, or as an agi'iit for and a partner in a liouse or

40 " e<ipartnership consisting of citizens of the I'^nited States, that
" such IS the case, that the person so swearing is a citizen of the
" United States, (U((/ </(((< llioe ix no f^uhjcct or dfhe.n ofumi
" fiiii'ijpi priDce iir ntutc, dlirdli/ or Indurcth/, h;/ 'tea)/ offriis/,
" (■oiiii'loHT or otlicriritic^ 'niti- rest I'd in sacli irt<f<i'l. or lii. th-'
" pro/iln or issues fliireo/'; and that the master thereof is a
" citizen, naming the master, and staling the means whereby or
" manner in which lie is a citizen."

From this it clearly ajipears that the Amei'ican rule is mueli
more stringent than the Ihitisli. Under this Inst section

50 foreigners are not entitled to own even an interest in the ventuie
of the Vessel.

' Sec. 414.'!. — if any of the matters of tact allegeil in theoatli
" by an owner to ol^lain the registry of any vessel, which, within
" the knowledgtMjf the party so swearing, are not true, ther.'
"shall he a forfeiture of the vessel, tou'ether with hiM' tackle.
" apparel and furniture! in lespiict to which the oath shall have
" been maiie, uv of the value thereof, to be recovered, with the
" costs of suit, of the person by whom the oath was made."

" Sec. 41(i/j. — No vessid which is registered, pursuant to anv
(JO " law of the United States, and which is seized or captured ainl
" condemned, uiicler the authority of any foreign power, or which
" by sale becomes the property of.a foreigner, shall bo entitled to
" or capable of receiving a new register, notwithstanding sueli
" vessel should afterward become American propert}' ; but all

13a

vessels as iiiastei.

construed to prc-
registerecl, in ciis.'
I resident in tlu^
citizensliip of tlic
irciiasud shall Ik-
r shall be j^rantol

iry may issue a
I foreJLjn country,
K' United Stale-
zen of the Unite 1
1 of the siccretarv
1 to t!'"ee-fourtlis

' vessel, and oatli
or by one of th.'
1 to make such
le knowledge an. I
f such vessel, lu'i'
witliin the Uniti-d
huilt ; or that shr
', l)y a citizen cif
ed as prize, pru-
on, authenticati'l
i^ed to lie foifeiti'l
s pioducini:^ a like
eeiarini,' liis nnniL'
ner of the vessi^i,
owner, that thiTc
(1 place of al)(id'',
!s, and specifvitii;
1 whi'ii an owMi r
of a consul of the
ner in a liouse or
nited States, that
is a citizen of the
or citizf-n of (I II II
', ht/ iniii of trust,
lYiixi'l, or In til''
ster theieof i-: a
neans whereby nr

ican rule is much
this last sectimi
test in the ventuie

alleged in the oath
ssel, which, within

: not true, there

with her tackle,
le oath shall ha\i'

covered, with tiie
I was made."

pursuant to any
1 or captureil aii'l
,'n power, or whieh

hail be entitled to
withstanding siuli

property- ; but all

1.0

(Mr. Beique's Argument.)

" such ve.ssel.s shall be taken and considered, to all intent-s and
" purposes, as foreign vessels. Nothing in this section shall
" e.xtend to or be construed to affect the person owning any vessel
" at the time of the seizure or capture of the same, or his
" executor or odndnistrator, or shall prevent .such owner, or his
" executor or adnjinistrator, in case ho regain a property in such
" vessel so condemned, liy purchase or otherwise, from claiming
" or receiving a new register for the same, as he otherwise might
" have done."

" Sec. 416G. — When any vessel registered pursuant to any
" law of ihe United States, shall, while slie is without the limits
" of the United States, lie sold or transferred in whole o:' in part
" to a citizen of the United States, such vessel, on her first arrival
" in the United States thereafter, shall be entitled to all the
" privileges and benefits of a ves.sel of the United States ;
" Provided, that all the requisites of law, in order to the regi.stry
" of ves.sels, shall be complied with, and a new certificate of
" registry obtained for such vessel within three days from the
" time at which the master or other person having the charge or
" command of such vessel is re(piired to make his final report
" upon her first arrival afterward."

On page fS7 and SO of the United States argument, it is
contended that Great Britain cannot claim on behalf of any
per-ion unless such person was under its protection as a citizen,
with a legal domicile (nitsidt; the United States both at the time
of the injury and the presentation of the claim. It is unnecessary
to say that we do not acquiesce in this contention. It .'eems to
me that the Convention shoulil be read as referring to the time
of the injury, and that if the claim was then good it has so
remained, notwithstaniliiig any change of domicile which might
have subsquently taken place.

On tlu! same page it is suggested that Copper, if entitled to
relief, should have applied directlj' to the government of the
United States, or to the courts of his country of domicile, and
that the position of Cireat Britain, in claiming on his behalf, is
inconginous, not to say absurd. I have no hcNitation in sajdng
that on the assumption that Cooper was really the owner of the
vessels, which as a British subject he had the right to register a.s
British ships, it would be a rather startling propo.sition that
Great Britain shoidd not be entitled to claim on his behalf for
the seizure and destruction by the United States of such vessels
in British territory, or on the high seas. That we would be
comjielled to have recourse to the tribunals and courts of the
United .States in such cases, it seems to me, cannot be pretended
for an instant.

It is well known that the rule applies only in cases where the
party resides it) a foreign country and for acts which have taken
place in that foreign countiy. Of course, in such cases we admit
that a British subject residing in the I'nited States wouKi be
entitled to redress or jiroteetion from (Jreat Britain only if he
had been deprived of the ordinary' pr(jtection aHbrded to Atneri-
can citizens under tin; municipal law of the country. That this
doctrine can be apj-lied to the present case it seems to me cannot
be pietetided for an instant.

Oti pages !)1 and 92 of the United States brief is the following :

" The question remains as to the effect of part ownership by
" an Ameiican citizen with a Biitish subject. If joint owners or
" pattneis, the whole claim must fail beyond question."

This somewdiat confident proposition is attempted to be sup-
ported liy the dictum of one of the Secretaries of the United
States — Secretary Fish. His words were these : —

]'i

4,i

Ijjl' ^ iPin^iipipvf

136

(Mr. Boique's Argument.)

" Tho rij,'ht to the protection of this government may In-
" acquired by birtli, Ity naturalization, or in some ca^ics an(l for
" some purposes by ijomicilo in the United States. No otlicr
" mode occurs to ine, nor do I now perceive tlie autliority of itn
" officer of tiiis government, except in virtue of a treaty or other
" positive legislation, to bring a new subject within the sphiM'c

10 " of its obligations. Least of all can 1 discern any faculty in n
" private citizen to spread the protection of his government over
"a third person by adopting him as a partner in a cominercini
" establishment in foreign ])arts."

Of course, this has !)(> liearing on the proposition ns applied
to the present case. It simply means, as I understand it, that ii
partnership in IJritish ("olumliia between a British subject and
nil American citizen would not spiead the prot(^otien of tln'
Unifi'd Stiites government over a Bi'itish partner. An authoritv
to the ell'ect tliat it deprived the British subject of tho protection

20 of his own country would be more to the purpose.

The American counsel close tlxdr argument in these words: —
" Whatever tlit; rule, liowrver, on this subject, the lluitcil
" States desiit's to urge it only as against those persons who have
" sufi'ered thcii' mimes to bo used liy American citizens, or havi'
■' iieiinitted the investments of American citizens, with them
'jointly, having the object in view to aid such citizens to violate
" the laws of their countiy under cover of such arrangements,
" and have befouled their consciences in the elibrt to sustain tlir
" frauds."

.SO 'rill.' iccoi-d discloses, it seems to me, that whatever was doin'

by way of owning interests either in vessels or in ventures nf
vessels by Amei'iean citizens, was done without any intention at
ail of violating any of the laws of the United States. It wiw
doni' in the ordinary course of business. Take the case of tlii'
" Onward " and tin- '' l"'avourite," us far as Alexander McljCiin
was concerned, it was done in ttie ordinary course of the partnei-
ship which existed l)etween him and .Mr. Spring, at a time when
the vessel stood in the name of Spring's fatlusr, who was a ihit-
ish subject, and at a time when it was not drc^amed tjiat the

40 United States would assume any such juris(lietion over Behring
Sea as they did afterwards. Therefore it was n(!ver intended to
use the e.\i)ression of my learned friends, to " befoul their con-
sciences " or to '• commit any impr()prii!ty," and surely it cannut
lie pretended, now that the arbitrators at I'aris have unanimously
maintained and <leclared that the United States were nil
entitleii to treat liehring Sea as a marc daunuvi, as was ilone, ainl
that it formed no part of Alaska territory ; it cannot be pretended
at this staije of the intjuiry that any impropriety was done by
persons, whether they wen; American citizens, or whether they

oO were British subjects, in going into Behring Sua for tlie purpose
of sealing.

These are the only remarks 1 intei\d to ofl'er to your
Honors on this cpi.-stion of nationality and domicile. They will,
I am sure, be valual)ly supported and supplemented by my learned
associ.iti's. But it seems to me that I hav(^ so far sliown that the
contention of the United States rests principally on this erroin'-
ous assumption that there was a violation of a municipal law ;
that section 1 !).■)() of the Revised Statutes was not only in forci-
quoad the present case, but had an extra territorial etl'ect, which

CO is not the case. I thirds I have demonstrated that there was no
such violation of any munici|ial law, that under the awaiil,
which is a di.'chuatory law, it has now to be ailnutted, that.
it was open to American citizens as well as to British suli-
jects to go into Behring Sea for the purpo.se of sealing. That

rninent may lii>
111! cases anil for
ates. No other
authority of nii
I treaty or other
ithin tlie sphiM'c
iiiy faculty in a
;ovornni''nt over
in a conunorcinl

sition as applioil
rstand it, that a
tish sulijcct aiiil
rotcction of tlw
r. An authority
r)f thi^ piott'ctiou
sc.

» thpso wonls : —
ji!Ct, tho Unitcil
KTsons wlio have
oitizoiis, or have
'.uns. with them
liti/.t'us to violalc
-.]\ arraiiij;enients,
)rt to sustain tln'

liatevcr was iloiic
)r in ventures of
, ativ intention at
I States. It was
^ the case of tln'
lcxantl(!r Mcljuan
se of the partner-
;, at a time when
who was a Hrit-
reanu'd that the
on over Uphriiii:
lever intended to
hefoul their con-
surely it cannot:
ave unanimously
■>tates wei'e noi
as was done, and
iiiot lie pretende(l
etv was done hy
or whether they
a for the purpo-.e

) oH'er to your

icile. Tiiey will,

te<l l>y my learneil

%v shown that the

V o\\ this erroiii'-

a muidcipal law ;

not only in force

orial etlect, whifli

that there was no

nder the award,

le admitted, tliiii

s to British sul-

of sealinj'. Tlmt

187

(Mr. Beique's Argument.)

even if there had been any .such municipal law, it could notatl'ect
in any shape or form Great Britain, or American citizens doud-
ciled within her territory; that tiie high seas arc quoad tho
vessels in question to be con.sidered British territory, and when
tho United States cutters seized these Britisli vessels on the
high seas it amounted to a seizure in British territory.

1 have shown also that, whether the United States be per-
mitted or not to go behind the flag or registry, it is limited to
matter of proof, to proof of ownership in tho vessel itself and
not in its venture, that the rules of international law have
to he applied, and tiiat Great Britain never renounced the benefit
of any international law.

Before proceeding further T desire to express my regret at
having, as I may have to do, in speaking of a great nation like
the United States, to use words which in themselves may apjiear
offensive. My justitication is that I sincerely iielievo tliat a
propiM' ]iresontation of the claims which have been entrusted to
my learned associates and myself d(!iiiaiids it. Let me say,
however, once for all, tliat any expression I may make use of is
intended to apply in its strict legal nu'aning and to refer more
to individual oHicials of the United States than to the United
States themselves. But whether the acts or omissions of those
ofHcials were deliberately preconceivec] or merely the I'esult of
gross errors or of negligence, the United States are eiiually
responsible.

In taking up the elassilieation of items of damages it will bo
hnnlly neces-^ury for me to I'efer at any length to the facts whicli
hnve been suiiinuirized in our written argument. I shall have,
hew ever, to refer specially to tho ground of defence of tho
boiled States as endiodied in their pleadings and which rests on
the contention that in making the seizure, etc., they acted in
good faith an<l imder an honest, though mistaken belief that
they were exercising a right.

'{'he ( 'omndssioner on the part of the United States: — I
cannot sit here to hear that pioposition contravened.

Mr. Bei(iue : — The Tiefenco is tliore for what it may be worth
anil 1 think it was attempted io supptu't it in the American brief,
and therefore it seems to me that it is iii}- duty to answer it for
the inirposo of showing that it is a ca.se where aggravated
damages should be awarilijd.

The (,'onMid.ssioner on the part of tho United States:— I
caiuiot sit here to hear an argument that the Uidted States has
not proceeded in good faith.

Mr. Dickinson : — The answer in our opinion is so complete
that 1 would prefer to answer the charge upon the Record in the
oral argument, and if your Honor will permit me to suggest I
would prefer that .Mr. Beique be allowed to continue.

'J'he t 'onnni.ssioner on the part of the United States : — T cannot
sit here to hear that either of the.se great nations, (!ree.t Ihitain
01 the United States, have not proceeded in good faith. 1 tlo
nfit see that the Convention raises any question of that character.
Of course I see that your case fairly raises the questions whether
the otheers of the United States used that care which they
should have used in enforcing tho law as they understood it.

.Mr. lieique :— Well, perhaps I might qualify the expression.
My remark- ^'i'P'y to tho acts of tho officials of tho United
States (ioNciiniieut, but, of course, the Government is responsible
for the acts of its own officials.

The Uommi.ssioner on the part of the United States :— That
is another question. You may, of course, argue the fact.s fully
as to what occurred in Behring Sea and at Sitka.

I ' ™^'""^^"p"i"lifpppp'

138

(Mr. Boiqiie's Argument.)

Mr. BiM([Ut' : — I sliall linvu occaNion to rct'i-r to Mr. CarttTs
aiji;iiim'iit at I'aris ami to liis propositions as written down I'l.r
tlu' purpose of clearness ami which he aunouneeil on liehalf nf
iht? United States. It will app(-ar from these |)ropositions thiit
hu declared in exjtress terms that Ik* was not there and did U'l
desire to defend the nrrtjst of any of llie masters and crew.

10 '{"111* Commissioner on tlie part of the United States: — Tliiii

is another matter, 'i'iie proposition as put hy Mr. Peters w.is
entiicly fair — tiiat the Unittid States wen; endeavorinj;; to sii|i-
press till! huntiti",' of fur seals in iu'hrinjj Sea; hut hu did ridt
su;;j,'est that they were not proceedinj^ within what they thoULflil
was their right, aricl in i»ooi| faith.

Mr. r>ei(|ue : I do not .'•ay that the otiieials for the tiih^
lieiiij; wer(! enouncinj^ a pioposition in whicli they did imi,
heliuve, hut I say that they were enouncin;,' a proposition which
was contrary to the policy of the United States, contrary to tlir

20 policj' the United States had followed for years and years, an!
coutiary to the very opinion adopted hy previous Secretaries dl'
Stale and hy previous ollieials of the Government. When \vr
have to (h>al witii the (|uestion of damaj,'es it seems to me that it
hectimes material to exannne the facts, so that we can see hnw
the law should he a|)|)lied. It setwns to mo that wo are entitliij
to contend, as it was contended hy Mr Peters in his ahK;
aij,niment, that it is a case where ai,'gravated damages should In:
giaiited, ami that is the only purpose of my argument.

I take the written answer of the United States, and in thoM!

nt) answers to the claims they alleged : —

" iiiit it is averied on the part of the United States that tli ■
" said seizure was made in good faith hy the oHlcers of tlu'
■' United States within the line of their dot}', under tin; authority
"ami mandate of the nuinicipal laws of the Uuitecl States, mii'I
"such seizure was adopted in good faith hy tin; (Jovernment (if
" the United States as an act to restrain violation of the saiij
•' statute."

We join issue on that paragraph, which is fouml in everyone
of the answers of the United States. Of coiu'se I am veiy

40 an.xious to» avoid ami have no desire to use any oHeiisivd
language, and I am sure there is no occasion for it, hut it is
i."'mnheiit upon me, and I would not ho discharging my duty if
I Were not showing the facts such as tliey are for tlo purpose nf
npjilyiug the law which, it soiuns to me, should govern the cum'.
'I'ake the seizures of l.S8(i. They were at the time justili< .1
on one ground and one only, viz., that the United States had
exclusive jurisdiction over Heliring Sea, atid had acipiired that
right from Russia. It was on that ground alone that the HImI
was hased. In the lihid there was no attempt to raise any

.')() (|Uestion of protection of or property in fur seals. The onl\
allegation made in the liliid was the violation of Section l!)."iii,
which was thi'U used for tlu? pur[iose of nuiking Heliring Sea ii
TJKtr*; (idiisunc. Afterwards, as was shown hy my loarncil
associate, they hrought forward othiu- arguments from time to
time, namely, that they had exclusive jurisiliclion over Hehi'liii;
Sea for 100 miles from the coast horderiiig on that sea. and
finally that they had a right of propeity in the seals, hut thou
arguments not heing in their minds at the time of the sei/.uri";,
should not he taken into account for the purpose' of deciding on

(JO the result or the rights (jf lirit'^!; suhjects arising from such
seizures.

^'oiir Honors are familiar with the fact that the only seriiJiis
attempt to avoid the eli'ect of or negotiations for the treaties nf
US24 ami l.S2.') was that the words " Pacific Ocean " in the treatv

139

r to Mr. CiirtiMs
i'litti'ii down fdi'
iicimI on lifliiilf (if
|)rop()siti()nH tlmt
tluru and did n^ I
•s and crow.
m1 StiitL's:— TliMi
>• Mr. IV^ti'iN w.is
It'iivoriiij,' to H\\\}-
; but lie did ndt
'liat tlit'y thoui,'lii

Ills for till' tiihi'
cli tlmy did nnt,
proposition wliicli
's, contniry to tin'
rs and yeais, ini'l
:)iis Si'cn'taiiL's nl'
mt'nt. Wiicn \vi'
•cins to ino tliat it
\vp can .see Imw
it wo art! I'lititlnl
'I'tcr.s in Ills alilc:
laniagos should iiu
l^niiiiL'nt.
ati's, and in tlui^o

d States that tlif

IC otlicLMS of till'

tidi.M' till! authority
'nitcd Stati'-i, mul
lO Oovi'rniiient of
ation of the s;iiil

'ound in evciT iiiio
cour.si! I am vciy
ise any oHeiisivt!

for it, hut it is
iri,'in^ my duty if
for tl.o pur|)os(' iif
1 i^ovcrn the cnsi.'.
the time jiistitiril
Jnittid States liiiil
lad acipiircd tliut
)ni! that thi! lilii'l
'iiipt til raise liny
• si'als. Till! only

of Section ll.l.'iii.

nrr Hehriiid Sea u

liy my learni'il

nts from time to

tion over Mehriiii,'

on that .sea, ami
e .seals, hut thi'-o
111! of the seizuri'<,
isi; of deeiilinif on
irisinj,' from sucli

it the only serious
for the treaties of
can " in the treatv

(Mr. IJeiipiuH Arfjument.)

did not includi! Belirin;,' Sea. Flut this was not attempted until
IHDO. As early as Afiril, \SH7, the British Anihassadnr eom-
miinicated a very aide and stronfj despatch of Lord Salishury,
dated Septemher 10, IH^S?, which is printed on pa;,'e 82 of tho
Record, in which he took very strong ohjection to the courso
that had lieen followed, lirinj,'inj; to the notice of the otKcials of
the (Jovernmeiit of the United States that the proceei!ini,'s wero
liiiM'il on Section 1!)')(1, ti'eatin^ nelirin;f Sea as a iiKiri: clintmtvi
111 (i protesting' aj,'aiiist a conttjiition of that kind. Ho called
icir attention to the position they had previously taken as
.•ii;ainst iiussia, and what was the answer ! There was no
answer ^'iven at all, and the ((iiestion was approached over two
years afterwanls h}- Mr. Ulaine, who then, in I.SDO, disavowed
that Ltround for the pur]iose of taking; another ijround. It seems
to me that we are entitled to ask your Honors to look at this
(|iiestion somewhat as if it was hutwei n private liti;,'ants who
iiiif,'lit have been of the host faith pn ible so far as they wero
ciitici'iiied, hut who would neverthele.ss be responsible for the
acts of their emplo) es, if those em]iloyes acted neoliuently or
inili-^crcetly. if the employes wi'ie j,'uilty of j^ross ne^li^'ence,
whether the principals weru in jjooil faith or not dues not
seriously all'ect the question. It would nevertheless be a case
for aj,'o;ravated daiiiae;es.

Here we have the case of an ofliciiil of the [Jnited States flov-
ernment takinj^ a position which he afterwards disavows, which
is contrary to all international law, and which could not bo
defended by .Mr. iilaine. Therefore, it seems to nie, that we are
entitled to tho benefit of those facts.

I niiyht also urj,'e this j,'round, that after the proti'sts were
made in 1.S.S7, Mr. Hayard of his own motion, without beini(
asked by the IJritish (iovernment, announced that tho President
had j,'iven orders to liberate the vessels. Jt sciems to nie that,
under the circumstances, it amounti'd i an implied admission
that at least the seizures were not wuii.inted and that he so
considered the matter.

In that connection I would like to refer jour honors to the
4th volume of the American reprint, pajfo 111, where iij pears a
letter from Secretary Boutwell bearing on that question is early
as 1S72. • He says :—

' I do not see that the Uniteil States woulil have the jiiris-
" diction or ])o\ver to drive ott' parties going up there for that
" purpose (to take fur seals) unless the}' make such attempt
" within a marine league of tho shore."

Such was the position taken b}' Mr. Adams and the jiosition
taken throughout by the United States. Such was the
position taken by Secretai'y Boutwell, and such was really the
position taken by Mr. Blaine in l.S'K), except that he raised the
other question that the United States were entitled to a right
of protection, that they had a right of propeity in fur seals, and
also the question as to whether Behring Sea was comprised in
the Pacific t)cean.

Then 1 wish to refer to volume \'l of the American lleprint,
to the argument of Mr. Carter on page 25G. I find in the
pro|(ositions which he had drawn up as as.serted bj- the United
States (loveriuiient the following : —

" Fifteenth. In respect to the seizures actually made and
" decrees of condemnation thereon, the United States perceives
" no [lai'ticular in which the}- are irregular, unjust, or not ilefen-
" sible as an exercise of the right of necessary self-defense. It
" ilors not defend any sentence of fine and imprisonment
" imiwued. upon any citizens of other nations for engmjivg in

i.'4

'■IV

; 1 ,. '

[■I

mmmm

I :f:

140

(Mr. Mt'ii|iio'H Ar^'uiiifnl.)

" jtehigir xcdiinii; tmt insists tlmt iiiiy inviiliiiity with wiiicl
" siu'ii si^iiti'iiee limy lie iitl'i'ctiMl. lim no tfiniciK;}' to impair tlir
" viiiiclity of II (•iitiilcinimiion otlu'rwisf viiliii."

Ilt'i'c is II fair iiiliiiissiori on tlio |mrt n\' tlio (ioveniiiiciit ut'

till" I'liitiui Stiitfs ill tliis very I'oMtiovcrsy tliat tiii-sc iirrcsts iiiiil

iiii)>risoniiii'iit of tiii- iiiustcrs, niiitcs uiul i-rcws wrrc indcfi'iisilili',

10 iiiiil tliiit tlu'if is no iittriniit on tlic piut of tlic Unitcil .Stiitcs to

(il'fclll! tiu'lll.

'I'll!' ( 'oiiimissioiit'r cm tin- jmrt of lii(( I'liitcd States; — Do

till" counsel for tlic I'niti'ii States lioiij otlierwise here '

Mr. r>i'iniu': We iiavc not hearil tlieiii yet in tlieir oral
ar^imient, Imt 1 thinl< tiiey iiave tai<en anotiier position. Thex-
have clearly taken thronj.'li their arj,'iiiiieiit the position that ii
is not a easo where any (laiiiaj,'es, except the mere value of the
ves-»l anil possilily interest, can he awariled, It seems to ne
that this ciiiiteiiiion i- in coiitlict witii the ailm'ssions contaiiiril
-0 in this proposition of Mr. Carter.

Taking,', however, the most lenif'iit view of the suhjeet tiiat
it is possilile to take, the Uiiiti'd States could not iaithavi- known
that tlieir elaiia was at host a very donljtfiil claim, and that
(ireat Uritain woiihl not in all proliahility admit its corrt'ctlles^.
In \ iew of the prc'vious history of tln' >,iili)ect, the least that

could have heell expected of the I'lliteil Stated was that I'efor.'

as-.ertiiiL; such claims, asserting them as the transferees of Kii>-<i)i,
and ahove ull asserting,' them hy force in the mannrr adopted,
the I'nited Stall's siioulii have notilieil (Ireal ISritain nf thrii'

•5" intention and invited a iliscnssion of the iiucstion.

The Commissioner on the part of the United Statics; -Mr.
IJeiipie, 1 cannot he;ir that. Sii. That is a ipiestion which con-
cerns the nation herself ainl not thi.i trihuiiial. As far as I am
concerned, 1 clo not propose to consider it.

Mr. lieiipie : (If course, if we are not to he heard on what wr
deem to he a material part of the case, I will liave to sit iluwii,
hut witl.i all defercnct^ 1 say that I have shown that the issue is
sjiecially raised l.y the written pleiuiiiii^s <if the counsel for the
I'liited Stales, and I have avoided, and vim'V j^'iiardecUy avoided

■10 iisiiii; any ulleii^ive terms. It seems to mi' in statiiij,' what 1 do
now state, 1 am perfectly vTithiii my ri;4ht and am doin;; my
diit}'. I am not here to claim rights, hut I nm here to nischar^"
duties, and 1 would feci innvorthy of my position at the 15ai' ii
I should coma iicro and ari,'ue a case of this nature without
puttiiin' the facts such as I consiih'r them to he, from the record,
hefore your honor. 1 sa\' ai,'ain, that 1 am referriiiLj to acts of
otiicials of the tiovernment of tin.' I'nited States, acts that were
done iiy the Secretary of State of the United States or pos-
silily the Under Secretary. .Mr. I'myard was then the Sccretaiy

•"iO of State of the United States, and I have no doiilit at
all iti my mind, ih.ii Mr. linyard entirely disa^jreeii from tliosi'
acts. 1 have no douht that he himself helieved tiiat the Uniteil
States liad i^'oiic too far. The a.ssumption of extra territorial
jiirisdietioii liail heiii made, and whether it was made hy the
Uniler-Seerelary of State or ly any other ollicial of the
"government, it was made nevertlieless, and what was more still
sei;ious the Seizures of i'.ritish vesaels were made in conscfpicnri'.
The Commissioner on ihe parted tJie United States : Have
you any authoritie.s to show tiiat the U.iited States was hound

'•0 (,() j^ive notice hefore makiiiLj thesi' seizures ' So far as J know
of the method of proceediiiL,' hy either t,'"^'ernment, - the
United States or (ireat IJritaiii, notice has not heen
i^'iven. Have you any authorities to show that the United
States was hound to give notice hefore making these seizures:'

141

lity witli wliii'l
y to iiiip.iir tlir

(ii)vernin«nt nf

tllcsc (ll'I'CMts llMii

•rif indclViiMilili .
UiiiU'il Htiitus tu

lc<l States :~|),.

I! luTf ?

ft in tlit'ir orjil
IKisitioii, Tlicy
position tliiit ii
;VL' valui' of tile

It SCl'lllS to Illr
isioiis ColltlliMnl

tiio sul)jef-t tii.'ii
Init liiivc known
elfiini, imil tliiU
t its correct ni'ss.
t, tlie least tlmt
WHS tlmt I'l't'oT''
ifei'iM's ol' Uu^<ii^,
inaiiMfr (uloptnl,
lii'itain of tlicii
II.

I'll States:— Mr.
stiori wliic'li con-
As far us I uiji

janl on wliat wt
lave to sit liown.
that tile issue is

eo\iiis(i for tile
mledly avoideil
tatin^ what I dn
il am iloini; niy
lere to riiseliari;'
ion at the liar ii
nature without
from the rccorij,
I'rrinij to acts of
s, acts that were
i States or pos-
en the Secretni y
ve IK) (loulit at
reeii from those
tiiut the Fniteil
extra territorial
as made hy the

ollieial of the
it was more still
• in consef|Uenre.
1 States: Have
tates was liound
o far as J know
)vtriiment, - tin'
has not heen
lint the Unitcij
liese seizures:'

(Mr. Bei(|iie'H ,\r;;uinent.)

Mr. Iteiipie : I am not ready to ;,'iv(! any authorities going

to that extent.

The ConimisMioner on the part of tin' United States: If it
was 11 nieri' act of unj,'rHcioirsness on the jiart'of the I'nitml

to listel\ to coliiments of that'

Stales, why should we sit iiere
character :'

.Mr. I>ei((ue: -It is with re;;aril to the (pU'stion of danui;,'e.s,
and 1 am f;oin^' to show that there wai a deiiiaml made liy
(Jreat Britain as to whether tiie rnited States luid the intention
of eoiitiuuiii;,' thesi' s'i/ures, ami in answer to that the United
Stales aiiniiuneed that the matter was imder consideration ; they
virtually said tlmt they would comiiiunieate their decision, hut
insli'ad'of commimie itiui,' their decision they proo'eded to make
further sei/.uii's. .\;^.iin, su|)p'ise that these facts nrosi' in a
cas" lietween private liti;^iints -and it seems to me from a Icffal
point of view, we are entitled to deal with the matter
as if the facts had taken placu hetween private liti^ants-
wouM I not lie entitled to refer to these facts, ami woidd not the
manner in which the whole thinjj; occurred and the history of
the u hole transaction he material on the (piestion of dama;,'e.s ?
The t'onuuisnioner on the part of the United States: — 1
make no issue with you as to the facts as they appear on tlie
I Record, or a^ to any stateuu'iits of law wdiich you can jiroduce
J whowiuf^ that tireat Britain remonstrated with the (hiited
States for nnikiu',' these seizures, or that the United Staten
violated international law. I do not (piestion your ri<,dit to
show that, liut you cannot expect me to sit here and hear coun-
atd discuss the graciousness or uni^'rHciousness of the acts of
either of these ^'rcat nations, uidessthe llecord calls for it. I am
perfectly well awaro tint in all these cases, so far as lioth gov-
ernments are concerned, and so far as other governments are
concerned, that the conditions are fre(piently s\ich as to give rise
to suggestions of that character, hut it does not seem to me that
this is the place for counsel to nnike such ohscrvitions.

The t'ommissioner on the part of (Jreat Britain : — Perhaps I

rnay be pardoned for saying a word. I have been appointed to

<li^ act, but once being ap[)ointed, 1 am a Judge competent, I think,

4. to pass upon the conduct of (iroat Jiritain, provided her conduct

'i\ were properly in issue in tlio case. Whether it is .so or not would

[•[ of course be a matter to bo decided oidy after hearing counsel.

■6 Perhaps Mr. Heiipie, you will allow me to a.sk : wduither when

Great Hritain consented to the tirst reference whereby the (pies-

tion.s of right went to the Paris Trihunial, she did n(jt thereby

impliedly admit that the claims of the United States were made

in good faith, for otluirwiso the parties would scarcely have

submitted to arbitrate at all. Of course this goes to nogatii'e

your argument rather than to prevent you from making it.

Mr. Beique : — Of course I am bearing that distinction in

i& mind and I have pointed out the distinction. To this extent I

caiuiot but agi'ce with wdiat your Honor has stated ; I cannot

imagine that if (Jreat Britain had believed that the United States

as a nation was acting in bad faith, that the matter would hare

been arbitrated in the amicable way it was. But I cannot see

that the reference to arbitration was in itself an admi.ssion that

the officials of the United States had not committed acts which

might call for aggravated danuigcs. For instance, I take the order

that was issued by Mr. Garland, the Attorney General,

ordering the discharge of some of the,se vessels. Here are

officials of the United States government at Sitka who

take no heed of this order. There may appear on the record

an excuse for the refusal to act upon the telegram of

Mi
I -I

f'l

,ii' <
-ill

' ■ a

142

(llr. Iiciiiuo's Arij;iini('iit.)

tlic Uiiiti'il States Atti>i-m'y-< ii'iirral. 'riic "lliciiils a|ipiir(>ntly
lii'lifvcil that it WHS H l'oi';^i'i| t('li';;ram ; Imt sMp]ii)«((' for tlu' i)iir^
OOM' of my .■u'j^iiint'iit that tln-y liail no i'X( iisi' ol" that kim!
iSiipposc tliat in tii' i'aci' of that ti'li'L;rani, the ;j;onuin('iifss of
which was doiiliti'il, they ilisii'^arilcil the instrnctions, and not-
witli.staniiint; tlic iiistriictions pi-occciji'd to oondenin tlie vessel

10 and to apin'opriati' the vessel as the property of the Unite I
States; while the ^j^ood faith of the (lovernineiit of the llniti'd
States would iui fully admitteil, nevertheless their resjionsihiliiy
would arise heeause of tin; aets of their ollieials. (If course,
your Honors, if I use the expressicdi " had faith," 1 tilwaj'suse it-
iit its strict lej^al iueiinin<^, and I d.) not want it to lie interpn-ted
in any other sense.

Tlie (.'oinniissioner on the part of the ITnited States: — ^Itliitik
you, perhaps, luisunilerstami nie, .Mr. Heiipie. So far as tiie
proserd propositions are concerneil they are raised hy the Record

20 and there is no question aiiout your iiein;^ allowed to ^'o
into them. My nnnd was directed to another matter.
There is no doubt, you may ari,'ue, that these seizures
were "Dade witliout notice to the liritish Governnu^nt. Now.
have J on any le^al authorities showing that as between nations,
the United States t,'overinuent was hound to j^ive notice before
making seizures / If you have such authorities it is lei^itituate
for you to to produce them. What I oiijecteil to was your
sui,'i.;estion, not supported by authorities, reilectinj; upon the
Ciovernnient of either nation — for 1 am sworn to stand

IM) indiU'ereiit as lietween these two <^overnments. In this case
all sujj!,'pstions of that kind, one way or the otlier, are not
necessary mdess tiie Record raises them. Tl-ere is no doubt
that if you can cite any authority, your ari^ument would
be perfectly legitimate U))on the point. I do not think that any
one would deny you the rij;ht to make the proposition which you
last nubtaitted.

Mr. Uei(|Ue: -I thitd<, your Honor, that 1 shoidd not be
called upon to }jive authorities on this point. Of course, one is
not always .nble to find authorities for all projiositions that he

40 feels warranted in ailvnncii\j;. lint 1 dare say that your Honor

will aj;ree with me, that no aiithoiity should 1 x[)ee(ed fi-oni

ine on the (juestion that I am ;;oin;.; to lay before your Honor.
My ar;fnmeut is Ibis: that the.se cases should be treateil in
several res])ects as if they wei'i- cases between private liti;;aiits
— and I am not aware that the law of nations ditiers in that
coiniection. from the municipal law of ,'ill civilized eduntries
Now. in matters between ])ri\ate litii,rants, wlien a doubtful
ri;;lit is attemjited to be asserted, and when it is jittempted ti)
n.ssert that li^ht in a violent manner, can it l>e deiiieil that it

50 wouli] be a matter of very serious a;,'fjravation, if the private
party a.sserted that i'i;;ht violently, when it was perfi'ctly open
foi- him to ;,M\i' notice that he intended to iissert it, and po.ssibly
lr)y ;ji\in;,^ such notice he nn;;ht have iivoidecl the necessity of the
uitlictioii of such hardships .as appe.ii' on the Record, and which
.show tb.'lt cert.iin persons weri' sent jidrifl on the open sea some
l.">()0 miles from their residences. I say that any court of jus
tice, without my cit in;; any authority wbatexcr, would j)rf)nouiu!o
a;;ainst a private liti;;ant. who liad asserted his ri^^hts or sup-
[Msed ri;,fhts in such a \ iolent mn'iner, if he had done so nnwar
rant.ibly; and 1 say that the fact he had not ;;iven notice w<aild
be .1 matter of very serious a;;;;ravation of the damajjes. It is
not incumbent upon me to cite authorities, because the rule 1
have been ri'ferrinjj to, is the rule of couimon law as well in
the Unit('<l States as in (Ireat Rritaiii, and in every civili/.e(l

♦JO

J4:{

'iais nppiiroitly
ose for tlif jiur
ii' of tliiit kiiiil
j^i'imiiiciit's.s of
ictiotis, mill iiiit
t'inii t\\{' vessi'l
(tf till' Uiiitiii

it of tlu' IJllitlMl

ir ri'.s|ioiisil)ilii y

lis. Of coiirso.

I fiiways list! it

1)1' iiitcrpri'tt'il

States : — ^I til ink
So far as tlii'
il liy the Ri'cord

allowed to '^u
iiotlier matter.

tiiesi! seizures

iM'llllU'llt. Now,

letweeii nations,
ve notice before
s it is le;;itiiiiati'
eil to was your
L'tiii;^ iijion tile
worn to stuiiil
<. Ill this ease
' other, are not
re is no doiiht
rf^uiiieiit wouM
t tliiiiU that any
sition which yon

should not lie
Of course, one is
iiositions that he
hat your Honor
i> expected fl'oiii
ore your Honor.

1 he treati'd in
private liti;iants
IS (litlers ill that
ilized countrieH.
ilieli a doillitful

is attempted to
)e denied that it
I, if the private
,s perfectly o])eii
t it, and possihly
(•necessity of the
ecord, anil which
he ojien sea some
iiiy court of jus
would pronounce
lis rii^hts or sup

I done ,s() \niwar-
veii notice would

dainaf^eH. It is
•cauHc the rule I
law as well in

II every civili/ed

(Mr. Beii|Ue'.s .'Vr^'ument.)

couiitrv. It will he iiicumhent niioii my leiirned friend, the
counse'lfor the United States, to show any international law,
dirterinj: from that rule, an interiiMlioiial law under wliieh. in a
case of^dnliious ri<,dit of tliis kind, ;> was not ineumlieii' ontlie
United Stales to notify (Ircat nrita. i of the action they in-
teniieil takiii;^.

The ('onimissii)iier on the part of the United States : -There
IS no ipiestion, Mr. Bei(iue, hut that is a lej^iti unite ari;unieiit.

Mr. Heiipie :--I would he most ;,'rieveil that your Honor
would appreciate any portion of my ur^'ument as not heiin,' a
lei;itiiiiat.e ari^'ument. I came here deeply conscious of the
position 1 occupy and after Imviiig fully matured tlu' po.sition 1
sliotijii assume.

Now, if your Honor will refer to the very ahle ar^'ument

presented on behalf ()f the United States in the Alabama

claims at (Jencva, y.) i ,vill timl, that the United States

20 counsel (lid not coiisiiler themselveH fettered in their

. lan;,'ua,L,'e. and did not hesitate to use th(> strongest

•.lan^'uai^e that could be used under the circumstances

. •.'•ga'inst"' (ireat liritaiii. They used that lani,Miai,'e for

'.'the purpose of holdini,' (iruat Britain responsible for the

A»cts of her ollicials which were acts of nej,dii,'en('e. All that

'could be reproaiihed to I ireat Britain were acts of onii.ssion, for

not haviiifX b(!en dili^'ent cnoujjh to prevent the .several

cruisers from armini!; in British territory; (ireat Britain never

'' took (itrenee, and 1 do not think she was entitled to take otlence.

IflpfWhen a lawyer .speaks at the Bar he sliimld have some freedom

"in .siiowini; or attempting to show to the best of his ability the

; facts such as they may be, and in applyinij the law to these facts

, BUch as he considers the law should be applied.

The ])osition of the United States is further ai;i;ravateil by

•Vtlie dilatory course persued after the seizurcH, and after remoii-

■. J Btrance had been made; on account of the delay which took

■''.place before any redress or any attempt at redress was made.

;i The seizures wer(> made on ( iovcrnineiit instructions, and these

4()f inHtruetioMs not only atl'eeteil the vessels in question but applied

'to all \essels of the same class. The United States (ioveriimeilt

•were notitied of the lirsl seizures by tele;;rapli on Auj,nist KSth —

hat is about two weeks after they were made. The United

i.ates (Ioveriimeilt must then have known in the hcilsc of beiiij^

norally Huro, that the vessels had been seized, and the proiiipt-

tiess of atelei,'ram would in a few days liave secured information

liutlientie eiioiii,di for all practical |)urpo.seH. In Se|)teniber, the

leiziii;; otlleer who had remained at Sitka until all the trials had

.^takeii place, wrote twice to the United .States ifii\erniiieiit.eri\in(ir

Sid^the fullest i)articulars. The first of these litters must ha\e

arrived loii^f before the end of September and (he second by at least

the middle of Octolier. ( )n Se|)tember '27th and ( )ctol)er Mist the

>;Brilish Amba.s.sador wrote to the United States Secretary

<oi State askiii;,' for particulars of the seizures and protesting

against them ; and in the month of November the British Am-

. biissador forwarded to the Uniti^d States authorities a copy of a

letter from the British foreign minister which contained a cor-

yect »iccount of the proceedinjjH and (he depositions of (he

officers and men of the vch.scIh seized. Yet it was not tintil

60^ April l:?tii, 1H87, that the United Stati'R ( ioveriinient j;ave any

particulars or even detiniteiy stated the f^rounds on which the

ioizures were made. In other words, althouijh on Novemhe

14tli, 1MH(), (Jreat Britain waH able to p't accurate informatioi

from Alaska to Enirland, and to transmit it thence to the United

^Fm^f

144

(Mr. P)i'i(iii('.s Ari^juinciit.)

Statt'H, tlu' ifovtM'Miiu'iit of tilt' latter ('(iiintiy cdtild not <:;■ i
trustwortliy dctailH until tivc montli.s Inter.

.\Lriiin, it niiiy not Imve lieen tlie fault of tlie I'nited Stat.^
IIS a nation, liut it was tlie fault of tlie I'liiteil States actili;;- I \
their otlieials. vSurely it was a matter of eonsiileialile eoneciu
when a nunilier of \essels had lieeii seizeil, when a lari^e inuulii r

10 of British .suhjeets hail iieeii taken away to Sitka, far fi'oui th' ;r
homes: surelv it was, I s,-iy, a niallirof considei-alile coneei;i
an<l the duty of the otlieials of tie' ;,^)\ i-rmiieiit of thel'iiii'.!
States to eiii|uire into the ni.Mtter prniiiptly, and arrive ai :i
decision at the earliest ]iossilile UKaiient, Theri'loie i saytli.,;
the faet t!;,it tlier<' Was so niueh delay ahont the whole mail i
is also a matter of seriou^i aeirravation.

The si'iznreHof KSST were if |iossililo even moi'e unjustilial'i
lieeaiise the I'nited States edvefiniient had in eH'ect iiroinised I l.;,i
no seizures would lie made without notiee, and no notiee w is

20 j;iven. 'The I'nited States ^'oMTument denied this, hut it si. ins
to me that it cleai'ly results from the iiolt'n rerlmlis which w . r.-
exchani,fed lietween the t wo ;^o\ ernuients, one on the 14th \]iii|.
1M!S7, (record ]ia^'e (il) from the Britisii Amhassador l.i li;^
I'niteil States Seeretai'v of State, whicli reads as follows:

" In view of the approacliini;' tishinj,' season in the Behrine- S. ;i
"and the littin^' cnit of vessels fia- fishinf^ operations in tle-e
" waters. Her Majesty's ei)veriiment have requested mi> toemiiiiif
"whether the owners of such vessels may rely upon hein^
" uiiniolfsted hy the C'ruiseis of the United States when nut n. ;ii'

30 "Innd."

To propei'ly ajipreeiate those ■iioti's vcvh'ih'' one must hear in
mind the fact that Secretary of State B(m ,mu aetini; undei' a
decision of the President of the United >-i ire luul deemed ii
his duty to Older that the vessels previo\isly bi'i/.ed sin.tdd 1 •
released. Now, what was tln^ answer to this note reihali'. It
is to he found on the record pai,'es(iI-2 dated Ajiril 12th, ainl
aildresscd liy the Secretary of State of the United States to th.
British Amhassailor and it I'eads us follows:

" The (juestion of insti'uctions to ^'overiuneiit vessels in

40 " rci,'aril to jireventine the indiscriminate killing,' of fur scuU, i<
"now heine; considd'ed, anil I will inform you at the eai'liest d.'iv
" jiossihk' what has heen decided so that i^ritish and other vessels
"visiting the waters in iiui"-tion can ;,'iivern themselves acmi!
"in^riy."

This was a plain answer to a plain (lue'stioii, and can not 1
otherwise understood than us meaniiiLC that the sealini; vi -~. ,
would not he molested unless previous notico was ejven. .N .
notice was eiven hut the seizures were lume the less madf.
Ki|Uall3' unjustiliahle were the seizures nf [^S\\. The reh,n-i

5(1 of the ships seized Ml 1^S(i, and the fact that no si'izures wi ir
made in ISNS were of a nature to lull Ciieat iSritnin intu
secuiity, and the resumption of the seizures in US8!) withni.t
warniiiL; was a proceediiiL,' in delVnceof uhich, I suliiiiit, iiolhii!-
can he ur^'ed.

'I'akc ULjain the moiius viveiuli cases. Tiie modus vivi h' i
distinctly provided that British vessels seized hy the Unil.i
States sluaild ho turned over to (ireat Britain foi trial. Tin
I'nited States diii make severul seizures hut in only eiir
case did it coiii|)ly with tliis condition, and in tlu: otlhi

<i" cases the United States availed itself of seizures on the hiL;li
seas, to prefer cliar^^es of violation of theii' muniei|iiil
laws and which were on tlioir own face unfounded. TU
United States took no proceedings on these chari,'es, they kept
tlie vos.sels in their posHcssioii for niuntii!i after they wer .suiziil,

145

'V fOlllll IKit <^> t

]n- I'liiU'd Stills
States iii'tili;; 1 \-

sidcriilili' (.•oiu'c'i ,1
n a laiiio miiiil v
tka. I'ar iVoiii lli. ;r
siilnalilr police] :i.
riit III' till' rnii- 'I

. ami airi\i' a! ,i

■ret'die I >ay tli,,!

lie wlmle mall' r

UMiri' iiiiiiistiliali!i'

fleet [iriiiiiiNfii |1,,,|

nil 111) iintiee \\ ;is

this, lint it seeliiv

rhiili's wiiicb \vi I.'

on tlie 14tll \ji|i|.

iiiliassailor io ihr
i as I'lilloWK :
in the Heliring Sin
[lerations in tin >e
;(ite<l mo tc)en(|niir
rely ujion ImIim
itos when nut ni ai-

one ninst hear in
I netin;,' nmlei' a

hll'l ileenieil il

>■ sei'/.eil slmulil 1 i-
< note rcihalr. 1 1
eil April 12lh, ainl
niteil States to till'

nnient vessels in
\\\y of t'nr seals, i«
at the earliest iliiy

ill iUlil other Vessels
themselves ac'eolil-

tW, ainl can not I •
tlie sealilif; ves^rls
■e was Hjiven. Nn
the less maije.
1,'iMI. 'I'he lelenM'

L no sei/iires werr
Ileal liiitain iiitu
; in Ihhlt withii|,t
I, 1 suliiiiit, notliiii:;

lie moilus viveii'ii
:e(i h\ the riiit-ii
lin fill trial, 'i'lii

hut in only mn

ami in the otlui

zures on tlie hii:!!

their iininiei|iitl

niifounileJ. Tli^

chari,'es, they kr]it
,er they wer sui/iil.

(Mr. BciijueH Argument.)

and returned them in i\ wrecUed fondition. Again it was no
tlie United Status, hut it was their otlicials — .some of their ein-
plryees who did this ; they used tlio vessels or the houts on .some
of those' vessels, for their own purposes, and the ves-sels wen- hd't to
rot and were returned in a dilapidnted condition. It is needless
to sav. that all these thing's were '^ross hreaches of international
Id" law, and tluit they must he considered and treated as such.
Altleiui^h 1 am ready to admit that it was not done h,v the nation
as a nation, yet from the le-al aspect of tlie que-^tMai 1 say, that
these ollieials acts should he taken as injuries wilfully inlliet-d ;
injuries which as hetweeii jirivate litigants would iiinlouhteclly
call for jii.feravateil damages.

A\-r the (•laim.'iiits to he any the lis; Midemnified hec'iusi' itis
la rrreat nation that has olfeiided ii-ain-t tlie;;i ? It is nr^'iied liy
counsel for the United States tliat a,^';;•lav.■•.Lell i.'amages are not
allowed as hetweeii nations. Sujipixe this to hi so, it is irre-
leveiit hec.HUse the damatfes will aeirue to the helielit not of
(Ireat IJritain hut of the pi'i-sons in whose hehalf she claim.s.
The rule for which the Uiiit.d St.ifes cmiii-el eoiit'-n.l i> Jasti-
liahle, if at all, on the Ljround that the prop' r award for
won ..led national honor is not a payment in money, in other
words it is explained, not hy the character of tlie olleii ling nation
but hy tlu'X of the nation a^i,'rieveil, wdiose di;,niitv would be
otfemied if nioney were olfered. ISiit what hearing' has tlii'^ upon
injuries to | rivate persons? In this casi' " suKirt iiiDiiey, "
as it is called hj' my learmKl friends, is recognised as an appro-
priate remedy for wilful in,j.ury. Oreat Britain perhaps could
not receive such money on her own behalf \>ithout lowering lier
dignitv, hut the dignity of the United States as well as that of
(Ireat l*>ritain iiiiperati\oly demands that all injuries to private
peison.s he fully compensated.

Tlip truth is, the United States thrust the elaimants forward
or put them in the liacU -ground a.s the necessity of the case may
require. If it suits their purpose, the case is treated as if it were
in etl''ct between themselves on the one hand, and the claiments
on the othei-, fireat liritain is dropped out of sight and her
presence in the cast' treated as irrelevant. iNow, however, she i.s
thrust prominently forward, the claimants ai'e ignored and
tilt case treated as if they had nothing to do with it.

Ai-efereiiceis made in the United States brief tothe withdrawal
of their natiiinul claims at (ieiieva. The withdrawal of
those claims is pi-i'fectly immatei'iai to the present issue,
because' as I have alreailv stated, (ireat Britain's conduct
was at the most negligent, and there was in no respect any
ground for aggravated damages. To qualify the acts of (ireat
Britain uiider the Alabama claims and to distingui'^h them from
those in the present cai»e, J cannot do better than refer tothe ap|3re-
ciation of I'rofessor Bluntschli, which is to be found in thi» foreign
relaliiiiis if the U'liiti^l States, jiart II, section ;5, 42 (.'ongress
4th vol. (ieneva Arbitration page 541! :

■' II ne failt d'ailleurs pas perilre de viie que tons ces eU'ets
" liesastieux soiit en preiuie'r lieu iiiijuitables, noii pas an gouv-
■'erpement anglais, niais aus: eroiseurs eur-menies. I'ersonne
" r. accuscra le gouvernement anglais d' avoir donne mission de
" lelniire les navire.s de commerce ameiicains, on il'avoir, par ^cs
" agissv'inents, eiitrave ou endommage la marine aiiiericaine.
" Ceijue Ton pent lui rejirocher a bon droit, (en supjiosant que left
" fails cite* plus haul doivent t'tre consideres comiiie avoues ou
" prouves), ce n'esl pas un /i//7, mais une o/;i/,s,s(()?( emit re h' droit.
" Sa faute ne consiste pas a avoir equipe ct apparcilli le.s cor-
" .saires, luais a ii'avoii' pasempCrhv !eur arnicuicnt et Icur sortie

;«

^mmm^mf

140

(Mr. IViiiuc's Ar;;iiiiitMit.)

" lie soil tcrriti lire nriiLi-c. Mais crttc ^((k/^' n'ii (^ii'iiii raj)] I it
" iiiili rfcf. ft nnlli'iiiriit, iiii r)i]i]iiirt ilirfrt avce los di'^pri' !ati t^
" ii'rllriiu'nt coniinisi .s pas les iTciisi'Ui's."

[ will now lirirfly rciVr to tlic itcius of claims as I li;,.,.
cinssilicil tlu'iii.

Tlic (^oiiiiiiissioiior (HI t!ic part of tlio Fiiited States: — 1 w -li
10 to iiit'TiMiiit yoii for a iiionn'iit. Mr. r>i'i([U('. V'onr roferrrici' to
tlie seizures of ISMltis •■.oiiiething that my inemorj- is confti- .1
.liiont. Were not all these eases appealeil in Isst).

Mr lieiijue :— In Canada !*

Till' Commissioner on the ])art of the United States: — >.,,;
np]iealed to tlie(-onit of .Vp[ieals or to the Supreme Court of ili.
United Slates.

Mr J)ic'kinsoii : The Cooperoase was appealed, hut that nvus,
not in ISSi).

Mr. Petprs : — The Cooper case was the only ease appealed to
20 the Supremo Court at Washiui^ton, and the ('anadian ease t! at
was appealed was one of the special cases not under the mn'ins
Vivendi.

Mr. l^eiquo : — ^^onr Honors will recollect that the day liefnii'
yesterday 1 divided, for the purpose of mj- ar^mneut, tlie ditferi ni
items of claims under different headin<fs. I have lint a very fiw
remarks to offer under those i,'eneral lieiidini,'^ except in possiKlv
one instance, heeaus" they will he hetti-r ci.ivered when we taki'
up the cases sepai'ati'ly. The tirst general lieadini,' I li.ivi'
ailo)ited is "The illei^al lioai ilinj^f, search and arrest of vessels."
\\Q The vi--''ls in comicetiun with which such claims are |iresi'iii.'.l,
are, in I .ss? the ■' .Mfi-i'd Adams " and the " Triumph. " Jn l^^!l,
the "Jnanita " " l';ithtindel'. " " fll.ick Diamond," " Lii\
"Minnie," " Tiinmpir' .-nid ' .Ariel"; in ISltOtlie ' l';ithtin^' V '
Till' whole jiriu'eediii'^s of the I'nite.l .'-it.-ites in ciinn"eti":' ■ ■■'
these vesse s.re, of Course, admitted to have heeii illeLi'al. \\ ln'n
I say " adiiiittid," I mean that was the result of the award as
rendiri'd at i'aris, and therefore we may take it as the law cov. r.
inij the enipiiry. The illegality, as I ha\'e already shown, was
ciiiislderalily aeirravaled hy the cii'cunisiances .•iiid maimer in
Oi ill which it was crpinmitted. Tli«t the owners of the vessels ,nv
en*itl"il to C'MMpiiisatioii is, it s-ne- t^ iii", lieyond iiuestioii, iori
I sul Miit that the sum of Sfl^.dOO is under the e"i-eumst;inees j.iit
fair. W*' cannot, of cour.se, prove .■iiui we have not attempiMl
to piMve, (l;iiiia^es in dollars and C'lit^: hut unless this Hi;;!
Trihun.al is prepared to justify the arrest of the vessels iiniii.
under the circumst,inces 1 h<i\i' mentioned, and to say that such
pioceedin;^s i,'avi' no u;round for dama;4es, 1 say that we Rlmii!.!
recessal'ilv recovi'r. Suppose th.at the vessels had iieeli r..
turned live or six days after the sei/.iire ; that the trip IukI
50 not lieeii seriously interrupted, J claim that, csp'ciuily un-
der tlie circumstances I have rrvi.wid, from the me e fact llial
the vessels were seized, that they w re searched witliout aiiv
warrant, as is estalilished hy the Paris .\ward, damages shciiiM
be awarded, and that the amount claimed is hut f«ir

The Commissionei' on the part of the I'nited States : — That
I understand, is for what you might p'jrhaps de.signato as tln'
trespasH.

Mr. Heicpie :— Yes.

The second item i.s — " Value of Vessels, their outfit and cnii,'n,

<)() or in certain cases, the depreciation in value only ' The sdK'

dispute as to these items is as to tln^ ijiUDilum to he recovfivd.

The United State!* counsel admit in their written argument.

fiage IHK, that (Jreat Britain should get the market value of
he vessels at tlie port of Victoria at the time of .seizure in tlio

6?,

ii'a qn un ra])]i. it

(! k's d'/'pri' lilti is

claims fts I h;,.,.

m1 Statos ; — T \v -li
Your ivfert'iic' f.i
I'liioi'V is ciii»ru- I
SS!). '

iti'il Statos :—>:,,;
ii'ciiif Court oi' t hi'

•alcil, liut tliat w.i),

ly cane appi-alt'il Id
"auiHlian (•as(^ t' at

nUiilT tllL' 7(i("M(,v

liat tlio ilay liff.nc
uncut, tlip (iitiiTi lit
avf liut a very i. w
* except iu p(is-,i!ilv
i-e(l wlicu we t.ikc

licailiiijj; 1 liavi'

arrest of vp.sscls."

liiiis are prcscnti'.l.

iuinpii. " In iSMi,

iaiiioMil, " " Lii\

tlie '■ I'alliiin.i'r.-
ill cciiue'cti"!' ■ ■ '
icon illenal. W'lirii
It of til.' awai'ii tis
t as the law cnv. i-
lrea<ly shown, wa-^
es anil maimer in
f the Vessels aiv
youil i[Ufvlioii, aii'i
(•'/•(•umstances j.iit
avo not attcmpinl

unless this Hi;;li

the vessels iiiaili
il to say that such
ly that we RlimiM
els liail licen r, -
Ihat the trip hail
lat, esp' cially mi-
he me .■ fact t!:at
clh'il witliout any
I, iluma^cH sliouM
nt f«ir
te-l States :— Thai

ilesif^iiate as thr

ir outfit and caiL.''i,
I! only " The snl,
m to ho recovered.
rt-ritten ar^uincnt.
e market value of
le of seizure in the

- f^

•I

147

(Mr. Beiciuc's Argument.)

cases of vess 'Is sei^eil and condemned. We liave already .shewn
in our written argument whi't were then, at Victoria, the special
conditions uf'l-ctin;; the value of vessels.

The next item is '■ Premium-i of insurance paid "mid another
item is "Time and jiensonal expenses of ow/ier." Tlie item
under these liead.s do not call for any special remarks on my
part, as they do not appear to he di-put "d.

The next item is "Leixal Kxpenses" Under this head a^^'ain
the United States contend that the claims shnul i he limited to
the iti'ins appeal ini; in th(! British schedule at I'aris, or to such
of theiiiHs have heen jiroved. Special reference to the cviileiieo
will he found on pa^e '2i of ou,- written reply.

That lei,rul costs are allowed in eases of this kind .seems to
go without saying'. As appears from Mr. Justice Story's judg-
ment in the '" Apollo," which is refern'ii to in our written
ar^juiuent and in that of the United States, even in admiralty
cases, it is the comnum course to allow expenses of this nature,
either in the shape of damages or as part of the costs.

The next heading is " halance of estimated catch for the
season." The items under this head have heen treated in tlie
written arguments under different captions, hut the legal ijuestion
involved has special reference as to whether prospective profits
may he awarded. 'I'lie argument of my learned associate under
this head has heen, so complete that I hesitated to u.se the
notes I had prepared under this heading. However, I have
been encouragiMl hy my learned friend to do it, ami it seems to
me [should do so for this reason: the aiiiount involved is so
large that we should neglect no oi)porl unity <>f jilacing the mat-
ter from ditfereiit points of view, and taking all the heiietit that
can be derived from the authorities hearing on the point, liefer-
ence was made to cases of collision, and the distinction was
properly drawn as hetween those cases and the present case. Jt
.seems to nie that a close ((xnmination of the cases which liave
been reviewed, and i.'ime of wdiich 1 shall take the li})erty of re-
ferring to, will show I hat in most of the cases, if not in all that
are cited, for one reason or another, the amount awarded did, as
a matter of fact, r(!preseiit a proper indemnity. One realily
umlerstands that in collision cases very often the awarding of
the value of till' vessel, with interest, represent a proper in-
demnity, hecaiise in most of those cases the party with the
money may lia\'e a ready m.arket to procure another vessel and
to continue his trade. Hut what we take exception to is to tin;
use that has Immmi maile hy the other side -although, of course,
they have very properly done .so — of the dicta to he fouiul in
ae\'eral of these cases, and their attem|it to apply it to the
present case. My learned associate has shown the reason why
the present ca.se should he distinguished from the eases relied
upon hy the other side. In those cases injury or inti'rfering
with the liiisiiiess of the claimants was not the object of
the act, whereas in this ease it was. What was
intended, was to prevent these parties from sealing,
and therefore the (juestion of damage cannot bo
considered as remote. I invite your Honors, as I have no
doubt y(ni will do, to closely examine these cases, and you will
fijid that the main i|Uestion was really as to whether the
damages were n<it too -^mote. Damages by way of profits were
refused mainly on that grounrj, because they were considered to
be too indir'ct or too remote.

Before diwussing tlie principleH and authorities bearing on
this (juestion of prospective profits, I will first point out the
illogical position assumed by the United States in their attempt

Y'^mmmmiiimiifliilf

148

•20

'AO

tio

tlio vcshcIm wci- ■

IlllTC (Iftclltioil ( ■

ri'storiMl to tli( :■
it is arijiii'fl tli; i
to ilcprivatiiiii i.i'

Sllcll CIIIDpcllSiltiii I
Vessel's value at I

(Mr. Beiqiiu's Ar^uiiieiit.)

t(i iiiiike n (listiiK'tidii lietweeii a ca.sc wliere
Hfizeii ami lieeaiiie a tola! Iuss and a case oF
wariiiiie; dtl" in wliicli llie \essels wi'ic eitluT
owners oi- taken from tiieni. In (lie tirst ease
no conipensation is to lie allowcMJ in respect
the use of the Vessel, or that, at anv rale

shoulil lie eontined to lee;al interest on th

til r the seizure ; while in the seeoml case it is |)ro()oseil I .

assess the ilainaets on another liasis, namely, the allowance ol' i
sum repre.' (iitiuj.; (Ik ship's charter value in i'ehrini,; Sc,-i for 1 1 •
remaimier oi' il.,- s. a>-on. It is scarcely necessary to ar;,'ue ih..;
this I list inct ion is wholly arhitrary, illo^'ical ami unjust, 'i'he t\\ i
cases with respect lo th" (jiiestion under ( aisideration have evii
feature in common. 'I'he w hoh- i|Uest' m is whether an owii'
who, durin;^ a cert.iin time h,is lieeii dejirived of the use ^ i'
piilil e.'irnin^' property, shall recei\e a y, and what, damaj;es iii
,-ic ■ount of sucli deprivation, it is (piite eviileiit that \\h.,:
heeomes I'f the property dtiriiii,; that time, or afterward, has i ,
relation to the ijtie.-.litai ; yet th.-it w holly inniiatcrial circumstani .■
is the oidy point of ditrerelice hetwi'eii the two cases.

It may he said, and perhaps truly, that some of the earli' i-
authoriiie.s have in wording' and liy way of dictum, more th;iii
by way of passinj,^ really upon the case, countenanced the di-
tinction ; hut no reason has t'ver been jjjiven in sup|iort of .i
holdine- of that kind, anii none 1 think can he ^dven which is m
any deeiec able tc» bear pIosu scrutiny. It is indeed .suijifestr I
on paee 17 of the I'nited States lirief -but F cannot think \eiy
seriously — that, in case of total loss it lutist be prt^siimed "tl,''
claimant had the means and couhl have supplied the pl.u'c of il,'
property sii/.ed." In other words the\- luust he presuiiii'd ii
liave been able to do what was manifestly impo.ssiblc, 'I'he^i.
parties hail eiine on f^ealine- expeditioi^s ; ttiey were hiimlrcds nj'
miles - tifleen lituidre'd miles away ; the season was short, ami it
was open to them to pi-ocure other vessels and continue tinir
operations. Therefore it lirinj^'s these cases, not within th''
principle of cases of collision, which occur very often in a ]il,ir,
iii-nr at hand, or under circumstances wliere the party ownini^ili'
\ esse I may have nieaiis of rejilaciiig the property lost, but ii
rather hrin;;s them althouijb I claim that the cases arc still to
be ijistini^'uishcd within tlie princi[iles of the case« of partial
damae;es. It is no doubt correct that some of the earlier .judi.'
meiits restricted dainaees in case of total los,s to the value of tin
property lost .and heal iifterest on s\ich value from the time of
the lo>s. The erouiid on \\ Inch these judi^ments were based w,i>
that prospective proiiis artM'otitiiieeiit and uncertain, and tlnii
fore it is better to adopt .soine Certain basis of compensjition, e\ 1 a
at I he risk in many eases of inadeipiately com|>ensat in^' the parly
injured. I will ]irpsently discus.s the snllicieney of this latti i
ar;.niment ; but, as 1 lielievc this jurispnidenee to lie over-ruh J
by later authorities, 1 will first refer to .such authorities,

'i'hc ticiipva award Ih, Htranjjeto sa\', relied on by the I'liited
States, but is evidently a strotii; autlmrity aJ,^linst. It i.stnie
that iri that case, the circunistanccs beinir materially ditfereiit,
the arbitratorH did not j;o ho far an we ask your Honors to iln
here, but Went much further than the I 'nited States claim slioiiM
be done in this case. Thi'V did. indeed, in draftin;^ their awaid
say : " And whcrca.'*(I am readini,' from the Cnited StdtcHareu
ment, paj^e !)()), jirospective eariiiiigH cannot properly be tnadi'
the stibject of coinpeii.s.ition, inHsuiucli us they dcpen<l in their
nature upon futtire tuiccrtain continj:jencieH, Ihi- Tribunal i--
unanimously of opinion that there Ih no ground for awardiii;,'

149

(Mr. lioi(|m;'.s Argument.)

tlio vi'hscIh wcr ■
mere (leteiitii)ii i
restored to tlicir
it is ari;iie
it is |)riii)i)sed I .
le alldwauce oi' i
'hriiiji .Si'a for il ^
larv t(» ai'gue tli.i;
unjust. The tw i
ratinii have evei y
■lietlier all (IWIU ;■.
ed 111' I he Use i.f
wliat, damages mi
,'ideiit that wlint
li'lerwai'd, lias i .,
ei'ial eireumslaiii .■

> eases.

me (if the earli- I-
lietum, more than
ti'uaiK'ed the dis-
iii support of ;i
given whieli is in
ill(h'e(l suggesti'd
•ainiot thini\ veiy

e [M-esUl I " tlif

d the place of llii'
t he presumed to

npossilile. Thisr
were hundreds .if
was sliort, and. it
nd eontinue their
not within th.'
y often in a pluc

party owning th.-
perty h)st, hut it
e cases are still i^i
■ case« of partial

the eailier Judg
o tlie value of tin-

from the time ef

:s Were hased WM>.

■ertaiii, ancl tluic
impensation, e\ iii
•nsHting the parly
lie}- of thi.s iatti I-

> to he over-iuli'l
ithorilies.

on hy tlie rnited
,iiinst. It istnii
terially diflerent,
our Honors to ile
itates claim shouM
Fting their awai'l
iiiteil StateH argil
[)roper]y he inadi'
.• (lepeiid in tluir
, the Trihuual i.-
und for awanliiK'

the I'uited States any sum hy way of indenudty under thiH
head." So far they have adopted the wording wfiich is found -p.
the early jurifltruuenee 1 have just mentioned, hut what t) ey
said is of less importancff tlian wdiat they did, and we find iiat
wliereas the early eases had fully allowetl the valut of
the property and legal intereat, they allowed " in lieu

lO °^ prus[)eetive eateh" the value of tin; ve.ssels and 2.5 per cent,
of such value and a sum for wages. 'i'liis appears sutlicient
from appendix No. 1 to our argument in reply, and I will merely
refer to tin; report of Sir Alexander ("ockhui'n, the British
arbitrator. Tlii^ eminent judge di.ssented from the other
arliitrators, the amount of whose award he thought excessive.
He .says; 'Hut independ<Titly of the undenialtly exaggerated
amounts of the claims, a demand for r/ruKS pronpeclirc <'<irnir>ijs
ati iiiMiiii/iiisln-d from net riii nin(ji< \» i\\ntv inca])ahle of heing
maintained. This is admitted in the argument of the United
States, and is clearly ilemonstrated in the British report.
According to the (lecision of the Supreme t^ourt of the United
States the oidy allowance which ought to he made in respect to
pii.spective catch is in till.' nature of intei'csf from the time of
the destruction of the vessel. 1 should myself he disposed to
.adopt a moie liberal mode of compensation, and to awaid for
prosjjective profits a ■•(. jisonahle ])';reentage on the value of tin;
ve.ssels and outfit, etc. How after this, the (Jeneva, award can lie
considered as in h.iniiony with the jurisprudence cited hy my
learned fi'iends, much more with the position a.ssumed hy them,
^0 ^ lca\e them to exjjlain. It i« apparent from these remarks
that w liat he was contesting was thvih-mand for gross prospecti\e
caiiiiiigs as disting\iishei| from ■ '„ earnings, and he clearly says
that he is disposed to adopt a more lilieral rule than tlie one to
which he refers as having tjeen adopted iw some of the .\merican
cases, and to award for prospective profits a reasonable jjer-
cetitagi; on the value of tlie vessel and oiittits. (Jn further refer-
ence to his i-emarks it will l)e found that the amotnit allowed
for the vessels was in lieu of prospective profits. The amount
awarded as the value of the ve.ssels was a wry large one, and it
was claimed to exceed consid(;rahly the real value of the vessels.
Adding '21) per cent, to that, hy way of nuiking up for ])ro.s-
pective profits was, it seems to me, adopting (|uite a liberal rule.
When the arbitrator for (ireat Britain took that position, as
appeal's in the protocol, how can the luni]) sum award he inter-
preted as not having gi\en to the Ignited .States the beni'tit of
the admission made by the .arbitrator for (.ire.at l^)ritaiii. My
learned friend would have to contt'iid that, although the
arbitrator for (ireat liritain declared his willingness to meet the
United States, so far , -IS allowing them this 2.") per cent, on the

:0 value of the vessels by way of prospective profits, the United
States did not consent to accept tlie conci'.ssion, and that no
account was taken of the conceHsi(.)n in adopting the
aw aided.

lump sum

'i'lie t "ommissioiiei
Beii|iie,
tic lie va

the part of tl

Mr.

lave you acci.'ws to the French text of tin
I think we have the

le United States: — Mr.
.\\varil at

leliiue

lOok here.

The Commis.sioner on the part of th- United States: — I
merely want !o ask you if you will ascertain cxacth- what the
words are win h ai'e translated " prospectiv(; earniicfs."

Mr. Beique -I have made special reference in examining
the point to the French version, and it scenrs to me that as
appears by protoc 1 2!), it is ipiite cvidrnt that prospective profits

1. *

li"

mmmimi^mmm

ISO

(Mr. Rt'i(|uc.s' Argument.)

were allowed in one shape or another hecanse nf the jin'<itioii
tiiki'ii by the IJriti.sh Cotninissiioner.

('(iii.iiiissioner on the (lart of the United Sttte.s : — They
eieaiiy allowed prospeetive earnings, stt-ictl}' speaking, iiecansr
they alloweil net freij,'lits.

.Mr. f^'iiiue : — Distinctions have heen made hitween oa.sos
where the vessel is under enifaiienient for a purticular voyatje,
and case.s <m\y where she has not secured a voyai^e. It conies to
this, thai in one e.ise the ut\certainty may he greater than in the
other. K\en takiiiLC tlie ease wherr a vessel is undrr charter
party there is always a certain de^n'ee of unceitainty- ■
the vi.'Hsel ndj^ht he hurried oi' inii^ht he Huiik^all kind of
accidents nii^ht ficcur which woidd prt vent IIk^ vessel
from eariiin;^' the amount covered hy the chai'ter i>arty. Of
course in a ease of that kind tliPic may he more certainty than
if the vi'ssel is not chartereil ; hut if tlip vrssid, althoui,di not
20 chartereil, is known to easily have n iVei^;ht at its disposal or to
he chartered whenever occasion occurs, whenever she is free for
aiii'ther voyaj;e, then it seems to me that thi; uncertainty is no
iireater in the one case than in the other.

C'omiiiissionur on the p«rt of the Criited States : — The usual
mil' ill collision easi>s is to allow net freii,dit wherevei- the vessel
lia.s broken i;rou:'.d to earn that fi'eiL,dit — that is tlie common
(-.Npre.'.siiin. Net fi ■ei;,dit is never spoken of as a matter of prolits,
but as a matter of rnrninLjs. They arc more like the ease of a man
who is eiiL,'aj,'ed for a month at a ti.Ted salary and unjustly truneil
;]0 out of liis position; so if those word.«, " pi'ospective earnings,"
mean in tlie original exactly what they are translatt^d as niean-
iiiL', tliei-e is apparently a clear inconsistency on the face of the
awar<l, as 1 reiiieiii
catch.

Mr. 1 )ickiiison : — Tin
only as to the whalers.

ber it, sayiii;,' nothiii;_c about this matter of
iiestion of prospective catch caiin; up

At oni> o'clock the C'ominission took recess.

40 At half-past twi
seats.

I'clock the Commissioners resumed their

Ml'. lM'i(|ue : — The ne.xt authority I shall refer to is thr For-
tunc Hay case. My refeience to it will ic very brief. In that
case, tweiity-tw 1 Hnited States vessels wer(; waitin;.j in Fortuiu'
I'ay for luriiiiL; ; when a school arrived, four of the vessels and
boats \\itli seines wliich were to hi? used for the benetit of the
whole' lleet, were fisiiing. it is probable that if the rnileil States
ve-sels had been left alone full cargo s would hav been taken
.JO by them, but Newfoundland tlshermeii, who weri! not peruiitte 1
under tleir law to tish on Sunilay, interfered, and the United
States vessels left with no cargoes, or small ones, 'i'lie case was
left to arliitratimi and lieavv damages were awardi^d, which were,
for th(^ must part, f'U- pios|^'ctiv(! catch.

.\lr. l)iekinsoii : — There was no arbitiation. (Ireat l!ritaiii
ni'ide an oiler, and the matti'r was settleil on the basis of tlie
payment of about STo.OOO.

.Mr. lieicpie: — I thiuight there Was all arbitration ; but whe-
ther thi'i-e was an aioitratioti or not is inimafeiial ; as a matter
0() of fact a large amount was awariled for prospective catcli, arid
whelh-'r the aiiiuunt was large or small makes little diti'erence.
My |)i>int is that an amount was awarded for prospective catcli,
Mr. I'eteishas made that clear in his argument. 'I'he (Inited
States counsel trv to distinguish this case by saying that if the

151

f the position

Stttos :— Tiioy
nking, becansf

bi.'tweon CHsrs
iculnr voyai,'!'.
1'. It comes ti)
ter than ill tlir

(iiulir charter

uiiccrtiiiiity ■
: — ail iciiul of
it tiie vi'ssi'l
tor jinrty. < 'f

certainty tlian
, Hltlioni,'li not
. liispos.'il, or to

slie is free for
eertttiiity is no

es : — '{'he usual
■ever tlie vessel
is llie common
latter of profits,
IP easi' of a man
injiistly triineij
liv(^ earnin<,'s, "
\i\ini\ ns niean-
the face of tlii'
tiiis matter of

catch came no

resumed tlieir

• to is the F(.)r-
irief. In tliat
iiu; in Kortiinr
li(! vessels iiiel

icnetit of the

! I'nited States

.v" lie(^n taVceii

not ijerniitte'l

ml the I'liitid

The case was
ill, which were,

(Jreat Mritain
e basis oi the

ion ; hut wlie-
I ; as a imittiT
:.ive catch, and
I tie diti'er(!nce.
pective catdi.
The United
inir tliat if the

■ (Mr. Bei(|uc'a Argument.)

vessels liad boon left alone they would cprtainiy have ^'ot full

cari'oes, and that, tlierefore, it was not for prospective catch Imt

"actual loss of property for which the dama^'e was awarded.

';'Thev treat tlie case a.s if the fish had been landed on tlu^ decks

- and'takeii therefrom by Newfoundland fislierme!i ; tlu! answer

,,'is evident; ;,'ettin;,' tisli in a seine is not rediiciiii,' them into

l(|;fipossessioii and that the United States fishermen would have ;;ot

t-full cargoes cannot be a matter of actual certainty until the

vssines were actually brought on shore with the fish in them. In

; :^this connection I desire to call attention to a case which came

•ff'before our own courts, before the Supreme (,'ourt of Nova Scotia

land liefore the Supreme Court of Canada, where the \ery (]Ues-

s-.tion was rnisiMl. Jt is tin; case of (r'riing vs. The (^)iieen,

Vi decided in .May last, and rejiorted in 27 Sui)reme Court Reports,

'■'■Canada, 271. The facts in that case were the following: —

" A riiiteil States ship was soi/.eii for fishing in violation of

20^" Chapter !t4of the Revised Statutes of Canada. This Act, wliich

•-'"was a re-eiiactiiient of the Imperial Act. .")!), Oi!ori,'e 111., Chap.

;■'" ,SS, (passed to enforce the treaty of I.SIS between (beat Rritain

,iV."and the United States), iirovided that if any t'cucign vessels

had be-en fish

30^

loMini lisniiig uv prcj);uiiig lo iisii,oi- iiao oeoo iisii-

i" ing within three mile.s of any of the bays, creeks or harbor.s of
"Canada, without license,' such vessel should bo forfeited. The
" facts were that the fish had been encloseil in the vessel's seine,
" and the sidne pursed up and secured to the vessel, the whole
"more than three maiine miles from \ova Scotia, and that while
" engagt'd in baling out the s(Mne, and while a large number of
"fish were still in it, the ship went within tlie three mile limit
"and continued its optu-atioiis, that is, lialiiig the (ish out of the
" seine. The (juestion was whether removing the fish from the
".seine inside the three miles limit was 'fishing' within the
" meaning of the Act. It was argueil, on behalf of the ship, that
•' the fish enclosed in the seines w(>re reduccid to possession, and
" therefore the 'fishing' was completed while the ship was still
' on the higli seas. It was held, however, l)y the Supreme Court
" of Nova .Scotia, that the lish had not been reihiced to possession

I" and that the operation within th(( three mile limit constituted

I" fis-hing, and the vessel was condemne 1. This judgment was

'confirmed by the Supreme Court of Canada by three judges,

two judges dissL-nting. "

Another case which wa.s referred to in that case, :md which

Is also in ]ioint is that of Young and Hichens, reported in 6

QiHH'ii's Bench, 10(!. That case is still more to the point. T'he

facts of the case summarized in the report were as follows.

" On the day in question a very large shoal of mackerel cmhio

into the bay of St. Ives. The plaintiff's boat the " Wesley," put

)ut and shot her seine, not conducting herself at that time, as

|he defendant alleged, acc(n'din','- to th(! regulations of the Hsherj'.

The seine, ni'arly 140 fathoms long, was drawn in a semicircle

(Completely around the shoal with the exception of seven fathoms,

according to plaintitl's witnesses, ten fathoms, according to

^efemlants, which was not tilled up by it. In this opening,

Siccurding to the plaintiff's witness, the fisheiiuen in the plaintifl's

Doat were splashing with their oars and disturl)ing the water in

in siieh a manner that as they afiirmed, the mackerel within

Would have been effectually preveiitt^d from escaping At this

Wl'^gonjuiu'ture iiefore tlie plaintiff could draw his net closer, the

f* Elh'ii," the defendants boat rowed in through the opening thus
j^ade, shot lier seine, enclosed the fish, and captured the whole

■^f them."

It WHS held that the plaintiff couhl not maintain trespass for

I 'I

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182

(Mr. Hfiqiie's Arj^unieiit.)

.':-f

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the takiiif,' of the fish, liis possession not havini,' hoeii cotnplit".
LokI Deiiinan said, in i('iiil(irin{i;ju(l;,MiH'nt : — " It certainly ri'suks
" from the evidence in tiiis case, lluit tlio fisli were reduceii to a
" condition in widch it was in tlie hi^jhest det,'ree prohalile tlmt
" tlie plaintiti' would lieeonie possessed of them, lint it is ecumliv
" Certain that hi; had not liecome possessed. Whether thr
10 ' necessary possession i)e ri;,'litiy described liy the word ' ciistudi.i '
"or ' occupatio,' I think it is not attained until the plaintit^lm^
" hrouyht the niiinuds into his actual power. It may l)e, inder I,
" that thi' delrnilant has committiid a tortious act in preveiitiii,'
" the plaintiir from completin;,' his possession." And Pattersnti,
.J. : — " I do not see how we can say this action is maintainaliji'
" uidess hy lujldiuL,' that a person oi' the point of taking' possis-
" sion of a thin;; is actually in pt^ssession of it."

The ( 'osta Rica packet case, I need not n-fer to as it hiis
already heen fully coiumenieil upon, 'fhe ne.xt case is the cii-c
20 of Williamson v. ISarictt, reported in K? Howard, pa;,'e lOl,
(,'urlis Repiirls ■I'l I, and dc^cidcnl hy thi' Supreme Court of t!ir
United Stales, and which I claim is also a very .stron^f authoiitv
in our I'avoi-. The facts of tht^ case were as follows, —

" The plainlitl's ship was sunk hy a collision ami afterwai.K
" raise(l and re|)aind; the Jury were instructed, if they fouii 1
'■ for the plaiiitiir, to i;ive such dama;,'es as wouM renunieriiif
" them fi;r the loss necessarily incurred in raisinj; the boat aii'l
" repairin;^' her, and also for the use of her durinj^ the linu'
'■ necessary to make the repair.s to fit her for husiru'ss. Thefaci^
'M " of that case cann it of course he reconeili'd with fhe facts in
■• the ' Aniiahle .N'aney ' and this wouhl aeeniuit for two or tlncr
' of the iudni's dideriii;,' from the miijoiity ' In this caM' nf
Williamsun v. ISarrett, the head note reads us follows: —

" JJamai^es fer deniuna^'e nd^dit he ;;iven in a collision cii-c
"and the rate of freight which a vessel would have uarnei,
" deductin;^; expenses, is a proper measure."

Keadini,' from the judgment of Ncdsou .1., I lind that he saiil:

"The court further charn'e that if tin; jury lind for tin

" plaintills, they uu^^dit to ,i,'ive such daniai,'es as would remuner.iir

40 "them for los.s necessaiily incurrtMl in raisin;^ the boat aiiil

" repairiu;,' her, and also for the use of her durinij; the time

" necessary to make the re|)airs and Kt her for business."

That was the ])oint the court had to consider. When the jnd;^''
came to discuss the (|Ucstion of damai;(t-. lie proceeiled as follows.

"The jury were instructed, if they found for the plaiutiti's, tn
" ifive damaj^es that woidd riMuunerale theiu for the loss nee --
" sarily incurred in raisin^r the boat, repairini,' her, atnl also fn
" the use of tin: lioat during; the time necessary to make tin
" lepairs and lit her for business."
'}0 " liy the Use of the boat wc; undeTstand what she woui 1
" produce to the plaiutiti's by the hii'iiii,' or charteiini;- of her tn
" nui upon the rivur in the business in which she had In > ii
" usually enj,'aj,'ed."

" The neiicial rule in re^iilatiii;,' damaj,'es incases of collisi .n.
" is to allow the injured party an indemnity to the extent of tlu'
" lo.ss sustained, 'rids ^'iMieral rule i.s obvious enoui^h ; hut tlu r.'
" is a i^ood deal of dilhculty in stating' the ^nounds upon whiili
" to arrivr, in all cases, at the proper nirasuie of that indemnii\ .

" Tin- expense of raisiriLC the Imat, and of re])ail's, may, nf
(JO " course, be readily asci itained, ar.d in resfiect to the repairs im
" <leiluction is to be made, as in insurance cases, for the m.w
" niiiti'rials in place of the old. The ditliculty lies in estimating
" the damai^e sustained by the lo.ss of seivice of the vessel whilr
" she is underj,'oini,f the repaii's."

.■..;.(

163

(Mr. Beiciuu's Argument.)

" That an iiUowaiicc short of soiin^ coiniiciisiitinn for this 1(js.s
woiilil full to he an in(h'iniiity for thi> injury is apparent. This
(jiii^>tion was (iiii'ctiy hcfori' tho (')urt of Ailniiralty in
Kii:;lanii, in tliucasc of the' (iazi'llu," lifciiled hy Dr. Lusliin;,'t()n,
in ?S.S4, 2 \V. Kohinson, 27!(. That was a ease of collision, ami
in lieciilini,' it, the court oliserved : ' Tiint the party who hail
siiliercd tlie injury is clearly entitli'il to an aiieipiale conipen-
.•^ation f.ir any loss he nia> snstain foi' tlie detention of the
vessel durinj,' the period whicli is necessary for tlie completion
of repairs, and furnishint,' the ik^w articles.'"

" In ti.^in;; the amount of the dama;,'es to lie paid foi the
detention, the conit allowed the gross freight, deilucting so
much as would, in ordinary cases, hj disbursed on account of
the ship's expenses in earning it.

"A case is leferred to, decided in the connnon law courts, in
which till' gross freight was allowed without any reduction for
expenses, which was disiipprovi^d as heiiig iineipiitillile and
excelling an adeipiate compeiisatioti, atnl the ipi:ilitication wo
have slated laid down. "

" This rule may afford a very fair indemnity in ca-ies wliere
till! lepairs are completed within the period usiiall}' occiijiied
li\ the voyage in which the frei;,dit is to lie earned. Hut, if a
longer p.M-iod is lecjuired, it ohviously falls short of an nile(piii!e
ii'lowance. Ntithei- will it apply wl.riv tlie vessel is not
engaged in earning freight at the time. The ])rinciple, liow-
ever, governing tin; court in adoiiting tlie freight which tlie
vessel was in the act of earning, as a just measure of
couipeir-ation in tli- ease, is one of general a|)plicatiiin. It
looks to the cap,'i"it\ of the vessel to earn freight for the
lienetit of the owner, anil consei|ueiit lo-s sustained while
deprivei] of hiir service. In other words, to the amount she
wcjuld earn him on hire."

■ It is true, in that case, the shi[) was cngagt'il in earning
freight at the time of the collision ; and the loss, therefore,
nioie fixed and certain than in the case where she is not at the
time under a charter [laity, and where her earnings must in
some measure depend ujion the contingency of ohtaining for
her emiiloymelit. If, however, we look to the ilemand in the
market for \'essels of the <lescri|)tion that lias lieen disaMed,
and to tin; piice there, which the owiiei- could olitain or might
have olitaiiieil I'or her hire as the nieasuiu of compensation, all
this uncerlainity disappears. If tliete is no demand for the
eiiiploynient, and, of course, no hire to be obtained, no comjien-
sation for the detention during the repairs will be allowed, as
no loss would be sustained."

" Hut, if it can be shown that the vessel might have been
chartered dui iiig the period of the rejiaiis, it is impossible to
deny that the owner has lost in coiiseipieiice of the damage,
the amount which she might have thus earned."

■ The maiket price, therefore, of the hire of the vessel
applied as a test of the value of the service will be, if not as
certain as the case wlieie she is under charter party at least
so certain, for all [iractical juirposes in the administration of
justice, no substantial distinction can lie made. It can be
ascertained as readily, and witii vs much jirecision as the |)rice
of aiiv given commodity in tb narket, and atlbrds as clear a
rule for estimating the damage : ustained on account of the loss
of her service, as exists in the case of damage to any other
iliH'iiption of personal pr'ijierty, of which the party has been
deprived."

' 111 the case of the ' Gazelle,' for aught that appears, the

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154

(Mr. Beiquc's Argument.)

" allowance of tlio freight nfforfleil a full indoiunity for the
" detention of the vessel while untlergoing repairs. This wnuM
" be so, as already stated, if they were made within the period
" she would have been engaged in earning it. If it were other-
" wise, it is certain that the indeninitj' allowed fell short of the
" rule laid down under which it was made, which was, that the
10 " party was entitled to an adecjuate rompeiisation for any loss
" he might sustain for the detention of the vessel during the
" period which was necessary for the completion of the repairs
" and furnishing the new articles."

" The allowance of the freight she was earning at the lime
" was liut a modi- of arriving at the loss in the particular case
" umler the general rule thus broadly stated, and atlbrded, doubt-
•" less, full indemnity."

" We are of opinion, therefore, that the rule of damages laid
" <l()wn by the court below was the correct one, and is properly
20 " applicable in all similar cases."

This was n case, the result of an acciilent, wheie the object
was not that of depriving or interfering with the business of the
party complaitnng.

The nejkt ca^e to which I shall refer, also most important, is
the case of Allisim vs. Chandler. The facts nf the case were
briefly the following: —

The <lefendant, the owner of a building occupied by tenant.s
for business purjjoses, wrongfully tore down the building, which
made it a case of total loss to the tenant, and the tfuant never-
.10 theless was alloweii damages for prospective profit in his
busiiies'.-. The juilgmetit was entered by Justice ' 'hristiancy. The
Judgment is (|uite liiigthy, but I would readily adopt the language
of the learned judge as covering the riili's appiicaliie to this case.
In the head note I find a summary of the decisions applicable to
this case, ill the fnllowing words: —

" Mi'imurc of iliiiiiiK/i's ill (tcliun of tort. — The statement that
" the rule of damages, where there is no fraud, wilful negligence,
" malice, i/ppression, vXq., is the same in actions of tort as in tho.so
" upon contract, though doubtless true in its application to those
40 " cases of tort where, from the nature of the case, elements of
" ci'rtaint}- e.xist by which substantial compensation may bo
" readily estimated, and other cases whieh are Imt nominally in
" tiirt, can not be accepteil as a principle of iniiversal applica-
" tion, nor be justly applied to any case of actual aggressive tort,
" where, from the nature and circumstances of the case itself, no
"such elements (if certainty are found to exist, or none which
" will apply substantially to the whole case, nor to any ca.so
" where the rule applicable to breaches of contract would exclude
" a material portion of the damages the injured party may have
oO " suffered, though the amount of the latter may not be capable
" of accurate calculation by any fixed and ilefinite rule."

" firiilflvcf of' ilnmoifi' in action of tort. — Where, from the
" nature of the case, the atnount of the damages in an action of
" tort can not be estimateil with certainty, or onl^-a part of them
" can be so estimated, all the facts and circtimstatices of the case,
" having any tenilency to show damages, or their probable
" amount, may be placed before the jury, so as to enable them to
" make the most intelligible an<l probable estimate which the
" nature of the case will permit."
tlO ' h'viili'iicfi of (liinitii/c. — As a general thing, in an action

" purely of tort, where the amount of profits lost by the injury
"can be shown with reasonable certainty, they are not onlj-
" ailmissible in evidence, but they constitute, thus far, a safe
" measure of damages."

155

(Mr. Bolque's Artjumcnt.)

Lous of profitn. — And where the plainliif was engagcil in the
" business of repairing watches, making gold pens and selling
'• jewellry, on the prenuses which were rendered untenantable by
" tiiu trespass, it was held that evidence of his past profits in
' that btisinees at that place, though they could not be taken as
" tiie exact measure of future profits, were proper to be proved

10 and taken into consideration by the jury, and allowed such
" weight as they, in the exercise of good sense and souml discre-
" tion, should think them entitled to."

The judgment was rendered by Judge Christiancy, and I will
road some portions of it ; —

" While in many cases the rule of damages is plain and easy
" of np|>lication, there are nmny others in which, from the nature
" of the subject matter, and the peculiar circumstances, it is very
' liifKcult, and in some cases, impossible, to lay down any definite
" fixed rule of law by which the damages actually sustained can

2(1 " be estimated with a reasonable degree of accuracy, or even a
" probable approximation to justice ; and the injury must be left
" wholly, or in great part, unredressed, or the question must be
" left to the good sense of the jury upon all the facts and cir-
" cPMistances of the case, aided by such ailvicc and instructions
" friim the court as the peculiar facts anil circumstances of the
" case may seem to require But the strong inclination of the
"courts to administer legal redress upon fixe<i and certain rules
" has sometimes led to the adoption of such rules in cases to
" which they could not be consistenfly or justly applied. Hence

30 " there is, perhaps, no branch of the law upon which there is a
'■ greater confli' ' of judicial decisions, and none in which so many
" mo'^iy arbitrary rules have been adopted. We have carefully
"examined all the cases cited in the verj' elaborate briefs of the
" respective counsel, and the most approved elementary treatises
" upon the subject, and, without atti^mpting here to compare and
" analyze them (which would rerjuire a treatise, we are compelled
" to say that the lino of mere authority upon questions of dain-
" ages like that here pre.sented, if any such line can be traced
" tlirougli the conflict of hostile; decisions, is too confused and

40 " tortuous to guide us to a safe or satisfactory result, without
" resort to the principles of natural justice and sound policy
"which underlie these questions and which have sometimes been
" overlooked, or obscured by artificial distinctions and arbitrary
rulf«.
" The principle of compensation for the loss or injury sus-
" tained is, we think, that which lies at the basis of the whole
•' question of damages in most actions at common law, whether
" of ciuitract or tort. We do not here speak of those actions in
" which punitory or exemplary damages may be given, nor of

.")0 ' those whose principal object is the estal.>li.shment of a right,
" where merely nominal damages are proper. But, with these
" exceptions, the only just theory of an action for damages, and
' its primary object, would seem to be, that the damages to be
" recovereil should compensate the loss or injury sustainetl. We
"concur entirely with the t'ourt of Appeals in New York in
' (biffin V. C'olver, 10 N. Y., 402, in repudiating the doctrine
" adopted by Mr. Sedgwick, from Domat (Sedgw. on Dams, 3, .S7,
' :1H, etc.), that ' the law aims not at the satisfaction, but the divi-
" sion, of the loss.' Such, it is true, is often the result of an

f)0 " action, but never the object of the law. The law may, and
" often does, fail of doing complete justice, from the imperfection
' of its means of ascertaining truth, and tracing and apportioning
" effects to their various causes ; but it is not liable to the reproach
' of doing positive injustice by design. Such a doctrine wouhl

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156

(^Mr. Beique's Argument.)

" tend not only to niako tliu law it.scif oilious, but to corrupt its
" ailniinistration, l>y fostering a disregard of the just rights of
" parties. In actions upon contract, especially, and those nonun-
" ally in tun, but Hiibxtantially upon cuntrnct, courts have thought
" it generally safer, upon the whole, to adopt certain definite
" rules for the government of the jur}' by which the damages

10 " coidd be estimated, at thi^ ri^k of falling somewhat short of the
"actual damages, by rejecting such as could not be estimated by
" a fixed rule, than to leave the whole matter entirely at large
" with the Jury, without any rule to govern their discretion, or
" to detector correct errors or corruption in the verdict. In such
"cases, therefore, there has been a strong incliiiHtion to seize
" upon such elements of certainty as the case nnght happen to
" present, and as might appro.ximate compensation, and to frame
" thereon rules of law for the tiKiasurement of damnges, though
" it might be e\ ident that further damages must have been suf-

20 " feied, which, however, could only be estimated as a matter of
" opinion, and must therefore bo excluded under the r\iies thus
" adopted. And it is not to bederued that this course of decision
" has sometimes been extended to actions purely of tort."

" Hut whatever ]>lausibil ty there may be in the theory of
'■ Mr. Sedgwick when ap|)lied to actions upon contract — a
" plaiiNiliiiity which arises from mistaking the lesult for the
" ol'jeet — tin! injustice of such a princifile, when applied to cases
" of actual, positive tort, like that here in (|uestion, would be so
'■ gross as to shock all sense of justice."

oO '■ It has been frequently saiil that the luli; of damages, where
" there is no fraud, wilful negligence, malice, (ippressioii, etc, is
" the same in actions of tort as in those upon contract. Hut,
• though the remark is doubtless true in its application to those
" cases of tort where, from the nature of the case, elements of
"certainty exist, by which substantial compensation may be
" readily estimated, ami other case.s which are but nouunally in
" tort, we do not think it can be accepted as a principle of
" universal application ; not, in our opinion, can it be justly
" applieil to any case of actual, aggressive tort, where, from the

40 " nature and circumstances of the case itself, no such elements of
" certainty are found to exist, or none which will apply sub-
" stantially to the whole case, nor to any case where the rule
" applicable to breaches of contract woidd exclude a material
" portion of tlie damages the injiu'etl party may have suH'ered,
" though the aiuount of the latter may not be capable of accurate
"calculation by any tixtnl and defiiute rule."

" None of these several considerations have any bearing in
" an action purely of tort. The injured party has consented to
"enter into no relation with the wrong-iloer by which any

oO " hazard of loss should be incurred ; nor has he receiveil any
" consicleration, or chance of benefit or advantage, for the
" assumpti(/n of such hazard ; nor has the wrong-doer given any
" coiisideiation, nor assumed any risk, in consequence of any act
" or consent of his. The injured paity has had no opportunity
" to protect himself liy contract against any uncertainty in the
"estimate of damages; no act of his has contril)Ut'id to the
"injury: helms yielde<l nothing by consent: and, Ituist of all,
" has he consented that the wrong-doer might take or injure his
■' pioperty or deprive him of his lights, for sue'; sum as, by

0(» " tin- strict rules which the law has established for the measure-
" ment of damages in actions upon contract, he may be able to
" show, with ceitainty, he has sustained by such taking or injury.
" Kspecially woidd it be unjust to presume such consent, and to
" hold him to the recovery of such damages only as may bo

137
(Mr. Bttique's Argument.)

'20

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0(1

measured with certaintj' liy fixed and definite rules, wlien tlio
caKe is one wliicli, from its very nature, atibrds no elements of
certainty by wiiich the loss he has actually suHered can be
sliown with accuracy bj' iiny evidence of which the case is
susceptible. Is lie to blame because the case happens to l)e
one of thi 'character ? He has had no choice, no selection. The
nature of the case is such that the wron^^^loer has chosen to
make it ; and upon every principle of justice, he is the party
who should be niaile to sustain all the risk of lo^'s which may
ari:<e from the uncertainty pertainin;; to the nature of the case,
and the difficulty of accurately estimatinj{ the results of his
own wrouf^ful act. Upon what principle of rij,d)t can courts of
justice assume — not simply to divide this risk, which vvmdil be
thus far unjust — •l)ut to relieve the wron}{-doer from it entirely,
and throw the wliole upon the innocent and injured party ?
.Must not such a course of decision tend to encourage tres-
passes, and operate as an inducement for parties to right
themselves by violence, in ca-os like the present?"

''Since, from the Huture of ihe ease, the durnages cannot be
estimated with certainty, and there is a risk of giving by one
course of ti'ial less, and by the oiIhm- more than a fair compen-
sation — to say notliiiig of justice — does not sound policy recpiire
that the risk should be thrown upon the wrong-doer instead of
the injured jiarty ? However this question may be answered,
we cannot resist tin; conclusiin that it is better to lun a slight
risk of giving somewhat more than actual compensation, than
to ailopt a rule which, umlerthe r ircunistancesof the case, will,
in all reasonable probability, preclude the injured party from
the recovery tif a large jjroportion of the damages be has
actually sustained from the injury', though the amount thus
excludetl cannot be estimated with accuracy by a fixed and
certain rule. Certainty is doubtless verj' desirable in estimating
damages in all caues ; ami where, from the nature atid circum-
stances of the case, a rule can be iliscovered by which adetjuate
compensation can be accurately nieasureil, the rule should be
applied in actions of tort, as well as in those upon contract.
Such is (piite generally the case in trespass and trover for the
taking or conversion of personal pioperty, if the propel ty (as
it generally is) be such as can be readily obtained in the
market and has a market value. But shall the injured party
in an action of tort, which may happen to fuinish no element
of certainty, be alloweil lO recover no damages (or merely
nominal) because he cannot show the exact amount with
certainty, tlntugb he is n-ady to show, to the .satisfaction of the
jury, that he has sufieied large damages by the injury?
('ertainty, it is true, would thus be attained, but it woulil be
the certainty of justice. And, though a rule of certainty may
be found which will measure n portion and only a portion of
the damages, and exclude a very material portion, which it
can be rendered morally certain the injured party has sustained,
though its exact amount cannot be measureil by a fixed rule ;
here to apply any such rule to the whole case, is to misapply
it; and so far as it excludes al! damages which cannot be
nieasured by it, it perpetrates pwitive injustice under the
pretense of administering justice."

" The law does not recjuire im|)ossibilities, and cannot, there-
fore, require a higher degree of certainty than the nature of
the case aduuts. And we can see no good reason for re<iuiring
any higher degree of certainty in respect to the amount of
damages than in lespect to any other branch of the cause.
Juries are allowed to act upon probable and inferential, as well

:' '-ni

, I' >'

■a ' .'■>

jpr

(Mr. Beique'H Ar^ruinetit.)

" as direct nml positive proof. Ami when, from tho nature of
" tlie casu, tile aiiioiiiit of thu daiiiajjos cannot lie csiiniated with
" certaint}', or only a part of tliem can be estiinated, wo can see
" no oliJL'ction to plucin;{ liefore the jury all the facts and cir-
" ciiniNtanccs of the case, havin^r any tendency to show diinia^^es,
' 01 their prohulde aiiKiiint, ko as to enahle thcni to make the

10 " most intilli^iiiie and prolialile o.Htiniate which the nature of thu
" case will permit. This should, of course, he done with such
" instruction and advice from the court as the circumstances of
" the case may tefjuire, and as may tend to prevent the allowance
" of such as miy he merely possible, or too remote or fanciful in
" their character to lie safely considered as the result of the injury,"
" Hut it is insisted that loss of profits constitutes no piopcr
" ;{iouiid or eleiiieiit of dnnia<rcs. If there he any such rule of
' law it is certainly nut a universal, .ind can hardly he called a
" general rule. Decisions, it is true, may he found whieli seem

20 " to take it for j.'ranted that the rule is universal. Hut there are
" numerous cases, even for breach of contract, in which profits
" have been properly held to constitute, not only an element, but
" a )iii7(,stu'e fand sometimes the mili/ mt'iiHure) of damajjes ; as
"in .Mast.rton v. The Mayor,? Hill,'(il ; I'hil. W. & H. 11. K. Co.
" v. Howard, 13 How. 344. And in actions for breach of contract
" in nut delivciin^; !,'o(ds (as wheat or other articles) havin;^ a
" inurkctal le value, as well as in most actions of tresjiass or
" trover for the takin<; or conveision of sueli property wherever
" the difj'erence between the contract price, or the maiket value

30 " Hi the time of takin>,' or conversion, and the hi^jher market
" value at any suliseijUent period, it held to constitute the
'' damn<;es,— in all such eases this difference of price is but another
'■ name for jirotits. and is yet very properly held to be a mi asurc
" iif iliimuyes. 'I'liere is nothing, therefore, in the nature of
" picitits, as such, whieh prevents tlieii- allowance as damarjes.
" Hut ill iiijiny, and perhaps the majority, of cases upon contract
" in which the (piestion has arisen, they have been too remote or
'■ dependent upon too many contin<;encies to be calculated with
" reasonable certainty, or to have been within the contemplaMon

40 " of the parties at the time of entering into the contract."

" Hut there are also cases for lireach of contract where
" thiiu^di the profits were in their nature s imewhat uncertain
" and contin;,'ent (and in most of them ipiite as much so as in the
" ple^ent case), they were yet held to constitute, not strictly a
" nieasur"'. but ai! element of daina<res proper for the considera-
" tion of a jury, to enable them to form a jud;^nient or probable
"estiiimte of the <lania}{es: as in McNeill v. Keid, 9 Hint;., (IS;
" Haj^l.-v V. Smith, 10 N. Y., 48!) ; dale v. Leckie, 2 Stark., 107 ;
• Ward" v. Smith. 11 Price, 1!) ; Urines v. Dwi^ht, 17 Wend., 71 ;

iiO " and see Hassenj^er v. Thorburn, ,'}.') Harb., 17.. And in Waters
" v. Towers, 20 E. L i: K., 410, the jury were allowed to take
" into consideration the profits •■•hich mij^ht have been made
' upon a collateral contract (though void by the statute of frauds)
" and see .McNeill v. Keid, supra ; while, iiy the American
" authorities, profits of this description have Ijeen almost
" uniforinaly rejected."

But whatever may he the rule in actions upon contract, we
" think a m<'re liberal rule in regard to damat^es for profits lost,
" should prevail in actions purely of tort (exceptinij perhaps the

GO " action of trover). Not that they should be allowed in all cases
" without distinction ; for there are some cases where they mi^hl
•' ill their nature, he t<io entirely remote, speculative or contin-
" ^enl, to form any reliable basis for a probable opinion. And
" perhaps the decisions which have been excluded the anticipated

159

(Mr. Boi(|Uti'H Argutiiont.)

" profitN of a voyage broken up by illegBl capture or collision,
" limy i>o properly justifieil upon this ground ; upon this, however,
' we express no opinion. But generally, in an action purely cf
" tort, wliere the amount of profits lost by the injury can bo
•' shown with reasonable certainty, wo think they are not only
-' atlniissiMe in evidence, but that they constitute, thus far, a safe

10 'measure of dainnges ; as when they are but another name for
the use of a mill (for example), as in White v. Mo,seIey, 8 Pick.
" .S'i(i ; or for the use of any other property where the value or
" profit of the use and can be made to appear with reasonable
" certainty by the light of pas*, experience, as might often be
"done where such profit.s had '>uen for n connideralile time unifom
" at the same season of the year, and ther.; are no circumstances
'• tending to show a probable diminution, had the injury not
" occurred."

" Past profits in such ea.sos, where the business has been con-

20 tinned for some length of time, wouhl constitute a very material
• aid to the jury in arriving at a fair probable < .tiniate of the
" future profits, had the business still continued without intcr-
•' ru|ition."

" Accordingly such past profits have been alloM'ed for this
" purpose, both in actions ex contractu and ex delicto, though
" more fre([tiently in the latter, where from the nature of the case
" no element of greater certainty aj)peare<l, and the actual
" dftiiinges must be more or lesr, a matter of opinion ; and where,
" as in the present case, though somewhat inconclusive, it was

SO • the best evidence the nature of the case admitted. See Wilkes
" v. Hiingerford, 2 Bing. N. C, 281 ; Ingram v. Lawson, fi Bing.
"N. C, 212; Lii-our v. The Mayor, 4 Deur, •!()() ; and the follow-
'■ ing in actions upon contract ; Driggs v. Dwight, 17 Wend , 71 ;
" Bagley v. Smith, 10 N. Y., 489."

" But it is urged by the coun.sel for the defendant that
' (Ir.iiiages for the loss of profits ought not to be allowed, because
" they c.iuld not have been within th contemplation of the
" def^niknt. Whether, as matter of i..v;i,, this is likely to have
" bifu true, wy do not deem it important to inquire. It is

4(1 " wholly immaterial whether the defendant in committing the
" tr(>spass actually contemplated this, or any other species of
" damage to the plaintitt'. This is a consideration which is
" confined entirely to cases of contracts, where the question is,
" what was the extent of obligation, on this respect, which both
" parties understood to be created bj- the contract. But wh'ere a
" party commits a trespass he must be held to contemplate all
" the damages which may legitimately follow from his ill-.»gal act.
" And where a party, though acting in good faith, yet knowing
" his right to be disputed by a party in possession, instead of

.'iO " resorting to a judicial trial of his right, assumes to take the
" law into his own hands, and, by violence, to seize the property
" or right in dispute, he must be held thereby to assume, on the
" onu hand, the ri.^^k of being able to show, when the other party
" iiriiigs him into court, that the property or right was his, or
" that his act was legal : or, on the other, of paying till the
" davKigen the injured party may have suffered from the injury ;
" and if those damages are in their nature uncertain, then such
" as, from all the circumstances, or the best light the nature of
'' the ca.»:e affords, a jury in the existence of good sense and

(iO " sound discretion, may find to be a full compensation."

This, of course, contains abnut all the reasoning that can be
offered on the question.

The next case to which I desire to call attention was referred
to by my learned associate It is the case of the " Argentino,"

IH'!

1 1

100

(Mr. Beiqiio'M Ar^^ument.)

14 Appeal Cases 519. I will read tho hoad note and a short
passage from the jtidgiiient : —

" A collision occurred between two vessels, tho A. and thn 0.,
*' shortly after a contract had been made by the owners of the
" A., that upon tlm completion of her then voyage she should
" proceed upon another voj'age. The repairs to the A. ma«lo

10 " necessary by the collision could not be completed in time to
" enable her to fiilKI the contract. In an action by the owners
" of the A. against the owners of the O., the former claimed
" damages in respect of the loss of the earning*<, which would
" have been derived from the employment contracted for."

" Helil, atlirming the decifion of the Court of Appeal (13 P.
" D , 101), that the damages claimed were not too remote but
" flowed direetly and naturally from the collision, and that such
" daiiiiigcs shoulil l)e allowed as woubl represent the loss of
" ordinal J' and fair earnings of such ships as the A, having

20 " regard to the fact that the contract had been entered into."

Reading now fiom Lord Hershell's remarks : —

" The question raised by this appeal is whether the damages

" claimed hy the ' Argentino,' in respect of the loss of the earn-

" ings which would have been derived from the ompioyment of

" the vessel which had been arranged for prior to the collision,

" are in point of law recoverable. It is admitted !hat there is

" no special rule of tho Admiralty Court governing the ((uesfiou,

" and that the law there administered in relation to such a

■ " matter is the same as prevails at common law. Your lordships

tiO " have, theiefore, to consider whetbei', if this were an action
" brought in the Courts of Common Law and tried by a jury,
" the judge ought to have directed the jury that these danuiges
" could not be recovered on the ground that they were too
" remote. That damage, (hough undoubtedly traceable to the
" wrong in respect of which the action is brought, may, never-
" theless, be too remote, and therefore not recoverable, is beyond
" dispute. I do not think there lia^ been much difference of
" opinion as to what constitutes remoteness of damage. Tho
" definitions which have been given, though varying in their

40 " mode of expression, ap])ear to me to be substantially the .same.
" They have generally taken a negative form, indicating what
" damage is not regarded as too remote, and leaving all else as
" properly fulling within that description.

" I think that damoges which flow directly and naturally, or
" in the ordinary course of thi.igs, from tho wrongful act, cannot
" be regardeil as too remote. The loss of the u.se of a vessel
" and of the earnings which would oniinaii^j be derived from
" its use during the time it is under repai , and therefore not
" available for trading purposes, is certai.ily damage which

50 " directly ami naturally flows from a collision. But, further
" than this, I agree witFi the court below that ^he damage is not
" necessarily limited to the money which would have been
" earned during the time the ve.ssel was actually under repair.
" It does not appear to me to be out of the ordinary course of
" things that a steamship, whilst prosecuting her voyage, should
" have secured emploj'uient for another adventure. And if at
" the time of a collision the damaged vessel had obtained such
" an engagement for an ordinary maritime adventure, the loss of
" the fair and ordinary earnings of such a vessel on such an

60 " adventure appear to me to be the direct and natural consequence
" of the collision."

The Commissioner on the part of the United States : — If I
remember correctly in that case, the injured vessel was not pro-
cee<ling under her charter, but she was proceeding to a port

nil

(Mr. Iti'ii|in's Ai'^^iimfiit.)

2(1

:i()

wlnTi' sill" wn^ ♦'> li"»il imiirr Iiit cliurl'T 'I'ln- a|)|ilii'iition of
till' mil- in tliiit (Ni-*!' -i'''iii.'.l (•) nil' tu :^ii ulittli' I'mllii'i- ilian any
ullit-r rn-ii' I liiivc m-cii.

Ml'. ric-ii|iii': -'I'lii- cliiTctimi nftli" tir^f jiilj^' wat us t'nllows:
" Uct'tT liiick till- rcpDit of till- lt'"^'istrar for fin tluT coii^i<li riitinu •
lis ri';,'anls Itcin NumliiT HI.'jiii'I Iti'in lt> wa . for l)-is of iMrniii;^^.
10 Till' t 'iiiirt of Aii]ii'aN, liy tlii-ir luli- of August !t, ISSS, " nfiTn-il
liMi'k tin- ii'i>.iit to tin- Ui'.'i-itiar for fiiitlicr (;iiii-.ii|i'iat.ioM, witli
(liiiTtioiis lliaf sudi ilaiii;i'.,'rs slmiill In- allowi'il in ri'>[)i'fi of
tiii-i cipliisii'ii lis wiiiilil ii'|iri'si'nt tin- loss of oiiiiiiiiiy ami fair
I'aiiiiii^s of Hiiuli a slii|i n-i till' ■• ArLT-'iitiiiK," Imviii;^ ri i/aiil to tiii^
fact liiiit sill' was fur tlu' liiiH' on Wcsu-oit's line of sIcaniiTs
trailiii;^ til All^\all>lrill iiiul li iIih lilack S.'a, aiul Hilvi-itiisi'il to,
sail as suirli." Si> tiiiit, ib app'-ars from this ruftTfiici! tliaC it liiil
not I'car at. all on tlic faiT. tliat lli'^ Vi's^i-l cliai trn-il. or was
,.ii._rfti^(i'i| for a si'coiiil voyai,"', Imt if liorn imiinly on tin' fad. lliat
till' vi'ssi'l was in that line of IiusIihms, an<l was ailvi'itisnl as
such, an I was pri'siiiin-il .o IIimI I'liipioyMn^iit in thr traih-.

TIk! C.iiiiiiiis^ioiM'r on iIm! part, of tlm Uiiitu'l SiatL's : — I
nmlcrstand tlio House of Lonls >>avi' tliti vi^ssel tin,' liciiciit of the
I'haitcr for till' voyaijc, I'lit sho was tln.'ii procumlin;; to tiio port
whcic she was to loail nnilcr the charter.

Mr. Iii'ii|U" :--'rhe Hoiisc of Lords went still further. Tliey
Illiiijilii'il the rt'l'elelioe of the first jllil'^'e to the referunci? as
a|ip''ars from what [ iiave read here. It was irrespective of any
charter party, or any special ai^n-i'ement, and the decision rested
niainly on the fact that I lie collision had prevented her from
carry ini; on her rc^inlar trade.

.A eomp.'irison nf thiHcaseof the " .\r;;eiitino." with that of
the •■ Amialile Nancy " is the more ini|iiirtMiit lieeausethe deeision

^)l' hoth theColM't iif .Vlipeals and of the House of Loi'd.s CHI lies

directly in contlict witli the jii'inciple enounced in the ease of
the " Aniialile Nancy" hy Mr. .lu.Htiee Stiii'V, and which was in
these terms : -

" The proliahle or po.ssilije licnetitsuf a voya;,'e as yet in fieri
"can never atl'ord a safe rule hy which to estiiii.ite ilama;je in
4(1 ■ cases of a marine tresjiass. 'I'liere is so much nneertainty in the
rule itself, so many conliuj^eiieies w liicli may \ary or e.\tin;iuish
" its a]ipliciitii>ii, MU'I so niMiiy ditlieulties in sustaining; its le;;al
" curreclness, that the court cannot lielieve it proper to entertain
•■ it."

The Voy.lLje in the ease of the " Arijentino" w;is sui'ely hi
jifvi : nevertheless the ( "ourt of .Appeals and the House of
liords came to the conclusion that the prospective earnines
should he taken into consideration.

I need not refer to the ease of l'hili|)s vs. the London \'
,')(» North Western Railway Company, o (". I'. 1)., p. 2H(), excejit by
way of eallinj; attention to the comment which is to he found
in tlie hrief of the I 'ni ted .States, paj;e Il-'l: —

"The case of iMiilips vs. l.,ondon and N. W. H. H. was an
'■ action foi' ])ersonal injuries and for pain and suHerinj;. tiy a'
•• passeuj^er on a raili'oad train. He was a surj^eon in active
" practice, and it was the ordinai'v case, governed hy its own
" rules, for such damai^es, including;, of course, loss of earnin<;
"power directly traceable to the accident, as a Jury niii^lit see tit
" to i.'ive under the evidence."
(!(> I niij^ht add, were not the ship.s and their eipiipments earn-

iiij; powers possessed l)y their owners, and waw not the loss t)t'
this earnin;f power directly traceable to the seizure ^ H' it Ih
uncertain whether the ships' owners wouhl earn anythiuf; in tliis
case the same unct^rtainty would apply to Dr. Phillips, the

■■ :< ivi

iv:

:.-;oSa

.!{

Ill-i

(Mr. l<tic|iif'H Arjjimiiiit.)

Aiiotlicr Nti'dii;; caHc in tlic name ni'iisc, is tlic ciihi' (if
lilt' "Star of India." ri'|MHtf'l in I I'loiiatc hivi.sion, |ia;;t»
10 4t!<i, I il(i nut lliinix it wa^ rcl'iTrcil tn in tlic wiittfii iu';;iihi('nt.
It \s aUii n caMc nl' cullisicin the liraii iKitr \n tJiis : —

" A liiu'ijui', Ivin;; in tlir MaiJraN Hnaij.s, wan cliartt'i'cil tti pro-
"ct'cij til the ( 'iii'iinianili'l cuast, ami tliiTc liiail a car;;!! for
" Lonilon, at a frcij^iit of ')."is. ptT ton. Wlicn almiit to prooTil
"toiit-r loading poft.slic wa.s run into and .scrioiisl .• dania;;i'd hy
"a Nliip wliost' <iwni't°N admitted tlit-ir iiahilily for tlu> collision.
•' At a reference licforc tli«! nejjistrar, assisted by nicrcliants, to
"nsNe.sMtlie dama;;<(s, it was proved that, owinj; to the hArijiie
" having heen delayed at Madras for repairs, rendered necesNary
20 "liy the collision, tlie charterers iiad acipiircd a rijjiit to cancel
"the charter jmrty, and tliat they had cnnoellcd the charter
" party ; afterwards, wlientlu' repairs were completed, the liHriint*
" iH'in;; iinahle to procure more protitahle employment, sailed
" from Maclras for London with carpi, at a freij;ht of 4s. per ton.

€0

"The Ke;;istiardisallowi'd a laim made by the plaintiffs in res-
" pect of the loss <if the eharte
" tirt's' ajipealed to the Court:

e hy the pi
) cancelled,

and the phiiii-

" UpIiI, that the ca.se must he a;;ain referred to the re^jistrar,
" with <lirections to include in the amount of dama;;eg a sinn iu
" resj t <if the loss of the chart er-pai'ty."

'I'he jtid;;menf was ii-ndeii-d liy Sir |{oliert I'hillimore, and it
will he of .some interest to read a jiortion of his notes, hh it also
shows that the <|Ui'stion of remoteness was considered. lie
Hays : — •

"The inaiii ^.jrouiul upon which the Kc^^istrar foundi'd his re-
" I'ejection of the item ot the loss of the lienetieial charter-party,
"and which has lieen insisted upon in the argument liefore nio,
" was that the claim for ilamajjes on this account was ttio remote.
"Thin was the main ;;roinid : hut tln» Ue^nstrar a])pears also to
" have hoi<l*'n that the proximate ciiuse of the Iosh was theo]itioii
■ijivcn hy the charler-|iarty t<i the charterers, and which they
"e.\ercJs'«| hy can(;ellinj; the a;;reement, hecaus«' the Hhi|) diil not
"arrive so aw to he readv to tako iu carjjo hy the 10th of .May."

" 1 may dispo.se of this latter ijUcstion tivnt. I am luiahle to
" Hei' how the jjrantinjj of this option, which it was perfectly
" competent for the owners of the "Cheviot " to make, can W in
"any le;;al sense considered the real or i)roximate cause of the
" los.s. I'lUt for the damap>. there is every ])rcsuniption that the
""Cheviot" would have arrive<l in ])roper time, and that there
" would have heen no opportunity j;iveM for the exercise of the
"option. "

" With rejfard to the nuiin objection of remotenesn, it has
"been contende<l that the ordinary lenj^h of the voyajjo froni
"Maih'asto (lopaliH)ro was hjx daytt : and, thou};h it admitted
•' that the ship had three days over the time necesajiry for th«
" acconipliHhiiieut of it, and that at the time the collision hap-
" pened, according to the evidence of the captain, the " Cheviot"
" wiVH ready to proceed to tJopalpore, which was the first port
" slie had to procee<l to oa the Coroinandel coast to lotid,
" and at the time the collision happened we were actually
" heaving short on board the " Cheviot " for tlie purpose of
" getting under weigh for the purpose of proceeding to the said
" port of " Oopalpore." The voyage may thereiore be said
" to have begun, but it is contended that, nevertheless,

l(i:<

(Mr. lli'i<|iit;'H Arnuiiii-iil.)

• ilic Nliip iiii;;lit hiivi' Hint widi noiiic ihtIIh tiiTDi-f slii-
"iii'rivi'>1 lit lii'i' loit'liii^ |)(ir( iiii^lit hiisc Immmi lust, nr lit li-a-nt

• il('li»y<!'l hy liii'l wi'iitliiT, itn I tlmf nil llif |iliiiiititls ciiii )»• mhuI
•• 111 hiivc lost wiiM till' oliiiir't' of |M'i'l'iiriiiiii;; llif cliartiT imrty,
" wliii'li in too ri'iiiiitf an iti'iii to Im tHki'ii into u'coiini ni tlii'
" I'liiiHiilci'ntion of coiiiin'iiMiition. 'I'lic hiihwit to lln'si- olijcctiouH

]() 'ii|i|i<-ars to iiui to Ihi that, tlioii^li tlit-y may avail to hIiow that
•tlio wlioli- NII1II wliicli rcpn'Sfiits tin' Ionh of the iH'in'ticiai cliiir-
" ter party riiniiot In- t'laiini'il, tiut that iifcrtain ijciliictioti Hhotiiii
"he iiiHilf from it, tli(\v i|o not itvaii toHliow tliiit tho item NhoiiM
■tiiliri'ly l«' Ntrtick out."

It HCfiim to me that the iioMin;; in thiH caHo is clfnrly iit
\MriiinPL' witli thu iliotii in lln) ciiso of tho "Aniialilc Nancy," tht-
case of the " Lively " and thi' ca.st' of tht- " Colniiiltus."

"Tin' ('oMiiiiisHionor on the part of (irt'iit Hritiiin : — It HceiuB
ti> me that the fact of thti cn^^a^t'ment having hocn niailu wait

>.>(! an )'ss«tntial part of the concluHion wiiich hu Ittarned Jutlge
eamu to.

Mr. B»'i(Hio:— Well, aH a matter of fact, the caHc tiirneil on
th'' point that tho charter partv wiih ma<h'— lait if your Honor
will IfMik to tho lan^iia^e of tho Hoiiouralile .luil;;e, you will
liml that it in wider tlian that. It enounces the principh^ that
it is merely a iiuestion of proluibility. He deals with the ijueH-
lion .if prohahility that the tthip mi;;ht complete her voyage or
iiiij;ht not complete it.

'{'he Commissioner on the part of (Jreat Uritain:— I think

,!(» ill the direction of the Court ot Apjieal. in the " Ar;;entiiio," the
words " having re;;iird to thi^ fact the vessel was advertized to
sail from a certain port : " were taken as ei|uival}'iit to and aa
iiiiplyinj;. that she was under an en;;a;;eiiient,an(l was ei|uivalent
to sayiii;;, haviiij; rej^ani to the fact tlmt she had an t'lif^ajjeiuont
fur her voyajj;!'.

Mr. l{ei(|iie: I would not reijuire, your Honor, to ;;o any
further than that.

The CommiHsioner on the part of (ireat liritiiin : — I'erhaps
not l)Ut I think that is the conclusion.

411 Mr. hei(|ue : — In this caMe the vcmhcIh may be Haid to have
lieeii under eiiifa;;ement. They were actually under an en;;aj;e-
iiient. They had been sent to Helirinj.;Sea for a certain purpose,
and they were in the act of accomplisliin<; ftie purpo.se of their
voyajfc. It seems to nu^ that they would come clearly within
that holdini;. Hnt ajjain, the discii.ssion is always as to the
i|iiestion of remotenes.s of thedama<,'e, and it st-ems to me to bo
the result of all these decisions: that when the court considered
that the damaijes were direct, when the}' were not remote, the
plaintitr recovered. If, on the other hand, they considered that

."JO it was an indirect conse(|Uence, tho plaintiH' was non-
suited. It is usele.s,s t') dis^rujne the fact that several years ajjo,
ill Mr. Justice Story's time, the Judjjes were much more striufjeut
and much more inclined to be formal than our modern Judgen
are. The science of jurisprudence is no more stationary, ami is
uiiderjjoiiijj the name process of evolution as all uthor sciences.
Widei' views are taken and more lilieral rules are applied.
When tho damage is proved to bo clearly the direct consequence
and intended by tho act committed, I do not think that a cose
can 1)0 found where the party did not recover. I had intended

CO to refer to^3 Wheaton, the case of the " Amiable Nancy," and
I had marked the volume, but as I cannot Hud it I may state
from recollection that Mr. Justice Story was evidently of opinion
that tho amount which had been awarded by the registrar waa
amply sufficient to cover all damages. He no doubt took

■^i

<• 'I i-

:,>

.1 '<

.ii j ,}l

'tf;'ii

1 1'

Kii

( Ml'. I!rii|ii"'''< Ar;,'iiniiiil )

«K'(>ll.siiill t>i siMtr wlllll I llsiili'I'i'il In lir I lie ;;i'lli'nil |il'iMi'i|llr,

rt'|i"iii. It iiiii|iii'sliiiiiiilily a|i|iriii'H to liavi- licoii IiIn

• li'i'ixiiiii iliiit llic iininiiiil wliicli liiiil lii-tMi iiwurili'il wan aiiiply

1(1 Niitlicii'iit to ciivt'i ail ciiiiiiii'iisiiiioii. to |iiit till' |iarty in tin- Haiiu-
jxisii inn MS it' till' I'ollisioM limi not iiikm |il.ii'i'.

'I'lii- ('iiiiiiiiiNHii)ni'i' on till' |iai't ol' llir I'liiti'il Statrs: 'i'liat
casi' in Mii'lii^an, wlii'iT t III- mans liiisini^HH wa.s lu'okm ii|i liy
lir'ny I virlnl. wa.s soiiirtliinj; III' (liat sort.

Mr. I 'irkilison ; 'I'liat is a soimw lial t'aiiiiuis rasr, yniir
Honor. Till- liiir .Sinator ( 'liamllrr owiieil tlif |iro|ii'rtv, lait tbr
]ir<i|ii'i'ty wtiN iimli'i' Irasr to tlir (ilaint ill's /iiiil lir ciiulil not liny
Iiiiii out ami coiilil not ;4rt liini out in any otlirr way. It in a
20 fast' wliicli is always rliararti'ii/.t'il a« of tlir iiionI malirioUH,
w anion mikI out la^i oils torts i'\ ir roniiiiiltril, Sin;ilor ( lianilli'i'
tliri'W tlown till' Knil>iin;;s oM'r tlii' mans lirail.

Mr. lHii|Ui': In tln' " l.ivi'ly " chmi', Mr. •lust ici- Story mailr
a sliitiimnt wliii'li sliows tliat ln' was satislinl tliat llir rr;,Mstrar
liail ;4i\ I'll j'liil roiii|ii'nsatiiin to tlir plaintiir. ( )n |>a^'i' MlH of
(lallison's l!i'|iiirts, Mil. I Mr. Justii'i! Story Hay.s :

" In t'onsiili'iin;,'. Iiowi'vcr, tin' iiropor inraHiii'i; of (|ama;;i'H, I
"am not awari' thai tlirrc fVi-r lias lirrn allowcil any vimlictivi)

;{() " <'iini|Mn.sation, nnlrss wlurr tin' niisroinluct lia.s lii'i'ii vrry
•• ;,'riiss, ami lil'l li'.-tituti' of all aiioiii;;y. It will lie ri'rolli'fli'il
"on till' iH'i'M'tit occasion, tliat tin' ociiircncc was soon after llic
" coinincnci'incnt of thu war, ami that from loii;^ hahits of pcact',
" a ijiioil deal of iniliili^cncc ouj^ht to lie allowi'il to the errors and
" misconci'|itioiiM which j;row out of a state of tliin;;s so novel amJ
" einliarrassiii;;. "
At lia;;e :121 :-

"I coiife.s.s that I wnsstruck with the unusual amount which
" was a.ssesM'il as ilama;,'es, — an amount which exceeils the whole

40 "\alue o'' the schonner /Hid car;,'!! a.s jiresinted on the ]ia|ii'i'H.
•■'riii'wli. ■ value is liut ?*l,l(i7.l2, and the dania^^es awarded
"are .^l.^'.l'i :{(i. It has indeed lieeii siiei^rcsted, that the vessel was
" iiicii'used to a vahi^ eijual to S.'iOO. aflir her |iurchase ; hut there
" is no cvideiico of the faot : and adiiiittiiij; it to lie true, tint cx-
" tent of the dain.'i;,'i s is not uiaterialiy ad'ected hy that consider-
'■ ation. If the whole vessel and cari^o had lioen lost. it uii;,dit have
" liein ]irii|ii'i' to enter into a lilieial allowance. |!uf here they
" are restored, and there is not a title of evidence, to show that
"either of tliein HUstaiiud any injury in the hands of the raji-

•'JO "tors. The Voyage was not lost. There was no unlivery of the
" CRi'j^'o, and thu capacity of ju'rfonnin;; it still remained. \'et
" the sum j,'iveii in daniaees seems to have proceeded u|ioii the
"{ground, that the voyae;e was lost, thou;;li it mi;,dit have lieeii
" perfornied nt farthest in a week. '

In the •• ( "olumhus " case, ill. William iJoliin.son, pa;,'e IAS,
the principle for which w« are contendinj^ seems to hnvo been
favouralily considered. The lionoiiralile .lud;;e seems to havo
admitted that tlie jjoverniiifj nilo wa.s a.s to whether the party
waH put in the .same jiosition as liefore. He .says: —

<iO "The only ;;i'ounil which has lieeii su^ii^ested in tlu> ar^ju-

" inetit, in support of such claim, is the jirinciple to whicl'. 1 have
"just reverted, viz., that the plaintitl'oui^ht to he put in the same
■'condition in which he ntooi( jirior to tho collision: and in con -
•' tirniatioii of this, the court luiu been referred to ca.sfs of partial

hi.-.

(Mr. Itriijihs .\i';,'iiiin'nt >

•■ losH or iliiniii;,'!', wliiTi- nil /illnwimi'"' I'cir i|(iiiiirni;;i' |ms I n

"irivi'ii in ;i<l<litii>ii (u (In- iK'tmil iiiiiiiiiii( of the i|iuiiae;i' rnm-

" i|i|ii'iii'.H to inr, iliii'ti nut i'i|iiiilly i>|i|ily to tlir cii'iMnnstiini-i's ii|'

"ilii-ciiNi lii'fori' till' coiii't, Lrt <|H, loi' II nionicut, consiili-i' u lull

w ciuM lie tlio ill'ict, in nil cjihi's nt" tliis kin<l. of ;,'ivin;,' iiiiyliiin;;

|i, •• iicyiiiiii till' lull viiliic ut" till' vi'Msi'l ili'strnyi'il. Sii|)|i<win^. for

iiistiini*)', iliiit t lii.'< vi'NNi'l liiiil lii'i'n Mil l''.ll^•t Iniliiiiiiiin. ImiiihiJ

' (in lii'T iiiitwanl vnyn;;!' to tin' Kast liidics, with a valiinlilc

'carpi on Uianl, Tor tin- lraii>'|"irtation ofwliirh nut only wuiiM

■till' iiwni'i-N III- t'iitith'il til a lar;;i' aiiioniit. of fn'i;,fht, Iml the

• iiia.stei' iiii;;ht I ntitle'l tncoiisideralih' rontiiieerit |irolitH IVuni

■ the iilloWMIH'es niailc to llilll IIIHin slleh Voya;;e. ('iilllil this
i-uMI't take ll|iiill itself to c|i'e|c|e U|ion the ailiollllt of these

■ enii|ili;Ji licii's, ami to ileciee the |iayilli'nt of the Slime in luliji-

tinii to the |iiiyiiii'nt of the full value of the .ship:' I am
Oil I'leai'ly of ii|iinion that itciiulil Milt. The true iiile of law in

• such II fiisc woiiM, I conccivi', lie this, viz., to calculate the
'• value of the |ll'o|iel'ty ilestfoyed at tile tillie (if the lo.ss, ami

"to |iay it to tl wniTH, as a full imleninity to them for all

' that may have liapiieiied, without eiit' < '' '' for a moment into
"any other consiilcration. If the )ii'iMci|>l' to the contrary,

• contenileil foi' l>y the owners of the smacl, in this rase, were
'• on<'e ailmitteil, I see no limit in il.s ii|i|iiication to the <lit!icul-
" tics which would lie imposed upon i ' cotiii. It would extent
•• to almoMt cndli'SH ramifications, ami iii every c;\--.' 1 mi^^lit he

;{() 'called upon to determine, not only tlio valin' of th<.> ship. lint.

■ the profits to lie derived on the voyi|i.'e ni ixliich she liii;illt lie
" t"i;,;ii,'ed, and indeed even to those of Lue return voyaye, which
■■ mi;,dit he said to have 1 en defeated liy the colliHion. I'pon

■this consideration alone I slioulcl not, I coiu'i'ive, he justified
" in admittinir this claim: but I am further iMiriic ow' in so
'■ iloin;,', liy the ditl'ei'ence which exists lietween a total loss, and
• the case of a partial dama;;e, viy, , that in the latter case the
'■ iiiiiount of the ailditional injury in the loss of the frei<;ht is

■ capalile of liein;; acciu'ately calculated."

40 The CiimmissioMer on tho part of ller .Majesty:- IVrhaps
what Lord Justice lioweii says at pa;;e •lU'l of the ■ .Vreentino '
liiirdly hears i-,*(Iwdiat I .said as to that c.'ise His Lordship says :
'■ I caniiot sec that for the purpose of such proofs the existence
" ot an actual charter party in essential sinci? other evidence muy
" 111- eipially coi,'ent to estuhlish tli« loss of ompliiyinent. "

.Mr. lieiiiue :-Kxactly, your Honor. It seems to me that it
cciiiies to this : Whether there was or not, reasonahle crtaint)"
that the earniiiLjs or profits that are claimed would have heeii
earned or realized, Hiid that therefore it is a matter of proof:

."lO tiyin;,; to estahlish a cast iron rule, ns .Mr. .lustice .Story setMiisto
iiiive attempted to do, wouM surely defeat the end.* of justice in
a ;4ri'at many cases, and especially in caies of tort, where the
(lmiiai.;es are j,;eiierally the direct consc<iuences of the act com-
mitted. These are the only cases to which I intend to refer on
liiis (piestion of jirospective catch, and I shall now pass to other
heads of claims and dinposft of thotn in a very few words.

The next head is " Kstimated citch for the followin;^ .season."
As to these items, one must bear in mind that tlie .seizures are to
1)0 considered as illegal " that CJreat lirituiii had protesteil

(id against the .seizures a.id tlmt tho United St.ites (iov-
crnment had formall}' and expressly announced, in answer
tn the jirotests, as appears from the (lij.loinatic correspondence,
that the protests were taken into consideration. Not only
■so, but as I have already pointed out, the United States

I M "J

iDtil

■fjij

1%, ' ■ ■ .

hit;

(Ml-. Jii'ii|iu''.s Ai'i^iiiiicnt.)

iiifiiniici) (Ircut. Itritaiii, in niiswcr t) tluvsi- protests liy tliis notr

r,rl,„l,' ol" tin- l-Jtli April, I.S,s7, timt tiioy liiid tli ntt.T

iiiiilcr ciiiisiilcnitiiiii an I tlint (licy wmilil iiniiouncc tliiii dc-
ri>i()ii. Ni)\v miller sucli circiinistiiiu'es I say tliat tin* fiaims an'
nut I) lie cjinsiilcri'il as ciaiins falling' at all within tlic prini-ipic
") tiital luss ; till- oWMi'rs of tlli' vessels wi'i'e entitleil ti> expi'ct

!<• tliaf justii'e woiilil be (ioiic unil that their vessels \vt>ulcl lie re-
tin-iieil. 'riierefure 1 rlaiin that they wrre not oMigcl, anil
c'onlil not have lieen pxpecteil, to have investeil money —which
Very likely in most eases they hnil not -in purchasing other
vessels for the purpose of proceeiiinLj with their trade or with
their tishini; excursions They had the ri^'ht to expect, as lonj;
as the I'nited States had promised that they were eonsiderin;;
the matter and from the' fact that tliese seizures were ille;,'al.
tliat the <lecisioii would lie favorahle, and that their vessels
would lie returned. Therefore I say that, so lon;^ as tlu- vessels

2(1 were detained they are entitled to recover for the ])roHt which,

but for the seizures they would have earned with the ves.sels.

The same considerations apply to tlie items comin<; under the

lienil of: "Value ol tlio tise of the vessels for the period

lietween the two iisiiini; seasons."

Now as to the items coming; under the followiuij liead : " ICx-
penses. ille;;a! arrest, detention, imprisonment and other hanl-
sliips i)f masterii and mates, and in certain eases the value of
their time."

The ("ommissioner on the part of the United States: — In

no loiikiuL' at your list of claims on paije !••">, I (ind the item for the
seasons ISHtland ISS7, hut I do not tind the iti'Ui just men-
tioned - ' Use of vessels lietwt i ii the two .sea.sons."

Mr. liei(|uo: — I think j'our Honor neeil not trouble about
this, for I am merely n-ferriiiLj to it in a e;eiieral way. Your
Ibiiiiirs' attention will be fornially called to the matter when
de.'iliii'^ with the(.ises specilicallv. It does not apply to all the
eases hut only to a few of them. The only remark I have to
make iinijer the last headiiiLC '^ 'his : that the liberty of the
masters and mates was in many eases interfered with ; that the}'

4(1 were oppressed and kept under detention for a loni.; time, im-
piisonecl, and suiijecti'd to other serious hardships is beyond
ipiestion. 'I"he mi'rr fact of beiiij; arrested in Hidu'in^ Sea,
packed as they were in many instances in smdll cabins, taken to
Silka, and linally turnetl adrift some fifteen hundred miles from
liome. is in itself a matter for serious consideration. The books
are full of eases where even e;reater sums than here clumanded
have been awnrded for wilful wroni^s intlicted on the person ;
and it seems to me that the rules adopteil in such cases between
indiviiluals should receive application here, and that the amount

."jO slioulil even be larj^er in cast's of this kind.

The next item is : " Kxpenses and luird.ships of the otiier
nu inbci's of the crew and in certain cases the value of their
time.' I have alrea<ly siiown, in dealing with the .scope of the
t "on vention, that (treat Jfritain reserved all claims umlor this
lieaii and that 3«iur Honors are called upon to pa.ss upon tlieir
merits. On pages :120 and 321 of the United States brief, an
obj;ciion is raised on the alleged ground that you are reiiuired to
tind the amount of damages for each person, and con-
sequently each claim should Iiave been prcaented

(10 separately. The contention ia based on Article 3
of the Convention, which flays, " TI>o Commissioners
shall determine the liaVtility of the United States, if any, in
respect of each claim and assess the amount of compensation, if
an}', to be paid on account thereof." That the words " each

1«7

^Mr. I>('ii|tit''.s Ar;;mMciil.>

claim, " ri'for to niul cmnprisi! cvi-rylliinLj fomiccti'il witli t-ncli
iiiiliviiliiiil vi'ssi'l is iipprti'i'iit from oilier j)()rtii)ii,s i>l' tlie Cini-
vi'iilion, mill I'spcpiiilly iVoin tin- iii-t ;.iiriiij;riipli of Articlf i. and
;iiiJ till- list of cliiiiiis tlhTi- rcfi'iTi'il to. It Clin In- ^cimi tliiit thu
list, of cluims thus j^iv'-ii is liy immo of vessel, iliite of seizure,

M|>pro\iumte cIlHtHliee from lilUil wlietl sei/.ei|, nitme of tlie I'llitecl

\0 Siati's vesnel mukiuir tlie seizure. Ourim,' the sittin;^ iit N'ietoriii
wliile the evidence wus lieiii;,' taken, questions arose in eoniiection
with the fai't that niemhers of the crews of most, of the vessels in
(piestion were liuntinL; on a lay. 1 am not aware tlint it was ever
eont>n<le<l hy the iearneil counsel for the I'niteil States that
th'i'at Britain shouhl not he entitled to recover for such mcmhers
of tlie crew, or for the portion of the car^^o in which they were
individually interested. Nor am I aware that any such conten-
tion has heen raised in the I'niti'd States hrief If the rij^hts of
each individual memher of the cr«\v in a cari^o can thus he in-

'jo eluded in one clnini nmde hy (ireat (Britain in cotnicctioii wit))
individual vessels, why should not tlieir other rij^hts us niemhers
of the same crew ho likewi.se included !

Your attention has alrer.dy heen calleil to tlu^ " ( 'ostiv llicii
Packet " case, where an amount whs awarded for the
crew; und I call your Honor's atteutii>n to the fact that,
as appearing from tluit case, (a copy of the full report will he
handed to your Honors) pn^^e I.S, your Honors will tin<l that the
crew were also on a lay, and it was on account of their heinj; on
a lay tliat the amount was awarded.

:!0 'I'lie next item, I think, is the (piestion of interest. I
had some notes on the iplestioii. hut it has heen so fully
covered hy my learned friend Mr. Peters, that I may dispen.se
with takiii;,' any more time in connection with it.

With reference to the costs in the "Say ward" case, 1 need

jiot adcl anythini,'. if I have sui'c ded to show as I hope 1 have,

that, they come within the scope of the ('(invention. As I have
ulready stated these costs were presented hefore the Trilmiial of
Paris, and the veiy same amount whieli is now claimed was
claimed at I'aris, Thi-y svere also referred to in tiie ollieial

■id corresjiondence in coriiieetion with the appointment of a mixed
commission, at the time when the ipiestion of a lump sum was
taken up. and thev were atfain mentioned as an item of claim
in the mi'iiiorandum accompanviui{ Sir .liiliaii Paniieefote's leiter
(if June 7tli, I.S!>4..

I iiave t(Wipolo;»isc for linvin<:; tal^en so much of your time; hut
my excuse is the importanee of the case, the imiiortance of the
Ipiestion at issue, und the amount which is necessarily involved in
this matter. I could not hetter close my arijumi iitthan hy approp-
riating the very reuiurkahle lauirua);e of tlie present Cliiid" . Justice

.'lO of Kngland in closing his argument 'lefore the Paris Trihunal :
"There are two grrat Powers hefore you : one a representii-
" tive of till! civilization of the Old World, great in its extent
"of dominion, gi-euter still in its long unduring traditions of
" well onlered lihorty und in thestahility of its ancient institu-
" tious ; the other a J'oung hut stalwart luemher of the Kainiiy
" of Nations, groat) ulso, in its extent of territory, in the almoiit
" l>oundles.s resources at its conunaml, great, too, in the genius
" and enterpri.so of its poople, possessing enormous potentiuli-
" ties for good un the future of the huunin race. These powers

(iO " ace 111 difioronce. lireat Britain conceives that she lias heea
" wronged hythosrizures.in question ;(Icliange here ttiewording a
" little, that her .sovereignty hanheoii invaded; her rights upon the
" high soa, represented hy her nationals, hot at naught. Happily
" the dread extremity of war was avoided. These nations have

•I-

168

(Mr. I](ii|iii''s Arffiiinciit.)

"not sonnlit to turn tlioir pli)ni:^lisliaie.s into swonls, to settle
" their (iiricrenci's. Tlu-y iirc liori' licfore you, frifiidly litii^ants,
" pojifi'l'ul suitors in your ("onrt, asking liy pacific means tlie ail-
" justiiient ami tin; (Ictfriiiiiiation of tlicir rifiiits in times of peace.
" Tliis is, inilct'd. a fact of ^rcat moral sij^nilicance,

" Peace liatli lier victories nut less renowned than war."

At half-past four o'clock the Connnissionors rose.

Commissioners under the Convention of February 8th,

i8g6, between Great Britain and the United States

of America-

Le<;islative Council Chamber of the ProvinciRl Building,

At Halifax. N. S, September 2nil, 1897.

•2(t At 11 A. M. the Commissioners took tiieir seats.

Mr. Bodwell ; — May it please Your Honor.s : —

In the division of labor which has been arranged between the
counsel for Great Britain, it has been st-tlied that I should address
iiij'sclf particularly to the evidence relating a number of subjects
winch are dealt with at consi<lerable length in the printed argu-
ment for the United States. Before undertaking that part of my
duty, however, I desire to call your attention to certain authori-
;!() ties in support of the line of argument which has been already
uddn'ssed to you by my learnecl friend, Mr. Bei(|ue, upon the
point that certain indiviiluals mentioned by him who, although
their country of origin was the United States of America, were,
lit the time of the injuries complained of, domiciled in British
(Columbia, are persons on who.se behalf Oreat Britain is entitled
to claim compensation within the meaning of the present Con-
vention. In so doing, it is gratifying to observe that that which
may be taken as the very starting point of this argument is
common ground to the counsel upon both hides. I tind at page
40 43 of the United States Argument this short quotation from
Dicey on " Conflict of Laws :" —

"(1.) A peison's pre.sence in a country is presumptive evi-
" dence of domicile."

"(2.) When a person is known to have bad a domicile in a
" given country, he is presumed, in absence of proof of a change,
" to retain such domicile."

■' (;i.) Residence in a country is prima facie evidence of the
" intention to reside there peimanently (animtis manendi), and
" in so far evidence of domicile."
.")() To that statement of the law we desire to give our fullest
assent. Inileed, it would be remarkable if there could be any
ditlVience of opinion in view of the uniformity of decisiofi that
1ms prevailed whenever courts have berti asked to pronounce
upon the question.

The principal facts relating to the don)icile of the McLeans,
Hechtel, and Frank, have been referred to in the argument of
Mr. Beique. It is not neces.sary that I .should review that evi-
df'nce. For the purpose of any remarks I shall have to address
to your Honors. I shall assume that the domicile has been
<iO I'stablished as a fact upon the evidence.

The particular subject tc which I shall address myself is
discussed in the argument of Oreat Britain under the head cf
" Ertect of Doikiicile on Nationality," on page 47. In that argu-
ment we state that the Convention has left it open to the

; ! m\

ijiik

\V\ !*

.!itJ

'\?

r^.'r-;

170

(Mr. BodweU's Argument.)

Coiniiiis.sionerH to decido upon the facts as to the eflect of the
evidence relatini; to the alleged ownership of particular indi-
viduals in the ships referred to. We .say that is not concluded
hy the Convention but is left open to be deciiled by your Honors,
according to the principles of international law on the testimony
that has been taken. After making that statement we take the

10 position that all the claims advanced for }'our considera'ion here
are national claims. That docs not appear to be accedud to by
the counsel for the United States. On page ()7 of tlieir printed
Argument I Hnd this : —

"Of cour.se it is the universal doctrine, to which there are no
" exceptions, that if a citizt-n of one nation complains of wrong
" (lone him by another nation, his government must assume the
" responsibility of pre-ienting the claim. A claim on behalf of
" foreign sul'jects of another government under the established
" rules of international law is not entitled to consideration unless

20 " a demand is made by the government of the country of which
" the claimant is a subject or citizen."

This language, your Honors, may be taken as expressing a
truism so far as it goes, but it fails in this, that it does not state
in what character these claims are pre.sentetl when they are made
known by the one government to the other. If, as is suggested
in the argument for tlit; United States, the claim is to be con-
sidered as the claim of the individual instead of a national claim,
then I submit two positions would arise. First, if it were the
claim of the individual, the goverinnent would be bound to pre-

30 sent it irrespuctivi- of eveiy consideration e.xcept that a wrong
has been done which would re()uire instant and complete repara-
tion. Secoml, if it were the claim of the iiiilividual, the
government who presents it is the agent of the indiviilual, and, in
eo-ses where a money diMuand is made ami acceded to, wil! hold
the proceeds as tnistei- for the iixlividuiil and be bound to account
to him as the beneficiary of the fund. If, oa the other hand, the
claim is that of the nation, then we may expect that it will be
pressetl, delayed or abandoned, according to the exigency of the
foieign policy of the nation, and also where money is taken that

40 it will be received and held by the Sovereign as a part of his
prerogative, and be dealt with according to his sole will and
pleasure. Your Honors will find the authorities are in favor of
the position that I have la^t stated and are opposed to the for-
mer contention.

We quote in our argument on this point from Wharton's
InternutioMiil Digest, l)ttge ."),J8.

'■ Tiie claims presented to the French commission are not
" private claims, but goverinnent claims, growing out of injuries
" to privatf citizens or their prof)erty, inflicted by the Govern-

50 '■ inent against which they are presented. As between the
" United States and the ci'izens, the claim may in some sejise be
" regarded as private, but when the claim is taken up and presseil
"diplomatically, it is as against the foreign Government a
" national claim."

"Over such claims the prosecuting Government has full
"control; it may, as a matter of pure right, refuse to present
" them at all : it may surrender theiu without consulting tlie
" claimants. Several itistances where this has been done will
" occur to you, notably the case of the so-called ' French Spolia-

60 " tion claims,' The lights of the citizen for diplomatic redress
'■ are as against his own, not the foreign Government. For the
" class within its jurisdiction the commission stands in the place
' of the diplomatic departments of the two countries, and the
" respective agents and counsel represent, not the claimants, but

171

(Mr. Builwell's Arguinent.)

" tlioir I'cspectivo Goveriitnents, and it is uf the utmost iinpnrt-
' iince tu frankness, fair and iipriglit dealin<; hutween tliu two
' nations, that the agents and counsel should not in any manner
" Ipi; interested in the cases wliicl) they present or defemi. The
' conindssion is not a judicial tribunal adjudin<r private rights,
" l)ut an internBtional trihunal adjudgiiig national rights,"

10 Then on page 721 of the same volume I find this : —

" The claims of France, national in their nature, were thus
" set up again against the claim of the United States, individual
" in their inception, but niaile national by their presentation
" through the diplomatic department of the (fovernment."

There are other passages which I may refer to without read-
ing. Your Honors will find in the second volume of Wharton,
l)et;inning at page 707 ami continuing to page 72!) language in
which this same position appears to be stated over and over
again in dilt'erent form of words, iti dispatciies and other state

20 duOliments.

1 ni)W ask your Honors' attention to the case of Rustomjee
against the Queen, L. R. 1, Q. B. D., page 4S7. This case aro.se
under the following circumstances. Certain British merchants
wcie trading in China with a corporation calleil "The Cohong."
The peculiarity of that association was that the debts of any
iriilividuul member uf the association were considered a.s
the debts of the whole as.sdciation, an<l there were means provid-
ed by which if one refused to pay, the claim could be entered in
a certain book, and then the proper Chinese othcial would direct

'M that the matter should be investigated and that a judgment
should be pronounced, and e.xecution should issue for the recovery
of the dii't. An English merchant had a claim of that kind
which was not paid, aiul he had taken all preliminary steps to
have it pre.sented to such otticial ami paid bj- the Cohong, but
before it could be dealt with serious troubles broke out in Canton
between the Chinese and the Queen's subjects nnd war shortly
afterwards was declared between Great Britain and China.
British merchants residing in Canton, including the suppliant,
were arrested and imprisoned and finally expelled fn,m ('hina.

40 As a res\ilt of the injuries thus indicted upon British merchants
residing in China, after the war a treaty of peace was concluded,
oi» the 2(jth of August, KS42, between the Queen and the
Kmperor of China whereby among other things the Emperor of
China agreed to pay to Her Majesty the sum of !?.",00(),000 for
the amount of debts due to British subjects, of whom tho
suppliant was one, for debts due by Hong merchants. This sum of
SJ.S.OOO.OOO was computed on the basis of the accounts of claims
sent in and investigated by Capt. Elliot, a British otticer who was
there. Among the claims sent in, which had been so presented, was

50 till! claim of Rustomjee, the plaintiti'in the action. After the treaty
of peace had been made and the money paid, Rustomjee filed a
petition of right in the British Courts, claiming that tho Sovereign
of (ireat Britain hail leceived money as his trustee and was
bound to account to him for the proceeds. Here is what was
st.id upon that point. I need not tell your Honors that the
claim was dismissed. Chief Justice Cockburn uses in the
judgment this language : —

" War broke out between this country and China, the Chong
" was abolished, and the remedy which the British subjects, the

(JO " present suppliant am(>n<; them, would have ha<l under the
" former state of things was swept away. Under these circum-
" stances, when peace was restored and a treaty of peace was
" entered into between the Queen and the Emperor of China,
" provision was made for doing justice to British sultjects who

'»

■'11

1 w 1 '

1 . <

172

(Mr. Bodwell's Arfrument.)

"had been deprived of their remedy to enforce their claims
" against members of the Cohong ; but the terms of the treaty
" were that the money given by the Emperor of China to make
" good these claims should be given, not to the individual mer-
" chants who had claims or debts against members of the Cohon,
" but should be paid to Her Majesty.

10 " Now, the effect of such a treaty is, in my opinion, .simply
" this, that it places the fund at the disposition of Her Majesty,
" for Her Majesty, at her <liscretion, to cause such distribution of
" it to be made as shall make good the claims which her subjects
" have against the foreigner from who.se government the money
" is received. In such a case a petition of right will not lie.
" The notion that the Queen of this country, in receiving a sum
"of money in order to tlo justice to some of her .subjects, to
" whom injustice would otherwise be done, becomes the agent of
" thohc .subjects, seems to me really too wild a notion to require

20 " a single word of observation beyond that of emphatically con-
" dcinning it. In like manner, to say that the Sovereign becomes
"the trustee for subjects on whoso behalf money has been
" received by the Crown, appears to be equally untenable. It
" comes simplj" to this, that Her Majesty, in order to enable her
" to see that injustice is not done to her subjects, stipulates for
" the payment into her haml of a sum of money. The distribution
" of that must be left to Her Majesty's discretion ; no petition of
" right has ever been held to be applicable to such a case. To
" my mind, it is utterly inconsistent with all the constitutional

30 " theories of the prerogative of the Crown, to suppose tht.t Her
" Majesty can V>e coerced by a petition of riglit into doing that
"justice which, I am quite sure, it will require no petition of
" right to obtain, if the facts and merit.s of the case were such as
" to induce the government to believe that the claim was a just
" one. At all events, 1 think the petition of right will not lie,
" and that that is perfectl}- clear upon all the principles which
" have ever been applied to petitions of right and all the prece-
" dents which have hitherto existed in courts of law."

Blackburn J. .says in the same case, page 49;), as follows: —

40 " I am of the same opinion on bcjth points. The treaty in
' this case made between Her Majesty, in the exercise of one ot
" the highest branches of her prerogative, and the Emperor of
" t!!hina, amongst other articles, stipulated that the Emperor of
" China shouM pay into the hands of Her Majesfy 3,000,000 of
" dollars in respect of the debts due from the members of the
" Hong or Cohong, to British subjects ; an<l upon that it was
" contended, and the argument of Mr. Thesiger wont so far as
" this, that Her Majestj-, in making that treaty and securing that
" money, was to be considered as an agent for each one of these

50 " British subjects individually. I certainly am not aware of any
"authority whatever in the English law that has ever put the
" .Sovereign in such a position when exercising an act as the body
" politic, — to use the old phrase, ' the Sovereign in the capacity
" of the body politic, exercising an act of prerogative.' To say
" that the Queen was the agent of any person seems to me to be
" utterly unfoumled upon any aiithoritj* whatever. There are
' plenty of oltl cases upon which the dignity of the Crown is
" exaggerated beyond measure. This has l)een carried to such
" an extent, that I shouhl certainly pause or hesitate whether I

60 " would follow it at the present day to the full extent; but to
" bring down Her Majesty to the situation of it being said of
■' her, that in making a treaty of peace with the Emperor of
" China she was an agent for everybody who had a claim against
" *':e Emperor of China, is totally without authority. And I

173

(Mr. Bodwell's Argument.)

" believe that if one or two hunilred yearn ago any counsel had
" arijued in tliut way, we uliould have heen a.skod to record his
" words in order that he might be sent to the Tower, a course
" wliich is not pursued now-a-<]ay.s. The position, however, is
" <|uite untenable. Then, wlien Her Majesty lias actually received
" tlie money, it is a little more plausible, a little, but not very

ID '- much more plausible, to say that, though the treaty was made
■• in the exercise of lier prerogative, yet when HcM' Majesty diil
" receive the money it ought to Vie given to those persons who
" have claims."

Speaking further, over on page 494, he says : —
" But even if the petition had been shaped in that way it
" would have been untenable, for this reason : that tlie Queen in
' making a treaty an<l receiving money under it, and exerci.sing
" II high act of prerogative, is jiot at all acting as trustee."
Further down on the same page he says : —

•2\> " But I do not think that it can jujssihly be saiil that when
'■■ tlie Queen has, as a high act of state, maile a treaty, n'lj
" received money in consequence of an act of state, the mode of
'• distributing it is in anj* way enforcable by a Court of law, or
" subject to the tindings of jiM'ies. 1 think there is amoral cliiiin
' that it be given to the right person, which must be investigated
" in the manner in which Jier .Miiji-sty is pleased to direct, and
" the MiiiistL-rs who direct it wjuld probalily be responsible in
" parliament if they did it uiiju.stly. I do not suppose for one
" moment that they have done so, but 1 am ipiite ci'^ar in this,

;iO '• that you cannot in a Couit of law direct an investigation and
" conduct it in the (^'ourt of Queen's Bench witli the aid of a
" Middlesex jury. I think it must be done by the officers of
" state, subject to responsibility in such a way as may be just
" and propur. I have no lioubt ihey have (lone se ; but whether
" or not tliey have done so is a (|uestion which must be ascer-
" tained in Parliament, and not here"

The point decided was that a petition of right would not lie.
Why woidd not a petition of right lie ? Not because of any
pt'cuiiarily in the process of the court, not because any peculiar

40 j)rocedure was necessary to press the petition of right, liut the case
was decided upon this point that theQueen received the money as a
part of her prerogative. It was a claim put forward by Her as
a part of Her prerogative, supported by Her on the grounds of
internatiomil law, and therefore it must be considered that the
individual was in no wav represented in the diplomatic negotia-
tions or in the receipt of the money.

Mr. Dickinson : — Do you contend that in either case, the
French Spoliation Claims, or in that case, an international
Couimissidn was appointed ?

.")0 Mr. Bodwell : — I am not able to say whether there was any

Commission appointed with reference to the Fiench Spoliation
Claims or not. In the Rustomjee case there was not, because
the amount was not in dispute. The Emperor of China admitted
the amount. The only ditl'erence between that case and the pre-
sent proceeding is : that in this case the amount is in dispute. As
the amount is in dispute between the United States on one side
and Great Britain on the other, it can not be settled in a Court
of Claims or in a Municipal Tribunal organized in either countrj*.
It fiinst be an international matter where a representative of the

(1(1 Uiiiled States can test the claim presented bv Great Britain.
But in every other respect I say the case of Rustomjee against
the Queen is on all fours with the claims presented to this
Commission, The only dift'erence is here we liave to decide on
the amount, and there the amount was admitted and paid. Bub

r" 1'!

" ''v

I "M

174

(Mr. Bodwcir.* Argument.)

tlic authority I have uited diHclo.ses this principle, and that Im all
I ant contending for, tliat the claim which was on account of
injuries received by British suhjects in Ciiina, was n British
claini presented in the name of tiie Queen pf England, and
pressed upen grounds of international law, That is the position
we take here in our argument.

10 Now, I was about to read from the decision of Lush, J., in
tlie same case, page 497 : —

" Now, taking it, as it appears to be, as a demaml nf a debt
" due from the Crown for money had and received, it is necessary
'■ to assume, in orc'.er to reach that conclusion, that the Queen,
" when this money was received, received it as agent of the sup-
■' pliant, that is, under his authority, or claiming to have liis
" authority to receive it for his use. Now, I must say that
" firoposition startles one. It is not only derogatory to the
" sovereign's dignity, but I think it is repugnant to every

20 " constitutional princifile. A treaty is an act of prerogative.
" In making and negotiating and perfecting that treaty the
" Clown nets of its own inherent authority, not by the authority,
" actual or supposed, of any subject ; and I think all that is done
" under that treaty is as much beyonil the domain of municipal
" law as the negotiation of the tieaty itself; and when this
" money was received, it was receiveil by the sovereign in her
" sovereign character, not at all, in anj' view of it, actual or
" constructive, as the agent of any subject whatever.

" It seems to me that the relations which is pressed upon u.^

30 " here never e.xisted in this case between the Crown and the
" subject, and is one which cannot exist in any state like ours
" betwein thi> sovereign and the subject. No doubt a duty arose
" as soon as the money was received to distribute that money
" amongst the persons towards whose losses it was paid by the
'■ Emperor of China : but then the distribution when made would
" be, Hot the act of an agent accounting to a principal, but the
" act of the soverign in clispensing justice to her subjects. For
" any omission of that duty the sovereign cannot be held
" responsible. The responsibility would rest with the advisers

40 " of the Crown, and they are responsible to parliament, and to
" parliament alone. In no view whatever can an individual
" subject have any such claim as the suppliant pretends to have
" by this petition, tuimely, a claim to coerce the sovereign by
' judicial proceedings into the payment over of a part of the
" in(lenit:ity received in her .sovereign character from the Emperor
" of China.

" Again, if this were treated, not as the demand of a debt
" recoverable at common law, but a.s a trust, a similar answer
" would be given, and it is etjually valid, that no subject can

50 " charge the ( 'rown with being a trustee for him. Moreover,
" for the same reason that I have already given, it cannot be
" deeineil to have been money received by the sovereign as
' trustee. It was received by her in her sovereign character, to
" be ilispensed, as I have said, according to the views of the
" advisers of the (,'rown as to the persons entitled and the
" ('.mounts which should be fair and just as regards the claims
" of the parties. What the particular reason of the petitioner
" mav have been for taking this course I cannot tell."

The Commissioner on the part of the United States : — There

60 is an insurance case in the House of Lords that supports your
▼iews as a general proposition. But is there not something
pecidiar in this Convention arising from the opening paragrapli
of the Third Article that you ought to comment upon ? I'erhaps
you intend to do so before you get through. Is there not some-

175
(Mr. Boil well's Arf^ument.)

tliini; there that takes this Convention somewhat out of the
•'eiieral rule as you claim it to be ?

Mr, Bod well i — I will look at the Article and consider it

That if, only as we ^ay, for tin- |nirf ose of deteimining the amount

Tli(! Coniniissioners have to take evidence so as to determine the

ftinniiiit that shall be paid by the United States in respect of

10 each claim.

The Commissioner on the part of the United States : — Is not
tliut stating a conclusion rather than giving the line of reasoning ?
It would not be necessary for us to state every detail in order
to jiive the entire amount, and it was not done in the Geneva
Arbitration.

Mr. Bodwell : — No, the United States might have agreed to

pay a gross sum, and then the case would be exactly like this

case of Uiistonijee's. I have not ."o far directed my attention

to that, point, but I will consider it, and at the latter part of

20 my argument I will refer to it.

I was about to make the observation that in the nature
(pf things tho contention which I am making must be so,
for in the argument which has been udilrcssed to you by Mr.
I't'iqiie, he has shewn that what you are here to determine is
the liability of the United States, — for what ? The infringe-
ment upon the lights which, as a nation, appertain to (jreat
I'ritain. The extent of that infringement is to be determined
by the application of the principles of international law, the
nmoiint of compensation is to be settled by a reference to the
30 number and character of the injuries which have been inflicted.
]t seems to me at first blush that this is an answer to the
position which your Honor has ju«t put to me. There may be
more in it, however, and I will consider it and refer to it later.

As to the first of these positions I think it may be taken that
the United States agree with us, for on page 19 of their Argument
we have this statement : " In this controversy all questions must
lie considered, weighed, and decided by International law." They
make no distinction there for the purpose of that statement at
any rate. All questions, whether they relate to one claim or the
40 other ; every question which arises here is to be decided, weighed,
and determined aciiording to international law. Now, that very
statement involves the proposition that the questions are nati' nal
quiistions, for international law concerns itself with no other sub-
ject. In Hall's Interimtional Law, your Honors will find a chapter
devoted to " Persons in Internai-'onal Law," but the subject of that
chapter is the relation of states, the one to the other, and the
(iiilj- persons considered are the collective body of individuals
which go to make up a national conununity.

It is true that in considering the questions here, your Honors
."lO will be bound to refer to the particular damage done to particular
individuals, but that is only pi-esented for your consideration as
ft part of the evidence to establisli the contention that a national
wrong has been conunitted. No matter how great the injury
to any individual, 1 assume that if the United States
could establish that, no international wrong had betn done,
Great Britain would have no status to ask for compensation.
There are cases, it is tiue, in which the claims have been spoken
of as "national*" claims and "individual" claims, but that
language has been used for the purpose of distinguishing the
GO claims with reference to the extant of the injury. There are
claims which have cxtcn<led piactically to the whole nation, and
there are claims for injuries which have been inflicted only upon
inilividual subjects, and therefore in a case where it \''as necessary
to distinguish between claims on the one hand which had a

,:■!--!

r!l

' l>.

'i i,

li;>

1^,

17fi

(Mr. Bodwull'H Argument)

general scope, and those wliicli relate only to particular person-*,
in snetiking of tlioNe a colloquial form of uxprt-Nsion has hoen
UNt><l, and the one class has been called national and the other
individual. Hut, ncverthulesH, tiie}' went all national clainix.
The distinction cannot avail tlie United States here, for if oui
argument is to any effect it is this— thai Great Hritain is claim-

10 ing liero upon every ground upon which she has a right to
present a demand to the 1 'niti-il State.s. Shu is claiming not only
on liehalf of those citi/.ens who are hound to her liy tics of
permanent allegiance, hut also on hehalf of those who hy
their dondcile should render her temporary allegiance, and to
the extent of that allegiance arc entitled to her protection.
There is no distinction in this hotweon tin; one class of citizens
and the other, (ireat Hritain pre.sen's her claim on every
ground, and on hehalf of every person for whom she has a right
to claim compeiisntion. Indeed, the argument for the United

20 States presupposes the very proposition I am contending for ; the
defence which is urged with reference to these particular claims
is that the United States is not liable inasmuch as they have by
the estal)lished principles of international law a perfect right to
enact statutes binding their own nationals in every part of tlie
world, and therefore (ireat Hrilain cannot complain because the
United States prooeeilud to e.vercise their undoubted privilege
as a nation, and <i fortiori (Jreat Hritain has no standing to ask for
compensation because that nation afterwards took steps to
enforce in their own way laws properly enacted, and which

80 every citizen of the United States at home and abroad is bound
to rpspcct and observe.

And jot, while in one breath the obligation to pay compensa-
tion is denied on the ground that (Ireat Hritain has not suffered
any injury in her capacity as a nation, in the next they .issort
that tl.e i'omniissioners aro not to hear (.ireat Hritain in respect
to certain particular items of loss, because the claims are not
asserted for (ireat Hritain, but on account of individuals wlio.so
personal status alone is the subject for discussion. Such a
position is inconsistent with itself, and demonstrates the propoai-

40 tion put forward by the counsel for CJreat Hritain that in this
controversy you are to deci<le for what injuries (Jreat Britain is
alloweil to claim compensation, and whether tlie individuals
named have been injured in such a manner as that Great Hritain
is entitled to ask compeBsatiou from the United States according
to the juinciples of international law.

Mr. Dickinson : — I ask you, Mr. Botlwell.if lam correct, that in
all the cases cited by you of which the case in the 2nd Knapp,
the Drutnmond Case is the leading one, and whether in all the
national conventions for the adjustment of claims between

50 countries, between Great Hritain and every other nation, the
right of claim ha-- not been deterndned by the personal status and
conduct oi the private claimant quoad the two governments;
wh'ther under the convention, which was for the disposition of all
private claims between Great Britain and France, the right of
Drummond to claim did not turn upon his personal status ([uoad
his own government and iiuoad England.

Mr. Bodwell : — For tliree months in Victoria we had some
experience of my learned friend's skill as a cross-examiner, and
it is again illustrated here.

60 -Mr. Dickinson : — If you answer in that way there is no use

in my asking you any other (juestions.

Mr. Boilwcll : — What I have said is this ; in answer to tlie
position which Mr. Dickinson has taken; that the right of
j)arties to claim was foundetl upon international grounds, and

Itf

(Mr. Bodwell'H Argument.)

wlion that ri^ht whh cuncode)) a trenty was inadu, and a part
of tliat treaty ileHcriliUH certain perMons who wuro to he paid in
accordance .with that ri^ht, and it was only curtain purNonx
under ihe treaty, therefore who liarl the ri^rht to come before the
coMiniiHsion. In every case that ri^jht was determined as a matter
of Jurisdiction liy the court upon circumstances reialiii;r to the

10 status of the individual. It was always a ipu-stion of the wordinjr
of the particular treaty, ami our uriiument here is, that this
treaty, we are now acting under, diflors from other treaties i*
in that respect because the persons are not determined in the
treaty, but they are all to be ascertained by an application of the
principles of international law. In every other case the court
was constituted <vilh certain powers which were defined in a
written document, and the court was bound by it. It is true that
in ascertaininj; your powers untler the Cunvention you will Iihvd
to refer to that written document, but the distinction is that this

:;() convention instead of pointinj; out the persons by ili"-eiipliun
leaves it to your Honors to ascertain the paities by an applica-
tion of the principles of international law to certiiin facts in
eviilence. In that respect this is an international claim in a
wider sense than any of the other claims presented. That is the
extent ok our arjrnmi'nt. It was stated as a principal point for
the purpose of establishinir the other position, that tlu-se claims
are to be determined upon principles of IntiM-rmtioiial law. and
with that our learned friends the counsel for the United States
agree. We say that that principle involves the con^ideiation uf

31) evary claim presented here, not because a eeitain person ii»
named in the convention, but because Great Britain exercising
her position among the nations of the woild presents her claim
for redress for a wrong iriHicted upon her as a nation. I shall
not continue the discussion of the nuitter any further.

The next step in our argument is that this being an inter-
national controver.sy, and it being necessary that your Honors
.should decide upon our case with reference to international law ;
wl lever a controversy arises between nations with respect to
the character of property, the domicile of the individual owner

40 is taken a.s the test of nationality with respect to the property
which he acquires in the countrj' of his domicile, in connection
with a business oi trade which he there carrie.s on. I need not
tell your Honors, that questions of this kind come more
frecpiently before prize courts for the reason that the nUional
character of property a.s distinct from the prilitical status of the
owner is .'leldom of importance except in the case of war. I shall,
however, cite you authorities which will show that not only
ha.s the principle been laid down as a lule of universal appli-
cation in prize courts but it has been carried into municipal

.JO courts in civil action.s. We have cited several cases fioiu
prize courts in our arguments at page 50. I do not intend to
iiurden you now with the leading of these coses, because
they are set out fully in our argument, e.icept to notice
certain comments upon them in the United States argument.
The fiist case I would call attention to is that of the " Indian
Chief " at page 51 and carrietl forward to page i)2. With reference
to that case I have only one observation to make. In the argu-
ment counsel for the United States in reply, page 50, say this :
" In that case the person had never lived in America after it

00 " became a nation (not after 1773.") That is all referred to at
page 9 of our reply, and the point is taken that that i' a mis-
understanding of tlie case, and I clearly think it is. An . ^'ain :
" The owner had lost the benefit of his native American character,
" if he ever had any, which he had not."

■1 .'1

',|i' ■>'',

' ' m I

\i'

H . t?.

■p

*'1M'i'

178

(Mr. Hodwi'll'it Arf(uiiicnt.)

Tho following uxtrnct fidin the ilitpision Ims possilily oicappil
ili)> attuntion of llio Uiiitcil StuteH coiiiiti'l, I will rxml from tlin
(■UNO itsi'lf nn it in rKpotti'il in H Cliristopliur KoliiiiHon's Ailiiiiriilty
UrportM, paj^ti 12. Ill ^iviii^ jii<li{iiifiii, Sir Williniii Scott
said :

" 'I'licrt' lire two positioim which arn not to Ih( controverted ;
10 " that Mr. ilohiiHon is an Aiiicricaii generally hy l>irtli, which i.t
" tho circiiinstance that first iiiipn'Msus itst>lf on th« mind of thu
■ ' court; and also by thu part which hi' took on thu hrcakin^ out
"of thu American wni'. Ilu cniiiu hithur whun lioth countriuH
" wuru opi-ii to him ; luit on thu hruakiii;; out of ho^tilitius, ho
" made his clt'Clinn which country liu would adhviv to, and in
" cnnsuqiitnci' (huruof wriit to (''rancu. As to thu ' .•i)tthat has
" ln'un sii^'i^oitfil, whuthcr hu would he doumcd un American, not
" having' licm pcrsoiially tht-ru at thu liiiiu of thu duclaration of
" thu iiiili'pciidiiicu of that country, I think that is sutticiuntlv
20 " cluarud up hy thu circnmstancu of his huiin; adoptud as such by
"thu Act of th(- Ainuiican ^rovurniiicnt, duclariiii; him and his
" family to hu American suljucts, and hy thu ollicial character
'' which that };ovurniiiuiit has intru.stud to him; I am of opinion,
" thurufore, that he hft» imt lost the hunutit of his native Amurican
" character."

Mr, Dickinson : — The analytiis of that casu is incorrnct in two
particular.s. That analysis, owinn to the ahsuiicu of the report
frnm thu lihrary of tin- Suprumu ('ourt. mid also from the State
l)e|'Hrtmuiit, could not hu vurKied hy inu. Thu last criticism is
.'JO cornet which I mnku upon thu aiifiimuiit, hut I took thoanalysia
from that cn.si.' wholly from my luarnud frieiid'.s brief, not being
able to put my hand ni'ciii thu rujiort.

There is another iiuucuracy in my bii« '' to which I desire to
cnll thu attt'iitioii of my luariieil friends • counsel for (Jreat
]{ritaiii, and whicli whs ciwinj; to the fii 'hat I could not put
my hiiiid upon thu orii.riiial authoiity. . iieru is a conclusion
from Bar (pioted in another place ; it should not have been
tjuotetl, althouj^h I still contend it expres.ses the meaniii;r of the
te.xt. The (|Uotation marks were un error They are the only
40 two cases I desire to correct.

Mr. Hod well : — That is not to the point I wish to correct.
Mr. l)ickinsi)n : — Not at all.

Mr. Hodwell : — M}' leaineil friend then aj^rees tliat there i.s
nil uiior huiu in this respect.

Mr. Dickinson: — In that respect, but not in respect of tho
conclusion. We use the " Indian Chief " case ourselves now, and
we cit'.' it later.

Mr. Hodwell : — It is, howevei, an authority upon the point
which I am now makiii<^, and the |)oint of the case comes through
no thu application of th • principle — this case in so niar.y words
decides it. It settles beyond all (piestion that a person domiciled
in one country, thou;;h a native born sulijoctof another, acquires
by reason of his domicil a qualitiud citizenship. If he acquires
pioperty (lurin<r the course of his residence and a question ari.ses
in a prize court as to the nationality of that proper!',, it V\ill be
held to partake of thu national character of the country of doi;>i-
cile and not of the country of his native alletriance.

We then refer to thu case of the ' President,' in 5 Robinson's
A<lmiralty Il(q)orts, p. 12(5, and which will be found on page 52
(JO of our argument ; we also refer to the case of the ' Anna Kather-
ina" in + Robinson, p. 107. The case of the " Matchless " will
be found in I Ha}»gard's Admiralty Rep., p 103. And " Driiin-
niond's case in 2 Knapp P. (!., p. 295. I do not feel justified in
taking up your time in reading these cases at length. I also cite

17D

(Mr. RixIwuII'm Ai'siitiiont.)

tlii> cMne of Livin|{Htono v. tlio Marylaml Instiraiicu roinpany,
7 ('ranch, p. 500, and the case of llm " V'cnUH," S C!mnch, p. 2.MI.

Wo have lot out Htitficieiit of tliuso cnsiis in our printuil iii^m).
iiii'iit fur VHiir HonorH to apprehend what they fully docido.
Tliixi caseH h!iow thai tliis line of deci^don hits heon adopted in
Kn^flantl and followed in the courts of tlie United States.
Ill Mr. Dickinson: — Vouiiow cite something which is not in tiie
l.rirf.

.Mr. Ho<lwell : — Yes, tlie case of the " Francis."

'I'he point I am now making is, tl<at tliese cases estahlish that

till' property ohtained tiy the doniicil uf the person in relatiou

1,1 his trade is Hritish property. I now refer to the case ff tlio

Francis, " reported in 1 Oallison, p. (il4. iu this case tl j fuctH

iiii' : —

" Mr, Colin Oillespie was horn in (ilas^row in Scotland, came

• Id the Unitetl States ill 17!'3. and was nnturali/.ed as a citizen
■J) ilnreof at New York in I7!»N. In I7!t!) he iiinriied in Scotland,

•' urid returned with his wife to New York, where he re-id'-d until

' IM02, wlien, on account of the ill health of his wife, he went to

Scotland. In ISO.') he came a;jain to New York, and having

foiiiu'd a mercavtile copartnerslii}) with Mr. Jol.n (iruliamof

• that city, it was then i4»reo<l, for the henefit ami mutual
" interest of the co-jmrtneiship, that Mr. (iillespie should reside

ill (ireat Britain and there transact the husiiiess of theco-part-
iier'<hip, innier the tirm of Colin (iillespie iS; Co., and that Mr.

■ (>rali<im sliould transact their husiness at New York, under the
:;() ' linn of John (irahain & Co. In pursuanee of this a;;reeiiient,

■ Mr. (iillespie went in the .same year to Scotland ; estahlished

• his ^ouse of trade there, and continued to reside therr with
■' ])' . family until the spring of 1HI;J, doinjj ^)^silles^ as a

■ merchant, receiving; eonsi<rnments of American produce, sell-

■ ill},' the same, and piircliasin^ jjoods in that market to ship to
' the United States, I)ui'in<; hi" residence in Scotland, Mr.
' (1illespi(> accepted a coiiimissi(;n fioin the Hriti.sh j{overinnent,
" ii'i an otlicer in tlit; local and embodied militia which, however,
" he resifjneil in ISIO. Mr. (iillespie, in his atfiilavit, farther

40 ' stated that it was always his intention to holil to his adopted
' ftUefjiance, and to do no act inconsistent with his duties to the
" United States ; and that, as soon as he could arran;;e his busi-
' iiess in fireat Britain, after knowled^je of the war, he set sail
' with his family to the United States, and now resides with

• them at New York. The present shipment was mad(! in July,
" 1.S12, and the capture took place on or about the — of August,
" lfsr2."

The (piestion was whether his goods were American goods or
British goods. Story J. said : —

.')0 " And I take it to be clear, that the facts of this case establish
" the position that Mr. (Jillespie, at the time of this shipment an<l
" capture, was a merchant domiciled in Great Britain, and of
" course aft'ocled with its national character. He was .settled
" there with a house of trade, and for purposes of indefinite
" ext. nt and duration. Had the facts boen equivocal, the cir-
" ciimstance that it was his native country would undoubtedly
" have been entitled to great weig'\t in deciding the question of
'domicile; for, as Sir William Sc<tt justly observes, the native
"character easily reverts, and it reijuires fewer circumstances to

(10 •' ciiiistitute domicile, in case of a native subject, than to impres.s
" the national character on one who is originally of another
"Country. Such then being the domicile and national character
"of Mr. Gillespie, he must, according to the settled rules of
" public law, bo deemed to partake of the advantages and the

«;':

.: ■' . *«

lit
"I

1' V

I \ M

'"It

18»

(Mr. Botlwcll's Argument.)

" haznrils of u Biitish inorclmnt, in pence and war. For nil
" coiniiiercini purposes, it is ipiito iniiiuiteriiil wlint ih tlx.) imtivo
" or niiopted country of a party. He is (icomed a niercliunt of
" tliat country wlieru he resides and carries on trade. Under
" sue!) circuuistanc(>s, Mr. (lilU-spie must he held, so far as the
" present transaction applies, to he completely invested with the
10 " hostile character of a British meachant."

Continuing on pajje GIS. in ihesame judj^ment, Story J. said:

" In the present case, if the doctrine of llio claimant's counsel
" he true, Mr. Ciillespie's properly, at the fme of the capture,
" was completfly protected from capture hy British and American
"cruisers. He was certainly entitled to protection, as a British
" merchant domiciled in Scotland ; aiul upon the argument of
" counsel, as an American merclumt also. I shoidd have heen
" j;lad to liave learned how this douhle character, tliis hostile and
" amic'ihle character, could coah'sce in the same ])erson, as to
20 " tiie same transaction. I ima>;iiu! it would be a novas luispiifi
"in the prize jurisdiction. "

It can coalesae Tor many purpo.ses — for the purpi>se of ascer-
taining hi'^ |)iilitical status, or the liond of his alleujiance, hut for
counuercial purposes and as to a particular transaction they
never coalesce.

1 refer also to the case of the " Ann Oreeii," cit'/d in 1 (lalli-
son, p. 274, (111) head note of which is also on paj,'i^ '27 ii.
I now (piote from the juil<,'ment of Story J. at paj»e 2S.t : —

'' If .Mr. Culleti W(M°e domieileil at Jauuiica, at ttie time of the
;J0 ' shipment, he would he lialiie to all the coiise(juerices of a
" British commercial characti r; fur no principle is ln^tter settled
" tlinn that the property of a per.son si!ttled in the enemy's
" country, althou;^h Ih^ ho a neutral suhjeet, is affected with the
" hostile chaiacter. It is (|uite immaterial in this view, what
" Was the ori^dnal or ac(|uired alle;{iance of .Mr. tJullen. A native
" American citizen is just as nnich within the scope of the
" principle as a fm-eij;ner."

" In examining,' the testimony, howtiver, 1 think it is dillieult
" to I'esist the impression that .Mr. C'lillen's ahsencu was oriijimiliy
40 " for temporary purposes. It is expressly shown that he went
" out to colleci, the debts of the company, and there is no part of
" the evidence that points to to a distinct trade disconnecti-il with
" those debts. I admit that his connection in a house of tiado
" in New York would mol alone protect him, for he may at the
"same time po.s.sess the commercial character of several nations."

Story J., continuinijf, said on the same pa^e : —

" It is also said that this shipment was maile by C'ullen in
" the character of a British subject, aiul tliat this furnishes distinct
" proof of his havinj,' retin'neil to his mitive alle;,'ianee."
50 Your Honors will see that there ari^ two principh>s involveil.
The court not oidy looks into the (piestion for the put pose of
ascertaining; the domicile, but it also en(piires into the particulars
<if the transaction to ascertain whether it occurred in the man's
cliaracli'r of a merchant of the country where he was domiciled,
or in the character of a subject of the country of oi'ij^in. I
sh'iU have occasion to point oui that distinction a little later on,
and p.u'haps make it sonu'what cleanu', so that I need not dwell
upon it. Continuing.;, the judnrnient reads as follows : —

" 1 a;;ree that such would ordinaril v I'c the case ; but a distinc-
(JO " tion hat been taken in the authorities lietween a time of peace and
"of war. Miuih j^ncati'r laxity is allowed to meicantile transac-
" tions in peace than in war. Disjruises and covers nri' allowable in
" the foriper, which woidd not be tolerated in the latter. 1 do
" not know that a sinjjle case lias been decided in whidi the

18t

(Mr. Bodwoll's Arffu?uent.)

" nssiiiiiiiiij H imtional clinmcter in tiiiip of prapc, to iivoid
" iniiiiicipal iliitics or rL';»ul«tioi».s, or to nvoiil tlio (>ti'i'cts of
■■ iiiipeii(lin>; war, has licon liehl to liiiuJ tlii' party, when! it lias not
" lii'cn in frauil of tlii' lutlli^orcnt who niaki's tin- oaptiirc.''
TiiiTt' is also tho casi^ of tiit> " Joseph," 1 (^allison, pajfo 545.
Tiiis is a case of ailt'i;t'(i trading with tiie oncniy. In tiitvt caso
1(» ii is saiil as follows: —

" It an American vessel, after a kno.wletlue of thu war, pro-
" ceed from a iienlral to an enemy port on freij^ht, it is a trailinjr
■' with the enemy, which snlijects the vessel to forfeiture, aiul

• she is lialile therefor on her return voyajfe to the United States.

"The birth of a party is not that which decides his national
" character, lull his domicil."

It. appears that this vt-ssel went to St. Petcr.sl)ur<;, took a
caij^o of (iermaii ;;oiiiN and carried it to lMi;rlani| ; and the
i|Uestion was, whether in doini; that she was trading v/ith tho
'JO cnemv. At paije 55 1 it is said : —

" It has heen siiirir,.stecl, that the cari,'o lieiiiLJ shipped Uy a
■ netitral house in St. I'eterslnir;^, consigned in (ierman houses
" in London, tlu^ latter are to he considen^il as neutral, and
" therefore there was no trade it all with the enemy. There is
" certairdy no foniulalion for this sii;,'^'.'stion. Admittin^f that
" the (ierman hoiisi s in London consisted alto;j;et.her of (ierman
' partners, it, is (piite im|iossilile to contend tliat they arc- neutrals.
" It is not the l)irth or native allej,'iance. hut the dondcil, that
decides ill case- of this nature the national ciuiracter of the
;;ii " parties. If a neutral snhject he domiciled, and caiiy on trailu
' in an eiuiiiiy's countiy, he is h(dd as to all commercial purposes,

• an enemy. There can he no douht, therefore, that tlu> (ierman
" houses in London were, as to all purposes of tiaile, enemies
" and their property liahleto coiiHscation as hostile property."
The-e weri' cases in the prize courts.

The Commissioner on the part of the United States : — Is it
necessary to cite thost- cases > Is that position disputMl hy the
United States?

.Mr. Dickinson : — Not for one moment, your Honor.
•Kl Mr. Hodwell : — -It is our case.

Tile Commissioner on the part of the United States :--If it
is not disjiuted, is there occasion to cite it !

Mr. |{oil\vell : — I think so, your Honor, for althou<rh
il. is not directly disputed, it is so, indirectly ; it is claimed
(Milt the jiroperty of Kiaiik, Mechtid and otheis was American
pitipeity, anil to that extent the position is dis])uted, and
i!ie claim is then a<lvanced in the ar^'ument for the Uniti'd
.Stiites that this heiii;; American property, the United Stales

had a li^-'t to seize it, therefore what I wish lo estahlish

."lU Tlie Commissioner on the jiart of the United States: — You
mean the vessel liein;; American property.

Mr. liodwell ;— The contention of the United Slates is that
it is .American pro|)erty. I nm not dealini» with that, Sir.
What I wish to make clear is, that this is Uritish jiroperty,
,iiid the distinction I wish to jioint out with reference to this
class of cases, after luiviiii,' laid down the proposition and maiii-
tiiined it hy authority, is that there is a distinction in the
application of the jirinciple to the cases to which we apply it,
and the .ipplicatioii wdiicii is attein|)ted lo he made of the same
tiO Jirinciple to the Cooper case. This is rather anticipating my
,ii|,'ument, and it peihaps does not come so clearly as it mijjht if
I liiiij fii||(i\vi>d out the line I wa> on, hut ni) point is : that this
iiaiiiiiialization of property lefers to propcMty which is
iici|uiied hy the individual in tho country of his domicil ; and

'Ml ■

iSffi

182

(Mr. Bodwell's Argument.)

obtains only with reference to the trade which he carries on
there. It does not apply to property acquired in connection
with a trade which he carries on in the country of his oiitjinal
allegiance. For instance, a man resident in Groat Britain might
carry on trade as a partner in a house in New York, and the
pioperty belonging to hi.s partnership in New York would be

10 American property, but the property possessed in Great Britain
under those cireuuistances would be British property.

The Commissioner on the part of the United States: — These
cases are prize cases. They relate to the iloctrine of alien enemy,
which we understand pretty well in the United States. Now,
are you willing to stand by the law of prize cases ? What
would become of your British registry of a vessel owned by
American citizens ?

Mr. Bodwell : — Your Honor has anticipated my argument. I
said at the beginning that these cases came more frequently

20 before prize courts than civil courts ; but I am about to cite
some cases now in which the principle is applied in civil cases in
time of peace when the question of domicil and of the nationaliza-
tion of propert}' arises. I do not say, and I hope I need not
be so understood, that the piinciples of prize courts in every
bratich apply to the claims now before your Honors ; but I
argue that the principle which I apprehend was first laid down
in prize courts with reference to the nationalizaticn of property,
became a principle of international law and has been applied
in civil actions in other courts, and I was about to cite cases to

30 that effect. There is an old case where the matter is well
reasoned out and decided at a time when Great Britain was
asserting the peruiatifnt allegiance of all her subjects, contend-
ing that it was not possible for tliem by residence in any
other country to throw off tlieir character of British subjects;
and I submit that the line of reasoning there adopted,
which enabled thi; judge to come to that liecisiou, is all the more
conclusive from the fact that the decision was arrived at by an
eminent judge at that particular stage in the history of the
international contentions of Great Britain. The case is that of

40 Marryat v. Wdson, 1 Bosanquet and Puller, page 430. That was
a case in which it was decided that a natural born subject of
Great Britain, ailuiitted a citizen of the United States of
America, either before or after the Declaration of American
Independence, may be considered as a subject of the United
States, so &s to entitle him to trade to the East Indies under the
treaty between the United States and Groat Britain ; although
iit that time British subjects were prevented in certain cases
from trading with the East Indies by reason of the monopoly
of the East Ii: Ha (,'onipany. The judgment is that of Chief

50 Justice Ej're. l.'e saj-s at page 4.S0 : —

" There reniaiiis one other topic of which I am called upon
" to take some notice. It is said that Collet, who is solel}'
" interested in the two first of these policies, and has a joint
" interest with Butler in the last, being a natural born subject of
" this country, cannot shake off that character, and become an
" American so as to entitle himself to the protection of this
" treaty. He is a British subject trading to the East Indies ; his
" trade is therefore illicit ; the voyages insureil are illegal and
"the policies are void."

GO Beginning tlie discussion of the main subject at page 442 he

says :—

" It was observed by Lord Hale, that a natural born subject
" of this country may by foreign naturalization entangle himself
" in difficulties and a conflict of iluties. So may the naturalized

183

(Mr. Bodwell's Argument.)

" or denizen subject of the King of Great Britain, Yet it is clear
" that we and all the civilized nations and states of Europe do
" adopt (each according to their own laws) the natural-born
" subjects of other countries. So, I take it, Vattel puts it in
" the passages referred to. Our laws give certain privileges and
" withhold certain pilvileges froni our adopted subjects, and we

10 " may naturally conclude, that there may be some qualification
" of the privilege in the laws of other countries. But our
" lesident denizens are entitled, as I take it to all sorts of com-
" mercial privileges which our natural born subjects can claim.
" We should consider them as English in the language of the
" Navigation Act. The United States do undoubtedly consider
" their adopted subjects as subjects of the United States within
" their laws. And I take it that we should consider their adopted
" subjects, if they happen not to be natural l)orn subjects of the
"King of Grea* Britain, as subjects of the United States within

20 '• our navigation laws. To this proposition I take the case of
" Scott v, Schwartz to be in point, if it wanted an authority.
" The case now begins to work itself clear."

I am now citing this authority principally to shew the line of
reasoning bj' which the conclusion was arrived at, and I submit
that that line of reasoning, when properly understoofi and thor-
oughly worked out, is one which will establish the position we are
contending for. He begins to consider what this matter of dual
citizenship is, where it begins, what are its limitations and
characteristics. He says :

3(1 " It comes to this question ; What difference does the circum-
" stances of the adopted subject of the United States being a
" natural born subject of the King of Great Britain make ? Is
" there any general principle in the law of nations (out of
" which this adoption of subjects seems to have grown) that in
" the parent state the adopted subject is incapable of enjoying
" the privileges which have been conceded by the parent state to
" the other subjects of that state which has adopted him ? I
" know of no such disabling principle. Let us then come to our
" municipal law. Lord Hale says foreign naturalization may

■iO ■' involve the natural born subject in aconflict of dutie.s. This i.s
" eloquence but not precision. What are the tluties of which
" there may be a conflict ? Our laws pronounce, that if there
" .should be war between his parent state, and the state which
" has adopted him he must not arm himself against the parent
'■ state. Perhaps they go further and say, that if he is here he
" may be prevented from returning to his domicile in the state
" which has adopted him ; that if he is there, he must on receiv-
" ing the King's commands under his privy seal return hither on
" pain of incurring a contempt and penalties consequent upon it.

50 " Whether the proclamation which has been introduced into this
" cause will have the same effect as a privy seal served upon
" the party, is a question not necessary to be here discussed."

In fact, he there states all the distinctions which arise, that
is to say, those are all the disabilities which relate to a subject in
a foreign country with reference to bis native allegiance!
He then proceeds : —

" Our municipal laws may attach upon him in some other
"cases, but I conclude in no instance which by analogy can
" govern the present case, because I have heard of no such argu-

00 " merit from analogy. Upon what authority then is it said, that
'■ a natural born subject of the King of Great Britain shall not
' trade to the East Indies, though he is an adopted subject of
" another country whose subjects in general are allowed to trade
" to the East Indies ? Shall it be enough to say that the rest of

.''I

^''H

!' :'

.'*V* I

n •■ t -li ft .?

N; n

V-fi

11 ;■

184

(Mr. Bodwell's Argument.)

" the king's subjects are not allowed to trade to the East Indies,
' and therefore you, being tlie king's subject, shall not ? He
" will answer, I have a privilege which the rest of the king's
" subjects have not. I am the kings subject, but I am also the
"subject of the United States, and Great Britain has granted to
'• the subjects of the United States that they niaj' trade. He

10 " niiiy add, — I violated no law of my parent state in prjcuring
" myself to be received a subject of the United States. She
" oncourngos the practice, for she herself adopts th'j Hi.:bjects of
" other states Why then are the fruits of mi- adoption to be
" withheKi froM) me .? If it be said tohiu), you a British subject
" ought not to trade to the loss and injury of the East India Com-
" pany who have a monopoly ; he n)ay say : the subjects of the
'• I'nite<l States may and ought to carr^- on this trade under the
'• autlioiity of the laws of this country ; under the authority of
" the .-aiue laws which gave to the East India Company their

20 " monopoly. If the Company sustain a loss, it is damnum sine
" iDJa) id. In short, it being oneogi anted that natural born sub-
'• jects of the King of (Jreat Britain may become subjects of the
" United States, there can be no bieaeh of moral, political, or
" legal duties, no conllicl of duties in claiming or exercising the
" privileges which belong to that character."
Further, on the same page, he says : —

" I am not prepared to sa\-, highly as I respect the authority
" of those who held that opinion, that thi" character of natural
" born subject will control or suspend the legal operatiori of that

jj(j " of a subji'ct of the United States. There is here no conflict of
"duties. Both cb.aiaeters may stand together: and if sonie
" political iticiinvenieiiees, such as tlu)se suggested in the argu-
" nient before us (tlii)ugh these seem very remote) shoulil follow,
" yet if these inconveniences are not of coJisequence enougli to
" prevent the practice of the adoption of subjects by CJreat Britain
" and ever^' other state in Europe, we cannot satisfy ourselves
" that the}' ought to control the legal consequences of that adop-
" tion. We are of opinion that there is no error in this judgment,
•' and that it ouglit to be affirmed."

Collett became an adopted citizen of the United States but,
accoiding to the theory of Biitish law at that time, he could not
beccme a citizen in the sense which naturalization now occurs.
Great Britain maintaining for many years after, the position
that a subject, native born, could not by any proce.ss of
natuiiilization, throw otf his permanent allegiance to Great
Britain. Therefore, I say that that ease has peculiar signifi-
cance, and is a particularly stiong authoritj', because at that
time, and under those circumstances, it was held that a num, by
reason of his residence, ac(iuired a coimnercial nationality, and
was entitled to protection in a commercial operation. As j-our
Honors seem to think that, perhaps, I am, to a certain extent,
qu(.ting authorities relative to matters which are not in dis|)Ute,
I will not eontiniie at letigth on this line, but there is another
case in which the same doctrine is worked out by Doctor Croke.
I refer to the case of the " Naiiej'," Stewarts' Nova Scotia Reports,
page 4!). The point in that case was this : —

" Spirits of turpentine not importable under JCh'd George III.,
" ch. 50, section 14. Importers means owners British sulijects
" resilient abroad cannot import." There was a statute passed
in Nova Scotia which prevented the importation of a certain
kind iif goods, turpentine and some other goods, except by British
sulij-ets in British ships. There was a tuitural born British
subject residing at New York and carrying on trade. Ho sent
a caiito of that class of I'oods to Halifax. George Scott and

186

(Mr. Bodwell's Argument.)

Joseph Trenmin worft the names of the two merchants in New
York.

Tliis is a case under a statute, not a decision in the prize courts.
It shews tliat the doctrine is laid down and maintained wlienever
it hccomes necessarj' to apply the principle in civil disputes. It
is not a doctrine obtaining only in time of war.

10 Tile Commissioner on the part of the United States : — I did
not inten<l to sutrgest that it was. As a doctrine of prize courts
it was so well known it was not necessary to do more than illus-
trate it. Please understand, if I ask any questions, I do not
mean to indicate that I have any views, but that I have diffi-
culties I want removed.

Mr. Bodwell :— I am more than pleased that your Honor
should a«k questions, because it gives me an advantage, enabling
me to direct my argument to the particular point passing in ^our
Honor's mini!.

20 The Commissioner on the part of the United States ; — I do
not mean, either, that I expect you to answer at the time.

Mr. Bodwell : — I hope your Honor will not misunderstand
nie, either ; for I do not object at all to the interruptions ; I am
more than plea.sed they should occur.

This is a well reasoned judgment. It is too long to read,
but I know your Ffonijrs will refer to it. It tikes up the whole
subject, and works it out on the same line as the other cases.
It was held that these men were not British subjects, because
they were residing an<i carrying on trade in New York, and be-

"0 cause tliey were making shipments of these particular goods from
New York, and that therefore, for commercial purposes, the goods
were American shipped by American subjects. There is also the
case of McConnell v. Hector, 3 Bosanquet an! Puller, 113, where
it is said, as follows : —

'■ A commission of bankrupt founded on the petition of A., a
" British subject, resident in England, for a debt due to himself
" and his partners B. and C, also British subjects, but resident
" and carrying on trade in an enemy's country, cannot be
" supported."

40 It was there held that the residence of the two partners in
the enemy's country prevented the other partner in England
from presenting a petition in bankruptcy. The ground of that
is staled liy the Chief Justice at page 114: —

" Though these persons may not have done that which would
" amount to treason, j'et there is an hostile adherence and a
" commercial adherence."

Here is the key to the situation, and I would like to impress
it on your Honors ; —

" And I do not wish to hear it argued that a person who

.'0 " lives and cariies on trade under the protection and foi' the
" benefit of an hostile state, and who is so far a merchant settled
" in that state that his goods would be liable to contiscation in a
" court of prize, is yet to be considered as entitled to sue as an
" English subject in an English court of justice. The question is
" whether a man who resides under the allegiance and protection
" of a hostile state for all commercial purposes, is not to be
"considered to all civil purposes as much an alien enemy as if he
" were born there ? If we were to hold that he was not, wo
" must contradict all the modern authorities upiui this subject."

<10 There is also the case of Bell v. Reiil, not cited in our brief,
1 Maule and Selwyn, page 720, which carries out the same line of
rea.soning.

As I undeistand it, the answer which my friends make to
this line of cases, or rather one answer, is this : that the contention

1 1 1

i,;,..)iyitiy

1
1-

f^:^*ff..r

186

(Mr. Bodwell's Argument.)

I am now making was a part of argument of Mr. Hoar in
the Barclay case ; and that he was foicuil to admit in liis argu-
ment that it was unsound, that i.s to say, tliat it was unsound as
we put it, and the decision was against him. Tlierefore tliey say
that you have not only the decision of the Commissioners, but tlie
.'irgument of a man as to whose ability and knowledge of law
10 there can ' j no question, opposed to our position liere. In order
that tliat may be thoroughly understood,! deem it of importance
that the Barclay case should be referred to at some length.

The circumstances under which the Barclay case arose were
the.se : In the civil war between the North and South, the
property of a great many British subjects, who were residing
there, was injured. Under those circumstances Great Britain
made a claim, among other things, that the property of lier sub-
jects residing in the United States, which had been destroyed
while they were observing the laws of neutrality, should be pro-
tected, and that compensation should be made for their loss. This
claim was admitted by the United States, and a treaty was exe-
cuted. The treaty of 1871, XII Article, is the one which refers to
this point ; and there

"The High Contracting Parties agree that all claims on
" the part of corporations, companieis. or private individuals,
'■ citi/eim of the United States, upon the government of Her
" Britannic Majesty, arising out of acts connnitled against
" the persons or property of citizens of the United States,
"during the period between the 13th of April, 18G1, and
" ilie !)tl) of April, 18U,i, inclusive, not being claims growing
" out of the acts of the vessels referred of in Article 1.
" of this treaty : and all claims, with the like exception, on the
" part of corporations, companies or private individuals, subjects
" of Her Britaniuc Majesty upon the Government of the United
" States, arising out cf acts committed against the per.sons or
" propel ty of subjects of Her Britannic Majesty (hiring the same
" period, which may have been presented to either Goveriunent
"for its interposition with the others, and which yet remained
■to " unsettled."

The claims to which the treaty refers are the claims arising out
of tliat condition of things which had been presented and which
then remained unsettled, so that there was under that treaty a
particular class of persons referred to whose claims were to come
before the (Commission ; and it goes without saying that nol'ody
else could appear there. The question, therefore, in the Barclay
case was this : Was Barclay a person whose claim had been pre-
sented, iiiid did it remain unsettled ? That is, was he a British sub-
jeft residing under the provisions of the treaty in the United
States? and having been a neutral there, was hix property impro-
perly and wrongfully destro3'ed ? Now, the facts relating to Bar-
clay were these : He was a native subject of Her British Majesty ;
he was a resident of the United States for many years prior to
18.58, for the greater part of t le time engaged in Her Majesty's
service in various capacities, and from 18+:? to 1856 was Her
Majesty's Consul at New York city. In the year 18.58, he took
up his residence in (Jeorgia, and there engaged in planting,
carr}intr on three separate plantations witliin the State of
"'' Georgia; two he owned and the other he leaseil and worked. I now
rend from the statement of the case. " He alleges that he observed
the laws of neutrality — and there is no question but that he did —
Then 111' sets up the President's proclamation of blockade in
l8Cl,and the Act of Congress of July, 186 1, conKscating property

r>o

187

(Mr. Bod well's Argument.)

wliich should bo found passing;; from the insurrectionary into the
loyal (states, and alleges that it was at no time possible for him
to withdraw his effects from the .scene of the insurrection. Ho
alleges various acts of plunder and devastation on all the three
plantations, committed by the United States forces under General
Sherman in or about December, 1804, and he alleges also the

10 occupatior) an(i apjjr-opriation of two of his plantations by the
iiiiiitary forces of the United States and by emancipated negroes
under General Sherman'.s authority."

It appears that General Sherman had confiscated his property.
Now, then, the question before the Commission was, to decide
whether or not he was within the treaty designating a particular
class of per'.sons, namely, British subjects, observing the laws of
neutrality I'esiding in the United States, who had been unjustly
iliscriminated against by what had occurred.

In the argument both sides refer to the diplomatic corres-

20 pomlencc to ascertain what those claims were which had been
presented and were then unsettled.

I refer now to a statement made on page G4 of the argument
for the United States. Speaking of this case they say, begin-
ning at the bottom of page G3 :

" In a learned and most cai'eful argument, showing in its
"citations the most exhaustive research, he, (that is Judge Hoar,)
" was compelled to admit that the conclusion of all the author-
" ities on international law was that the nation of domicile
" couKl intervene for the protection of a person so domiciliated

']() " as against ever-y nation except the nation of his original
'■ citizen.ship ; that for certain purposes, the local sovereignty
"could intervene and protect him even against that country, but
'■ never in derogation of the rights of the country of his birth as
" recognized by international law."

With all repsect, I do not find that that was the argument
of Judge Hoar. He was addressing his mind, as I shall show
voii, to another point. He was considering the extent of the
authority of the state of domiciliation over the domiciled person,
and he was endeavoring to lay down the linuts within which

40 the country of origin might intei^'ere in a case of such a person
to protect him in his rights ; and the argument which he made
was this : that the local sovereignty had a right to the complete
services and loyalty of the domiciled citizen, except that it could
not compel him to take up arms against his native country, and
that the right of a country of origin to interfere for his protec-
tion, was, among other things, limited to a case in which it could
he shown that he was discriminated against improperlj' in
the administration of the affairs of the local sovereignty. I'hat
wa'i the position which Judge Hoar was contending for in his

•''O argument.

" The (juestion to what extent the local sovereignty may re-
(|uire the services of a domiciled citizen is a very different
question from this — to what extent in a domicileil country' may
native born .-ubject of another country ilisregard the laws of
the counti'y of origin, I say the latter is a different (luestion
from the one di.scussed by Judgt.' Hoar, I am not now arguing
for one or the other, but the Ututed States counsel say that
we are contending that a domiciled citizen may disregard the
laws of the country of his origin. Such is not our position.

•if) Our position is that even if it coulil be shown which we do not
admit that extra territorial laws could be enacteil liy the coun-
try of his origin to affect him while domiciled in another
country, even then the country of his origin would have no
authority to invade the country of domicile and enforce those

:^h

I ■,'

n i; ii

mM;

m^m

iiir

188

(Mr. Bodwell's Argument.)

laws there. But it is sufficient for my argument to say that
the question that Judge Hoar was discussing was an altogether
different question. He says at page 281 of the Report of
the Proceedings and Awards of the mixed commission on British
and American claims, No. 2, 1X94 :

'' An iidiabitant so domiciled owes civil and political allegiance
10 " to the local sovereignty, unless a.s against the sovereignty of
" his birth. This allegiance and obligation have no limits or
"qualifications ; and the mere fact that ho may not have gone
" through the form of naturalization would be, under the circum-
" stance.s of his case, innnaterial. It would furnish no answer to
" that sovereignty if it should see fit to make the same demand
" upon him as upon its native or naturalized citizens, for civil or
" militarj' service in person, or contributions from his property,
" moval)lo or immovable, for the exingencies of peace or war."

Now, what are the limitations meiltionei'. by him ?

"No power could call in question these absolute rights of
" the local sovereign, unless it be the sovereignty of this inhabi-
" tant's birth. Such u question could not be settled by municipal
" law of the soveieignty of his birth, but by the law of nations.
" In the present state of the law of nations, it is extremely doubt-
" ful if there are any circumstances which would justify the
" sovereignly of his birth ;:i interfering for his protection. If
" there be any, it would be such as fur.-iislied proof that the local
" .sovereign in some way attacked, through this person, the
" sovereignty of his birth. Such would be, for instance, laws or
30 '• acts discriminating against the claimant on account of his
" nativitj', or connection with the country of his birth, or in
" derogation of rights of that country as recognized by law."

These are the first two positions which Judge Hoar takes
in order to make his argument that Barclay was not a per-
son included within the terms of the treaty. He proceeds to say
at pasje 28+ : —

" The treat}' must be considered as relating only to what can
" be called British propeity. The property for which this claim
" is made was, in no sense of International law, British property."

For these reasons : —

" The Treaty contemplates only such persons as are, in the
•' sense of the laws of war, subjects of Great Britain, a.s, for in-
•' stance, those who are temporarily residing in the belligerent
■' territory for temporary purpose.s, or for international conveni-
'' ence only, or the care of property confided to the belligerent
■' territory for commercial purposes or the purposes of travel or
«' temporary residence."

His next point is on page 28.5 : —

'• To bring his case within the Treaty one of two things must
" be .shown ; either that he suffered in his property specially in
" his capacity as a subject of Her Britannic Majesty, or that, in
" common witii all others, his'property was taken in violation of
" the laws of war, to such an extent as entitles any .sovereignty
" whose interposition he could claim, to demand redress under
" the law of nations."

Then he proceeds to argue that in Barclay's case there was
no contravention of the laws of war, because it was not pre-
ten<led that in Barclay's case there was any discrimination made
60 or allowed against the property of this claimant compareil with
other property found in the enemies territory. Then he argues
at page 2'Jl : That there was nothing in the treaty lietween
Great Britain and the United States touching the residence of
aliens which bears upon the claims of Barclay, and that the

189

(Mr, Bod well's Argument.)

treaty of 1794 only related to comniorciftl and temporary resi-
dents for commercial purposes. That was Judj^e Hoar's
iiri'ument. Your honors will see it does not touch the point we
liave been discussin<j, and in the naluie of LIiIulH it coul<l not.
I'liat sutiject was not bffore that conunission. Mo adopted the
;ir"innent (»f Judfje Hale as to the nationality of property,
1" iind the point he makes is that the property was the property of
a man who had a permaiiciit rosidcnci' in the IJnitecl States, and
ilicnd'ore wa^ not a person coiitempliileil in tlio treatj-.the terms
111' wliicli only applied to persons tcinponirily resident, and who
would therefore lie taki^n to hold an intention to return and
ii'sniiii' thfir British resilience.

Mr. Dickinson : — He was beaten on both questions.

Mr. Hodwell : — Yes, in the way ho put it ; because it was
^-h(•^vn b}' the diplomatic c()rres|)ondence and the wonlinj; of the
Ti'eaty that the United .States had a(i;reed that Hritish citizens
2(1 in the United States, and carryini,' on their tiade there under
the provisions of the treaty, should be protected by Great
I'lritain. They assented to the proposition that Great Britain
had a right to interfere for their protection, and the argument of
the counsel for Great Britain was this, that they had been
unjustly discriminated against, ami that there was no reason why
their property should have been taken. Great Britain succeeded on
tiie facts, on the evidence pertaining to the case ; as I understand
the argument for the Biitish counsel at page 29.5, he argues that
the acts were conunitted without provocation, and at page 296
.SO that Barclay's domicile was in the United States, and not in any
particular State, and therefore was recognized by the Treaty. At
page 297 he contends that the Treat}' cont unplated subjects in
any .sense, and therefore that the}' were not concerned as to
whether they were subjects civil or political. Now, here is the
key to the umlerstanding of that argument — the position which
WHS taken there and sustained, page 307 of the argument of the
British Counsel : —

" The .same doctrine is the key to the correct understanding

" of the bearing of the numerous prize causes cited by Mr. Hale

40 " as supporting his argument. Under the prize law the property

' of everj'ono domiciled or resident in the country of a belli-

" gerent is subject to capture."

At page 308 he says : —

" The fallacy in the argument of Mr. Hale is in a.ssuming
" that, by proving the claimant to be an American citizen for
" certain purposes, he proves him not to be a British subject for
" any purpose.

" It is not at all necessary for the claimant in this case to
" show that he is not a citizen of the United States in some
50 " sense ; it is only necessary for him to .show that he was a
" British subject in the sense of the Treaty."

In other words, that there was no distinction in that treaty
between British subjects of one class and another class. The
decision of the case is to be found at page 9, and was upon the
facts. I read it as follows : —

" The first thing to be decided in this case is whether the
" Commissioners have jurisdiction — which depends upon whether
" the claimant is, within the meaning of the treaty, a British
" subject."
60 " That he is in fact a British subject, there is no doubt ; but
" it is contended that being domiciled in the United States, he is
" not one of those intended by the framers of this treaty to be
" included in that te^-m. It is undoubtedly true, as appears from
" various cases in the arguments that the subject or citizens of

■I ■ i

r*m^

■ 4:

■■.;lJi

! I

p..

190

(Mr. Bodwell's Arguiuont.)

" one State, (Inmieilcil in anoUier, acquires in some respects,
" privileges, an'l incurs lial»ilities diNtinct from those possessed
" in ri<rht of his ori^rinal birth or citixunsliip. But he still remains
" the subject or citizen of tiie State to which he orij^inuily
" lH;lon<;»'d, and wo see no reason to suppose tliat it was tlio
" intention of eitlier (^overnuKuit to |)ut the limited meaiiin;; on

10 "the words ' British subject ' contemled for in the arguments in
" support of tlie demurrer, so us to excluile from our jurisdiction
" a British subject who has never reriounced his oiiirinal allegi-
" ancp, or lieconie naturalized in any other country."

They, therefore, decide as a piincii)lo()f construction that the
treaty contemplated tlioso who were British subjects in any
sense, so long as thev' were resident in tlie United States, and
while the ('oniuiissioncrs aduutted it could bo established tliat
the man who is a British subject in one sense may be a com-
mercial sul ject of the Uniteil Stiiti's also, tiiey said that that was

20 not the question to be decided in the premises.

Now j'our Honors will sen that the case you have hero to ile-
cide involves an altogether different proposition. The propi-rty
taken here was scize<l upon the liigh seas by the United States
asserting her right to do so as a nution. The right was con-
tested, and the contest has been decided against the United
States. The oidy question now is, was that property British
property or the property of the Unite 1 States. If 1 am right in
assuming as I do that the authorities abundantly show that this
question as between nations, is to be decided, not upon considera-

30 tion of the political status of the owner, but with reference
to the home of the property, then under these circumstances
the whole (piestion will be determined by the consideration
of the question of the domicile of the persons mentioned here
and the ascertainment of the place in which the property was
acquired.

In the argument of the United States there is an attempt to
apply this proposition of law to the C^ooper case. In so doing
my friends lose sight of a distinction which exists, viz., that this
principle of law is applied with reference to the person so

40 domiciled, only in respect to property which he acquires in the
country of his domicile and in connection with the trade he
carries on. In Kent s commentaries, 13th edition. Vol. 1, star
page 80, the learned author says : —

" National character may be ac<iuired in consideration of the
" traffic in which the party i.s concerned. If a person connects
" himself with a liouse of trade in the Enemy's country, in time
" of war, or continues during a war a coiuiection formed in a
" time of peace, he cannot protest himself by having his donucile
" in a neutral country. He is considered as impressed with a

50 " hostile character in reference to so much of his commerce as
" may be connected with that establishment."

I call your Honors' attention to these latter words. It is,
" so much of his commerce as may be connected with that
establishment." In thejudgmentof the case of the "Ann Green,"
1 Gallison, to which [ have already referred, Judge Story says : —
" I admit that his connection in a house of trade in New
" York would not alone protect him, for he may at the same time
" possess the commercial character of several nations."

With regard to Cooper it is clear that there was nothing to pre-

00 vent him from purchasing a British ship and registering it in
British Columbia. These ships were purchased in Victoria, out-
fitted from Victoria, and that was their port of return. Apart
from the fact that Cooper had no interest in the ves.sels and
cargo, in order to apply the doctriae to bis case my learned

101

(Mr. B<j<1wc'I1'h Arj^uinvnt.)

friemis woiilil 1)6 required to hIiow that Cooper was Piirryln;; on
a traiiu in San Francisco, ami tliat in connuctiun witli tliiit trade
]() lit! ac.|iiire(l tiiese veMneis there ami oporated them from that
port. TliiM i» not pretended, an<i therefore the doctrine of tlio
CDnimercial nationality doe.s not apply to the cane of Cooper.

At one o'clock the ComniiHsionerH took recess.

;{()

At hnlf-past two o'clock the Commissioners resumed theirseats

Mr. Bodwell : — In tin? course of nij* ar^rumi'iit this mornin)^
His Honor the Commissioner on the part of the United Status
(lirueted my attrition to Article Three of the Convention with
reference to the point I was then makini; as to the nutiunulity
20 of the claims. Tiie hearing of this article upon my ar^'ument
had not occurred to me up to that time, hut dnrin},' the ri'ce.ss I
have examined it, and I think it relates strictly to thu ipies-
tion of procedure, and does not touch the jurisdiction of the
C.'ommis-'ion. It is the liahility of the Uniteil States that is
to he determined " in respect of each claim, and your Honors are
to "assess the amount oi' compensation, if any, to he paid on
account thereof." It then provi<les that tiu-y, the Com-
missioners, ".shall he authorized to hear and examine, on oath or
atKrmation, every (piestion of fact not found hy the trihunal of
Arliitration, and to receive all suitable authentic testimony- con-
cerninj^ the same; and the Ciovernment of the United States
shall have the rijfht to raise the quustion of its liahility before
the C^omnussioners in any case where it shall he proved that the
vessel was wholly or in part the actual property of a citizen of
the Uniteti States."

The framer* of tliis Convention had to take into consider-
ation the possibility that the Commissioners wouldnot a^ree, and
therefore as a matter of procedure, it was thouj^ht best that the
award should not he made in a lump sum, but that the dama<;cs
should be assessed with reference to each particular claim.
Further, inasmuch as you are authorized to receive
evidence for the purpose of coming to a decision as
to the lialiility of the United States upon the ques-
tion here referred to, it was no doubt thought con-
venient that your findings of fact upon the.se points should he
separated in order that if you .should be unfortunate enough to
flisagree, the umpire who is to decide between you, could
in a convenient manner indicate the result of his deliberations.
But it does not appear to me that the Article touches the
jurisdiction of the Connuission to determine upon what
principle they shall consider the evidence brought forward.
That is provided for by Article I. There it is said : —
" The high contracting parties agree that all claira.s on
account of injuries sustained by persons in whose belialf Great
Britain is entitled to claim compen.sation from the United States,
etc." These are the r>o-ties to the controversy. It is Great
Britain that claims compen.sation and it is the United States
that is asked to pay it, and therefore I submit that there
hat been no departure frotn the position I contend for, that Great
tiO Britain is putting forward the claim upon every ground upon
which she i.s, as a nation, entitled to stand.

I also wish before proceeding with my argument to read a
few words from the case of the " Pizarro," 2 Wheaton, page 91 : —

" As to the .second objection, it assumes, as its basis, that the

u >■■

1' ^***

'■ : i*

, 'S <K •!

i' !

i'f'

102

(Mr. BcHlwt'H'H Arginnont.)

"term ' »ul)iectH,' as used in tlie treaty, applies only to prrHons
" who, by liirtli or nntiirnlixHtion, owe n perniiini'nt ullcgianon to
" theSpuniMli Ooverninent. It is, in (jur opinion, very clear timt
" Bucli IS not till' true interpretation of tlie Iiuij^ua^je. Tlio pro-
" visiohH of tlu> treaty 'ire manifestly (le.si>»netl to n'wv reciprocal
"an<l co-extensive privile;,'es to I'otli countries ; and to ellectuuto

10 " tills olijict, tlie term ' subjects,' when a])plieil to persons owinj;
"alle^'ianee to Spain, nuist lie construeil in the same sense as the
"term 'citizens,' or ' inhaMtants,' when applied to persons owinjj
" alle;;ianee totlie United States. What ilenionstnites theeiitiii)
" propriety of this conxtruction is, that in the iSth Article of the
" treaty, the tei'ms ' suhjeets,' ' people,' and ' inliahitants,' are in-
" discrniuTintely used as .synonymous, to desiM;nate the same per-
"si.ns in hotli countries, and in cases ohvioiisly within the scope
"of the jirecediii;,' Articles. Indei'd, in the !anj,'ua;{e of the law
" of nations, svhich is always to he consulted in the inter|>reta-

20 "tionof treaties, a jierson domiciled in a country, and enjoyinf^
" the protection of its s(»ven'ij,'n, is deemed a suhject of that
"country. He owes allej,'iancu to the country, while he resides
" in it ; temporary, indeed, if he has not, hy hirth or naturali/.a-
" tion, contracted a p<-rmanent alle<;ianee ; hut so tixed that, aa
"to all other nations, he follows ' the character of that country,'
"in war an well an in peace. The udschiefs of a difl'erent con-
"struction would ho very ^'reat; for it mi^ht then he contended
" that ships owned t'y Spanish suhjects could be protected hy the
" treaty, although tlu-y were domiciled in a foreign country,

30 "with which we were at war, and yet the law of luitions would,
"in Hucli a predicament pronounce them enemies."

If the authorities I have cited cstahlisli the proposition
that hy reason of domicile tlie citizen acciuires cer-
tain privileges it niu.st follow, I contend that, with
respect to those privileges, and to the extent that ho
becomes a citizen oi the foreign state, lie is entitled to the
protection of that state ; and it cannot make any diti'erenco
whether that protection is claimed against an outside nation or
against tlie nation of origin. For, if the authorities go as j

40 submit they do, to the extent I have contended, then with
respect to the privileges and the property he ac-
quires, the (lon)iciled citizen is in exactly the same
position as if he were native born ; it is simply a
question of fact in every case whether the protection is claimed
in respect of those privileges, or in respect of his political status
outside of the rights which he acquires by domicile.

Even if we were to admit, which of course we do not, that
the United States have power to enact laws which will
affect ptrsons residing in British territory, does it follow

50 that that r.' tion may invade British territory to execute
Hucli laws ? I HUt)init upon the authorities I have (|Uoted
that tl :j jiosition cannot oe maintained, and therefore if the
United States cainiot enter British territory to execute their
laws ujjon property there owned by residents of that country,
c«in they follow property which has in this manner become
nationalized by the domicile of the owner, ui)on the high seas
wliile it carries the flag of (Jreat Britain, and is thereby deemed
to be as mucli a part of her territory as if surrounded by the
fortifications of Halifax.

60 Let me illustrate tlie position I wish to take. There is a
strip of territory alwut 800 miles from Victoria which has lately
acquired considenible notoriety because it is one of the entrances
to tlie Klondyke gold fields. The Canadian goveniment asserts
that it is British territory, but the United States are in posses-

lun

(Mr. RcMlwell's Argiiiiii'iit.)

sinll. Whilt
if it

\n tlm result f In t-vory rcspiut it Im tifiitfil
wtTd Tnitcd StivteM triritiiiy. If I'litish ^jimhIn
i)asH tlii'Diijili it l)<)n(liiij; nrivilt'j^t's arc iipplit'il for miil nlitaiiiiMl
|iiht iiH if tlio iii('iTliah<iiH«f wiiH lifiii^ tniiiHpDrU^ii tlir<iii;,'li tli<-
Statt) of Now York. In tjvory ri'Mpci-t it in trcatfil uh Aiiicri-
(iiii ti'iritory, hfcuum', iiltlu>uj;n it i» ii (lisputi.d titio, tin: I'uili d

10 StatcH ari! ni poHMcHMion.

So in tliiH cHHt*, when thtt hliipH in ((noHtion left th«) llritiMh
iiorts with tliu iliig of (iiviit iiritiiiu iibovo thoiu (<r<.<at
Britain wiw in poHHeMnion. If it woiihl Ix) Hn act of war
I'or the CiiniKliiin iviithoritii-s, hn I hiivu no doubt it would,
to enter the diHputed territory to which I 'oferred u nio-
tncnt a^ro, and attempt to diHturh tl>e occupation of tiie
I'nited StateH, would not tlie Mnnie etliuct f(.!!'j'n, niUHt it
not follow, when the United Statet* Keize these hIiIuh, which by
the fact of tuviling under the British Ha); were in the poH8e.sMioii

20 of Great Britain f How niucli stronjjor docH the case become
when it w hIiowm upon the evidence which hax been received here,
and upon the law that applien to it, tiiat that poH8eH8ion waH prop-
erly ontained. Kor if an mterest had been ac(iuired in thcHo HhipH
by citizens of the United States the forfeiture accrued to toe
British Crown and Great Britain would ntill be in poMteHHion,
and that witli a perfect title. Therefore I Hubmit that the United
are forced to contend that they have a right to enter upon British
territory to execute their lawH, before they can maintain their
position and justify the seizing of these Hnips. 1 submit thut

30 MMt position has not been maintained. It is a pro^iosition wliicli
they were bound to establish, and they have not as yet sup*
ported it by any citation from authority.

I say with all respect that their attempt to accomplish the
end they seek has been founded on a misapplication of &
different line of authorities, a line of authorities which refer
to the right of the state of domicile to call upon the domiciled
citizen for the performance of duties which lie is bound to render
to such State by reason of his residence. Tl at was the extent of
the discussion in the " Barclay " cjise.

40 In the same way the United States have cited a quotation
from Bar's International L»vw, and on page !) of our reply wo
have referred to it. In the United States argument, page U;J,
they say : — In Bar's' Private Intei-natioiial L»vw the undoubted
rule in this case is laid down: 'The State of domicile may ex-
tend protection to a domiciled foreigner lus against other
countries, except the country of original allegiance.' "

I do not understand that the argument here purports to
quote the language of the writer, because no such statement
is found in the text, but I presume it is intended to be an

.W interpretation or construction of the linguage there used. But
the author was not then considering the question that is l)eing
hero di.scusaed He says on page 135 : —

" Un the other hand, it is no sign of nationality to be subject
"to the system of private law in any particular State, and in the
" same way it is possible for a State to go so far as to extend
" (liploinatic protection to persons who are not in truth its per-
" manent subjects. Conversely, it may refuse that protection to
" certain persons, although they do belong to it, for tho
" reason e. g. that they have shown themselves unworthy of this

60 "protection, or by some breach of the law have forfeited their
" claims to such protection There is then hardly anything left
" except the indefeasible right of residence in the State, the right
" to live there. "

Then in a note : —

'N il

'»!

Ill

i " I I

1i I

|»1

194

(Mr. Bodwell's Argument.)

'"ThcUnitnil States oxteml <lijiloiimtic pnitectioii to persons
"who linve not as yei, Itoeoiiio citizens, if the}' nro doniieiloil in
" the United States, nnd Imvc iniide n deelartition f)f their inten-
" tion of hoconiiiiL; citizens, excpt in questions with the country
" ''rom wliicli tliej" canii', if hy its laws tlio existinj^ hond of
" alle:;'iance is not diss, Ived, nnd if the pers'>n,s in question have

10 " vohmtnrily hetalcen tlieniselves to her territory. See, on that
"suhject, Wharton, Jour. XI IF., p, .5,S7 et sec. Hen Wool.sey, ]nt.
" L,';W, 81, on the case of Kosta, wiiicli pai'tly belongs to tliis
" subject."

Both tlu'se conditions must arise licfore pvoteetion is extended,
an<l tlie only limitation to that doctrine, to tliat riijlit of tem-
porary allegiance, is that the li'ciil Mneri'i;;'nty lias not the right
to compel the teuiporarj' subject to take up arms against his own
country. That is not an authority I submit in favor of the
position which the United States must assume upon this argu-

20 mcnt.

Now, it must follow as a natural logical sequence, that if the
country domicile extends to the <ioniiciled citizen privileges he
is entitled to call upon her for protection whenever those privi-
leges are endangered. There are authorities vdiich seem to go to
considerable length in that direction. One of them is referred
to in our brief, the case of Worth against the United States, and
LonI agan.st the United States, decideil in the court appointed
to distribute the money under the Geneva award. It is said
in the argument for the United States that these statements can-

30 not be cited as authorit}' upon international law, because the
decision was that of a domestic tribunal, and further that all the
remarks to which we have referred were obiter. We Hay in our
reply that the decisions of domestic tribunals, when they
pronounce upon questions of international law, may be read
against the country in which they purport to be made.

Mr. Dickinson : — You have not stated my position exactly.
We contend that it is not even municipal authority. It was only
a Conimission appointed to distribute certain money, and would
have no more binding effect than the decisions of an Indian

40 Commission.

Mr. Bodwell : — The moat that can be said then is that it would
not have any binding or conclusive effect upon this court. I do
not suppose that the learned counsel means to say that if you
find in any court or in any place a person occupying a judicial
position expressing an opinion upon international law that is
sound, your Honors would refuse to listen to it and give it the
force that it deserves. I am willing to allow my friend to say
that this High Connnission is not bound by the decisions of the
Judge distributing the money received from the Geneva Award,

SO but I do saj' that the decision commends itself to our judgment,
that the argument which supports it is sound and ought to
prevail.

Here is what he says upon the subject of protection which
the Hag throws over persons carried upon an American ship. He
first took up the case of Worth against the United States.
Judge llayner delivered the opinion. The quotation I am read-
ing is found in the opinion in Senate Documents, Nos. 21
to 4G, and No. 1 Special Session, March 1887, 2nd Session 44th
Congress, page 37 : —

60 " It is a well recognized principle of international law — to
" the violation of which no nation has been more sensitive than
" our own — that the deck of a vessel, so far as national rights
" and duties are involved is regarded in the same light as a part
"of the terra firma of that nationality whose flag floats above

195

(Mr. Bodwell'H Argmnoiit.)

" till! ilock. ConsoqiKiiitly, tlio duty of prott'ctioii iinires to
" Iho full extfiit to tliosc ti'i'siiliiig tin- decks of AiiKM-icun vessels
'iiiitlm liii(li sens (IS totliosc i-esi'leiit oil imj'juirtioii of Ainericuii
" sijil, Ntfver was this priiieii^lii more clearly (^\eir.i)!ilii-,! '■'.aii
" ill tlie cnso of Miison and Slideii. Great F5ritain took tlio
"^n'Diind that these men wei'e, when on the deck of a Mritish
h) ' steamer, entith-d to her protection. Our own ;^overnment — im-
" |iortant a'* were the results involve 1— was comp ^lled to admit
" the justice of the British deniuid. (Jr'at Mritain not only
'■ viniiieated her own nntioii.d di^qiity hy reijuiring an npf)loi^y
" fn)m the United Stati-s (} )Vi'rninent, Imt she practically
" liL'stowed that pr tection which siie owed to Mason and Slid(^ll
" h\' requiring that they should ho placeii in statu quo hy our
"Government, which was done.

Cn pHj^e iH the Judgi? continues :

" It wns mainly in defence of this principle that our Govern-
20 " ment, sustained hy puhlic opinion went to war with Great
" JJritaiii in 1M12. She took the j^round that tin? deck.'i of our
" ships must he .saereil as against any claim of scarcli, or visitation
"even, on the part of any earthly power, if exeroised against
" our consent. Iiutead of chalfering ahout the cjuestion ot per-
" petual allegiance and the right of the British Government to
" the service of her .suhjects wheresoever found, wo took tlie high
"ami practical ground that those who were on the lieck.s of
"American vessels and under our flag were entitled to our pro-
" tection, and nhould have it.
;)0 Later on the same page ho .says .•

" The act speaks of those entitled to the protection of the
" United State8 ' in the premises. ' Tiiose words, " in the premi-
"ses, " ileflne and limit the application of the law within a
■' narrow circle. It is not everj'hody entitled to the protection
" of the Government that can come before this court ; it is not
" 6^very one entitled to tl^at protection who was a loser
" by depredations on the part of the so-called Confederate
" Government, by land as well as hy .sea ; it was not
" every one that lost by Confederate cruisers generally that can
40 " come here. But it t« every person entitled to the protection
" of the United States in the premises, viz. : every such one who
" sustained loss or injury, directly resulting from damages caused
" by the so-called insurgent cruisers " Alabama, " " Florida," etc.,
"and the "Shenandoah,' after, etc., that can come before this
'court, and without reference to whether .such person is native-
" borii or i reign-born, whether naturalized or unnaturalized.

'• Wo si- L'ld consider it a waste of time, as well as an ex-
"hibit.ion of judicial pedantry, to cite any long array of authori-
"ties t) prove that foreigners are entitled to p:-otection in that
50 " country in which they are domiciled, or even temporarily so-
"journing. This right to protection is recognized throughout all
" civiliM 1 C!>untries, not only by the great authorities on inter-
" national law, but by the municipal regulations and judicial
"decisions of diflerent countries. Vattel, than, whom Christ-
" endom recognizes no higher authority, in summarily disposing
" of the question as one of abstract international obligation,
" says : " As soon as the sovereign admits a foreigner into his
" State, he engages to protect him as his own subject, and to
"attbrd him perfect security, so far as depends on him ; accord-
(iO " ingly, wo see that every sovereign who has given an asylum to
" a foreigner considers himself no less offended by an injury done
" to the latter than ho would be by an act of violence connnitted
" on his own sulject. " (Vattel, book 2 chap. 8, see. 104).

" This principle of international luw is recognized as a part

1 : 1

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! 1

;< .ti

{'; i;

ir, -'i:

fX:

, 1 ; !).

im: rl't']^

196

(Mr. BoJweH's Argument.)

"of tlic municipal law of Englanil and of the United States.
" The Knirlish courts hare tlecideii aijaih and again, tiiat not only
" is a foreigner resident in P]ngland entitled to the protection of
" her laws to his person and property, but even in the case of an
"alien enemy, if he quietly and peaceably ohey» her laws and
"performs tlie duties required of him, he is not only entitled to

10 " the protection of her laws in nuing for his rights in her courts,
" hue he is entitled to protection to his person, even ua against
"the land of hia nativity.

My learned friend contends that this authority does not say
that his property is entitled to the protection, but I say that it
follows as a matter of course, that property which has become
nationalized by Ids residence and which accrues to liim while he is
entitled to call upon Great Britain for tprotcction to his person,
must also receive protection whenever i is assailed or an attempt
made to destroy it. The judgment then proceeds : —

20 " True, this protection inures only so long as he is within
" the pale of her jurisdiction. If he voluntarily returns to the
" country whose claim to his allegiance has never been divested
" by naturaliisation elsewhere, his title to protection is at an
" end ; but, as long as he remains on the soil or the deck of a
"ship of the British government, he may rightfully ci dui Dr'tish
•' protection."

Further down on the same page citing in ^\v ...tice
Kent and commenting on it, he says :

" The same learned Judge, in a judicial opinion, acclared that

30 " by the law of nations (which is a part of the common law) an
' alien who comes to reside in a foreign country is entitled, so
' lo.ig as he conducts himself peaceably, to continue to reside

' there, under the public protection And it has

now become the sense and practice of nations, and may be
' regarded as the public law of Europe, that the subjects of the
' enemy, so long as they are permitted to remain in the country,
' are to be protected in their pei-sons and property, and to be
' allowed to sue, as well as be sued."

" If this right of the foreigner inures to him in time of war

40 " between his native and his aidopted country, how much more
' consistently may it not seem to belong to him in time of peace ?
' If he may rightfully claim this protection when merely residing
' or sojourning here, in the pursuit of his gainful callings, with
' how much greater confidence may he appeal to it when he has
' braved tlie perils of the deep and embarked his hopes and hi,,
' fortunes under that flag which is the ensign of the nati<i: 's
'power and glory ? Of all the nations of Christendon: not oi e
' has done so much to vindicate the freedom of the seas t.^;aiiiBt
' that proud and mighty nation that claims to be their " mistvehs "

50 " as the United States of America. No other nation has done so
" much in imparting to its flag that moral power which speaks
" to the nations in the still, small voice of warning, that it is the
" emblem of a nation's might, and that if he who trusts to its
" protection be Imrined under it his wrongs shall not go unre-
" dressed."

Can it be said that this is not sound law ? It is not only
eloquence but it is also precision. And can it be argued in the
face of such a proposition, that when property is attacked w 'o
it is under the protection of the British flag that the owner c-

60 not ask Britain to protect it ?

At page 40, speaking of the Geneva Award, he goes on to

" As the result of an arbitration, involving the greatest
" triumph that peace ever obt.x .- d over */!.••, the British govern-

197

(Mr. Bodwell's Argument.)

" ment paid over the money which it is made the duty of this
•' court to distribute, on certain conditions and limitations, among
" tliose who suffered wrong from the default of the British
'• (joverinnent to comply with lier obligations as a neutral. Ac-
" cording to the provisions of the law under which this court
" exi.sts we have no right to discriminate among those who were

\Q '• entitled to our protection in the premises. The public law of
" Christendom, and the municipal law of the land, declare that
" foreigners, whether domiciled or temporarily sojourning on our
" soil, or whether on the decks of our ships, trusting to the
" security of our flag upon the high seas, are equally entitled to
" our protection againt wrong from any foreign power, and
" (Miually entitled to sue for their rights in our courts. There-
" fore on the ground of abstract justice and propriety, and upon
" the ground of legal right, we decide that foreigners, entitled
" to the protection of our tiag in the premises, whether natural-

20 " ized or not, have a right to share in the distribution of this
" fund."

He then takes up the case of the British subjects and while
not departing from the position he has previously assumed, he
argues that by reason of the terms of the Convention alone, and
having regard to the circumstances under which the arbitration
was brought about, and the object for which the money was
paid, the United States cannot distribute it among British
Hubjects without counnitting a breach of faith. He says re-
ferring to British subjects :

30 " Their cases present considerations different from those
" offered in Nos. 91, 92, 237, and 246, where the complainants
" were subjcicts of Portugal at the time of their alleged lo.sses.
" So far as the right to the protection of our laws and of our flag
" is concerned, the complainants Gordon and Munn had a right
" to such protection, as against other nations than their own.
" And if the conflict had been directly between Clreat Britain
" and the United States, and there had been an intent on the
:' part of Great Britain to harm or in any way to wrong them
" while under our protection, all the authorities would go to prove

■j-() " that our governnu^nt would be bound to defend and protect them
" in their rights even against their own government."

I say what difference can it make i while a person resides in
a country other than that of origin, and with respect to the
privileges he acquires by domicile, he is in exactly the same posi-
tion us if he had been born in the country of domicile. The
judgment continues : —

" Our complaint against Great Britain was not that she had
" directly or intentionally wronged our government or its citizens,
" but that wrong had been done through her neglect to observe

50 " her neutral obligation.s."

Then he goes on to speak directly of the treaty, and I will
read it as it is important : —

" In the distribution of this fund the measure and scope of
" our powers must be .sought for in the Act of Congress creating
" this court. While the proceedings at Geneva, and thenegotia-
" tions which led to the Geneva arbitration, are not positively of
" any bin<ling force or authority for our guidance, yet, as farts
" of the res tjentn, they are useful in enabling us to judge of the
" motives and influences which operated on the arbitrators and

(iO "of the ends and objects of their award. In ea.se8 of doubt they
" are valuabl" in aiding us to arrive at a proper construction of
" the Act of « Jongress which prescribes our duty.

' While G.'eat Britain admitted that she has been negligent
"of her duty, she rever did admit that she had committed a

«1 >!i^

:ii I

198

(Mr Bodwell's Arffument.)

" wroiinf aiiainst our GoverniiuMit, or its citizens under tlie laws
"of Hiitioiis. Tlio.s(> ropresentinLj Iter interest, as iippears from
'■ till' Rritisli cDUiitiM- case, coateiuk'il that Iut nej^loct was in not
" '"'.^'''b' t'nforeinjj; lier own inuiiicipal laws for securinj^ ncutral-
" ity. To tlio diur;^!', ainonj^ other causes of complaint on the
" p;irt of those represeiitinL; the United Statics, that slie had

10 " failed tn enforce her own municipal re^'ulations, lier reply was
" tiiat that was a mutter with whicii we had no concern ; and
"that it was a question hetweon her and her own people, with
" which we had nothing to do. While as before said, these pre-
" liminarj' discussions and nci^otiatious are of no hindinji auMior-
" it}' upon this court, yet does not national courtesy'- and ;^ood
"faith reijuireof us to suppose that Con;;ress, in creating thisconrt,
" never intended we should distribute this fuml other than for
" the purposes for which (ireat Britain supposed she was paying
" it ? For instance, suppose Congress had chosen to keep half of

20 " the fnn<l and cover it into the Treasury of the nation ; or had
" directed this court to distribute it among those whose comiuer-
" cial interests had been injured bj' the terror and alarm caused
" bj' the insurgent cruisers or among those who had suffered loss
" bj' the depredations of rebel cruisers, other than the
" ' Alabama,' ' Florida' and 'Shenandoah.' In such cases, would
" not Great Britain have had cause to complain that she had
" been misled, overreached, deceived ? Would our Govern-
" inent have been acting in good faith in making such dispcsition
"of this fund?

30 " If Great Britain suppo.sed, as seems to have been the case,
" that in paying this money it was to indemnify those who had
" been injured by her failure to execute her own municipal laws,
" wouldshe not regard any action on ourown part in indemnifying
" her own subjects for her neglect as inconsistent with the ob-
" joct« and purposes for which she agreed to the arbitration in
" the first place, and to the payment of the money in the second
" place ? "

That is the decision. Rightly or wrongly that is the position
he assumed, and it is the ground on which he decided not to

40 allow this claim. He proceeds : —

" And while we might be bound to indemnifj' a British sub-
"ject entitled to our protection, who had suffered a direct positive
" wrong from his own government, are we bound to indemnify
" him for a loss consequent upon the failure of his government
" to do her duty as to the conduct of her own subjects. "

That is the point. The distinction is clear in itself, and it is
made most clear by the apt language which is here used. He
continues : —

" Suppose it had been propo.sed at Geneva to hold the British

50 " Government responsible for losses sustained by her own sub-
" jects because of failure to execute her own laws, would she not
"have promptly replied: " That is my own affair; I am fully
" competent to take care of my own subjects" Whilst you may
" hold me accountable for a direct injury done even to my own
" subjects while under your protection, you have no right to hold
" me accountable for a wrong done to myself or to my own sub-
" jects in a failure to execute my own municipal laws."

That was the reason upon which the case of Burns was
ruled out. This authority says that the Burns' case which was

60 ruled out of the G«neva Arbitration, was put upon that ground,
and I suppose he is right. I am not in a position to refer your
Honors to the evidence, but surely that judge's statement of the
fact may be taken as correct ; and I commend that decision to
your Honors, as laying down sound principles which will

lU.tL

199

I' ;l

(Mr. Bodwell's Arguim'iit.)

pi'dctically settle Cirout BritHiii's rijjlit in tliis cu^e to protect the
i)i(i])('rty of tlie chiiiinints lierc.

■Mr. IJickinsoii : — It .sliows tlie viilne of the research of tlio
Icariieil iiuthoriiy when he i-ujs that tlie Geneva Ai'bitrii-
tiiiii liold Great Britain responsilile for faiiui'u to
execute her own municipal laws. The (lecision of the

10 (ieiieva Tribunal was (lirectl\' to the point, that
iiotwithstaiidin;^ her claim to have e.Kccuted her municipal laws
liei' liability was held under international law. She claimed
that she had carried out her nuniicipal laws but that her
nnniica|)al laws were not etl'ective.
Mr. Peters :— Oh, no.

I\Ir. Dickinson: — That is the decision of the tribunal T
maintain it ami I will sliow it. It.show.s the value of this learned
C'onnnissioner's research.

]\Ir. Bodwoll : — I do not speak with very mucli confidence upon

20 this branch of the case, that is a part of the controversy to which
1 have not yiven as careful attention as I have to others,
but I liave always understood that the claim against Great
Britain was that she had not compelled her subjects to obey
her municipal law, which would liave prevented her own subjects
in her own territory from arming to attack a friendly power.
The United States said, you did not enforce your own laws
against your own subjects, and the arbitrators upon that ground
decided tliat Great Britain was liable. What tlie Judge says
seems perfectly correct, namely, that tlie United States never

30 claimed that Groat Britain should indenniify licr own subjects,
because within her own tcrritoiy she liad not enforced her muni-
cipal law ; but the United States did claim that Great Britain
sliould indemnify citizens of the United States who were resi-
dent there and liad been injured by tliat fact. I say that the
reason why the Britisli claims were not allowed in the distribu-
tion of the fund after it was paid was upon that ground, and
in making the decision wliich he did, and in showing as he
does that there were special circumstances connected with the
case, it appears to me that tlie learned judge is perfectly right.

40 I submit that the invasion of the territory of Great
Britain for tlie purpose of executing the municipal law
of the United States or the extra territorial law of the
United States if you like, would be a most fragrant hostile
act, and would be one which if carried out would entitle
the person whose property was so injured to claim redress, and to
claim it in the only way the claim could be made, namely,
througli the government under whose protection the person so
injured lived, as against the government which had done this
wrongful act. My learned friend, Mr. Peters suggests to me that

50 if Judge Rayners decision were wrong it would be so much the
worse for my friend on the other side, because it would
show that tlie cases of " Gordon, " " Lord " and ' Alexander,"
would be in the same position as the cases of the other
claimants who were citizens by origin of a country other than
Groat Britain, and who were allowed to take part in the distri-
bution of this fund.

Now, if it please your Honors, I shall not detain you any
longer upon these points to which I have been directing your
attention, but I shall proceed with that part of my argument

00 which relates to a discussion of the evidence.

1 t^S

!■!.

'i..

i i - ■

Hiwr

200

(Mr. Bodwell's Argument.)

THE BUSINESS OF SEALING OONSIDBUINQ OENKRALLY ON THE

EVIDENCE.

Tliere are certain jjoaoral matters winch liavo formed the
subject of .separate heads in the Argument of tlie United States,
tliey also to ahnost the same extent form the subject of .separate

10 chapters in the argument of tJreat Britain. They relate en-
tirely to (|UfHtions of evidence, and in fact the United States
headings may as well be adopted a» »:,y other for the purpose of
this disoi.ssioii. They take up in one chapter what they call
" the uncertain character of .seal hunting;" in another chapter
the (|uesti()n of the "sealing groinids in Hehring Sea;" in
anotlier ciiapter the (juestion of "duration of the .sealing season;"
in another chapter "the value of seal skins" generally:
in another chapter " the value of the vessels " considered gener-
ally ; and in another chapter they take up that, which we have

20 said in our argument, relating to the basis for computing the
value of the estimated catch. That is a very convenient arrange-
ment, and it is po.ssible to group the evidence undei
these dirt'erent hearlings so as to make it a connected .story,
and to put it in such a sliape that your Honors may consider it
with greater facility and ease. I propose to follow the same
division in the remarks which I have to pass upon the evidence.
In regard to these subjects considered generallj', the argument
of the United States is to this effect ; that seal hunting is a
business uncertain in itself, that the ground where seals were

30 1 1 be found were difticult of access, that the season or the
Vieather during which sealing could be prosecuted is of short
duration, and that in view of all these contingencies it could
not be predicated if any person going on a voyage that he would
make a successful catch. In Mr. Peter's argument, he has made
what may be taken as a conchisive answer to the whole of these
contentions, when he stated, that even if we were to admit to a
great extent all tliat is said upon all these points in the argu-
ment of the I'^nited States, we have still shown that notwith-
standing the uncertainty of the business, we were in the sea.

40 we founil the seals, we were taking them in large luimbers and if
we had not been ijiterfered with there is every rea.son to expect
that we would have returned with good catches and would have
made a large anuanit of mone}'. More than that I may add,
that sealing was carried on in 188(i and 1887 and has been
coiitiiuii'd down to the present time, as a regular business,
that many vessels have been engaged in it, that large
sums of money have been investe(l, and that the business
has grown to such proportions that now the two nations
represented on tliis arbitration are considering the subject of

50 regulations because the Uniteil States ass(!rt — with what degree
of accuracy I am not here to argue — that if the business is not
regulated by stringent rules, hunters will exterminate the fur-
bearing seals. ITnder these circumstances it is .scarcely possible
to believe tijat the character of the seal hunting industry can be
such as it is described in ihe argument of counsel for the
United States.

Again — and it is a point with which I will have to deal with
more fully later — the position assumed by counsel for the
United States is inconsisttent with the whole of their contention

CO from the beginning of this controversy. If it is a fact that seal
hunting is so uncertain : if it is a fact that the sealing grounds
are unknown and that the season i.*! short ; how is it that
the United States went to Paris and asked for regulations upon
the theory that that large industry was necessary for the com-

201

(Mr. Bodwell's Argument.)

fort of the inhabitants of the world general iy, and that it was
in danger of being destroyed by tlie eH'orts of the pelagic
sealers.

I say that we might rest with perfect safety upon the
answer which experience has given to tiie present contention of
the United States, nevertheless this subject has been considered
10 with a great deal of care and at great length by council for the
United States, and it may be necessarj- to answer them more in
detail. In the printed argument of the United States there has
been a very ingenious arrangement of portions of the testimony
iiiid certain plausible deductions are drawn from this partial
statement of facts, and we do not feel that we would be
jiroperly representing the interests of Great Britain if we allow
the construction which has been thus put upon the testimony
to go unanswered. That must be my excuse for detaining
your Honors — perhaps you may think to a somewhat

uiuiecessary extent — in the
(if the evidence. I shall
us possible, and I trust 1 shal

20 uiuiecessary e.xtent — in the consideration of the details

endeavour to be as concise
1 have your Honors forbear-
ance in discuBsing a matter, which although less interesting than
the subjects which have been argued hitherto, is just as
nccessarj' for a perfect under.standing of the case.

'{'he first argument I shall attempt to answer is that contained
in the United States brief under the heailing, "The uncertain
character of seal hiniting." That chapter di.scusses the subject
from a general standpoint and therefore it seems a fitting one

;{() with which to begin a con.templation of the evidence.

It begins in the United States argument at page 177, and I
refer in the first j)lace to a (|uotation from a deposition made by
Daniel McLean at San Francisco on the 7th September, ]Xy2,
which deposition was read into the notes by the United States
Counsel. In that deposition, under the caption "sealing a
venture "—he says : " The conditions for a successful catch are
" so many that while one vessel may take a great many,
"another with eciually as large a crew may oidy secure a su»all
" number. It reciuires expt-rience and a careful .study of the

40 " habits of the seal and a thorough knowledge of their route of
" travel along the coast of Behring Sea to secure a good catch.
" I have known persons to leave X'ictoria at the same time as I
' did and with the same number of boats, and at the end of the
"season I had two skins to their one."

This was an ex-parte statement. The witness was not cross-
examined upon it.

Many reasons may be suggested, other than that which he has
given, as the cause of his returning to port with two skins for
every one obtained by another captain. Your Honors will' re-

")0 member that the McLeans figure to a large extent throughout this
whole controversy, and from what you know of their evidence you
will be prepared, I am sure, for some exaggerated statenienta
from them, especially when they are made exprate. The
poBsession of a particular knowledge of the seal liabits as all
the evidence shows, is not bo much a condition of success in the
ac^aling captain and crew, as is industry and perseverance in
their TTi/ik. We have a great many instances in the record of
men who posseBsed no previous knowledge of the nature of seal
hunting, who did not know the Behring Sea or the Pacific

(iO Coast, who came to Victoria, picked up a crew of perfectly green
hunters went to the Behring Sea and returned with large
catches. One notable illustration is to be found on page 2!)1 of
the Record. Captain O'Leary makes this statement beginning
I think with line 51 : —

m '

J'l^M

■:i "Hi

t<|! ":

.I'il

^i ■ 1^

' ' n

I ^'

202

(Mr. ISoilwcll's Ai-i,finiit'M(.)

••illii"; 111 I lie \v!\v

sen 1 1 Hi;'
I'di'i'.
1 iron i;! it

lu'l"

Ul't'

ISSd ill the
A. No.

•I'ath-
I liad

tlic "I'litliliniliT " ai'ouiul

klKIWlcjfl' I)

■ t() ln' I'umiil

til-
A.

hriiii

Sea with til

111' lllllitcis

cicalitv ill
No, i <li(l

' slii|i tliat

A. I n-ot

" <j). Nov, \-oii went
" fimlcr iliil ymi ' .\. W s,

" (.J. I laij you I'xcr lucii
" never si'aliil I'or Inr seal lie

Tlie evideiiee is that he
from N'o\a Scoti.i in that year.
10 ••(). Hail you any |iaitieular

" ISehriiij.;- Sr;i where I'lir seals wen
" not.

■• (,). \'o!i w"ii! I'm- ^"-ilin;;' to l>
" year ' .\. ^'es. I diil.

■■ (^>. Where (!ii| you ^^et your (TeW
" them rio'hl iiri-r ill \'i, ■. . ;,i.

"(,). Ila\'.' you any :, now !■ i!'r,' IS to what their exjierienee
"hail heeii ill seal'lli;' :* .\. W'el', ! think twool' tl'em ll;lil lieell
" sealinu' on the eo-i.-i of ( ';;':roriii i thit year, e;ime here, left the
20 " \essel here ami went sealiiie; with me.

" Q. Tile others ^ \. The other.s wa.s tlioir tirxt year.
" Q. Tiiat was the tirst season for all of theiu ? A. That
" was the first year for all of them.

" Q. How many hunters ijiil you liave :' A. I had five.
" Q. How many boats ? A. I Imd five, regulai* sealing
" boats and a small stei'ii boat.

" Q. Did your .stern boat do any hunting ?"
In passing I may say that this is a gootl piece of evidence with
reference to the capacity of the stern boat, because the stern
30 boat of this vessel may be taken as a type of all the stern boats.
His answer to the '[itcstion is ; "I got a few. I went out my-
self and got a few. I might have got 30 in the stern boat."
The evidence about the stern boat is, that it was usually operated
by the Mate and sometimes by the Captain. In the morning on
a fine day when all the work had been done and seals were
abundant they took the stern boat out and hunted seals in it,
but it waa not considered a regular sealing boat and was only
used on occasions when the weather was favorable and when
there was nothing else to do. In our calculation of the quantity
40 of seals to be taken, we have left catch of the stern boat out of
consideration in each case, and it works as well for one side as
for the other, because all the vessels had stern boats or canoes
which were used as such.

I read again from his evidence: —

"Q. What time did you go into the Sea ? A. I think the
" sixth of June.

" Q. Did you know where to find the seal ? A. Only by
" looking for them.

" Q. Did, you f nd them ? A. I did after a while."
50 With this equipment and with this knowledge and experience
he made a catch of 1460 between the first of July and the fourth
of August. Therefore, Captain McLean in stating in his
deposition that to make a catch, experience and careful
study of the habits of the seals and a further knowledge of
their route of travel on the coast of Behring Sea is a pre-requisite,
is entirely wrong. And I may point out to you** Honors, that
there is a great deal of other testimony in the Record directly
opposed to such a contention.

I think I shall make it clear before I am done, that in
60 Behring Sea the seals leave the Islands, and scatter about
the sea for a distance of about one hundred miles. The sealers
went into that locality, and when they went there found the aeals.
They did not find them always at the exact place at which they
expected, but they always found them after a short

(Ml'. Unilwcll's Ar^jumciit.)

period of pruisiii;:^ witliiii ci'i'tnin limits. The inovi'inoiits of tlio
.s('!ils\v('ri'ul\viiys(!iititiiu'ii\vithiiilii)iiiiiliirii'sfnirly W'll(i-.C('rtiiini'(l.
This matter, liowovcr, will cdiiil' iij) more properly in tlio (liw-
ciission of tlio loc-iility of tlic sculiiii,' i^rouiiii.s, wliicli I will deal
with afterwards.

Ill ,1 Iditioli to the e\iileiiee jllst reail wc have tlie case' of
ID Captain Went worth l\. liikcroii the "N'iva." In ] SSS lio
went sealiii'.,' for the lii'st time : lie lii'()nt;ht the " \'iva " arouiKl
riiiiii Nova Scotia made a voya^fi- to I'ldirini,' Sea with
;.Teen liunteis and L^oL KiOO seals between the Hth .Inly and the
:iiil Svpteiiiiii r. Me wa ^ a totally iiie.\pereiiced man in.soaliiipj
at that time.

Tie' true secret nodmilit, of the sneeess of the seal hniiter was
stated by Neil .Moss. Ho h,id bieii ill the se;i since 1SS5, ami
he was asked in er()><-i'\aniination at paL;e 'VAS, line 10:--

" Q. And the eateh of tlu' vessel woidd depend somewhat on
20 "the skill and kiiowled^je of tlio master, would it not? A. Yes,
'■ I ij;uess a little somethiin^ about the vosstd too. The captain
" had good knowludire about seals. "

This, your honors will roineinbcr, was the year in which he
sailed with McLean as Master.

" Q. That would make a ditt'ereiice in the results wouldn't
" it ? A. I do not know. It all depends on how we come acro.ss
" them. New men could jfo in there and come acro.ss them as
" well as men of experience.

" Q. Is not a man who knows something about their habits

30 " better able to judge wjiere to find them ? A. I do not know.

" Q. When you say that a man has the reputation of being

" one of the best captains in the business, what do you mean ?

" A. I mean Captain McLean was a rustler, and waa always on

" the go."

That, your Honors, is the secret of success. The men
who hunted for them, the men who tried to find them
and the captain who put his men out and kept them out, caught
the seals. It required, no doubt, ordinary intelligence and
ordinary understanding of the business, but a captain with a
40 capacity for handling men had all the requisite qualities for a
successful sealing captain.

The history of the industry also supports this contention.
Before 1886 there was very little hunting done in the Behring
Sea, and therefore before that time there could have been no
such thing as an extended experience with reference to th«
character and habits of the seals in Behring Sea. Yet, wh*.t do
we find ? In 1886 sixteen vessels went into the Behring Sea,
some of them commanded by men who had experience on the
coast, but with the exception of McLean, Hansen and Rayner, by
50 men who had not been in the Sea at all before that year; yet we see
that every one of these vessels were making good catches when
taken by the United States cruisers. The only schooners that
year commanded by masters who had previouii experience in the
Behring Sea, were the " Mary Ellen," the " Favourite " and the
" Adele," which was sailed by Captain Hansen.

The argument for the United States is also, and must
necessarily be, inconsistent with itielf on this point, because
in their chapter on the sealing grounds they quote a great
deal of evidence which they allege shows that there was not
60 a defined locality for seals in Behring Sea. The only
ground upon which it can be predicated that the experience of
the captain would avail in the securing of a catch is this :
that on account of his knowledge of seal habits and his experi<
ence of the locality, he would be able to take bis crew to the place

I" 1
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H'f

:■

I'i

■'^ii ,;..

4 : ■ ;■■!

ii'i

-*' ''.

,^'i«'

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204

(Mr. 6odwoir.s Argument.)

whore seuls were to be found, but while making that atatcuient
on the one hand the argument of tKf United States immediately
after asserts that previous experience was useless, since the find-
ing of seals in a place one year was no indication at all that they
would be found in the same place next year. We do not admit
that contention. I may say at once that we contest ;>. strongly,

10 but the point I am making is this that the argument of counsel
for the United States is not consistent with itself, and that that
inconsistency demonstrates the weakness of the assertions con-
tained in the chapter 1 am now discussing.

McLean himself says it only takes three or four months for
a man to acquire complete knowledge of the habits of the seal.
We have proved that it does not take that time in many
instances. Here, however, is the witness for the United States
putting the limit of time required lor l)eef>ming a good hunter
at from three to four months. At page KSTof the United States

20 argument his evidence is quoted as follows : —

" All seals don't act alike, some act ditf'erent. A uian has got
" to have considerable experience. It takes probalily three or
" four months before be understands how to appioauh a seal
" properly."

But the evidence shews that all trie hunter has to learn is to
keep to the leeward of the seal. Here tJHii is the extent of the
experience he must ac(|iiire in Hfhiin;,' Si-a to catch seals. To
this, of course, must be added his n-itural aptitude for hunting,
and his skill as a shot, wbicli art- qualitii-s ho will acquire, alto-

30 gether apart from the study of >eal life yi Behi'ing Sea. When
he goes to Hehring Sea and is put to liuni in a boat, the only thing
he has to ascertain, is which wav ibe wind is blowing and the
direction of the seal in n^lation to that wind. He has also to
learn this, a matter which a man of onlinarN' intelligence must
be able to ac(jnire in a day or tvvo_ at lea-t, from observation, the
position of the si'al, wlielber it is awake or asleep, and to regu-
late his approach aecordingly. So I sa\ ('apt. McLean has exag-
gerated when he says tbiit that kind of knowlediie cannot be
acquired by a man of ordinary intelligence except after three

40 or four months of active expeiiencf in ide Sea.

The next position wbicli is taken ou ibe uncertainty of seal-
ing is this, appearing at tlie bottom of page 177:

"The vessels employed were u^nallv small second-hand
" schooners ranging from 1.') to 12.5 t')ns lairtht'ii, though the
"the ordinary size was lietween 50 ami 100 tons"

Now it is true that the vessels wbicli were used in the sealing
business in LS8G and lNiS7 weie in many instances not new
vessel.s ; but there is no foundation wharever for the suggestion
that on that account thev Were not good ve.s.sels. Fr-om the

!)0 beginning to the end the evidence is conclusive, that they were
all staunch, sea-woi-tby, and well-found in t^very respect;
perhaps, in order that your Honirs may have it in a convenient
place, I may state here the tiMinag.- of liie diff'ereirt ves.sels :

" Favorite " 8(t tons

" Sa\ ward " 64 n

" Alfred Adams" t.9 „

" Dolphin " G6 ,.

"Grace" 83 „

60 "Ada" 77 M

"Pathfinder" 70 „

" Black Diamond " 82 „

"Lily" 69 „

"Triumph" 106 „

£05

(Mr. Bodwell's Argument.)

"Ariel" 91 tons.

" Oicar and Hattie " 81 ..

" Kate" 58 „

" Carolena " 32 „

" Thornton " 29 »

"Onward" 35 ..

10 "Anna Beck" 41 n

" Juanita" 40 i,

"Henrietta" 30 «

"Wanderer" 25 „

•' Winnifred " 13 „ .

" Little Triumph " 15 „

The Commissioner on the part of Her Majesty : — I think the
tonnage of the " Caroiona " was reduced.

Mr. Bodwell :— There is a dispute as to that. The official

20 measurement put in is 27, or something like that, tons ; but she

was said to be, and was registered first, as a vessel of 32 tons.

It is not very clear which is correct, and I suppose it makes very

little difference.

Mr Lansinjj: — Is that from Collector Milne's list ?

Mr. Bodwell : — No, I have taken this from our argument.
In making the claims, our first statement is the tonnage of the
vessel, and this list I have read is compiled from that source.
I have no note of the " Mountain Chief."

Mr. Peters . — It is IC, as a matter of fact.
30 The Coiiimissioner on the part of the United Status : — It is
not necessary to take time here as to this matter. This is only
a bird's eye view of the whole topic and need not be accepted as
absolutely correct. When we come to discuss the various vessels
we will get the precise facts about them.

Mr. Bodwell : — I think it is correct as far as it goes. T'lere
arc 23 vessels as I count them ; there is only one of 15 tons,
only nine under 50 tons, and there were thirteen over 50 tons.

Now then the evidence is, that small vessels, or vessels of this
tonnage, were employed designedly in seal hunting because they
40 were better vessels for the purpose. For that we have the
authorit}' of a witness very much relied on by the United States,
namely, Capt. Miner. At page 551 of the Record, beginning
at line 22, he testifies as follows : —

" Q. What do you mean by a vessel adapted to sealing ?
" A. By a vessel adapted to sealing I mean one that is a moder-
" ately fast sailer, a good .sea boat, and of about the right sizf
" to be comfortable according to the crew you wish to take. I
" should call nothing comfortable for sealing under 65 tons, or
" nothing la ger than 125 tons.
50 " Q. But would you undertake to say in giving j'our opinion
" from the box that a vessel under G5 tons was not adapted for
" sealing ? A. No, Sir, I would not.

" Q. You would prefer for comfort a ves i-^ f 65 tons?
" A. Not lower.

" Q. As a matter of fact some successful sealers have been
" under 65 tons have they not ? A. I think so.

" Q, You do not need a regular racer for a good sealing boat
" I suppose ? A. No, I think not.

" Q. Will j'ou tell me why a vessel over 125 tons would not
CO " be adapted for sealing in your opinion ? A. Because she
" would be rather heavy to handle, hard on the gear, and harder
" on the crew.

" Q. How about expense ? A. That is what I say, more
" expensive on the gear.

i;;|i:!;;i

!■ 111!

I I

1 r-

lEWWT

206

(Mr, Bodwell's Argument.)

" Q. And too large to bo eaMily liftniUod ? A. Too largo to
" bo easily bandleil.

" Q. Your ideal is 65 tons is it ? A. No, my ideal is about
" 100 ton vessel.

" Q. Do yon know tlio average toimngo of vessels that have
" been engaged in .sealing ? A. I think the average would be
10 " very hard to strike.

" Q. Could you come within ten tons of it ? A. No, Sir.

" Q. Have they been under 100 or over ? A. I think the
" average would be.

" Q. A good deal under ? A. Yes, Sir, not very much.

" Q. Well, ivbuut twenty tons under ? A. Possibly.

" Q. You cannot come nearer than that ? A, No, Sir."
It cannot be contended that, on account of their size, these
vessels were not good sea boats ; because wo have the reconl of
80 many successful voyages made in that si-a at all seasons of the
20 year at which seal hunting is prosecuted ; and that fact alone is
sulHcient to establish that these vessels were perfectly well able
to stand the vveather, being sound and seaworthy. In addition
to that wo have the positive statement of Capt. Laughlin
McLt'an, who was exaniii.v,d on this very point, at page 754,
line 13 :—

" Q. FroH) your experience would there be any danyer of a
" smo'ler schooner than the " Favorite" remaining in the Behring
'' Sea until the end of August, and even until the beginning of
" Septend)er (the ' Favorite ' was 80 tons) ? A. No, Sir."
30 Then we have in the Record that the " Mountain Chief," a
little vessel, stayed in the Behring Sea until the 7th of September
and came away without ilitliculty. It cannot be maintained on
this evidence that these voyages were rendered perilous on
account of the size of the vessels employed, but f appeals to
be the conclusion drawn in the United States arg , for, in the

very next paragraph, we find them asserting t dangers

attendant on the voyage of this 1500 miles to Behiing Sea (and
I suppose thej' mean us to infer the dangers of the voyage in
that class of vessels), " which usually occupies from fourteen to
40 twenty days, and tl.ose that surrounded the operations in the
sea, together with the uncertainty of profit, never induced
capital to invest largely in the industry." It is then said that
the perils of the Behring Sea cruise were such that the rates of
insurance were largely increased on Behring Sea voyages, and
also it is argued that the dangers and perils were so great that
owners would not employ hunters except npon a lay.

Now to deal with these dirterent propositions in order. In
the first place it seems to me that the statement that the voj'ages
usually occupied from fourteen to twenty days is scarcely proved
50 by the evidence. I know there is some evidence that there
were voyages of that length ; but we have the record of
the voyages of two vessels, which I think may be taken as
typical vessels. This point is not material here, but it does come
up for consideration when considering the length of the season,
because there is an urgument founded on the fact that we have,
in making our calculations, counted the whole time that would
be orcupied by the vessels, not only in Behring Sea, but on the
voyage home, therefore it is worth while to notice it here.

We have the " Little Triumph " and the " Onward." The

00 " Little Triumph " almost the smallest, and the " Onward " may

be taken to represent the mid<lle class. We have in the evidence

a record of the time taken by each one of those vessels in

making the trip.

Evidence with reference to the time of the voyage up

207

(Mr. Bodwell's Argument.)

would not be so imlicative of the actual time occupied in
st'ivling, because, on the voyage up, the sealers always stopped
to take .seals if they found them, and it is on the record in nearly
every instance where we make the claim that there was quite a
iiuinber of seals taken on the voyage up, outside of BohringSea.
Tlierefore I refer to the voyage home as a much better basis for

10 ubtaiiiing the actual sailing time than the voyage up.

The " Little Triumph " in her trip down, made the voyage
ill about two weeks. She is spoken of in Smith'.s evidence,
ji(ii,'u HOI. Spring is asked what time would be required
f(ir the " Onward " to make her voyage, and he says from twelve
to fourteen days, page 86!), lino So. So that, except in the case
of the very smallest of vessels, wo wo-ild not be justified in say-
ing that the ves.sel occupied from fourteen to twenty days in
making the journey from the sea, but we may conclude that, in
oidiiiary weather, the longest time that would be occupied would

20 lie from ten to fourteen days.

The statement that capital was never imluced to invest
largely in the industry cannot he supported. Of course the
investment of capital in any business is always a relative term.
In 18SG there was very little capital invested ; but the reason
was that the profits of that industry were not known. Sealing
at that time had been carried on on the west coast of Vancouver
Island, and liarl been prosecuted with inditt'erent success ; but, ai
you have heard it stated over and over again, when Captain
McLean and other captains went into Behring Sea in 188.") and

30 niixile the catches which they did, obtaining large prices for
them, the sealing business went up with a bound, and a great
iminber of vessels, comparatively sp' king, were put in commis-
sion. In the United States ca.se lliere is a statement of the
reasons. There is a statement that was read into the record at
page 1849, a part of the afiidavit of Morris Mo.ss, which is printed
in volume 3 of the United States re-print, page Ml, and which
was a part of the case at Paris. Speaking of the condition of
things before 188G, he .says : —

" The fleet was small, not numbering over half a dozen ve.s-

40 " sols, and the trade was in the hands of three or four men. In
"1883, the American schooner San Diege, of San Francisco,
" ontere<l the Behring Sea, and after taking about 2200 seal-
" skins, brought them to Victoria and sold them. This gave
'■ impetus to the trade and the following year Victoria schooners
" entered the sea. New vessels were subsequently added to the
" fleet and other firms embarked in the business."

All the evidence in the record supports that statement, and
with regard to the extent of the business, and the number of
.seals which could be taken, your Honors will see that there was

50 a very considerable investment of capital and a very respectable
number of vessels engaged. In the American re-print, volume
2, at the end, there is a schedule printed of all the vessels engaged
in sealing from 1875 to 1892, and that show.s this : — I begin with
1886 ; Mr. Peters referred to this, but it will be convenient to
have it appear here again.

Mr. Lansing : — Where does this appear in the record ?
Mr Bod well : — I do not know, I cannot give it to you now ;
we have been referring to it all through the case.
Mr. Lansing: — It is not in evi(!^nce.

(JO Sir Charles Tupper : — It is certified by the department and
is a part of your case.

Mr. Bodwell : — I do not think there can be any possible
olfaction to my referring to it. There i.s no doubt as to its cor-
rectness, and it has been used before. As to the point on

I I

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908

(Mr. Bodwell's Argument.)

wliich I am now reading;' U, I am jure my learned friends cannot
possibly object. It shows that in 1886 there were thirty-four
vessels engaged in sealing, in 1887 there were forty-seven, in 1888
there were thirty-nine, in 1889 there were sixty-nine, in 1890
there were sixty-one, in 1891 there were 115, in 1892 there
were 122.

10 In fact, the ca.se of the United States, from beginning to end,
and throughout the whole controversy, is '"nconsistent with the
statement that capital did not invest largely in the business,
because their whole contention has been that there were so many
vessels engaged that the total destruction of the industry was
threatened. I am willing to admit that before 1886 capital did
not invest largely, because it was not known what a profitable
business it was ; but the moment it became known, everybody
who could buy a sealing vessel, and who had any knowledge of
the sealing business, was anxious to engage in that trade, and did

20 embark in it. We have it on record that men were searching
the whole coast for sealing vessels ; that when vessels adapted to
sealing came in^a Victoria, they found purchasers the n?oment
they entered the port ; others brought vessels around from the
Atlantic coast, buying them at large prices and fitting them out
for sealing ; and I say that, having regard to these circumstances
of the case, there was a very large investment of capital, and a
great inducement for its investment.

What other business was there in the province of British
Columbia at that time which gave promise of such returns ?

30 Here we have Warren with his vessels ; in the year he was
seized — witii his voyage interrupted in the midst of the season —
yet. in rpite of that making a profit of, I think, some §20,000.
Byers, a man who came out to that country, and in 1886 went
out as a boat steerer, is now an owner of vessels and ingoodcii-
curastances. Jacobson, also, beginning with the little " Mountain
Chief," which he had scraped together five hundred dollars
to buy, and now the owner of vessels, a man of property,
and in exceptionally good circumstances in the City of Vic-
toria.

40 There has been no business, during these times, with regard
to the capital invested, which has given such large and handsome
returns. And this is our complaint ; while there was before
these men a chance to become within a short period of time
independent and even wealthy, they were stopped in the midst
of their undertaking by the action of the United Staies and the
opportunity of their life time was gone.

As an illustration let me refer your Honors to the case of
Gray, who brought the "Ada" around in 1887 — a man rich,
comparatively speaking, at that time — absolutely ruined in the

50 midst of a speculation which would have made him independent
for the rest of his life, Many other instances might be
cited ; yet we have the statement that this business held out, no
inducement to capital. The truth is that when capital was
invested, the investment was destroyed by the illegal action of
the Un'ted States authorities.

I "im just reminded that in discussing this question I have
made no reference io the question of " lay." It is .scarcely
necessary that I should do so to your Honors, because the hiring
of men upon a lay is the common course in fishing expeditions;

60 in fact, I may .say it is the rule. No inference whatever, is be
drawn from the fact that men wore employed on a lay. There
was every reason, in voyages of this kind, that the crews .should
have an inducement to hunt with persistency ; and inasmuch as
it is a well known custom so universally applicable to all vessels

209
(Mr, Bodwell's Argument.)

of this dt'scription, I do not think it necessary to take any time
at all in (hscussin<j ii. It is tiien stated on |)H<i;e 17H : —

"These small schooners, li'wvii'p; the poit of Victoria in April,
" May, or June, made their way nurthwaid alonj^ the western
"coast of British C'oluniiiia ami Alaska or hy iiircct course across
"the ocean to Unimak I'ass, tlie neanst entrance to Behrinjj Sea.

10 "The vessels carried either white or Iiidian Imiiters, the majority
'lieins the latter, in the years l!S>Sfl to ISSI). Tile hoats ii;"eil hy
" tlie whites contained oivh a hunter armed with a shot i^iin or
" rille, or hotli.a hoaty>ullci and a" Imat steei(>r," the lattor actinj^
"intiie capacity of aiiothei oarsman when not appioachiiij^ a
"st-al. '.hen canoes were I'mpioyed, each was mannetl hy two
" Indian.s, one to paildle and the otlierto strike the animal with a
" casting spear. It is apj)arent that when searching for seals a
" boat had great advantiige over a canoe or a hoat with hut one
" oarsman, as it possessed twice the propelling power of the

20 '• latter."

Here tiieie is an attempt t;) compart' the capacity of canoes
imfavoiiilily with that of loats ; and, if this could he done, it
would he of considerable weight, because a great many of our
vessels carried canoes and no hoats, and a great many had Indiiin
hunters instead of white men ; therefore, the Utnted States had
every reason to establish the proposition tiiat canoes were not so
usetul as hoats, and that Indian hunters were not so successful
as white men.

There is, in tliis quotation, a statement not very material,

l!() but still incorrect; it is, that when canoes were u.sed each
was manned by two Indians, one to paddle and the other
to strike the sial, This is not e.xactly correct. The evirjcuec!
of Captain Wairen, at page 2!S(), lii\o 20, and page 2<S4, lines
50 to (10, is addressed to that |)oint, and he says this:
tliat there are al". ^ two Indians, and as a rule they were both
hunters and both had spears, and, as I sliall show pri'sentlj-, each
had a gun : that when they came upon the seal.s, if there were
two in close proximity, each hunter woidil cast a spear, if only
one, one would cast a spear. The exact fact is that both Indians

40 padilled and both hunted, as occasion required.

Now, from the fact that the boats carried three men, the
inference is drawn that iioats had a great ailvantage over the
canoes, as they po.ssessed twice the propelling power of the latter.
This is not justitied by the evidence, for, while it is true the
hoats had more men to handle them, it is also true that the
canoes had better lines, and were niore easily handled, so that
two men in a canoe could cover more ground than three men in
a boat. For instance, we have liragg's evidence at page 2U8, as
follows : —

JO " Q. And you say, that other things ^eing equal, the man
" that covers the most ground will get t' e most seals ? A. That
" is my idea.

" Q. How much lighter is a canoe liian a boat in weight ?
'• A. I cannot tell you.

" Q. It is considerably lighter, is it? A. It all depends oti
" the size of the canoe.

" Q. How do the lines of a caiuie compare with those of a
" hoat ? A. They are a little ditterent and a great deal sharper
" forward.

CO ' Q. If yon had a strong man in a canoe, who was accus-
" tomed to handle it, as you had in a boat, would he go further,
" under ordinary circumstances in the canoe than in the hoat ?
" A. I think a canoe would go further in a day than a boat,
' with two good men in her."

210

(Mr. Bodwell's Argtimcnt.)

Now tlien if fclie liklihootl of ;j[etfcing seal.s depends on tlie
ground covered, and o!\e can m't fnither in a canoe than in a
boat, tlie canoe will return witli more seals, otiier things
beini,' equal.

" Q. Suppose yr)u had a canof^ ''is.ijed with row-locks and

" oars and two j^ood men in the canoe, how would the <listance

10 " which the\- would covi-r in a <lay compare with the distance

" which a boat puller and steerer would take the men in a boat?

" A. In a canoe the distance would be f,'reater."

Tlu^ canoes wci'i- Just as Ljond sea boats also; we have
nndonlited evidence of that. At [lai^ie 2f)!J, line CO, UragLf
af,'ain says : —

" Q. Are the Indians accustomed to ^o out to sea in these
" canoes ? A. They are.

" Q. Do 3'ou know anythiuif about the distance they will
" travel by sea ? anil where they tjo in these canoes ? A. They
20 " travel from Kyuipiot to Vict )ria in canoes.

" (}. Kyuipiot is on the west coasi ? A. Yes."

Your Honors will remember that Ivyuijuot is on the west
coast — a very rockj' and dan;»erous coast ; there are more
vessels wrecked in Barclay Sound than perhap.s on any part of
Vancouver Island. The witness fjoes on further : —

" Q. How far otit to sea will they go straight out from land,
" do you know anytliing about that ? A. The Indians told me
" themselves that tney had been off twenty or thirty miles.

" Q. How much beam have these canoes ? A. I never
30 " measured them.

" Q. Cannot you give us some idea ? A. I suppoae about
" three and a half feet.

" Q. And how long are they ? A. Over hang and all, some
" of them would be about twenty-five feet."

There is also the evidence of Paxton to be found in the Record
at paj^e 1538, line 40, that the Indians taken at Sitka
were sent adrift, and made their way home all the way in canoes,
travelling fifteen hundred miles in the open sea. There is also
evidence of Byers at page 319, line 40.
40 " Q. With regard to catching seals — boats compared with
" canoes have you ever had experience with white men hunting
" in canoes ? A. No, I have not.

" Q. So far as covering ground is concerned, liow would a
" canoe manned with two white men, compare with a boat ?
" Would it cover as much ground, or less ground, or more ? A.
•' I think about equal. Probably the canoe will have a little the
" best of it.

"Q. Tliat is so far as covering the ground is concerned ? A.
" So far as covering the ground is concerned.
60 " Q. You have seen canoes maimed by Indians ? A. Yes
•' sir.

" Q. And so far as they aro concerned will that answer
"apply? A. 1 think so. 1 think that a'.i Indian will cover
" more ground in a day than a white mi'ii.

"Q. That is if a white man is in a boat and an Indian in
" a canoe ? A. Ves, sir.

" Q. Is there any difference between a canoe and a boat so
" far as their being able to staml the sea is concerned ? A. I
"think that they hunt in just as rough weather in canoes as we
00 " do in boats, although I never had experience in running canoes
" myself ; but I have seen canoes out in just as rough weather
" a-s I would care to put boats in."

His statement that he had no experience in liunting with canoes
himself is important, in view of a mistake which the witness

211

(Mr. Beilwell's Argument.)

MubatMjUt'iitly made when a,skctl if tlie Iiidi.inH u.scil <^iiiis in
I88(). The witness also stated at pa<je :}2!], line 18, fefci-riiig to
e.uKU'H : —

" Q. 'riiey art! not considered so i;ood for .scaiinj; as boats ?
'• \. I think so.

" Q. For all purposes :' A. Ves, for all ])urp()soH."
10 1 have also the ovidenoi! of Ciiptain (iaudin at top of ptij^o
l"2'2fl, speidvinj^ of canoes, he says: —

" (^. Itdoes not li.ivf to he extremely stoi'niy wciither to

■ pri'vent canoes jioinj,' out, does it :" A. Oli, it wonM have had
• to have been hio'.vin;^ a pretty stiH' breexe, .iinl there was

■ notliinji of the kind so fai' as I can rehieniher."

Also the evidence of L. ^[cLean, at pat;-e 7:i(i, line (i : —

" Q. Is it an advantaj^e to have three men in a boat as
'■ a<,'ainst two men in a boat:' A. Von cannot work a larj^e
"boat with two men to any advantaj^e.
20 " Q. Will thi'ee men in a boat j,a't better results than two
"men in a boat:' A. I do not know: in a smaller boat I
"think two men woulil be just as <;ood.

" Q. Do you know of white hunters going two men in a
" boat ? A. Yes, sir, I have known some to go."

The result of the evidence is this, that the boats were larger,
heavier, and harder to manage, and therefore there is no ground
for pre.suming that three men in a boat, so far as covering ground
is concerned, would go any further than two Indians in a canoe.
In fact all our experience is the other way. Tlie canoe is lighter,
30 and easier handled. Tiie suggestion, therefore, in the United
States argument that in chasing a " cripple " a canoe woukl not
go as fast as the boat, is not supported by the evidence.

The Connnissioner on the part of Her Majesty : — I think the
tables drawn to our attention the other day. by Mr. Peters,
showed that, taking the results as a whole, the catch per canoe
per day was less than the catch per boat per day.

Mr. Bodwell: — That is right. But I attribute it to another
cause altogether, which I willdiscu.ss Inter on. We have made a
large allowance in our computation estimated catch to cover
40 any deficiency of the Indian hunters I do not think that it is
a correct inference to attribute that deficiency to tlie use of
canoes. The evidence shows that the Indians wool I get as many
seals if they had the same perseverance as white men. When
things are difficult with theuj and .seals scarce, they get dis-
couraged. Thelndiansnot only had spears but guns also, and they
had the advantage of using the spears when the seals were close
to them. If therefore, the Indians had been as persistent hunters
as the white men, you would have found the seals secured by
them would have been as many. It appears that the Indian
50 canoes were just as good for hunting as boats, and that under
ordinaiy circumstances they ought to have had as large a catch.

The ne.Kt point taken in the argument of the United States
refers to all hunters, both Indians and white men, but is
especially intended to apply to Indians. It is contended by my
learneti friends that there was a great deal of skill required in
taking the seals. That point is nuide very distinctly and put
prominently forward in the argument of the United Staten. At
page 179 the following appears : —

" If the seal appeared to be awake the hunter used his rifle
f)0 "at a range of from 00 co 100 yard.s. The shotgun was
" generally used wh.en the animal was asleep, and could be more
" etisily approached. If the shot was successful, the long
" liandled gnU' carried in the boat was used in an endeavor to
" to secure the rapidly sinking body. If not killed outright,

l^'-.'M\:

I'm

ll^

■ J;:

212

(Mr. Bodwell's Argument.)

t ; v

' tlx' luinttT ('(iiitimu'd Hriiij;, in sonic iiiHtanccs a doztu shots
' bt'inij tircii at a I'ripplc, uliii'li eventually was lost. Tlii()Uii;li
' some peeuliar instinct the animal when wounded starts directly
'to the wimlward. In pui'suit oi' a cri|)pled seal, the advantage

which a hoat with twi
is aiJiiarent.

II.

had over a canoe with but on

It the schoontT carried Indian hunters and canoes instead

)!' boats, the method oi"

itin<r was ditlerent. Instead of

alwjiys jiroeci'diiii; to the wiiidwanl, the canoes went in different
directions, se!<!(im exteiidine- tlu'ir ope rations over three or tour

miles irom the schoonei

I'll

It is tirst to be iiote.l, *^herefore, that

tiie ari'a covei'ed l)V a ves.sel mainii

1 u

iti

1 canoes was m

uch

' ployed.

that '

limited tlian when boats with white hunti'i's were eni-

n as a seal was siehted, and it

dct(

lie was asleei)

it' to the windward ot" th

■' animal, ciicie(l atjout and attempted to apijroacli him from th(>

•20 ''Ice. If successful, the ifeal not awakini;. the s])ear was cast

" whi'U the boat was within 'i-') or ."iO feet. If sutliciently skil-

" full to sti'ike the small moviny mark, the animal was drawn to

f a core 1 attached to the spearhead. If,

as awakened bv the aiMiroach of the

'th

' howe
'canoe

hv means o

animal w

til

ere was

Itlle pi

it v ol his beiiiir secured.

as he.

w.niJd swim ;iway at a rate of speed which precluded pursuit.
" h'rom llu' dillereiit ways in which canoes and ])oats started
out, it is ap})areiit that boats would have an advantaet., as the
.seal has an acute sense of smell."

The reference there is that there was only a small moviiie-
mark for the hunter to tire at, and that in the case of canoes
maiiiied witli Indians, there would be ereat trouble in hittiny;
till' mark, mid that in any event with such a .siiinll object to aim
at. and such dilhciilty of ajiproach. ercat skill would be recpiired
ill the cajiture of the seal. I submit that the evidence does not
bear out any one of the.se projiositions.

In the first place the perceiitaije of loss was not ijjreat, that
is to .say. the percentage of seals shot and not obtained. Vour
Honors will reiiii'iiiber that each side was at libertx' to call six

40 experts U|ii)ii this i|Uestioii. We ealh^

hve

d the United

States, so far as I rememb"r, calleil only one. The ))ercentajfu
of losH was thus stateil. Brajjje- at page tiO,'), line lo, puts the
pei-centage at 4 jier cent.. Hanson puts it at two per cent,
Hainlase who proiliici'il a book in which he actually kepta record
of his success in shooting, shows, at j)agi' (i2l, that there was a

very siiiall pi

itay;e lost, 'i'lie reason wh\' lie niado th

entries was that he liai
authorities to keep a reco

I been asked by tlie Uiiittd States
rd. A similar statement will be found

as gi\-en b\- the witness Brown, who also kept a book at ))age

50 ti.^l and <i.")4. line 40. 'i'he result of this evidence is that

not

III

ore than four and |iidl)ably not more than two jier cent, of th

seals which are aetimlh shot were lost.

lere

is also a statement here which, if it were exactiv

correct, wou

Id nndoubtedl\- have some

ect. It is that a
le peculiar iiiHtiiict of the animal, when
wounded starts directly to the windward. The HUggostion of
course is, that that action of the .s<!iil rcndefH the chase of

Heal

froi

cri

(10

piile more dillieult. I <lo not know where my learned friends

find this evidence. There is a statement by Hanson, that seals

to till' windward, liit that does not mean wounded sealt*.

anva\s iro

Wli

lell a seal is wouiideil he goes

away as fast as he can from the
hunter, 'i'lie i|Uestion of dii'ection is not a material coiiHider-

ation

to tl

le wonili

led an

The next proposition with reference to cnnoeH is tlli.s : — That

213

(Mr. Bodwell's Argument.)

they do not. go as far away from the schooner as the boats, and
therefore they did not cover as much ground. That statement
is based upon some evidence given by Captain Alexander
McLean as follows ; —

•' Q. What is tlie difference between the Indian method and
" the method of experienced white men ? A, The Indians
10 " search around the vessel in all directions, and the white hunters
" generally sail ahead of the vessels in small boats.

" Q. And go away from the vessel instead of about her ?
A. " Yes sir-"

Your Honors will observe that the inference drawn is that of
the counsel and is put to the witness in the form of a very leading
([uestion. The distinction that the witness was making was
this : that white men use sails in their boats and Indians do not.
If his statement goes any further than that it is not consistent
with the rest of the evidence. There is a great deal of evidence
20 to show that taking one day with another the Indian canoes
cover just as much ground as the white men in boats.

I refer to the evidence of witness Smith, page 1403, who
being examined, said : —

" Q. Do the canoes proceed on ahead of the vessels and the
" vessels follow them ? A. Yes.

" Q. How many miles of grcund will canoes cover in an
"ordinary sealing day while sailing? A. Twelve to fifteen
" miles."

Now the evidence of Captain Warren, at page 283, line 5.5,
30 is that this is about the distance which the boats usually
cover : —

" Q. How far out from the ship do the small boats go? A.
" They go just until they can see the masts of the vessel.

" Q. Does a steam vessel pick the boats up, or do they re-
" turn to her ? A. They return ; we do not know where the
boats arc, and we have to wait or we would lose them

There are also instances mentioned in the evidence, of canoes
being lost in the fog, which means that they went so far away
from the vessel that they could not see her or hear the firing of
40 the cannon which was kept on the vessel for the purpose of warn-
ing the men and giving them the direction by which they could
return. There is really no eviilence to suggest that the boats go
further away or pursue a difterent plan of hunting than the
canoes. The hunters, both in canoes and boats, go as far from
the vessel as they dare, having regard to the character of the
day and the locality of the seals.

The next suggestion in the argument is that the Indians
were compelled to depend entirely upon their spears, and had no
guns with which they could shoot, if the seals were not in a
50 place where they couhl be speared. This is not correct, for there
isanabundanceof evidence toshow thatduring theyearsin question
the Indians had guns and spears, both of which they used. This is
established by a number of witnesses. I refer particularly to
the testimony of Moss, page 337, line 65 ; Warren, page 284, line
50; Hanson, page 615, line 60; Jacobson, page 635, line 34;
Buckman, page 707, line 58 ; McLean, page 741, line 45 ; Cox,
755, line 12; Olsen, page 1041, line 15, and the .same witness,
page 1063, line 10. These witnesses .show beyond a doubt that
the Indians had guns as well as spears.
1)0 Your Honors will remember that in several instances when
vessels were seized the Indians hid their guns, and it ma^' be
that my learned friends have been misled when examiinng the
inventories which in such instances do not contain reference to
tfuns.

• A-

n; !«

"lii

lii\

i- ■' !

iU;:

214

(Mr. Bodwell's Argument.)

Besides this we have evidence that tlie Indians were very
succe.sflful and handled their spears with skill. On that point I
refer to Townsend's report. He of course is speaking of a later
day than 1880, but they were the same Indians in 188G and had
the same skill as later on. They were brought up to the business
and their tribes had for generations obtained their livelihood by
10 hunting with the spear. At page 17, he says:

" There were 27 Canadian vessels in Behring Sea and only
"11 American vessels. The Canadian ves.sels hunting with
" Indian spearmen from Vancouver and Queen Charlotte Lslands
" were very successful while the American vessels with the
" exception of two or three made poor catches. Sealing with
"spears in Behring Sea has tlierefore been protitable to Canadian
" rather than American ve.s.sels."

The catches also speak for themselves. Mr. Peters has laid
before your Honors a detailed statement and you see what suc-
20 cess the Indians had in hunting with spears and guns in the
years in question.

In volume ',i United States reprint, page 81.'), there is to be
found the affidavit of Neil Bond which was used at the Paris
arbitration, in one paragraph of which referring to 1887 he swore
as follows : —

" 1 went sealing as a deck hand. We had twenty canoes
" The Indians used spears except in calm water when they used
" shot guns."

At page 201 of the United States argument there is a
80 ([notation from tiie evidence of Byers as follows: —

" Q. You were asked something about the dirterence be-
" twecn white intn anil Indians. I simply want to ask you this
"(juestion: In 18cS(j and 1887 were the Indians in the habit of
" using ginis ;it all :* A. No.

" Q. Si), if you ha<l an Indian crew at that time you would
have" to use spears ! A. Yes, sir.

" Q. At that time which was considered best, spears or
guns ;■ A. (Jun.s."

But tlie witness is wrong there, as the other evidence shews.
40 He does not pretend to be speaking fi'om experience, becau.se at
page 81!), line 8.5, he says that he never hunted with an Indian
ei'ew. The evidence I have (|Uoted is the evidence of captains
anil mates who hunted with Indians, ani] who personally knew
that the Indians used guns and spears.

At four-thirty p, m. the Connnissioners rose.

Commissioners under the Convention of February 8th,

1896, between Great Britain and the United

States of America.

Legislative Council Chamber of the Provincial Buiidinp;,

At Halifax, N. S., September 3rd, 1897-

20 The Cotnmissioners took their seats at 1 1 A. M.

Mr. Bodwell : — When the Commission arose last evening, I
was dealing with the fact that canoes were equipped with
1,'iins a.s well as spears, and I think I have said all that I wish to
fttate to your Honors on that point.

In another respect canoes had as great an advantage in
seal hunting as boats, I refer to the approach to the seals. We
have in Byer'a evidence, page 321, line 1, this statement : —

" Q. The approach to the seal I believe, is that generally
30 " done at a fixed speed or slowly ? A. Do you mean the last
" approach ?

" Q. The last approach ! A. The last approach is very slow.

" Q. After within what distance ? A. Fifty yards."

He also says on page 320, line 0.^ : —

" Q. In going after a seal with a canoe is it done with a
"paddle or with oars ? A. With a paddle.

" Q. Is not the same thing done with a boat ? A. No, Sir ;
" the boat is pu.shed with oars."

Your Honors will see, as perhaps it is unnecessary to state to
40 you, that tiie last approach to the seal is accomplished very
(|uietly. For the last fiftj' yards the canoe is paddled up with
great care to within striking distance of the seal, a boat is usually
sculled with an oar behind and pushed up quietly and slowly in
order that a sliot may be taken at the sleeping .seal. It is
therefore quite apparent, that in that respect canoes would have
an advantage over boats if carefully handled.

The next point taken in the argument of the United States
is that the actual killing of the .seal with a gun or with a spear
is a matter requiring great skill. It is put in this way in the
•lO Uidted States Brief : —

" If sufficiently skillful to strike the small, moving mark, the
" animal was drawn to the canoe by means of a conj attached to
" the .spear head. If however, the animal was awakened by the
"approach of the canoe, there was little probability of his being
"secured, as he would swim away at a rate of speed which pre-
" eluded pursuit."

The suggestion here is that only the head of the seal is in
sight, and that as it is in constant motion it is a difficult mark
to hit. Such is not a correct deduction from the evidence, be-
(iO cause the mark is not a small, but a comparatively large mark,
and further that large mark is a body at rest. In Byer's evidence
page 320, line 35, we havn the following: —

" Q. Will you tell us when a seal is floating in the water how
" much you .see ? A. About one-third of him is out of the water.

'?ii

,'!;!■

w :;?¥

\t-,

■•Hi ;:

I ':

l-^i' ■;! '

|:f:;-^

Li||

: :!

fW'i -

lie

(Mr. Bodwell's Argument.)

" Q. At what distance, as a rule do you fire, at that time ?
" A. — Oh about fifteen yards as a rule.

" Q. Do you refer to when they are sleeping ? A. When
" they are sleeping, yes.

" Q. When they are travelling do you fire at a longer distance ?
" A. Yes, travelling fire at them all the way up to seventy-five
10 "yards.

" Q. Yes, but the bulk of the seals are killed asleep ?
" A. Sleeping, yes sir.

" Q. That is the way the bulk of the seals are killed ? A.
" Yes sir.

"Q. You say you generally get within 15 yards ? A. Fifteen
" yards, yes sir,

" Q. Do they lie still ? A. Yes, Sir.

"Q. They throw their spear out about what distance ? A.
" About eight yards."
20 And further on at page 321, line 10, he sa3's : —

" Q. Now when yet within that close that you describe, io
"the seal, is there any actual skill required in shooting the seal ?
" A. No, not a great deal."

It is apparent, therefore, that there is no very great amount
of skill required and that any ordinary shot ought to be able to
hit a mark as large as one third of a seal lying still on the water
at a distance of 15 yards, and especially so when shooting with
ten or twelve bore shot gun.

There is also a great deal of corroborative evidence as to
30 the amount of skill required in the fact that a great many
vessels with perfectly green hunters — green in the sense that
they had no experience whatever in shooting seals — made very
large catches. In 1887, for instance, the " Favorite " made a
large catch. At page 741, line 25. Captain Lauchlan McLean,
was a.sked in cross examination as to the skill of the hunters
engaged by him, and this is his evidence : —

" Q. You had very good hunters in 1887 had you not ? A.
" Not very good.

" Q Anything unusual about their skill ? A. They were
40 " all new men; they did not know very much about it."

Yet they took 1878 skins between the 8th of June and the
27th of August, — page 746, line 50.

We have also a witness upon the other side, P. C. Meyer, one
who is, to a great extent, relied upon by the United States.
At page 1730, line 1, he deposes as follows: —

" Q. What experience had you before 1885 ? A. Why it
" don't require a great deal of experience to be a hunter.

" Q. 1 asked you if you had any experience before ? A.
" No, not before."
50 And at page 1732, line 25, he says : —

" Q. Both of them are old hunters ? A. Yes sir — was a long
" time on the old ' San Diego.'

" Q. Who had the most seals, those hunters or yourself ?
" A. W^ell, it was about equal.

" Q. You could do as well, about, as could old hunters ?
" A. Well it did not require a great deal of skill to shoot seals,
" ,ind sleeping seals especially ?

" Q. According to your experience it is quite easy to shoot
'■ seals wherever they are ? A. Yes."
60 " Q. And you didn't lose many of them ? A. No.

" Q. The moment you find them inu are quite sure of taking
" them ? A. That is, if I find them sleeping."

And again I read at page 602, line 30 : —

" Q. Mr. Byers, you have already stated your experience

217

(Mr. Bodwell's Argument.)

an a .seftl hunter, and I will not (fo over that. In shooting seals
" will you tell nie how are the majority shot, sleeping or swim-
" ming ? A. Sleeping.

" Q. A large majority of them or not ? A. Yes sir, a very
" large majority of them are shot sleeping."
All the evidence is to that effect. The seals after becoming
10 settled on the islands go long distances to sea in search of food
and then, having satisKed their hunger tliey sleep in calm days
on top of the watei' ; and the peculiarity of sealing in the Behring
Sea was that there were far more sleeping seals than in any
other hunting ground. Along the west coast of Vancouver Island
and in the Pacific Ocean, the seals were on a journey travelling to
the I'ribilof Islands, they only slept when rest was necessary,
liut having reached the Island.! they were at home, and then,
(lay after day they were found out at sea feeding and sleeping
as is their natural coiulition.
20 Another peculiarity of seal life is referred to in the brief of
the United States as being a great elt-nieiit of uncertainty in the
sealing Inisiness. It is to be found at page ISO of the United
States argument, where this is said : —

" The seal has an acute .sen.se of smell, and can <letect the
" presence of a hunter at a tlistance of three or four hundied
"yards. A canoe with Indian hunters vvas at a further disad-
" vantage because the seals taken by it were necessarilj' ' sleepers,'
" as the use of the spear necessitated a close approach to insure
" a successful cast."
30 I submit, the latter statement is not at all justified by the
evidence. It is true that the Indians take sleeping seals when
t'sy git thein, b'lt wiieii th^y ei'iii)t liid sleeping seals they
shoot at the travelling seals. The affidavit which I reail into tlie
evidence shows that Indians shot at seals whicli were travelling,
with guns, and that they took them when sleeping with spears.

The principal point, however, is the ailegiid uncertainty of
catching seals, on account of their acute sense of smell. It is
not denied that the seals have an acute sense of smell. It was
common ground throughout the whole ca.se on both sides, but
40 that peculiarit)- is not confined to seals, for it exists in the
case of every other animal that is taken by the hunters skill.
This sense of smell of the seal was a matter which was well
known, and is overcome by approaching the seal from the lee
side. Here is evidence upon that point which is most satisfac-
tory and whieli explains the matter thoroughly.

At page 002 of the record, line 58 in Bj'er s evidence the
following is set forth : —

" Q. There is some question here as to seals leing able to
" .scent a long way off'; is that the case ? A. Yes, sir.
50 " Q. And is that a practical dilKculty, and how do you
" overcome it? A. We overcome it by keeping to the leeward
" of them all the time.

" Q. Is there any difficulty in doing that ? A. Yes, quite
" a difficulty.

" Q. But you overcome it in that way? A. Oh, ye:i, we
' can overcome it.

" Q. Do you fail to get many shots on account of their

" smelling you ? A. It don't often happen except in a sudden

" change of the wind. A sudden change of the winil may put

()() " you out. And we ma}' find ourselves to the leeward and still

" lie to windward with the sudden cl:;in'.,fe of the wind.

" Q. And that happens in all kinds of hunting? A. Not
" only seals, but everything else.''

That is so common sense a statement tliat no comment need

218

'•]:!

(Mr. Bodwell's Argument)

be made u- '"n it. The liuntein, when they start out in the
morninr;, have the direction of the wind, and when they
find the seals they govern their action accordingly. It'
there was a sudden change in tlie wind, it is true, they might
Hiid tliL'ir calculation.s upset, but that happotis, your Honors, in
all kinds of hunting ; not oidy in the hunting of seals, but with
10 all other aidmals. 1 think we need not concern ourselves with
that head of dirticulty, as it is one which is very easily overcome,
and which the evidence shows was overcome by all of the hun-
ters in all cases, except under unusual circumstances which
they could not control.

The next point raised bj' the United States counsel in their
brief is more serious, and if it were correct would be a matter to
be carefully considered liy your Honors. It is found at page IHO
of the Lnited States argument, and reads as follows: —

"The Indians who came from tribes along the west coast of

20 " Vancouver Island were ignorant and superstitious. Several
" in.stanci's appear in the Record (which willl be given more in
"detail hereafter) where a sealing voyage was brought to an
"abrupt end through some superstition or ignorant fancy of the
" Indian hunters, arising from the sickness of one of their
' numbei-, the loss of a canoe, a prolonged season of rough
" weather, the stubborn determination to retin'n home, or some
" other cause which oidy the Indians themselves could explain "
There are, no doubt, a number of instances in the Record
where voyages were interrupted on account of trouble with the

30 Indians, but the cause of that trouble was in nearly every
instance— I believe there are only two exceptions — the fear
which the Indians had of seizure by the revenue cruisers of the
United Suites : and the Indians had good cause for fear. Wo
know that in the year 188C the Indians of the "Anna Beck"
were sent adrift in their canoes, and were obliged to paddle all
the way down to their homes, across that portion of the Pacific
Ocean lying between Sitka and the west coast of Vancouver
Island. On that journey several of them were lost. This news
was spread abroatl amongst the Indians of the coast, and they

40 were naturally afraid of being seized when they went to the
Behring Sea. Not onl}' s;), but when the seized Indians were
taken in charge by the United States authorities, they were
not lieated with any great regard to their feelings. They were
allowed to get their feed in the very best way they could ; they
were simply set adrift, and wo have the evidence of .some of the
impiisoned masters pnd mates that they paid for the food of
their Indian crew out of their own money. The result was that
the huliai!.-*, having suffered these hardships, were afraid of
being seized, and the record is full of instances of trouble with

50 them on that account.

Paxton, at page 180, line 40 of the record, tells the story of
the Indians' sufferings; and Hansen speak.s of his case in 1887,
and says at page 302, line 40, that he had to leave because the
Indians were afraid and would not work — they were afraid
because of the seizures. At poge 307, line 10 of Reppen's evi-
dence, we find that the .same thing occurred, and at page 144.5,
lines 25 and 30, Jacobson, who was speaking of the year 1889,
8a)'s as follows : —

"Also I had more trouble with the Imlians the year before.

GO " We did not think there woidd be any seizures this j'ear, and I
" could get Indians to go up without any trouble."

He was speaking of his trouble in securing a crew of Indian
hunters, and when he a.ssured them that tliere would be no
seizure there was no difficulty, but .so long as the Indians

210

(Mr. Bodwell'H Arfjument.)

thought there were likely to be seizures, he had very great
trouble in inducing them to go into Behring Sea. Also at page
1401 of the evidence, line 10, speaking of the voyage of the
" Little triumph," Smith says : that the Indians refuse(l to work,
and I suppose my learned friend might put this down as a ease of
mutiny, because on page 1451, line 40, the woid "mutiny" is used.
10 Mr. Lansing : — VVouid you kindly read that reference to
Ueppen's pvidence, that you referred to.

Mr. Bodweil : — I will read it but it will necessitate an
explanation that I intended to make later on in my argument.
It is as follows, page 307, line 10:

" Q. And when did you leave the Behring Sea ? A. We
"left on the 14th or 15th August.

" Q. Why did you leave on the 14th or 1.5th August?. A.
" Well, the Indians wanted to go home.

" Q. Did they object to remaining any longer ? A. Yes,
20 " they were afraid I think. They objected to staying any
" longer.

" Q. They were not used to going to Behring Sea I .suppose ?
" A. No. Sir."

And fijrther on at the same page, line 65, he says : —

"Q. VVhy did you go further east ? A. I do not know —
" it was the captain's opinion.

" Q. Did you hear of any seizure then ? A. Yes, we spoke the
' ' Anna Beck ' in the beginning of August and they told us that
" some schooners were seized."
30 I submit it is a fair inference from the evidence just read
that what the Indians had heard aboiit was the seizure, and that
the fear of the seizure made them iinxioiis to go home. I suppose
that is the point to which my learned friend, Mr. Lansing,
referred.

To continue my previous remarks, I was referring to the
place where the word mutiny occurred. It is in the evidence
(if Smith, referring to the voyage of the " Little Triumph," and
is to be found on page 1405, line 40 : —

" Q. When the Indians refused to launch their boat on the
30 ■' 2Cth August ? A. 25th.

" Q. You sealed on the 25th. On the 2Gth August they
" based their refusal on the ground that the cutter would come
" along anil seize them ? A. Yes, Sir.

" Q. Did you tell them that there was no fear of that ?
" A. That had been the trouble the whole season.

" Q. Did you tell them that there was no danger of that ?
" A. I tried to quiet them down, and told them that from
" instructions I received from the captain that they were out of
" the track of the cutters.
■50 " Q. And finally when you did come out, you did not cuiue
" out liecause you were warned, but because the Indians would
" not lower their canoes ? A. On account of the mutiny of the
" Indians.

'• Q. You and the captain would hot have come out, would
" you, if it had not been for the Indians? A. No, we would
" not liave come out.

The mutiny of the Indians was not caused by any super-
stitious fear, but was due entirely to the dread of .seizure by the
cutter, and that is made very clear in the evidence at page 1401,
<iO line 10 :—

" Q. Why did they refuse ; what reason did they assign for
" refusing to go out ? A. The main reason was that they were
" in constant terror of running across a cutter, or a cutter running
' across us and seizing us."

ii (8 '

: lifli^

ii: ' f

:; .

!^ '^H

1 'im

mm*

tfi.i

ito

(Mr. Bodwell's Argumunt.)

Your Honors will remoinljL'r tho ciisu of tlio " Little Triuiii])li,"
she was warned liy the rovenup cuttur before tlioy went into the
Behrin^ Sua. Honio of tlie Imiians iitiderstooil En^dish, and
havini; heard the words used by tho ottieer of tiio revemio cutter
of the United States, were frij^htened ; but the captain quieted
them l)y sayinj; that lie knew of a liuntin;j place whore seals

10 were to lie found, and where the revenue cutters would not
come. By that moans lie induced the Itnlians tojro into the .sea.
They were, however, not thoroujibly satis'ied, and still dreaded
the approach of the cutter, and that foar of seizure increasing
became at last so (freat that they refused to work at all. It was
not II superstitious fear, tho outcome of bad luck, or based on
the sickne.ss of one of their number, but it was a fear founded
upon <;ood jj;round, namely, the possibility that in spite of the
precautions taken the United States reviinuo cutter might still
seize tliem. In that event they expected to suffer great hardships.

20 There is only one authentic case of the existence of mutiny
on board a ship by an Indian crew ; that is the case of the
" Sapphiie " in 1890. In that year ('aplain Co\ told us that the
Lidians broke up their spears anil decided to go home, and ho
had to go with them. The reason was that there was a sic -
man on lioard the vessel. The Indians thought he was somewhat
of a Jonah, as the captain put it, and tln'y refused to stay in
the sea. Tiiat is the onlj' instance in tho record, of a voyage
being broken up by reason of .■superstition, or of any peculiar
phase of the Indian character. There is another case which,

30 perhaps, my learned friends will say was a case of superstitious
fear, although, generally speaking, it is not considered
so. Hansen tolls us ,it page GIG of the record, liiii! 10, that he
came home one year because his Indians would not work on
Sunday.

If your Honors will refer to the list of ves.sels we have cited
in our argument, you will see that it extomls over a period ^f
five years and comprises over thirty-three vessels, a large majority
of which were manned with Indians, and it being shown that out
of that record of voyages there is only one instance wliero

40 Indian.--, refused to work for a supoistitious cause, I fjsk you is
there any ground for supposing that the superstition of the
Indian is an clement of uncertainty which can enter to any great
extent into the business of seal bunting. That record will com-
pare favourably with tho record of any of business in any part
of the world where vessels arc used.

There is another matter which speak.s for itself in this con-
nection. Since the legulations — 1 think 1 am justified in referring
to these — were made at Paris, the sealing busine.ss has been al-
most exclusively conducted with Indian crews. Thi.- hunters

50 are not allowed to use guns in Behring Sea since that time, and
therefore Indian ciews are eniploj-ed. During all these years
vessels have gone out in the sealing business and have returned
with largo catches. Surely with a' tlieso facts, we may say
that no reason is shown why your Honors should take the
superstition of the Indian into consideration as a real ditHculty
in tiie sealing business.

The argument of the United States then proceeds to say at
page ] 80 ;—

"Another peculiarity of tho Indian hunters was that they

60 " were unwilling to start sealing when there was foggy weather.
" As fogs are so frequent in Behring Sea, it is apparent that this
" fear or superstition of the Indians must have tended to greatly
" mollify their efficiency and to reduce their value as seal liunt-
" ers when compared with white men."

(Mr. fiodwcM's Arf^iiment.)

Tliin Ntateinent is haNorl on the obHervation of one witnoss.
It is in the evidence of the witness* Reppen, page 308, line 22.
If your Honors will refer to the record upon this point you
will find it is ii statement made bj' him at the very end of his
cross-examination. It is not dilated upon in his evidence and is
niereiy n remari< thrown in by the way. It apparently did
10 not attract tlie attentioi. of counsel, for there was no re-exani-
iiintion upon it. He says in his evidence : — " The Indians did not
' ^'o out in fojrjjy weather." There is a great deal of evidence to
contradict this statement, but I wish only to refer your Honors
to a few instances.

At page 2Ml of the record there was read into the notes
several extracts from the diary kept by Captain Warren in
command of the Dolphin in 1886. There are several instances
liiere mentioned of canoes going out in foggy weather. For
instance, at page 281, line 40:
20 " Q. On the 12th July, how many .seals did you take ? A. 31.
The canoes ha<l to stay close to the vessel on account of the fog."

Therefore they did not make a very large catch, they were
bound to stay close to the vessel, which was the case as well
with boats as with canoes on a foggy day. At line 20, page 282
of the eviilence af the same witnesses, there is the following: —

" On the 28th July we got 43 seals, fair at noon, foggy con-
" .siderably so. On the Slst of July we got 18G seals."

" Q. What sort of weather had you on that day ? A. Thick
" fog in the morning antl did not lower the boats until 9 o'clock."
30 The question I am now discu.ssing was not very prominent
lit that time we were taking this particular piece of evidence,
and if we had (,'aptain Warren's book now, there is no doubt
that we could read of many other cases where the canoes had
put out in foggy <lays. I have enquired for that book but I find
it was not left with the Secretary of the Commission.

There is, however, other evidence in the record which is quite
satisfactory and quite pertinent. In 1889 the " Beatrice " lost
three canoes in a fog. That is to be found in McKiel's evidence,
page 671, line 4.5.
40 In the evidence of Owen Thomas, page 1767 we have this
statement: —

He was sailing on the ' Black Diamond ' in 1889, and was
seized on the 11th of July. I read from page 1767: —

" Q. What kind of a day was it on the 10th, so far as sealing
" was concerned ? A. It was a pretty good day, Sir ; a fair day.

" Q. Any seals in sight ? A. There was none around the
" vessel, but a little distance off we caught them.

" Q. On the 11th. af what time of the day were you seized ?
A. A little after 12 o'clock, Sir, between twelve and one.
50 " Q. Were the boats out ? A. Yes, they were all out Sir,
" well I had them all in before he got alongside of me, before the
" cuiter got along.side of me."

Further down on the .same page he testifies as follows : —

" Q. Was it a good sealing day ? A. They would have had
" one hundred more, I believe, if they had been left alone. It
" cleared up nicely ; it was thick as could be all the morning."

Then on page 768 he says : —

" Q. Was there any herd of seal in sight, a quantity of seal ?
" A. Well I could not see any from the vessel, but they woulil
60 " (irobably get them all the .same, Sir. I told them in themorn-
" ing not to go any further than they could hear the horn."

The canoes were out sealing, but it was so foggy he could not
.see them, and he warned the canoes not to go any further than
they could hear the horn. At page 769 he testifies : —

'Mr

I.' ,;

irfp^f

'^^^v

! !:-■

1 :;

S28

(Mr, Bodwell's Argument.)

" Q. And if you had not been seized, were they intending to
" po out ? A. Tiiey would have went out in the afternoon, but
" they would not in the morning. I stopped them my.self because
'■ it was too thick."

This refers to tlie stern boat.

We have also another bit of evidence on the same point. The
10 log of the "Favorite" in 1888 is in evidence, and she was hunt-
ing with boats and canoes. I refer to some extracts from that log
which indicate what happened in the ordinary course of a voyage
in the Sea. For instance, here is the entry for Suntlay the 12th of
August : — " This day begins with cloudy weather ; light breeze ;
''sea lumpy; dense fog; light breeze and lumpy sea; canoes
" lowered ; dense fog at intervals ; high sea and light breeze."

Further on ; —

" Thick fog ; lumpy sea, one boat lost" (this is in the after-
noon, 7 p. m.) At t', p. m. " Dense fog ; light breeze ; all boats
20 and cnnoes aboard."'

Also on August 13th. : " Weather overcast ; slight sea, pass-
" ing banks of fog ; at S a. m., chmdy sky, sinooth sea, but
" threatening banks of fog on the horizon ; canoes and boats
" lowered."

The canoes and boats were lowered at the very time when
these bnriks of fog were aroimd the horizon. Again on the 14tli.:

"This day begins with a calm, but high short swell from the
"south wist; sky cloudy and overcast with occasional slight
" glimpses of the sun ; canoes anci boats lowered ; heavy mist
30 " hanging over head." On apparently the same day, later on :

" All boats and canoes aboard ; moie or less fog through the
" day ; plenty of seals in all directions ; catch 214."

Ayain on the 20th August:

" This (lay b( gins witli hazy weather ; light breeze ; lumpy
"sea ; canois and boats lowered ; pa.ssing fog banks with indica-
" tions of clearing up."

Again on the 27th August : — " Heavy banks of fog pa.s.sed
" during the watch, which caused us to fire cannon."

'i'hat was because the boats anil canoes were out in the fog.
40 They took ()uite a number of seals that day also.

1 need not weary your Honors b}' referring further to the
record on this ipiestion. The position is established that
ordinarily tliere is no diH'i-rence between the movements of boats
and canoes in fogi,'y weather.

On the very next page of the argument there is a reference
to till! unusually inclement character of the weather in Ikhring
Sea, and thi' inference is drawn that on account of the great
frequency of the fogs and this peculiarity of the Indian hunters,
there must necessarily have been a very small catch with the
.50 Indians and canoes. Hut this ])roves too much. I will first read
tlic statement, and the authority on which it is based, and I will
showyoui- Honors that, if it were true that Indians do not hunt
in fog, we could shew very small rrsults from vessels carrying
Indian hunters. The statement is that " there is perhaps no
body of water on the face of the glolie where the meteorological
conditions are more urdavorable for fair weather than Behring
Sea." The authority for that is (iuote<l from the American
Reprint, Volume 2, page 90, and the reading there is; —

" From .May to Nov-Miil)er, inclusive (the period when the
CO " majority of the seals are on land), the mean temperature is
" I'etween 41° and 42" F''' during August, the warmest month,
'■' the mean is 47. 2' F'' during the warm months of June, July
"and August the highest temperature reached was 02°, which
" occiiired but once in eight years, and the lowest was 28, which

288

(Mr. Bod well's Argument.)

" was reached but once during, the same period. This constanc}'
"of temperature is furtlier supplemented by tiie absence of sun-
" shine and the almost continual presence of fogs, rnists, or light
" rains. During eight years the mean percentage of cloudiness
" on the islands for the months of June, July and August was 92 ;
" while during that period of eight years, consisting of seven

10 " hundred and thirty-six days, but eight clear days occurred, and
" during the months of August not one."

It thai assertion is correct, and I have no doubt it is based
upon actual observation, and if it is true that Indiat.s do not go out
in the foggy weather, we would have had no respectable catches
at all from vessels manned by Indian hunters ; but your Honors
have before you a statement made up by my friend, Mr. Peters,
which shews that the catch of Indian hunters in canoes compares
very favorable with the catch of white hunters in boats, and
as those catches must, in the very nature of things, have been

20 largely made during foggy weather, it demonstrates beyond all
possibility of doubt that Indians hunted in foggy weather
just as frequently as white men did.

There is another point made at page 121 of the United States
argument, vyhich perhaps is not so very important, but is still
Wdrthy of mention, that, if the contention of (Jreat Britain is
true that a great majority of seals could Iiave been taken in a
comparatively small area, the firing of the guns from one canoe
would have a tendency to frighten the seals so much that the
canoes or boats of another ship would have very little chance of

30 success. These expressions in our printed argument must uU be
understood in the relative sense in which they are used. It is
true that we have to do with a comparatively small area; but
that comparatively small area is not an a^rea in which the firing
of guns from one boat would necessarily frighten seals hunted
by canoes or boats at a distance of one, two or three miles awaj'.
The evidonce is this, that the boats start out together, but they
radiate from the schooner to a distance of eight, nine or twelve
miles, as the case may be, they cover a large surface of sea, and
there is no likelihood at all that the firing of the guns from one

40 boat would frighten seals which were several miles away and
being pursued by hunters in another boat. With reference
to Indian hunting with spears, it would tiot apply at all, as
there would be no noise. Here is a bit of evidence on the point
I am just making, in the evidence of McKeil, pnge .S29, line 60.
The question is this :

'■ Q. Now, )'ou roam around the sea a good deal looking for
" seals, don't you ? You don't stay in one place ? A. Not if
" there are no seals there.

" Q. Sometimes sail fifty or seventy miles a day ? A. Yes,

■)0 " I have been further than that in twenty-four hours looking
" for them."

I shall have occasion to mention later on that these distances
are all consistent with our contention tliat, within certain
limits, there were well defined grounds in which it was known
that seals could always he found, sometimes in one spot within
those limits, sometimes in another, but always in places easily
reached in a few hours by the vessels in the Sea

With reference to the conditions of weather generally, and
the fre(]uency of fogs and storms, the evidence is that fogs do not

(iO stop sealing. It is a fog accompanied by wind whielt stops
sealing, and the strength of the wind necessary is one which
blows from 20 miles an hour and upward ; boats have been
out even in that kind of weather. It is not denied that
sealing in Behring Sea is carried on under certain ilifliculties ;

,i! :

mi:

I- 1

M- ,

m *'N

(Wi

224

(Mr. Bodwell's Argument.)

but the hunters take seals in fog anr] wind, and they remain out
and hunt so long as their boats can live in the sea. When they
have a number of fine days, comparatively calm days, they make
very large catches. When they have rough days they make
small catches ; but they make catches in stormy as well as in
calm weather. Another thing which all the evidence tends to
10 prove is that, although there are fog-t, they are not continuous ;
in the morning it may be very thick, and then it may clear
up and be fine for several hours, afterwards the fog mpi,y settle
down again. On the point I am referring to, Byers' evidence is
material, page 320, line 12 : —

" Q. Now, has fog any effect on you ? A. Fog has often
" effect when there is wind ; in calm weather fog has no effect,
" only except it is very foggy, and then we cannot see the seal as
" far as we could when it was clear.

" Q. But do you put the boats out in calm foggy weather ?
20 " A. Decidedly, yes.

" Q. So far as lowering the boat is concerned, fog does not
■' stop you ? A. No, fog and calm weather don't stop us.

" Q. The fog and wind does ? A. Yes.

'■ Q. Now, did 3'ou use guns and horns for the purpose of
• " letting the boats knew where you are in a fog. A. Yes, Sir."

The evidence is clear on that point.

Mr. Lansing: — Is this in reference to Indian hunters or
whites ?

Mr. Bodwell : — With reference to the sealing business

30 generally. The evidence discloses practically no difference

between Indians and whites with reference to going out in a fog.

At page 319, line CO, this evidence is also drawn from the
witness with referenccto the capacity of the canoes to stand the
weather : —

" Q, Is there any difference between the canoe and the boat
" so far as their being able to stand the sea is concerned ? A. I
" think that they hunt in just as rough weather in canoes as we
" do in boats, although I have never had experience in running
" canoes myself, but I have seen canoes out in just as rough
40 " weather as I would care tj put boats out in.

" Q. Now, with regard to the weather that you actually fish
" seals in, what kiiid of weathei' is the best for fishing seals?
" A. Calm days.

" Q. But do you confine your fishing to calm days ? A.
" No, Sir.

" Q. What weather do you fish in? A. Well, we fish in
" some very rough weather.

" Q. What actually stops you ? A. What actually stops us is
wind. In these days nothing but wind stops us in the sea.
i^O " Q. To what extent would there lie wind before j'ou would

"stop sealing? A. I presume about twenty miles an hour.

" Q. You would .seal up to that you mean ? A. Yes, we
" have often had to reef our sails when opr boats were out
" before the}' got aboard."

Also, there is evidence from the witness, Alexander, called by
the other side, and upon whom they rely to a very eonsiderable
extent. At page 474, lines 10 to 30, he says in substance that
upon vcrij rough ddj/n seals are not easy to be had. Ke makes
a distinction in his evidence, which is consistent with the siate-
GO ments of all the witnesses called on our side.

Ilnynor, another witness called iiy the United States and
relied on by tliein, page 52.t, line 32, .says : —

■' Q Now, to enter into the matter of taking seals, what
" are the conditions which would modify- the number which can

225

(Mr. Bodwell's Argument.)

" be killed ? A. Well, the state of the weather. If it is rain-
" ing, or strong winds, or anything of that kind, the seals do not
" sleep very well. And in a strong breeze of wind you cannot
" get on to them."

The evidence is that they sleep not only on calm days

but on stormy days also ; in a very strong wind, or on a very

10 stormy day, it goes without saying that the seals are restless and

hard to get, not only from their own habits but from the

difficulfy of handling a boat.

There is another statement made at page 183 of the United
States argument with reference to .seal habits : —

" Atmospheric changes tend to effect the seals and to cause
" them to be wakeful and alert."

But this is so only in a qualified sense, not in the unlimited
sense in which the language is used throughout the argument for
the United States. 1 quote again : —
20 " There are in their natures some peculiarties as yet unex-
•' plained, and perhaps unexplainable, w'lich caused them to be
" aroused when the hunters expected to find them sleeping.
" Hunger is another cause of restlessness, for when seeking its
" food the seal is in constant motion, diving, leaping, and form-
" ing a most difficult mark for a hunter."

I fail to find any justification in the record for this reference
to the unexplainable peculiarities of .seal habits. I do not know
that there is a case in which any hunter expected to find a seal
quiet when he was hunting for food, or expected to find him asleep
30 when it could be seen that he was awake. The hunters can tell
from his position in *'..e water whether the seal is awake or
asleep, ami they govern their actions accordingly. There is
really nothing, 1 submit, in the evidence u))on which this rather
broad statement can be founded, that there are those unexplain-
oble, peculiar characteristics of tlM3 seal, which upset all
calculations and movements of the hunters in their efforts to
take them.

The conclusion is then drawn from the whole of the evidence
that from the 20th to the 25th of August, the gales, becoming
40 more frequent and increasing in their intensity, compel the
cessation of all profitable seal lumting; I will have occasion to
draw your .Honors' attention to these matters at a later stage of
my argument, and I hope I will be able to shew that there is no
good reason for saying that the weather from the 20th of August
on was so mateiially different from the weather at other seas(4ns
of the year, that seal hunting could not be prosecuted with
success during the latter part of August and the month of
September.

Another statement is made, which is of rather more import-

50 ance ; it is, that this stormj' weather is local in Behring Sea and

not general in its character. That inference is not borne out by

the evidence, for instance, Hackett, page G5!), line 35, is asked

this i|UeHti()n : —

" Q. When you speak of bad weather, I suppose you refer
" merely to just wha* you exparienced in a certain locality, and
' not to the general weather for the season ? A. When we
"have bail weather in Behring Sea it is generally all over.

" Q. The same kind of weather all over the Sea ? A. As a
" rule that has been my experience."
(10 This was on cross examination.

An example is given at page 1M2 of the United States argu-
ment of the local character of the stormy we'ather by citing the
experience of the " .Mary Ellen " and tin? " Sawyard." It is saiil
that " the ' Mary Ellen,' used as a typical vessel by Groat Britain

If? ,

Tpipjr

226

(Mr. Bodwell's Argument.)

" for the purpose of computing a probable catch, was in Behring
" Sea in August, 1886, twenty-nine days, during which time she
" had fifteen days of weather so rough that it was impossible to
" lower a boat. The ' W. P. Say ward ' during twenty-four days of
" the same month, had but eleven in which her canoes could be
" lowered."
10 Now, .then, if your Honors will refer to the chart shew-
ing the position in which the vessels were captured by the
United States revenue cutters, (and these charts will be before
you later) you will find that the " W. P. Say ward " was seized in
almost the same locality as the "Dolphin." Warren is cross-
examined on that point, page 284, line 10. That very thing is
put to him. I will not read the evidence; but the effect of it is
this ; his attention was called to the fact that the " Mary Ellen "
had ver}' stormy weather, while he appeared to have very good
days, and lie said the reason was that he was down near

20 Bogosloft", where he was protected, whereas the "Mary Ellen"
was out in a more open part of the sea ; the evidence, therefore,
does not shew that the storms were local in their character, but
that there were certain positions in the Sea, which, from the
conformation of the .surroumiing land, rendered the vessel less
exposed to rough weather than she would have been in other
part.s.

A statement is made here as to the lowering days, and it is
said the " Adams" in 1887 had only fourteen lowering days out
of thirty That is a very fair average of lowering days. In our

30 argument we do not pretend that every day was a lowering day
01- that seals could be taken at all times. We have made a
ver}' fair average upon that point. We have taken the " Mary
Ellen " and the proportion there is 68 days out of 120 as lower-
ing (lays. In ail our calculations the proportion of sealing days
has been made up on that basis. Now the lowering day.s of the
"Adams" compare very favorably with that — fourteen out of
thirty. Then they state that the "Triumph " was in the Sea for
45 days and had only 17 lowering days.

The Commissioner on the part of the United States : — Is there

40 any point in your printed argument where you make that com-
putation ?

Mr. Bod well : — Yes, your Honor, I will come to it in a
moment. The evidence in respect to the " Triumph,' as I was
about to observe, is very incomplete. It vvas given by Mr. Edgar
Crowe Baker, who was not upon the schooner. The captain,
Dafiiel .McLean, could not ba produced as a witness before the
Commission, and wo have no explanation, whatever, of the
character of her voyage or of the circumstances surrounding it.
No very strong inference can be ilrawn from the fact of her only

oO having had seventeen lowering days. There might have been
many reasons for this not known to your Honors, for lack of
evidence. The argument proceeds :

" In 1800 the same vessel with white hunters, who, not being
" induonced by the fear of fogs, lowered in weather which
" would have prevented Indian hunters from sealing, was in the
" sea 42 daj-s, and in that time had liut 1.') which were not too
" unfiivoralile for her boats to be used."

Now that is scarcely' a fair statement, because the e'.iilence
is conclusive tlmt the year 1890 was an exceptionally stormy

60 season, one in which the weather does not compare favor-
ably at all with that of otiier years. Captain Cox himself
says it was on wccount of the inclement nature of the
Weather, that he returned home that year with a very small
catch. I submit, therefore, that you cannot agree with the

227

(Mr. Bodwell's Argument.)

inference drawn here, that they possibly lowered more days
tlian a vessel manned by Indian hunters would have lowered.
The real explanation is, that it was a very bad year throughout,
and therefore there were few days on which seals could
lie taken. We have, as I stated a moment ago, based all our
calculations upon the hypothesis that there would be in each

10 month a comparatively small number of lowering days, for
instance in the year 1889, at page 73 of our argument, a year .
that we contend was a good 3'ear, and a very favorable season
lor sealing, we have this statement : —

" The ' Mary Ellen ' had IG lowering days in August between
" the 1st and 2.5th, when she stopped sealing.

" The ' Ariel ' had 13 lowering days between the 14th and
" .Wth of July ; but of these the IGth, 17th, 19th, 21st and 24th
" were not full days. On the 30th she lost a boat and spent
" some time in looking for it ; between the 5th and 18th August

20 " there were 11 lowering days ; but the 5th, 10th, 16th and 18th
" were not full days . . ."

•'■ The ' Viva ' lowered 21 days between the Gth and 30th of
'■ July, and 15 days between 5th August and the 21st, on which
" latter day the return voyage was begun.

" The ' Juanita ' was seized on the 31st July. She bpgan
" sealing on the 3rd, and between that and the 30th had 17
" lowering days.

" The ' Favourite ' entered the Sea about the 13th of July,
" and from that day to the end of the month had 15 lowering

30 " days ; in August there were 16 lowering days up to the 25th
" when she stopped sealing."

In the chapter on the method of computing the est'mated
catch, at page 81, we set out the number of lowering days which
the ' Mary Ellen ' had in 1880, and although it was an exception-
ally good season and she made a very large catch, this is the
statement of the operations of her hunters : DeFries had in
August 15 whole days and three half days; Jacobson, 15 whole
days and 4 half days ; Julian, 16 whole days and 4 half days ;
Lorenzo 15 whole days and 4 half days ; Dillon, 16 whole days,

40 4 half days. In making up our calculation for the estimated
catch we based it on this proposition, page 82, of the argument
for Great Britain • —

" The ' Mary Ellen ' had five men who were in the sealing
" waters 24 days in August. This would be equal to one man
" for 120 days, but there were 51 half days in which no hunting
" was (lone, leaving 68| actual hunting days for one man.
" During these 68| days 953 seals were taken, not including the
" 47 taken by the stern boat in 10 days ; this is equal to 14 seals
" per day for the one man power at work."

50 All our calculations of the amount of probable catch are based
upon the proportion as the number of lowering days on the
" Mary Ellen " is to the number of supposed lowering days on the
uLher vessel in question. We do not pretend that the sealing
was such that the boats could go out every day. The very fact
that such large catches were made under such circumstances
shows that when the weather is moderate the taking of seals is
11 matter of very great ease, and can be carried on with remarka-
ble success.

At page 184 another matter is taken up and made a great

CO ileal of ; it is a suggestion that tlie success of sealing depends upon
the skill and experience of the captain. I have already quoted
considerable evidence upon that point ; but supposing, for the
sake of argument, that it is true, what is there to show that the
vessels in respect of which we claim weie not in connnand of able

fn-"

f ife^

111 11

i'!i.

^1 ill *^ It ■■■U

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i 11 'j

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228

(Mr. Bodwell's Argument.)

and experienced men, Who were the good captains ? Where
did they live ? There is Cox, Baker, Hackett, O'Leary, Warren
and Jacobson. These men are residents of Victoria, and
they were on the vessels in question. And even if it were
a fact that the success of the voyage depended so much upon
the skill and experience of the captain, the evidence is that

10 we had skilled and experienced captains. Your Honors are not
here to speculate upon what might have happened if there had
not been skilful and experienced captains in command of the
ships in question.

Upon this point, however, the argument of the United States
has gone to a far greater length than the evidence will justify-.
I call attention, without reading, to the following pages with
regard to it —

O'Leary, page 292, line 10 ; Moss, page 388, line 10 ; and
Cotsfunl, page 385, line GO, where he says — " You would always

20 " be sure of getting seals but not of the amount." And Smith at
page 141>G, line 60, where the catch was made by a captain who
had never been in the sea before. And Myers at page 838, line
50; and McLean at page 423, line CO, and page 420, line 10.

Having covered the subject in this general manner there are
in the argument of the United States long quotations from the
testimony of three witnesses, and it is stated that that is really
the whole of the evidence upon the point. The first extract
is from the statement of Coptain Alexander McLean, a witness
relied on very strongly by the United States. To such an

30 extent is this the case that, before commenting on the particular
extract set out in the argument, I desire to take a general
review of his evidence.

McLean is first introduced as an expert on the value of seal-
ing vessels, and later on he is put forwatfl as a man thoroughly
competent to pronounce upon every question relating to seal life.
He gives in his evidence the history of his early life, and from
that we may form a judgment as to how far he has been quali-
fied to speak as an expert on the value of vessels.

At page 400 we have his eviu<^nce in chief, and it appears that

40 he was born in Cape Breton, and remained in the Eastern Pro-
vinces engaged in mackerel, fishing ui.tii 1880, when he went to
San Francisco. He next appears as master of the steamer
" Douglas ". When he was cro.ss-cxaminuc^ these statements were
qualified to a certain extent. He says he canic *o San Franci.sco
in 1S80, to Victoria in 1881, and that in 1882 he went to Alaska
in connection with a mining enterprize. Subset uently he came
back to Victoria and from there he went to Mussachusetts ; be
was then travelling about from one place to another. Then he
went to Cape Breton and came back to San Fran 'isco.

50 At page 400, line GO, Captain McLean makes a rather peculiar

statement. He saj's that he was navigator and ooat steerer of
the "San Diego" in 1883i It is not appfr..iit to the casual
observer how these two positions could b;- united in the one
person. It is not the usual course of thirgs; and it is also a
question how it could happen that McLean, though he was out in
the boats sealing, could also take the observations, which he sa3's
were entered by him in the ■■hips daily log. It is difficult to
undeistanil how he could occupy at tli*. same time che position of
navigator and boat-steerer, the lowest and hiyiiest positions which

GO a man could fill on board a sealing vessel. His fancj' has been
playing him several tricks with reference to this voyage, for we
also lind that he had himself written down, as master of llie ship,
in this book I hold, which was produced by him, and he only erased
the entry two or three months before the giving of his evidence

229

(Mr, Bodwell's Argument.)

at Victoria. The whole of his testimony as to the crnise of the
" San Diego " in 1883, is extremely mythical and unsubstantiated
by other facts in evidence.

At any rate the " San Diego " in that year was not upon a
sealing voyage, at least that was not the main object of her cruise.
She started walrus hunting, and when she got to Behring Sea the
10 master and crew found seals and took a comparatively small
number, the skins of which they brought to Victoria and sold at a
high price.

In 1884, McLean was on the " Favorite," but he did not go
to the Behring Sea. In 1885 he went to Behring Sea, and was
also there in 188C and 1887. In the following years he seems
to have been in Behring Sea regularly as a .sealer. In 1884 he
was taken into partricrship by Charles Spring and in that way
lie became part owner of the " Onward," " Kate," and " Favorite."
This partnership continued until 188C, and is referred to at page
20 890. It is quite evident that he had not verj- great experience
in the buying of sealing vessels as appears from his own evidence.
At pane 459, line 50, he says: —

" Q. Now you said j-ou had a good deal to do with the sale
" of ve^-sols, and that you sold several vessels ? I have the
" names of them here that you said you sold, and I ask j'ou if
" you yourself had .something to do with the selling of some
" ye.ssels. A. Yes, sir.

" Q. How many ve.ssels had you actually to do with the sale
" of ? A. I liave been interested in three vessels.
30 " Q. You had something to do with the selling and buying
" of three vessels ? A. Yes, sir.

" Q. Outside of that had you anything to do with the
" purchase or sale of a vessel ? A. Not here, excepting them
" three.

He refers, I suppose, to the three Spiing schooners.

" Q. Had you anywhere else except here ? A. I had in
" San Francisco.

" Q. What vessels did you buy
" inspected vessels for other parties.
40 " Q. How many ? A. I think three or four.
What vessels were they ?

"Q-

' Lewis.'

"Q.
"Q-

'sealer ?

in San Francisco ? A. I

A. The ' James Hamilton

Was she a sealer ? A. Yes, sir.

The other was the steamer ' Alexander,' was she a

A. Yes, sir.
The other wa.') the schooner ' Bonanza,' was she a sealer?
A. Yes, sir.

" Q. These are the three vessels you inspected ^ A. Yes, sir.
" Q. Did you make a bargain for the purchase ? A. For
50 " one of them.

" Q. Only one of them ? A. Yes. sir.

" Q. Which one ? A. That was the ' John Hamilton Lewis.'
"Q. When was that ? A. In 1890, I tlunk.
" Q. And the other vessels you simply inspected to see
" whether they were suitable vessels or not ? A. Yes, sir, to
" see if they were worth the money asked for them."

I think it is fair to conclude on that evidence that Captain
McLean was called in to inspect the vessels as to their sailing
capacity and quality of sealers. I submit that it does not
tiO follow that he was called in to value the vessels. At any rate it
is perfectly clear that he had had no very great experience in
buying or selling vessels either at Victoria or San Francisco. It
is a fair inference also that his being taken into the firm of
Spring and Company was for the purpose of managing the

,'t|

i ft-

:.:tii

'i'i.;;

;i-i

I'ii'

230

N li

(Mr. BodwelTs Argument,)

vessels on their scaling voyages. He learned something of the
cost of vessels from tlie prices paid bj' the partnership, but out-
side of that it was not his business to value that class of
property. Now, if a man who simply from his experience in
the .senling occupation is to be taken as an expert in regard to
the value of vessels — and I do not say that one does not acquire
10 a ceitain knowledge in tliat manner — what n-ason is there for
taking the evidence ot McLean against men of the same class,
who have had larger experience? For instance, why take the
opinion of McLean in preference to that of (.\iptain Warren ?
This uum came to N'ictoria in 1886 ; for years before McLean was
on the coast at all Warren was building vessels at Victoria, was
operating many trading schooners there, was engaged in the
business of sealing and had the best reason in the world for
ac(|uiriiig accurate knowledge of the cost of vessels and their
adiiptibility for sealing purposes. It was his business, and he
20 acquired knowledge not merelj' as a navigator, but as a man
who had to buy and pay for vessels.

Why should you take the evidence of McLean in preference
to that of Sieward, one whom your Honors will remember as
a shrewd business man, absolutely uninterested in any claim
before the commission. In the year 1S8U and 1887 he was a mem-
ber of the film of Hall, Goepel & Co., who were contemplating
entering into sealing operations on a large scale.

Mr. Lansing : — Where is that evidence in the record ?
Air. Piodwell : — At page 1.57, line 00, the evidence is that
30 he was the man selected to purchase the vessels. For that
purpose he made carefid encjuiries and went iiito the matter
thdioughly. 1 say, therefore, that there is every reason to accept
his evidence and to consiiler him a thoroughly competent man,
i'orliv! made it his business to enquire into the value of vessels.
Why accept the opinion of McLean with his limited and casual
knowledge as against that of a man who investigated the
subject for the very purpose of ascertaining the state of the
market and the exact status of affairs at Victoria ?

Mr. Lansing : — At the time referred to he was not a paitner.
40 Mr. Bodwuli .- — I think my friend is right in that, but he
became a member that year, and Mr. Sieward was doing then
exactly what he would have been doing if ho had been a partner
at the time. He was acting in the same manner as if he had
been an actual partner at the time.

Or wlij' take .McLean as against Gaudin ? He came to
Victoria in 188(j ; and at that time he held a master's certificate
from the British Board of Trade. He has been connected with
ve.ssel building and ship|)ing interests ever since at Victoria, and is
a man of high standing and respectability there. He is now, and
,50 has been for years agent of the Department of Marine and
Fisheries at Victoria. Why does he not know as much about
the price of vessels as McLean ?

Take also the evidence of Mr. Collister who is absolutely dis-
interested. He came to Victoria twenty-one years ago and has
resided there ever since. For thirteen years he occupied the
position of Inspector of hulls for Lloyds Underwriters. His
business was to acquire knowledge of the value of vessels at
Victoria, Why set aside his opinion because Captain McLean,
who purchased one or two schooners in Victoria and inspected
GO three vessels in San Francisco, chooses to give you a contrary
opinion ? Which one is to iie preferred ? Surely it goes with-
out saj'ing that the man who lived in the place, and whose busi-
ness lequired him to acquire knowledge of the value of
vessels at Victoria, is the one whos^ statement is to be accepted.

281

(Mr. Bodwell's Argument.)

Or why set aside the evidence of Walker ? Here hi a man
very well qualified to give correct information. He began to
acquire his knowledge of shipping on the Clyde and took a full
five year.s course as an apprentice. In 1871 he built two steamers
at Port Franci.i, from there he went to Cftlifornia. Ho came to
Victoria in 1875 and from that time was engaged avS a ship

10 owner. He built steamers and lepaired vessels, The point is
niaile in the United States that he and some other builders who
were called a.s witnesses did not build sealing vessels ; it just
happened that in 1887 and perhaps for two or three years about
that period, sealing vessels were not built at Victoria. But
other ships were built there. There is no magic in the word
" sealing." A man building ships is competent to tell what
would be the cost of a sealing .schooner, which is simply a ship of a
(iitl'urent style. In 1884 he was appointed measuring surveyor
for the port and occupied that position for some time. Later on

20 he has been in business as a coal merchant. The whole cause of
that man's experience — his experience in the Red River country
— in San Francisco, in Victoria, and the duties performeii by
him there, would give him an education upon the value of vessel
which would enable him to give a competent opinion. His evi-
dence is detailed on that point ; he gives reasons for his judgment
and the reasons are conclusive.

Or, why set aside the evidence of Charles Spring, a man
brought up in the sealing business ; William Spring, his father,
was engaged in this occupation for many years at Victoria, and

30 Cliarles Spring, during his whole life, lias been connected with
the trade of sealing vessels, ami ho has in that way acquired by
actual experience a large fund of information whicli renders him
competent to proiioutice upon the subject with authority.

This leaves out of sii;ht altogether that other class of testi-
raony which wo called, of disinterested witnesses, men engaged
ill ship building.

Again, McLean poses before us as an expert in sealing. I
admit that he has experience on that point, but in what respect
is his experience greater than that of other witnesses. In what

40 respect does he possess knowledge unknown to Warren ? While
McLean was enjoying himself in Halifax and other places in his
peculiar way, Warren was engaged in the sealing business on
the west coast of Vancouver Island. It is not pretended that
the seals become different animals when they enter the Behring
Sea ; they travel and sleep, and their life generally is the same
in either localit}'. Warren had vessels during these years
engaged in sailing operations, and many of the men engaged by
him went into the Behring Sea. How much greater experience
had McLean ? If you leave out the voyage of the " San Diego,"

50 he had the advantage of these other captains by just one season,
and in so far as that voyage is concerned, it did not give him
any advantage, for the men who went out without his experi-
ence found the seals and made comparatively about the same
catch as McLean.

If, it is suggested, that because of his occupation in sealing
in recent years lie had special experience, in what way does he
come before us with better credentials than the others I have
referred to ? I have already spoken of ihe qualifications of the
men who were engaged in sealing in 1886. Let us consider the

60 men of later years. I have referred quite largely to the evidence
of Byers. Your Hononi will remember that man. His demeanor,
while giving evidence, was everything that could be desired. Mr,
Dickinson cross-examined him with great skill, but was unable
to find any fault with his testimony. That man came to Victoria

•i n

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282

(Mr. BodwoH'H Argument.)

in 188G. He began as a boat steerer, and workeil bis way up
as a bunter, mate, captain and vessel owner. Every year since
he has been on voyajros to Behrinjj Sea. What is it that McLean
can tell us about .seal huntinjj that liyers does not know ? In what
respect is McLean a bolter witness ? I suinit that we are far
more justified in accepting the statement of Byeis than of

10 McLean.

Or what advantage has McLean over VV. Baker, a man who
has been higli liner as a scaling captain in every year; from
his tirst voyage he has made most Huccessfnl catches; or
Hackett, a man of large experience. Both the.se men were
absolutely uninterested ; or, 0. N. Cox or O'Leary, or Louis
Olson, who has been out ever since 1880, or Jacobson, a very
successful man. Do you suppose that McLean knows anything
that Jacobson cannot tolls us ? What has been the record of
that man ? He; entereil the business without experience, and

20 has acijuired wealth in its pursuit ; leaining the subject in
all its branches, going out as a hunter year after year, as well
as being the owner of sealing vessels actually operating in
the 8ea.

I do not object that my Icarnofl friends opposite should
indulge in a mild form of hero worship, if Captain McLean is
the character tboy would so elevate; but when be is paivided
here as the one whose opinion is to be taken witiiout ([ucstion
on all ])ointH it is well to examine bis credentials and see to what
extent he is entitled to maintain the extravagani pretensions

30 that are put forward on bis behalf. I submit that be is only an
ordinary sealing ca))tain, able, no doubt, to give us ini'urtiiation,
and if he were willing to give exact, and accurati' iiiiurmation,
liis statements woulil have weight. But I say, his opinion, where
opinions ditl'er, is not to be taken as against tlie witnesses that
we have ctilleil, and inasnnieh as our witne.sses are l)etter ([ualiHed,
have more experience, and make a bettei' appearance, the weight
of evidence is with us in every case of diH'erence.

It seems also that .some comuK^nt should be made upon the
manner in whicli Captain McLean gave his evidence before tlie

40 Commissions. For instance as to liis experience in the value of
sealing vessels. We have a statement from him of about 25
vessels on pages 404, 40.5 and 406 of the Record, in wliich he
assumes to remember the names, tonnage, origin, and otlier par-
ticulars about the ships mentioned. We have also a statement
from him of the .sale of l.'J vessels, and he purports to give us
the exact facts in regard t(3 the price of 8. Now, your Honors
will remember tliat Captain McLean gave that evidence without
any note or memoranda to refresh his memory. We know that
lie had no pei'.sonal interest in these ti'ansactions which would

."JO give him a rea.son for remembering them. Your Honors would
naturally assume, therefore, that be was a man with a very
retentive an<l accui'ate memory inasmuch as he is able to carry
in bis minil all of these transactions (jver so many years But
you will be di.sappointed if y<m tbiidv bis recollection is so
retentive and accurate as to enable bim to speak of these things
without refreshing bis memory. We are driven to the con-
clusion that these particulars, the prices obtained for ves-
.sels, wei'e stated by him from in(|uiries he bad
made recently in Victoria, and if so, it would

CO liave been nuicli more satisfactoi-y to your Honors if
tlie original sources of his information had been pre-
sented to }ou. You cannot rely upon Captain McLean's memory
for be lias not a retentive one, and he is not always accurate
in the statements be makes.

S88

(Mr. BckIw^U'h Aiyuniont.)

On page 413, line 50, \w Mays: tlio " Lilly L. " was sold in
1887 for $l,r)()(), but wlich Mr.' Thornh-y is put in tlio box, lie
^'ives the price at which the "Lilly L. " sold in 1887 as a very
(liHerent one than that stated by Captain McLean. On page
172;{ Mr. Thornley says:

"The .schooner " Lilly L.," in October, 18«7, was sold by
10 " James W.Todd toC. D. Ladd— one-thirteenth for *4()0; that the
" vessel was built in 1887, (ilJ tons ; that in February, 1887, Ladd
" sold to Fi ink one-twelfth for !j'4.'!;{..'J.S. "

I think those tijjures, if carried out, would make the whole
\alue of the vessel about 1?.) I !)!).()(), a very considerable discrep-
ancy between Capt. McLean's memory and Mr. Thornley 's state-
ment made from the Records in the otlice at San Kraneiseo.

There is another thin;j, if Capt. McLean could remember all
these matters with so nnjch accuracy when he ' id such limited
means of ac(]uirin>;a knowleil>{e and so small uii interest in them,
2(» we .should expect him to f^ive very different answers to the
following (juestions asked him in cross-examination. He was
beinff cross-examined as to what he was doini; himself, what
voyages he was on, what kind of vessels he was in in 1874 and
1878. On page 428, line 47, he is asked :—

" Q. In what trade, between 1874 and 1878 or 187!)? A. I
was coasting on the coast between Hoston, Philadelphia and
Baltimore.

" Q. On your own account ? A. No, sir.
" y. In whose employ ? A. I was in diH'erent vessels, but
HO I cannot state the owners.

" Can you give me the names of any of your employeru dur-
ing that time ? A. Mo Sir. I cannot.
" Q. Not one ? A. Not one of them.
" Q. That is strange, is it not ? A. No.
" You cannot give me the name of one of the ( aployers you
were with between 1874 and 1878 ? A. I did not keep books,
and when I was .shipped onboard a vessel, I did not enquire who
were the owners or who my employers were.

" Q. Can you give me the name of any of the ves.sels you
40 " were in ? A. I guess I could.

" Q. Give me them then ? A. I could not give the names
" at present, but I think I would be able to give them to you
" later on.

" Q. Could you give mc the name of one now ? A. No,
" sir, not just now, positively. There was one called the ' Eddie
" D. Morri.son.'

" Q. Owned by whom ? A. I cannot state.
" Q. In what capacity were you on her ? A. I was able
" seaman.
r)0 " Q, Was that your capacity up to 1870 in all the vessels ?
" A. Not in all the ves.sels.

" Q. Can you name the captain of any of these vessels ? A.
" No. sir, but I believe I could show the names of the different
" vessels and the masters. I am almost certain that I could get
" them."

Again, there is con.siderable discrepancy between Captain
McLean's memory about what occurred respecting the " San
Diego" catch and that of the other witnes.ses. He says that in
1888 the catch of the ' San Diego" was 1200 .seals. He pro-
''" duces a book and evidently is speaking from it, because the
exact catch of the whole season is 1200 seals; of the.se he
says 32!) were taken in Behring Sea and 871 were taken
outside of the Sea. His words are : — ' There were 1200,
mostly taken in Behring Sea." He admits that this catch

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( Mr. l!oii\vrll'> Ai'Miiiinit )

wns sold to linlil'i" nii.l wi- know tlmt it win. Mr. IjuIiIms
liriiirjn his l)Of>k in coiiit ami shows that it was in 1HM2 that tlm
" Sun l)ii';;'o" took in liclii'in:,' Sen :lit! sciiln. whirh is ii ilitl'.'rcni'C
oP only thri'd sphIs trorn Mclii-iin's sttti'iiu-nt of tilt' y'lir I.SH;{.
Ill' also s;iys that till' ciilch I'l' I SS.'t whs .'HH si-uls. Now, it has
Iti'i'n siii,"^'"sti'i| that liiilili's cviiliMKrc may he consisti'nt with
10 Mcljiian's I'viilcrico ln'caiisn thcsi,' snals wt-n^ only dcsprilu'd us
Morthi'rn ssais and soino niiijlit In' tak(»n outsider of IJijhrin^' Si-a.
Unt ndinittinj^ that, t!ii> cvidcMici! is tlmt Liililm lioiij^ht the whole
catch from I'liptain < '.ithoart and tln'ri' would soill liiuidiscri'panuy
of MOO s(!als, l)i'(!iiusr' tin? whole catch as mentioned l)y Mclicanwas
1200 seals : whereas liiihlie says the whole catch was OKI WIumi
that statement is taken in connection with his otlier statement
that he was hoat stc(,'rer, it is evident that (Captain Mcljeau
olitnined the information as to the catch of the 'San Dic^o "
from some other source other than personal knowl(!dj,'e as i;e
20 says, and morever that ho did not co|>y it accurately.

However that ma}' be, whether it is a failure of recollection
on ('aptain Mcl>ea?i's part or not, I suhmit that we cannot .alwAjvs
be sure that ('aptain NlcLean in prenentin^ to th(.' court matturn
upon which lie claims that he had accurate information, is deal-
in;:; with that frankness we ouy;ht to expect from a witness. For
instance, here is a book which he produces, h hook which in
itsi.'lf bears strong,' internal evidence of havini,' been all written
up at one time, and (.'aptain McLcian swears to that book. He
was not asked to swear to it, there was no reason why he .ijl'.ixild
30 do so tiecanse the entries w(,'re not very material to the case or
to Captain McLean's evidence, but still ho takes it upiin himself
to swear to the accuracy of that book. On pai^e 4^0'^, line 22,
he say» :—

'■<,). You kept accurate lojTs, did yo\i ? A. Yes, sir, very
" correct I think. Of course they are kept for my own use, ami
" I did not intend to l)rint,' them into court. There is one of the
"statements in that book for 18M7 that is not correct in the
amount of seal-t stated there."

Therefore this is the book that Captain McLean referred to
40 because it is the only book in which that mistake occurs.

Atpaf;e414, line 38, he is askeii in direct examination : —

" Q. You kept the book with references wiierc you made
" good catches of seals? A. Yes, sir."

In cro.sH-exami nation, pa^^c 433, line 20:

" Q. I am just goinj; to have a little look at that book of
"yours now— .You took that answer from that hook. This book
" purports to be what ? A. That is for my own private infor-
" mation.

" Q. When did you make it up ? A. [ niado it up at
50 "different times.

" Q. You liftvo an entry here, sailing in Hehring Sea in
" 1883, the number of seals caught, the (lays were caught, the
" latitude and the longtitmle. That is right, is it? A. Yes,
'• sir, it is suppo.sed to be.

" Q. I want a straight answer to this question. When did
you make these entries ? A. I cannot .say as to the exact date,
or probably the year, but they have been made some years back.

Q. Will you swear you made them in 1883? A. No, sir.

Q. Will you swear you made them in 188't? A. No, sir.
CO Q. Will you swear you made them in 1885 ? A. Probably
in 1885.

"Q. Why did you make them "probably in 1885?" A.
" Because I had that book in 1885 and made entries in it, and I
" believe this is one of the first entries I put in.

fii

(Mr. |{oilwc'll's Ar;;iiiiioiit.>

" Q. Yim prolxilil}' maili' tlii'in in iHS'i' A. Krom other
" lidokN, I dill.

"(). VVlmt otliar liook's :* A. Uouks tlint I iisud to ki'cp
" rt'CdnJs ill,

"Q, Do you niL'iin to suy tliat 7-1 i^ a ciin-cet .^tiitt'inriit in
" tliii liook ? A. 1 helicvc it.
10 " (^. Will you swear it i.s corropt ? A. To the best of my
" kiu)\vl(!i!Ki', nil-.

" (.^ Thi'ti tlu'so »'iitri(;« wfin; not iiiiuk' at tlicsi! dates ' A.
" No, sir.

" t}. You have ^otiiot only tluMiuuilier of seals cauyht eaeli
•'(lay liut till' latitude and longtitude where they wcm'u cauj,'ht?
" A. V'es, sir.

" (},. Where did you get that from? A. f took tlie oliser-
" vatioiis myself.

"(.},. Where did you put them down ? A. I put tlieui down
2(t " in a hook.

" if. What hook ? A, There was a log book.

" Q. Who has got that log book ? A. The ioj^ hook VTas
" left in the .ship, I believe, and 1 took the private book of my
"own.

"Q. When did you leave the " San Diego r' A. In l«s;}.

" Q. You wt!re only on her one year ? A. One year.

" C^. The log was left there ? A. Left in the ship.

" Q. And yet you liavo entries made here which could only
" come from the loir and which you did not make tintil 18S5.
,S() " Where did you get the log i A. I had a private log of my
" own which 1 always kept at sea.

" i). Where is that log ? A. I destroyed that wlien I was
" making that book up.

Then, again, as to the correctness of this book : —

" Q. As a matter of fact, will not the log of the ' Favorite'
" show tliat you did make small catches that year? A, I do
" not think there is any Heal entry in the log of the ' Favorite.'

" Q. Are you sure ? A. There may be, but I have not
" looked at the log for some years,
40 " Q. As a matter of fact, is it possible that these .seals were
" caught in the way you put them down there ? A. It is
" possible.

" Q. Will you swear it did take place ? A. There may be
" an odd seal that might be put down from one day's catch to
" another.

" tj. Is it substantially correct ? A. As near as possible,
sir.

We have therefore McLean's positive statement that this

hook, except as to some unimportant detail, is a correct and

50 accurate record of things that happened within Iiis own personal

observation, entered Viy him at the time in another book which

lie lias de.stroyed.

Again, we find McLean being asked as to the length of the
.sealing season, and he won't answer until he refers to the book.
At page 4+1, line 49, he is asked : —

" Q. What is the last day you fished in Behring Sea in
" 1886 ? A. I believe that book will .show it.

" Q. Well, what do you say now ? A. I think it was the
" litth of August.
t!0 "And in 1887? A. The 2.'5rd.

"Q. And in 1888? A. I cannot exactly say without
" referring to the book."

So that so far as the testimony of McLean goes we have the
unnecessary statement from him that this book is an actual

' >. In

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23U

(Mr. Bodwell's Argument.)

record of actual events anil substantiHlly correct. Now, tiien,
if you will look at the book when your Hoiior.s hiivo
leisure to examine it, you will find that it i.s tilled from year to
year with entries which purport to state days on which SHaliujf
was prosecuted and the latitude and longtitude where the
schooners were at the time and the actual number of seals taken.
10 \ peculiar thin^f about the book and about his statements of tho
catch is this : that you will find no days on which a small catch
wa.s made. That circumstance was one which would come at
once to the attention of any person, and Captain McLean was
examined about it. His explanation is this : That these entries
are not actual entries of seals taken on these days, that where
there was a small catch it was not recorded, but the entry wa.s
cai.i'"' over and made as if the seals had been taken upon
another day altogether.

On another point, more material still, we find that this book
20 is not at all an accurate book.

The Commissioner on the part of the United States : — Of
what importance to this case is it whether the book is accurate
or not ? Who called for the book ?

Mr. Boilwell : — M-. Dickin.son called for it in the direct ex-
amination of Captaii. McLean and I handed the book over to
him. It is important for two reasons. It bears on Captain
McLean's evidence generally, and it is important also because it
is made the foundation for repeated statements upon the othea
.side that in certain years Captain McLean left Behring Sea on a
30 certain date.

The C( nimissioner on the part of the ITnited States: — The
date when he left Behring Sea is not disputed.

Mr. Bodwell : — Because there was no opportunity of bringing
Captain McLean's evidence into contrast with other evidence in
the Record and we are driven to rely upon his statements alone
in that particular.

The t'ommissioner on the part of the United States: — The
owners of tho vessels do n»t contravene it.

Mr. Bodwell : — These were vessels that were not in contro-
40 versy in this case at all.

The Comnussioner on the part of tho United States: — In
what particulars do you say the testimony of Captain McLt'un
shouhl not be accepted f There are a number of mutters here
whieh you say are not revtian*. to the case. But upon what
roveltut and sul)stantial matter." do you say you object to the
testimony of Captain McLean ?

Mr. Bodwell : — In a general way I wish to .say as re-
gards the length of the sealing season in Behring Sea. They
saj' upon the other side that bis evidence .ibows that the sealing
50 season practically ended on the 2.5th of August of every year

Tlu! Commissioner on the jiart of the United States. What
do your own record.s show as to when the sealing season prac-
tically eniled ('

Mr. Bodwell : We say it would have been carried mi if we
liad not been interfered with.

The Commissioner on the part of the United St;itv's. Not
how long it could have been carried on, but when thi you say
that the season |iraetieully ended as a mutter of fact i'
(jO Mr. Bodwell . -Wi' say the practical end of tl.c season is the

time at wliicli the vessel would have come home if she had not
been interfereil with.

The Commissioner on the part of the United States. That is
sufficient upon that point for we do not agree about that.

237

''! I!

(Mr. Bodwell's Artruinent.)

What are other points upon which yon ol>ject to the testi-
mony of Captain McLean ? I mean substantia! matters, so
that I can weigh tliese tilings that you are tallying about 1

Mr. Bodwell : — As I said, one is the dunition of tlie sealing
season; tlien we have Captain McLean's evidence on tlie value
of vessels. We have Captain McLean quotct; in the very argu-

10 luent I am now directing your Honors' attention tons the man
who gives his opinion that sealing was such an uncertain matter
that it could not be prosecuted with success ; that it depend.s
for it* success upon the experience of the captain, the experience
of the crews and a great manj' other things which we say are
not supported by the evidence of other witnesses. Again Cap-
tain McLean is the handy man for the United States. He is
called in to fill up a number of gaps in the evidence. For
instance, he is called in to speak of the character of the sea and
the weather on the west coast of Vancouver Island directly

20 contrary to what we contend aie the facts. He is also called in
reference to Daniel McLean's ciLizenship and he is called to
supply a great deal of testimony about particular vessels
in San Francisco the prices of which as I have no doubt will
be urged by the other counsel should be taken as the basis for
computing the value of these vessels.

'riie Commissioner on the part of the United States : — You
have given me enough, and I can now weigh what you are
■saying about his testiuKiny.

Mr. Bodwell : — Your Honor will see how important this is.

;iO He is the chief witness relied upon by the United States upon
these points; they lay greater stress upon his evidence than
\ipon the o''i'le"ee of any other witness that they have ealliMl.
And that is why I am examining with more care the testimony
of Captain McLean. I want to be fair with Captain McLean,
and the point I am now making is that his evidence does not
come before us with that frankness which we ought to expect
from a witness in his position.

Tlic Commissioner on the part of the United States : — I do
not iiuestion that. I merely wanted to get some guide to see

40 where it fitted into the case in your opinion, and then I could
weigh better what you said about it.

At one o'clock the Comniiasioners took recess.

At hah past two o'clock the Commissioners resumed their
seats

Mr. Bodwell : — When the court adjourned, I was aliout to
refer m(n-e particularly to some entries in this book kept by

.")0 Captain McLean, When your Honors inspect it, you will see that
for .several years which are here mentioned, it purports to be a
statement of the catch from day to ilay of the vessels on which
McLean was empl()3'ed, and assumes to give not only the day of
hunting with the luimher of seals caught, but tlie exact position
of the schooners on the day mentioned, As I have before
pointed out. Captain Mcl^ean has pledged us his word that these
are substantially correct statements, but when he is cross-
examined upon it we have certain cvidenci> brought out
I have already called your Honors' attentimi to the fact, that

(10 in these entries there appear no small eatches. They are
all catches of ([iiite a considerable tuimlicr nf seals — ;U), 40, .")(),
mid SI) on for the day. At page 4.S4, beginning with line 150, the
following evidence is given iiy Captain .McLean; —

" Q. I am going to come to this now. Tiiki' the year 1883,

'■"!'

238

(Mr. Bodwell's Argument.)

" and I find here these entries of seals eauwht : 25th of July, 50
" seaKs ; 22nd, GO seals ; 20th, 87 seals ; August 2nd, 70 seals ;
" Au{j;ust 10th, G2 snaN. That is the whole catch in Behring
" Sea ? A. Yes, Sir.

" Q. Do you mean to tell me that there were no days on
" which yon caught loss than that ? A. There might be ati odd
10 " seal picked up occasiuiiaily, but that is as near correct as
" possible.

" Q. Could you show me the log of any sealing ship from
" which it will appear that on certain days tliere were large
" crttelies caught like that and no small catches ? A. I cannot
" say.

" Q I will take atiotliei- one for you. Take your entries

" here for 1884. You have the same thing in your book I sup-

" pose Here are the catches : li), .S3, .■)8, ry,i, Gt», 1()8, 20, 4'!,

" 107, 14(), 131, -200, 101, 8G, 83, oG, 58, not one small catch in

20 " the whole number. A. You will iiiid them in rotation there.

" Q. When you were putting down a correct statement of
" the nundier of seals caught per day, did you put down a state-
" ment of facts that is not coirect ? A. All the seals I caught
" is in that book.

"(J. Do you mean to say that you caught this number of
" seals on these days ? A. I believe so. There might be an
" odd seal caught in the evening, and I would put it down ii\
" next day's catch.

" Q. You were on the ' Favourite' in 188G ? A. Yes.
30 " Q. And there is no small catcli entered there ? A. No
" small catch.

" Q. As a ma't(!rof fact, will not the log of the ' Favouriie '
" sjiow that you <lid make small catches that year? A. I do
" not think there is any seal entry in the log of the ' Favouriti-.'

" Q. Are you sure ? A. There may be, but I have not
" looked at the log for some years.

" Q. As a matter of fact, is it possible that these seals were

" caught in the way you put them down there ? A. It is

" possible.

40 " Q. Will you swear it did take place ? A. There may bo

" an odd seal that might be put from one day's catch to another.

" Q. Is it substantiallv correct ? A, As near as posifible,
" Sir.

" Q. Day by day ? A. Day by day for the catches I believe
" there ai'e some of the catches that are marked for the diHereiit
" days that do not correspond with this book ; there was a mis-
" take in taking them down.

" Q. Taking them ilown from what ? A. From another
" book.
")0 •' Q. From what book (lid you make the mistakes ? A. The
" amount of seals cauidit with the different lieadinsrs."

Now then upon another point, wddch is ecpially material, it
appears that the entries in the book aie altogether wrong. The
examination continues at ',)age 43.") : —

" Q. Will you swear that this book substantially agrees with
•' the log? A. There may be some errors in the day, but the
" latitude and longitude agrees with the log.

" Q. Does the number of seals agree with the log ? A. Yes,
" sir, to till' best of my knowledge.
GO " Q. For each day? A. Yes; there may be an error, I
" have not cotiipared them lately.

And further down at line 4.") of page 43-') ; —

" Q. Did the log of the " San l)iego" show the catch ? A.
" I cannot exactly .say if it did, but I kept a record of the catch.

(Mr. Bodwell's Arpfument.)

" and I also kept the ship's loj^. I am not. sure if we entered
" the position and the catches in the lofj or not."

I ask your Honors to consider how it is possible that Captain
McLean's evidence will stand taken as a whole. If he was boat
steerer, how was it possible that he was keeping the log and
taking observations at the different times necessary to make the
1(1 entries in the log. Then again, with inference to these entries,
as to latitude and longitude, we find at page 430, line 5, the
tollowing : —

" Q. Now, here is the log of the ' Favourite ' for 1884. You
" were in her that year ? A. Yes, sir.

" Q, Did you enter tlie number of seals taken that year .a
" the log? A. I cannot state exactly, the book will .;how if I have."

Th's is referring again to the book to whicii I am ulluding.

Then, after the log is produced, the cross-examination proceeds

at lino 22, page 436, as follows : —

•Jl) " Q. I want you to refer to the date, July the 9th, Beh.ing

" Sea, and tell me what is the entry there ? A. Thirty-five se.ils.

" Q. Read the whole entry ? A. Reining Sea, 35 soals,
" latitude .")4..5(), longitude 100. (i."

Mr. Peters then takes the book and the log, and asks the
witness particularly with reference to the entries of latitude and
lo!igitude, and the ni-nd)er of seals caught, and this is the manner
in viduch tlie cross-exaunnation proceeds : —

" Q. I have here, in the American book, a copj' of what
" purports to be the log of that ship for that year, and I want
S') " to see whether it agrees with your.s. It says hei-e, July Oth,
" position .')"). i)iS, is that there ? A. It is .S4..i() here.

" Q What is the longitude J A. It is 100.

" Q. And hei'e we have it 107.25. How man}' seals there ?
•' A. Thirty-five.

" Q. And there are 1<S here. Xow, I will take the very next
" one. Look at the 10th of Julj-, an<i what is your entry there ?
" A. There is no entry for the lOth.

" Q. What is your next entry ? A. The 11th.

" Q. Give your position there? A. Latitude 55.48, longitude
40 " LSO.S.

" Q. The position here is latitude 55.18, and longitude 107.21.
'• How do you account for that difference ? A. I do not know,
" I have not seen that book, and I don't know anything about
" that book.

' Q. What is the number of seals there ? A. One hundred.

" Q. And the number of seals here is 113. Now, then you
" have no seals caught on the lOth ? A. No, sir.

" Q. This book gives 78 seals ? A. I supp se so, sir.

" Q. How do you account for that ? I find this entry in

oO " what purports to be a copy of the log of the ' Favourite,' and

" F find that on the 10th .luly in such a position she caught 78

" seals, and 1 tind that in j-our book she caught none. A. Not

" on the 1 0th.

" Q. And I find on the 1 1th she caught 100 seals ? A. She
■ uiiidit have caught one or two on the lOtb and it might be
' aihled up the day afterwards.

■■ Q. You would co\iiit 78 seals ' ore ' or ' two ' ? A. No, sir"

Here there wiu* an ol'Jcction taken that Mr. Peters was read-
ing from the printed copy instead of from tlu! oiigirial log, and
III) so the original log was produi'ed, and this is what follows on
page 437, line 10 : —

" Q. We will see how the log works out On July the 9th,
" ]MSO,your position in that little book you have, is latitude 54 ?
" A, Yes, sir.

i".'

1 '•!■

Ml a

i , j- 1 -

''It'

i h

i 'I

> I

240

(Mr. Bodwell's Argument.)

" Q. I have now what is supposed to be the original log.kept on
" that .ship in 1886. Will you .say if your position in the
" original agrees with the position in that book ? A. The
" po.sition agrees very closely with that.

" Q. With what ? A. There may be a difference, but it is
" not much;
10 " Q. I hand you the original log of the " Favourite " for the
" year 1886, and I ask you the question, if on the 9th of July,
" the po.sition iii your log is different from the position as stated
" in tlie log ? A. Not quite the same, sir.

" Q. Why was it nrt quite the same, what object had you in
" putting it not quite right ? A. The original log book is kept
" for noon, and this little book is kept as closely as po.ssibie to
" wliere the seals were caught in, it might make a difference of
" some miles during the day.

" Q. What was your position on the 8th, on the 9th, and on
20 " the 10th, as marked in the log ? A. On the 10th it is 55.58 ;
" on the 9th it is 5.5.45 ; on the 8th it was 5,5.80.

" Q. Did you ever get into latitude 54 at all during that
" time ? A. Yes, Sir.

" Q. On these days ? A. In August.

" Q. No. But on these three days I have named ? A. Not
" that I know of, if 1 did, it would be in the log hook."

8o that he is not in the .same latitude at all according to the
log. The examination proceeds : —

' Q. Your log shows that \ ou were noi. in 54 on any of
30 " these three days, and that heing the case, explain to me why
" you put 54 in your little book. A. Well, that might be an error
" in taking that down, of course.

" Q. Will you swear it was an error ? A, Yes, Sir, I will
" swear it was an error, and that it was not done intentionall}'
■' either.

" Q. Is there any statement in the log as to how many seals
"you caught on the 9th or 10th, or the 11th? A. No, Sir,
" because I did not enter my catches in this log book.

'■ Q. Now then, following on that same line with your log
40 "book, look at the next day, the 11th, as shown there? A.
" Yes.

" Q. What is 3'our position according to your little book on
" the nth .? A. 55.48.

" Q. What is the position in the log ? A. 55.37.

What is the longitr.de there in your little book ? A,

167.8.
"Q.

" tion ?

What is the log ? A. 107.7.

When did you make up your mind to make that altera-
A. I made the alteration as liear as possible as to the
50 " ground I took the seals on.

" Q. When did you put down that position in your little
" book ? A. It was put tlown a little later on."

How can Captain McLean say that the diH'eronce between the
entiy in the book and in the log was not made intentionally.
Hi)W can he say that when he himsolf makes a statement, which
I shall now reaii, at another place in the record. In explanation
of the reason why thene entries appear dilfereiitl}' in the little
book from what they are in the log book, at page 4.S5, being
examined in cross-examination, and with refei(>nce to the same
CO book where it refers to the catch of the " San Diego," he says : —
" Q. llacl you any object in not I'liteiing in the log the
" nundier of seals that you caught ? A. Yes.

" Q. What was your object ? A. Because if you have a
" log hook atul you make pretty good catches your hunters or

241

(Mr. Bodwell's Argument.)

" crew may get hold of the book and take the po,sitions out of it,
" and going on hoanl another ship they would give it to tliein."

I submit that .statement .shows conclu.siveiy when taken, in
connection with the fact that there is not an entry in that book
as to latitude and longitude which corresponds with the entries
in the log book, that the change was made intentionally, and
10 perhaps with good reason. Rut when in the cour.se of the next
hour in hl.s evidence, he says that it was not done intentionally,
you have him making two ditferent statementu about the same
fact in the course of three or four pages ol' the evidence.

There is another ttiing which j-our Honors will observe in
examining this book. You will find tlint at one place there was
some writing with paper paste<l over it, which paper was sub-
sequeidy torn out. That fact in itself was of course not
material, but Captain .McLi.'an's explanation of the time when
the tearing took place and the reason for which it was torn
20 out is of serious consefjuence to your Honors, in considering his
evidence. At page 107() of tiie record in re direct examination
by Mr. "Dickinson, he is asked for an explanation and this is
what occurs, page 107(), line 8.

" Q. You came here and turned over your books to tlie
" counsel for Great Britain ? A. Yes, Sir.

" Q. They had them for a long time, hadn't thej' ? A. Yes," Sir.

" Q. All your logs, memoranda books anrl everything ? A.
•' Yes Sir.

" Q. Did you not do that ? A. Yos, Sir.
.'lO " Q. And since you have been here ami specially after
"listening to the 'Carolena' case, you would talk very fully
" with us ? A. Yes, Sir.

" Q. Except about your ownership of the Spring vessels?
" A. Yes, Sir.

" Q. You tried to cover that up by pasting papers in the
"entries in your books ? \. Yes, ,Sir, I did."

That is a statement that after the books had been in the
hands of the British counsel. Captain McLean became friendly to
the counsel for the United States and wa.s giving them informa-
40 lion, but was, nevertheless, desirous of keeping from them the
fact which appeared in this book that he hail an interest in the
" Favourite." He therefore says that in the interval he pasted
over the entries, and when it was pointed out to him that it was
an incorrect thing to <lo he tried to take it out. Let us see what
follows ; —

At line 30, page 1070, the re-direct examination proceeds as
follows : —

" Q. Was that pasted over to keep from the Ameiican coun-
" sel the fact of yo\n- ownership ? A. Yes, sir, I did it for that
•")0 " purpose.

'■ Q. To cover it from us ? A. Yes, sir ; then I took the
' paper otl again.

" Q. After the rttpiesentativo of the ITiiited States told you
" t'.iat he had found out what was behind it by holding it up to
' ibc light ? A. Yes, sir.

I jiroceed now to read the examination and the cross-examin-
ation which follows, and in order to meet any suggestion that I
am endeavouring to make a p'liiit against Captain Meljcan which
is not justilied \>y the evidence, ' sliull rea<l thr whole of his
I'l'l re-cro.'-s examination on that point. I shall comuKiice at line 40,
page 1070 : —

" Q. When did you tir^t hand ov it that book to the United
■ States coun^^e! ? A. 1 believi; it might have been two weeks
" ago or more.

242

(Mr. Bodwell's Argument.)

" Q. When did you s^how them the book for the first tinie ?
" A. That would be, of course, two or three weeks ago. I can-
" not exactly say.

" Q. Was it before the enquiry commenced before this
" tribunal that you first showed that book to the American
" counsel for the first time ? A. It was before I came on the
10 " witness stand here.

" Q. I ask you whether it was before the enquiry com-
" menced ; before the coiumencin'^ of the " Carolena " case ? A.
" Yes, sir.

" Q. How lon^ was it before the commencement of the
" enquiry in the " Carolena ' ca.ie that you showed this book to
" the American counsel ? A. It might have been probably a
'• week. 1 am not sure how long, but 1 know it was before that

" tiuK-'.

" Q. You ihowed that book also about the same time to the
20 " British counsel did you not 1 A. Yes, sir.

" Q. When } ju sliowed that liook to the British counsel, was
" it not pasted up in the same manner as when j'ou showed it to
" the United States counsel / A. No, sir.

" Q. It was not ! A. No. sir.

" Q. Uo yen say that when you showeil that book to the
" British counsel, Mr. Peters, it was not pasted in the same nian-
" ner as when you showed it to the United States counsel ? A.
" No. I went to woik and I tried to make it clear afterwards
•' when I saw that it was not correct to paste it over, and I took
:>{.} " some of the papur oil wliun I found out it was not correct for
" me to do so.

" Q. When did you lirst paste up anything in the book ? A.
" I pastt'd that in Sun Francisco before I came to Victoria.

" Q. When was it ? A. In October, I think."

Here within the space of ten lines you find two difierent
statements aliout the very same thing. The re-cross e.xamina-
tion continued a^ follows : —

' Q. When ilid you rumove the pasting ? A. Since I came
" to Victriria.
40 " Q. How long liefore the enquiry into the ' Carolena ' case
" Dill you removi' the pasting ? A. About a week or so."

Then Mr. Dickinson re-examined Mr. McLean in order to put
him straight upon the statement which he had ju>t made and
the followitig oocured ; —

Ki'-dirt'ct E.xaminaiion li^- Mr. Dickin.ion.

" Q. < 'aptaiii McLean, are you not mistaken about taking
"that ort' liefore the ' ( Jarolena,' case opened before the actual
■' coming together of the court ilid you not take it off ? I will
" refresh jcuir memory tor you. Did you not take it t)ft when
.lO " .Munsie wvs on the stand in the 'Carolena' case? A. 1
'■ took It (,fr before I came on the stand here, before 1 was

"CC.ll.'d."

i caP your Honors attention to that statement, because it
will ajipear in the evidence that this book was produced while
he wa.' on the stand ; it remained in the hands of the Briti>h
coun,-il from the time Capt lin McLean came to Victoria until that
period. Then the following occurred in the re-direct e.\aniina-
tion by Mr. Dickinson : —

'' t^- '*''' yu "'*•' f'^l^^' it ort after witnesses were actually
• iU " beginning to be sworn ? A. I cannot swear to that, sir. I am
" not sure whether I took it off before or after, but I know it was
" liefor<' I came to the stand.

" Q. Yes, liefore you came on the stand, to be sure. Do
" lujt you know it was pasted over close when you got the book

243

(Mr. Boflwell's Argument.)

" from the British counsel and handed it to the American counsel ?
" A. Yes, sir."

The statement is thai it was pasted over after he had
received the book from the British counsel, but here follows the
re-cro.ss examination by Mr. Beique as follows :
" Re-cro.ss examination by Mr. Beique: —
10 " Q. As a matter of fact Captain McLean, is it not true that
" that book which you referred to as havinrj been pasted up,
"remained in the hands of Mr. Peters, the British counsel, from
" the time previous to the befjinninj; of the enquiry in the
" ' Caroiena ' case until it was proiluced iii court in the course of
" your own examination ? A. Yec, sir.

" Q. And it remained in the posse.esion of Mr. Peters all
" that time ? A. Yes, sir ; and my other books too.

' Q. For about three weeks oi' more ? A. T cannot say
" how lonfj it was since I brought the books to the otfica
20 " Q. Was it not for three weeks or more ? It iiiiTht have
■' been three weeks or more."

That evidence speaks for itself : and while the fact of this
pasting over is not at all material, the way in which Captain
McLean explains it and the different statements he makes in the
course of a short examimitKn about that simple affair, is very
mater' il for your Honors to tonsider when you are dealing with
Capt.i:;i McLean's evidence on other points.

I sliall also refer your Honors to the evidence \fhich he gives
as to the entries in this book relating to the schooner " Bonanza."
30 'J'hese entries as made purport to be a list shewing the
necessary articles and price for outfitting sealing schooners
with the exact amount of seals taken on the voyage, the nuinber
of men, and th ; profits of the season. There is not a word any
where in the book to show that it was not intended to convey
that meaning. On the contrary it appears to be the record of
an actual sealing voyage, and an account made up for the pur-
po.oe of estimating the profits of a sealing venture in a schooner
like the " Bonanza." But when Captain McLean is examined
upon it and it appears plainly that the amount of provisions on
40 that voyage was somewhat large, and that the entry rather
reflected upon a previous statement he had made as to the cost
of outfitting a sealing vessel, lie gives this explanation. Oh,
that is not an exact account of what took place on the ship,
because she took supplies for other vessels ; and it was not an
exact account of her voyage because when she returned she did
not have the number of seals stated, and the profits were not as
great as shown in that book.

At pages 4."j1-4.54 of the evidence he gives the testimony to
which I now refer. I have already called your Honors attention to
SO the fact that Captain McLean had written hiniseif down as the mas-
ter (if the "San Diego" in LS8t?, and he nuikes us an explanation of
that — he .said he was practically the master because he was the
navigator. We have it in evidence that that ship was under the
coiiunaiul of Captain t'atchart, an old and I'xpericnced captain ;
nnd let !ne ask your Honors, how could Captain Mer.,ean pos'ubly
imagine that he was the Master, evmi it it wlm'c true that he was
the navigator.

In another case he had himself vvritten down in this book as
Master of the " Favorili" in 18.S7, which is not true.
(il) The "Han Diego" reforeiice is to be found at page 440 of the
record lines i) anil 10, an>> is as follows : — -

" Q- Originally in tin book foi' )8!S3, when in the schooner
'• ' San Diego,' your entry wi ■( ' A. McLean, master of the schooner
" San Diego ' ? A. Yes, sir.

: 4

i, i r.ii

1. jM

i,ili!|iif'

::''!iiiiii^Nlf^

■!.•;■■
li'

I; 'I

^wwp'f

244

(Mr. Bodwell's Argument.)

" Q. And that entry remained in that boolt for how long a
" time ? A. Till probably about a month or six weeks ago.

" Q. Had you any object in scratching it out ? A. Ye.s.

" Q. What object? A. Because I was not the actual
" master at the time, I was the practical master. I acted as
" navigator and kept the .ships log-book."

I do not think any observation is necessary on that evidence
because it speaks for itself. The explanation is a very lame
one. How is it that he could by any po.ssibility consider himself
the master of a ship when he wa.s not master at all ? Ho had to
explain in some way how he came to have these entries in the
book, and his explanation is that he was navigator of the ship,
and that he thought he was master.

Tiio (luestioii which occurs to one is, why was this book pre-
pared / Hew was it that such incorrect entries were maile ?
Captain McLean said he made them for his own use. But let
me ask, what jxissible piu'pose could ho have in writing
up a book for his own use which contains incorrect entrie.'?
from beginning to end. Are we to suppose that (Japtain McLean
is of that peculiar bent of mind that he employes his idle
moments in preparing a book full of false statements ? Was his
object to deceive himself? If not, the conclusion is irresistable,
that the book was prepared for the purpose; of deceiving some-
body else. A reason may be suggested : perhaps Capt McLean
wished to ci'eate the impression that he was a man of extraordin-
ary iiliility, that he was master of vessels on which he held sub-
ludiiiiite positions only, and that ho made hunting trips where he
had mit a small catch of seals during the whole voyage and that he
cu i:;!it these seals in latitudes that he never was in. The ques-
tion must naturally arise why did Captain McLean make such
entries in such a hook ?

Mr. Warren : — Have you got the reference there to where
Captain McLean said he was captain of the " Favorite" in 18S7?

Mr. Bodwell : — I do not think it is necessary to take up time
about that now.

Mr. Warren: — Just cite the page.

Mr. Bodwell : — I said it appears in the book.

Mr. Warren : — Let us see the book tlien, please. (To Mr.
Bodwell) you are evidently referring the " Mary Ellen " and not
to the " Favorite " at all.

-Yes; to the "Mary Ellen"- Did I say

Mr. Bodwell
" Favorite V

Mr. Warren:—
Mr. Bodwell :-
Mr. Warren :—

■Yes ; 3'ou did.

-What dirt'erence does it make ?
It make the ditTercnce that he was Captain of

the " Mary Ellen."

Mr. Bodwell : — -If he were the Captain of any of them why
dill he strike it out ? I may have made a mi.stakein mentioning
the name of the vessel, but I will give jju the evidence on that
point. I no doubt should have saiil the " Mary Ellen," but the
point I wish to make was, that he marked himself down as
Master when he was not Master of the vessel at all, and that,
afterwards he scratched it out. Here is i.s the place where that
reference occui's in the evidence. Your Honors will notice that
that is a pencil entry " 24!)G " on the book, and following
evidence occurs on page 44."), line 40 : —

" Q. When did you make that etitry in pencil tiierc ? A-
" When 1 was adtiing it up in court here on Friday afternoon, I
think. It was just to show that these belonged to li'^8(j.

" y. And a-lso these figures ' 2400.' These were put in the

245

(Mr. Bodwcll'.s Argument.) ,

" book lately ? A. Yea, sir, that was Satunlay afternoon when
" I was making up the (hites for the catch of 1SH7.

" Q. Do you notice at the bottom of this same page I urn
" referring to, the page referring to 1.S87, there was a word
" written there which you scratched out ? A. Yes, sir.

" Q. What was that word ? A. ' Master.'
10 " Q. When did you scratcli that out? A. Some titne ago.

" Q. How long ago ? A. I cannot say exactly.

" Q. But I want you to state exactly, how long ago is it
" that you scratched that word out ? A. Probably a month or
" probably two months.

" Q. Tell mo what object you Iiad a month or two months
" ago in scratching anything out of tiiis book? A. When I
" received a letter from Mr. Bodwtll at San Francisco I thought
" probably 1 might re(|uire to be here, and then in looking over
" my books I found that would be a n)istake.
20 " Q. As soon as you heard that you were likely to give
" evidence you commenced scratching things out of that book ?
" A. I scratched out what I thought would not be correct. I
" .scratched out the word ' master ', because I was not master.

"Mr. Dickinson: — You scratched out the word 'master'
" under the word.s ' Alexander McLean ' ? A. Ye.s."

It is i)orf(;ctly clear that he was not the master of the ship,
although he had written in the book that he was ; and the entry
remained there until three or four weeks before he came to
Victoria when be scratchad it out.
;U) When this interruption occurred, your Honors, I was about
to read certain portions of the evidence of (Japtain Mcljean,
which is quoted in the United States argument with reference to
the uncertain character of sealing, which, with that of two or
three other witnesses, whose evidence is referred to, is said to con-
tain so complete and comprehensive a description of the whole
business of seal himting that it is deemed worth while to tran-
.scribe it at length in the argument. Tncalling your Honors' atten-
tion to this portion of the evidence, 1 wish to say that the
statements made b}- Captain McLean throughout are equivocal,
40 and capable of being read without in any sense contradicting
our evidence on the same matter. Yet, they are put forward in
such a manner that th..'y can also be read to make out any
contention the United States choose to bring before your
Honors' on the lines that they have adopted throughout the
controversy. I also call your Honors' attention to this fact,
that the evidence is given in answer to the most leading ques-
tions, and does not possess the weight and force which it would
have if the witness had been allowed to tell his story in his own
way. It is not very long, and in order to do complete justice to
50 Captain McLean, I will read it as it stands. I do not suppose it
will be necessary for the reporters to take this down, for it is all
in the argument of the Uniteil States, page 1S5.

(Mr. Bodwell reads extracts referred to).

There is a portion of Captain McLean's evidence on that
point which has not been printed in the argument, and which
has something to do vvith the answer last quoted in this extract.
It is at page 424, line 9 : —

" Q. Has the holding of the vessel to leeward from where it

supposed the seals are, before the boats are sent out, to avoid
GO ■ the scent, anything to do with it ? A. No, that has not so
" much to do with it.

•' Q. It has not? A. No, sir ; a vessel among the seals
" cannot tell whether they are to windward or to leeward of the
" vessel."

.ij .1

i' { I

I i

i!.f|.:

iiilf

246

(Mr. Boilwoll's Argument.)

So that really all the benotlt the captain can get from experi-
ence i;i the position wliere the .seals are likely to be; then the
small boats are .sent out and they tind the seals.

Now, this an.swer is not quite what was expected from
Captain McLean, and he is followed up in this manner: —

" Q. ('an an experienceil captain of a vessel tell from seeing
" a few seals whether he is near a gre'it body of seals ? A. Of
" courst- lio cannot tell whether there are a body of seals there
" until he has huntecl there.

' Q. Are there indications which go to shew that he may be
" on the margin of a great body of seals when he sees a few ?
" A. Yes, sir, he can tell pretty near.

" Q. And have his movements from place to place anything
" to do with it I A. It has, sir."

That completes Captain McLean's evidence on that point;
and. having shewn your Honors' how little there is in this
20 statement which controverts the position we have taken, I
will read ('a[>tain McLean against himself on the same ([ues-
tion, and this need not be taken into the notes either, because
it is set out in full in our ie[)ly ; but it is convenient for your
Honors' understanding that it should be read at this point. It
is piintt'd at page 2() of our reply. Captain McLean, in the
examination inimediatel}' preceiling this I am about to read, had
been examined with reference to mackerel fishing on the Atlantic
coast.

(Mr. Bodwell then read the evidence of McLean as quoted at
30 p. 2(j of the reply of (heat Biitain).

Captiiiii McLean, as you observe, puts seal hunting, mackerel
fisbiiig ami eodtisbing upon the same basis, and therefore wc
know where we stand. With reference to codfishing, mackerel
tisliing, and that class of business we are within the realm of
authority. We have the Fortune Hay cases for our guidance,
the " llisoluto " and the " Argentino."

The Commissioner on the part of the United States : — You
have Jiot got any mackeiel Hshing business.

Mr. Hodwell : — Well, eodtisliing at any rate; the " Risoluto,"
40 was on a codfishing voyage, if I remendier correctly, and I think
so was the " Argentino." However, I say w(! know where we
are, because that class of cases has been the subject of judicial
decision, and if your Honors are once convinced that seal hunting
occupies relatively the same position, you know what kind of
judgment you will be able to give upon the authorities which
have been cited to yoir

I now pass over the evidence next (juoted that of Captain
Raynor anil Captain Miner, because it is in the sanie line with that
of Captain McLean, and does not add anything to what has been
50 said by him. But there is a witness on whom my friends rely, and
that is Mr. Alexander of the Uidted States Fish Commission, a
man brought buforo your Honors as one who had been sent out
in a .scientific capacity to make enquiries, to get information and
furnish data generail}- upon which he could form an expert
opituon. Therefore the United States have good reason to rely
on this witness to a vt-ry great extent. His evidence in chief is
also set out in full in the United States argmnent from page 103
to page 10(i. It will not be necessary to take into the report
such particulars of it as 1 shall read ; but I wish to call your
GO HoiKjis' attention to the very guarded statements which Mr.
Alexander makes, and to point out to yon that they are not
necessuriU' inconsistent with our statement of the case or the
evidence which we have adduced. I shall not take th.e time to
read the whole of this, but only some extracts.

(M
as quo

In
Honor.'
eviden

" ence,

'■ Q.

" rate
" of, du
" were
" I'ribyi
" ber
" if not
" as th
" ( Iroui
" lunnbi
" winil
Th
that of
general
is bad ;
jiortion
always
was bio

30 will obsi
aud I su
Hinted
general

ilefei
United s
half has
Alexandt
gether, ai
your Hoi

40 "Mr Alex

■;q.

" i]uite ta

"Q.
" .someiin

"Q.
" <<>•

■•bly. I
"Q.

" quite pi
,")0 " have sei

"Q.

t)0

•Q.

247

(Mr. Bodwull's Argument.)

(Mr. Rod well readn extracts from Mr. Alexandoi's testimony,
aH (jiioted at pages lO-t, 1!).') of the United States argument.)

In addition to the portions I have just read, I also call your
Honors' attention to the following extract from Mr. Alexander's
evidence (|Uoted at page 195 of the United States argument : —

" Q. What would you say, from your knowledge and experi-
10 " etice, as to the weather in the Sea ? A. It is varialile.

" Q. Is it variahle in ditl'erent localities in the sea ? A. It is.

" Q. Can you illustrate that in any way ? A. I can illnst-
" rate it Ity a cruise I made in the ' Louis Olson,' hefore spoken
" of, during the month of August. A larger portion of it we
" wen^ to the west and northwest of the seal islan<ls, or the
" Priliylof Islands, during which titne we only lowered the nuin-
" her of days which I have mentioned ; and nearly all th« time,
" it' not ([uite all the time, two degrees south, or two and a half,
" as the case may he, down at what they call the Bogosloff
20 " (Irounds, there were lowerings made every day, and a largo
" number of seals wisre heing taken, while we were in gales of
" wind nearly all the time."

The statement here made does not in any sense contradict
that of Captain Hackett, anil other witnesses, who say that as a
general thing whore it is had weather in one part of the sea, it
is had in other parts; becnuse Mr. Alexander i.s speaking of a
portion of the sea which, from tho very nature of things, must
always have comparatively fine weather except when the wind
was blowing from one particular direction. It is also, as you
30 will observe a very guarded statement made hy Mr. Alexander,
Kud I submit not at all sufficient to support the position of the
United States that the storms of Behring Sea are local and not
general in their nature.

lleferring still to Mr. Alexander's evidence as quoted in the
Ignited States argument it is a case, your Honors, in which the
half has been told, because a verj' considerable portion of Mr.
Alexande's testimony has been left out of the argutnent alto-
gether, ami I will now proceed to read it to your Honors. If
your Honors will refer to the Record at page 4S1, you will find
40 Mr. Alexanders' cross-examination that I aui about to read :

■' Q. I believe your experience has been that the seals were
" (piite tame in Behring Sea, were they not ? A. At times they are.

" Q. In July and August? A. Sometimes they are and
" sometimes not.

" Q. A.s a rule ? A. It depends upon tho weather.

" Q. As a rule, are they not easily approached ? A. Possi-
" bly. I say under certain circum-^tances, yes.

"Q. I believe that your experience has been that they are
' quite plentiful during July and August in Behring Sea. A. I
,jO " have seen them quite plentiful.

" Q. As a rule you have seen them in large numbers have
" you not ? A. Well, that would depend on what constitutes
" large quantities."

Then there is an interruption and discussion by counsel and
the examination proceeds at page 48S, line GO :

" (i. You admit that every year you went to Behring Sea
'you found a large quantity of seals, both in Juh' and August ?
" A. Found a larger quantity in tho j-ear 189.") than we did in

■ IHIH.

CO " i). But in both yeai's you fouml a large quantity. A. A
" considerable quantity.

' (}. Both in July and August? A. Both August and

■ September 1894, a few in July, we were not hunting in Jul}*,
' we passed through them ' " our way to the hunting ground.s.

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848

(Mr. Bodwell's Argument.)

"Q. And from your observation you have ascertainetJ. so
" far us you were able to ascertain, tliat from year to year they
" remained in the Hehring Sea in iar^e quantities in July and
" August ? A. That is tlie natural sealing grounds during those
" months in Behring Sea ; there must be a large quantity of
" fish on which they live in Behring Sea around the PribyioH"

10 " islands at that time, they being fish eating marDinals, of course
'' there must be a large number of fish in order for them to sub-
" si St.

" Q. And I believe jou have ascertained also tliat they were
" not easily frightened, and they could be easily approacheil as a
"rule? \. But that rule is subject to variations.

" Q. Have you not ascertained that, and have you not made
" reports to that eflVct ? A In a great many ca.ses they are
"quite easily approached, but there are times when 'hey are
" not.

20 " Q. Have you not made several reports to your Govern-
" ment to the eflect that they are easily* approached ? A. I think
" you will find on looking at the reports that the statement may
" be modified some, but there were conditions under which they
" can be easily approached, I think that you will find that, I am
" not positive.

" Q. Will 5'ou refer to the statement that you have made,
"as published in the Senate document number 1M7, page 190,
" and say if you have not made the follcwing statement in that
"connection when j'ou were on the ocean: 'We soon learned

30 " that they were iinusally tame, as we approached near enough
" to touch one with a spear pole that was in the boat. 'I'hey
"shewed little signs of fear, notwithstanding that we were
" within 30 feet of them for full}' five minutes?' A. Yes, si i,
" that is correct.

" Q. Did you also make the following statement ? (refer-
" ring to volume S, page 103, of the American llepiint.) A.
" That is correct.

" Q I believe that you made this report also on page 198 of
" the same document 137 as of the .')th of August : — ' A largo

40 " nund>er of seals was noticed ; they were frequently seen p!ay-
" ing about, sometimes on the crest of the waves, and then in a
"hollow of a sea. They .seemingly had no fixed course, but
" would swim in one direction a half a mile or so, return aud go
"in an opposite way. It is more than likely, ha<l the wind been
" blowing a strong gale, they would all have been bound in one
" direction.' Is that correct ? A. It is.

" (}. And you reported also to the effect that they were not
" easily frightened by vessels, that vessels being amongst them
'• had not the effect of frightening them."

.')0 Then there is an interruption and a discussion, and the
exanunation is continued on page 4-iS."), line 10 as follows; To
witness —

" Q. From your experience is it not a fact that the seals are
" not easily frightened even when vessels are amotigsi them >
■' A. I have seen them on several occasions when they were not
" easily frightenei'., and I have also seen them on other occasions
" when they were.

" Q. Did you make the following statement in Document
" 137, Part 2, |)age 125, ' When (juite near them, one of the seals

GO " lifted its head up, but the sight of the vessel caused no alarm.
" Having no boat to lower, or spear to throw, a loud noise was
" made liy shouting <iiid lieating upon a tin can. This did not
" have the effect of frightening them ', ami also on the same pa^e
" ' At 7 a. m. a sleeping seal was observed under our lee, close

•20

■■w

249

(Mr. Bodwell's Arfjument.)

" aboard, but not in n |)osition to detect us \iy the sense of smell.
" A canoe was .soon launched and started in pursuit, but the short,
' clioppy sea made it some what ditiicult to catch it. In calm
" weather, or at times when there is only a li<{ht wind stirring,
" a canoe in approaching a seiil isgi^neraliy paddled <lirectly from
" the leeward, but in a choppy sea such as prevailnl on this
" occasion, an Indian always approaches side to the wind, which
" brings the canoe in the trough of the sea and prevents it from
" making any noise that would disturb the sleeper ' ? A. That
" is correct.

" Q. On page 129 of the same document, clid you make the
" following Htatonient, " No .seal life was observed mitil the mid-
" die of the day, when one seal was noticed asleep not far from
" the vessel, but so soundly that the Hupping of the canvas did
" not disturb it. It was captured. Its stomach was empty ?
" A. I did."

" Q. And on page 12-1' of the same document ilid you make
" the following statement > — ' Late in the afternoon we p!iss(?d
" close to such a patch covering a considerable area, in which six
" seals wore i)laying. They paid no attention to the vessel,
"although within one hundred yards of them. A hunter with
" a shot gun could have captured two or three of the number,
" and an Indiim with a spear woild have secured at least two ?
• A. I did.

" Q. And further, — at 5 p. m. the canoes returned with a
" catch of 42 seals ? A. Yes, that is conect.

" Q. *-id on page 1:03 of the first part of the same document,
" .lid you .ake the following statement f 'On a day like this.
" when seals showed no inclinati<m to sleep, shot guns in the
" hands of skilful hunters would have done very destructive
" work to the soni herd, for experienced hunters kill nearlj', if
" not (piite as many travelling seals during the course of a season
" as sleeping ones ?' A. That was correct.

" Q. Based on your observations ? A. Yes."

" Q. Do you mean that they would have been caught ? A.
" I mean a large percentage of them would have been caught, and
" that was the meaning I intended to convey.

" Q. Did you not also find at times that even the firing of
" guns would not disturb them ? A. I do not recollect of p, case
" of that kind, where the firing of guns would not disturb, unless
" they might be quite a distance removed from the vessel, or
" bnat po.isibly, but I do not have a recollection of anything
of that kind.''

The extracts which I have just read from the evidence of Mr.

Alexander (|Ualify to a considerable extent the statements which

had been pieviously made. There is another piece of evidence

.■)0 from the same witness, being his cross-examination, page 4H.S : —

" y. Look at this document, and I will read the following
" from your report:

" On the next ilay, ")4.S north latitude, 1")7.4 west, we saw
" our first seals, 20 in number, 12 of which were sleepers. In
" the afternoon we saw six seals, about half a mile from the
" vessel feeding in a bunch of .seaweed. The sea at that time
" was perfectly smooth with a light air astern. The two hunters
" and myself started out in a boat to watch them, anil to see
" how near we could approach without disturbing them. Wo
soon learned they were unusually tnme, as we approached near
enough to touch one with a spear pole. They showod little
sense of fear, notwithstanding we were within 30 feet of them
for about ten minutes, diving under theseaweeil and cimstantly
thrusting their heads through. It saemed to afford them great

(ill

■* ^TT

Pli'

'Hp

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250

(Mr. Bodweir.s Argument.)

" pluaHiirc. Tlicy paiil littlo attention to us, and .seemed almost
" inditferent as to how near we approaclicd, as we did freijuently.
" Tliis caused the hunters to exclaim several times, ' It' we only
" hud II gun we could kill them all.'

" Is that correct ? A. Yes."

In the re-examinntion there was an etiort made to show that
10 these weie unusual events which Mr. Alexander had heen refer-
ring to, hut the whole mutter was settled hy a t|Ucstiou asked hy
the I'ommissiuner on heholf of Her Mnjesty at l>ago 4!)1,
line 40 :—

" Q. I suppose, .Mr. Alexander, we are to understaml that the
" lepoits that you made, to the extent that they have heen read,
"narrated true ciiouiiistunces ? Of cour.<e yon will say yi's ?
" A. Tliey are truthful to the extent they go and suhject to any
" i|uulilii'ati(iiis."

Therefore, we have this witness saying that the rule is to
20 find large (|iiuntities of seals sleeping, and that when thiy are
slfcping iIk'V are easily taken, and that the exceptions are parti-
cular conditions, such as wind, weather and hunger, which
rentier the seals diHiciilt of capture.

-Vt pages 10()-1!>7 of the United States aigument, there are
two (piotutions from the case at Paris, which are cited here as
heiny iin I'xaet reridi'iing of the eviiknci' licfore your llonrns.

(Mr. Modwi'll lii-re read extracts, ami al.so another at the hottom
of pngi' litis and another at page 727, line .")().)

iJut if your lloiior.s will refer to tlie evidi'uce on page- 727 at
:tO lino .^0, it will be shewn that tlichmiters were not all experienceil
nun. lie h:id two who werr not experieiieed.

Another contingency which I havf referieil to, ami upon which
an arginiient is alti'nipti<l to he made hy tin' American counsel is
refrind to in their ari;unii'nt at page l!)!l at the holtom
of the page. The evidence referred to is that of V. N. l/'ox. Tlie
following statements should he add»!il to the portion (pioted,
because it gives a better understanding of what the witness
really said upon the sulject. I ask your Honors to consider
the statement Ik; makes at page (il2 from line 5 1 to the end
4t) of his re-examination : —

'• (}. You were askeil liy .Mr. Warren as to whether there
" was not a good deal of luck in this mutter, and particularly
" whitiii'r theie was not a good deal depended on the way the
" captain handled his men ? an<I yu said there was ? A. Yes sir.

" (}. Assuming that you have a captiiin who knows how to
" handle his men. there is not much chance about it, is there ?
" A. I consider tlu' chances are whether the captain stays among
" them and gi'ts them or not.

" l^.If you once find seals, the captain's duty is to keep among
.50 " them ? A. Yes, sir.

" Q. And if you do that is there much chance about it ? A.
" Nr chance whatever.

'■ Q. Why? A. If you stay among them M)U .vill get them.

" (^>. Do seals herd together as .Mr Warren suggests? A.
" I have seen them that way.

" Q. As a matter of fact are the seals that ytni gel scalterecl
" about heie and there ! A. Yes,

" Q. Coming down to this point of chance, did you ever go
" on M voyage when you did not find them ? A. I never did.
(iO " Q. ( liven that you once find the seals is there anymore
" chance about it than when you find mackerel when you are
" mackerel fishing. A. No, sir.

■' Q. Coming back to the point about the seals being all in
" a herd together, is that the case at all in the months of July,

251

(Mr. Boii well's Argument.)

" August and September ? A. I have never seen tliem in that
" way.

" Q. How do you find the seals thk-n ? A. Scattered aliout.

" Q. On certain {^rounds ? A. I seldom finil them cm the
" „r»ne grounds.

"(I. tlow many will you find together, as a rule ? A. Three,
](» " or four, two; very often one.

'■ Q. And this idea of largo herds with watchmen to keep
" the pelagic sealer off is there anything of that kind in Behring
" Sea ? A. Not in my experience.

" Q. Do you find them in larger hodies on the southern
"coast ! A. Yes, sir.

" Q. When they are going up to the Sea ? A. On the
" southern coast wi! find them in large hunches.

" Q. And the renmrks you have made when asked about 25
" seals together, and that sort of thing, does that apply to Behring
20 "Sea? A. No sir.

" Q. Dill j'ou ever meet a mass containing as many as 25
" seals close together in Behring Sea at once ? A. No sir.

" Q. You meet them in scattered numbers > A. Yes sir.

" Q. Over the feeding ground ? A. That is the ease, yes
" sir."

So that the only point is that the captain should stay among
the seals, and if he does he will get them.

I have read this evidence into the notes because it will
be referred to frequently in the argument and it is convenient
31* to have it togethei in one place.

R'firring hi-re to Captain Cox's evidetice we find this .state-
ment in the American aigument : —

•' It is needless to say, in connection with tin- witness'
" statement that the seals iire found ' scattered about,' and ' three
'• or four, or two ' togtjther, ' very often one,' that the chances he
" refers to are sufficiently numerous to make the probable suc-
" cess of staying among ti.em very uncertain."

But that is not the (piestion. He says, and that is the point
we make, it is within certain liu>its that these seals arc found,
40 and when you once get on the fee-iing grounds, having reganl to
the habits of the seal, it is not a difficult thing for a vessel to
stay among them. It is not meant that they are scattered about
all over the Sea, but ratliei' that they are within certain defined
bounds, and a vessel can keep in that vicinity and the small
boats ca»i find the scattered seals.

At pages 201 anil 202 there is a quotation from Captain Cox
in order to support the contention that Indians were hard to
control and were superstitious, and this case is the one instance
in which that contention might apj)!y, but it is the onl}- case in
■'if which it can be said that the mutiny of Indians for superstitious
reasonj resulted in breaking up the voyage. We do not deny
that particular case, but we sa^' that that .was an exceptional
instance, as all of the rest of the evidence shews.

At page 205 there is answer quoted from the evidence of (J.
(,'. Oerow, who .says " You may be amongst lots of seals and not
" kill any." That answer should be read in connection with the
question which was asked. The (juestion to which this answer
WHS given is a very long question, in which there is lead to him
an eiitr}' out of his log, page I40S, line (5."): —
<!'• " Q. Now on the Kith August, this entry is uuide in this
" book, and I will read it :— ' Fresh south wimland foggy. Boats
" out and returne<l at noon with 12 seals in all, viz., .1. Shields,
" (j ; Mr. Getow, 4; W. Parker, 2 ; others none. Day ends with
" strong breeze and fog.' " And the following entry is made on

|l I'

'\n

:f^

252

(Mr. Bodwell's Ar^^utncnt.)

the 17th August : — " Strong soiithwcKt wiml ami foggy. Veasol
' lying umlor tlie nininHail. One sen! sliot from tlie deck hy
" James Shields. Many seals seen from the vessoi during the
" day." When these seals were nuiueioiis around your vessel, it
" appears that one day, the I'lth August you got 111, and on the
" day following all the hoats took only 12 seals ; and on the fol-
10 " lowing day, when the observation was made, that many seals
" were seen around the vessel during the day, none were taken ;
"so the fact that yuu did not seal on these days, viz., the KJth
" and 17th August, and ilid not take any seals with the excep-
" tion of ahout twelve ; was that due to the fact that the vessel
" was working out, or was it because there was wind and fog ?

" A. You may he among lots of seals and not kill any."

The statement is a general one and has no particular weight.
It ciiiinot lie (|U(iteil as an authority for the proposition asserted
hy the ITnited States.
20 At the bottom ot page 20.") there is a referetice to the evi-

dence of Ileppen and a (|iiotation is given from which the
inference may be drawn, that he had left the Sea in that year
on the 10th August on account of bad weather. Hut in connec-
tion with that his evidence should be reail bvcause the whole
story should be taken together. At page 307, line 10, he
testifies as follows :—

" Q. When iliil you leave the Behring Sea ? A. We left on
"the 14th or ir)th of August.

"Q Why did you leave on the 14th or loth of August ? A.
30 " WpH, the Indians wanted to go home.

"Q. Did they object to remaining anj' longer ? Yes, they
" were afraid I think, they objected to staying any longer.

"(}. Thev were not used to going to Behring Sea, 1 suppose.
" A. No, sir."

So that it is not very safe to tlraw any positive infer-
ence from that evidence. It is a n-asonable deduction from
the whole statement that the reason why the Indians were
frightened was on account of the stories they had heard about
seizures.
40 And now, having carried your Honors over the whole of their

contention uj)on the evidence, I will here sum up the diU'erent
contingtMicies as stated in the United States argument aH'ecting
seal operations, and also state the answer which we make.

The first contingenrj- mentioneil is in relation to the small-
ness of the vessels, that has been explained hy the fact that
small vessels were chosen designedly and they were regarded
as safe and satisfactory.

Their second contention is the perils of the voyage to
Behring Sea.
50 The answer is that the voyages were made continually by
vessels without any special danger.

Third, tliiit boats had r. certain superiority over canoes anil
the British sealers used a great many canoes. The answer to this
is that there is no evidence or. which it can be asserted as a
positive fact that boats in themselves had any superiority over
canoes. Cances woulil stand the weather antl were better
equipped, the Indians used both guns and spears, canoes,
hunted during fogs, and their meihuds were as successful as
those of white men. If they did not meet with the .same
GO success some reason must exist other than a uuggestion that
their e(|uipment was incomplete.

The next suggestion is that on account of such defects the
Indian hunters were not as good as white. Whatever may be
the cause of the smaller catch of Indian liunteis, 1 submit to

258

(Mr. Boilwell's Argument.)

your Honor!) that we have made a far more liberal allowance
than we are cniled upon to make in tliat roi^anl. The statement
pre|>arcy Mr. Peters i<«, perhaps the iu-st answer to the con-
tention. The catch of the canoes coinpareH veiy favorably
indeed with the catch of the heats, hut in an}' event, under our
method for computing the estimated catch, we make this deduc-
10 tion in every case where Indians were employed, and I am cer-
tain on the evidence it is far more lilieral than we are bound
to allow. We say in our argument p. 7!( : " It is shewn that
boatA take about one-third more thiin an e(|uai number of
canoes."

We have mntlo up our estimate on that basis. That is
clear from the tabulated statement wliich begins at page 75 and
continues to the end of page 7f^ of our atgument. In many
eases, of course, the schooniTs cat rying canoes had more hunt-
eis than the vessels earring boats as canoes were more easily
■JO stowed.

The next contention which is referred to in the United States
argument ntay be summed up under the heading of " Seal
baliits." We have shewn that the majority of seals at tlie time
of hunting in Behilng Sea were sleepeis. and that sleepers, as a
rule, were easily taken and in good weatlier tlu* hunters could
be reasonably certain of a gcod pntch. The argument based on
the sci-nt of the .seal, I explaimd away by showing the method
of hunting wliicli was udo[)ted. The frightening by shots is
more inwi;;iniiry than real, because the distance was such between
:fi' eacli bnui tliHt hunters in one boat would not be likely by firing
to frighten s. uls in the vicinity of another.

The inxt contention is that founded on the alleged supersti-
tion of the Indians ami that has already been answered.

The next contention of the United States Counsel is in
rtdation to the weather, but the answer is tliat foggy weather
does not prevent sealing operations, although fog with wind does
prevent siieli operations when the \vin<l blows more than 20
miles an hour. We have made a very liberal allowance with
reference to the question of weather, and on that point i refer
4ti to the argument for Great Hritain, page 82. This is our com-
jHitation. In every case we consider that as the ' Mary Ellen "
out of 120 days had (i.Sj, M-oiking ''ays, none of our vessels
would have had nioie working days while they were in the
Si'ii than the " Mary Ellen "had, and we therefore make a liberal
allowntiri' and give our friends on the other side the full benefit
of it.

Then as to the experience of the captains, I submit it does
not really enter into the discussion for whatever truth there nuiy
be in it, it docs not apply to our vessels at all because the
"id exj)erienced captains were with lis and had control of our
hunters and they did exceptionally good work when not inter-
"eied with, '["he same may be said with reference to good
hunters. Every one of the men mentioned in the evidence as
good liunters belonged to our vessels, and therefore even if it
were shewn upon the evid^-nce that experienced captains were
essential to success — which I deny that the evidence proves — we
had tliem with us and had the benefit of their skill.

With reference to the opinions of the United States experts,
1 have shewn that tln'v have answereii themselves on every one
'II of the contentions put forward.

I submit, therefore, that there has been nothing shewn under
this chapter upon the uncertainty of sealing which controverts
the position of (Jrfat Britain or supports the arguments made
bv the United States Counsel.

fppp

884

(Mr. Bodwfll'H Ar>{ument.)

THK Dl'llATION OK THE SkAMNO SEASON.

The next miliji-cl to which I witih to direct your Honors'
attention is tiiKt whicli is liiHcnsMiMJ in tlie Ar^tnnont of the
Unittij States untie» tiie head of " Duration of Scalin^j Sea'^on in
Hehriiip Sea," and I siihniit tliat tlie eocnsel upon the other side
10 liave not appieciatfil the character and s-jope of the argiiineiit
which has lieen ads'anced on helialf of (treat Britain upon this

roint. In order tliat our position may )ie fully and fairly stated
shall shortly ^'o over tlie ^ronml we have taken and tlien com-
pare uui ur;;iiiueiit wifii the inferences, your Honors' are askecl
to draw fi nni tliiit portion of tlie evidence (pioted in tlu< Argument
for the United States.

Tliis .suljt'ct is eonsideied in our printed l)rief he^dnnini; at
p.i;.'e ()7. 'I"he tirst position we takt? in tliat ar>,'unient is tliat
althou^'h senlin;; in Hehiin;; .Sea was practically hegun in the

20 year IfSStJ, there was a jrieat ileal of iiiforiuation concerninjj the
C'Jiiditions of the weather there, which had heen ac(|uired and
was possesseil hy |)ersons in Victoria for many years prior
to that time. It is in eviilence, that a j;reat many whalinj;,
otter, ami walrus lHiiitin;r voyajjes had taken place in that sea,
and had heen prosecuted for a yieat iiumher of years prior to
the lietjinnin;^ of sealinj,' in 1880. For iiiitance, w« have in the
evidence of ('apt. Miner, who was a sailiiifj master of considerahle
experience, ami is a witness very nmeh relied upon hy tlie Uniteil
States, that he was on the const of California otter hunting.; until

•SO 188(1, and then he came north and went to the Kiirlie Islands,
that afte''wnrds lie witit to Snn Francisco and the next voyajje
he was up the coast sealiti;; in the Hehtin.' Sea through to the
Aleutian coa>-i liown to Okotsk Sea and then to Yokohama.
That was in 1881. In 188(1 he l)roui,dit the ' Penlope " from
Yokahama to Victoria at ihe end of the otter huntinir voyajje
and came throiiyh Piehrin;,' Sea late in the season. We have also
a reference here which is incidentally of considerable value upon
the k'nj,'th of the seaiinj; season, fcr we find in these years,
accordini,' to ('apt. Miner, that they fitted out for lengthy

40 voyajfes. At pai,'o .")4"1. Vuw 20, speaking of otter hunting;
voya;,'es in 1881 he is asked ; "So then you tilted out to hunt
otter from the 1st of March until the 1st of Septemher," and he
answers, " Yes, until about the latter part of September.

It also appeals from the i-videiice of Capt. Rayiier, at paj^e
4!*2, line 25, that he was in Hchriiij; Sea three years before 188().
Thc^se were otter huntin<; voyajjes. On cross-examination, at
paj^e .")20, line 30, you will fiiiil the statement that he was in the
schooner " Otter " in Hehrinf^ Sea in l.'8() ; that ho went in there
sealiii;^ before, but not sealinj^ alto;;ethe'- ; that he went in otter

50 hunting; and hunted seals for about six weeks. There is also evi-
dence to show that there must have been in the nature of thinfjs a
considerable amount of information <,'atheri'd toj^ether respeciinij
that sea i)rinr to 188(!, when the matters occurred which have
«ccasione<l the sitting' of this Commission.

Referring again to this scht'dule printeil at the end of Volume
2 of the American Reprint, you will find a list of vessels that
took seals in Hehiing.Sea from 187') to 1S92, and that list shows
the following state of affairs. In l87o, 1 vessel ; 187(5, 1 ve.s.sel ;
in 1878, 1 vessel: in 187!», 2 vessels; in 1880, IG vessels; in

(iO 1881, 12 vessels; in 1882,1.") vessels; in 1883, l.lves.sels; in
188', 11 vessels; in 188.'), 15 vessels.

Mr. Lansing: — I am sorry to interrupt you, but I should like
to know when ami where that was put into the Record.

Mr. liodwell :— I did not know, but it is in the evidence some

25S

(Mr. BiHlweU'H Argument)

wliere, mid even if it were not, I do not .see tiiiit tliere is any
oljection to my refcrrinjj to a .".tatcment prepared liy tin; Uoited
States for their own use and wliich is iindoiilitedly corri'ct.
Tliere is no dispute that tliese vessels went tiiere just as th«y
are statetl in this scliedule. It is a useful scliedule and ijives us
a jjrent deal of information.
10 Mr. Lansiiifj: — I ask the question for the reason that tliat
schedule was prepared under my direction and it lias no reference
to Beliring Sea.

.Mr. Hodwell : — I see that it i"" an error on my part. I have
always understood that schedule related to Behrinj; Sea entirely,
hut 1 am willing; to tai«' my friend's correction. I am sorry
liiat I did not notice that partieuliir fact in ci)nnection with the
>ehi'dule, .vnd I am sure tiiat what I said will not mislead the
Commissioners. I may ^o tliis far with perfect saftjty ; tluit
there had lieen a numher of voyaj^es mad(! to Bchrini,' Sea prior to
20 ISSd. That whaliii)^ liad lieen carried on for a numher of
yi-ars is not denied, and is referred to in tlie evidence which I
shall read shortly. Victoria, under the eireumstances, would
naturally he a place where tliisniformation would lie ^'atliered to-
j,'ether and Itept in uund. ('apt Warren, .Sprin;^ & Co., and
other persons were en^aj,'ed in sealitifj off the west cnast
of Vancouver Island, and tliero were several persons tra-
dinj,' up the coast to the north. The Hudson liay ('ompany
always had a post at Victoria and were extensively enijta^ied in
hnyinf^ furs. Mr. Luhhe and others had estahlishments there
30 anil purchased turs. These men wouM in thr? ordiiuiry eoursi' of
their husiness acquire eonsiderahle information a))iiut l!ehiinf(
Sia and the weather there, and esppcinlly in IHS3, when Mr.
Luhlie houi^ht the catch of of the ".San l)iei,'o" and in lcSH4 and
ISS.5 when other vessels sold their catch at Victoria. From the
vei-y fact of these voyaj^es, and the j)rf)fitahle results of tht;m an
e.xcitement arose, and what may in collcquial language be called a
" boom," in sealing spranj^ up and caused inquiries to be made.

Your Honors will, in consideration of these facts, be prepared
to accept the statement of the witness Gerow wlien he was e.\-
K) arnined upon that point. At page 1404, line 31, he says : —

" Q. You say tin; wdialing vessels haii told you that there
'■ was Hne good weather in Behring Sea in Octolier i A. Well,
" I have hearil it on whaling vessels, and I have heard it for the
" last 12 years.

" Q. Prior to the year hS89, liad you heard it from any one
'■ else except wliaiing vessels ? A. Oh, yes.

" Q. Did you hear it from sealing vessels ? A. Well, it has
" l)een understood by lots of people here that in October—

" Q. I am not asking you what otlicr people understantl.
."id " What is your understanding ' Did you hear from anybody
" excepting the captains or mates of whaling vessids prior to IJSSft
" that there was good weather in Behiing Sea in (Jctober ? A.
" I have heard it generally understood that there had been
'■ months of October in Behring Sea that has lieen the best month
" in the year for sealing, and plenty of seals, too.

" Q. What boat told you prior to 18X9 that there was any
' sealing in the Behring Sea in October ; what sealing boat ? A.
" What whaling lioat ?

" Q. No, sealing boat ; did you hear all this information front
(10 ■ whaling ships ? A. I have heard it from whaling boats and
• also from plenty of men in town.

■ Q. Please confine yourself to a period before 1889; did
" you hear any sealing captain say iief'ore then that there was
' tine weather in Behrini; Sea in October ? A. I have heard it

i>'

^w\m

2A6

(Mr. Hodwoll's Argument.)

" niiiDn^ til)' Miilors. I ilon't ilnntit luit wlint I have licnril it
" from Mealing cnptttitiH too, Imt still I wniilil not Nwoar to it.

" (.^. Do vcdi now lofrr to latt-r yimrN, or to yearn prior to
" IHMl)? A. " Prior to it.

" Q. Did yon lit-ar prior to IMS!) any <<j'alinf{ captain say it f
" A. 0]\, I hav«' licnril it licru !.'> or I(! yoars a>{0.
10 " (j. I>iil yoti hi-ar any sunlin;; captain prior to l.SNO Nay that
" hfi wat in lii'hrinK Sua in Octitlii-r ? A. No, all information
" wflH fiom whnliTs."

Tlio inforniiktion roniiiii; from whalitrs wan just aH ^oml us
information coming from any other vcsmi;!-' or persons, liccausi; it
relatfil tn tin- weather in iiehiin^ S^n.

I liuve called yoiir lloriors' attention to tins eviduncii and to
the surrounding ciieinimtunces to show that as Ion;; a^ro as |.*> or
It) yiiiH prior to IMSfi (here was in Victoiia amori^ thoNe piirsons
un^aj;iil in the l»U'<inesi, knowled;,'(i that vessels of a hI/i;
20 and character, similar to those used in sealin^r, could remain in
Ri'hriiij; Sea in the month of Octoher without expericnciti;,' any
disaster.

Advanein;,' anotlifr step in the order of Brf,'uuient, we say tliat
vessels of that size af^l class actually did renutin in Hehrin;; Sea
until the lie;;innin^, vlie middle, and almost the end of Septemlier.

The (.'omiiii-sioner on the part of tin; United States : — 1 do
not nnw leniendier a si!i;{|e case during the years of controversy
where II vc'ssel lemaiiied sealiii;; Up there after the la.st of August.

.Mr. ISddwell :— No, the reason was ther were seized and taken
:{() awiiy. If they had l)een allowed to stay they would have
remained.

Mr. Jjansin;; : — The Mollie Adams" remained in the Sea
until Oetoliei-.

Mr. liodwell :— V'es, she hunteii on the islan<ls. I do not know
as I (jiiite understand your Honor. We have several instaiici's
of vessels remaining; in the Sen and catchin;^ seals in Septemher.
Theie are three cases, and I think I will have occasion |fiter to
refer to them.

The Commissioner on the part of the Uniteil Statt-s : — I did
40 not mean to anticipate your atiswer, hut I wanted to tix it in
my memnry.

Mr. Hod well : — In l.SMSthe" Mountain Ciiief " remained initil
till! 7lh of Septendier. In 1H90 the " Sea Lion " remained in the
Sea until the I4tli of Septemher.

The (Commissioner on the part of the United States: — In
1«9(), l«!»l, and INO'J, they hegan I,) protract their voyaRcs.

Mr. Hodwell : — Hecaiise tlusy weie not seized. Hut the point
I am on is this, and for that leason I suhmit that all the eviilence
as to later years which was tendered was material ; and a
50 great deal more of il might have heen tendered and perhaps
would have heen received if this point had heen taken into
consideration, that conditions of the weather were no ditferent in
18!»2, 1H!)3, IH!t4 or l.S!)."), from what they had heen for
many years hefore in Hehring Sea. And if it is proved that
the conditions of the weather in later yearn was tliat ves-
sels of the class and character of these sealing vessels could
renuiin tliere and catcii seals in Septendier and Octoher, our case
is strengthened, when we prove that wdi(!n our vessels went there
in 1<SS() they were fitted out to renuiin that lungtli of time. The
00 fact that similar vessels remained in later years helps our con-
tention that our vessels would liave stayed till the same period
in \HH(i and 1H.S7. It is demonstrated heyond all manner of
douht that there was nothing in the weather itself wliich would
have made it unsafe for vessels of this size and character to have

(Mr. lloilMcll'i ArKUiiiDiit.)

r< inaineil tlixiu up In tlie latter piirt of Si>nti-iiil>fi'. At tlii!4!i(H){i!
I wish to refer to tliu eviili.-nco of ('apt. Miner, on pH;;<« .'I'l.S, line
.;J. Speakinj; of the war IHiK) he \h asked : —

" C^. What time iliil you leave I A. I left tliitt year in
Septenilier.

' </ Wliat tiiiie ' A. The Hrnt part, aloii^ llie Hrnt prtit of
|l) Scpteniher.

" t). Von tlnn't reniehilier (lie Week f A No sir, I dont
I'.'Uieinlier the Week."
Atiil then further alun^; on pn^e .*>.')!), line ',i'2, spuakiii^r of
I >'M. he in H<4kei| :

" <^. What tini)! ilid yon reach the Sea ' A. I foryet the
date I reached Onnala^ka, hut I reached the sealin;; LjroiHid or
lii';ran Nealini;on the lOlh of AugiiNt.

" 1^. And how lon^ did yon seal in that vicinity ' A. I
•sealed tlie rest of the season in that vicinity, within 7<) or NO
•20 niile.s.

" (}. And catnu out of the Sea when f A. I came out of the
Sea, if I rememl)er rij^htly, ahont the l.'>th of Septomher."
.Mr. liansiri}; : — Is he .speaking of Hehrin^ Sea i"
.Mr. Hodweli : — I think there is iio dnuht whatever that lie
MIS speakinj; of liehrin^j Sea.

.Mr. LauHin^ : — And what year was h '

.Mr. Kodwell : — It does not appear to lie just there, hut I think
it was in I SUM.

Mr. liansin^ : — It is in the year 1H!(4.
;t(i Mr. Hodwell :— In 1S!»0 the " Sea Lion " took .'{00 seals in
I'udiriny Sea in the month of Septemher, continuing her opera-
tions until the 14th of the month. In l.S!»0 the "Viva" took
•.'(»|."> seals, 80 of them in Septemher.

There is also n statement of (Japt. Alexander to this ellect on
|piii,'e 4^1, line JJ4, where h.; says he was in Hehrini; Sea in IN!).")
lip to the 22nd day of Septemher.

.Mr. Warren : — That was after these seizures were made.
.Mr. Hodwell : — But that does not make any diH'erence. That
i- the mistake my friends make continually. The fact that this
40 c vidence relates to other years does not weaken it at all, l)e-
(■aiisu when we demonstrate that Ihe weather was such that
vissids could remain in that locality until the latter part of
Si'pteinher, and wlien we show that our vessels were Htti.'il out
to remain that time, the ar<{ument is a fair one that if they had
licit lieen seized they would have stayed in the Sea until the
latter part of Septemher if necessary to complete their catch.

.Mr. Dickinson :— Your Honors will rememher that that
1 vidence was excluded which related to the years after ISDO. and
therefore we did not meet that evidenct! because it was ruled
.'lO out.

The (\)mmi.ssioner on tlie part of Her Majesty : — I know we
I'Ncliided evidence of the catch after a certain tinte. Hut as to
wliether it extended heyond that I am not now prepared to say.
The C'ommissioner on the part of the ('nited States : — There
IS evidence in the case showinj; that the lenjjth of the voyaj;es
increase<l after the seiz'-'re was made.

The Commissioner on the part of Her Majesty ; — I think the

liest way is to let it ^o as a matter of argument, hut simply call

attention to it. I remember that we did rule out the evidence

i>l) lit' catch after a certain year, and that it was not to he taken

into account in making up any average.

At half-past four o'clock the Commission rose.

IMailH!' '

Oommissloners under the Oonvention of February 8tl:

1896. between Oreat Britain and the United

States of America.

I^rjjisliitivo Council ('Iihiii'mt, l'i(iviiuMnl UuiMinj;,

At Halifax, Supt. 4tli, IHUT

At II. A. M., till' CiiiiiiiiiHsioiiurM took tlicir m*iitH.

Mr. Dic'kiiisiiii ; — I tiiiil on <■ viiniiniitimi of the K*'coi'>l. iniiy it
|>li-iis(> the ( oniniiNMionft-M. that I was corntct in my statuiiient ii~
to the I'liiiri); iniiil(> at tliu lii-iiriii;;, and tliat tlif ruling; wa^
a;;niiist tlic rnitcil States on tliu <|tii!Hlion of );oin^ into latii'
j'l-ai'H than ISSM) — not only as to tliu eatnli, Imt as to tin- Hcasdii
20 an<l all other i|n(>siions hearing tipoii thoso yc^ars. At |ia^r
12.'>4 of tin- llu'coni this (|ii(!stion was aMkcil— Do yon know
wlu'n till' Hca.sitn closi-.s now <

" (Mr. Kay nor in on tint stand.)

" CoiiiiMfl for the Unitod States ;—" That lias Ixivii riiltid uui
•' ln'forc."

'■ Sir (.". H. Tn|)()ui': — " I <lo not think soon uross-nxaniinatioii

" Then," Thf Coinnii.ssionur on the part of the United Stiiifs
" We havH Iteen pi()i;eeilin;; on the line of excluding; any tcsti
" inony v'f this kind after the year 1M!)0."
;}0 yi>' ^' H- Tuppcr: — " It seems to me that I have the rijjlit tn
" a«k this i|iie.stion. This witness was asked to jjive his "pinicin
" a.s to what wa.s the close of the sealinj; season.

The ('onnnissioner on the part of the United States:— " But li
".sides have heen very inconsistent ahout this matter. Mr
"Lansing; tir^t pot a <|Uestion uf this nature, and the Coin-
" missionerH rnled that it could not he put. Afterwards
"another i|Uestion was put relatin<; to the years subset |Uunl tf into anythini; which occurred since
40 1S!)0, except with repird to one or two nnittcfrs which have
" been specially reserved. It is perfectly apparent that tlu'
" methoiis of the seiilinij tieet changed between 1 HUG and iH!)0.

Mr. Dickinson: — "We were prepared b}' our witnesses to j;i>
" into matters relating to the later years, but we were preclutlcd
" from duiiij; tliiit."

The Commissioner on the part of the Uniteil States: — " If mv
"learned fiietid. Judge King, thinks it will aflbrd any light on
" the subject I will jcjin him in allowing this evidence. For my
" own part, it appears t') me that it is a waste of time to go intu
50 " evidence regarding these years since 1H!((), l)ecause, as I have
" .said, it is very apparent that the methods of the sealing lleil
" have thangeil since then."

Mr. Dickinson : — ' We were precluded from giving evidence
"us to the events after the year ISOO, ami as to conditions
"existing since that time. We thought the conditions hud
"changed, an<l we bowed to the ruling of the court, and did mt
"elicit such eviilence from onr witnes.ses, who have now left.
"Our witnesses have been discharged and it would be maiii
" festly unfair to the United States to re-open this (|Ues-
(iO " tion now."

The Commissioner on the part of Her Mi'jesty : — " It seems
"to me. Sir Charles, that it wouM lie advisable not to press this
" evidence. There has Ijeen a ruling which seems to have
" covered such ea.ses hs this."

if,'.)

(Mr. Hiiilwells Ar^uini'iit.)

Tliiit liml rffcrt'iicu to tin' i-losiii}; til" tin* mi'hsdhs for t' o
|iri'viiius yours. At piisoH IH.jO to iMl, iiiclusivi', and piiiti-
culiirly III pa^eN iH'Hi iiml |H'>7, thu iiiiittci' whm iipkiri <liscii>4st.'il,
iiikI Sir CliarloH Tuppor j)r<x;«)fc It'll tt) i)Ut in this tvsliiiittny. I
refer to tlie .tt>Htiiiiot)y un'eretl wliuii tlit; iliscusMion eoiiuiit'iieeil
lit px^t) 1H'>(>, tin the Attempt ti) put in eviijeiu'e (if 1MD4 liy
10 (Iticunientnry prtMif. I ctintinnetl the rciulin^.

"Tile ('tiiniiiissitiiier im the pnrt of the I'liitotI Htiiti'H : — In
"nut thin nither lno iiitiilern history fur us:* Whut is tlui
•' ihite tif it r

•• sue. II. Tnpper: — It it ti.uci in 1S1I4."

Mr. Dii'lxinstiM :— ' This is tlDnhtless put in nn an niliniHsinn tin
" the piiri (if the Uiiiteil States with re;;iir(l to th.- linliits of
" the seiilH."

"Sir V. H. Tnpper; — Of ctiurse, iinil it is very iin|Mirtiint, hi'-
" cause thoy knew actuiil!}' iiiort! iilimtt it in iHiH than they tlii|
20 " in If<S7." Tlitii tliere is iinollier oxtnict wliieli remls us
" follows, &('. :

" Sir t'. II. Tiipper: — ('onr< nii'ijj thesu referenoes. We will
"strtinjfly ctintentl ihit they are • iluiilile, aiil they are more
" valuiihle in \H',)i than they ci>nl<l le at an earlier tjatc "

Now comes the ar;;iniieni anil thscussion ns ftillows:

" Mr. Dickinson :— If this "s allowotl in we as ill have to put in
"eviileniro as to the catcl all these yeiirs. This is at pH;^o

" 1«5fi"

" S r (' H. Tnpper —This h is ii irlim;; to ilo with tliu amount
:{(» " tif the catch."

" The Commissicjner tm the pm I of the United States: — This
"matter lias tieon l)efore the Coniniissioners on two or three
" occasions, and it has been ctiminonly untler.stood that the
" t/omnii.ssioners wore not disposed to jjo into cs idi'iice as to the
"ctjnditions after IH90."

" The Coiiunissioiicr on tlu^ part of the United States a;jain : —
" It .seems to me that the evidence we have had frtim witnesses
" in the imx in regaril to such matters is more valuable than
"anv ovitlence that couhl lie put in this way."
40 "The Coinniis.sioner on the part of Her Majesty: — I think
" whiit \ve have saiil anti tlone heretofore on .somewhat similar
" matters will really prevent us from receiving; this evidenci!."

And the conclusion was to exclude it because it related to
matters in 1HI)4.

Now, of course if the testimony of l<S!)l-()2-0:l-!)4 iintl sub-
.set|iieiit years was of value to my learned friends tht-y would
have put it in lt)nij heftire this from the eijrhty or ninety wit-
nesses they hatl at Victoria; hut it seemed that thu comlitions
were so ratlically diH'erent that it woultl not be competent. We
',0 oH'ered at another place in the reconl, to which it \* unnecessary
to refer ( I refer not ti all the plautis in the Rjcor 1 liut simply to
the rulings) to show that in those years tlie catch, by reason of
the shortness of the season, was very much reiluced.

The Commissioner on the part of the Unitetl States: — The
general rule is tpiitc strongly fixed in my niin I. Still, I liati
a sort of impression, which it seems jierhaps was entirely
wrong, that there wa.s some evidence shewing the length of
the sealing voyn .,oh in .subsei|uent years.

Mr. Dickinson : — It came up in the cross-exaniiniition after-
(iO wards in the matter of te:.tii'i,' experience. It came out in the
Alexander evidence.

The Commissitiner on the part of Her Majesty: — That is
what I hatl in niiml. I think the tpiestion came up tirst then.

The Co!niniH.sioner on the part of the United States: — So far

-i"

iij,^

i| ;

• I

■I. ■ K'

I il

wm^F

•2(iO

(Mr. Hod wall's Arfjunieiit.)

as I mil conci iiit'il I woulil liave to iippciil to tin Record ; I
would not iliiro to tnist ni}' iiieiiioiy.

Mr. Hodwell : — Mr. Alexiiiider, however, wlio wuh culled liy

the United States, wiisexaiiiined nt ijreat U'lijjth with reference

to tlie hal)its ol' the sml, and cross-examined ill.so at ^reat

len;;t)i, and it was in this cro.ss-exaniinatinn tiiat this (|uestioii

10 came ()\it.

Mr. Dickinson: — That was heeauso he was an expert: not
nil the duration t>i" the -('ason. You had the rij^ht to test liim
in every respect lis to his expertness.

Mr. Hodwell :— That is exactly the position I am puttinjj
here. 1 say the climatic conditions in Hehrini; Sea were
known to he what I have stateil, from the repoits of whaliii^j
and other cai)tains in the year iMlSti and hefoie that; that the
experience of later years has shown that that information was
correct, and Mr. Alexander is a witness wlio«e evidence is to the
20 point. All that the evidence I (piott'd was [mw^ used for was to
estalilish this position, that the weather was such that sealinij;
operations cnuld he cariied on there at that time: snhse(|Uent
experience has jiroved it. We lay the foundation for the next
step of our iir<;uinent. hy showinj; that the owners outfitted with
the intention of reiiiaininj; dnriiii; that perioti tsuhseiiueiit experi-
ence shows that, if wo hud nut heen interfered with, we could
Imve remained and made the catches of seals which we claim.
It seems to nie heyoiul all i|Uostion that that evidence must
have iieeii material, and would have lieen received at any time
HO if till' (juestion had arisen and heen arj.;ued upon the.se lines;
hut tile |i(iint hefofi' tlu' Coinmi.ssioners prohahly was, whether
till' catch of later years was to he taken into coi'sideration
w hen consideriiis^ the (|iiesti()n of prohahle catch of 1XH(! and
ISX7. With reference to what my friend has just stated that
we mi^^ht have called eijjhty or ninety witnesses on that point,
I cnll ids attention to the fuct that it was his case to make out
that the sealinij season closed on the 'li'tth of Atiyust. Wo
Were claimiiiff for a certain amount of prohable catch. He
says: You cannot make that catch hecaiise your sealin^j
40 seai-oii wotild have ended on the 2")th of Auj;ust. That was
his case: and our eviileiico, in .so far as we gave it, was rebuttal.
For instnnce, we attem])ted to put in the report of the Secre-
tary of the Navy, which was ruled out upon my friend's
ohjection on the ;;rouiid that the Commissioners hacl already
decided — and it seems to me that was an ohsorvatioii made
witlKUit considerntion--that for no purpose whatever could
any evidence of that kind he introduced, whereas there is
no doubt, upon more careful consideration, the Commissioners
would have annniiiiced that for many ])urposes such evidence
!){) was material, ninl necessary for a proper consideration of the
ca.se. However, this evi<li nee I (|Uote wont in without the
sliirhtcst objection. (hi cross-examination of Mr. Alexander
tliere was no (|Uestioii raised.

Mr. Dickinsiai : — liack of all this is the ruliiii.; of the Coin-
mis.sioners. Can you put in testimony where we were shut
out by the rulings of the Commissioners :'

'I'he Commissioner on the part of Hir Majesty: — On the
face of it, the rulinij to which you have referred seems very
broad, Mr. Dickinson ; 1 must sny the ruling:; seems to cover the
CO ground on the face of it.

.^ll•. Hodwell: — The other evidenci! was not in; this (!vi-
deiice is.

'I'he Comnii^siitner on the part of the I'nited States: — Do
you not think, Mr. Hodwell, that there is sullicient evidence in

2(>1

(Mr. BotlwellKN Argument)

■ : .1 lilt (d

1 It'

1':

^ Ml; 1

lliis lai'ffe Uoconl which is not contuxted on either siJt; with
reference to that particular iMsui>, to enable the coiiit to tiniler-
'^tanil all the issues ?

10 Mr. liodwell; — I have .said, Your Horn ir, all I intend to Hay
on that point, and following the very line of Your Honor's
Dlwervation, there is other i'\ idence in the Record I would
very much like to have quoted, l>nt I did not (juote simply
lu!cause it ha<l heen oljectfd to, although it seemed to nie I
might present a very strong argument to you to re-consider
the decision as to its admissibility; init this particular piece of
I'vidence was reeeivt-d without objection of any kind, and wius
dl'awn from the very witness they called ; his own experience
began then, and the fact which comes out is the foundation

'21) for the experience. Surely it cannot be .said that I am not at
liberty to u^e it at all under any circumstances, especially
when Your Honors must consider it so relevant and pertinent
to the casi.'. Tlie climatic conditions of Hehring Sea to-day
are what they were one hundred yens ago. at least so far as
the evidence goes. •

The Commissioner on the part of the United States : —
Kvi<lenee comes in for one nurpose, and it may be vyiy
(|Uestionable whether it can 1«^ used for other purposes. I
rememl)er very distinctl}- the general rule we adoptetl. I think
;i() .ludge King and myself fully concurred in that after rotlection ;
but as to the application of it to that particular pii-ee of
.•vidence. I will have to trouble the counsel to refer me to the
Record, because I would not dare to trust my reeollection in
such matters. It seems to me, on tlie.se generid questions,
there nnist be enough in the Reeord, to which all counsel agree
as proper for the ([Uestions you desire to discuss, to enable
us to uiiderstand them, without pressing the matter to such an
extent as to compel us to examine the Record.

Mr. Dickinson: — If that was the general rule, and it was
40 against us, to what end do we argue that the court was wroiii;
then, HO long as the court cannot send it back for new trial
when it was against us ; because we are precluded from intro-
ducing testimony on the point.

Ml'. Hotlwell : — I do not propose to deal with that subject
any further or to refer to that evidence again. I have said all
1 liave to say about it. I did not think when I (juoted it
that my friends would take the position they now do.

The Oommissioner on the jjart of the United .States : — We
have enough in the Record to enable the Commissioners to
.'lO dispose of the matter properly.

Mr Hodwell : — When the court adjourned yesterday, your
Honors, I was proceeding with the evidence relating to the
question of the outtitting of the vessels in XHHi't. Those vessels
were the "Carolera," "Thornton," " tJnward," "Favorite" and
lilaek Diamond." With reference to the " Carolcna," as I was
stating when the court adjourned, there is no ([uestion at all
on the evidence but that she was abundantly supplied with
provisions. I yesterday quoted Mr. Mun.sie's evidence where
he speaks of what he understood would lie the length cf her
(io voyage.

The Commissioner on the part i5f the United States: — Vou
are now on the intended length of her voyage >

Mr. Bodwell: — Yes, may it please your Honoi. There is
also evidence which is (juoted in the Uniteil States Argument,

i 1!

.1^^

'W .i^

' I-

■iiJ-

2(i2

(Mr. Bodwcll's Arijuiiii'Mt.)

and wliicli I will f^iveyou later on, (l)iit for tlie sivkc of avoiil
iny repetition will not refer to it yet) of Cotsford and Mtinger,
Munjier was not a hunter, but a seaman on board the " Caro-
lena." This evidence shows the ien<jtii of the intended vovmki
as it was spoken rif by the (.'iiptain during the voyage. \Vitli
10 reference to tiie " Thornton " — ■

The C'oniniissioner on the part of the United States: — I will
be exceedingly oblijred to you if, on this particular (juestion,
yon will refer to the K-jcord as often as you can, and read the
exact testimony; not at this instant, but I mean generally in
<liscussing this (|iiestioii.

Mr. Hodwell :— The evidence of Mr. >[unsie I gave the pagf
and line of yesterday. The evidence of Cutsford is ([Uoted in
the I'nitid States Argument at page 2.S2 ; in the Kecord, page
377, lino l(i. 'i'he (|Ue>tiou is : —
20 "(}. Do you know anything ab'jut what time Capt. Oglevii'.
or <iiil you hi'iir anything about the time he was preparing to
leave the Si a f

" A. Somewhere about the 20th or 2;{rd of August, I believe."

The evidence of .Munger, which is (|Uote<l there, and at |)igi'
(i:{(!, line .'{:}, of the liecord, is " In the Sea the Captain talked ol'
going home abor.t the end of the month (of August)."

On cross-examination this witness .said: — " Q, Will ynu
swear whether they saiil ' about the end of the month ' or ' 2()tli
August ' ' A. No.
;iO "',•. Vou ciinld not say which'' .\. No, not as to the
" date "

'i'hat is all wi? Iiuve as to the " Carolena," and our case upon
that point will have to stand on that evidence,'. With refer-
ence to the witness Cotsford, I shall argue to your Honors ,it
a later stage that, if there is an}' real ditlerence between hi--
evidence and that of Munger, the eviclenee of .Munger is to bo
preferred for several reasons.

Now with reference to Captain Warren's vessel, the " Th(jrn-

lon, ' we have this statiMuent from him, beginning at the bottom

40 of page i'OfS. He li.-id a lleet of vessels as yoiu- H<aiors will

renu'ndier — sever.il vessels in the year l>t(S(». the "Thornton'

WHS seized. .Speaking of that sehooniM-, he says :

• <,> In ISSl). taking the su])plies you hail on the vessels
yiMt b.i\e mentioned, bow long did you arrange for the cruise,
a criiis- (iT the various vessels in your tleet < A. " My inten-
tion wa. to liiive staved in the Sea until about the end ol'
.September.

"(,t. Ami taking the supplies you had, are you able to say
" that they woul<l have held out for the full scii.son :" A. Ves,
■')() '• |)lenty.

' <,). H.ive you any doubt alriut tliit whatever ;■ A. No
" doubt wliate\ei-.

" (j>. And y 'U >o arrange<l :' A. So arranged."

The Connnissioner on the part of the United .States: — Tli.it
was ('aptain Warren, and diil he go up with those ve«.sels :'

.Mr. iiodwell : — He went on the "l)ol|)bin" and came out
bec.iuse be was afraid of seizure. Now the " Thornton ' was
a small vessel and there was not sutKcient su)»plies on her: liul
Llie re-t of the I'videnee shows that he had taki'U an extra
()() (|uanlity ot' sujiplies up m the " Dolphin," and Ii.'kI arratiged
tli.'it the ''riiornton" sliouM meet the "Dolphin" in llehring
Si'a and refurnish her with sii|)plies if necessary. This is on
the same l)ige of the l{( rd, beginning at line .'{2. '

" (,* What .-irningemeiits dill vou mike with regard to out-

\,m»^-

•JO

2(i:\

(Mr. Him I well's Arguiiifiit.)

•' Htting the" Thornton" tlint year ^ A. I took extra supplies
" on hoanl the " Uolpliin " to {;ive her in Helirinj; Sea.

' (^. You hat! extra supplies for the " Thornton " on hoanl
" the " Dolphin".' A. Yes.

" Q. What was your reason for not puttinj; the full supplies
" on the " Thornton " for the Behriiifj Sea voyajre at Clayoquot !
" A. They were cramped for room."

" (). She was a small ves.sel ? A. A small ve.ssel.

" (). What arranf^enients did you make so that you coulil
" replenish the " Thornton " with supplies ! A. I arran^jjed for
" the Captain to meet me in the Helirinj Sea at a certain time
" and place so as to j;ive him any supplies he wanted.

" i). Where did you have this understandinj; ? A. In
" Clayoijuot is where I made the arianfjemcnts with the Captain.

(,). And as a matter of fact you sulisecjiiently met the " Tliorn-
" ton." did you not ? A. Yes.

" (). And met him at the mouth of one of the entrances ?
•' A. ^'es, met her at the mouth of one of tlie entrances f

'if. And you towed him in. A. Yes.

" (j). You were on the " Dolphin " an! you towed the " Thorn-
" ton " throuijh the pa.ss f A. Yes.

" Q. In these various years, when you were huntin;^ with your
" lleet did yoiu" vessels work comparatively all toi^ether, or was
"every vessel inlep'iident of the others A. We always
"expected to assist one anotiier, and whenevtT we j^ot time we

;)0

dill.

<.»

A. They

the Tnited States : — I
season, hut I did not

Your vessels were on the siine ground ?
were on the same oast tofjether.

"i). And when you entered Hehring Siia, they entered about
" the same time / A. Yes, just alx)Ut.

" Q. Hail you lieen in the hahit of replenishinsj the other
" vesselH of your Heet from the "Dolphin " f A. Ye.s."

Then he <^oes on with the evidence I read Just a moment aj^o,

which shows that, with reference to the " Thornton," provision

was made for keeping her supplied, and the intention when

C'aptain Warren left with all his Heet was to remain in the sea

K> until about the end of September, and he had so arranged.

The Commissioner on the part of the United States: — He
took up his whole fleet that season ?

Mr. Hodwell : — I think so.

The Commissioner on the part of
I'emember that he did the second
remember about tbnt season.

.Mr. Hodwell: — I was about to say, Your Honor, that no
doubt tills arniugeincnt was made, as I s;iiii yesterday, for the
reason that Captain Warren, in the nature of things, would
.')0 have had the information which (ierow says he and other
people had in Victoria, about the length of fair weather for
sealing in liehring Sea from the experience of whaling and
other vessels which had been there before.

The "Favorite" and the "Onward" were owned and con-
trolled by Spring, although McLean had an interest in them.
It must be considered that all information which was in the
possession of Captain Warren would also be known to Spring,
for he had been engaged in .sealing, and his father before him,
for many years at Victoria. He gives evidence with reference
(iO to his intentions in regi;. 1 to the "Onward" at page 804,
line 2,S.

" Q. Did you, or did you not, give your captain any instruc-
'• tions as to the length of time he should stay in Behring
" Sea > A. Yes.

I ,

• ii (I

\\H

|l (i

.1.

!|-|'

! f
ii

mum

264

(Mr. Bod well's Ar^nniciit.)

"Q. Will you he kind enough to tell mo what the iniitruc-
" tions wer*! ?

' A. The inntructions were to the etfcet thiit he xhould proceed
" to Hehring Sea and continue there a« long as poAHible, and to
" he hack some time in the month of September at any rate, to
" he guided in a mt-asiire by Captain McLean — on 'he schooner
10 " Favourite " at that tiine. They had agreed to meot in Behrinjj
" Sen.

" Q. This would l)e which McLean ? A. Cuptain Alex-
" ander McLean, who wns then master of the " Favorite " in
" 188(!.

" Q. For what length of timo did yon provision the vessel ?
" That i.s when you were at Kyuipiot ? A. Well, they had
" instructions to take everything required to enable the vessel to
" gpt l>ack to port in Victoria some time in September.

" Q. Some time in September^ A. About the middle,
20 " the 10th, 15th ; about that time."

Referring to the case of the " Favorite " which went to .sea
the i-ame year, al paj^e 1302, line 50, Mr. Spring gives the
following evidence : —

"(}. Did you yive any instructions when the vessel was
" leavini; as to when she would leave the Hehring Sea ? A.
"Not particularly in the case of the "Favorite." Knowing
" that i'aptaiu Alexander McLean was captain and an interested
" party, I took it for ijranted that he would use his own judgment
" anyway to the best advantage.
30 " <,> Did you as far as the other ves.sels were concerned ?

" A. Ves, sir, the "Onward" had my special instructions.

" (}. Had you any conversation with Captain Alexander
" McLean as to the time he would remain in the Hehring Sea ?
"A. Ves, I feel 'certain that I must have had some con-
" versation with him, but I cannot bring to my mind any time
" in pa ticular, or anything particular 1 said. I do not know
"exactly what words I did u.se but there was an understanding
" l)etween us.

"i). To what etieet was the understanding? A. That he
40 " was to stay as long as possible.

"(>>. As long as possible. As long as the weather would
" permit ? A. Ves. '

Captain JIcLean himself is also examined. At page 133,
line (i2, he says: —

" <^. Was it not your intention to remain sealing for as
" long as the .sealing would remain good ? A. Yes, sir.

" i). And as long as there would be seals ? A. Ves, as
" long as I woulil be Justified in sealing there.

"Q. And you hail enough provisions on the ves.sel to enable
50 " you to do that :' A. ^'es, I believe I hail.

" And j'ou could have remained until the 1st of September <
" A. Ves, sir, if the weather would permit."

Mr. Warren — Kindly rend at page 13:13, line 44.
Mr. Hodwell — It is as follows: —

" i). When you left for Behring Sea in 18S6, as master of
"the "Favorite, " when did you intend to get back? A. I in-
" tended to be back here between the 1st and 10th of
" September.

" (). Had }ou any special rea.son to get back at that time (
(iO " A. Well, 1 used to tit out for that time."

Now, when the facts are taken into consiclenition, that
McLean was an interested party, that he took provi.'-ions for
that length of voyage, and when, as I shall subse«|uently show,
the weather would enable sealing to be prosecuted with success

.'.(I

265

(Mr. Bodwell's Arpument.)

it wns a fair preHUinption tliat if McLean liad not been warned
or frijjhtcned out he woulil have remained, unless, prior to that
(inte, lie had made sucli a larjje catch that he would liave Ix'en
satisfied to return. Tiiat '.s tlie eonchision to wliich we come on
I lie whole evidence. That the .seal ;rH hml the provisions, and
intented to remain for that period, provided always that if
jO prior to the time referred, tliey had made a successful catch, they
would have returned.

That completes the list of ves.sels in 1S86. In 1887 we have
the ' Say ward,' the ' Anna Beck,' the ' Alfred Adams,' the
'Dolphin,' the ' Orace,' the 'Ada' and the 'Triumph.' Out of
this lot four schooners belonged to Warren, and in regard to
ids intentions for the year 1887 we have the evidence at page
1130, line 30:—

" Q. For what seasons had they started under your super-
" vision? A. In 1887.

" Q. Yes ; for what season — for what len<;th of time ; what
" were your arrangements made for ? A. Well, some of the
" vessels I don't know exactly how long I intended them to stay
" out. I intended some of the vessels to stay in the sea just as
" long as the weather would allow.

" Q. How long could they have stayed out under the orrange-
" ments you made :• A. The provisions ?

" Q. Yes, nml anununition, ond arrangement as to crews ?
" A. They could have stayed out to the end of October for that
" matter.

" Q. In arranging then your work and fitting them out you
" saw to it that they could do that, if the weather would permit ?
" A, Yes, it wns my intention to send some home with the skins
" anil keep some of them there in the sea."

He did not intend, so he >tates, that every vessel of his fleet
should remain, because it would probably be arranged that some
one vessel would take the skins and bring them to Victoria and
the rest would stay in the sea as long as the weather would
permit.

With regard to the ' Alfred Adams,' the evidence was taken
by deposition, and there is no evidence upon the point in
(piestion ; we will have to consider her case in connection with
evidence a<lduced in other cases.

As to the ' Ada,' I call attention to the evidence at page 1312,
line ")0, which says that she fitted out for the Rehring Sea cruise
on the 17th June, ami at page 1213, line 20, this evidence is
given : —

"Q. Did you take stock of the provisions yourself ? A. We
" were in port visiting three or four days for the Indians ; during
" that time we filled for water. I overhauled the store lists and
() " hai'. everything ready.

" Q. What I want to get at is this : For what length of
" voyage did you feel satisfied you were provisioned ? A. From
" my recollection now, after having gone through the list, I
" think about four or five months."

That would be about four or five months from the I7th of
June.

At page 1214, line 32, is the evidence of Captain Gaudin on
this point : —

" (.). Approximately, about what time would you have left
" the Sua ? A. We thought of staying till the first part of
" September at least."

" Q. Up to the ]5th ? A. Yes, later than that."

" (j. And on the 25th August your ship was seized ? A.
" Yes."

(10

'ff*

.;>!

>i*

II 1

\h(.

n i

il i'

mi-

2G6

(Mr. BotlwellH Argument)

"Q. For whftt len;jtli of time was your vessel proviHionorl (
" A. To the boHt of my judfjment I should think tlitit there was
" pk'nty of provisions for tiie crew we were carryinjj to lust us
" till the liejfinninj; or the middle of October.

" Q. As a matter of fact, had you provisions left when you
" arrived on the coast ! A. Yes, we had plenty left.

The little ' Triumph " was also in the sea that year.
Speakin;; of her, the witness Smith, at p. 1400, line 65, says:
" I had a thoroujjh understanding; with Mr. Byrns myself, hein;;
" on a lay that tlie vessel would be provisioned to such an
" extent of time that it would enable us to stay until we were
" driven out by the weather or could not find any more seals."

This is the evidence of a man who knew about the provisions,
and here is the evidenee of Mr. Byrns, the owner of the ship
who fjave the orders. I refer to page 1406, line (iO :

'■ Q. In a jfeneral way are yon able to say to what extent
" you outfitted and [)rovisiont!d the vessel ? A. All I can say is
" this, of course I calculated that the schooner would stay up
" there until pretty late in the season — that was in September.
" I gave the Captain particular orders: 'I want you to hunt
" there until the last, until yun are driven out of the .sea,' and, of
" course, I gave them what 1 considered a gooil five months' pro-
" visions, and the proof of it was the schooner came back jjretty
'• Weil provided with provisions after the trip."

That finishes the list for 1,S87. The list for IHK.) comprises
the ' Jiianita,' the ' Pathfinder:' the ' lilack Diamonn,' the ' Ariel '
and the ' Kate.'

With reference to the ' Juanita,' I direct your Honor's atten-
tion to the evidence on page 1341, at the very top of the page.
The ipiestion iiegins at the last line of the prececdint; page : " ().
" Up to what time did yo»i intend to stay in tlie Sea ? A. We
" intended to stay in the .Sea up to the beginning of September."

" i). Had you arranged that before you left Victoria ? A.
" To the best of my belief at the present time, and what trans-
"pircd afterwards, I believe the 10th of September was the day
40 "mentioned by Mr. Hall. He said that we could stay longer. I
" think he had had information from some one who had been
" there that seals had been caught in .September and that the
" .season was not actually clo.sed.

That is the evidence of Captjiin Clarke. The evidence of Mr.
Hall, who is the owner is at page i;U!>, line 26 : " <) What
" length of voyage was your vessel fitteil out for when she went
" to Behring Sea ? A. When the Captain left I told him to
'• stay (in until .some tim ; in September. I do not remember
" exactly what date.

" (). Had you information that there was any use staying

"until Septendier ? A. Yes, I was toltl by some one in the
" sealing business that there was .sealiiig to be d(jne in September.

"Q. And you made up yom- mind to try that ? A. Yes, I
" told the C'apt'iin to stjiy in until September, if possible.

" Q. With regard to die supply of provisions you put on
" board, was the ship provisioned .so as to be able to stay until
" .September ^ A. I presume that .she was. That was left
" pretty nnich to the captain. Ho bought what he wanted.

The Captain referred to has sworn positively that he was
provisioned for that time.

With reference to the ' Pathfinder ' of 1880, Mr. Munsie says
that he did not give any special instructions to the ciptain, he
left it with him. The captain was O'Leary and a man of some
experience. The evidence of Munsie is at Jiage 1505, line 15.

267
(Mr. BcmIwuU'b Argument.)

As to tlio ' Black Dianioiu),' the evidence i.s given by Owen
Tliomiw at page 1767, wliich shows tlie date oi the seizure, and
at page 1770, he says :

" Q. F'or wliat lenjjth of time was the vessel provisioned ?
What provisions iiad you on Ix^ard ? A. I liad plenty of pro-
visions, sir."
10 " Q. For what time had you provisioned? A. To tije
" latter end of October."

I might here direct your Honors' attention to a matter which
i;ives strength to this class of evidence. All the witnesses say
that when tliese provisions, if there were any left over, were
brought back to Victoria, tliey could scarcidy be sold at all, and
if sold were disposed of at a loss. It would, therefore, be idle and
ludmsiness like for men of experience to piovision their vessels
until October if they did not intend to stay in the sea atid
consume them.
20 As to the " Lily," her case is proved by stalntory ileclaration,
and there is nothing stated there with reference to the length of
her intended sealing voyage.

As t'j the " Minnie," the evidence of Captain Jacobson, at
page 1440, at the bottom of the page, is as follows : —

" Q. B'or what season did you outfit the schooner ? [Now
this is the man who was in practical command of the vessel].
" A. I intended to stay until the middle of Septeud)er, from
" the 10th to the nuddle of September in Behring Sea; I stayed
'• thei'e the year before in a small .schooner ; in this schooner 1
30 " was not scared of wind or weather."

It was a new vessel which he had built himself.

As to the " Triumph," I refer to the evidence of E. C. Baker
(it paife 1420, line 45 : —

" Q. Did you give him any instructions as to the time that
" he should stay in the sea ? (That is Captain Daniel McLean).
" A. Well, of course, I am not really positive as to instructions.
" 1 was simply one of the partners managing the affairs of the
" schooner, and a good deal necessarily would be left to McLean's
" discretion, because it was he that got me to go into that
40 " venture. Naturally I would be guiile<l by his report as to the
" circumstances when he was to return. But it was distinctly
" understood between him and myself that he would remain
" there until the very last of the season that he could catch
" seals, so as to ascertain, if possible, how long the season really
" did and could last.

" Q. Was there any understamling at all to that effect ?
" A. Yes ; he was to remain there until late in September.

" Q. That was fully understood ? A. Fidly understood
" between h'm and me. In fact he wanted to know something
•'lO " about what became of the seals after they left the Sea, includ-
" ing the Priliyloff Islands. He wanted to go a little voyage of
'■ di.scovery to a certain extent and trace them, and probably do
" some .sealing at the sanuf time.

" Q. It was mentioned between you, or undeistood, that he
" coidd stay there until pretty late in September ? A. O, )'es ;
" the previous year he had come back on the 10th of Sejitemljer,
" and he had everything on board that would enable him to stay
" there until the end of the year lor the matter of that."

(jO Mr. Warren :— Would you cite there the evidence of Daniel
.McLean, page 1821 : —

Mr. Bodwell : — That is a deposition of Daniel McLean, upon
which he was not cross-e.xamined. My renuirks on a previous
occasion will apply to this. He says in that deposition : " I was

It"

:.*i'

m^m

\hi

■;1

ppff

268

(Mr. Bodwell's Argument.)

" in the Behring Sea during the fore part of July, and left the
" last of August."

Ht; is stating his usual custom, but in this particular }'ear
then- was ii dlH'erent understan<ling altogether.

With reference to the " Ariel," there is a good deal of

evidence ; I will give your Honors the page and the line. This

10 portion I will read, it is the evidence of Sndth, who is the man

who attended to the outfitting of the vessel. At page 1484,

line .')2 :—

" Q. Before leaving for Behring Sea, was there any under-
" standing between the crew and the captain of the vessel and
" j-ourself, as to the time the vessel would remain in the Behring
" Sea ! A. Previous to our gi'ing to the Behring Sea ?

" Q. Yes ? A. Yes, sir, there was.

" Q. What understanding was there ? A. On several
•' Decisions we met on board the schooner, that is, the hunters
20 " and myself met the captain, and asked him to fit the vessel
" well out, us she was at that time one of the largest vessels out.
" of Victoria harbour, a staunch vessel, and wo had all made up
" our u)inds to make as long a season as possible on previous
" reports.

" Q. Was there any month mentioned, or any time men-
'• tioiieil, which you desired to remain in Behring Sea ? A. Well,
" I believe that I was one of the parties who persuaiied the
" captain to provision the vessel up until October, anyway.

" Q. What do you mean by ' up until October ?' A. To
30 " allow us, if the weather permitted us, and if the reports were
" trui! witli regard to seals being found that month in the
" Behring Sea, that wu would be able to stay."

There is a great deal of corroborativ(> evidence. I will give
pages and lines to your llorioivs : Pagi' 14(iO, line 3; page 1457,
line .'jQ ; page 14.S5, line 10; page 1487, line ')0.

The Commissioner on behalf of the United States: — I would
like you to read it.

Mr. Bodwell : — Well, here is the evidence of Captain Samuel

Buckman at page 14.')9, beginning at the bottom of the page: —

40 " Q. For what time did you outfit the vessel ? A. To

" make a long .season. We intended to try October .sealing in

" the Behring Sea, and we fitted out for a long season.

" Q .To remain until October in the Behring Sea ? A.
" Yes sir."

At page 1407, line 48, there is the evidence of Buckman on
cross-examination :

" Q. Before leaving for Behring Sea had you any conversa-
" tion with your crew, or anj' understanding with them as to the
" time you were to remain in the Behring Sea ? A. Yes, sir, I
50 "did.

"Q. What was it ? A. It was a kind of agreement, it was
" understood that we should make a long season, and do as well
" as we could that year.

" Q, Any time specified ? A. Well, we were thinking we
'could go into October very well; 1 had heard that October was
" a good month for sealing up there. We had that report from
"some whalers, and we intended to try it."

The Commissioner on behalf of the United States: — What
schooner is that ?
GO .Mr. Bodwell :— That is the "Ariel" in 188!). Here is the

eviilence of Herman Smith in direct examination, page 1485,
line 10:—

" Q. Ca>'. 3'ou say in a general way how far the vessel was
' provisioned ? A. Well, I had it in my hands to get it on

269

(Mr. Boil well's Argumenf.)

" board anil dispose of it to the cook. I should think that she
" had ample provisionH there until tl<e middle, or towards the
" latter end of Noveinher."

I also read the evidence of Gerow, one of the hunters of the
ve.ssel, at patre 14S7, line 4iS : —

" Q. Before you went into the Behrinj; Sea tliat year, had you
10 " received any information as to the* lateness of the time you
" would stay in Behring Sea that year ? A. Of course it wiis
" talked over between the mate and the ( 'aptain, and some of the
•■ hunters; I heard the conversation ; in fact they <;ot it from the
' whalers, I have hearil it myself on board a whaler, that there
"is good sealinj,' in the Belirinjj Sea in the mrnth of October.
■' The.se whalers have said that there is as jfood sealini,' in
" Behring Sea in the month of October as any other month in
" the year."

Then bej^inninf; at paj;e 1404, lini! 30, is the evidence of the
20 •-lime witness, which I read the other day, stating the informa-
tion he then ha<l as to the lateness of thi.- season.

It is clear, therefore, that there was a <listinct nnderstanding
that the " Ariel " should remain until October. The)- intendeil
to try an experiment. Many vessels intended to remain until
September, but this vessel had specially Htted out for a voyage
to en<l in October, provided that operations could \w curried on
until that time.

Captain Moss, speaking of the " Kate," at page 13H7, line 50 : —

" Q. Now, tell me, captain, what were 3'our instructions as
30 '■ to the time you should stay at sea ? A. My instructions were
" to stay there as long as the weather would permit.

" Q. As a matter of fact what caused you to leave when
" you did leave ? A On account of being afraid of seizure if
" seen again."

The " Wanilerer " was a small vessel of 24 Ions as shown by
the evidence of Captain Pa.xton, at the bottom of page 1587,
and he says at page 155H, line 10, that he intended to leave
aiiout the 25th of August.

'•'\^

iifi.f.

i'l!

'i'^:

il I.'

40 The next step in the argument, your Honors, is a reference to
the evidence, which shews that in the years 1886 and 1887 the
weather was exceptionally favorable for sealing. We have
already seen how late the season is in good years, and now we
(|Uote the evidetice to your Honors that these j'ears, 1886 and
1887, were favorable years. We contend that there is every
reason to believe that the sealing coulil have been prosecuted
in 1886 and 1887 to the full length of time that sealing was
ever carried on in Behiing Sea.

The evidence is stated in our printed argument, and the part

50 that we refer to begins at page 71, line 40, and extends to the
end of the sect)nd paragraph of page 74. That evidence, we
submit, shows that 1880, 1887 and 1880 were good years. In
fact, we may go further upon the evidence there quoted and
siiy they were exceptionally tine sea.sons. However, we do not
claim for them anything more than that they po.ssessecl the
average conditions of a good sealing season, and were such that
scaling could have been prosecuted during that year to as late a
perioil as we have evidence that operations were ever carried on
in that Sen.

(iO We then proceed to argue that no inference is to be drawn
against our contention from the fact that nont (tf the vessels re-
iniiined in the Sea for the length of time ref^ri?d to. There are
Hi vessels in the list of those that were in the Sea in 1886, and
of those we read the following reports in the evidence : —

270

(Mr. ncMlwt'll'H Ai^Hiufnt.)

Wiirreii, on tliti " Dolpliin," wiis intiM'niptt'il on tlui 2nil of
August on fjoo>l .scalin;; ^'roiiml and Mto|i|)<Ml on aecoinit of fear
of Hcizunv O'lii'Hry, on tin- " PatliHntler," was fiij,'liti'n('(l out liy
sfizuri's. Kainlnsi', on llic " Tlicrfsa," li-ft Auynst 2.">tli, Ih-cuumc
lio was hIihi-i (if pi'ovisiciiis. Hansen, on the " A<liil(>," left on
account of sei/iiies (if tlie scliooners on 2n(l of Anynst. Me was

10 in lietween the " CariiU'iia " anil the " 'I'liornton/'or near hy when
they were seizeii ami lie sli|)|)eil nut hetween them. Ile|ipen, on
the " tJrace," left. In-caiise the Inilians were afraid to stay lon;,'er
on account of seizure. I suhniit that this is a fair inference from
his eviih-nce.

Alexaiiiler Melii'nn, on the " Kavnurite," was warn«il on tiie
•2n<l of Au;,'U>t. ami we claim that his voyap! was interrupteii on
tliat nccoiint. Meyer, on tiie " Vanilerhilt," reniaineil until the
;}()th of Ant;nst. 'I'liere is no direcl eviilence tluit he was inter-
fered wiiii iiy seizure, hut there is much in Meyer's evidencH

20 to sliow tliat lie thought lie mi;;lit have trouhls. I shall have
ocnisinn to notice that at another time. OUeii started home the
day after the l!hh of Au;;ust on 'U'count of the illness of one of

his

Marketich, on the " On.

<l,

was

seized the 2lid of

Au;;ust. '{'he '■ 'J'hni iilon '

IS seiz'd the first of Auyust. l'a.\-

ton, of the " HIack nianmnd," was warned on the 1st of July and
left the 4th ' f Au^'ust fearini; seizm-e.

Tlieie are only two vesstds in all that list which were not
directly inlerfered with, or had their voyn^'e interrupted in some

way-

With refcieiiee lo the " Sayward," the evidence was that

30 (if the witiiiss l/iinj:, who (iie(| during the time of our stay in
Vietoiiii. At the time his deposition was taken this (|uesiion of
the lenj'th of the seaiiii'' season hud not heen lai^ed. 'J'liat was

It of the I'nited .Slates cast; and was madi! on tl

at a later sta''e.

It Wl

re-e.xamine that witness even if that course

as not possilile m the state of tliiiiLfs to

le evidence
f th

(II

e Would liave l)een per-
mitted hy your Honors. There is some indirect te.>,timony from
which we ask yon to infer that he must have had some knowle(l;^e
of the seizures at any rate. Mis voyage, as shown on tin; chart,
was heiiii,' proseciite(| on the very same ;,'roUii(l where the other

Were a

t the time tl'.eV Were seize(l.

Ml. I

iinsin<; :

-What is the data from which the chart

ia(h

Mr. Hud well : — It is a chart made hy the United States and
from tlu! ii'cord of the scaliiif,' vessels.

Mr. !,ansiii^':— In L'iST, lnu not in l.HSO.

Mr. Rdilwidl : — We will come to that hy and hy. The con-
clusion which we ask your Honors t<) draw is that in each case
where a claim is made the schooners Would have remaiiie(l until
they shoiilil have completed a satisfactory catch. We (lo not say
•j() that they would havi; iemailie(l to j;et a record catch. M' they
had a reasoiialile catch and the wind was favorahle, they would
have returned as the " Mary Kllen " did when, having; mado

catch, she took advantage of the first north-svest wind to

heirin her voyaije home. We say we are Justified in claiminj^ that

every schooner in that Sea. if she had not heen interfered with.

Would have made a catch which would have compared favoralily

lith the catch of the " Mary Kllen." 'J'he evidence shows they

Were in the plac(,' where seals were to he found

experience has

demonstrated that seals could have heen taken later on in the
(iO season and that if they had heen permitted to remain their catch
would have heen proportionatidy tin; same as the " Mary Kllen '

aviMi,' eolle ov

■r th

e principal points n])on whieli we

lakt

our

claims, I proceed to an examitiation of some of the evidence
(pioted in the United States argument to resist the contention

971

(Mr. liodwull's Ai'guiiiont.)

tlmt wi! ninke. 'riicrit are, in thi> >)t>^inniii^', at pii(;u 22H, .soiuo
stiit(!in«nts wliicli I <lu not think iiiirly rcpi'fst'nt tin* ar^riiiiiftits
pri'sfnttMl to your Honors i>y Oroat Hritain. On tiiat pii;,'f th«y
Nay : —

" The uxtractN ami citatioiiH of toNtininny from tliu n'conl iinil
" the concluHion.H drawn tlicritfrom in tlio ItritiNJi nr;riiMiPtit, roln-
10 ■' tive to tht! Hoalin;; season, iiru vinlcntiy at war, tin- one witi) tlio
" otlii^r. Tilt) voyant'H of many of the vcssids arc sliowii in llie
' extracts from the Dviilcnct', carefully colli-cteii, to have termin-
"ateii between tlie 2()tli and Sotli day of Aii^fiist, Imt tlie
"conclusion is drawn tlmt tlu: season extended 'well ittto
" Septemtier.' "

I hare referred to that. There is no inference to lie drawn
from the fact that tlie voyni,'es actually terminated iniismuch nn
they were lirou^ht to an end hy the act of seizure of the United
States.
20 On pa;;e 22!(, refi-rrin;; to tlu^ evidence tluit ve liave ([uoted,
the ar^'umcnt siiys with refei'ence to ISilO: —

" The average date for the ternduiition of the voyaj^cs of the
" vesstds named in this statement, whicli uxclndes iiiiit! ve.s'«el.'<
" out of sixteen whicli wen; in the Sea that year, is SeptiMuher 5.
" The days that hunting ()perati(<ns were stopped is not j;ivei),
" only the days upon whicli the varioiis vessels left the Sea. The
"((inclusion, however, is drawn: — 'It is therefore estaldished
" that the hahits of the seals ami tlie weather ordinarily prevail-
" in;j would permit the vessels enj^aj^'ed in sealiii;; to carry on
30 • operations until well into the month of Septeudier, if it was
" necessary, in order to complete their catch.' "

That is not statinj; the order of the urL;nment fci Oreat
Hritain. The conclusion was not ilrnwn fiom the time the
vessels left the sea in lSi)0, hut the conclusion drawn from
ahundance of evidence which we have as to lenj'th of tinie
durini; which sealing could he carried on in Septemher in every
V -ar. Therefore, we say that when j'ou find vessels outfitted for
that period, with the intention of remaining,', you are justified
in presunnng tiiat the V(iya<,'es would have so continued utde.ss
30 prior to tliat time they had completed a satisfactory catch.

The United States ar^'ument ftirther says, pa^e 22!*:--

" Without citinj,' from the Record the testimony of any
witness showint; that a lon<;er voyajje was ever made, and in fact
no s\ich testimony could he referred to, the final conclusion is
drawn that it has heen 'determined that they would, in each
case have continued sealini; under the favoral>le conditions of
weather proved to have lienti existing until as near the end of
Se|)teiid(er as would be necessary to accomplish a satisfactory
catch.' "
50 I ^ay there is evidence in this record to show that vessels
could have remained and lonjjer voyai^es have been made. Then,
the argument fjoes on to say : —

" The supposition mi<j;lit fairly be made that the teruunation
" (if the sealini,' season, without an}' foundation in evidence beinj^
" fixed ' as near the end of September,' would not be ai^ain
" removed to a later time."

But it is only removed in the claim of certain vessels as to
which thert! is positive evidence of inti.'ntion to remain to a
later date, the "Trimnph," the " Ariel," and the " Kate."
(iO The ur<runu>nt says further : —

■' No evidence was adduced on behalf of the clain : s bear-
' in>; upon the duration of the season, except in the indirect way
" of examininj; witnesses as to tlie time for which a ves.«cl was
" iint/itti-d."

I Hit

* h

' H i

An.

mgr

27J

(Mr. Bndwell'R Arcuiiiont..^

I liavx ruad the uviduncc iipon which w« n>ly, and I h>avo it
to yoiir Mdiiui'ii' to dctiTinint' whirii coiit<>niiiin in th<> true one,
without further cuinnient. Then tlm ArKUuieiit prorni'ds ; —

" All till* tt'stiiuony in tho llftunl ridalin^ to the liiiration of

" th<> liuntin^ nt-axon in Hulirin;; Sch )rivt>n hy captains, uiatc^, or

" liunttTM on iVHMflH ii<li()ne voifiuieit wevt not interrupted iir inter-

10 " ferrrd with \n contained or leferred to in tliin portion of the

" Arj,'unient."

I ^hnll I'ndeiivor to >ihow vour MonorM that Nome material
portions of liie i-viiji'nee liave heen omitted. It is rattier a liroail
Mtutement tii say that all the evidence is containeii here, li(>caiisf
tliere is a ^reat deal of evidence, material evidence, has not
even licen referred to in the ai;;unient. The Ar>rinnent says
apain, pn>;e "I'M: —

■ 'I'he hunting; of seals in Hehrinj; Sea heyan in the year ISMCi,

" Capliiin Wai ren testified ; ' iHStl was the first year then of any

20 "note in liehrin^ Sea.' The evidence docs not refer to niore than

" a half dozen vessels which entereil MchriiiK Sea prior to that

" year, anil none id" them sailed from Victoria."

I think my friends have failed to refer to this evidence
when they made that statement. Captain Alexander Mcliean,
oj» his dirt'ct examination, pa^je 402, line 10, says: —

"Q In 1S!S.') wiiat were you doiiifj (' A. I sailed from here
"in l><S.').

" t^. In what ship ' A. The ' Favorite."

" t^. And what kind of a crew ( A. An Indian crew.
30 " l^. Hiiw many canoes and how many Indians ? A. I
" liolieve there were 12 canoes in IH.S.j."

Mr. Lansing: — Did ho go to •lirinj' Sea?

Mr. Ho<lwell :-Yes.

Mr. Warren; — Will you kii> y read where he suys tliat he
went to Hehiiny Sea ?

Mr. Hodwell : — I have the reference, hut cannot just now put
my hand upon it. 1 will look it tip and }{ive it to you later.

There is then at the bottom of that page a quotation from
the evidence of the witness Bragg, page 230 of the United States
40 Argument.

" Q The 2Jtth August wan practically the close of the .sealing
" that year in Behring Sea, was it ? A. It was the close of our
" .sealing.

" Q. I)i<l you come away earlier that year than others, or
" or did you stay the ordinary limit of the sealing season > A.
" That was the ordinary limit dt that time.

" Q. And in IHM? it was ahout the limit? A. About the
" lindt in 18«7."

The wiliuss Bragg had never been in Behring Sea before that
50 year. His evidence at page 261, line (jO, is . —

"C^. Was this the first year that you were in the Sea, Mr.
" Bragg ? A. It was my first year in the Sea.

" Q. Had you ever hutited with the.se hunters before on the
coast ? A. 1 never had.

" Q. Had you ever hunted before anywhere ? A I never
' had hunted seals, no."

Mr. Bragg could only testify as far as his own experience
went, by speaking of the vessel on which he was then employed
That vessel came home on the 25th of August, because she liad.
60 made a successful catch and was ready to leave. The voyage of
otherveasels was ended for ditt'erent causes altogether. So there is
very little evidence to bo obtained from Mr. Bragg upon that point
his opinion was not of any great importance for he was then
speaking of the sealing voyage on which he was for the first time

f78

(Mr. Boilwt'll'n Ar^juiiierit.)

('n(;nf;ci). (In cniiM not l.nvu iiriy iiifoi iniUii)ii Hlioiit tlm intonliotis
of the cri'ws of otlior Hliips. lit* is not ii iiiati to spi-iik of wliiit whs
the li>ii|{tli of the Ni'alinj( Ki'amiii.or the ^jciii'iiilly rohsidiTcil h'li^'th
ill Victoria in |NM(! ami IHS7, fxpuciully whttii liis o|iinioii is
hrou^'ht into contntst with that of men like ('a|it. Wiirnii ami
others will) ant rn^a;;!*)! in that Imsint'ss, rcspotisilili' fur thu
|i) jossfs ami )>xp(>eliii;; to niakt* tliti profits.

On pa^u 2:11 till' I'nitctI Ktatt's A ^'unu-nt tlicy ipiotr llie
cviili'nctt of Haiiilase to hIiow tiiat liis si'nlin^' nmlfil on t':- *''itli
of An^iist, Itiit tliu vf-ry parni^rapli thoy ({uuti>, at tin* t'mi sliowii
tliis statt'iiicnt : —

" y. 'I'lii'ii yon left on account of wliat ! A. Tin- ve.ssol
" wasn't fittcil out for a lonjr cruise ; slio wasn't very wi-ll pro-
" visioneil jjoin^ lionie,"

Hiircly it cannot l)(> clainicil tliat tlic inusti-r of tliul srhooin'r
loft luicauM! till' scaling' season was over, lie left, as lie says,
2(1 on account of the sli()rtnt'SH of provisions,

Tlien my frieixis say lliat Alexander Keppen, called on liehalf
(if (Jreat Britain, testified that he was on the " (Jrace" in lMM(i,
and his evidence is referred to wliere he .says they li^ft the lAtli
of Au;,'Hst, and then he is asked ; Was the liad wiither that
season the reaso.i why you left the sea ? and he answered yes.
The whole (if his cio^s-exaiiiiiiatioii on this point slioiild he read
in order to ^et a projicr iinderstamliii;; of the evidence of tlii.s
witness. It will Im found on pa;;(» 'MO, line .'{() : —

" Q. Is it not a fact that hefore you came out it was lilowin^
'M " pretty liaid, and liiat tliat was tlie reason the Indians wanted
" to (^et away > A. Yes, thu weaiiier commenced to lie a little
• liud.

" Q. Are not the Indians very superstitious ? A. Yes, they
" are as a j^eneial rule.

" t^. And if thuy want to come away do the captains liavo
" to come / A. Yes, to liumor them. It is no use to yoa^^ainst
'■ tliem.

" Q. Was it not a fact that the season was practically ended
" on the 15th Au;;ust of that year ? A. If wc had white men
40 " we could have stayed longer."

The .same witnes.s shows in another part of liis evidence read
yesterday, pa(;e 307, that they had in the liejjinninjf of the
season heard of the seizures, havinj; spoken the " Anna Heck,"
and the argument addie.ssed to your Honors yesterday was that
a fair inference from the whole of his evidence was that the
Indians were fri(»htened, as they had reason to be, from the
seizures, and that was the rea.son why the}- hecanie ditlicult to
iiiaiiBfje. There is no justification, however, foi this statement
in the United States arjjuinent, paj^e 232 : —
50 " Reppen was the only witness called who was alioard the
" Grace " in 1<S80, and liis evidence outweij^hs the (general state-
ir.ent of (.^aptain Warren that liis vessels were outfitted for a
voyayo until the end of September."

I submit that his evidence is consistent with Captain Warren's
statement that he outtittei' his vessels and intended them to
remain until the end of September. That intention was inter-
fered with, and the voyajjc . iterrupted by circumstances beyond
the control and entirely outside of anj' kiiowledf»e of Captain
Warren wImu he ordered his ves.sels into Behiiiij; Sea.
liO Cotsfor.l's evitlence is then referred to, but I shall have to
rufir to him at another time.

Peter C. Meyer is spoken of at pajje 232 of the United States
argument, and his evidence is quoted where he is aske<l : —

" Q. How did you find the sealing between August 20th

li-

„ j..

274

(Mr. Boilwell's Argument.)

From tliii 20th of Augu.st to tlio
There was

" and the end of Auiruat ?
" end of the month ?

" Q. Yes ? A. Well, 1 didn't find much i.i it
" not inucli pnv in sfnyinii; tlint time.

" Q. Wiuit did 3'ou stay for > A. I was tliere to j;ive it a
" trial, and I stayed there and jjave it a trial, hut I found it
10 " didn't pay me.

" Q. In your experience in 18^(i and 1887, you did not find
■' good senlinj^ Ijetween the 20th and .'Mst of Auj^ust ? A. No,
" sir, it was not ^jood scaling weiither."

Ten days in any month may he taken, and the same answer
wouKl apjily to them. .Mr. Meyer, I submit, is not a witness
whose evidence is entitled to the wtight which is attributed to
it hj' the United States. I .shall not take up 3-our Honors' time
by reading it, hut I shall ask your Honors to read the cross-
examination at page 172!), 17:50, 17m and 17S2 of the i-ecord,
20 an<l you will find the witness thcr(^ making ft nundier of
statements which are not of a character to inspire any confidence
in his testimony. As a sample, he makes this extraordinary
statement at page 17.'?2, lim^ 4S : —

"Q. You were not afraid of cutters in 188(5 and 1887?
" A. Well, no, we were not a great deal afraid of them.

" Q. Were you somewhat afraiil of them ? A. No.itdid'nt
" scare me a great bit.

" Q. They scared you a little ? A. No.

" Q. You did'nt care to be caught, 1 suppose ? A. Not that
30 " I cared a great deal,

" Q. You were (|uite iiidifi'i rent about being seized? A.
" Yes, T liid't think tln-y would scizi' me.

" Q. Did you not hear that there were seizures in those
" years ? A. Well, towards fall f found that thej- wert^ doing
" something. 1 was told in 18Sti that they were seizing vessels,
" but then I did'nt care a great deal whether they did seize me
" or not ; I did'nt think they wouhl seize me ; if they did seize
" me I thought they would make it all right with me again."

I need make no comment Here is the witness who says
40 that the sealing season was practically over, and that it did not
pay him to stay in the sea after the 20th August; perhaps it
did, and perhaps it did not, but I do not think you can come to
any conclusion from the evidence of such a witness. There are
other portions of his cross-examination which are also equally
unsatisfactory.

Then in the United Slates brief follows a reference to the
evidence of O'Leary on the " Pathfinder " in 188() and 1887. The
United States counsel ipiote the witness in this way: —

" Q. How long Were you provisioned to stay, and how long
jO " did you expect to stay tliere? A. I expected to stay until
" about the first of Septemlier."

And they >iiy the witness then testifies that he did leave
August (!th.

Hut why di 1 not my learned friend say, as the evidence is,
that he left because he was fiighteiied liy the seizures ? That is
the direct statement of the witness.

With reference to Captain O'Leary in the " Pathfinder " in
1887, they (juete this as his evidence : —

" Q. For how long were you provisioned and what time liid
(iO "you expect to staj- there? A. I expected to stay until
" .SepliMuber — about the fiist of September.

" Q. As a matter of fact, how long did you stay in the sea?
"A. I left on the /;/// of August."

He left on the 17th August in 1887 because he was fearful of

275

(Mr. Bodwell's Aiguinent.)

seizure. Tlie evidence of this witness is quoted nj^iiin on pftge
234i. With reference to the season of \HW) lie says as follows : —

" Q. How late in Aujijust did you leave ? A. About the 2r)th
" of August, as far as I renienilier.

" Q. You never were in there later than the 25th of August ?
•' A. r do not think so ; tliat was the last year I v^-as in the
10 " Behring Sea."

The facts as '.o O'Leary's voyages in the ditFerent years are
these. With reference to that year INOO, at page 77'), line 30 of
the evidence, the following eviilence is given !iy him: —

"Q About what day did you enter the Sea in 1890. A. I
"cannot remember. It was soiuewhe,-e in July ; I guess it was
"somewhere about the 10th.

" Q. It was about tlie ordinary time ? A. Yes, it was
" after the 1st, I know.

• Q. You were lato that year ? A. Nn.
•20 " Q. What time ilid yon leave that year > A. f left there
" son)etime towards the enil of August.

"Q. The fact is that that season you hunted in the sea about
" the usual time ? A. Yes.

" Q. And you took fiOO seals within that pt^riod ? A. Yes;

■ I left, a little soojier than I wouM have left; I was shoit of
" grub that year. We got .some of our stores at Sand Point that
• year.

" Q. How late in August did you leave ? A. .\bout the
•• 25th of August, as far as I remember.
oO " Q. You never were in there later than the 25th of
"August? A. I ilo not thiidc so; that was the last j'tar I was
in tin; Behring Sea."

I shall liave occasion to refer to this again. But your
Honors will find in ISSfi ()'Leaiy was frightened out ; in
lfM7 he was frightened out ; in 1S8S he did not go into tlie Sea,
nor again until 18!)0. So that when this witness says he was
never in the sea later than the 25th August it is not strong evi-
dence. It is really no evidence at all upon which to base a!»
inference as to the length of the sealing season, because he was
40 in every year warned out or left foran>ason such as being sluirt
of grub in ISOO.

The United States Biief continues as follows :

" Captain James ]). Warren, who managed the largest fleet
"of vessels in Behring Sea in 1S8 ;, examined on liehaif of the
"el.iiuuint, is cited in the British Argument, page 70 in support
"of the contention that the sealing season in the year IiS.Hti
" extended to the end of September :

" Q. In 1SS(), taking the supplies you had on the vessels

" you have nu'iitioned, how long did j-ou ai'tange for the cruise,

.'lO " a cruise of thi! various vessels in your fleet ? A. My intcTi-

" tion was to have stayed in the sea until about the end of

" September.

" This witness might reasonalily be expected, when the general

■ cliaiaeter of these claims is considered, to testifv to a prolonged
" hunting season, but irrespective of his pi-ejudices, the fact is
' cliselosed by th(> record that he wos never in l^ehring Sea after
' the 20th of August, and that the captains sailing the schooneis
'of the fleet in the year 18H() all slopped hunting before the
" 25th of August."

(ii) I have already referred to that, but as to Captain Warren, it
may be wiu'th while to notice that in the " Dolphin " in ISStJ
he wns frightened out ; and in the " D.dpl.'u " in 1887 he was
seized.

On page KJ5 of the Brief of the United States the state-

v"» :"

!ii

■^a-'

■liii

\mm

t f^

276

(Mr. Bodwell's Argument.)

ment is repeated that Captain Reppen of the " Grace " left
the Sea in August, and tliat .she was not warned out hut was
stopped on account of hail weather. I have already referred to
the evidence on that point, and I suhniit that I have shown that
such a statement is not justified by a reading of the whole of
Reppen's evidence.
10 Mr. Lnnsing : — It is justified l>y that evidence.

Mr. Bodwell : — You cannot take one answer out of a wit-
ness's evidpnce and sny that it is a complete statement of the
wliole of his testimony. It must all lie read together. When
you read the whole of Reppen's evidence, take the fact
that he was warned, and the fact that his Indians were trouble-
some, you cannot conclude that he left the Sea at the time he
did, because the sealing season was over. These other circum-
stiu;ci-s also come into consideration, and it is a fair inference
from the evidence that the length of the sealing season had
20 nothing to do with the termination of the voyage of the
" Grace " that year.

The Uniteil States then quotes from Captain Olsen to show
that he started from the Sea on the 19th August and came
through the Pass on the 21st; but the reason of Olsen leaving
the Sea is not referreil to in the United States Argument. It is
this : At page 19+7, line 30, we find him saying :—

" Q. What time did you leave the Sea ? A. My last seal-

" ing day was on the 19th of August. I think I went through

" the Pass on the 21st. It took me three days through the Pass.

30 ' Q. Had you seen anj' other vessels previous to that ? A.

" [ .saw the " Mary Ellen " in ISMO.

" Q. How long before your last lowering day ? A. I spoke
" to her on th» ISth and we sailed the daya fter, and that is the last
" we saw of her. The day after, the 19th, I started for home,
" one of the men being sick."

Your Honor.s are not to conclude that, because Ol.sen stopped

sealing on the 19th August, it was the eTid of the sealing season,

for he mak^s on oath the positive statement that it was

because of one of his man being sick. He left to take the sick

40 man home.

At page 235 of the United States Brief, there is the follow-
ing statement :

" The captains on three of the ves.sels of this fleet positively
"contradict Captain Warren."

I submit that they do not contradict Captain Warren at all.
On the contrary their evidence is sustained by the statement ho
has made.

It is then attempted to show at page 23.') of the United
States Brief that Captain Warren contradicts himself ; I
50 wish to read the evidence of this witness as ([Uoted and con-
trast it with that which appears in the record in order to
show how my learned friends have misunderstood him : —

"Q. Now, you say your schooners were all fitted out to leave
" the Sea at the end of September ? k. In that neighbourhood.

" Q. Did J on ever know a sealing vessel that stayed in
" Bebring Sea to the end of .Septembc'r in those j-ears ? A. In
" those years I don't think I do, and I think likely there was
" vessels in before.

" Q. You did not begin to enter Beliring Sea until 1S8G?
GO " A. The Victorians did not as a rule.

" i^. Can j-ou tell me of a single vessel that reuiained in
" Behring Sea in IH.SG or 1MS7 as late as September ? A. I don't
" know as I know of one.

" Q. You were first in Behring Sea in 188G ? A. In IHiSG."

277

(Mr. Bodwell's Arguuioiit.)

Here, tliere has been an omission of a question anil an answer
which oupht to be inserted. It is as follows : —

" Q. You liave answered the counsel in the direct exaniin-
'■ation tliat you fitted out your ships to the first of September
' for Behrinj; Sea. Do you want to correct your testimony ? A.
' No."
10 The evidence an quoted at pajje '2'M> of the United States brief
will then continue : —

'• Q. What was the usual time for leaving Behring Sea of

■ the whole of the sealing Heet ? A. We were commencin<^ at
"that time; I intended to have stippjd in until the end of
'■ Septendier.

'• Q. Have you learned since by experience that there is no
" .M'aling to be had after the 2.')th of August ? A. Yes, sir.

It is perfectly iiliiin when your Honors refer to the whole of
the evidence thiit the witness is makin<{ an answer here, as wit-
'JO iiesses sometimes do, which is not responsive to the question, or
clsL- he intends to use the word in an indirect sense ; because when
llie cunnection is read a very differont comi)lexion is put upon
his statement, and I do not think my learned friends should
have stopped the (|uotation where they did. Here is the whole
of that evidence which I wish to read because it is not fair to
say of Captain Warren that he contradicted himself. I quote from
line ;J0. pa<,'e 93iS of the evidence : —

" Q. You have answered to counsel in the direct examina-
• tion that you fitted out your ships the 1st of Septeud)er for
30 " Bi'hrinjj Sea ? A. Yes, sir.

" Q. Do you want to correct your testimony? A. No.

" Q. What was the usual time for Icavinjj Behrin<; Sea of
'■ t lie whole of the sealinj; lleet ? " A. We were conmieneinij at
• that time, I intended to have st()j)ped in until the end of Sep-
tcnd)er.

" Q. Have you learned since by experience that there is no

■ HcaliMj; to be had after the 2oth Auj;ust. A. ^"es, sir.

" <.^. Any sealinif done in later years afti'-r the 1st Septem-
'• bcr ? A. Yes, I think there is. 1 know of vebsels i^ettini; back
4(1 ■ pretty well to the end of October— the 20th.'

■ (^). Did they stop and seal on the coast ? A. On thecoast
" condnif back !

" Q. Yes f A. It is too late.

" (.^. Now Clin you tell me a sin<,de ship that has ever, from
" ISSt) down to this last sealinjf sea.son, both inclusive, fleale(l in

No, 1 don

tk:

low

(ill

" Hehrin^^Sea aftei' the 1st of Septeiidjer
"just what they have done."

" (). And the usual time for leavinj; liehrini; Sea in lS8(i,
ISS7 and 1888, was the -iOth Au<,nist, was it not ? A. //( ISSS
u)>(l 1SS7 there was too much m-lzvirs youig on for vfttseln to stay
Ihfrc "

Mr. Wai'ren : — The reference to that evidence in the United
States brief is ]iai;e 878 : that is a mistake for it sliould be 'J38.

Mr. Boilwell : — 1 quote from Captain Warren's evidence, pajje
<X.]S.

The witness is not contradict inj; himself at all as your
Honors will see. It is a fact of course, that the vessels did not
stay in the sea, but the reason which Captain Warren jjives for
that is the very rea.son which we now suj;i^e.st to your Honors,
nanu'ly, that tliere was altoj^ether too much seizinji going on to
make it comfortable for vessels to stay there. That evidence
does not conflict with Captain Warren's previovis statement, and
it does not, as my friends suggest, make him unwortiiy of credit.

Tile United States brief continues : —

'U ^!'

:'!■

ii • r

■11 '^1

W-^

t t.-.i-.,

278

(Mr. Bodwi'll's Argument.)

" Cfiptaiii Alt'XMiidcr ^IcLcaii, sailiiifj tlio " Favourite, "clo.sj'd
•' liis luiiitiiij^ Hea.son in ]HH'i on tlic lOtli of Aujfust. "

Ho waH not on tlic " Favourite "' but on tlie " San J)iej;o " on
the lOtli of Auf^ust, 18HH, ami [ suppose tiiat i.s a misprint. At
any rate no Miferenee is to l)e Irawn I'roni tlie t'aet tlial Captain
MeL 'an eloseil liis sealinj; season on the " San lliej^o" in 188;}
10 btieause the "San Diego" was fitted out for walrusini.; and tlie
takin^X "f seals was nioi-e a matter of atTide'sl- than anytliinj^ else.

The rniteil States l)rief continues- -

" 'I'iiis testimony is all tlie testimony in the record bearing
"upon till' (hiration of tin; sealing aeason in Hehring Sea in tin;
yi'ar I88(i, which was given hy captains who were actually

d wh

)se voyages were not iiitei'rujjted. Only

" tliesi,' vessels was warned, and ('aj)taiii .Mel..eaii, comiiiandiiig
"that vessel, the "Favourite, ' testitied that he did nut leave
" the sea because of the warning, but stopped hunting on the
20 " litth of August liecaust! the .sea.son was closeil. "

As I have stated, it is not exactly all the evidence, but when
all the evidence is reail, the evideiict! which J have (pioted to
your Honors, as well as the exidence (pioted in the l^nitcil
States brief and the exi)laiiatioti given by the captains who wen'

comix

'lied t<

live the Jiehriiie- Sea on an earlier date tiiaii tl

otherwise would, how can it

d that it ii

ley

1 anv wav contro-

verts the contenti

)f tlreat Hritain. There is not a witness

(lUoted from, whose statement as to the <late of leaving cannot
be explained, when it has not been explained by himself, upon

no the groiiiiils which F liave nn'iitioiied.

le SMIlie resi

e \ear

lit will follow when the evidence iiu

oted

to til

ill
1887 is read with its context. The first evi-

di'iice (|iioted in the l/iiited Stales brief is ("aptniii Alexandi
"can's, who is mentioned as .saying that "the "Mary Ellen

("apta

McI.

sto

<l ll

unting on the JUtli Aiu/nsf." That evidenc

to which I re-

McLean is based upon entries in his own b(
ferrcd yesterday.

Mr. Lansing : — Supported by other testimony.

Mr. Bodwell :— He is supported entirely from his book, and

40 he would not answer until he saw the book.

The L'niti'd Stat.'s b:

coiitiiiiles :

t'ai>taiii Charles E.

Uayner states that he made ready to leave the sea on the J.'/tli
Aiatasf, 1887, on the " Allie 1. Alger."

I refer to Captain Kayner's eviileiice on that point, because I

sul

unit it is verv lioiibtfiil whet

for tl

i(> reasons whicl

ler lie ilHl

gi\es in till

sto]

'vid

) sealing on that
eiiee which vuur

lonors lia\(

befon; you. At [lage 12-17. line 4r)-(i() we have fn

him, that he was .sei/.ei

I at tl

le same time as

AdM

^''O and was towed into "Ounlaska " bv the same cutter, ami

that dax' was the 2.")th

)f Aiii'iiKt. Ill eross-examiiiatioii he

he is askecl this ipiestion at page I2.")t) of the evidence : —

" (}. What was the weather on thi; 2.'5rd of August ? A.

"Good.

" (.^. A good day for M'uling i' A. Vi's.
(.^. At what hour were ymi seized on the 2r)th ? A. The

.au weather

' 24tli we had

" C^. As bail as on tin,' 2.')th. A. I think it was.
" Q. On the 2.")th it was a good sealing day? 1
the day, in the fureiioi^n.

Part of

Q, You saw sonio s(;als brou:;lil o:i to the ' Ada,' did you

' not ?

No, sir.

' Q. Whore were y

ou when

a was s

poken

" When the

" miles from lit

" Q. Therfl
" vou doubt it
* "Q. What
10 " not just say,
" noon in tow (
" Q. What
"A. About I:
■Q. Doy,
" stopped wliel
" ing because y
" reason for piu
" .season over.
" Q. You h
•2i) " that there wi
" there would h
'■ get them in.

'■ Q. You d

" caught, and }•(

" got much latei

"No, sir; 1 dill

There is Cn]

cause till! soalin;

let us turn to th

;J0 piiint and see w

at imge 787,

2.Sth of Angus

the time. Ami

had caught .'?

any (luestion as

report of the se

Aiipendix \i pa;

dead seals on i

" Ada" was catc

in of the seizing ot

.Master of the " j

and you have al

was only three i

seized, r ask yo

he says that he 1

was over. It mi

started to go oi

" Ada."

.Mr. Warren :

.")() " Ada " was seizt

Mr. Hod well:

shows he was ii

realized next day

and I leave \-ou t

There is in th

the statement, th

he iealed in 18S';

to Steel's evidenci

the " Mary Ellen

110 the sealing soasoi

of Steele who wt

20 he saj-s :

'Q. -You left
" you left, the 19

27J)

(Mr. Beilwell's Argument.)

" When the ' Boar' first spoke her I suppose I was about three
" miles From her."

" Q. Tiiere was iiothiiij^ iii tlie weatlier that would make
" j'ou (ioulit it ? A. Not tlmt forenoon.

'■ Q. Wiiat tiiui! dill you start for Ouualaska ? A. I can-

]() " not Just sa}-, but we got there about two o'clock in the after-
" noon in tow of the cutter.

" Q. What distance were you from Ounalaska when seized ?
" A. About 12 miles.

•' Q. ])o you mean to convej' that the sealing weather had
" stopped when you IusIkmI j-our boats, and that you wen; leaY-
'• iiig i)ecause you could get no more seals. What was ycjur real
" I'eason for preparing to go away then ? A. I consiilered the
" season over.

" Q. You have stated that already. But did jou consider

o() " that th<!re were no more seals to bi? caught ? A. No, sir;
"there would be more seals caught if 3'ou had any weather to
" get them in.

" Q. Yoti did not consider there wert; no more seals to be
"caught, and you know as a matterof fact that seals liav(; been
" irot much later than the i+tli of Au^fust in Behrin;r Sea ? A.
" No, sir ; 1 did not."

There is Captain Rayner's statement that he left the sea be-
cause the sealing was over and that the weather was bail; but
let \is ttirn to the evidi'iice in tiie case of the " Ada" on that

;!() piiiiit and see what we have there. The evidence of Lundberg
at page 7.S7, line t)2, shows that he was seized on the
2Stli of August, and that the boats were out sealing at
the time. And at jiage 788, line 2.^, he deposes that they
had caught .'58 seals that morning. If thei-e is to be
any (juestion as to which is correct upon tliat point we have the
i-eport of the seizing officer of ttie Uniti d Statcss cutter in
Appendix 15 page .So: "Seized the sclu.ini.'r "Ada" with .'50
dead seals on board." There is no doubt whatever that the
"Alia" was catching seals; and that is supported by the report

-1.1) of the seizing otHcer." We liave therefore the evidence of the
Master of the " Ada " wlio says, that it was a good sealing day ;
and you have also the circumstance that the " AUie I. Alger "
was oidy threi' miles away frnm the "Ada" and .saw her being
seized. I ask your Honors to iid'er that Rnynei- is wrong when
he says that he lashed up his boatu because the sealing season
was over. It might be argued that he lashed up his l)oats and
started to go out of the sea when he saw them seizing the
" A.la."

Mr. Warren : — He lashed his boats on the 24th, and the

.M) " Ada " was seized on tlie 2.')th.

.Mr. Hodwell : — 'i'liatisall the strojiger evidence, because it
shows ho was in th(! track of the cutter, and his fears were
realized next day — at any rate your Honors have the evidence
and I leave you to come to yoiw own conclusion upon it.

(;ii

Tlune is in tin" ■ii-guiiii'nt of the Unitml States pa-

287-

thi' statement, that Captain Folger testified that the last day
he sealed in lcSS7 was the IKth daj- of August; but a reference
to Steel's evidence on that point leaves it open to doubt whether
the " Marv KUen " left the 15ehring Sea on that date, because
the sealing j^eason was over. At page l()7!l we have evidence
of Steele who was on the same ves.iiel with Folger ; and at line
20 he says :

'■ ii. You left on the 20th .\ugnst, Now on the day before
" you left, the lUth August, how many seal.s did you got ' A

4.1

»il:

B''PiP-^

280

(Mr. BoflwcU's Argument.')

" I think on tlie last day's lowerinj^ w« got about SO seals.

" Q. Ami tlie next day before that wiieii you were hunting,
" what did you get ? A. I do not remember.

" Q. Was it not a large catch ? A. I do not remember,
" Ir. Peters.

"Q. So that j'oii were actually catching seals up to the very
10 " daj- you left the Sea and catching plenty of them ? A. Yes,
" we liad some very gooil days.

"Q. Are you prepared to state that if you hail stayed for a
" week afterwards you would not eateh any seals ^ A. If the
" weather was tine we might have caught some.

" Q. Do you know if the weather was tine or not ' A. It
" was not when I left.

" Q. 'I'he day you left was not fine (' A. No sir."

Steele says that the day they left was not a .liic day, but they
were eatehing seals u[) to the date tliev left the Sea, and they
20 caiight ^iO (tn the last lowei'iiig day. Vet it is argued by the
United States because the vessel left, which might have been
for several reasons not stated in the evidence, that the sealing
sea.son was over at the time mentioned.

1 have already referred to Captain Meyer and the cliaracter
of the testiinony whicli hi." ban given. 1 shall not repeat my
observations with rel'ereiiee to that : l)Ut he is the next author-
ity ijuoted by the rnited States to siiow that the hunting season
was over on the 2.">th of August.

'i'he next statement i 'he United States brief is as follows,

30 P"tJt' -•^" :

" .\lexander {{epjjen testitieij that he was on the " Hiaek
"Diamond in ISS7, and that she left tlie Sea on the loth ot
" Augu.st. "

'{"hat is an exceptionally early date: and when the witness says
that he does not know the reason why they left the .Sea, it surely
camiot b»' taken as evidence to show that it was the close of the
sealing season. At all events it never has been claimed that the
|.")th of August was the close of the Season. I ipiote the follow-

ing from the evi ' 'iiee of Heppen. jiage |:>s:?, line (10:
' Q. What time <lid you go into Mehring Sea

\\i

ivent Ml the beginning of July.

Q. What time did vou come out ( A. About the loth of

August, I think.

so on ijairi

1.SH-1-, line 10:

Q. An<i you stayed in there the usual season

e went

'out on the loth of Aujrust.

'Q. Went out or st(

'PI»'

ding

the loth < A. We

"went out of the i'a.ss on the l-oth

Also at page KW.'j, line 4.4:
50 *i*. " Ami you came out that year on the loth of August?
" A. ^'es sir.

" Q. Why :■ A. I don't know why.

That ovidence cannot be taken as establishing in anyway the
close of the sealing seasoTi.

The next statement from the United States Brief is that
Captain Moss testified that the " Kate" left the Sea in 1X>S7 tl

»tter par

t of AuLTUst, and later fixed the date somewlun

about the 20th, 24th or 2.')th. Hut the reasim that Moss left
the sea is not stated. His reason is given at page 341 of the
Record, lines 9 and 10 and it is as follow :

" Q. And you left what date in August? A. The latter
" part of August.

" Q. Fix the date in August, 1887, when you left ? A-

a general a
there had 1
deuce. I ca
tj" something
with the Ii
evidence tl
was occasio
were conce

281

(Mr. Bod well's Aiguiiient.)

' Somewhere about tlie 20th or 24th or 25th ; aoinewhero around
" there.

" Q. Is it nearer the 20th than the 30th ? A. About the
" 25th, I think.
10 " Q- ^'^'tLS the sealin^T season oTer when you left ? A. No,
" I don't think it wa.s.

"Q. Why did you leave ? A. Because I saw some .schoou-
" ers getting .seized.

" ii. Wiiiit schooner did you see j^etting seized ? A. The
" Alfreil Adams."

This brings me to the year 1888.

Tlie Connnissioner on the part of the United States : — If
tliere is no objection on either side, I would ask counsel in the
li.^t L»f the seized vessels they liave given, to add the names of
>2() the Miistur.s of these vessels.

Mr. Bodwell : — I will do so with great pleasure.

At one o'clock the Commissioner took recess.

At half past two o'clock the Commissioners resumed their
seats.

Mr. Bodwell resumes : —

In addition to tlie evidence which I cited to your Honors this
morning relating to the length of the sealing season, that is to
•i«y with reference to the intention of the particular captains
who were warned out in the years 188U and 1887 I desire t()ad<l
;!l> 11 quotation which I omitted, from the evieience of Mr. M. F.
Keefe, at page 1 12;i, line 45 : —

" Q,. And now you say that tlie ' Anna Beek' intended stay-
" ing until the 10th of Se[)tember? A. I say that she
'■ intended to stay perhaps until the lOth or 15th of September.
'■ 1 was not interested in \wr, but I understood that from the
" captain.

" Q. If the captain had tostitieii that he did not intend to
"stay after the tirst of September, you would be mistaken ?
• A. I did not know anything about it. That was what he said
■1(1 " he intended to do at that time.

' >^. Do you really know how long he intended to stay in
■' in Behring Sea ? A. No.

" Q. You had nothing to do with governing that ? A. No."

The very tirst ijuestion in the cross-examination is the follow-
ing, and 1 desire to refer to it at this stage, though it does not bear
on the point to which the other evidence is directed, lie says : —

" Q. When you were on the stand this morning Captain
" Keefe, you said that if you had not lost a bo^t, or if your
" crew had not mutinied j-ou would have stayed in the Sea
."ill ' until the 10th of September. A. Yes."

1 have looked through the direct examination, which I sup-
pose is the examination in the morning referred to in that
ijuestion, anil I do not liiul anything taken down with reference
to any mutiny of the crew. The word " mutinied," is r, woi'd
used by ct)unsel, and, unless we know the circumstances,
it would not be .safe to assume from the fact that the witness gives
a general atfirmative answer to the whole of that question, that
there had been any ca.se of mutiny mentioned in his previous evi-
dence. I cannot recall the circumstance now; there may have been
Oil .something said by the witness; but, if there was any trouble
with the Indians, I think it safe to assume from all the other
evidence that we have about the " Anna Beck" that year, that it
was occasioned by the fear of seizure in .so far as the Indians
were concerned.

ifii'

■4

».! -

■^^

282
(Mr. BodwoH's Arjjuinont.)

This morning when I was referring to a statement maile in
• the United States nrgnnient thnt not a schooner went from
Victoria to Uoliring Sea in 18.S.'), I ciiUeil your Honors'
attention to a statement of (.'aptain Alexander Mcfjoan. ' My
fricnijs do not agree witli mo on tiie jioint that (Captain Alex-
ander McLean went to Behring Sea in iSSo in the " Favorite;"
10 but I cannot reail liis evidence in anj^ other way. Begiiniing at
page 401 , at the hutlom of the page, the very last ([uestion in the
direct examination; hy Mr. Dickinson : —

" Q. The ' Favourite' was outfitted and went into Hehring
" Sea ^ A. Not in l!SS4. She was on the west coast of Van-
" couver Island in lSfS4.

" Q. ])id you have anv experience with IiKlinn hunters in
" LSS4 ? A. Yes, sir.

" Q. How many canoes had you i* A. From I S to 20 canoes.

" Q. And in that year liehring S(>a wa'< not enter»«l I
■20 "think? A. \o, sir, another vessel went to the Hehring Sea,
" hut till' ' Fav irite' did not go.

' Q. In ISS,") what were you doing ? A. I .sailed from hei'e
"in iNSo.

" Q. In what ship ? .\. 'i'he 'Favorite.'

" (^). And what Kind of a crew > A. An Indian crew.

" (}. How many ciiiioes and how many Indians ? A. I
" helieve there were 12 canoes in ISS")."

Moreover, in this hook n( Captain McLean's to which 1
hav^ referred, anil which I presumi; at an}' rate my friends will
30 consider as perfectly authentic, W(> have a statement of sealing
in INS.") on the west co.ist, and si'aling in Iirhriiig Sin, heginidrig
with duly 4tli, with the hititudf and longitude set out, and a
total catch of 2()7.'{ seals totalid up, 1.'5n4 in I'ldiring Sea: and
at the liottom; " By AlcxamliT M<diean, master of the sehooTier
' Favoui'ite,' of Victoria, !!, ('."

It apjiears therid'ore that I was correct in the contention
made, that the " Favoin-ite '' did sail from \'ietoria in l.SS.") to
15ehring Sea upon a scaling voyage.

In tihe course of tlir remarks whieli I was addressing to j'our

40 Honors rel.'iiive to the duration of the sealing ;eason, 1 closed

wiml I had t'l ^ay liel'ore the adioi!ruiiieiit, at the lie^imiing of the

sealing seasiin for Isn.S, as it isdescrilied in the argument for the

United States.

The ;irginiieiit with rel'ereiii'e to the yeur ISMS hegins with
a (|uot;itioii from tie" evidence of Ivandase, page '2'U of the
Uniti-'d .States Alignment, at the liottom of the page. There has
heeii .a mistlike madi' in ipioting this eviilenee and in two ways.
In the lirst place I wij] rea'l it as it is ipioted here.

"(^). What time did you leave.' \. About the 'iOth
oO August, I believe. I am not certain of the date though.

'■ (^). \'eiy 111 ar the 20l!i / A. It must have been very near
"the 20th. because ire hail linished nuf sealing season.

•■(,). Were you warni'd out in ISSS? A. No, sir."

Now that is not the language' of the witness reported in the
Record, If your llonoi's will refer to tie- original evidence you
will notice the diireicnci'. The witness was being cross-
examined. I tried to gi't the original notes, but the .steno-
grapher who hail that "take" has not his notes here. The
witness is being eniss-examined, and although a part of the
00 phrase is printed as aiiuestimi and apart as an answer, from
the reading of it, it appears to me, it is all a question, and is an
endeavour to get an answer from :■ witness which he is not
inclineil to maki'. I will read two or three lines before in order
to give your Honors the coiniection :

283
(Mr. Bodwt'H's Argument.)

" Q. Are you just {jueHHiiij; at it ? A. JuhI what T ciui
" r-'incmlxT.

"Q. Vou littve Homo tiu'inory of it? A. I have soino
" iiK'inory of it : I know it wn.s thcreiilMtutH.

" Q. If you arc jjuessiii^j at it I <lo not earo to have you
"answer it f A. I <loii't rt'int'inbt-r tiic date."
1(1 Here follies wliat I talie t<» lie a whole i|UeHtioii:

" Q. Veiy near the 'iOtli i* A. It must have been very near
"the 'iOth, heeaime yott ha<l tiiiislied your sealing,' season."

I am sure it must have been all <|Uewtioii, although part of it
Is printed as a ([Uestiiju and part as an answer. The (juestion in
printed here " \'vry near the 2()tli f " and tlie rest of tlie
sentenee—" it nuist liave lieeii very near the 2()tli, liecause yiiu
liad finishtMl //oi/r sealinj; season " is printed as an answer.

Mr. Warren: — Oiu- ar;;iiment c|notes it correctly frfini the
Roconl, does it Jiot ?
•Jii Mr. Hodwell : — No; you t|Uote it this way: " It must have

been very near the 20th, because iir liad finished our
seidin;^ si'ason." In the Record it is: " It must liave laieii very
near the 2()tli, because i/uii had finislied ijoiir sealinj; season."
I nay the wlioit! context shows that it was a ([Uestioii and
nut an iinswer at ail. At any rate, it is perfectly clear that the
witnesH did not intend to say that they bail finished the Healing
season. If tlie evidence iH read, bejfinnini^ at line 40, [laj^'e Vt'2',i,
(liis will appear :

" (.^. Wiiat time did you go into tlie Sea tliat j-ear ? A. I
:;(i "thiidv it was the 20fh .Inly.

" <V- What time dill you leave ? A. About the 20th August
" I believe. I am not eertnin of the date though.

"<,». Are you ju.st guesMing at it ( A. .lust what I can re-
" member.

' (.,•. Vou havt^ some niemoiy of it ? A. f have some
" memory of it, I know it was tliei.'abouts.

" <^>. If you are gneNsing at it I do not care to have you
"answer it. A. I don't rember tiie date.

" Vei'v near tlu^ 20tli i* A. It must have been very near
■'11 "the 20tli l)eciiUH(i yon had fiiiislu'd your sealing season.

" (,). Wiuit was the Inst you lowered in IHSM ;■ A. I don't
" reuKMiiber.

" (f. Were y<iu warned out in IMSH ' A. No, sir.

"<,*. ^du left August 20tli l)ecause \ou liad finished your
" .sealing siMiKon ( A. I d(jn t know why tb(; cB])taiii left.

" <,). 'I'liere was no Hpecinl icason why you jel't liiat year wa;;
■llii r.> ' .\. I had n.itliing to (lo with that ])art,

"<,). \'ou know whether there was any special reason or
" not ' \ I <lon t know anything about it.
."II "i,>. Was it good weather when you left ^ .\. Nearly rahii

for two days before we got out througii the I'asH. ami nearly
" ciibii lor iiiiollier day.

■(). 'riieii a brue/.e sprang up and you came out :* A. Ves
"sir.

"(j>. Had you any bii(| weather just before the calm ' A.
■ Not that I remember of. '

It is pi'rfectly plain that the witness is not attempting to say
why they left at thnt time, and tliei'e must have been a mis-
understanding of his evidence on tiiat point or it would not have
till liren inserteil here as it is.

Mr. Warren : — The next 'piestion liaH his answer embodied
ill it where it says: " You left August 20th, because you had
" tinished your sealing season. "

Mr. Jiudwoll : — That is a very coniinon thing in cross-

284

(Mr. Budwell's Ar^iitiiunt.)

Gxaniinntion. It had buun put to tlio witiiusH before and lie
iliil not answer, evidently in this way : " Very near tiie 20tli, it
must have been very near the 2()tii because you had tinislud
your sealing season " and tiiere is no answer, and as a cio.ss-
exaniincr very naturally would do, thinking he can make u
witness give an answer, he repeats it ; 'You left August 2()th
because you had tinisheil your sealing season." The answer to
that (|Uestion is : "I don't know wli}- the Taptain left.' The
witness could not be pressed to tliutconclusion fi'(jui the ijuestions
which were asked him. It is perfectly clear that the evidence
of the witness has no wwi^^lit at all as to the do.se of the season,
becaus(! he does give an opinion \ipon it.

The ne.xt reference is to tlie evidence of Mr. iiaker with
reference to the voyage of the " Triumph " in lts.S8. That is
dealt with in the Hritish argument ; iiut |)erliaps it will be just
as well to take it down in the notes from |iage fiS.

" The only otliiT vessel mentioned is the ''Triumph," the date
" when she left the sea is not stated, lier last xealiiig day wa.s
" the 2()th August. As nom; of the member.<t of her crew could
" be obtained to give evidence, the statement of her catch is
" found in the testimony of Mr. K. t'. Baker, a ]mrt owner of
"the ship, and he had no knowledge of the reason why xiie left
" the Bca."

Captain iSteele is then iiuoted at page 2.'}S, from his evidence
at page 1078, line .')S, I takt? it; " The tirst strong gales that set
in frouL the northwest after the 2()th August we generally left
30 for home."

If your Honors will turn to the cro>s-exandnation of Captain
Steele, you will timl he is speaking from a very hmited experience.
He .saj'.s— page 1078, lino (iO.

" i-i. How ujiiny years have you actually hunted for seals
" in the Keliring .Sea (' A. Two yearn.

" Q. One of these was I88'J anil what was the other/ A.
"One was 1887 and the other was 18!)0.

"C^. Jn what capacity were you on the ship in 1887/ A.
" 1 was before the mast on her.
40 " Q. Just a seaman / A. Ws, sir.

" <i. You Were not a hunter / A. No, I was before the
" mast on her. '

We have here simply the statement of a common seaman, at
that time, wlu) had made, only one voyage into licdiring !Sea — no
other voyage until l88!>. It can .scarcely be taken therefore
that he speaks with authoi-ity.

The Oonnnissioiier on the part of the I'nited States : — iJid
he remain a common seaman :"

.Mr. liodwell : — He became aftirwards captain, but he was
o() not in the IJehring Sen again until I88!t.

The t'ommi.ssioner on the part of the I'nited States: — He
did become the captain of a sealer /

-Mr. Lansing: — He was sealing in 1887 and 188!) on the coast.

Mr. Hodwell :— Hesays in 1887 and I8tt0.

The Comndssioner on the part of the United States: — In
the introduction to his testimony what does he call himself /

Mr. Hodwell ; — He docs not say.

Mr. Warren: — IJo you not know what he is?

Mr. Bodwell : — Really I do not know the nwiTi, he was not
our witness. I do not think I ever saw him. (Reading.)

"Q. You were subpienaed by the United States to appear
" here ? A. Y'es, .sir."

That is his evidence in chief.

(JO

28r)

(Mr. B(mI\vcI1h Arjjuiiiciit.)

" Q. Ymi art! iiciti/t-ii of Victoria ami yoii nro a resident of
" Britiiili Coliiniliia ' A. I resiile licre now."

Tlu' ('oiiiiiii.ssiinicr 111! tlic jmi't ol" the Uiiiti'd StntoN :- It is
nut iii'ci'ssary tr take tiiin' furtlifr witli this.

Mr. Hodwi'll : lie iIoih not Htate, ymir Hdiior, and I do
not know Ail tin' olwci'valion I niaki- upon it Ik that it would
111 not coni*' to till- attention of a coninion si-aniaii at that
time till' cxtiMit of thr Hi'alin;; scaMon or any of these iiiatterK.
They would not he for his attention or eousidei'atiuu
naturally. At any rate, liein;; in that eajiacity, and ha\ in;; such
a limited ex|ierience, your Honors, I suhmit, will not feel jus-
tified in ;;ivin;; much wei;;ht to his statement.

Captain Meyersis next i|Uoted. I dealt with this evidence tins
mornin;;, and have referred your Honors to those parts of hin
ci'oss-examination which I think ou^jht to bo read in connection
with any statement he makes.
•JO My friend. Sir Charles Tupper, refers mo to tho evidence at
pa;;e lOSI, line -ii, where it is shown that in IHHH John Steele
was tho master of the " Penelope. "

Mr. Warren : — The top of page 107i) states all about that,
your Honor.

Mr. Hodwoll : — The next reference is to the fact that Captain
Aloxaudor McLean of tho " Mary Ellen " stopped hunting on the
IDth of August. Well, we have Captain McLean's .statement for
that : but wo have no cross-examination or other information
from Captain McLean as to why he stopped Healing on the l!)th
no of August. Tho " Mary Ellen" was not a schooner in unestion
before the Connnission, and Captain McLean was not asKed any
((uestions, wo have only^ tlie^bare statement that he left on the
l!)th.

The Commissioner onthe part of tho United States : — What
year was that /

Mr. Bodwell :— 18M8, your Honor. The next reference is to the
evidence of ( ioudio, who went out on the " Edward Welsh." He
stayeil in the Sea until the 7th of Septeniber. His evidennce is
useful to that extent, although (Joudio wa.s a man that did not
40 appear before your Honors ni any enviable position, it having
been shown —

Mr. Warren : — The " Molly Adams "' — it was another voyage.
Mr. Bodwell : — At any rate it shews ho was in the Sea until
the 7th of September.

A referenci- is then made to the evidence of Captain Charles

Hackett, shewing that he left tho Sea on the 22nd of August

and was not afraid of seizui'os. That is correct so far as it goes;

hut it is not the whole story. 'J'hero is another mistake here,

because tho witni.'.ss on the previous page, (i.o!), line .58, is

50 giving evidence about the vear 1888, and this is the evidence: —

" Q. Was she in Hehri'ng Sea in 1888 ,' A. She was.

" Q. Dili you have a large or small catch i A. Small catch.

"Dill not leave here until 2Lst Juno.

" (}. What time did ycai enter the Sea i A. About the 20th
•July."

He is asked some <|Uestions like that, which I rol'il- to merely
to show he is giving evidence about the year 1888, and then —

" Q. And you had the samt^ outfit, si. x boats and astern
" boat ' A. ^'os, sir.
•)0 "Q. Were you afraid of seizure that year ;' A. No.

" Q. You left about the same date you did in 1888 f A.
" Yes, sir."

That is evidi.'utly a misprint, because tho witness is speaking
about 1888.

' l' '' '

'i| 'M

1, 1- ■

. 1

''•up

-0

'■;• i'l

:,Hi

rrii

1' ■

'!' ,jl

! I

■:■ 'ii \i ■

il:

•2M

(Mr. llodwiH'.H Ai};iiiiMiit.)

"Q. On a'.'cniiiit uf till' wi'iitliiT ' A. No.

'• Q. (Mimi- i>f the Mfiisdii ' A. I tlii)ii;r|il I liiul jro), pretty
' ni'iir III! I cniilil ;,'i't I Imil ;;ii'<'ii iiifii fur Iniiitt'r.s, tlii'V iit'Vcr
'liii'l lii'i'ii at till' liii.siiii'SH lii't'iii'i'.

" Q. Tliat was yuiir tir.sl yi'Mi'N t'Xiii'rii'iici'. .\. Firnt ycai-'.s
' oxiicrii'iict'.

" Q. Wlii'M yim siy yiiu It't't till' sen ;,n tlm '2i\\i\, tliut ilot's
' not iiii'an tliat was the last ilay Villi lowrri'd (• \. 'I'liat was
' till* ilay 1 fame tliroiij^li tin- pass."

[ siiliiiiit that your lioimrs (;aiiiiot iiifi'i' uiiytliiii;^ t'roin tliat
Dviiji'iici) lis to till- ('li)si' of till' si'asoii. Till' witiii'ss left on a

cortMiii <lav and tliat is

that

IS iirovi'i

I. Tl

H! (•on."<ii|i'ratiiiii

whifli iinluci'il liiiii to li'avf was aiiiiarciitlv tlu' fact tl'.at liis

liiiiit

I'ls wcri' not

i;itisfai'tor\' ; li

I'l'
was not i,'t'ttinif aloiii,' as In

liail liopril, li.'CiiMif liisconia^i'il ami went away. Ili- sayi,
positivuly and distinctly, that it was not on accoiintof the
20 weather.

The ari;niiiint tlii'ii jn'occi'ds at pa;,'i' '2'M t'l Lfivc a i|Uotation

from the cvidi'iR'c of Vict'ir .laci

n sliowiii''' till' date at whi

•ft tl

sea

that

veur.

IIS cvideiiei

ited

III til.

Unite.! States armiinent at paije "J-'ilt, near the top. if your
Honors will turn to the evidence, vou will liiiil on pa^'e It+T,
line tlO.

Q. Vou lowered ill the Pas,«i i* .\. Ves lowered iiisiile

the P;

(.,). Vou do not iisiiallv lower eanoi>s in the Pass itself;

:{0 " I

lOWere

1 tl

'ne\i'r we could ''('t seals

SoiiiothiiiLr

t^. Did you ;;c't any si'als in the Pass '
"like (iO I think one canoe had 17.'

It is a fair inference from that evidence, and from wdiat we
know of .lacoliseii, that he would not then have lioen leaviiii^
tlio sea, if he had had eiioui^di water to remain ; of couise. it
would not have lieeii worth his wdiile, after haviie' tilled with

water down nt the I'l
hunt lonyier.

to sail hack into the sea airaii

I ere

is also a reference immediatelv after that to tlit

40 witness' voyiii,'e in the year l.S!)(), sliowiiii^ that he left
the sea on the '2'tlh of Auijust, and that he was not afraid
of seizure. That is perfectly true, but nevertheless, that is
not the reason wdiy he left the .sea that year on that daj'.

for, at paj;e I4+S* heiiinnin;; with line (11, we hii

" il Vou left the sea on thi'2 ."ith August, IXitO ! A. ■2;{rd 1
think, we ipiit simiHiil^ on the 2.'Jrii. We were some two or
ti-.re, days getting out.

■• !h

you

went out ahout the 2")th ? A. About the ioth.

(.) In l)s!K) your Indians tliouj,dit the}' had hunted loiii,'

L. Thev thoU'dit

close on

•JliOO

;h'whi'n they wer,. nut, did tliey not ;
' ] had seals eiioUL,di and inoiie\- enough.

" Q. 8') you \vant"d to come out .' A. I had
' seals that year, I had on that trip up to Beluiii;; Sea, and into
'BehriiiL;; Sea close on 2:{00 seals. They wi're all pretty well
'.satisfied — ;{()0 before on the coast."

The real reason for the ship leaving, as ymir lIoU'i

.serve, was that they

ul that

laii niaile a large catch anil wen

satisfied

is exactly the conl'iitioii that we are

lad sucei'cded in making a s^itistactoiy

(JO catch tlioy did not reiii.ain in the sea — but otherwise if they did

inakiiir;, wlieii vess

not make a satisfactorv catch.

Refe

erence is made on the sam • page

to th

e eviilence

)f
the -iOth

Captain ("larke, who t 'stifled that he left, the soji

August, l^SSS. Ihit his statement on that point, should be rend

(Mr, Hoflwt'll'H Ar;,'uiiiiiit.)

witli tli<! reason lut nivp>t. It was tliiit hi- li;ft tin- sea
on tliat iliitc Iji'i'imti* Ix't'oiT In' went uwny t'mm N'ictoria In- wn«
instinct I'll to ri'tnrn Ipfciiiisc si-i/UKL's wi'ic- to Ih- nimli! uftiT tin;
•JOtli Aiij{UHt. I ivf.'r yiiii to |)iiL,'i> 1120, line |.'> :- -

" if. Wluit iliil yon conio out on tin- itiHli iif Vui^nst for :'"
'I'lmt must 111' H misprint t'lr 2l)tli of August.
Ill '■ A. My instructions wci'c to inivc tlic 2i)tli.

" Q. You finm out on account of your iristi'iK'tion-t ! A,
" ^^•s, sir."

Ki'-ilircct cxnniination li}' Mr. Ij'insini,' : —
"(jt. Whose instructions were tliosc you olu'vci! ''omini,' out ;'
.\ Tlic instructions wi'ro mainly .Mr. Hall s tin- mHna;,'in;;
owner.''

.\ncl your Honoi-s will I'cmi'mlifi' tlmt lie was n'-callcil
,ft('r\Mifi|sani| fully ''.xplaincii tlic circumstiiMi'i's, I'. Jlt.VI-. I. liO,
'I'licrc is then the stati'incnt of witness Smith, with refereiico
ill to the trip of the • lilacU Diamoinl." He snys : —

'*}. Were you in liehriiiLT Si-a tlie entire -easoii <if J.S.S.Sf'

■ \. So, Just part of the season. "

'riiix shouhl lie reiiii in connection witii the statement that is
• iMoteil liere : —

" (,>. When liiil you ;ro out ' A. On the iOtli Au;4Uit."

.Mr. l/insin;,':— He tolls when he enters tln' sen on the last of
.Inly, see line tiS.

.Mr. IJoilwell :— Well, it is there foi' what it is worth ; it is

just one tiare statement of this witness ami has simply tlmt

^■ii \veiL;ht, Hi' was not e.namineil as to the re.ison fir lea\ini^ or

whether it was the close of tlie season or not. There is

nothiny; Imt tiie simple fact that he left on that ilatr.

Till.' ari^ument on ))a;^e 240 then repeats the statement that
there is no cviilenco of vessels remaining,' in the Hehrini^ 8oa
in the month of ,Sei)teinh(!r except in one instance. I liavo
aheaily s^iven the an.swer to tliat assort: mi.

1 now come to the season of ISH!),

There is first a reference to the eviilence of Captain Charh>»
40 llacUett. wlio testitiod, as it is stateii in the arn;nment at paj^s
•Hi), that lie left the .Sea in the "Annie (". .\loore" on the
20tli Auf^nst. that it was not favorable weather ami tha*^ he
stopped hunting oil the Kith August; but his evidence should
have ')ecn continued becau.se he is asked here, at page <).')!>, at
the top of the page : —

" (^. When did you stop .sealing in ISItO, Chptain ? A.
" August 11 th.

" i). And that was about ten <lays earlier that you tlid in
•IS.S!)? A. Yes.
,"i() '■ (). Dili you stop sealing then on account of the bad

■ weather ? A. Y'es.

" (). And you stopped in 188!) on the same account ? A.

■ Xo. 1 n'Kii iiffiiil of Kcizarr in, 1SH9."

The evidence of Thomas H. Hrown is then referred to with
reference to the voyage ot the " Maggie Mac." It is said there
that the last lowi'ring day was on the 23tli ,\ugust. That is
true, but there is more that ought to be read in connecti;. n.
The first statement is at page ")l, line ;{0; —

" () You came out because the season was over so far as
• 111 ■ vou knew :* A. Y'^es. 1 had lieard of seizing before that."

It is manifest that the witness heie cdiduses the two words,
■siasun " and ".seizing." 'i"he cuunsel said " seiLson " and the
witness understood hiin to say "seizing." Tlii.s is |ilain from
the examination at page (ioo, line 10: —

J..;-*!

'■H! !||'!'f

|!l

i ,, I Ji'Hd

i; '1

|i i'

I 'PII

'"■;nOT*WBff 'r '

mmmmm

2H8

(Mr. Hodwi'ir.s Ari;uiiieut.)

" Q. Have \-o'i any note of tlic nuinlier of Hcals you caught
tliat (la_v .' A. (t'xainiiiiiii;). We didn't hunt that day. "
|)own ftirthor at line 20, i.s this cvidcnci.' : —

!r>th

A. That
A.

" i). Wln'i'c did you do tliat scalinij on tiic
" wa.s I'losc to till' I'a.ss — Tour Mountain I'a.^s.

" Q. 'I'lu' soi/.uii' of wiiat .sfhooniTM did you hear .'
" that day \vi' Hj)oi<c —

" Q. Ni'vcr mind what you did. What 8ciio(>nt'rs did you
"hear h.id been sci/.i'd :' A. Thi' ' Minnie," " Blai-k Diamond "
" and the •' PatlitindiT."

'riiiTo is a scntt-noe also that I sliould have ivad at line ISiin
the same page.

" Q. Wow long did you stay on tiie Sea after the 2;ird f
" A. Until we eame out on the 28th. "

And the log, which was afterwards referred to, shows that
when they lieard of the seizin-es they started away.
Mr. Warren :— Read line ;J2, page 057.
Mr. Bodwell : — Reading —
" Q Some time previous to that was it not ? A. Yea, sir,
" I tliink the tirst intimation we heard of the .seizure.

" Q. We will not go into tliese iletails. You do not mean to
" say tliat you came out of Behring 8eu because you heard of
" the seizures, do y"" ' A. No, I would not say it was that."
Well, of course, though tlu' witness gives that answer there,
later on when he had the log he niakes another statement and
his subsequent statement should be accepted. It is sliown that
30 their course was ciianged. When they heard of the seizures
they went to an unusual place where sealing was not profitable
but which was out of the track of the cutters.

WMth reference to Captain Baker, who is (juoted next, we
have dealt with that in our printed argument, page OH, line 46.
The evidence of Captain Lauchlan McLean of the " Favor-
ite" is next referred to, at page 2'il of tite United States argu-
ment, but his evidence at page 730, line 50 to 70 should be read
in this eonnection.

" Q. You were not afraid of being seized in 1889, weri' you f
" A. A little bit.

" Q. Then you left on that account i A. No, 1 did not
" leave exactly on that account.

" Q. You ditl not leave because it was bad weather and do
" not know why you left f A. I'erhaj)s I wanted to go home.
"Q. What i.s your best recollection about it i A. 1 think
'■I did want to go.

" <,>. Tlu' fact is the sealing was about over (• A. No, sir.
"Q. Why did you leavi' ' A. 1 was very .sorry 1 did leave
" when the vessels eame in witli their big entehes afterwards "
No eoniinent is neeiled.

Then Hi.ssett s evidence is referrt'd to. He was on the
" Theresa. " Mis e\ ideiiee is at page 770. The evidence of
Bissett, who was on the "Theresa," is produeeil to show the state
of the weather at tlie time of the seizure of the " I'athtinder,'
because !'• ■ .ett was sailing in siglit of the " IVthtinder. ' ll
would be extraordinary for your Honors to arrive at the con
elusion that the season was over, undei- the circumstances dett. '••!
b\- this witness. .\t |mge 775 l)egiiniing at line 45, iiis evidence
reads as folhtws :

" (). ( >n that particular day, what sort of a day was it for
" .sealing ? A. A splendid day.

" if. Was it calm or roiigii ? A. Very smooth.
" (). Were there any seals being caught that day ! A. Not
" while the cuttei' was aiound. They prevented us from lower-
" inir the boats.

2S9

(Mr. Hi)(l\vi'irs Ari.jiMiu'iit.)
Q. I)i<l the otlii'iT (if llio I'litttT iiiakt' iiiiv statcinciit willi

I'l'I'iTi'IlCi' to M'llls tllllt (lay ^ A. lie did.

' <). W'liat dill 111- sav i' A. 1 rcmaikrd t,) liiiii that

riTi' very jiii'iitifi

wild, and I told liiiii in n iok

irt of

way tliat tlicy si't'iiit-d to know tlicy were under tin- protoetion
(if tlif Aiiit'iiean ciittiT. He saiil, you tliiiik you liavo c'nn;j;lit
tiu'iii jilcntil'ui aiouiiil licit', liut you oiii^lit to tic around tlic
' Ariel,' wc had to .shove thcni out of the wnv hofoic us ''cttiiiji

on hoard her tiiis moriiini

(.). Thai

l.-i What he reiioi

ited ' A. Y(

Q. .\s a iiialter of fact the " IJiish " went 'iwav. did sh

A Y,

Q. Did \-ou seal anv that dav ' A, We did.

U. With what;

uceess :

A. ■i'l

le cutter left us at i o'uh

II the afteriiooii ; she hovered in

vessels until ahout '2 o'clock

■Jii " ahout 4 we lowt

re. I

ailioni^the Heel of four (U' flvi'

k ; she ste.inieil away alioiit '2 and

>i I'T skins from 4 to 7

a lioat, and wi

■ that t'veiiiiiv; ; it w;is eithei ft") or !l7. I woulil not he certain
' which, liui ii w;is eiiliei one of these two niiiiihcrs,

•■ (j>. What did the ■ 'I'riuiiiph ' do after thai ' A. Wiuit

■ away from there ; the captain said he was afraid of seizure and

■ we well! down close to the p issii,'e out of the way of the cut-
'■ teis. as he thought.

• (j>. .\iid you went oiil of the Sea, when ! A. We diil not

■ i;o out of the Sea till the Iird of Septeiuher, 1 think it was.

" (jl. What ]iarl iif the Sea did you getaway to' A. We
• it' went down in the iieijilihoihood of I''(Uir Mountain Pass.
" (). I>id you tind any seals there ^ .\. No, sir.
" (). Would you have yone there if it had not heeii for the
" ciitti'r ;' A. No, sir."

Mr. Wan . SI : — Ilea I the next (pie-^lion aiul answer.

Mr. liodwell, readinj,' ■--

' Q. Yon stayed in tlieie part of the year :" \. We went

■ down in the nel;;hhoi hood of the p.'ls- and relliiliued there for
' the halaiice nf the s 'as m."

()f course he did. lie could not catch any seals ihere. That
h' is exactly our contention, hut still he stayed in the liehiiiii,' Sea

until llu' 7lh of SeptrUlliei.

'I'hen the statement of ( 'aplaiii Steele is ripetilcd ahout the
e;ales, hut I siiliiuit that no inference is to he drawn from that
hecausc the whole Weight of the evidence is ihilt ISiK) wa.s a
season of most unusual incleiueiicy, and therefore the fact that a
\. ^se! eii Ht any particular date is not suHicieiit for a conclusion
as to th ('(Uiililioiis existiiiL'' in any olher year.

The next statement is that of William T Hraii^' "''"' testi-
lie ! that the :jr>tli of Auejust was the Inst, loweriiie; day on tiu'
''' Mai.'^ie Mac " ill the year ISSIt. 'J'hat is iierl'ectly true. Hut
this w.'s llie schooner on which tlic witness Mrowii was huntiiii,',
and his eviileiici- discloses th.c fact that Ihiy left the Sea oil
fifcount of the seizures that year.

Hire is a reference to (iiuidie in rcfiard to which I thuui,'ht 1
hail a meinniandiim. It is on pa^c :>4i. \\',. ,U, imt press
llondie's evidence u|ion your Honors, it hii.s no particular weie;ht
oil either side.

Mr. LaiisiiiKi — Yoii said that Hra.';,; and Ihowii were on the
|.,i s.ime hout. Ihau'j,' was 111 the " MaLTijie Mac " Mid Hrowii was
nil the " Mary Klleii. '

Mr. Iioilwell ; — Then I was mistaken. I see hy rcforriiii,' to the
lecord, paj,'e (l.'it, it is tiiie that I'ro'vn was on the " Mary Kllen "
ill l.Sfsit. J Hill fj;liid my friend li..s calleil my attention to that

I 1

1- ^

, ''*■

■'■

■ \ . ;

\., ■ ■
''I

■i- 'I-

II It

290

(Mr. BodwcU'^ Argument.)

because I really had made a wrong reference myelf. We deal
with the " Maggie Mac" in 1889 in our argument.

This i.s what we say in our argument at page 69. The
" Maggie Mac " left the Sea on the 2.5th of August, but her
Hja.ster was dead, and the number of the catch had to be obtained
from the witness Kerr, who had no knowledge of the time on
10 which she began her homeward voyage. Bragg was not asked
any questions as to the reason wliy lie left the Sea at that par-
ticular time. It was evidence that might have been obtained
from the witness but was not asked for.

With reference to the evidence of Captain Hanson in the
" Adele," which is quoted at the bottom of page 241. At page
(jl(i, line 10, ho shows tliat lie had Indians who were n(;t vei-y
good workers.

" Q. Why ? A. One thing is tliat I could not get them to
" lower the boats on Sunday.
20 " Q. And when the}- did lower the boats, "ere they as good
" hunters as the others, or were they not ? A. No, they were not
" as good. I think I had better chances that year than the year
" before, but these Indians would go out in the morning and when
" they caught ten, twelve or fifteen seals, even if it was only nine
" o'clock, they would come back and not go bi'ck an;," more ; I
" could not persuade them to go out again.

" Q. Your hunters in 1889 were not stu'sfn 't.oi . A. No.

" Q. And you nevsr tried them before, I'l'-i wt.'^ your first
"experience with them ? A. Yes.
30 " Q. Why did you leave llie Sea so cHrl}- as the middle of

" August ? A. I coul<l not. do anything with tiie Indians, they
'■ would not hunt any more."

Captain Hanson had ver}' good reason foi' leaving at that
time without reference to the ordinary duration of the .season.

The evidence of Captain Miner, at page 242, is equivocal.
At page .i.'i7 his evidence is : —

' Q. Now when <lid you go out, in 1889? A. In 1889 I
" went out of the sea about the latter end of August, if I
" remember light."
40 This is a statement which has very little weight. It is
indefinite, and tlieie was no crois-examination.

TIk! ai'gument then proceeds to deal with ihe testiniony (\.i
to the year 18!U). Our contention throughout is that 1890 wi; •
an exceptional season. They (juote at paj.ie 242 of the Uni
States arguniLMit, about the mid<lle of the page, the state;))
that Captain Jacobson testified that the last day of hunli'^
1890 was the 21st of August. His further evidiMce is
follows : —
.")0 " Q. Weie you warned out that year ? A. No.

" (} Did you come out because you were afraid you would
" be seized ? A. No.

" Q. Did you come out for water ? A. I came out because
" I thought I had sealed enough. I had then four or five
" hundred seals, more than I had any salt for.

" Q. You made an unusual catch that year? A. That is
" what I did.

" Q. The tact is. ..lint you made a laiger catch than y^
" counted upon making? A. That is what I diil.
GO "Q And you had so many skins jou found you i ^
" brought salt enough to salt them ? A. Yes."

That the evidence does not at all r late to the length >
season.

Captain Hackett, who is

111

!lt

had

ttquot':' as having stopped on

291

(Mr. Bodwell'B Argument.)

the 11th, clearly explained that it was on account of the weather,
page 658, line 50: —

' Q. What kind of weather had you in 1890 in Behring
" Sea ? A. The weather was pretty bad in 1890.

" Q. How did it compare with the weather of 1889 ? A.
" Well, in July, 1889, wo .sealed ten day.s, and in 1S90 we sealed
10 "11 days.

'• Q. How did August, 1889, compare with 1890 ? A. Only
' four days."

" The Commissioner on the part of the United States : — How
many days did you have in Au^u.st, 1889 ? A. Eleven, sir."

Mr. Bodwell : — Tiiis is very good evidence to show the
(litference in the character of the weather in 1889 and
1890. Now, the next witness whose evidence is referred to, is
(.'aptain Clarence Cox, who, it is stateil, stopped .sealing on the
19th of August. His evidence is at page (J06, line 31, on this
20 point, and is as follows : —

" Q. You sealed for the last day on the 19th ? A. Yes, sir.

" Q Then you left ? A. Yes, sir.

" Q. What did you leave for ? A. The weather was not
" very good : the seals were scarce."

Captain Miner left oil' sealing the first part of September,
and as far as that evidence goes it is in our favor. He says at
page 559, line 42 : —

" Q. An<l came out of the sea when ? A. I came out of
" the sea, if I rememlier rightly, about the 15th of September."
30 Mr. Warren : — That is in 1894. That is the same quotation
you had trouble with last night.

Mr. Bodwell : — Yes, he .says he came out the first part of
September.

I think 1 need not make any observations upon the rest of
the evidence up to page 244 in the United States argument,
because that ground lias been practically covered by what I have
already said as to the witnesses there quoted.

Tiiere is then, on page 241', a reference to the evidence of
40 O'Leary, who was on the " Walter L. Rich." I juoted that
evidence this morning, where the witness says he left that time
becaiise he was short of grub. Perhaps I should not say that
he left because he was short of grub, but lie was short, and the
inference I draw is that he left on that account at an earlier date
than he otherwise would.

I give your Honors now a reference to the evidence of this
witness relating to the year 188C that F did not have before.
Y(iu have the reference that he was frightened out of the Sea in
1SS7. In 1888 he did not go into the Sea at all. The evidence
.50 on that point is at page 769, line HO. In 1890 he went in on the,
" Walter L. Rich," which is the evidence 1 have just referred to.
Therefore, Captain O'Leary when he states that he never stayed
in the Sea longer than the 24th of August, is as quoted in the
United States Argument, is only speaking of the vouiges of his
own vessels. There were special circumstances with reference to
ever)' year he was in Behring Sea : his evidence must be taken
with that qualification.

Hansen says that in 1890 he came out of the Sea on the 12th
(if August, but ho puts that down to exceptional circumstances.
(JO Page til 6, line 47, lie is asked :—

" y. What time in August ? A. I cannot e.xactly tell, but
" somewhv .e about the l£th.

" Q. < 'an you tell me how many seals you caught in 1890 ?
i' A. No, sir, I do not remember.

■ ai

>i.lJ

i ,'"'si»' !jlfi!'!.4.

h' i

■:|iH

■ m^

■ 1

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■
1

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292

(Mr. BoUwell's Ai'irument.)

" Q. Was your catch large or small / A. It was not l)i
" I do not think I cau;^ht more than .'lOO or (iOO.

" Q. In Rehrini; Sea ? A. Yes, sir.

" Q. What rea:!on do you put that down to? A. 'J'h
"hunters I had were not any extra good.

'' Q. And what ahout the weatiier ! A. 'I'he weather was
" pretty rough, I thirds, in the first part of August."

That agrees with other evidence which lias heen referred to
anil whicli is meiitioued in our Argument as to the season (if
hSftO.

Our conchision, therefore, upon this liranch of the case is that
wlien your Honors read the whole of the evidence ridating to
the circumstances under which these various vessels left the Sea
you will not find anything that is in contravention with
tlic ] osition We have assumed : viz., that there was in al

20 these years weather which was suitahle for sealing extending on
to the end of Septemher. We saj' that our vessels were then'
outfitted to rtMiiain for that length of time and that they staitt
with that intention.

W'l' ask y')ui' Iliiiiors to lind as a fact that the}' wouKl have
roniaine(l in the Sra until the niiddli' of the month of SeptetuhiT,
or as long as was necessary for them to make a successful catch.
We do not assert tliat they would necessarily havi,- remained
there luitil that time if they had previously Uimle a good catch,
liecausi', as a rule, tliesi; vessels came home as sdon as they olitniued

30 a satisfactiiry nundier of skins.

Aiuither thing which may he said is that if the eviileiice (jI'
the witnesses as a whole is to he taken, the record shows that
seals were mort^ than usually ]dentiful in the years of liSSt! and
liS,s7, and, therefore, a go(id o]iportunity to make a large catch in
a sJKirt time.

Till.' Vessels in (piestion were all found in the Sea. mi gond
sealing giomids.and in the act of tidcing a lai-ge nundier of seals,
and we ask your lionor.s to conclude that if tliey had Tiot heen
intorferred with they would have contituied to hunt successfully

40 and would have retiirru'd to Victoria with large catches.

SEAI.IXli OUdUND.S IN IlKIIRINC SK.\.

There is another suhject upon which we arc in considerahle
conflict with our friends on the other side, which naturally griws
out of the evidence alread}' referrecl to and that is as to the
locality of the sealing gi'ounds in ]iehring Sea.

( )ur contention is that within certain defined linuts which have
hecome well ktiown thens'were places in which it was lilways |iossi-
hli^ to fiiiil seiils, — not always po^silile to find seals in the exact

.")0 ilegree of latitude and longitude where they hacl heen seen in
previous years, l.ut that within certain linuts which were not far
apart, and that it was ([uite |)ossilile for an ordinary v(.'ssel to cover
the space when sealing. 'I'he seals followed the fish, which were
plentiful, someiimes in one place one year ami in another place
in anoth(»r year, hut always within a e<Mtain liiidted area, so that
the vessel, if not successful in the first instance, always knew
where to go. and usiuiily did proceed to the place where the
seals actually were for the time heing in great inunhers.

I think my friends on the other side have not (juite a{ipre-

00 ciatiMl the force of a portion of the evidence which wo have
intr()duc(Ml, and the sources from which it derives its weight.
We introduce<l a consideralile amount of evidence taken
from maps whicli had lieen prejtured hy the Tniteil States
authorities and a nundier of statements from the Uinted States

1(1

ca.ses a I
the evi
applied
accurac
your H
dence
heen cp
point u
be give
VVi
stage
sealing
the seal
that th(
the .sea
tliem
20 thenisel
tion an(
The
find lai
applyin
assume
hearing
winch if
inconsis
a contn
;)() law ha!
Kstoppe
"If
" positio
' of just
' cess of
" it.s exe
" all mei
" and CO
" who cf
40 " It
" that 01
" has tal
" litigati
" and lo(
The
nuist ha
of the c
was crac
when 1
;^0 .Mr. :
peiiuittt
as io a {
The
course, i
tioii.s.
weighs (
sonietini
of a coti
Mr.
(iO original
or an i
aiithorif
his Hcti(
that he

203

(Mr. Bodwcll's Argument.)

ca.ses and affidavits tlierein referred to and made them a part of
the evidence. They were used hy the United States wlien tliey
applied at Paris for regulations. Our friends now contest the
accuracy of that evidence. 1 think I sliall be able to convince
your Honors that they are practically- corroborated by other evi-
dence which has lieen given, although some of them might have

10 been qualified if there had been a rigid cross-examination But the
point upon which we introduced the evidence and the force to
be given to it, arises fiom an entirely ditlercnit consideration.

We take the position that the Uidted States liaving at one
stage of this controvery made their case on the ground that
sealing was being conducted so successfully, that the habits of
the seal were so well known, the places of abode so well defined,
that the efforts of the pelagic sealers were practically tlestroying
the seal herd, I say, we assert that it was not competent for
them at another stage of the controversy, in order to benefit

20 themselves, to take an entirely different and inconsistent posi-
tion and assert that the forniei contentions was not correct.

The rule of law is one, I submit, which your Honors will
find laid down in tlie Miinicipal Courts of both countries as
applying to litigation between private individuals, and we
assume that your Honors will hold, even without authorities
lienring directly on ilie point, that in an International Court,
which is a court of honor and gooil faith, the rule applies, that
inconsistent positions cannot be assumed at difierent stages of
a controversy for the sake of benefitting either party. The

.SO law has been concisely stated in a chapter in Bigelow on
Estoppel, 5th Edition, page 717: —

"If parties in court were permitted to assume inconsistent
" positions in the trial of their causes, the usefulness of courts
■'of justice would in most cases be paralyzed ; the coercive pro-
' cess of the law, available only lietween those who consented to
" its exercise, could be set at naught by all. fiut the rights of
" all men, honest and dishonest, are in the keeping uf the courts,
" and consistency of proceeding is therefore required of all those
" who come or are brought before them.

40 " It may accordinyly be laid down as a broad proposition
" that one who, without mistake, induced by the opposite part}',
" has taken a particular |)osition deliberately in the course of a
" litigation must act consistently with it ; one cannot play fast
" and loose."

The Connuissioner on the part of the United States : — That
nuist have been in the days of special pleading. What becomes
of the case where the defendant say.s, " I never had the pot ; it
was cracked when I borrowed it ; and if 1 had it, it was whole
when 1 returneil it."

"'0 .Mr. Bod well : — That is a case of alternative pleas which are

permitted. This authority is referring not so much to pleading
as to a position assumed in the action.

The Commissioner on the part of the United States: — Of
course, it weighs against the party to take inconsistent posi-
tions. But I do not think there is any rule of law about it. It
weighs agaijist the party taking the iiiconsi.iuent positions and
sometimes with very great force, almost sometimes to the extent
of a conclusive j)resumption against liim.

Mr. Bodwell : — I can easily understand that a man in hi'?

(il) original action might set up an alteiiiative ground of complaint
or an alternative ground of defence, but I understaiul the
authorities to mean that if he has taken u deliberate position in
his action and tlie litigation has proceeded upon that ground so
that he has obtained an advantage by reason of that position he

■k.

1,1. I iia 'loi-

l: 'i

294

{Mr. Bodwell's Argument.)

is not afterwards at liberty when his interest chanties to take an
entirely ditlerent stand inconsistent witli his fortner assertion
and ask for an advantaj^e on tliat ground.

The Coniniissioner on tlie part of tiie United States : — I did
not mean to shut you oH' in your argument on that point.
There is no doubt that tiie United States took that position nt
10 one time, and it weighs againnt them now.

Mr. I'odwell :— '1 here is a case upon that point of Davis v.
\Vakel(e, in InG TJnited States, page (iSl. In that ease: —

" D. was adjudicated a bankrupt in 18(59 in California. W
" then held six promissorj' notes executed by him which were
" proved in bankriiptey against 1) 1). then removed to New
" Yi>rk. After that \V., by leave of court, reduced his claim to
" judgnu'nt in a state? court of California, tlie oidy notice to 1).
'' being by publication, and D. never appearing. In 1875 ]).
" petitioned for his discharge. \V. opposed it. I), moved to dis-
-0 " miss the objection on the ground that the claim of W. had
" been absorbed in a judgment obtained after the commeuce-
" nient of tlie proceedings in bankruptcy, which would rema in
" force. The court sustained the motion, cancelled the proof of
" the debt and dismissed the specification of op[)osition. \V.
" then tiled a bill in equity in tlie Circuit Court of the United
'• Stat"s for the Southern District of New York to enforce an
" estoppel, and to enjoin D. from asserting in defence of any suit
"which might be broiight upon thejudL ^ent that the debt u[ion
" which it was obtained was not nieigeii lU it, an<i from denying
SO " its validitv as a debt against D, unaffected by the discharge.
'■ held :-

" (1.) That the Judgment wa.s umioubtedly void for want of
"jurisdiction.

"(•J.) That nevertheless D. was estojjped in ecjuity from
" claiming that it was void :

"(.S.) That in view of the uncertainty which appeared to

" exist in New York as to whether a complaint in an action at

" law would or would not be demurable, it must be hehl that the

" remedy at law was not so plain or clear as to oust cost of

•40 " equity uf Jurisdiction :

"(4.) That the degree below restraining D. from asserting
" that tlie Judgment was invalid should be affirmed."

There is anotlier case of Lawrence against Keener, 24
Atlantic Reporter, page 290, and the head note is this : —

" A debtor, holding the legal title to land, after sale on
" him execution against, cannot maintain ejectment against the
" purchaser on the groutul that there was a resulting trust in favor
' of the estate of his deceased wife, he having only a life interest
" and that the sale was not made pursuant to Act, Jan. 24, 1894,
50 "providing for the sale of life estate-; in land, where there was
"evidence that before the sale he asserted that his wife had no
" interest therein."

There is another case in 19 Queen's Bench Division, Roe
against the Mutual Lorai Fund, Limited, page 3")0, where a
man having set up that a bill of sale was valid for the purpose
of obtaining an ddvantage could not rfterwards contest the
invalidity of the bill of sale.

Lord Lindley in delivering judgment in that ease said: —
" I am of the same opinion. Before this action the plaintiff
(10 " treated the bill of sale as valid, and everything was done in
"the bankruptcy on that footing. The plaintiff got the lieneBt
" of inducing thf creditor to accept a composition and to dis-
" charge him, and now he desires to turn around and treat the
' whole thing as invalid. The plaintiff's position and that of

295

(Mr, Boilwell's Argument.)

" the creditors, including the defendants, has been so changed tliat
'• the plaintiff is estopped from saying tliat the representations
" on which the wliole thing turned were incorrect. The clause
" in the letter which encloseil the receipt, to the effect that the
" receipt was to ho without prejudice to the plainliff's right, was
" an ineffectual protest, indicating the intention of the plaintiff
10 " hut having no legal operation."

There is also a case, Gandy vs. CJandy, in 30 Chancery
Division, pages ")7 and !)H, where there is a ver}' well con-
sidered opinion upim this whole subject. I do not wish to
take ujitime upon this point, for. after all, I was only introducing
it by the wa)- of preface to show that we were depending for
strength not so much upon the strict accuracy of the witnesses,
although we believe them to be substantially correct, and corrob-
orated Ijy other evidence, but upon the contentioti that it is not
competent for the Uniteil States to take a ditl'erent position from
20 that which they have taken and nmiiitaincd in the original case
which they put forward at Paris ; because they have had an
ailvantage on that ground. Thev have obtained regulations
which were satisfactory to them upon the conteitt''^n that we
were slaughtering seals to an unlimited e.xtent, and that unless
the arbitrators brought into force stiingent regulations there
was danger of the extermination of the whole seal herd.

My friend, Sir Charles Tupper, has referred me to a portion
of Mr. Phelps' argument on page ',i{)7 of V^ol. 1') of the United
States reprint, in which he says : —
30 " But it is, of course, like all such facts, a general one that it
" is impossible to bring to an exact point. Now, where are these
" seals found when they do go out ? That enormous numbers of
" them are taken is shown. That of these the greatest propor-
" tion are nursing mothers is shown. Now, where are they taken
■' in the Behring Sea ? That has not been ipiite shown in the
" argument. I have not particularly addressed myself to that
" question. I have dealt otdy with the fact that they were taken
" in the Sea, and when they were taken, and what their con-
" dition was, and what proportion of them were in that condition,
40 " and pointed out how the British evidence concurs with that of
" the American in its great weight.

" In the appendix to the United States cas(% Vohune 2, we
" have from a nun>ber of sealers a statement of the distances,

" On page 400, Adair speaks of the distance — the distance I
" mean within which they took the seals — as being from 30 to 150
" miles.

" Then Bendt, on page 404, gives the distance as from 10 to
" 150 miles.

" The President : — Is this from the island.s ?
.")0 " Mr. Phelps : — -From the islands. On page 405 Benson gives

" the distance as 65 miles.

" On page 315, Bonde say.s 10 to 100 miles off St. George
" Island.

" On page 413 Collins .saj-s a distance of 100 miles or more.
" On page 328 Jacobson says, a distance of 200 miles
" On page 448 Keen says a distance over 150 miles.
■ On page 435 Lansing, a witness who is also examined on the
" British side, says from 50 to 150 miles.

" On page 4G4 Maioney saj-s a distance of 40 to 200 miles.
<>0 " These are all the witnessijs, I believe — it is intended to be all
'■ the witnesses — -who give precise distances."

That is our position heie, that the sealing grounds are wall
known to extend a distance of about lOO miles, sometimes to a
distance of 150 miles towards HogosloH, but generally speaking

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iMj

if;:

29(5

(Mr. Butlwells's Ai'(,'iuiient.)

witliin IX rniliiis of 100 miles around the islands. We say
that the seals go upon the islands and when they have performed
the purpose that brinjjs them there, they scatter over the sea in
search of food and travel from 40 to (iO and 100 miles, from
the islands in all directions. That is our contention, and as 1
JO have pointed out to your Honors, that was the contention of
the United States before the Paris Triliunal.

I do not think there is any doubt your honors, but that the
United States made tliis case deliberately at Paris. I refer to
20!) of volume 2, American reprint, wheie it clearly appears.

Mr. Lansinj,' : — Is this in the record ?

Sir Chas. Tupper : — Yes ; it is in the record. It is referred
to.

Mr. Lansiu",': — Are you not estopped in the British case
from ])roceedinfj on that ".jround ?

Mr. Uodwell : — I do not think so. We diil not deny we could
take seals in <;reat numbers. We did not deny as a fact that
we have taken nursing seals. Sir Charles Tupper is more
familiar with that part of the case than I am.

Sir Chas. Tupper ; — All the dispute was as to how many of
the nursing females we took. Their percentage we claim was-
unreasonable, but it was never denied that we took females.
We claimed the right to take all kinds of seals and that was the
(juestion fought out.

Mr. Bodwell : — I shall leave that point, but I think I am
(|uite justified in that view of the law to refer to the extracts
30 which have been actually read into the evidence and made a
part of the rec<ud on this point.

The first position taken by the United States in their present
argument is at page 200. They say that we are altogether
wrong in using the word " Banks " or calling this seal fishing, or
referring to it in the same form of words that one would use in
speaking of fishing voyages or operations connected with ordinary
fishing. The principal grouncl upon which I understand my
learned friend bases that argument is this ; that the chart.s sub-
n\itted to the Commission do not show any banks or grounds
existing as there are in fishing localities generally. It is not
correct to say that there are no banks in the Behring Sea or that
the soundings do not demonstrate that there are place.s which are
considerable more shallow than others. If your Honors will
consult one of the Admiralty Charts of Behring Sea, you will
see a great many places spoken of as banks and marked on the
chart as such : they are not as shallow as they might be but
still they are a great deal shallower than otlier portions of the
sea.

We have ev'dence upon that point also. At page 740 of the
50 evidence, line 10, Captain Lauchlin McLean speaking of the food
of the seals says as follows : —

" Q. Are there banks of fish in Behring Sea that are per-
" manent ? A. There are banks marked on the charts that are
" permanent — sandbanks.

" Q. Are there banks of fish that are permanent in Behring
" Sea ? A. Not that I know of.

" Q. When you come to look for seals you do not look fiir
" any jiarticular jiosition on the chart, do you? A. Well, we
" get aiouiid the (MJgL' of the l)ank.

" Q. Ate there always fish around these sand banks? A.
" I never tried to fish there : we sec fish at times jumping in the
" water."

It is (|uite apparent that there are locations in Behring Sea
where there is shoal water, using the term in the relative .sen^e.

2i>7

(Mr. Bo<l\vuir« Arfjuinent.)

nntl whore fish are more likely to be found than in (jtlier places,
and as a fact in navigatinj; Behrinj; iSua the captains of the
vessels endeavour to ^et as close to these positions as the}- can,
knowing from past experience that they are the most likely places
in which to find seals. The records discloses that the fish upon
](» which the seals feed are to a certain extent migratorj", but I
would ask your Honors to find on the whole evidence that the
tish are always discovered in some of these shallower places, and
that the seals are there.

In order to establish our position with reference to the
fact that there are defined sealing; i,'rouiids in Behring Sea,
we put before your Honors a number of charts which have
been prepared by the United States for the purpose of their
case at Paris. In all of these charts there are positions
marked and information given which we submit to your Honors
•20 as very important evidence to est,ablish our contention that
the limitations of the sealing grounds exist as a fact. These
charts are really very important to our case and I will hand
them to your Honors for inspection. I will defer my argument
upon that point until your Honors have had the opportunity of
referring to them.

At page liS+y, line 22, there is a note of the dirterent portions
of the United States' case, which were read into the record, and
the evidence to which I have referred, on which we rely. There
was a short note taken of it at the time, and I do not think that
;;(! the (|Uotations were read. At any rate I should like to read them
now in order to pre.serve the connection of my remarks.

The Hrst reference is at page StiO, volume 8, of the ITnited
States Reprint, take from the affidavit of William Hrennan. He
says, speaking of the vessel : —

" If a vessel hunts seals from January to May along the
"coast and pays expenses it does well at the present time, and
" very few do it. Nearly all would lose money if the hunting
' was contined to the Pacific Ocean, but they depend on the
" Behring Sea catch, where the seals are more plentiful and
40 " occupy a more limited space as a feeding ground."

At page SOJi of the same atlidavit he says : —

" When they arrive in Behring Sea later in the seasrm they

■ start in to work in earnest. The water is full of them and you
" can hear them firing all around. The vessels enter the sea
" about July, but get the most of the seals in Augu I or early
" September, when the weather gets bad ; but they u ■ .lally have

■ a good catch by that time, if not interfered with."

I now read from the same volume of the United States
reprint, page oli. It is also an affidavit, put in by the United

.')() States, and is made by Hernum Liebes. Mr. Lielies says that
he is i')0 years of age, resides in San Francisco, California, and
that he has been in the fur business sin'-e he was 13 years of age,
and established in his own business si ice 18(i4. Page 514 he
says ; —

" The poaching vessels a few years ago have been known
" to get as many as ;i,GOO or 4,000 skins, ami deponent has
" bought 4,000 skins from one vessel, whereas no poaching
" vessel now gets more than a few hundred with the same size
■' crew."

(jo That affidavit was made on the 4th day of April, 18!(2.

The next is an affidavit from Melovedott', who your Honors
will remember was mentioned frc<iuently in the course of the
tvidence at Victoria, and who resides at Kailiak. At page 14;{
of the American reprint Volume 3, he states as follows :

' ' :,'

T^r'wT

'"rniFi

''SH'

' }

;: Hi

i
t

^ 'ft

4 '• iifi! r

% mm

I'C

!i; 'I ■■ ifi'i-l

'<i9

!•;

•H'--'

' ^^

,!r'

, i! .'

...1

!1:

:'}' '■

' i

'vH

' 'iH

'*')Wr

tii-,

11!

2!KS

(Mr. liodwcirs Arguini'iit.)

" From liS84 tla' ."cIidoirtm kept on increa-(injj, until in IMIII

" tl.erc was tnore tlian one limiilreil. 'I'lieso scluxmers care very

" little alxnit cominjj; to ilie Isiaiuls to take soais on tlie lam), for

10 they only have to hovt-r around tin; tishiny l^'inks tVnin /)() to

" 200 miles away and take all the seals they want."

That is a form of expression which appeals to liave lieen
made use of l)y the witnesses who have known whether thiM'e
were places m the liehrinj; Sea which could be descrihod as
Hsliini; liank>. With reference to MeloveiloH' we ouj,'ht to ha\ e
some description of him. He says in the l)e;i;innini.,' of hi>
atlidavit — pajjje 142 of the same volume — " I am thirty-eii,'ht
" (*iS) years of nye and I wa.s horn '»n Kadiak Island, Alaska, I
" came to St. Paul Island in IHM, the first time, and in Ihtift the
-0 •' second time. I have resided here since Dsfi!) and I have been
"constantly employed anion;:; the Alaskan fur seals in all that
'■ time. I have had a lari,'e and varied experience in all the
"details of the business as it has been cariicd on on St. i'aul
" 1-land, and I have done service in all the departments from
" the work of a boy to that of Fir^t Chief of the Island."

The next reference \n from the alKdavit of (ieortje Wardman,
who was the editor of the "Fittsburj..;h I'ress," and who made a
trip for the purpose of taking; observations an<l i^ave a result of
his experience. At pa;i;e 17i» of the same volume, he says :

;iO " As seals are found in large numbers over 100 miles from
" the Islands durint; the entire summer, a zone ',\0 or 40 miles
" al)imt the Islands in which open sea sealing were preventiid, if
" such could be done, would be of comparatively little protection
" to seal life."

The next reference is an alKdavit made by C'. S. Scammon,
and he cleposes as follows :

■ I am ()7 j'ears old and a resident of Oakland, Cal. I am
"and have been an otllcer in the United States Revenue Marine
"Corps since IStiU. In 18()5 and liSdIi I was in command of the
40 " Western I 'nion Telegraph Company's fleet of vessels when it
" was expected to establish a telegraph line to Europe via
" Hthring Straits. In this capacity and later as commander of
■' Vessels under the I'^nited States llyvenue cutter llag, I re-
" peatedly passed through Mehring Sea, touching at the seal
" islands. I am the author of the work entitled "The Marine
" Mammals of the Northwestern Coast of North America,"

• publisheil by J. H. C'armany & Co., San Francisco, 1M74, In
" preparing chapter IV of part 2 of that work, relative to fur
' seals, I consulted every accessible authority' upon the subject

50 " and added the result of my own observation and experience.
" Since then eigliteeri years have elapsed and many new facts
"have been brought tt) ligliteoncerning them, confirming for the
" most part what was then written, yet modifying to some
"extent the conchT-ions arrived at."

The part of the affidavit upon which we rely is to be found
at page 47"), and is as follows :

" I hav(^ no doubt the northern seals of the i'ribilof Islands
" spread over a very wide extent of the North I'acitic in winter.
"They are occasionally seen far otl from land, but are much
(jO " more numerous within soundings. Their food is mainly fish,
"and Ihey are naturallj' found where that is most abundant.
' Seal hunters say and statistics show that where tisli are most
"plentiful, as in latitude ">.■) to .Mi north, in Hehiing Sea, on the

• iShumaLrin Hanks oH" the Alaskan Peninsula, and ort the

■10

:)(i

.")!)

III!

■2!)!>

(Mr. llodwi'lI'M Arjjumi'iit.)

" entrancu to tlie Straits of t'lica, tlicre tlie liest catclius of sL-als
" are ma''"."

I n-ail now from an aHidavit wliicli was rt-fLrri'd to by Mr.
I'lielps on tliat part of tlu? arjjiiinent to which I cbIIlmI Your
Honor's attention a few minutes aj^o. On iiaj^i'.Sl") \iels Itond,
deposes as follows :

" Niels Honde, lieinj,' dnly sworn, deposes and says: I am
'2+ years of a^'e ; residence, Victoria. I^ritish C'uliimliia : occii-
" pntion seaman. I went sealinj,' as iJeeU hand in the Hritish
'schooner Kate, (,'«ptain Moss, master, in 1.SS7. We had twenty
"canoes and Indian hunters who used spears, ii.\copt in calm
" weather, when they would nse shot jjuns. Wo sailed from
" Victoria the l.'jth of !\larcl), sealin;^ otf Harclav Sound, between
"there and Cape C-ook, ami caiiiilit .")22 seals Came liuck to
" Victoria in jMay, dischaij;od our skins and thc^n went to
• Hehrini; Sea, arrivin<; there in -luly. Wu came out of the
" Hehrinj; Sua the latter part of Aui^iist, and liad catii^ht about
"1700 seals between the I'ribiloH' Island:- and Alaska: wo
"cauj^ht them from 10 to 100 or more miles otl' St. (Jeorj^'e
" Island. Tlie larijest catch we liad that year in any one day
' was 2f)G seals. We only took ei<;ht cano(>s and one boat into
" Helirinjj Sea."

1 tako the followin'j; frotn the United Stites cas", pa<;'i ll.'i,
volume 2, American reprint :

" Necessaril}' after a few days of nursinij her pup the cow is
" compelled to seek food in order to provide swtlicient nourisb-
" ment for her ott'sprini;. Soon after coition she leaves the pup
" on thi rookery ami goes into the sea, and as the pup jjets older
•'and stron<»er these excursions lengthen accordingly until she is
" sometimes absent from the rookeries for a week at a tin

" The fooil of all classes of fur seals consists of s(|nids, tislies,
"crustaceans, anil molliisks, but sipiids seem to l)e their principal
" diet, showing the seals are surface feeders. t)n account of the
" number of s(!als on the islands Hsh are very scarce in the neigh-
" boring waters ; this necessitates the cows going many miles in
" search of her food."

That is rather an imi)artant stit(!ment. It continues :

" They undoui)tedly go often from one humlred to two lum-
"ilred miles from the rookeries on these feeding exeur>ions
" This fact is borne out by the testimony of many experiunci ,
"sealers, who have taken nursini.i females a hundred miles ar 1
'• oviir from the islands, and Capt. Olsen, of the steam schoonei
" Anna Meek, states through the " Victoria Daily Colonist " of
"August .'ith, IISST, (which is pulilislied in tlu! Miitisli Hliie
" liook, IfSDO, C (li;U, p. SI) that 'anyone who knows anything
■' of sealing is aware that such a charge (catching seals in Alaskan
" waters within three leagues of the shoio) is lidiculons, as we
" never look for seals within twenty miles of '...r They arc
" caught all the way from twenty and one 1, i; •.; d and fifty
" miles off' the land.' ('apt. Dyer, of the seized si'aling schooner
■ Alfred Adams, contirmed the above statement l)y saying : ' We
" hail never taken a seal within sixty miles of Onalaska, nor
" nearer St. Paul than sixty miles soutii of it.' Among the
"depositions taken before Mr. A. U. Milne, Collector of Customs
" of tlie port of Victoria, Mritish Columiiia, several of the depon-
' ents give testimony as to tlie usual sealing distance from the
'■ I'ribilof Islands while in Hehring Sea. Capt. William Petit,
' present master and part owner of the steamer .Miseiiief, gives
" such distance as from sixty ti one hundred miles, and states
" that seals aie found all along that distance from land in larg(^
"numbers. Capt. Wuntworth Evelyn Maker, in.isterof the Can-

■ ly

■illif^f

;s;:t*i!

mall

..'•iJS?'"

;l ■

MOO

(Mr. Ht)(hvt'll'H Aiffumuiit.)

"adian schooner C. H. Tuppor, ami t'ornierly master of tlic
" schooner Viva, says tliat the distance from land was from thirty
"to one hundred miles, usually sixty uiiles. And C'apt. Wiiliaui
" Cox, master of the schooner Sapphire, places the principal
"hunting {ground at one hundred miles from the islands of St.
" George and St. Paul Island. Capt. L, ( J. Shepard, of the United

10 " States Uevonue Marine, who seized several vessels while sealing;
"in Hehriiig Sea in 1K87 and l(S8l), states: 'I have seen the
" milk come from the carcasses of deail females lying on the
" decks of sealing vessels which were more than a hundred nulis
" from the I'ribilof Islands.' He further adds tiiat ho has seen
" seals in the water over one hundred and fifty miles from the
" islands during the summer. The course of sealing vessels and
" their daily catch show al.so that the majority of thra seals taken
" in Bering Sea are secured at over one hundred ndles from the
" Pribilof Islands. The distance that the .seals wander from the

20 " Islands during the summer in their search for food is clearly
" shown by the ' Seal Chart ' compiled from the observations of
" the American cr"isers during their cruises in Bering Sea in
"July, August and September, 181)1."

I call your Honor's attention to that statement relative l.o
the chart, because that is one of the charts upon which we rely,
and to show that it was authentic and prepared for this purpose.
I refer you to this i|uotation from the American case. That seal
chart is No. (!, which I will sulnnit to your Honors, and was
compiled in September, IH'Jl. This extract is also useful upon

30 the duration of the sealing season, that is insofar as it is a piece
i)f evidence establishing the fact that seals are found within
these limits in the month of September.
Mr. Lansing : — What year ?

Mr. Hodwell : — ]«!)!. Hut, as I ha mdy said, these

seals are the same kind of animals, occup^y.. „ the same grounds,
and having the same habits. It was used by the Unitetl States
as being evidence of the locality of the seals in the years that
the sealing took place, and when the ilispute arose. 1 take the
following ([uotation from page 201), volume 2, of the American

40 Reprint: —

"After the Hrst of July the cows are nearly all at the
" rookeries, aTid having given birth to their young they go into
" the water in search of fond, in order that they may be able to
" supply tluNr offspring with nourishment. And as has been
"shown they often go from one hundred to two hundred miles
" from tile islands on those excursions. It is while absent from
" the rookeries feeding that they fall a prey to the ]wlagic seal
" hunter."

We uNo put in evidence the affidavit of Captain L. (i.

50 Sheppard taken before the Congressional Committee, which was
ajjpointed fov tin; purpose (jf en(|uiring into the subject. Gaptain
Shepliard is dead, and this evidence was allowed to go in and is
to be found ft page 2.S0 of a book called " Fur, Seal, and Other
Fisheries of Alaska," printed by the United States Government
in tlie year 18.Sf). Tlie Hrst of thi.s (piotation your Honors will
see will bear out my argument as to the distance that canoes
go from the vessels. Captain .Shephard's evidence was as
follows: —

" The Indians go out in the canoes, two Indians in each

(iO " canoe. They shoot the seals with .shot guns or spear them.
'• The\' .sometimes go (|uito a distance from the vessel. I have
" seeti canoes iS or 10 miles from their vessel. They g(} out in
" different directions and thus cover a large surface of the sea.
" A vessel with 15 canoes can cover a surface of the sea pretty

:iO

301

(Mr. B(k1wo11'h Arguinont.)

" well for 12 miles in every direction from the vessel, and any
" Heal cominfj within that surface Htand.s iv pretty poor chance of
"getting; nway, as the Indijviis iiro very expert in taking them."

" Q. Why tlo they go to that particular locality ? Is that
" the feeding ground ? A. They paHs this locality in going to
" the feeding ground near the Aleutian Islands. I uixierstand
" the seal lives on Hsh.

"Q. The hunters intercept the seals constantly as they go to
" and from the islands ? A. Ych, sir ; that is what I understand.

" Q. Do you have any opinion as to the probable extent of
" the destruction of seals hy these unlawful hunters ? A. During
"the season of 1887 I estimated that they killed 40,000 seals
" and would have taken 20,000 more had no seizures been made.
" We captured 15 vessels, on board of which wo found about
" 12,000 skins. Some of the ves-sels captured early in the season
"had taken only a few skins. The number varied from 150 to
" 1,500 skins on each vessel."

And at page 238 of the same volume ho gives the following
evidence : —

" Q. What is usually a fair catch for a vessel of the de.serip-
" tion of those now being fitteil out? A. It varies very much,
"according to the size of the crow; but from 1,000 to 2,500
" seals.

" Q. Say 2000 ; would that bo a fair average ? A. I would
" say 1 ,800."

That Knishes all the extracts from the United States author-
ities which I wish to give on this point ; and as it is now half
past four, I shall proceed with my argument with reference to
the charts at the next sitting.

At half- past four o'clock the Commissioners rose.

Commissioners under the Convention of February 8th,

181)6, between Great Britain and the United

States of America.

Legislative Council Chamber of the Provincial BuiUiinfj,

At Halifax, N. S., September Gth, 1897.

At 10.30 A. M. the (^ommi.ssioners took their seats.

Ml. Hodwell, continuing: — When your Honors adjourneJ on
Saturilay I ivas about to refer to a number of sealing charts
that were put in evidence. 1 wish to call your Honors' attention
to them at this stage of tlie argument. The first chart is a
Migration cliart, sliowing tin; direction the seals take on their
journey from the North Pacific Ocean to the Prybilofi' islands.

Our contention is that the sealing in the Sea was not
carried on to any great extent until after the seals had Tiuide
30 their first journey to the Islands and had settled in their places
thei'e. 'i'lierL'fore, the e.\act course which the seals take from the
Pass to tlu' Island, while entitled to some consideration, is not
a mattt r of so much importance as to necessitate any lengthy
connnent from me.

I may state to yom- Honors that in our printed argument at
pages .")7 and .")9, we refer to the charts to which I am now
calliii'' your attention, and we 'Ava a statement of the inferences
to lie drawn from them.

The second chart is oik^ prepared by the United States
40 authorit'i.'s, and is chart numbei- G, calleil the sealing chart,
showing the position and number of seals observeil and reported
by the United States cruisers in Hehring Sea.

The Commissioner on the part of the United States :^ln
what Near .'

Mr. P.o.hr.'U : — in ]H9:'.

Mr. Lansing : — That is chart number six.

Mr. r)odweil : — Yes; this is a chart based upon obsi'rvations
tiiat were taken in the sea by the United States authorities, as
to the places where seals wi'rc; to be fouml in most abinidance.
•>0 The ( 'ommissio.'ier on the part of the United States: — The

one we had on Saturday evening was IH[)\.

.Mr. l')(>dwell : — Yes, that was chart number 4. As all the
charts are not at the moment at linnd, I will refer to such as
are here, thou:,di 1 intendi'il to sjieak of them in a different order.

I'ire is chart number !, which shows the track of tlu; cruisers
of ;lie United Stat(!s iti Hehring Sea when they were patrolling
to intfrcept sealers in IS'M.

I hand you now a chart that is useful for your Honors
(jO in following th;' n lu.uks I luay have to make. it shows
Hehring Sea, simply the lofun in t/uo.

Mr. I/uising: — Is that chart luimlier one of the ( 'a^o ?

Mr. Li)(lwell : -It is a blank el.ai't. lii're is another chart,
maile by Mr. Townsi'ud, showing the localion, at ditlerent

303

(Mr. Bodwell's Aijj;utnent.)

seasons, of part of the catcli from 1883 to 1893 based on the
\.)'r entries of five vessels enrjagcil in pelaj^ic soaiinj^. In
'i'ownsend's report, alreaiiy before you, there is a table of posi-
tiiius she\vin<,f tlie locution of f.ho schooners whose lo^js were used
in niakinji; up the chart.

Here is another ol-.art prepared by th same man, showing
10 the location at ditierciit seasons of the catch of fur seals in !8!)4.

The charts which [ intended to call attention to first aie
those contained in volume thre^; of tlie United States Reprint.
Reference is made ir. the Record to then), but the actual charts
were not handed to the Commi.ssioners. For the time beinn;, I
will hand your Honors the volume of the United States case
wher' they appear, and you will see that the charts are all
numbered. It is volume number 3 of the United States Reprint,

The tirst chart is number 4. The next chart is nninlier 5,
winch shows the position of the seized vessels in 188(J, 1887.
20 1880, at the tinse when they were ariested.

There are also in evidence lof^s of certain of the seized vessels
but I can more conveniently notice tliem in a few minutes, and
will not make any mention of tiiem at present.

The T'liited States ari^'ument at pn^'es 212, 213, and 214
uiaUes reference to these chaits. At pai^'e 212, lu^ar the bottom
of the paf,'e, thej- say that chart number 1, in volume 7, demon-
strates that in connection with the patiol of the sea in the year
1891. the oidy coalinjr station in the eastern part of Behring Sea
is at Unalaska, in lliuliidc 'larlwr. Yours Honors will see that
80 (he chart shows the track uu the seizing cutters. There could
be no object in showinjf the arbitrators at Paris that there was
a coaling station in the eastern part of liehring Sea. The cliart
was no diiidit intended to show tlie course pursue<l bj' th(>
cutters, whicl as the event proves, was the course taken by the
sealinir ves.iels in the year when the cruisers patrolled the sea.

With refeiT'ice to the migration chart, there is really no
dilVerence between mj'self and my frienrls.

The refereiu'u to the Townsend charts in the United States

Mrgtimetit is a statement that they disclosed the state of affairs

40 in 1894 and 189.'>, ami with regard to that subject 1 have said

all 1 intend to say ; I think your Honors will understand the

position fioui our point of view.

With refei'tsnce to these charts and the evidence in connection
with them, our contention is tliaf in so far as they go they are
olijiet lessons, which on their face disclose that there was a
eel tain limited area in Behring Sea whei'e sealers always went,
and where the\- always fomul seals.

The Commissioner on the piu t of the United States : — I
would like to know the approximate latitude of the I'ass ?
Ml Mr. I'odwell : — It is between ,")4 and .").">.

The Commissioner on the jiarl of .;., United States: — What
is the extreme northern latitude wh(>re ;eals have been found, so
\',\v as yoin- case shows ?

Mr. Bodwell : —About o.S, 1 shou' i'link.

The Connni.ssioner on the part of the United Slates: — Then
it runs from .")4 to ,"j8 ?

Mr. Bodwell : —Down as fai- as liogoslotl' which is on .■)4.

The Commissioner on the part of the United States : — Tidl
Mir I wo or three things at tliis ]ioint. l^ogosloM" is on ."4, and the
iiO ixtl'i'liie northern latitude where setils Imve bi^eii I'oV.ml i^ nliout
.VS,

.Mr. Bodwell :— Yes.

The Commissioner on till" p:irt of the I'nite. I States : — Thnt
is about 4 de'Mves of latitude, and about 2."i() marine miles?

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304

(Mr. Bodwell's Argument.)

Mr. Boil well : — Yes.

The Commissioner en the part of the United States : — Then
what is the approximate degree of longititude of the Pryhlotf
Islands ?

Mr. Bodwell :— About 170.

The Commissioner on the part of the United States : — Then
10 what is the approximate number of marine miles between the
degrees of longitude at that part ?

Mr: Bodwell : — About what would you say, Mr. Lansing ?

Mr. Lansing: — About one and a half.

The Commissioner on the part of the Lnited States : — What
do 3"ou cull the extreme degree of longitude ?

Mr. Bodwell : — E^om about 175 east is the extreme in the

evidence. And the extreme eastern boundry as given in the

evidence is about 165. But the original sealing ground appears

to have been between 165 and 173. Bogoslotf is on 1G8 ; that is

20 about 5 degrees of longitude or about 150 miles.

The Prybilot! Islands nrc a little to the westward and the
northward of the cantre of the field. The figures we have given
to j-our Honors are what we consider to be the best grounds.

Now, before going further, and in line with the evidence to
which 1 have been referring, i think I might read to your Honors an
extract from the opinion of Mr. Justice Harlan, given at the
arbitration at Paris, as showing the impression that was created
upon the minds of the arbitrators there by the same evidence,
viz., these charts and the afiidavits, parts of which I read on
30 Saturday. It is a short extract and it shows the impression, as
to the facts presented there, created upon the minds of those
engvged in discussing it. At page 215 of Volume 1 of the Pro-
ceedings of the Tribunal at Paris, Mr. Justice Harlan makes these
remarks : —

" I now come to the important practical question as to what
" regulations in view of all the evidence are necessary for the
■' proper protection and preservation of this herd of seals."

" We have seen that these seals begin to leave the islands in
" September and by November substantially all of them are in
40 " the North Pacific Ocean, south of the Aleutian Islands. Dur-
" ing December they may be found off the coasts of the United
" States, north of the 35th degree of north latitude. In January
" they turn their faces northward and move generally in small
" schools or bands along, but some distance from, the coasts of
" the United States and British Columbia. Those in advance go
" through the passes of the Aleutian Islands on their way back
" to Pribiiof Islands, early in June. They are moving through
" those passes during the whole of tiiat month. By the first or
" tenth of July the entire herd has left the North Pacific and
50 " reassembled at their breeding grounds on the Islands of St.
" Paul and St. George. As soon as the mother seals reach the
" islands, or within a very few days thereafter, they give birth
" to their pups and take position wiM; the bulls by whom they
■ " have been appropriated. Accord';ig to the evidence the pups
" require sustenance from their mothers for about eight or ten
" woeks. During that period, say, during July and August, the
" mother seals, in vast numbers, go out into the sea in every di-
" rection, often to tlu; distance of 100 and 150 miles, in (|uest of
" food to su.stain themselves and their young. Seals have been
60 "taken in the North Pacific in January, February and March,
" but not to any great extent. The opportunity for taking them
" improves as tho season advances. The last half of April and
" the months of May and June are favorable for pelagic sealing,
" particulaily the two months last named. In Behiing Sea the

305

(Mr. Bodwell's Argument.)

" months of July and August are also very favorable for .seal
" hunting. While seals may be taken in that sea during Sep-
■' tember, it is not as a general rule profitable to pursue the busi-
" iiess there after August, or, at any rate, after the middle of
" September. The principal mischiefs from pelagic sealing have
" come from the killing of the seals in May and June in the North
10 " Pacific while the herd is moving northward to their land home,
" and from the killing in July and August in Behring Sea of
" breeding females which have left their pups on the islands for
" a time and gone into the sea in search of food."

It is therefore apparent that these charts and affidavits
convinced the learned arbitrators that from 100 to 150 miles from
the Prybloff Islands, and I think approximately within the de-
grees ()f longitude which I have stated to your Honors, the seals
were to be found in great bodies. That is exactly our contention
here, and I now refer to some of the evidence on which we base
20 that contetition.

We have covered the ground not quite as fully as I intend
to do, but to a great extent in our argument from pages 00 to
(!5. It is already printed in the argument and the reporter need
not take it.

Mr. Fiodwell here reads the extract referred to.

With refoti'iice to the statement as to Captain Warren's
voyages, I have hail that voyage, as shown in the evidence given
in the case, plotted on the chart which I will hand to your
Honors.
30 I now read from the testimony of O'Leary, at page 292,
line 20 :—

" Q, Will you look at the chart of Behring Sea, now shown
" to you, and say where yf>u found the seals to begin with ? A.
" Well, the first time I was there I hunted ; you see I have got
" no log of that year at all.

" Q. You are giving this evidence now from your recoilec-
" tion ? A. Just from recollection. I struck the seal tlie thick-
" est just about 1)1 miles to the westward of St. Paul.

" Q. What latitude and Ion' tude, about ? A. About 172

4(1 "west and 57 north. I struck im.- seal about west of St. Paul

" Island, perhaps west true, about !)() miles ; I hunted there.

" Q. That would be about what time ?
" first week in July, until the 22nd or 2.')tli
" there in that place.

" Q. Then where did you work ? A.
" there.

" Q. On what line of longitude, about ?
" in about 170 in the latter part of July, about 54J degrees north.

'■ Q, How did you find the seal as to quantity, when you
.jO " were sealing there toward the end of July ? A. 1 fouml them
' as plentiful as I wanted them."

Again O'Leary speaking of his voyage in 1887, on page 203
of the Record line +5, says: —

" Q. What was the occasion of your leaving on the 17th of
August ? A, Well, I got a little further to the eastward than
" I thought I was.

" Q. Wheie were you on the 17th ? A. I was otT what
" they call HogosloH'.

" Q. How far were j-mi off Bogosloff Island, and in what

>'iO " direction ? A. I was to the eastward, and might have been

" northeast of it I was probably 20 or 25 miles to the east of it.

" Q. What was the weather ? A. I hadn't been there very
" long, only a day or two, I think, if I remember rightly, I had
" been Co the westward and drifteil down to the eastward."

A Well, after the
■t July. I hunted

I went south froni

A. Well, I hunted

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(Mr. Bodwell's Argument.)

Rainlase speaking of his voyage in 1886, at page 301, line IG,
says :—

" Q. Looking at the map, would you be able to show the
" place where you sealed ? A. The only thing I can remember
" about it is that I saw Bogosloffon several occasions

Reppen, page 307, line 30, referring to his voyage on the
10 schooner " Grace," says; —

" Q. Would you be able to say in what position your vessel
" sailed during the months of July and August of the year 1S8G?
" A. So far as I can reuiember, the captain showed me the chart
" and we were i)etween the Prybloff Islani'f and Ounalaska.

" Q. If you were shown a chart as to that, would you be
" able to indicate approximately on the chart where you kept ?
" A. Oh, yes, pretty near it.

'■ Q. Point out on the chart where j-ou were in the month of
" July ? A. I was about 55 north latitude and 166 and 167
20 '■ west longitude.

" Q. You were there in July ? A. Yes.

" Q. In August did you remain on the same ground ? A.
" At the beginning of August we remaine<l on the same ground,
" and then we went further east.

"Q. How much further east did you go ? A. About 20 or
" 30 miles — We did not go very far."

In cross-e.\aminaiion, page 309, line 30, he says : —

" Q. Did yon sight the Hogoslotf Volcano when you were in
" the Sea ? A. We sighted it in the Behring Sea, yes, sir.
30 " Q. How far away was it ? A. I should judge we were
" wpie about 30 miles oft'."

There is a bit of evidi/nce which my friends have referred to
as to this witness which I might as well read at this place, page
310, line 45;—

' Q. Are there any particular hunting grounds in the Sea ?
" A. No sir, I- do not think it ; wherever you find the seals you
" stay.

" Q. Sometimes j-ou go to the west of the Islands ? A.
" Yes sir.
40 " Q.
'• sir.

" Yes, sir.

" Q. And sometimes to the .south ? A. Yes. sir.

" Q. Are the seals thicker in one quarter than in another ?
" A. No,

" Q. It just happens that you run acro'<s a number of seals
"and stay there for awhile ? A. \ es.

" Q. And then you go 60 or 70 miles in another direction ?
50 " A. Yes "

Tiiat stafeiiii'nt is not inconsistent with the other evidence be-
cause in these directions are the places where the seals are to be
found. The witness is spt^aking of the limits of the area, north,
west, south, and east of the Islands. He is not asked at that point
1k)W far in he goe-*, but the record he has given of his voyages,
shows the litidts of his voyages in these dirt'erent directions.

In the evidence of Moss, who sailed in the the " Favorite" in
18S(!, page 335, line GO, we have this testimony: —

" t^. Over wdiat ground did you work in 1887 '. A. In 18H7 '
(iO " Q. I mean gnifrally, can you tell b}' looking at the
"chart ? A. I had a navigator with me.

' Q Had you miiv idea yourself' A. (Examining chart),
" Yes, right along here. (Indicating).

" Q. Cm\ you give that by latitude and lotigtitue ? A. Yes,

And sometimes to the north of the Islands ? A. Yes,
And sometimes to the east of PribyloH' Islands ? A.

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307
(Mr. Bodwell's Argument.)

" Q. Do so, then ? A. 1C9.30 and 56 and some 15 minutes.

"Q. Did you stay in one place all the time? A. No, sir.

" Q. Which way did you go from there? A. South.

" Q. Towards what point ? A. Towards Ounalaska.

" Q. Then did you go any other way ? The last I sealed
" was off Unalaska, about 20 miles off Uunalaska.
10 " Q. Have you any recollection now as to where you were in
"1886 generally; I mean as to your locality in the Sea? A.
" Somewheres around the same place. That was Captain
" McLean's place,

" Q. Have you gone into the Sea in later years ? A. Yes,
" sir.

" Q. How many times ? A. Six times altogethe;'.

' Q. In what capacity generally ? A. Three times as master.

" Q. Now, generally, where did you go in the Sea ? A. I go the
"same place as I .say here, 56 north and 169 west.
20 •' Q. Generally, that is about the point you make for ? A.
" Yes, sir.

" Q. Have you made a catch g'-nerally ? A. Generally
" made good catches."

I will now read from our Argument lieginning at page 61,
where we speak of the evidence of Captain Alexander McLean.
It is printed in our Argument and it need not be repeated here.

(Mr. Bodwell liere reads the extract referred to.)

My friends in their Argument refer to this portion of Captain
McLean's evidence saying, as the fact is, that later on in his evi-
30 dence he stated that when he went back to the.se particular
grounds he did not find seals where they were before. But that
does not conflict with our position at all, because although he
did not find them in the exact degree of latitude and longitude
he found them within a reasonable distance and always made
catches. So that generally speaking he went to the same place,
while particularly speaking he did not. That is our case from
beginning to end ; these are general situations, they differ in
particular seasons within a certain definite area.

I will read from the British Argument, page 61, at the bot-
40 torn of the page the evidence of Captain McLean in bis cross-
examination, which need not be taken by the stenographer.

(Mr. Bodwell here reads the extract referred to.)

Captain Rayner, another witness relied upon to a considerable
extent in the Ai-gument of the United States, at page 524 of his
direct examination, line 65, says : —

" Q. What part of the Sea did you bunt in, in these various
" j'ears ? A. No particular part ; anywhere I found seals.

" Q. Did you go sometimes to the west of the Pribyloff
" Islands ? A. Yes, sometimes to the westwart! nd sometimes
50 " to the eastward.

" Q. Vo the north ? A. No, the northeast end not the
" north exactly.

" Q. And" to the south ? A. Yes.

" Q. From yoiir experience in the Sea will you state whether
" j'OU did find, in 1887-18S8, that the seals were to be found in
" the same place that you had foiiml them in 1S8() ? A. No,
" sir, they were not ; I never found successive years that I found
" seals in the same place.

" Q. In looking for soals out theie yon have to take }our
60 " vessel around various parts of the sea to come across a bunch
" of seals ? A. Yes.

Q. You do not hunt seals in heids, do you ? They are

" found in snuill bunches, are the}' not
" them bv two or three at a time.

A. Mostly ; I found

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308
(Mr. Bodwell's Arjjument.)

" Q. There is no such thing as running across thousands of
"seals and being able lo kill any number of them in a short
" time ? A. No. sir, I never found it so.

" Q. Seals are hunted individually more than collectively,
" are tliey not ? A. Yes, sir.

" Q. And they are found in bunches of two and three and
10 " of bunches of ten and eleven together ? A. Sometimes you
" see them in large bunches.

" Q. But they gt'iiurally awake and you cannot get to them ?
"A. They have what we call lookouts and are on the guard
" when in herds.

" Q. When seals aie awake it is harder to approach them
" and of course harder to kill them ? A. Yes, sir.

" Q. The majority of seals are shot when they are asleep,
" are tliey ? A. Yes, sir."

But in cross-examination we find out what the witness means
20 and it is directly in line of everything that I have been saying.
At page yiVt, line 52, he says : —

" y. Where did you go in 188G, what part of the sea ? A.
" Well, I was in various places.

" Q. Where did you go first ? A. The first time I went to
" Unimak Pnss, and north east to the St. Paul Islands.

" y How far ? A. I was about twenty-four miles off the
" Islands.

" Q. Had you l)een there for seals before ? A. Yes, sir.

" Q. Did you find them ? A. Yes, sir, I did.
30 -Q. Did you find them in 1886? A. Very few.

" Q. Did you find seal where you found them before ? A.
" Some.

" Q. That was the first position, and now where was your
" second position ? A. Well, I went all over the ground between
" the Pribylort' and Aleutian Islands.

" Q. Within what distance east and west ; within what
" degrees of longitude ? A. I really cannot tell the degrees of
'■ longitude.

" Q. Did you keep a log ? A, No, sir, I did not keep a log.

" Q. You were master of the vessel ? A. Yes, sir.

" Q. CJan you give us an idea, suppose you drew a straight
" line ilown from the Pribylofi' Islands to the Aleutian Islands,
" 1 understand you to say that your first position was longitude
" 175 and latitude o7 ? A. Yes, near to Bogosloff'.

" Q. Tlieii you went south, did you ? A. Yes.

" Q. Did j'ou go any further east than 171 ? A. No, sir, I
" do not think I did,

" Q. But you went south below ")4 did 3'ou ? A. No.

" Q. Ab(jve 5-t ? A. Yes, above .54

" Q. Then how far west tlid you go, did you go to 165 ? A.
" I went as far as Bogoslotl'.

" Q. Here is Bogosloff, latitud- 1G8, that is as far west as
" you went ? A. Yes.

" Q. Between these points was where you hunted in 1886?
" A. Yes.

" Q. Did you find seals ? A. I found scattering seals all
" the way over.

" Q. Did you make much of a catch ? A. I did not make
" any big catch.

" Q. When were you seized ? A. I was seized, I believe.
" on the 28th of July.

He was seized the 28th of duly, and he did not have time to
make a big catch.

309
(Mr. Bodwell's Argument.)

Mr. Lansing — On page 527 of the Record, line (i, speaking
of longitude 175, tliat seems to be an error.

Mr. Bodwell: — Yes, that should be 108, because his answer
is that he was near Bogosloff. That gives us a iankmark, and
we can locate liim from that.

I also read from the evidence of Captain Miner, who is
10 speaking of his voyage in 1887 in the " Penelope," page 547, line
10:—

"Q. What course were you making when you entered the
" Sea; what was your direction or destination? A. I entered
" the Sea from some of the western passages, the Four Mountain
" Pass.

" Q. Where did you propose making for — what point in the
"Sea? A. Somewhere between Ounalaska and the Pribyloff
•' Islands.

" Q, By the time you got to the Pass I suppose you had
20 " more definite knowledge as to where you could go ? A. I was
" was going to look until I found the seals.

"Well, you had no idea of stopping your ship anywhere?
" A. No, sir.

" Q. You were going to sail until you found seals ? A.

" Until I found seals.

" Q. What is your course usually ? A. The usual course is
'■ through the Uniniak Pass.

" Q. After you get into the Pass you do not go straight
" ahead, do you .? What did you make for? A. After getting
30 " through the Pass ?

" Q. Yes. A. We then begin cruising about the Sea ?

" Q. Did you ever hear of any feeding grounds in Behring
" Sea ? A. No, sir.

" Q. You never heard of any particular good grounds for
" catching seals in Beln ing Sea ? A. I have heard of good
" grounds, or of gooil catches having been made entirely around
" the islands in all directions from them.

" Q. Good sealing grounds ? A. Yes, sir."

And then on page 548, line 30, speaking of the voyage of
40 1887:—

" Q. How far did you get away before you .sealed ? A. I
" didn't seal anj' more at all ; we ilidn'tstop the vessel after that.

" Q. Could 3-ou show me on the chart, captain, about where
" 3'ou were when you got the news of the seizures ? A. (Exam-
" ining) I was sailing about here (indicating) from 30 to 7U miles
" from BogosloH", Bogoslott' bearing south southeast.

" Q. And then you went from there, you say ? A. From
" there I went directly west, away out here as far as Attu.

" Q. And came out in that way ? (indicating.) A. Yes, sir.
50 " Q. Avoiding the Pa.ss by wiiich you came in ? A. Yes,
" sir.

" Q. For purposes of safety, is that right ? A. I avoided
" the Pass ; I went to the westward to try and continue my
" sealing.

" Q. But you did not go back the old way for an obvious
" reason ? A. Yes, sir,

" Q. How many seals did you take after you started from
" that position which )'0U gave me on the chart, that season ?
" I don't remember of taking a seal ; I might have got two or
(!0 " three, but I don't remember.

" Q. Did you lower the boats ? A. No, sir, the boats were
" never lowered.

" Q. Did you search ? A. We weie looking from the ves-
" .sel, that is all.

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310

(Mr. Boilwell's Argument.)

" Q. You did not see any seal there ? A. Not to araount
" to anything ?

We find from that evidence that he says the sealing grounds
were near Bogosloff. and being frightened by the seizures he went
to the west and lost his sealing,

I will also read from the evidence of this same witness, page

10 557, line 15, speaking of the voyage in 1889. This is the year

he went from the Russian side to the American side. He says :

" Q. For what point in the Seailid you make ? A. Where-
" ever I could find seals, from here over (indicating.)

" Q. Where did you begin hunting ? A. I sealed.

•' Q. For instance, where did you start from ? A. South of
" Copper Island.

" Q. And what course did you make ? A. About east.

" Q. Where would that bring you out ? A. Bring me out
" about latitude 55 ; I began sealing, if I remember, about longi-
20 " tude west 173.

" Q As near as you can remember ? A. Yes, sir,

" Q. And where did you then proceed ? A. I hunted a
" little further eastward than tliat.

" Q. To where ? A. To about 170.

" Q. Did you purjiosely keep out of the old spot ? A. No, sir.

" Q. Were you afraid of seizures in 1889 ? A. I didn't
" have any fear of that.

" Q. Did you keep a lookout for the cutters ? A. Kept a
" lookout always.
30 " Q. This point that you indicate on the chart is outside, or

" practicrtll)' outside of tlie track of the cutters, is it not ? A.
" As I under.'^tand, they cruise the whole sea within a radius of
" 200 miles.

" Q. You did not understand they made a more frequent
" cruise between Ounalaska and the PribyloH's ? A. Except as
" they make their course from Ounalaska to the Islands.

" Q. Do you know, as a matter of fact, or do you not know,
" that they are more on that track than on any other ? A. Yes,
" sir, take their course from Ounalaska."
40 I think it i.-s a fair argument to say the track of the cutters

when they were attempting the arrest of sealing schooners is
in the track of the sealers. On the same page, line 37, is this
further evidence : —

" Q. As a matter of fact, you kept away from the track in
" 188!) ? A. No more than I would from any other place.

" Q. Asa matter of fact, did you or did you not? A. I
" did not pross that.

"Q. Did you make Bogosloff' Island in 1889 ? A. I don't
" remember of having made it.
50 " Q. Do you remember of going over that far ? A. I think

" I was that fai'.

" Q. How near did you go to the American side in that sea-
" son of 1889 ? A. Do you mean coast ?

" Q. Foi instance, over towards this direction (indicating) in
" which you were making towards the islands? A. Oh, I think
" proiinbly abo\it GO ci- 70 miles.

" Q. Show me on the chart ? A. The nearest I must have
" been was somewhere about here (imlicating.)

" Q. What is that in latitude and longitude ? A. Between
CO " longitude l(i9 and 170 west and about 55 north latitude.

" (). Then you got no nearer to Unimak, for instance, than
" that in liunting? A. No, sir, not that I can remember."

I also ask your Honors to read his evidence at page 558, line
ISii :-

311
(Mr. Bod well's Argument.)

" Q. Did you go to the usual ground.s ? A. Yes, sir.

" Q. Show me where you .sealed in Bohring Sea on the
" chart ? A. I sealed entirely around the islands.

" Q. You mean north, south, east auvl we«t ? A. Yes, .sir.

" Q. How far away from them ? A. The nearest I wa.s to
" the islands was 40 miles."
]0 Now we have Captain Miner saying that the usual grounds
wore over 40 miles from the island.s. Then he goes on to say : —

" Q. Where did )'ou lower the hoats first after going into
" the Sea ? A. It would be a hard matter for me to say,
" wherever T first saw a seal.

"Q. You cannot tell me ? A. No, sir.

" Q. No idea ? A. No, sir, I have none, nothing to refresh
" my memorj' with.

" Q. You cannot tell me where you put the boats down for
" the first time ? A. No, sir.
20 " Q. Whether 30 miles from the Pass, 60 or !»0 ? A. No,
' sir."

There is also some evidence given by Captain Hackett on
page 061, line 25 : —

" Q. Yon selected your own ground for sealing ? A. Oh,
" yes.

" Q. What is your laigest catch in the season of 1889 in the
" Behring Sea ? A. One hundred and seventy.

•' Q. What was your location ? A. Latitude 57.25 and
" longitude 173.
30 "Q. That is to the we.stward of the PribyloH' Islands? A.
" About ninety mile.s.

" Q. W(;v(i you eastward of the Pribyloff Islands at all that
"year? A. No, sir.

" Q. Give us the variation of your position during the season
" as near as you can ? A. There is not much variation.

" Q. You remained on the same ground pretty much all the
" time ? A. All the time.

" Q. Wliat was your largest catch in 1890? A. Ninety-
" eight.
40 " Q. 'What was your latitude and longitude ? A. 56.43 and
" 172.40.

" Q. Did you change much from that position in 1890? A,
" Thirty or forty miles.

" Q. Did you fish anywhere near or in view of what is
" known as the volcano ? A. No, sir.

" Q. Did you sight more than one vo'cano ;' A. There are
■' three, I think.

" Q. Did you fish anywhere within 100 miles of any of the
" volcanoes ? A. No.
.iO " Q. You did not fish within a 100 miles of BogosloflF? A.
" No, sir.

" Q. Give us generally the po-ition in which you seal, d in
" 1888 ? A. It is somewhere about the same position.

" Q. You have not got it in your book? A. No, sir, I
" have not.

" Q. About hov much further south is it than the places
" you fished in 1889 and 1890 ? A. I do not know, I am sure.
" I was new in the business then and these positions were given
" to mo and I fished pretty near to there.
(iO " Q. Did you ever fish in the tastward of the PribylotI'
" Isi.vnds ? A. Never.

" Q. Nor near the Bogoslotf Volcano ? A. No. One year I
" fis'.ied in .58.30 and 173."

At page 702 of the Record, line 30, the latitude and longitude

[''•

"iM\

! i

' III

.111

312

(Mr. Bodwell's Argument.)

of the catch of the " Triumph " is j^iven and you will Hml that
the longitude ranges from 1G8.10 to 171.20. I think those are
the figures, and the latitude is in the neighboihood of rA and 5.'),
Tiiat comprises a period of hunting beginning on the 7th of July
and ending on the 20th of August.

In the evidence of ( .'aptain Wentworth Baker, page 724, speak-
10 ing of his voyage in the j'ear IH'JO, at line 10, he says ; —

" Q. Captain Baker, I wish generally toask you one question.
" In fishing in the years you have mentioned in Behring Sea,
" would you tell me generallj' speaking what part of the sea you
'•fished in. Take, say, with regard to the PrihyloH' Islands ? A.
" The first two years I sealed mostly to the .southward ami west-
" ward of the Islands.

" Q. And about what distance from the Islands ? A. From
'• 60 to !)() miles.

" Q. That is in 1888 and 1880 ? A, Yes, sir.
20 " g. And in 1890 whereabouts did you fish ? A. I fished
" the first part of the season to the westward and southward of
" the Islands.

" Q. And about what distance from the Island ? A. From
" 60 to 90 miles. The latter part of the season I fished to the east-
" ward."

Captain Laughlin McLean, speaking of 1889, at page 731,
line 3(), gives this evidence : —

" Q. You stated that in 1889 j'ou were on a more favorable
" ground. Can you indicate on the chart before you on what
30 " grounds you went for the purpose nf avoiding seizure. Indicate
" by latitude and longitude ? A. The ground that I workeii on
" would be in a direct line from Ounalaska to St. Paul's Island.
" My usual sealing ground would be in a direct line from Ouna-
" laska to St. Paul's Island, about KJT.oO — 5.").20.: from 55.15 to
" 56.30.

" Q. Is that where you would have been in 1887 and 1888 ?
" A. Perhaps not exactly that.

" Q. Approximately that ? A. I would cruise around there :
"I don't say that I would stop there.
40 "Q. But Ihr.t is what you call the most favorable' ground ?
"A. Around there; in that vicinity."

In contesting this position the argument for the Un'ted States
at pages 215, 'tld, 217 and 218 set out extracts, or refer to ex-
tracts fron) tiie evi<lence and contend that the distances as dis-
closed by tlie witnesses who gave the evidence are so great, that
it cannot be stated that they constituted reasonable lir.^its for
.".ealing grounds; that the distances being far apart that one can-
not say there was any chance of a vessel knowing where to go
to find seals.
50 At page 223 of the United States argument tliey attempt to

put this deduction in figures and show what an enormous
space of gi'ounil we contend was covereil by the limits.

" A reference to the evidence given shows that seals were
"taken every }"ear, from 1886 to 1890 inclusive, lioc^/t, south,
"east anil (irst of the Pribyloff Islands, at distances langing from
" 60 to over 200 miles therefrom. The attention of the Com-
" missioners is particularly called to the Townsend chart for
'■ 1894, an<l the ' Sealing ' chart, No. 4, of the case of the United
" States at Paris, both of which were placeil in evidence by Great
60 •' Britain. The testimonj' and the charts demonstrate that the
" area where seals are hunted in Behring Sea extends from 166
" to 175 ^(>est longitude, and from 53 to HDvorth latitude, contain-
" ing from 140,000 to 150,000 .square miles."

If your Honors will refer to the chart you have before you

313

(Mr. Boilwell's Argument.)

will find that my friends Imve done what I suppose is fair
eiHiu^h from their point of view, but they have commenced our
.spaling grounds at latitui'e D^, which is one and one-lmlf degrees
HDUth of Unimak I'ass, and carried us up to 59 and have given
UH the extreme eastern and western limits mentioned anywhere
in the evidence, longitude 105 on one side and 17;") on the other.
10 'iln're is some evidence that seals were taken at 10'), hut it was
uiidiT peculiar circum-.tanei's. For instance, the " Minnie " took
jilVw.hut she was driven out of her sealing grounils, hy reason
(if seizure. The usual sealing grounds are within very much
narrower limits.

The United States Argument at this point is also hn»o
\\\r)\\ another hypothesis, which, I eontenil, is not correct. The
calculation might lie useful, if it were true tlmt tlieri^ was only
one small body or even a large hody of seals, one compact hody,
which nmgt'd ovt-r tlie sea, hut the evidence is ditt'erent from
20 tlm^. The seals, after they leave the islands, scatter in all
(liicctioiis, and the ordinary limit of their journeyis from 100
to !.")() miles. For instance, I take from the Argument of my
iViends the distances that tliey give for these vessels in l.SfSO to
iliiistrati.' what I mean. The following vesst-ls which they have
named were all sealing during the same p(.'riod of time in the
same year in the ditferent positions mentioned and were all get-
ting seals.

The " Vanderhilt " was hunting north and west. The " Path-
linder " to the west. The " Favourite " to the southwest. The
30 "Mary Ellen " and the " San 13iego" and the " PatliHnder " to
tiie south. Tlie " Thornton " to the south and tlu! " JIary Ellen "
to the east. These vessels wei-e limiting in ditl'eient directions
from tlie islands, ail were all taking seals in large numhers, which
is a demonstration of tiie argument that there was a large liody
of suals, hut that they scattered in many directions from the
islands.

J will now read, as a further argument in support of the

statement that the seals usually go to a distance of ahoiit 11)0 or

l.')0 miles from the islaiul, h'om the argument of the United

40 States at page 21."), where, speaking of the different voyages and

tlie distances that were madi', it is said : —

" O'Leary gives his position in l.S.Sd, during July, as 90 miles
" urd of the Pribyloti' Islands, and in August as 120 miles south
" of the islands, covering, therefore, an area over 200 miles in
' length.

" Jlamlase, on the ' Theresa ' in 18iSG, gives her position at
"about 12.") miles south-soiithi'dst of the islands.

" Reppen states that the vessel he was upon sealed ivext,
" north, cant, and south of the islands. He gives but one distance,
50 " and tliat 1.50 miles from the Pribylotf islands."

And then at page 216 : —

" McKiel, master of the ''Mary Taylor" in 18iS7, gives no
"actual position as to his sealing in that year, although it is
" stated in the British Argument that he ' Explains that he
" worked in tlie vicinity of oG north latitude, 177 west
" longitude.' The testimony of witness was that he sealed from
"40 to li)0 miles west of a line drawn from Unalaska to the
" I'ribyloff. It would appear that his|)osition was chiefly sou^A-
" irest and south of the islands, and the area he covered about 60
60 " miles from east to ivest and over 150 from north to ifouth."

Miner was 150 miles .southwest; Moss south from the islands
30 or 40 miles ; Baker GO to 90 miles southwest.

At page 217 of the Aigument it is said Hackett of the
" Amiie Jloore " was about 100 miles northwest. The

if^WilH

: '^''''i'^ll

■ ii' ' 'i^"'

''M;l;iH'»

'" i

111! !i

p§'}

'fil 4 ''I

I' ' '

(■ ' ■■'*

. ■■ . i ''

^M'

%>:V^''

;n4

(Mr. Bi)(hveir8 Arjjuinent.)

" Trininpli " 100 miles iiorUv ftinl sontli ; Rnynnr 100 inilcs
Hoiitl) ; liakur <ll) to !)() iiiil<-s soutli iiml w>!Mtwtinl ; L'iii;r|iliii
McTii-iiii iilioiit too uiili'H Hiiiitli.

At |)iii;(' 21 M this n'f(«rniice is madrt to Steolc : —

" Sti'ole, iimNliM' of till) ' Tlioi't'sa ' in 1H!)0, states that ho

" Imnteil to tlio iri'sfiC'iril uinl hdiiIIih' tril of the I'riliyloH Islaiiils

10 " (itiil near Moi^iislnir '{'he extent of till! sea covered Uy lilin in

" his sent Imnliiij,' appears to havi' lii'en over 200 miles north

" ami xdiifli,

These stateineiits are ^'eneral statoiiionts, the witnesses
cannot N|)ealv with exantness, anil do not profess to do so.
Kilt if wo were to adtiiit that the distances i^iven are exact, the
ciiiiclusioii whieli my fiieiiils have drawn from that com-
pilation of the evidence is liitl'eri'nt from the one we ask
your llniKirH fo iuriv(> at. 'I'liey "^eein to lie under the impres-
sion that these distanees »ri> so i;reac that an ordinary sealing
20 schooner could not expect to cover them in the course of
a sealiiii,' season. Kor instance, they refer to the fact that a cer-
tain ves-el w'as fravelliiif; for l.'O to 200 miles north md south,
and in some instances they italicize the worils, slu w in;^ their
idea to 111' thnt the distances are so i;reat that the position cmiM
not he called a detinite and limiieil ^'rotmd over which a
schooner cmild he expected to operate in any one season with
success.

In Older to show that that is a mistake I liavo had
laid out here a su|)posititioiis Yoyaijfe on a chart j^iviny practic-
30 all}' the same jiositions.

.Mr. 'widwell here handed the ('ommissioners a chart upon
which was laid out a supposcl voya;;e of a vessel in search ')f
seals, i,'ivini,' the courses and distances which were to he .so
travelled over in a Ljiven space of tiiiiB.

He then said : —

[ will read to your Honors the following; tahle .shuwinj,' how
these calculations are arrived at:

TAHI-E SHEWINO TIMK A Sf'ltOOXEH WOULD REQUIliK SAll.IKti
40 FliO.M .STATION TO STATION A.S I.AIU DOWN IN CIIAUT,

Time re-

-■ ■

qiiirtMl with

Moderate

Fresh

.Strong

Station.

Distance

ii^lit wind,

bri'ozi', :my

ItriM'/.e, 7

liri'C'zu ID

Htiy .'< knots

a knots.

knots.

per liour.
2 lis. 22 l.is.

1 d. Ohrs

From

zero toSmtidii No. 1

210 niilea

1 d. IShrs.

21 his.

From

No.) toNo.'.'.Stiit'ii

!)2 "

lil.lih. lUni

IS li. 24 Ml.

13 h. tint.

IMi. I2ni.

'2 to No. 3 . . . .

lilfi "

2(1. 171i.20ni 1. 1.-). 12.

ld.4h -S.

l!)h.3li"

:i to No. 4

!)4 "

111. Vli.20ni, IH. 48.

13 d. .'6 h.

h. 24 "

4 to No. 5 ....

60 "

i 20li. (1. 1 12. (1.

Sd. 3.5h.

II h. ni.

,") to No. fi ....

ir>:! "

2.1. ;U)li. 0. 11. 6. .t(i.

21 d.f)2h.

Iflh 18"

(i to No. 7 . . . .

ViS "

1 il.2.'li. 0. 1. 3. 36.

I!ld. 43h.

13h. 48"

APPROXIMATE

IIEAKINOS AND DISTANCES, FROM S. W. POINT
GEORGE'S ISLAND.

Station No. 1, S. by W. i VV., say 55°.

2, S. W. by VV. i W., say 120».

3, E. 1 N., say 78°.

4, S. E. JS., say 118°.

60 „ 5, S. E. by E. A E., «ay 157'.

6, S. by W., sa"y 71».

7, N. W. by W. i W., say 96°.

N. B. — The last named is to Dalnoi Point,

•Mr)

(Mr. Uodwell'.s Argument.)

I moy Mtato to your Honors, tlmt tlio liijlit hroozn niontionod
in tlu' tnlild is a thren knot lirec/.u ; tlu« moiloruti) liriM'/.o is a
live knot liriM'zu ; the frt'sli liroczi- is n sevon knot brci'/.n ; (iiul
the strong' l)rfM'zo is n tt-n knot iiroMo.

To sliow jour Honors, tlmt tiiis is no work of tlit* imagina-
tion liut is It f; ir rcpri'si'ntiition of wliut ciin !>« iloiip, I iiavi' a
III ri'fi'rcnfi' licrc to j)lottin;^s from tlu^ lo^s of tlu^ scliuoiifrs
seized liy tlie ('litters. 'I'licy will ileiiionstrate in tlie first pliicts
that no soliooner was ever eomiielhMl to iiiakt^ tlie loiijr distances
stated in tiu> talihf I iwive just read in searcii of seals exce|)t on
special occasions. As a rule their courses were very much
shorter, hut that they eoiild make tlie loni^'er distanci^'.', and that
they did so witimiit any trouhle when occasion arosi; is demons-
trated hy these plottilii^s.

In volume ,'{ l-nited States reprint, we have the plotti'(l
course of the schooner "Ada" in I.SS7, whii-li was taken from
20 the lo;4 found on lioaril the schooner when she was seized. 1 havo
hud thesi distances worked out. I will not read the list in
full, hut I wish to to refer to a few of the distances. For
instance from the loth of .Inly to the lOtli iluly that schooner
wrnt (i.S miles; from the .'JOtli July to the .'{1st .fiily she went
42 miles; from the .'Jist July to the 1st of Auenst .'{S miles;
from the 2nd of Aiij^ust to the .'trd of August !)2 luilesand from
the (ith of Aiij;ustto the 7tli of Au^;ust 4.'} miles.

I refer your Honors also to the plotting of the loj^ t)f tlie

;i()

Alfred Adams, roliiiiu! 2 of the Aiiiericau reprint,
Krom the !)tli to the 10th of July that schooner

schooner
pat,'e ")4.S.

went 8") miles; from the lOth to tlii' I Ith of July she went
71 miles hack over the same course in two days; from
the I.Vth to the Kith of .Inly she went 44 miles; and from the
27tli to the 2.Sthof July she wrnt S7 miles and from the 2iHh
to the .30th of July she wiint 12;{ miles, and hack a<,'ain the
next day 102 miles covering the distance of 22;") miles in 48
hours.

'J'he schooner " Annie's" courses are also plotted in the same
way. From .lime 2lHt to tin- 22nd she went 74 miles.

Tho following is a tahle setting all this out in full ; —

',., .li ' ''

|l II

!■*( •:

;.:■)■

''!'

•TTTpreprr

316

(Mr. Bodwell's Arjjuiiipnt.)

Ciu'isE OF U. S. Schooner Annie. Season ok 1887.

From.

To.

Sea Miles.

June. 21

June.

do 22

do.

2.H

;$()

do. 2.S

do.

.54

do. 24

do.

2.5

do. 2;-)

do.

2()

do. 2()

do.

do. 27

<io.

do. 28

do.

2!»

do. 2!t

July.

.-^o

do. ;k)

<lo.

1.5

July. I

do.

;{

2(i

do". ;{

do.

do. 4

do.

.')

do. .5

do,

do. t)

do.

do. 7

do.

do. S

do.

do. !)

do.

do. 10

do.

<lo. J 1

do.

do. 12

.lo.

1-S

<lo. I'.i

do.

do. 14

•lo.

1.5

do. 1.')

do.

1()

do. 10

do.

do. 17

do.

1!)

3.5

<lo. 1!)

.lo.

do. 20

do.

do. 21

do.

do. 22

• lo.

2:}

do. 2:{

do.

do. 24

do.

2.5

do. 2.')

do.

2»)

.58

do. 2(i

do.

.58

do. 27

do.

0.5

do. 28

Auj,'U8t

2it

do. 2!>

do. '

do. 30

.lo.

AujfUMt. 1

do,

do. 2

.lo.

do. -i

.lo.

do. t

.lo.

i -1

817

(Mr. Bodwell's Argumeut.)

''"W

CuriSE OK

THK BiuTisH Schooner " Ad,

V." Season, 1887.

From.

Sen Miles.

July.

do.

It)

do.

3(f

do.

August.

Aufiust.

do.

3t)

do.

It)

do.

<lo.

do.

-'!;»?'

■ i! '
J! II

;4i

■■'>

' I '} '<vj WW I

318
(Mr. Bodwoll'a Argument.)

Cruise of British Schooner " Amred Adams." Season, 1887

tiO

From

Sea Miles

July

do.

1()

do.

1«

do.

1 9

do.

do,

do.

2!)

do.

123

do.

102

do.

August

do.

The.se plottiigs are also a further piece of evidence in
support of the contention I make, because by reference to them
your Honorn will ohnerve that the .sealing was conducted within
the limits "f latitude and longitude to which I liave been referring

In order to further iliuKtrate that contention, F have had, in
so far as it is poisilile, taken from the logs of the sehoonerH in
question on this ^Miiimission, the positions ami have liad the
plottings made of tlieir voyages.

The " l)olphin's" log for the year I88(i is given in the evi-
dence, page 281 : and the " Tho'-nton's " log is also here. We
have the lug of the " Favourite,' and I have that plotted in two
pericids. iiamt'ly, from the 7th of .Inly to the 31st of July, and
from the 31st of .luly to the 22ii(l of Augu.st ; and here, in
pa.ssing, I cal] youi' Honor's attv;'it"on to something that is
apjjarcnt on the very face of these last mentioned plotting!!.
Vonr Honors will observe that the tir.st one shows the vessel
work'iiii,' in almost tin' siinic sjxit for 24 diiys. Before she was
warncil you will notice tliat her oi)eriitions ai'e confined as stated
there; and after warning the course extende(l over ditl'erent
groinul entirely. Our contention is tiiat she was trying to keep
away from the cutters after the warning. Hefori; the warning
ami when she was not intei'fered with, nnil when she was making
a big catch she was sealing within very close points. After-
wards she covei'eil long distances from day to day.

There is al.so a book 1 cannot say what vessel it applies to —
a little book which sIk'ws the latitude and longitudt: of one of
the vessels referred to.

319
(Mr. Bodweir.s Argument.)

Mr. Lnnsing : — It wiih not ottered in evidence.

Mr. Bodwell : — It was marked for identiKcation and was re-
ferred to —

Mr. Lan.sinij : — But tiuit in not ott'cred in evidence.

Mr. Diciiinson : — The object of puttinjj in a booi< for identfii-
cation is, wlien you liave a witnesH on the .stand and not ready
10 to otter the evidence, you identify the book so that lie need not
be recalled to identify it.

The ConniiiH.sioner on the part of the United States : — The
attention of counsel was called to the distinction very carefully
several times at Victoria.

Mr. Bodwell : — If objection is taken to the book, I will not
put it in just now.

Now, your Honors, these positions as they are j)lotted on
these charts show that the sealinjj was carried on practically
over th(^ same {ground. So far as they j^o they are rij^ht in line
20 with, everythiiiff that i have been srying.

For the purposes of further illustration, I have taken the
quotations of the evidence wliich are made in the United States
Arfjument at pafjes 215 and 218, and as far as was possible to do
it from the statements in the record there referred to, I have
laid down the positions as jjiven by the witnesses on a chart. Of
course these statements in the evidence are of a very jveneral
nature and the positions cannot be accurately plotted, but I
have <fivt>n them, generally speaking, as far as can be done from
the evidence. Th" vessels whose positions are so located are the
,■?() "Pnthtinder" in 1880, the " -Mary Ellen" in I88(), the" Theresa,"
in 188(), the "(irace" inl88(i, the "San Diego" in 18Hfi, the
" Marv Taylor" in 1887, the ' Kate" in 1887, the " Allie I Alger
in 1887 and I8!»(), the "Viva" in 1888, 188!t and 18!)0, the
'■ Favourite" in 1888 and the "Triumph" in 1888 — the latter we
were able to lay down accurately becjiuse it is given exactly in
the record. With regard to tiie ".lames Hamilton Lewis" in
I88!(, she was only in one position wlien she was ordered out,
.'Mid that is stated in the evidence. The voyage of the "Adele '
in 188!t, is given generally. The " Wal'.er u Riche " in 18i)(),
40 and the " Penelope " in 1887, 1888 an<l 188it, are referred to in
general language also, but they an> shown as jtrecisely as they
cnn lie laid down from what the witness has said. I hand your
Honors these plottingsand later onwiil furnish copies to Counsel

I n(nv wish to notice a few of the quotations from the
evidence in the T^niteil States argument in order to ct)mplete the
stateiiu'iits that are there made, and to point out any distinc-
tions which I think your Honors ought to observe. For instance,
at ]iage 21 !• of the United States argument, there is this quota-*
tiiin from the evidence of C'apt,uin Mcljcan : —
,"(J "(), Did j-ou ever tind any rule whereby yoti could find the
"seal the second time ? A. The only rule I have found was
" that if they were not in one place, to go and limit for them."

That statciiicnt should be taken with the qualification I have
already referred to, namely, that he is speaking of hunting
i;r<)un(ls within certain limits, but within certain boundaries
known to him he would hunt for seals an<l he always fomul
tluMi. Captain MeliCan never missed making a good catch.
Other captains dill the same.

I have already referred to the evidence of Captain Kayner.
(i(t .My learned friends in their argument object to th(> quotation of
the evidence as it is set out in our argmnent, but they cannot
iiliject to the quotation wbieli I now read, and which con-
tains till! whole of bis testimony upon this point. The follow-
ing, however, should also be read inty the argument to complete

•H--

M!!!
■I!

>||;l

'■'h

■ ' ih

'■ l:

320

(Mr. Bodwell's Argumeut.)

his .statement as quoted in the United State.s argument at i)aire
219. I ((note from pa^j;e 528, line 55, of tlie Record : —

" Q. Of course, ami you went were you knew the .sealiiij{
" ground would be ? A. Why, certainly.

" Q. So tliat tno .sealinjj ground is confined to certain limits I
" A. Ye.s, l)ut tlieni limits is anj-wheres from the north-east of
10 •' the inlands up to the north-west of the islands, and to th<:
HOutluvnriLs down towards the Pribyloff."

And from page 52'J, line 20 —

" Q. Did you ever go to Behring Sea in any year looking
"for .seals that you diil not find them ? A. Do you mean if 1
" ever went looking for them any one day that I did not find
" them.

" Q. That is not the question that I asked you, and do not
" think that you caji iniderstand it that way. I ask you if you
" went to Behriiig Sea any jear that you did not find them ?
20 "A. No, sir, I always found some .seals."

Captain Uayner was not a very willing witness for us as
your Honors will obfjcve from the following quotation which I
now make reading at page 528, line GO : —

" Q. How far is it from the Aleutian Islands to the first
" point of St. (leorge's Island in a straight line ? A. I could
" not tell without 1 had the instrument and worked it out.

" Q. You have been there three or four years, and surely
" you can tell about the distances ? I do not ask you as to a
" mile or twenty mile.s, for that matter? A. I tliink the dis-
30 " iance is somewhere about throe hundred miles."

The exact distance is 1!)7 miles measured on the chart froui
the Point of St. tJeorge's Island to the center of Unimak Pass,
in a straight line.

" Q. From the Aleutian Islands to the first Point of St.
" George's Island ? A. I think somewhere about that.

"Q. Don't you know it is only 170 miles ? A. I do not.

" Q. Would you be surprised to be told that ? A. I would
" not be surprised.

" Q. Did you ever work it out on your chart ? A. I cannot
40 "say that I ever did measure the distance.

" Q. Captain, you do not want to give us the impression,
" you being a sea-faring man and the master of a vessel, that
"you ciinnot come any closer to the distance than that in a place
" where you have been sealing for three years ? A. I mean
" that I ill) not know the distance from the Aleutian Islands to
" St. (Jeorge's Island, and that I have stated.

" Q. You cannot tell us within one hundred miles ? A. I
"could not state without measuring."

Th(! witness you see is not desirou,s of giving us information
and this portion of his cross-(;xiiniination does not exhibit
Captain H.uyner in a favorable light. He could not have been
as ignorant iis he pretends, and we are forced to conclude that
he was not answering fraiikl}'.

At page .'MS of the American argument there is u reference to
th(! evidence of Captain William Cox, where he says that in
18!i0 he was all over the sea going 80 or !)() miles east. That
statement is to be taken in the .sense iti which the language was
used because f)tlu'r portions of the testimony of this witness
shows that his distance was 80 or 00 miles to the westward of
the Island, and when he says " all over the sea," ho means all
over the sea within certain limits.

Cajjtain Miner's evidence, which is referred to at page 21 S
of the United States argument, I have already read, and it is a

321

(Mr. Bodwell's Argument.,

strong bit of evidence in our favor, because he .sealed entirely
around tlie island. He .says, pa<;e 218 ; —
'• I seivli'd entiroly around the islands.

" Q. You mean north, .south, east and west ? A. Yes, .sir.
•' Q. How far away from them ? A. The nearest I was to
" the islands was 40 miles."
10 That is exactly our contention.

Atpa;^e 221 of the United States argument there is a quota-
tion from the evidence of Cotsford, one of the hunters of the
' Carolena," and his evidence is i-eferred to as follows : — ■

'■ Q. Uo you think that in Behring Sea there is any place
or number of places where you can go as a sure thing, and get
.seals every year ?" To which he answered : " 1 do not think
there is any sure place."

But his evidenct! there must be read with his language in
cross-exaiiiiiiation at page .'J.S"), lines 1 to (iO — where he stated
:!l) that wheneviT his ve.ssel was out he made a catch ; and he also
gave this answer : —

" Q. It is certain that you will gi't scdls there ^ A. It is
"almost certain yoti will get some seals there. '

At page 221 of the Ihiitcid Stat';s ai'gument, there is also a
reference to the evidence of A. B. Alexander, where in his
evidence he says : — ■

" Q. Is there any localit)' whei-e seals can always be found ?
" A. I knovNof none."

Tiiat must be read also as a qualified expression and with
no regard to the rest of his evidence. For at page 48:}, line (iO,
he .says : —

"(). ^'ou admit that I'verv ye.'ii' you wi'iit to iJehritig Sea-
"you foun<l .1 large qu.uitity of seals both in July ami August f
\. Found a largei' quantity in the year IfSi).") then we did in
IS! 14.

" (}. liiit in both years you found a large ([uantity ' A.
l'"()Wiid a considerable quantity. '

His evidence sliows jdl through, that when he uses the word
liieality, he is using it not in the broail sense in which m\' learned
4(» iViends have inteijireted the evidence but with a restrict eil me;in-
ing as i-eferiing to the ])artieulai- part of a certain loc-ility.

At ]>age 221 of the Amei'iean brief there is also a cjuotation
from the evidence of Captain Folger : —

'■(}. I'^rom your experience in Behring Sea, Cnptain, will
" yiiu tell the Connnissioni'rs whether or not tlu're is anyone
" place ill Uehriiig Sea where you will always tind seals:' A.
" Nu. sir; not where you will always tind them.

" <^). I.s there any such jilact' :■ A. 'I'lie seals are every-
" whei-e, acconling to wliere the fodil is; wherever the food is,
•")'• " that i.-> where the si'als are.

'(}. Hothey follow the food ! A. Yes, sir. "
I call your Honors' attention to the form of the first (lUestion
jiut ill that extract. 'I'lie wor<l "always" is most importiint
lidtli in the question and the answer.

lulViring now to pages 224 and 22.') of the L'niteil States
argument it is conteiKhMJ by my learned friends that we were
attempting to convince your Honors that there was a stream of
seals travelling through Ciiiiiiak I'ass, .'iO miles wide, and pro-
ceeding to the I'libilof islands. I am not awai'e that there was
III' ever a time in the course of the case that we took such a
|iiisilioii as that. We put in the evidence of Mr. Douglas, a pilot,
who was examined in bS.Sd. 'i'liere is language used by him,
which if not prope-rly understood, might convey such a nieaiiii.g,
liiit It is perfectly plain that the witness himself did not intend

!,j.|{^i| vj'ip'f

i '

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322

(Mr. Bodwcll'H Argmiicnt.)

to Cduvcy tlmt impression. The witness stiites tliero
Was a stream of s(>als passing; tlu'ou;;!) the Pass and jjoin"
to tlie Pi-ibiiof Islands wiien they were on their Jourtiey to
tiie Islands. All the oral evidence demonstrated that, and the
charts indicate it as well. Pwt at that time the seals
are travol!in;.f and our cise alway."< has hecn that you cannot

10 take the seals very easily when they travellint^. Our case is
thatthe principal Innitinu; wasiione a Fte." the seals, had reached the
islands and scatti'red in search of food. My learned friends
"appear to have misundei'stood tim Lji'ounds upon which wo
put in the evidence of Douglas, and the strenjjtii which
it ou^iit to have. 1 explained that at the openinji; of
my arj.;uinent on the iinestion of sealinij i^rounds, and 1
.shall not repeat it now. Hut 1 am sure your Honors have
understood it from the lies^inninjr and that our case as pre-
sented in our printed an^umentand as ary;upd here and as niaile

20 upon the evidence presented from time to time, has been sus-
taineil from the l)e;^iimin<;. There has been no clmnife in our
position. Surel}' we oni^ht to have the credit of knowing what
our witnesses would saj- ; and when we were callinij; many
witnesses to prove that the seals were caujiht after they reached
tlie end of their journey to th(> islands, jmd were taken sleeping;
and not travellinJ,^ wliy should we attempt to .show that the
animals were fouml as a stream ti-avellin<; at a rapid rate, and
con.sei|nently most difficult of capture. I am .sorry that my
leariieil friends have misumlei'stood it. I cannot perceive tlu;

'W irround of their error. At any rate we <lo not want any
further misunrhrstandini^. Wmv Honors appreciate the posi-
tion I am sure, and will take in the force of our argument
on the i;r<innds upon which it is based.

So far 1 have been dealini:; with the evidence as it has been
givt'ii and now 1 take another point. As 1 had occasion to
observe the othei' day, your Honors are not sitting,' to demons-
trate any particular theoi'v. but are heri' to form a conclusion
as to the correctness of the claims for cei'tain vessels from the
facts ill evidence. Whatever may be said as to the sealinjr

40 j;rounils or the dilHculty of Hndinji; seals, I «nbmit to your
Honors, that for all practical pin-poses the (jUe.tion does
not 1)C'come material, for with n ference to nearly every
vessel that was seizecl it is ])i'ovt'd that they were actually
nmonn' the seals at the time of seizure. Whatever ditfculty
thiM'# mi;.'ht have been in .somi' other years or \vi..'t,
ever ilitticulty thi're may be now. in tinidni^ the places in
Hehrini.j Sea where seals an' to be taken, the fact was that
oui' vessels hail <iverc()me that ilitticulty, had discovered

,. the seals and were actually taking lareje numbers at the
moment of seizure. This fact is j)ri)\ei| beyond all ])ossibility of
duidit by the positive stateuK'nls uf uur witnesses, eori'uborated
by the reports of tile sei-.^in;4' otlli'ers, and when taken in coiniec-
tion with the olltei' evidence it is conclusive to establish the con-
tention thai when a vessel found the seals there was j)racticall^
no ditHculty in stayin;;' amone; them, and takin;^ them in tin s
weather.

I have here a list of the vessels, seized orwarned.aiid I shall now
ask j)i)ur Honoi's to eive your attention to that portion of the evi
denci' which shows what the vessels wei'e doin;^ at (.!;:■ tiiui.' they
tJO were so si.'ized or warned, Theri^ ar<' one or two vessels with refer-
ence to which there is a lack of evidence owinj^ to the witne.s.ses
bcinjf dead or unable to attend tlu' sittinj^s, but in nearly eveiy
instance we have positive (>vidence on the jHjint which is more
-sjitisfactory than any attempt to woi'k out a theory.

323

(Mr. Bod well's Argument.)

ill the " Carolona" ease at pajje !)3 of the British argument
l)i'ginnin<j at line 20, a ([notation is made from the seing officer
as follows :

"On Sunday, August 1st, 1881), while cruising about 05.
" miles south-east of St. Oeorge's Island, the British schooners
• ' Tiiornton' and ' Carolena' were found witii boats down en-

10 "jriigcd in getting fur seals, as each boat was taken in the act.
"andliatl freshly killed seals on l)oard, the schooners W(!re
" seized for violation of section VMiii of the Revi.seil Statutes,
'■ and taken in tow to Ounalaska."

And again in tiie log of the Revenue Cutter "Corwin" the
following appears : —

" 7. HO P. M. Stopped and sei/.ed the schooner " Carolena " of
'■ Victoria. Took all arms and amnuniition on board the
" Corwin." Position of the " Carolena " wlien she was seized,
" Ijongtitude I(i8.1()' west: Latitude .'5.5. :}0' north,"

20 At liie time of seizure she was carrying tlie iiritish flag, an<l
was on good .sealing ground and had good weatiier.

".John Cotsford .says : — We were ail day after the seals on
"the day when we were taken. We were catciiing them. 1 hail
"some in my canoe, and I bi'lieve tiu; otlu^rs luul also. I think
"Ned Shields had the most. I tiiink that he (Sliields) had
■thirty-four, but I am not sin-e : Ithink that is tiie n\nnber he
" liad. I don't know the innnber I iiad, but I think it was under
' twenty. I consider tliirty-four seals as a veiy good day's slioot-
" ing for one boat. Twenty is a very good day, and fifteen is

30 • a good day, too. He proceeds : — " I tliink we were sealing the
"day before, anil on the ilay bi'fore that too. We were tiii'ii in
" the same place. We were becalmeil three days I)efore we were
" seized, and we caught seals every day : we wen doing viTy
"well. We had not finished our .sealing that day when the
".seizure took |)lace. We would have gone on more, and had a
"fair chance of catching more seals." And again he says: —
" We caught 7(i the day of .seizure.""

Cotsford's establishes boyonil all doubt that the " Carolena "
was in the midst of the seals when she was taken.

40 As to the " Thornton," the evidence is that of Captain
Abbey at Sitka, page 100 of the ISritish argument: —

" 1 found tlie four boats of the British steam schooner
"'Thornton,' of Victoria, B. C, engaged in killing fur seal.
" Each boat had in her from three to eight freshly killed seal,
" arms and annnunition, rowers and hunters, who stated that
" they belonged to said schooner " Thornton," and were engaged
" in taking or killing fuV seal. Some of them, if not all, were
" seen' shooting at the fur seal which were swimming in their
" neighborhood."

50 Lieutenant Rhodes .said : — " I was on the " Corwin " at the
" time the " Thornton " was seized on that day. We first picked
" lip a boat, bearing the name "Thornton." It hail about eight
" dead fur seal in it. Tb." men in the boat had breech-loading
" rifles. We afterwards picked up another boat, an<l then
" sighted the schooner " Thornton," and went on board and was
"put in charge of lier. We afterwards picked up two more
" boats. The men in the boats claimed that the boats belonged
" to the " Thornton " and were put alioard of her. There were
" between fifteen and twenty dead fur seal on deck and one hair

00 " seal. These seal were, the most of them, bleeding, and evident-
" ly recently killed. The captain and several of the hunters
" said they had killed twenty-one, I think it was fur seals that
' day, and would have got more if they had had more daylight,
" and if the cutter had not come up."

T^fl

«i

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324
(Mr. BocIwoU'h Argument.)

There cannot be any doubt of the fact of the " Thornton "
beinji; among the tseals.

Ah to the " Onward," we have the evidence of Marketicli,
page 72, lino 1 :

" Q, Were the boats out when you were caught ? A. No,
10 " sir ; tliey were aboard.

" Q. And the cftnocs were aboard ? A. Yes, sir.

" Q. Was it a good sealing day ? A. Yes, sir, very fine in
" the foi'cnoon ; ni'terward.s very thick.

" Q. In the forenoon was a very fine day ? A. Yes, very
" fine, a good sealing day.

" Q. What were you doing when the ' Cor win ' came along ?
" A. We wore all ready to lower the canoes.

" < J. VVi-rj there seals in sight >. A. There wore lots of
" seals around.
20 "(J. How many did you catch the day before? A. (iot
"something like one hundred."

" Q. And tliat da}', yoti say, was a good Hoaling day, the
"second ? A. Tiie sfcoiid day would be very good, tlie forenoon.
" Till' afternoon would be v<'ry thick fog."

lie goes on, then, to describe the circumstances of the
seizure.

.As to the " Favourite," I (juote from the I5ritish argument,
page 10(5, as follows :

" From duly the !Uh, when the ' Favourite ' commenced sufil-
30 " ing in Jiehiing Sen, until the night of August 1st, when slio
" was warned as above, "24 days, she remained practically in the
" same position " (that is shewn by the plotting I handed to
your Honors a few moments ago), "and took LSI 7 seals, an
" avenigu of 7")A per day.'

'I'liere is no (piestion whatever but that the " I'^avourite 'was
among the seals, mv friends will admit it.

.Mr. Warren : — .\Ir. I'oiiweil, you do not give the reference to
that, and I do not .-ue whore you get your figures. J would like
to liavf you tfll mu now — ln'tweon the dates you have men-
40 tioned. You diil not cite the K"Cord.

.Mr. Hodvveli ; — Tliu scaling book is in.

.Mr. Warren : — If you refer to the sealing book, that is all I
want to know.

Mr. ISodwell : — Mr. iSeiiiuc worked that out, he will be abio
to ti'll you how he arrived at the figures.

'J'lie " Black Diamond " is a case where wo elaim that we did

not get to good sealing ground at all on account of the warning.

There is no need of referring to the " iJlaek Diamond " now, it

will take a little time, and 1 will pass on to the " Anna Beck,"

50 Record, pag,^ 1041, line .')0 :—

" (^. When you entered the .Sja in LSS" how long did you
"propose to remain. A. My intention was to leave on the lust
" of August, if the weather was rough, and if a few days tine 1
" ndght remain a little longer.

"Q. When did you begin sealing in ],S87 ? A. The 30tli
" was my first day lowering, and I lost a canoe.

" Q. Did you lower again ? A. Yes, sir, for half a day, 1
"think."

That evidence discloses the fact that he was among the seals

GO a day ami a half fishing before the vessel was taken, and when

we come to di.scuss the ipiestion of the seizure of that particular

schooner wo can refer your Honors to the number of seals they

had.

With reference to the " Grace," the evidence ia quoted in the

;}25

k::^

(Jlr. Hodwcll'.s Ar^uineiit.)

British Argument at piij^B 120. It is the report of the seizin;^
officer : —

" When boar led she iiad twelve canoes and one boat out
" hunting seal. Saw one seal shot and taken into the boat while
" we were near her. ('ounted twelve seals taken on board the
"schooner from one canoe and all the canoes contained more or
, ;) " less seal recently killed. The captain reported taking i)() during
" the day and 150 the day previous."

With reference to the " Ada " 1 tjuote from the British Argu-
ment, page 125 : —

" The officer went back to the cutter and shortly afterwards
" he returned to us with seven or eight men and starteil in to
" make ready to take us in tow and told us we were seized. I
" told him, and so did the captain, that our boats were out sealing.
" He stopped for a while and told u.s to signal for the boats,
" which wo did. We got the canoes on board — they had 'Mi seals.
-0 " It was just 8 'iO a. m., and they had gone out about (J a. m."

That Hhows the kind of sealing the " Ada " was in at that
time — 38 seals in two hours.

As to the " Juanita " we have the exact statement from the
evidence of Captain Clarke, Record, page 1341. She was seized,
as the Record shows, on the 31st July, Record, page 1339, line
-|.cS. On the 30th July she took IfiO seals ; on the 2!)th she had
11) seals ; on the 2Gth, 47 seal.s.

With reference to the " Pathtinder," I read to your Honors
on Saturday from the evidence of Bissett who was on the
,!() "Theresa" and saw the " I'athtinder" seized. His statement
will be found in the Record, page 775 from line 10, and at page
776 he says that on the " Theresa " they got 9V skins froiu 4
o'clock until 7 in the evening. The " Pathtinder ' was on the
same ground, doing the same kind of work.

As to "Black Diamond" for 1.S89, the evidence of Owen
Thomas shows that the schooner was seized about 12 o'clock that
day and they had taken (Jo seals. All the boats were out at the
time of seizure. Record, 1707, line 3.

With reference to the seizure of the " Minnie " there is the
40 evidence of Magnesen, page 1438, line 1, as follows : —

" Q. On the previous day what kind of weather had you
" had ! A. I don't know whether it was the day before or two
"days before, we got the biggest catch we had, 74 we had in
" fact ; it was the biggest catch of seals we made."

That was the day on which they were seized and their arms
taken away. Afterwards they hunted in another part of the
Sea.

Mr. Warren : — Do you cite that as an authority for the fact
that that was the largest catch they got ?
."id Mr. Bodwell : — That is the statement of the witness.

Mr. Warren : — It was corrected subsequently.

Mr. Bodwell: — I am not citing it for that purpose, but to
shew that there were many seals and they had taken a largo
number that day.

The " Ariel " was seized at a time when she was surrounded
by a large body of seals. Ther.; is a great deal of evidence as
to that fact, but I will read this from Captain Bucknaui's
evidence, which will be sufficient to shew your Honors what
kind of a day it was. Record, page 1462, line 43 :
(iO " Q. Please give your entry for July the 29th. A. Kirst
" and middle part of the day, fresh breeze ; at 4 p. m. more
" moderate, boats out and returned with 18 seals for the day.

" Q. Please read your report for the 30th July. A. Very
" tine and clear throughout. At 6 a. m. American cutter ' Rush '

I I !>• <

{ ' ( I

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It '

n26

(Mr. BoiIwi'II'm Attjuinuiit.)

" camo alonj^-'iile ami sent oHicors on Ixjinl to examine and
" search the vessel. " Then, oniittinjj some few words, —

"At !) a. m. all boats out an<l returned with 120 skins.
" Badly scared through the day, us the cutter appeared at one
" time t(i be returning to us, and our boats had got far away,
" contrary to their orders, when leaving tiu' vessel."

I also read from line (i.S : " The seals were so plentiful about
"the ship that I told them they should go only a short distance."
This was after the siuzure, and the boats went out anain, the
seals were so plentiful. " I told them the}' should only go n
"short distance. I told them the cutter's smoke was still in
" sight, and as she might return, they should not go away frnm
" the ship. In their eagerness to net skins they got away too
" far, and I could not see the boats."

It is clear that the ' Ariel " was in an e.\ceptionally good
ground.

Other ve.s.sels were seized or warned, but there does not
appear to be the same direct evidence as to the actual facts
at the time of seizure ; l)ut the portions I have read practically
cover the cases of all the seized schooners, and these statements,
taken in connection with the .schetlule which my friend .Mr.
Peters handed in to your Hcmors shewing what all the vessels
did within a limitid time, is I submit sutticieiit for your Honors
to find that, in so fur as our schooners were concerned, they
had solved the dithculty, if any ever existed, of reaching the
sealing grounds.

Vai.uk ok Vk.sski.s.

I will now proceed to discuss the evidence relating to the
value of ves.sels generally.

Upon this point there i.s a very distinct ground of difi'erence
between the counsel for Great Britain and the counsel for the
United States. The position which we have assumed is that
in view of the facts which are in evidence, .sealing vessels at
the time in (juestion could not be obtained in Victoria unless

40 they were built; that if they were purchased there was practically
only one place at which thej' could be acquireil was the Atlantic
coast. We think wo have established that by direct evidence of
witnesses, of undoubted competency.

Mr. Siewerd swears positively to the fact that in thosj years
he enipiired for the purpose of ascertaining whether vessels of
the kind refpiircd could be purchased, on Puget Sound or at San
Francisco, that he did not tind any there, and in conse(|uence
both he and Mr. Munsie went round to the Atlantic coast ami
bought vessels. Our theory, therefore, throughout the wholi'

50 case has been that your Honors should take the cost of building
at Victoria in the years in question as a basis for the calculation.
Our whole case has been put upon that ground. On the other
hand, the United States take the position that, at San Francisco
and other places on the Sound, there was a market for sealing
vessels which we should have resorted to, and further that we
can recover only the price at which it is said schooners of a
similar kind could have been purchased in those markets.

At a later stage of my argument I shall contend to your
Honors that the basis of val.je is an altogether ditlerent one, that

00 we wi^re not anxious to sell our vessels to the United States, but
that you are asked to consider a case where property with which
we did not wish to part, was forcibly taken from us, and that the
rule of law with reference to the measure of damages in cases of
compulsory sale should prevail, that is to say, that we should be

air

(Mr. Boilwell'N Argument.)

compensated on the basin of the value which tlie jiroperty liad to us.
.Such is the rule adopted in ail cases of compulsory takinfj.anil th((ro
is fjenerally iidded, in ca.ses of expropriation, apercentajje beyond
the value just asctrtained, as compenHation to the man lor bein<j
iiblij^ed to sell when he did not wish to part with his property.
Heri' we have ves.sels which were useful to us ; we desired to

in keep and operate them. The United States took them from us,
aj,'niiist our will, and we say that no theory of compensation can
be just which does not make a return for the full amount of
money which we had invested. Even if it could have been
proved which we say has not been done that there were places
where vessels of the same class couhl be purchased at a NUialler
price, we did not wish to }^o there and buy them ; wu did not
want those vessels. We desired to work those we had.

The contention of the United States that we shoulil accept
a sum based on the value that these vessels were to the party

•20 who wronj^fully appropriated them. That is putlinjj the matter
in e.xactly the opposite manner from which the rule is stated in all
the authorities. It is the value which the thing has to the person
from whom the property is taken that it is to bo ascertaincrl.
However, I do not wish to dwell on that now, as 1 will have to
discuss it at a later stage. 1 propose to hand your Honors a few
authorities; although the ride of law is so well settled that it
seems almost unnecessary to do more than mention it.

On the theory which they have advanced, the United States
complain because we did not introduce evidence on the sales of

;)() vessels at Victoria. Our contention is, that there was really no
market for vessels there. There were sales, it is true — sales
which have been mentioned incidentally in the evidence — but
sales made to persons who were buying vessels for the purpose
of operating them in the sealing business, lud even these sales
were made in many instances before ISSIJ. The vessels bought
by the persons mentioned were not for sale to anybody else ;
the purchasiers were in the sealing business anrl operated ivery
vessel they acquired on voyages of that character. They w • .uld
not part with their property at any reasonalile price ; and out ide

40 the vessels which were purchased by persons who were actually
engaged in sealing, there were no vessels in the market at Vic-
toria. It is useless to talk about evidence of .sales at that period,
when vessels were not there to be bought. Therefore the whole of
our evidence on this question, or at least the greater part of it,
was tlirected to the cost of building, whicli we said, under the
peculiar circumstances tlien ol)taining, was the pi'oper basis for
your Honors to take as the mode of calculating the value of the
vessels in (piestion.

At, page 20(> of the United States Argiimotit, in pursuance of

."id their idea, and as an attempt to shew that w,; miglit have proved
the sale of certain vessels at Victoria, they mention two vessels,
which they siy were sold in 188") and 18SG, although the price
is not given in evidence —the '^Alfred A lams " and the " Black
Diamond." The date of purchase of the " Black Diainoml " was
we say in 1887, but however that may be the vessels were bought
by Gutman and were put by him into the sealing business. They
were not for sale to Captain Warren or Mr. Munsie after the
" Carolena " and his other vessels were seiz'id ; in fact the " Black
Diamond " and "Alfred Adams" were both seized.

(10 In 1880 they refer to the sale of the " Active." The " Ac-
tive " was also b )uglit by Gutman and was put into the sealing
Imsiness. She was lost subseipiently. They tiien refer to the
sale of the " Favourite " and the " Kate " ; but those sales, I
submit your Honors, cannot be taken as evidence of the value.

■

■■

!l. >•.;. i-|'»ir.

I=m.

JliflBi'!

328
(Mr. Bodwoll's ArKuimnt.)

•M

A. I do not reinein-

Yes.
A. I

chink so, but I
Was it $3,000 '

It wfts simply a tmnsfor «f propurty on tlm cessation of the
partnership l)etween Spring' and Alexander McLean. Tli>'
Hciiooni-rs constituted only a part of the partnership assets, and
(/aptain McLean's interest was transferred to ('Imries Sprin;;
Unless you liave evidence of all tlie circuinHtancos of that
10 partnership, the state of the accounts, and all the considerations
whieli would affect the minds of the partners in valuing; the
property, you cannot lind, from the fact of that jjarticular salt',
any liasis for a computation of value. It is a case of a particular
Hale carried out under peculiar circumstances. It is conimoii
experience that in the .settlement of partnership accounts there
is necessarily a !ar<;o amount of jfive and take, ami property is
seldom transferred at the market value, except where there is a
winding up hy the C'ourt. The evidence upon tliis point is very
meagre in any event. It is that of Mr. Charles Spring, Record,
page H<)2, line 40 :

" Q. At the time of your dissolution, when it was arranged
" that Capt. McLean was to he paid !:fl,100 and odd, in accord-
" anco with the dissolution agreement, did you put a value on
" tlie ' Favourite ' i

" A. There must have heen.

" Q. Do you remember what it was >
" ber it oH-hand.

" Q. Is there anything to shew f A

" Q. Where is it, is it in the book f'
" am not able to locate it precisely just now.

" i). I will try and refresh your iiKMnory
" A. I think it was, but I am not sure f

" Q. And 81,«00 for the ' Kate," is that right ■' A. I think
" it is about right.

" Q. What is the valuation put upon them at the time uf
" the tlissolution when you bought McLean out ? A. That is
" the valuation put in at that time and brought about under cer-
" tain conditions. It was a settlement of partnership account."

The (JomuMssioner on the part of the United States:- \Vha(
was that date ?

Mr. Hodwell : — That is 1N8(). The dissolution of partnership
is in evidence.

The Commissioner on the part of the United States : — Did he
ever .stat(( in his evidence what those conditions were >

Mr. l5odwell : — No, tliat is not followed up.

Mr. Dickinson: — They are all in writing and all in evidence.

Mr. Bodwell : — We will see.

Mr. Peters : — I think it was read into the notes.

Mr Warren : — It is appendix li, page 52, that is, it is referred
to there ; it is not printed in full.

Sir (". H. Tupper : — What is the nund)er of the exhibit '

.Mr. Warren : — 34, Claim 3.

Mr. Bodwell : — This was October, 1880, after the " Favourite "
had been warned.

Mr. Dickinson :— Does the warning make any difference as
to the value of the vessel ?

Mr. Bodwell : — It probably would in this case.

The " Mary Ellen" is next referred to, but we have evidence
that the " Mary Ellen " was in bad condition, Record, page 182,
line 10. McLean himself, Record, page 409, line 10, says:

" Q. And what was her age about ? A. I believe between
"18 and 20 years, I could not say exactly, I think less than 20.

" Q. She was built of Oregon pine ? A. Yes, sir.

" (^ And when sho was sold, did they inchule her sails ? A.
'■ Yes, sir.

329

(Mr. llodweM's Ar;;muent.)

Good comlition in every way f
incliiilu her buatH (

Piotty fair cdihU-
Moats mill wliolu

"Q.
" tion.

"</ Dill that
"Ht!aiii)}{ (ititlit.

" <^. It includi'd iiur in suaworthy condition, aiul her Hualin^'
" outfit ? A. Of course slio w(<nld not hu in ii soa-wnrthy con-
I'l ■' dition if nIio had had to j;o on the dock to he ovorl)(iiil('(l,"

Tlie OomniiHsioner on tiie part of tlie United States :— When
war* that saU', Mr. Hodwell ?

.Mr. Hodwell :— That was a Hule in IH8(J at !?4,500.

The ('oinnMHsioner on tlie part of the United States : — What
portion of the year was it ?

Mr. Lansing: — It must have heen in the Autumn, I suppose,
on her return froui the voyage.

Mr. Dickinson : — Ahout the same time the "Carolena" was
in such ])iiMie condition.
:>() Mr. Bodwell : — The "C'arolena" was u yood hoat and the
" Mary Ellen " was an <ild tub, that is the ditterence.

Mr. Lansing: — The " Carolena" was older.

Mr. Hodwell : — She was in good condition, had heen practic-
ally rebuilt two years before.

The " Mary Taylor " it was said was sold at Victoria in that
year also ; hut it is not very clear whether she was sold then or
had been bought by Warren before. The evidence on that is at
page llSCi, as follows:

" Q. After the .seizure of the ' Thornton ' did you not provide
;;() " a vessel to take her place in the Heet ? A. Yes.

"V- What was the one !' A. The " Mary Taylor."

We do not know what the price was then, but we know she
was afterwards Vujught by Munsie after Warren got into ilitti-
eulty and had to .sell his pro|)erty at a sacrifice.

There is the evidence of O'Leary at page 291, line 20 :

"(}. What kind of a .schooner was the 'Mary Taylor:''
" A. She was a .schooner of about 50 tons probably."

O'Leary was testifiying as to the condition of the " Mary
Taylor " when Munsie bought her.
40 " (^. Did you examine lier for any purpose ? A. Yes, Mr.

" Munsie had a notion of buying her and he asked mo to go on
' her and have a look at her.

" (j). In what condition did you find her ? A. In pietty
" poor condition.

" Q. In what respect ! A. Her decks were bad and her
' bulwarks were broken off, her rigging was bad."

That was her condition. She was bought by Munsie in
ISiiO, who testified as follows, page 105 :

"(}. Did you buy the 'Mary Taylor' in 1890 ? A. Yes,
."() " she was an old vessel, 50 tons, and she cosit about 84,000. We
' bought her at a private sale.

" <}, Who did you buy her from ? A. We bought her
' from Mr. Warren.

" Q. Warren, I believe, had to sell her at that time ? A. I
" understand .so.

" Q. Did you think you had a goo<l bargain on that ship ?
" A. Slie was an old vessel and I gave perhaps all slie was
" worth."

But the fact is that Warren was very hard pressed and had
lii) t(j .sell on account oi! the difficulties he had gotten into in the
sealing business, \iunsie bought her, and I should think from
what we know of Mr. Munsie that he probably did not give any
more than she was actually worth. He is a very shrewd busi-
ness man whatever else our friends may say of him.

^^w§

■'M

U I

. ""• ^ "".^J^"""

•es;i,

pajr,

-Kil.

Fenel

ope '.

' A.

( A.

sir.

:)30

(Mr. Bodwell's Art'iiincnt.)

Tliu " Juanita " is siiid tu Imve been sold on evidence fjiven
by Ciipt. McLean 412, line 28. Mr. ])icl<inson at that point is
asking liitn a number of ([Uestions, giviiiij nanie.s of vessels from
tiini' to time, and he testifies as vollows :

" i). The ' Juanita ? ' A. She was sold.

" Q. 1^0 you remember the rate ? A. No sir."
10 I do not tliink it is clear that she was sold in that year at
all, and in the evidence given about that ship I do not r(>member
any statement made as to when she was bought.

Mr. Lansing: — We have the register, have we not, of thi'
" .hianita."

Jlr. I'xtdvvell : — If that is in, it will show. I will finil out
(luring the adjournment. The " Theresa " was bought by Capt.
Troup for tlie purpose of .sealing and was not in the market at
all. We have the record in Mr. Lubbe's evidence, and other
places, of her sealing in those years. Slie was not for sale.
20 Capt. McLean says, speaking of the "' Thei

line S.) :

" Q. Do you know anything aliout the '
■' Yes, I have beeji aboard the ship.

" Q. Do ^ know anything about her sale

" Q. <.)r tiie ' Theresa i ' A. No sir "

At page 413 ('apt. McLean says ;

"Q. The 'Theresa' A. Sold in Victona.

With referencr to the ' Wanderer' the Fnited States Argu-
ment .saj's " she was .sold at Victoria by John Sabistoii, (jne of
30 " the witnesses swoi'n on behalf of (Jreiit IJritain in reganl to
" the value of the vessels. 'i"he fact of this .sale was elicited
" from him under cross examination, but on his re-direct e.xani-
" ination witnes,s was not asked to this, but what it C(,..t him to
" builil the vessel."

Hut the evidence of the sale comes from the witness in cross
examination, not in the course of his direct testimony.

He testiKes as follows. Record l)age 211, line 12 :

"Q. Did you ever sell a vessel between IS(K) and l.SDO ^
•■ A. Yes.
40 " . What one was that ! A. The ' Wanderer.' "

"Q. When? A. 188()."

If my f I lend wanted the price, why did he not nsk for it !
In the re-direct examination I asked the witness what it cost to
l)uild the \essel and he said S.S.OOO at San Juan Island. Thi'
evidence does n(jt at tliis page diseio.se the time when the
"Wanderer" was built, but there is another bit of evidence
about this schooner " Wanderer " to which I wish to draw j-oui'
Hotiors' attention, and that is, that vessels were in such dem.'ind
that there was ready sale for this little Ifj ton vessel, not tit to
")0 go to lichriiig Sea at ad.

The fnllo\iing is in the re-direct examination :

'■ (^. Dill you have any application made to you with rcfer-
" ence to the demand for sealing vessels in 188(5 ? A. Well, I
" was asked about 1113' own schooner.

" (j>. Do y(Mi know the circumstances which UmI to your
" being ask('(l about your own .schooner ^ A. Well, a man
" wanted a schooniT tu go trading to the west coast of Vancouver
" Island.

'(). Trading for w hat ' A. Fur seals
(10 " (^. Do j'ou know any of the surrounding circumstances,
" anything that oecurrefl at that time' A. V\ ell, tin- Indians
" weie eatehnig (piite a nur..ber of seals on the west coast,
"They tlionght it would lir ;i good business in trading l'<jr
" them.

3:n

(Mr. Bodwell's Argument.)

" Q. And in consequence of tlifit lie came t<> you ulxiut
" }-our own seliooner ? A. Yes."

And tlien I asked liim what was Uie size of tiie vessel and
lier co.st to build, which shews thi demand for vessoK and
scarcity* of supplj'. I refer j'oiir Honors also to what he sa^-s at
|(, jiii<;e 211, line 53 :

" Q. Vou said you paid for the huildinj; of another vessel ?
■' A. Ve.'<.

•' Q. When was that f A That was in 1X93 or 1894.

" Q. Whe're was she built ? A. In Victoria.

" Q. What was her size :' A. Kleven tons.

" Q. What did she cost ? A. as,.5()0."

Mr. Lansincr : — Just hefoi-e this yon will s.e when the
• Wanderer" was built.

Mr. l'cters.-18"2.
.)^) Mr. Bodwell : — Yes, a:,- friend Sir Charles Tupper hands

me the rejfister of the ship, from which 1 read that she was
l.uilt June, 1872, at San Juan, H. C. Smith-Burr builder.

Refei'rint^ to the " W. l". Sayward," United States Arjjument,
)iaiTe 2H8, it is said "she was one-half sold about the time slu-
" was launched. Neither parties to the sale, who were witnesses
'• before the Commission, were (piestioned as to the incidents
' connecteil with it, and the only source of information as to the
•' consideration which passed is Alexander McLean, who states
'• that the one-half was transferred for 8;?, 000."
;j() My friend has for;;otten .something; there, beeause, in tiu>

ilcposition of Andrew Lain<;, which is in the Kecord, pa<;o 110+.
line ."iO, we have a reference to the circumstances in these
words :

" Q. What did your half of the ' Sa^'ward ' cost you at the
' time she was launched in I8S1 ? A. 1 think she cost sonie-
' where about 87,000 before we went out in 1882.

" Q. That included her outfit ?' A No, sir: she was built by
" the day, the dearest way of buildinff a vessel, but we have not
" ;,'i)t a vessel as good fiom the East to-day as slie was.
^(( " (^). How nuich did Mr. Warren pav you ? A. One-half.'"

'i'he Connnissiuner on the part of the Ignited States : — .\n idea
h.is occurred to mr wiiieh [ think you should have an opportu-
nity to meet. If I recollect tin' rule correctly, wherever the net
\;.ii! ■ of freights is allowed and aNo the value of the vessel, the
viiluc of the vessel is as she would ])i-obably stand at the time
i)f her arrival. Now, if that ap])lii's to this case, it would seem
liiat the value should be takt^n on their arrival from sealing
voyages in the condition they then were. 3\Iy recollection of
I lie rule may not be correct, and I do not say it a|iplies to this
;,(i lase. ^'ou can easily iletermiiu! this by refiiring to any work
on collisions.

At one o'clock the Connnissioners took recess.

('if

15?

At half past two o'clock the Commissioners rcsumeil their
-cats,

Mr. Bodwell: — With reference t) the matti'r which your
honor mentioned just before thr iKijourinMent I have consulteil
witii my associates and we think your Honoris right with refer-
ence to the time at which the value should he ascertaineil. It is
jierfectly clear that a vessel on her \dy;ige woulil sutler some
iiO wear ami tear and would lie worth less on her return tiiaii when
she left. And it seems to me that this is pr.tctieally tiie result
"f evidence which has beeti given as to depreciation : that is to
siiy that it would cost a certain sum to keep the vessels in rep.air
and that when these repairs were done the only other snliject

Km
'M

iii

•ii ill

Iii,;

j|:|'>-

332

(Mr. liothvell's Arj^uuiunt.)

for consitleration would be tlmt wliich may lie styled the expuo-
tation of life of the vessel ; rJmt is to say, haviii;.'' reifard to tiu'
nuiiilier of years for which she was built, how inucli Ioniser can
she bo expected to last. Tlie evidence on oui' part is that all our
schooners were maintained in ijood repair from year to year.
10 We expect that your IToiuirs will make an allowance for the
depreciation that would occur upon the particular voyaije on
nhich she was en<j!ijj;ed when .seized.

The Commissioner on the part of the Uniti;<l States: — It is
possible that in the ary;uments the rule in such cases has l)een
cited, if not, will you kindly mention the rule. I rei'ei' ijenerally
to -Maisden on ('oUisicm for the rule.

]\Ir. lioihvell : — I will try to jfet the authority on the snlijei-t
for your Honor.

Just before that di<;ression to(>k place 1 was speakin<j of the

20 " Say ward." It api>ears that Lainj^ and Warren were partners

in the " Sayward " in this yoar and that Luin;,^ allowed Warren

for one-half of th(? cost of the vessel ; that was in the year ]HH2.

At pa;;e 2(iM of the United States Ari^ument, a reference is
made to tlie sale of the " Favorite," that is to say, a partial salr
of the " Favorite." It is said that Alexander McLean jmrchased
sixteen shares in the vessel for Sl,;};{7.")(), and a rt>mark upon
that is made that he paid more on account of buyinif a mastei's
interest. That remark is based upon a statement of Thornley
with reference t(j .sah.'s in San Francisco. There is no evidence
,'50 that it was the usual custom in ISritish Columbia. I lio not
tiiink it has any reference at all to McLean's jiurchasi' At any
rate that sale was in l!S.s;{, when tlu^ sealini; business w;;.. r;ot in
the condition that it was in later years, and the vessi i \iii» used
in comiection with the tradinj^- which Spriii^^i^' Company iiad on
the west coast of the Island, It could scai'cely b(( taken .as the
basis of the v.ilue of a sealinij schooner in 1S80 and l.SS".

On the next pajje they refer to the sale ol' the " Kate' and
the " Onward," and this, as your Honors will .see by referring; to
the evidence of Sprinu;, at i)a<^e SSS), was a family athiir. Tln'
40 late Captain Sprinj,', who died, had a number of heirs, and fir
the purpose of settlinj; up the estate, Charles Sprin;^ took over
the vessels and tradinj^ stations, for a ci'rtain sum ; hut this can
scarcely be taken as a criterion of the value of vessels.

-Mr. Warren : — Theodore Lubbe was one of the partners '

Mr. Hodwell : — Was one of the executors of the estate.

Mr. Lansinj,' : — Mr. Charles ,Sprin<f had an interest in the
\essf!.

Mr. liodwell : — I thiid\ you are wron^f as to the time in (|Ues-
tion. Theodore Lubbe was wiii<linj( up the estate. The I'efereiice
50 l)ei;ins at paj^e H>ili, line (JO :

"(^). William Sprin<r & Co., at tht; time of j'our father's
" death, did they carry on business at these dill'erent trading;
" stations on the w.'st c(jast ' A. They diil.

"if. Were they also interested in schooners ' A. ^ es.

"Q. Did they also carry on a j^eneral business f A. A
" tradint; and sealing' business.

" (J. At that tiuie tliere was very little catching; of seals, it
" was mostly buyinj^ ' A. Buying and catchin<; both.

" Q. When your I'.ither died, was there a (livision made as
(iO " lietween tin' family, showing what share \'ou shouM get ^ A.
" Ves.

"(). Was it nuide in kind or in cash ' I mean, by giNing
" you certain property Ol' by giving you cash ;' A. It was in
" properties.

• (Mr. Hodwell's Ari;iiiiit;tit.)

" (i). You took over certain proptirtics as part of your .sliaru
'■ in your fathor'n estate ? A. Yes.

'• Q. Did tiie otlier lieirs do tlie same '. A. No.

" Q. Ainoni;st otliers, you f^ot your [atlier's interest in cer-
" tain properties. Did you i^et any interest in tliese tradinj;
"stations '. A. Ye.s, I took tlioni over.
\ I " (^. Where were they ' A. Fcidft, Hes(|uoit and t'layo-

" (|UOt.

" (^. Yon took ovei- your father's interest in the.-.e trading;
■• posts '. A. Yes.

" <j). And also in certain \essels / Ye>i.

'■ {}. What vessels ;' A. The 'O'lw.ird ' and the ' Kate.'

" (). Were the traflinj^ posts more or less speculative sort of
" thinjrs :• A. Yes.

" (j). And you took them over at a certain valuation f \.
" Ves.
■2{) '(). An<l you took the schooners over at a certain valu-

" atioii. A. ^'es.

■'(.). Was the ol<l tirni of William S[)rinj^ it Company tiieu
" woi'iid up C(jnipletely '. A. Not coni|)letely at that lime.

■' (^). Did it cease to he a <;oin^ concei-n ? A. It did.

" Q. And it was left to he finally wound up by whom ' A.
" Mr. Theodore Lubbe.

" Q. This was only a partial windinj; up of it ? A. Yes,

" Q. The rest of the business was left in Jjubbe's hands to
" wind up ? A. Yes.
;;() " Q. And 1 j)resume in the course of time he did wind it

" u)) ? A. Yes.

" Q. And under that arrani;;enient you took over these pro-
" perties ? A. Yc>.

" (.). And at the same time did you i;o into i)artiieiship
'• with. .Mel^ean ^ A. 1 did. "

Mr. Warren : — I call attention to pai^e SSO, line (i:{.

Mr. Warren reads :

" Q. Who was in partnership with your father at the time
'■ of his death ' Mr. Theoclore Lubbi' and who ■ Ise ? A. Peter
[O " Fi'ancis.

■' <J(. And lliat partiiersliip owned the ' Jnwai'il ' ;■ .\.

Mr. Warren : — Now read at paj^e NHl, line I :

" <L>. So that when this sale was made to yourself, or to ;,lie
" partnershiji of ('. Spring' \' ("oiiipany, composed of Alexander
•' .McLean, I'eter {''rancis and yourself, Mr. Theodore Lubiie con-
•' seiited to a sale of the ' ( )nw"ard ' at S2,20() ? A. Yes. '

Ml-. Hodwell : -No, you are mistaken ; that was the partner-

shi[) formed after Sprini;' bouji;ht the vessel. He went into

.'0 partnership with McLean and I'eter Francis, and Lubbe was the

party who really was the vemior of the ve.s.sel, that was in his

capacity as e.\ecutor.

.Mr. Lansin;;': — Who was tin; "Company" of William Spriuij
,i!id Company '

Mr. J)(jdwell : — It is true that i^ulibe had an interest in that
|iartnership — he was survivinj; |)artner, but it was really a
tiimily affair.

MV. Warren:— Here it is, paj,'e MSI, line 4>S ;

" (^. Theodore Lubbe only received his interest at ?2,200,
(iO "did lie? .\. N'es, he was satisfied to let it ;;o throu^di my
"connections; only in th.it way.

" Q. What was his interest in the paitners'.iip of William
' Sprinjf anil Company i* A, Une-third. This he did not con-
'■ sider a very serious point with him. "

! ■' il

.i|;C-
'i :

■III

■ V,.'

' i:

■^

<"'""r^

'WJiJU^IUllUM ukiM9K4# ■

m; ':

(Mr. Bodwell's Arfrument.)

Mr. Hodwell :— Well, cvon in that I'viilence he says that ho
(lid not consider it a very serious point with him — tliat is tlie
(|iu'stinn of tlie full vahie of the vessel : and in any event tlii^
was in 18S4. two years before the soilincj business began to lie
of importance, and the. only use for vessels was in connection
with tradin<j on the west coast of Vancouver Island, at a time
10 when se(\Iin<j was in a depressed condition, as .«hown by the
evidence. !5esides all that, I also maintain, that the evidence
when read all toi;ethor, shows that it was th(^ intention of that
whole arrangement to sell Charles Spring tlu; whole estate at a
low \iilnation, because he was taking the risk of the specula-
tion in order to work it out for the benefit of those interested in
the William Spring est ite. I do not say that the evidence (}f
that transfer has no weight, but it cannot be taken as a fair criter-
ion for value during the next two years, when the condition of af-
fairs had altogether changed and especially as to sales v-liere the
20 vendor was endeavoring to g.t all he could out of th>- property.
'I'lie case of the " Mountain Chief" is of no weight, because that
was a little vessel, was iaiilt bv the Indians ; it was not a vessel of
the same class at all : heic is .lacobscm's evidence, at page 27!S,
lino .So :

" Q. Let me ask you in the first phice who built the ' Moun-
" tain Chief':' A. Some Indians up north on the A'aus
" rivei', somewlu'ie.

"<,). Who did they build her for' A. Well, themselves, 1
" snppo.se.
.'50 " Q. Was there any white men employed about the bnild:ng
'• of the ship > A. 1 think there was one who kept, a store for
'• the Iniiians together with them.

" (^. Were there any skill(Ml workmen employed on her ' A.
" No.

The price at which that vessel was sold cannot have any
ett'ect upon your Honor's mind.

Then in 1S89 the sale of the 'Triumph' by E. C. Baker is
referred to ; but when Baker's evidence is read you find what that
vessel cost Baker delivered at Victoria in 18H8 in exact figures.
40 The whole account is in the record at pages 14'2S, 1425 and 1427.
The sale of that \essel which is referred toby the United States
is one month after rb.e had l)een seized. It can scarcely be taken
as a criterion of the value, because in that case the United Stutes
wo\ild lie gaining b}' their own wrongful act. For if the pric<'
obtained after they had .seizoil that vi'ssel, ami destroyel its valur
the purpose for which she had biren originally brought to Victoria,
is taken as the true basis for value, then the Ignited States will
gain an advantage bv their own wrong and pay according to
tiie state ol thing-: which tliej' had created by their illegal act.
5(1 At the bott(jm of page 2()!), in the Argument of the United

States, we have tiiis statement : —

" In the j'ear ISSI), there appears to liav(; been vessels actually
"engaged ill scaling, from the port of Victoria.' Of this number,
" 12 had their poi'ts of origin on the Facitic t 'oast of the United
" States, 1 on thr Atlantic Coast of the United States, 1 in Nova
'Seotiaaud S in liritish Coluinlna ; of which latter number but
" H were built at Vict(jria, and these in the years 18HI and 1882.
" It is apparent that the chief source of supply for the Victoria
" sealing fleet in I8S6 were the shipyards on the l'a':;itic Coast of
(JO 'the I'nit.-d States, and it is a matter of conunon knowledge that
" Sin I' rancisco was the pi'inci|)al market for vessels on that coast.
" I'nder these circumstani'es the market value of sealing craft in
" 188(1 and iSST.atthe latter i)oit, with the ciistoiii duties on, and
"cost of delivery at \'ietoi'ia of vessels of that class, is material in

335

I'll

:!()

-U)

(Mr. Boclvvell's Arfjunient.)

" (Ifterinining tlio pricf obtainiiiij at Victoria durinr; the period
" wlien tlie seizv.rnH were made in the Hehrini; Sea."

Such a conclusion cannot ho based upon evidence wlticii i.s
thore referred to, beoause when carefully examined it shews a
\ery ditferent state of thin<;s. In the first place, instead of
I here beinj; 22 vessels mentioned in the exhibit, there are 41
\ essels.

Mr. Warren : — All cleared for sealinj; :■

!\Ir. Bodwell :— There are a n'linber of vessels mentioned
there Appendix K, Jiaj^e :^7. The headini; of that .schedule \:.

• Vessels at the I'ort of Victoria available for Sealinj; in 188tJ

• i»nd 18H7." My friends have only taken the list on one side,
and wlien analyzcil that list of vessels is very important and
xpi'V much in line with my present ari;ument. In the rirst
]ilace, 41 vessels are meniioneil instead of 22. These were
liuilt in the following; places :

Victoria 7

Other places in British t'olumbia 11

San Francisco 'i

Other ports on Pacitic coast —

Dunj^eness 1

Ft. Franklin 1

Seattle 2

I't. 'I'ownshend 1

Whatcom 1

Ft.. Maddison 1

rtsalady 1

I'iast Sound 1

Washinjjton 1

California 1

— 11
Atlantic Coast —

Kiii(;stoii, N. B 1

Essex, Mass 1

Chester, N. 8 I

Fort Clyde, N.S 1

Shelbur'ne, N. .S 2

— ()

Yokohama 1

San Salvador 1

Unknown 1

— .S
Total — 41

i!r

1' ■Im

'. ■ " I'

... II

I I

!, I

.. '

So that practically the i;reat majority of vessels in that list
were built either at Victoria or British Columbia, or in those
.")() jilaces innnediately across thr Straits in Washinjfton Territory.
Kvery one of the I'nited States ports other then .San Francisco
;ire in Washinj^ton Territi*ry, on Fu^jet Sound. There are only
.'i in ,San I'^'ancisco, 1 in Cilifornia. and only 11 in all the ports
iif the Facitie coast outside of San Franciseo,

So far ns that evidence jrocs, it shows the very opposite of
what the l^iited States are eontendini;. It demoiistr-tes that
Situ Franciseo wns not the i lacf of oiiijinof that class (.1 vessels,
liut that l'ai;et Sound and British (.^oluiiibiM were, and no ])ort
liiid so jjreat a n\ni)bei' as \'ieti>riii. \o place had more thati
• ;o two except Victoria and S.ui Francisco. San l''rancisco hail M,
\ ictoria had 7.

The arjijuiiient for the I'nitid .States then proceeds pajje 207
lo ipiote fi><m the evidence of Mr. Thornley as lo the state of
atl'iiirs rtt Sim I'ranciseo. This witness <iid not profess to spe<ik

ipF

'! ili';A"J^t""4JllL^l.l|WLIwjl!iliiiXiBii.!!it

:53()

(Mr. Bodvvell's Ari»ument.)

from liiH own knowledge or infoniuitioii as to sales ; or perliii]js
it would 1)0 more correct to siiy that ho did not profess to
liiivo any knowledyo himself of the actual value of vessels about
wiiich he jjave evidence. He did the actual price paid in some
instances, hut he could not .say whether that p' ice was I'ea.sonable
or not. He i;;av(' his evi(ieiic(! from the records he had made
10 at the shippiuff port of San Francisco, from the rejjistry of
shippinj^ tliere, and to f ii intents his evidence has just tln'
same w(Mfjht as if 'he Secretary of this Commissi(jn had i^onc
to tln^ reifistrar of shipping at San Francisco and had made up
the same list and placed it before yoiu' Honors.

In support of this I call your Konor's attention to the evi-
dence on |)nt,'e 17>Si) : —

" (). Do you considiT i?l,000 the full value of the ' Ani^'cl
'■ Dollie ' \. I mu-t aLjain say that I cannot answer that
'■ (|uestion.

" Q. So that .so far as any o()inion of valuer is concerned we
" are to umlerstand that it is not your business to know them ?
" A. Yes, si)-."

That evidence in substance is repeated by Mr. Thornley on
two or three occasions. I think your Honors will remember how
careful the witness was to say that he liid not profess to fio any-
thing more than to ;,'ive the actual price and when; he did not
know that, the price that ajipeared in the bill of sale.

In onier to siiow how very little weii^'ht that class of evidence
has as a l)a.;is of vahie, I wish to analyze some of the prices that
Mr. Thoridey has referred to. I submit it will clearly appear
thai unless you have the conditions and the circumstances
under which the sales were niatle you cannot jui'i(e whether
the price paid was the market value of the vessel or not.
It seenis to me, with reference to this particular class of vessels,
the circumstances were altoL;elher ditt'erent from those which
obtain ordinarily. There was nothin;^ which would create a
market i)iice. There was no place on the Pacific Coast
it appears wliere this class of vessels were built in numbers.
At San I'raneisco vessels were constructed suitable for seal-
iiij,', but they were not built for sealinLT. They were built
upon special orders to ^o to the Sandwicli Islands anil the south-
ern coast of California to trade, anil were used jj;enerally by the
persons who ordered them. If a man wished to buy a vessel foi'
sealintj it was necessary for him to find some person who had a
vessid of this class and who was not using it, and therefiUL'
wished til sell.

Sunpose. therefore, that Captain Warren had been desirous
of oblainin;; a vessel to replace one of his that had been seized

50 at San Frartrisco. he would have been otiliged to iuipiire for a
trailing' vessel owned by some man who had not made it ])rotit
ab'e and who wanted to sidl. When it is remembered tiiat
Uiany persons, at the very time in (|uestion residing in San
I'rancisco, were anxious to engage in the sealing business, it will
ha seen how little chance he would have had to pick up a bargnin
there in ISSO or IS«7.

Ml'. Tinner, who was the Sat- Francisco builder, says that in
lS8(iheonly built six vessels, and in 18X7 five vessels. Mr.
Turner was the largest builder in San Francisco. None of

(10 tliese were built for sealing but on special order for trading.

.... following comparison of prices, given hy Mr. Thoinley
also, indicates that the class of evidence given by him is of verv
little assistance to your Honors.

■20

337

(Mr. Bodwell'a Ar};;unient.)

You will SCO how the prices vary within short periods of
time : —

" Angel Dolly," 19 tons ..April 29, 1887 $1000

March 8, 1888, \ at 8,=i00 2000

Dec. 24, 1888, whole vessel 700

" Alton," 84 tons March 28, 1887 3000

Feb'y 28, 1888, jj at ?4000 5333

Feb'y 14, 1889, J at 81200 6000

" San Diet^o," 46 tons Octoher 12, 1885 3950

Oct. 23, 1885, i at 8 1200 4800

Jan'y 12, 1887. \ at 81050 4200

November C, 1890 Private.

" Ivanhoe," 114 tons Jan. 30, 1886, J at 8500. .84000

Julv 16, 1887, iV at 8300 4800

Oct. 10, 1887. T!>g at 81000 ....... 3200

" Page," 104 tons Dec. 24, 1886, ^ at $1000. 4000

FeL'y 2, 1 887, ^ at $433 5196

Feb. 11,1 887, ^4 at S21 6.66 5 199

Dec. 8, 1886, W at 81600 4800

Ino," 93 tons

Jan. 28, 1885, i at 81500.
July 14. 1886, i at $1000.

6000
2000

" Iruia," 92 tons

March 1 2, 1 885, J at 81000 8000

May 5, 1886, J at 8800 6400

" John M. Ingalls " .

91 tons.

Feb. 15, 1886, J at 8500 4000

March 8, 1887, i at $700 4200

,i.j..i-:

|| ii

40 " Lizzie Derby,"
93 tons.

Feb. 4, 188S, i at 8775 6300

Feb. 8, 1888, ^ at $11.57 4628

Jan. 20, 1889, i at 8600 4800

The following vessels are also named by him : —

" C. H. White," 84 tons . .June 11, 1 890 cost 810,000

" Helen Blum," 63 tons " 7800

.-,0 " Lila & Mattie," 100 tons..Oct. 10, 1888, h at $6000. 1200.00

Again, to further illustrate the same contention I read to
your Honors Mr. Thoniley's evidence wIkmc Ik; docs know the
special ciicuinstances of one ship. You will observe how the
conditions changed from time to time. On page 1789 he gives
the liistovy of the " San Jose;" as follows : —

' Q. Take, for instance, the ' San Jose?' A I was very
" familiar with tlv^ 'San Jose.

" Q. You giivi, hdw many fales i)f her there ? A. Siie was
(iO " built in 1886 : in . S!S6 1 have one transfer of James O Hanlon
"to James Griffin, ti.at was 1887; in 1886, that is when E. W.
" Nowth sold three-six "enths to James IJrilKn : Newth was the
'■ master of the vessul ; 'i sold tlnee-sixteentlis for 81,050; tlien
" Captain Lee took cliar^, of the vessel and he bought a (juaiter

338

(Mr. Roilwell's Argument.)

" otr Mr. Oiirtiin ; Griffin wantuil to j^et Captain Leo hocanso Lee
" was n gooil liuntoi' ; lie wanteil to have liiin on tlio vessel so he
"pave liim a (]iiiirter for !?1, ()•">() ; lie was anxious to f»ot Captain
" Lee because lie was a f^ood hunter and ho saved the getting; of
" an extra man ; then Joim T. Sullivan went in at the reque.st of
" Ca|itain (jrillin ; Sullivan was a shoemaker near my office ; he
10 " didn't care to put any more money in to fii out the vessel, so he
".sold one-sixteenth for l?:n'2..")l).

" (.). .Mr. Sullivan ilidn't want to put u]) any more money
" for ex]H'nses ! \. No, sir, he didn't caie aliout that class of
" business, he saiil.

" Q. The next transaction ? A. Mr. O'Haidon, a clothing;
"dealer, found he was earryinj,' more of the vessel than ho wanted,
" and he sold a sixteenth to Mr. CJriffin : Oritfin wanted to j,'et a
" con troll ill J,' interest in the vessel, as ho wanted to put in a part}-
" as master ; the otlieis didn't care aliout him. They didn't con-
20 " sider he was a competent man for master. I heard these
" matters iliscussod.

" Q. There was a dispute between them ? A. Yes, .^ir.
" Mr. Crifliri wanted to yet a controUinLf interest in the vessel
" and put Captain Paul in command ; he did so and ho sold a
" (]uarter to tlu? cnptain for 81.250.

'■ Q. When was that salt; ? A. That was on tho 1 1th of
"November, INSIJ, after Mr. (Iriffin had bouL,dit of O'Manlon.

" (,). Did that end the whole transaction connected with that
ves.sel ? A. In ISi'SG it did, in l!S!S7 there was some more trans-
30 " fers ; in 1>SS7 there was ii tiansfer where O'llanlon transferred
" one-eij,dit to (iriflin.

' (). What Were the eiieumstances there ? A. I am unable
" to explain that, there was simply a transaction ; they came in
" to have the doemiients drawn without explanation.

"Q. Was she sold aoain ? A. Yes, sir.

" g. In 18«,S ! A. " In 1888, that is tho time Captain Leo
" was put out of tho vessel ; there was a transaction with tlie
" ' An^el Dollio' in that matter; Captain Lee sold to Gaivin a
" quart(.'r for 81,300; Captain Lee they thoujjht was too old, ho
40 " was a very stout man ; they put him out and Captain Paul in,
■' he was a hunter.

" Q. That .schooner in 1S88 sold at the rate ( f 80,000 for tho
" whole vessel ; a (piarter for 81,.'j00. A. 81,300, at the rate of
" 8.-).200."

I .submit with all deference that Mi: Thornloy's evidence is
useless as a criterion of market value. Take any one of tho
vessels in his list, which price are you to consi<lor. The}' vary
from 81.000 to 82,000 in the course of a year. Will you say that
the special circumslances made the hii,'h price, or that the special
no circumstances made the low price ? Where can you rest and
.say, that sum is the value of the v(!ssel,anil fur;her how can you
say that a piice so uncertain in itself is a fail' b.i.sis of value in
Victoria where diflferent conditions altoi,'ellior prevail.

Proceeding', my fiieiids have j,dven a tabulated list at pajfes
272 and 273 of their ai j,'iiment, ami, of course, as one woulil
expi'ct, tlii'V havi' taken in every insiance tho vorj' lowest
price mentioned n.> the tij^ure upon which tho value of tho
vessels is to bo determined. I submit that such a list is
valueless to your Honors because you cannot suy that it reports
GO the correct condition of the market, even if it can be saiil that
there was a market, cither at San Francisco or Victoria for
vessels (^i' the cla^s mention(!d.

Tli'ft'i'ririi' Mi'ain to that part of tho aiLruni«nt which montions
.Mr. Tlunnley's (Midi/nce my friends set out a number of sales

339

(Mr. Bodwell's Aifijument.)

wliicli lie has roportcil. In l.SS(! you Imvu {j vosst'ls referrod to.
Tlio " Addio C. lifizultine," tlio " (Jolilon (jate," thu " San Jose,"
tlie " lima," tlio " Tvanlioo " nnil tlio "Paj^o."

I will roail wlmt Mr. Tliornlcy says about tl.cse vcs.'iel.s at
jm^'o ITf^fl, line 40 : —

" <^. ('an you yourHoif toll then whethoi- these vessels or any
10 " nuiiiher of tl'.oni wore or wore not suitahio for it ? A. Tho
" '('itv of San Dioi^o' was suitable for it.

" (.}. Was sho a sealer? A. Yes, sir, she was bought by
" Brown Brothers for sealinjf purjioses.

" (}. The ' Iinia V A. I don't know, I wouldn't say what
"she wa.s suitaliie for: they have what they call center boards
"and keel vessels, and I ean't aiiswoi' what these vessels were
"used for; the 'Addio C!. Hazeltine' was a keel vessel enfja^ed
" in foreiij^n trade ; lost down on the South Sea Islands ; she was
" not enga;;eil in sealini,'.
20 "Q. (io throui,di the list and ttdl us just wlmt you can speak
" of ns beini,' enj^agod in senlinfj; ? A. The schooner ' San Jose '
" was enj^ai^'od in sealing,' ; the ' Anj^id Doilie,' she was bou^^dit by
"(iritlin a!id others and went into tho soaiin;:^ businc^ss in 1SS7 ;
'■ the schooner ' (iolden Gate,' she was a keel vessel, ',}') tons; the
" schooner 'J..ily L ,' she ivas built for tlio purpose of ;;oint; into
" sealinjr ; the schooner ' San Jose ' atjain ; in 1X88 tho schooner
"Lily L.' was en^'nged in sealinjj; ; tho schooner ' Lizzie Derby,'
" she was a keel vessel ; she went to tho South Sea Islands, she
" could have been used for soalinr; ; the schooner ' O. S. Fowler,'
3(t ■' she was enga;,'ed in sealinjj ; the schooner ' San Jose ' af^ain ;
'■ she was oni^aLfod in sealing;."

Th(^ evidence or Mr. Turner is that most of the vossols
of this class were employed as tiaders, On pac;e 171 ■!• is
Mr. Turner's evidence, which is more to the point than .Mr.
'i'hornley's can po.ssibly be. Bef,'inninj:j at lino 22 he says ; —

" Q. Now j'ou have told us that you have built a great
' numlier of vessels and have given us the number, have been
" kiiul enough to give nio j'our book and I have gone over some
" of it. Now, in IS.HO, I think you said, you built six vessels
40 ' suitable for sealing purposes. Is that correct ? A. I think
" so.

" Q. Can you tell me for whom these vessels were built ? A.
" I caniiot, but I think by looking at my book I can tell some of
' them.

" Q. The nami's are in here, are they ? • A. 'San Jose' is
" tho first, there were several owners.

" Q. Was she a sealer ' A. She was built for a trader and
" sealer.

" Q. Which was it, a trader or a .sealer, or both ?. A. Both
"lO " purposes.

" (l I see a vessel here called tho ' Pearl,' Who was she
• built for ? A. The Alaska Commercial Company.

" (l What for > A. For pearl fishing.

" Q. Not for seal fishing ? A. No, but she was that style
' of vessel.

"Q. That is what she was built for .^ A. That is what she
■' was built for. She was sent out to hunt for pearls that never
" existed.

" (),. Tho ' Moi Waliino,' who was she liuilt for ' A. I
liO ' liiiilt her for a lumlKM-man.

" Q. Was she a sealer ?

A. She was for people in Hawaii.
A. That vessel was fit for a scaler

'l«l

'f'

:* r

,i*t

nnd would have made a vei'V good one.
" <^. As a matter of fact sho was not built for sealing >

A. No.

,iiM|niipii||i

340

A tiailur ill tlio South Sea Islamls.
' Lovina ' built? A. For Turnur

(Mr. Bodweil's Argument.)

" Now then, the ' Mateata ' was she built for soaliny ? A.
" Xo, Mir.

" Q. Was she included in your li.it ? A. 1 believe so.

" Q. Who was she built for ? A. Huilt for Andrew
" Crawford.

'• Q. What for ? A.
10 " For whom was the
" Chapman of Taliiti.

" Q What for ? A. For a trader among the islands.

" Q. Not for a sealer ? A. No.

" Q. The ' Berwick " A. Shu is a scow.

" Q. She is not in your list I A. No.

" Q. Then there is the ' Reliance,' I thiid^ ? A. The
" ' Reliance is a steamer.

"Q. She is not in your li.st either? A. Molil on, the
" ' Reliance is a hiinber schooner.
20 " Q. Not a sealer A. No, but she would maUo a tolerably
" good sealer.

" Ij. Did you count her among tlie si.\ ? A. I don't think so.

" Q. How many did you say for J. SSO ? A. Five.

"Q. And as a matter of fact the only one built for a sealer.
" wa.s the ' San Jose ? ' A. E.xpvessly for a sealer, yi's.

" Q. The ' Azteca,' is that one ? A. Verj- likely.

" Q. I cannot find any tonnage for her ? A. She was
"never measured b^' United States measurement.

" Q. Was slie a sealer ? A. No, sir, she was of that class.
30 " Q. As a matter of fact you have no particulars in this
" book ? A. No.

" Q. Not the tonnage ? A, Not the tonnage.

" Q. The vessel cost what? A. S."),SOO ; she was never
" registered.

" Q. Now, the ' Undina ? ' A. That is not one of them.

" Q. Very well, the ' Emma ? ' A The ' Emma ' is a
" Me.xican ves.sel ; she was built for trade on the coast of Mexico,
" Q. Was she built for a sealer ? A. No.

" Q. The ' Lizzie Merrill," is she one of the six. A. No, I
40 " think not.

" Q. What was she built for? A. She was built for a
" coaster and would have made a very good sealer.

" Q. She was not used as a sealer ? A. No.

" Q. The ' Grace B. Ricliaidsun,' was slic built for a sealer?
" A. She was not.

" Q. The ' Navigator,' was she built for a sealer ? A. No,

■' Q. And the ' Domatilla,' was she built for a sealer ? A.
" No, sir.

"Q. As a matter of fact, in 188,5, did you build any ve.ssels
50 " for sealers ? A. I don't think there was anj- that went into
" ths sealing busincsa.

" Q. None of those vessels in 1885 and only one in 1S8G
"that j'ou built went into the sealing business at all ? A. The
"' Pearl ' went into the sealing business finally.

" Q. 1 mean in those vears ? A. Not that year.

" Q. More than that, out of those vessels that j'ou built in

" 1885 and 1880 but one of them changed hands in either of

" those years that you know of, or did the parties for whom you

" built them keep them ? A. I don't know about this ' San

00 " Jose," she has changed hands fre(juentl\'."

It seems, your Honors, tlierefore, that practically nil the
vessels built in those yea.s were for pui'pose.i otiier tluin that
of sealing, and, as a matter of fact that they did not go into
sealini; busiress.

841

(Mr. noilwfir.s Arj,'uiiient.)

Mr. Dickinson: — Of tliose vessels on your own cuntention
could you It'll how many of tlioiii wi-ru Imilt for sealing pur-
jiuscH in IHSO.

Mr. Hodwt^ll : — Tluvt is not the point I nni nmkin;,', What I
say is that tht'si- vt'ssels weie not liuilt for sfniin;^ purposes,
thoy weru liuilt for trading purjiosus and the ownurs did not
10 iillow thein to <^o into soalinf^. What usu is it to us to say that
then) wure vessels in San Francisco ntn'A for Iradinj^ purposes
when we could not huy thent for sealiit},' purposes. It does not
sluiw that Captain Warren or Mr. .Munsie or any hody else could
have replaced vessels seized hy the United States at a certain
tij,'ure ; in fact, it sliows the contrary and it corrohorates tliu
evidence upon our side.

.Mr. Dickinson : — The point is, that in order to supply the
place of that sealinj,' vessel you would liave to j^'ct some vessel
that was out of commission and laid up.
•JO Mr. Bodwell: — Kxactly ; we would havc^ to find a uum who
had a vijssel that was enj;n;^re(l in a husiness that was not paying
and who was ready t(j sell it.

Mr. Dickinson : — And otherwise yon could not f^o into tlio
valuation of vessels and the (ju(!stion of valuation

Mr. Hodwell: — I say that the evidence you have iriven on
that point does not lielp us. It does not show that the
jirice you state was the price at which we could replace the
vessels you took away from us. I contend that uidess you
prove that you ar(! not showing; the l.'oniuussioners an}- j,'round
30 upon whicli they could hase a compensation that would he
a reparation to us for our loss. You nuiy as well tidl us that
some one in ISISI) hou^ht a horse in Halifax for one hundred
dollars, as to say that in San Francisco during,' the y(!ar you
seized the " Dolphin," a man liouj,dit a vessel for trading pur-
poses for a certain sum, and after that used in that business.

Mr. Dickinson : — That depends on the valuation.

Mr. Bodwell ; — ^I am ci'iticizing the argument you have given
here, and I am arguing that you do not estahlish a basis for a
fair valuation for the vessels which were seized.
40 Mr. Dickinson : — On the theory that the basis of the valuation
uuist be what it is worth ?

Mr. Hodwell : — Yes, that is the point I am making.

Mr. Dickinson: — That is what I want to understand.

Mr. Bodwell: — We have given your Honors as a basis of
valuation the cost of building vessels in Victoria. Mr. Turner
also gave evidence as to the cost of building vessels in San
Francisco, and at page 1GS4, line 40, he says that his shipyard
was the largest shipyard in San Francisco. With ri'ferenco to
the building of vessels in San Francisco, page IGScS, line 20, be
hO says : — ■

" I haye not made an exact calculation, but my impression is
" that what vessels 1 built at that time, ranging from .'!() to 100
" tons, or a little over, would average about !i^lOI or S102 a ton.
" I perhaps ought to have made this average before, because the
" large vessels cost much less j)er ton.

" Q. Now, we will take, if you please, a vessel of about .'50
"tons? A. I should saj' about 1?115 per ton would be the
" average for that sized vessel, accordini' to my book here."

It must be remembered that these were prices which obtained
(iO iu a city where there was every facility for building vessels and
purchasing cheap material; an J, moreover, his pi'ices were made
under the keenest comjietition. The livahy was so great that
some of the men in San Francisco, in opposition '.o Mr.
Turner, were driven to the wall, and made a failure of their

rflii

>i ii

!l ii

^^,^

IMAGE EVALUATION
TEST TARGET (MT-3)

1.0

I.I

■^ Bi2 122

lill

— 11''^ 11'-^

Photograplac

Sciences
Corporation

23 WIST MAIN STMIT

WIISTIR.N.Y. MStO

(716) •72-4S03

342

(Mr. Boilwell's Argtiment.)

business. Mr. Turner says he does not think that he over
olitaincd more than the vessel was worth, because the competition
was so keen. When a business man makes a statement of
that kind, tliat he was obliged to cut prices and sell nt the
smallest margin of profit, your Honors no doubt will under-
stand that ship building was then carried on at a very low
10 figure in San Francisco.

A very diderent state of things existed in Victoria, as is
explaine<l by Mr. Walker.

In our argument we refer to the special cofiditions obtaining
in Hritish C'oliiiiibia at the period in question, and your Honors
will see liow great a diflerence it would make.

(Inr argument, at page H'i, beginning at tlie bottom under the
heading of " Special eenditions atPecting value of the vessels,"
.says:—

"The witnes>ies callod on behalf of (treat Britain make this
20 " very plain. 'I'hey all agree tliat labour was scarce and dear,
" 84 and ?.") a day lieiiig the ordinary rate of wages for a ship-
" Wright. The witness. Walker, who had an extended experience
" in that biisinc.ss, snys that in 18.S() in Victoria, in consequence
" of the .scarcity of work, shipwrights had practically to be
" imported for every jub, and left when the particular piece of
" woik on which they weie engaged for the time being was
" fitushcd.

" This fact restdttd in a particular increase of expense which
" is Worthy of note. The witness says that in large places
30 " win-re a (|tiHntity of ship building is in progress, ordinary
" carpenters, whose wages are much less per day than that of
" shipwrights, may bu employed to perform much of the work
" upon a vessel luicler construction. In Victoria, however, at the
" time in (piestion, when a builder employed a shipwright, he
" was obliged to keep him at work continiuilly or lo.se his .services
" altogetluT. The conse(|Uence was that these skilled laborers
" perfornu'd not only what pertained particularly to their trade,
•' but also did all the work upon the ship, in every instance the
" account for wages being inen^ased accordingly.
40 " Again, lumber was verj' expensive, costing as much as !J14
" p(jr thoii.sand as compared with $H, the price at the present day.

" All fasteiungs were imported from the United States and
" piiiil a high rate of duty. It is true that these articles were
'• for sale in other jiaits of Canada, but in thosi; days coinmiuu-
" cation between iJritish Coiundiia and Kastern ('anada was rare
" and ilitHeult. This uuirket was little kiu)wn and in practice
" not resorted to. Ship chandlers kept no Canadian good.s in
" stock, and tile result was that about 'M per cent, of the cost of
" a ship was nwide up of articles paying a duty ranging from 17J
50 " to 2.') per cent.

Again, from the fact that only a few vessels were built and
" at such infre(|uent intervals, much expense was incurred in
" matters of detail which would not happen at all under
" ordinary circiimstanci-s. Fresh models were prepared for
" every ship, and time was lostaixl expense entailed in preparing
" moilels and moulds, and in waiting for their inspection and
" approval by the prospective pureliaser. When all this was
" done, suitable places for working out details ha<l in each case
" to b(! specially arrangecl for, and generally all the prclindnary
(iO " steps in cotuiection with the construction were taken under
" circumstances of consideiable inconvenience, and with much
" more thati ordinary difiiculty and expense."

Mr. Turner tidls us that in San Francisco, where these difii-
culties were unknown, vessels of the largest size suitable for

343

(Mr. Bodwoll's Argument)

sealinpr cost from $102 to 9103 per ton, and tliat the price
incn'aserl rapidly as tlie tonnage went down. Indeed, the very
point I am making is made for us in the United States argument
at page 280, for in noting the evidence of Hubert J. Cook, the
counse) for the United States ,ays : —

" The capacity of the shi|)yard managed by Cook is shown
10 " by Ids statement, that in 1878 it took him eleven months to
" partially rebuild the Thorlon, while Matthew Turner testified
" that in bis yard at San Francisco a 100 ton vessel usually
'• took sixty days to build ' reaily for sea,' but could be completed
" at increased e.vpenso in thirty days."

That shows perhaps as strongly as any piece of evidence could,
the disadvantages that existed in Victoria in those years in build-
ing vessels, and therefore it is in favor of mj' argument that our
charge for the cost nf building vessels in Victoria is not at all
unreasonable. The statements of our witnesses receive additional
20 weight from the evidence of Mr. Turner that with all the facili-
ties in San Francisco and untler the keenest competition his prices
were not less than J102 or 8103 per ton for vessels of the
largest s'ze he referred to.

Mr. Lansing : — New ?

Mr. Bodwell : — New, of course ; but our vessels were new
when they were built, and they were in good repair and as good
as new to us when they were seized. We do not expect to
ilraw inferences for the court. We mendy give the court the
facts and to aigue on these facts. We do not think that your
30 Honors will allow tl, same price for an old vessel as for a new
vessel, liii' we state the fact of the cost, and we ask you to con-
clude that the value which we put upon them at the time of
seizure is not excessive.

; 8

ii IKI

rf'i

■■H

•I-.'

b)p

'1 .

;• (i

!1 ■ S

The argtnnent of the United States then proceeds at pages
27() and 277 to criticize the competency of the witnesses who
were called on behalf of Great Britain. I wish your Honors to
add to the statement they have made some extracts from the
evidence in order to .show that these criticisms are not fair to the

40 witnesses. For instance, they speak of Walter Walker as follows :
" Walter Walker, termed in the argument, ' .shipwright and
" proprietor of shipyard,' and cited as to the value of the ' Caro-
" lena,' 'Onward,' ' Anna Beck,' ' Crace,' ami 'Dolphin,' was a
" J(nn'7iei/man nfilj) en rpenter. It does not appear that he ever
" liuilt a sealing schooner or worked upon one in course of con-
" struction, nor docs it appear when ho became interested in
" ' Trnhey's shipyard,' of which he claimed to have been the pro-
" prietor ; but in 1883 he was working as foreman in repairing a
"government schooner and left his trade in April, 1884, to

.iO " become measuring siu'veyor of the port of Victoria."

Your Honors will observe, by referring to the evidence, that
Walker was very well ([ualitied to speak of the matters to which
he deposed. It is said that he never built a sealing schooner.
Hut it appears that be built a great many other ships,
and, as I said the other day, there is no magic in the word
" sealing." If it is shown that a man has l)een engaged in
liuililing schooners, he is surely competent to give his opinion as
to the cost of them. It does not follow that l)ecauso he did not
build a sealing .schooner he is to be described as a journeyman

CO carpenter. I read to your Honors .Mr. Walker's experi-
enci! to show bow unfair this criticism lA, from page 174 o( the
t'vitlence. I quote the following: —

" tj!. Ml-. Walker, what is your business ? A. I am a ship-
' luililer.

■.■\

III

I 1

rpTf

Vf'?*

S':.

■..II

344

(Mr. Bodwoll's Argument.)

" Q. Where liiJ you serve your apprcnticcsliip to the trad* ?
" In a shipyard in Scotland.

" Q. Wliere was that ? A. In Barton on the Clyde ; Den-
" nis' was ihc name of the sliipyard.

" Q. For how many 3 ears were you an apprentice there ?
" A. For Hve years.
10 " Q. After that where did j'ou work ? A. I came out to
" Canada in 1S71 ; after I came to Canada I stayed in Toronto
"one summer, mid then I came up on the Dawson route.

" Q. What did you do on the Dawson route ? A. We liuiit
" two steamers at a, place called Port Francij, one above the falls
"and one below the falls.

" Q. After that where did you work ? A. In the Ret! River
" countrj' down on Luke Winnipeg;. I was workin;; on a screw
" priipcllor for the Hudson Ba)- Company.

" Q, rrobttbly the first propelior built on that water ? A.
20 " Yes ; and I worked on the first side-wheel steamer ever liuilt
"on that river, for the .McArthur Brothers.

" Q, Where (lid you work after that ? A. I came to Oakland
" Caiifornia, and worked there for one summer.

" Q. What were you doin;; there ? A. Buil<lin<r a steamer,
" and I a!s(; woikei! on the ilocks in California for a while.

" Q. Where were these docks ? A. There was one called
" the North Point, and the other, Hunters ; one was at the north
" end of San Franciso, and the other was down at the south end.

" Q. What sort of work were you doiny there ? A. Repiiii -
30 " ing ships.

" Q. And fiom there you came to Victoria ? A. Yes, right
" to Victoria.

" t^. About what time did you come to Victoria ? A. 1
•'came in January, 1^75.

" Q. From that time along, what ha.s been your business ?
"A. I was engaged until about lfSfS+ in ship buil<ling.

" Q. Up to liSS.") you were engaged in shipbuilding and
" repairing vessels here ? A. Yes, sir.

" Q. Did you know the Star shipyard ? A. Yes, .sir.
40 "Q. What had you to do with that? A. Well, I was a
" partner with a man by the name of Colvin ; we were the first
" to put ways there.

" (^». You were the proprietors of the Star Shipyard ? A.
" It was called Trahay's shipyard.

" Q. 1.S83, had you any repairing to do on any particular
" vessel A. Oh, yes, I had charge of the government steamer
" ' Sir James Douglas.' I hauled her up and put 20 feet about
" the middle of her and inadi^ her larger.

" Q. In what capacity did y(ju act in connection with that
50 " Work f I was foreman.

" Q. What sort of work did you carry on in Trahey's sliip-
" yard ? A. Repairing small steamers and schooners when they
"came back fr.jm whenever they had been. There were not very
"many schooners in the port at that time.

" t^. You were building small steamers and repairing vessels
"from time to time? A. Yes. I might also state that I
" worked up (>ti the Skeena River in l!s7(i : we built a tug boat
"for McAllister Bros, and she was cjuite a large ship, and plied
■' here as a tug for eight or ten years.
(iO " Q. In your shipyard have you had occasion to overhaul
"and repair sealing schooners ? A. Yes, sometimes."

It appears that in liS.S4 Mr, Walker was appointed Measuring
Surveyor for the Port of Victoria and has been engaged in
shipping for all these years. Then at page ISO of the evidence: —

34.')
(Mr. noilwell's Argiiiiieiit.)

" Q. Did you l>ny h vessel yourst-lf ami hring lior here at
" that time !* A. The steam schooner ' Misnliict'.'

" y. Whiit was the t()iiiiii<;e of th(! 'Mischief'? A. The
" ' Mix'hitsf ' WHS M tons re>^ister.

" Q. When (litl yon Imy that vessel ? A. In 1S!)2.

"(f. How oM was she ! A. She was linilt in \HS(',.
10 " t^. What wiiniil she cost in |.Sh(i !• A. It was con-
sideieil aliout SIO.OOO witii innehinery."

There is a i|notrtiion in thi' J'niteil States ai^nunent
wiiieh yives a wron;^ ini| n^slon of Mr. Walkei's i-vidence.
There shoniil lii! a space in the ijiiotatiiin in the tir>t |iorli()n
n'-pniilnceil from pn^^e ISI.anil the next ipiistion and answer
is at pHj^e |S.'> in tlw evjili-nee, and the latter is not at
idl ecinieeted with tiie previous .|ne-liun aiiii aiiswer. It would
look here as it' his evide!ic(' iiail all iieen yiven at, one tinn'.
Vonr Honors should look at pijje IMI, line 40 for the first por-
20 lion wldch is as follows : —

" <,^) Vou can only ted what it wouhl eo»t to Imild a
' schooner here in Victoria where ihey clid not iiave the ship
"chandlery niulei iai, and where they wnuld have tu pay a hij^h
'■ price if they did L;et it. That is nil yon propoM- to till f A.
•' That is all.

And at pa!,'e IS.'), line .'l-'), the in'Xt two questions : —

' (). Vou do not know anythini,' almut the price that was
" paid for her f A. No.

" i}. Do you reinenilier that the • ( iraeie ' ahil the ' I >.ilphin'
;;i) ' were sold in INS(! :' A I do not know, iait I i|o not think it
" was a puhlie sale.

" (^>. Wliev yon t"stiliid as to tlie value of ships in l.SSC
■you were not very familiar witli vessels that weie sold in that

■ \ear, were yon, or familiar with ihidr |>riees ! A. No.

'• (^. It was not part of \onr lii.sjiicss to keep posted as tu

■ the sales ? A. I'nless just eomirii; in contact with those who
' wer>' huyiiii,' and wen' peisonal friends of mine.

" (^l. Vou have no special oppin tuniiies tu liiid out the prices
• of tiie scah's f A, Not unless I was ealleil in to make a
40 ' \aliiation

" (}. Were you caiieil on in Issi! to make a valuation of any
■'of these .schooners ? A. No, not anv of these scliooners.

" ((), So that not having made inijuiries, or not havim; 1 m

'called in to survey or e-timate ycai clo nut know what the

■ valuation of schooners in l.S.'Sli was ^ A. Well, only lo-ariiijj

■ ahout what they cost.

"(i. And youi^ knowled;,'e of the cost (Mines fi-oin the esti-

■ mate of the lahor and the cost of Imildirii; here ,' A. Ves.'

This man had sdme information alMiiit the prices ami this is
.10 all he was testifyiiii,' to. His was heiisay knowledge and there
is no inconsistency.

With refeience to tin- liist i|notaticai which is taken from
pii^'e IMI , line 4."), your Honors should also ri-ad the evidence
which fidlows immeiliately after: —

" (.J|. Do yoii not intend to tell the Commissioners the

■ markt't value of a schooner linilt for sealin;; purposes in the
' Port of Victoria in ISM.") or iNMi :' Do you ti.ink you have
■sullicient kiiowled<.'e to tell that.' A. I never was pricin;^
■' schooners for sealers, hut I have heard of iiar^ains heinjj

tiO '■ ohtaim-d liy j^oini; down helow.

" Q. Yon have heeii here ami henril the testimony of the
' other witiuiss ns to th',' value of this schooner ? \. N'l).
'■ <.^. Vou have just come here ? A. Just.
" Q. Vuii .said .something ahout the value uf sealing

.■i!

1 1

':>-i

h it

r:--|-

:'i

J'i ,1

III

lip- i

■' iji!

i'Si

!■':

[^•!

346

(^fl•. Modwfir.s Ar;juin(<i»t.)

scl

lin-cf.

•'xaiiiiiiiition. What, did voh km:

schortiu'rH in voiir i

'al>.)Ut tilt! viiliii" iif si'iiliiif,' sd'.iioiM'i^ ill l.SHO, wlictlicr tl
' wt-ro liiiilt in Sin l-'rancisco, nr Nova Scotia or in Vict

A. It

U'V

"I'lft

was soini'tliiiii; ii"*s tlian in tin? first years I cnnic hen

'I'lif wai'is wi'ic down 1() alioiit !?4 a day in liS.Sti.

Q Tl

II' wni,'i's \v

'I'l" li'ss ill San Kriini'isco > A. V(

10 Mr. I )ickiiisoii : W'lial is it yuii tliiiik oiiylit ti> lie added

Mr. lindwi'll : -Till- iiii'cri'iicc is I'roni llu' cvi

li'iuT as <|iiu|i'i|

ill yoiir areiiiiii'iit, tlnit li uld uniy tell wiiat it would rost li

huild a s"li(ioiit'r in \'icloria, wiicrcas tlie very next jiait <>1' ilir
evidi'iici' sliDWs tli.it III' liiid knuwlc'd;,'i'. at any rate as ;;uih| a>
tlir Tnite'l .StMti's witiii'Nsi's, uj' si'llinj; jirict's I'runi liaviiij; lii-ard
ol" l):ir;;;lilis.

Iiis ti'stinionv wlieri

Mr. hifkinsuii ; 'I'

ii'i'i' is not a ]ilttri

it is sliii'.vii tiiiit III' i'\ir |iiii-('lias('d iiiiiti'ri.il or kept tin- tinii' d"

hnild

inir a siiii),

lii

Mr. Iiodwi'll; — It is not staled that lie did in so many words
but tli.it inilst Ilea i>,irt of the hiisiness of a iiimii who is tin
pro|iiiitMr ol' a shipvard.

Ml. ].>
.ship tlieri

insiii

riieii' is nutliiii'Mo show that lie evir liiiilt

Mr. r>o dwell : I have read the uvidi

uieiit on lioth sides I sii

IS open tl) con

PI"

It is said of Orlando Wariii'i- that he was only

a lonrnev

man ship cariienter. F,et us ri'iid Mr. Warner's cv ideiicc and scr
wli.it kiiowleij^ri' lii. had of ship liiiildin;^- and what his I'xju'ii^
•SO ciu'i' was. Ill' ti'll> lis hi' h.i-, Ih'cu In N'ii'toria 'I'l years, Hcconl
pa;;i' IMil: th.il he h.is liri'ii in that Inisinrss thirty-oin' or I liirty-
twi) years: that lir liee;Mii his hiisiiifss in l'n;,'wasli, ( "iinilirrland
County, Niiv.i Scot in ; that he w;isa joui'iicyman there, that then
he left No\a .'^int ia .uid came to San rraneisco, coiniin' to

Victori;i tweiit v-li\

e \i'ars a''o

that sinci'that time hi- has had

less to do in the sliipliliiJdin;,' lillsincss « hcllrxcr tl

ii'i'i

was

anythin;; to do in that line; that he was connected in |iar(-
iieiship with .Mr. Sniit h in the Star .Shipyjird ; that he owiiid
the St;ir .Shipy.'ird iiiidthat tiny were four years in ))ai'tiiers|iip.

At pajre l!l(i, line :i()
Q. l)urin^ your exjierieiice as a shi|)wri<,dit, liavi

'worked ill
sciiliiij^ vessi
'thr.

•I inn wit h the liuiMiiii; or re|iairiii;i of in;

Is 'A. I

my
ia\e woikeil in the ciinstriictiun of

.■JO "hi;

<). dust irillie llniii, ple.lse ' A. 'rili'l-e is the 't'ailolti
■ C<>\.' the ' |)i,lll,l' ;ll|i| till' l>ulphill.'

"<^). ^'oU Were workili;,' <Pll the r "list met ion of the 'Ciir

lottii Cox ' A. I wascontrai'tor t'l-i her.

Q. \'oii Were (he contractor for the luiildiii'j of tin

.\. \'es. I li.'id tli.it contract.

• (,). WIh'Ii did von luiild

A. In th

le siirinir ol

I tl

|.S!I|.

link It w.is 1

(.,). What toijii.i'fe

s in l"'eliiii;ir\'. I'S'.M. if I leiiienilier riniit.

he ' A. She W.IS .s:{ tons 1

bcii

(}. And yoii had the contract for doin;4;wlial on licr :' A.
I had the contract of the hull and spars, without doine; jmy of

the caliiii work or the fmecastli

d I had to furnish ii;

'•sleei'ine; ;;ear. 1 furnished her with one to|)niast. bill not a
"a fore-topmast. The in.iin-topmast I had to furnish and I laid
(iO " the spars alonj;side her atloat in the harlMir. "

Now can it he .said that that witness, who has been 2") years
in Victoria connected with shipynrds. biiildinj,; ships and in

period, is not

rtiiershii) as

f sh

]) .IS an owner ol shi|>yari|s (turin

ds di

that

eonipeteiil to pronounce upon the cost of biiildini,; a ship in \"\

347

(Mr. B(vlwi'II'« Arjoimont.)

toriit cf tlif cImms liiTf iimliT ooiiHidcnition. Of wimt mhc is it
((> N])i'ai\ 1)1' (litit iniiii as n Joiirncvinaii sliip carpfiitiT ( || is
lint a I'air slatrmfiit nl' tlic man's r.\|>i'ririi('<'. IWru it' lir was
n()tliiii<; more tliaii tlial, In- lias liccn ('ii;fa;;i'ii all tliusf yi'ars in
tliat l>iisiiii'SH. all)] is it not to Itr inl'iTrril tliat In- wniilij lie a

(■iiin|li'ti'llt witlH'SS as In til"' cusl iil' liiiili|ili;r scliniilMTs ' What

ID wiiiilii an i>i'<iinai'\' man tiiiil mit in 2') vrars al llial Kiisincss <

Also 1 rct'iT to liis crDss-rxamiiiatiiHi, |ia;^i' lOJi

I. Mill' .)') :

(,). What is vniir Imsinrss
h

rkiii;^

' niiw as a

jiiiii'tK'yman slii|i\vii;;lit.
" (,). Am! Iia\i' I II I'liiliDW iiiaiiv vi

(,). I think Villi liiiilt tv

s ' A. Si lire JKi;.-).
Twii schiiiiiii'iw hi'l'i'.

(.). Aiiil till' .'stiiiiati' III' till' ('ii>t Villi III iili' witii

''11 r

I t.

tlii'si' was I'iiuikI til 1 ri'iiiii'iiiis, so (Imt ymi lust iiiniii'V

I |l)><t IIHIIlI'V."

Mr. I)i('kinsi)n : — Is it unfair t'l call him what he sai'l lir was

•JO at the tiiiii' 111- was mi the staii'l f

Mr hinlwi'll : It i-< niifair, lic<'aii->r the man wa*
man. tn ilniw llu- iiitcrffri'iii'i' that li

a |i)Ui-iH'V-

:'.n

-ill

i;ii

> II' was ?sim|ily a wurkiiiL;

man ami imt ciiinpiti'nt tn sprak. withniit ti'lliii:^' the cniii't tliu
iitliiT circiimstaiici's ciniu'ctril with his I'Nprrii'iici'. 1 am nut
Liiiiii;.; til (piarrcl with niy frii'iiil as tn wlictlicr it was unfair nr
nut, ami 1 will nut use tliat worij. It is my lai-^iin'ss to placi-
lirforc your llnmu's tlu' othi'r i'irciimst:ini'''s cunm'cti'il witli his
I'Xpi'rit'nci'. ami i say that hi' was wi'll ipialitii'il to tell yoiu'
jjiiiinrs iiliiiiit till' ciwt iif liiiildiiiL; vcs-ds iIhti'.

M:. I lifkiiisiiii : Tln'ii. «s ymi iisp tin- wnnl 'unfair." an-
not all till' farts si't foitli in tlw iii^'uiiiriit fur tin' I'liiliil
Siati's :*

Mr. Iiiiilwi'll :— Vim liavi' hoanl tlu' cviili'iu'r anil 1 h'avi' ynii
tn ih-aw yi.iir own t'onr'ln-.iiPiis.

.Mr. I)i('kinsiin ; — Kvi'i-ythiii^ yon have .so far stati'il i~i in
till' I'nitt'il .stati's .\ii,niiiiiiit, liotli as to his i.^prricni'i' ami
rviTythiii'.,' cKi'.

.Mr. I'loilwi'll : —1 think not.

.Mr. I>ii'kinsiin : We taki' issm- with yon tiu'ii'.

.Mr. Hiiilwill :- Oriaiiilo Warni'r is i-iti'il as tn the value of
•.i\ vi'sst'ls — till' '■ ( "aroli'iia," " 'I'liorntnn." ' ( >i,ivaril," " .\iina
i'lick,' '■ (ir.-ici'" iiinl •■ |)iilpl'.iii." I am i|U'>tiiiL; from till' I'niti'il
.■stati's Ar^umi-nt pai,'i- •J7''^ : -

" 111' also was f/ Jdii riiniiiKt II shi/i in rjifiilrr iu\<\ was for four
" yi'ars inti'ri'sti'il in a .'d.ipynril in \'ictoria ; as hi' wa-^ -.o in-
'■ ti'iTstciJin l.SiM, hi- was l)Uta7"n»/'("'//im(// in iSSoniiil |NS7. His

■ I'Xpi'ririici' in luiililiii'^i' si'.-iliiii; vrsscis (•on,si.'<ti'il in woikinj;- as a
iuiiriii'ymaii on till' ■•|)iilphin" in ISSI. ami in IS!M)aml 1S!)|,

" I'olist nirl ill;; Unili'l'diiit r;ul till' hulls iif two scliDolli'l's. Iirl Wii'll

■ till' Vi'.irs Is.sl- ami iss.S inclusiv r, hr linili no \ issds. "

.Villi ihi'ii llii'V i|Unti' his i'\ iihiici' :

" In ri';;aril to the \alui' of tin' "t'arolimi " he ti'stilinl : --

"if. Now. wlii'ii yiiu put her price at SIl.SOO or -S-l-.ddO, are

you thinking; of what it wniiM cost to linilil her' A. That is

my iilea ; yes. sir.

"if. 'I'll liiiiM her new :' \. Yes, sir.

"<>). Ami you liase your estimate on that ^ A. Yes."

.\s a witness upon the ipiestimi of the value of the "(irace, "

■ |)olpliin, " "Anna lieck " ami " W I'. Say ward, ' he testified : —

• ••*•••

" It is contended that the testimoMy of this witness can possi',s.s

■ no wei^flit in determining; the value of the vessels seiz- d. "

The next witness referred to is (ieorye W. Cavin. As my

r 1
■t , f

i I

(.:„■(;■

hi: i\

•!iU (

in.

ii -M

!:l

1I-: :

"■ in

it":

mW'V,

.'U8

(5lr. nodwclI'M Ar^iiiiu'iit.,

fritindN hccim t<» ohjirt to my iimkiii^ iiiiy Htatcmcnt iw tn ciri'ct
of tlii'ir ur;;(iiiniit, I will nwl (liiMviilciirc.

Mr. hickiiiHoii : \\>u will not liiivc Hiiy troiililc : hut when
you Ntiitt' (lint the iir^iiiiifiit of tlic Uiiitfti States in not fair in
Nome oiiiiNNioii, wi- call nttciition to your niiNtak^*. Aiiotlicr
Htalriut'iit you liavL'juMt made wi- »'all your attt-iitioii to, that it

10 is Ntatfil ill the Aiiicricaii ar;;iiiiiriit that thit witiu'HN you liavc
just citccl never coiistrurteil any veMHel, whereas it is stated in
the Ainei'icaii ar<,;iiiiient that he huilt tlu' IiuIIh of two vessels.

Mr. Modwell : Keferrin;; lo |ia;ie 2S(> <if the I'liited States
ar;;uiiieiil there is this critieisiii nf the evidence of Huhcrt .1.
('<M)k : -

'■ HiihiTt il. Cook citeil in the .\r;;iinient on hehalf of tlie
" claimants as to the value of the " 'riiornton," "Onward " and
" .\iiiia he'k," us ' a slii])wrie;lit ami jnoprietor of shi|)yai'ds
"for many years at \'ietoria ' and ' ar I'xperien I

■2(1 " !)nil(h'r.' was ]ii'o|irietor of a s|ii|iyai'd jaior to l.ss;!,
"in which year 'rmpel rented it. and whr, at the
"time of his examinatiiiji was workiii;; as a Jiiiiriii'i/nin h
" i 'niin;; the sixteen years he ulaims to ha\'e lieeii en;;iij,'i'c| ill
" iiiiiidiiii: he never coiistriicte(l any sealiii;; sclKtoners, hut lie

" calclll.ltes the value of a vessel ill j.S.Sdon the hasis of V\li,l( it

" would cost to liiiiM one at that time. "

I vviji read the evideiiee 1)11 that point of II. .1. ( 'ook, pa;;e .S2ll
of the llecord :

" <»>. \'iiii are a ship carpenter i" \. \'es, sir.

• to "t^l. .\nd liave I n I'Ver since ymi came into the count r_v !'

" A. ^'eN. sir.

" Q. What sliipyard !' \. I had the shipyard that 'rilipel
" has now for jti years.

" (}. 1 helieVf you hllilt a pretty lai;,'!- ship there f .\.
" Well. I huilt a steanilioat tlieii' at oin' time.

' <,'. \ini huilt sloops as Well ' .\. \i-s sir.

" *,). I )o yiai know the sti'aiii schooner ' Thoriiton i', .\.
" \ es, sir.'

Then he ^niis on to say vv hat he had to ilo with t he ■ 'j'iiuiii-

40 ton; and altlioiiijli it isinie that he did not constiuet a sealing

sehouiicr there, yet he Ijiiilt sloops and slii]is. ami sinclv that is

slltlicient to ;;ive a man kllowledj^r,. (if the cost of iiuilcjine; ves-
sel.-., and lie would lie a coiiijietenl perscin to promninci' as to ihr
cost.

Ivefeiiiii;,' to this witness the fiillowili;; i|IH latloil is liiadi' at
pa;,'e 'l>i\ of till' I'liiteil .States ar;;iimeiii :

■<J How do you know what it would cost in IH.Sti i* A.

'■ IJecanse I knew what the Jilices well'.

" (f. ihiw do you know anythin;,' almiit the market value nf
')0 "lioalsin J.S.SI) :■ A. .So far as that j,foes there was no real
" market value.

" (,>. lint iioats were iransferred from oiii' person to another
'at that time :' A. \'es. we used to hiiy .some vessels from Sail
" i'"i'anci.st'o and some came nut from the Kast.

1 siihiiiit that that evidence is iiij;ht in line with the evidence
I have lieeii rcailin;^ to your Honors this afternoDii, yet this
criticism is made of it : —

" As nine sales in Victoria during; IS'^O wer(> testified to
" heforc tin.- Hij;h ( "ommis.'^ion, its already shewn, the incom-
(!0 " petency of this witness is apparent."

As I hiivi; aln-ady Hr;,'Ui;d that was .scarcely one those iiim;
transfers that could he called a sale, and the wdioiis of them put
toj^ethcr, under the circumstances which took place, were not of
a kind which would ercute a market, nor would they justify

:i4!)

^Mr. IVmIwcHs Arguinont.)

nnyliody in snyiii}; tliat the prico ut wliicli tlicy sold was the
iimi'kot valiiu ; aii<l I Ntiluiiit tliut Cook is peri'uctly riijht wiien
)iu snys that tlu>r(> whi no real nmrktt vaiut: in Victoriu that
n vessel wus worth just wJ'iit it cost to get her, UM(1 if yju
wanteil a vpssel you IiikI to huihl her, generully.

Mr. HeiMiett is also criticised. His uviilence is ut imije M)'M,

lit line <)() as follows ;

•>((

:;o

(). Mr. Hennett, how Inii^ have you livecl in \'ictoria?
A. Somewhere ahout twenty years.
" t^. What are you doin;; ' A. Ship liuiidin;;.
•' if. Where did yon come from ' A. I eame from Ontario.
" i^. And you followed your traile rii;ht alonjf, have you,

' since you have hean in

Viet

orui

I A. \i

i). What is ymn- poNiiion to-day

A. I

man at present.

am a journey-

*^i

I on <

li.l

som

e work on the "Dolphin " and ' (.iraee"?

A. I connnenced liv lavin;' them down, ami maUin;' their

mou

Ids

Hhl workeil on them until they wei'e tinished.

U. AI>out what time was that (" A. If 1

■(•UK inlier I'i

,d.t.

iiil

"till' " druee" was liuilt in Is.SI anil the " Dolphin" in 1;>S2."

Suri'ly a man who has l.ceii i'ni,'a;.4eil for twenty years iu
ship litiildin^ reipiires neeesvacily a knowleily;e of the value
and the cost of that kind of work, in cro.ss-e.xaminatiun,
lii'cord, pai.,'!' lO.'J.S, line (iO. he says : —

" <^. V,)u have always lieen enj,'a;,'ed in .ship carpentering?
" A. I liave.

•' Q. Tlias is your trade :• A. 'i'hat is my trade, .sir.

■• (f. And you have always worked as a joui'neyman ? A.
'• No, not ahvayH.

" < .,) Have you lieen a master litiilder ,' A. A contractor
" and master huilder.

'■<). .\iid when was that!' A. \\'atsiin ai.J I huilt the
"Minnie," liuilt the "Princess" for the ;;ovei-nmeii(, liuilt the
•steamer ".Muriel." imilt the " M.-iy lielle,' and I liuilt the
•' " Siidii' 'ruijii'l " and I liuilt the steamer " Standard. '

" (, Did you I'uiid the •' Sadie Turpel" (' A. 1 was fore-
" man, <ind lail her down and laiilt her for Tiirpel.

" (}. What was your Imsiness in coiniection with the huild-
' ing of them f A. I was foreman for Turpel tm the " May
"lielle" and the "Sadie Turpel."

" (,), What was your liusiness in connection with the others !
" \. lie and I wei-e contractors on the "Standard.'

" <^. What did you do about the building i" A. I superin-
" tended the building.

•'{). What became of tlio " Standard " ? A. She was sunk
" hire up north."

And yet the inference is drawn at page 2S2 of the I'nitcd
States Argument that " the knowledge and c.xpei'ience of this
" witness are entirely insutlicient to give his opinion us an expert
the slightest value."

Alexander Watson is also criticised.

In speaking of him the following language is used, " He
"was It Jouriici/iiKin xliiji anpfiiltr, w\\a built on conti'act the
"hull of one sealing vessel, tlie " Minnie " in IfS.St). He stated
" that he knew of no sales of .schooners in KSS+, IHS."), l.SStj or
" 1.SS7. His ignorance of values and his incompetency as an
• expert are shewn by extracts from his examination," page 2S2 :
' Q. How »io you know what tiie " Curolenu " woultl have
" .sold for ? A. I do not know what she would Imve sold for.
" (^. How do you know liow much she was worth ? A. I
" gave my opinion of her value.

'\'.i

.;t|*i'

. \]'\'

'k'

',, It

■ ■ 1

■"FTT

PITT?

n.'5o

(Mr. HoiIwi'H'h .\r;;iiiiicnt.)

" Q. Iliiw ronld yon foruinn opinio i <if licr vnluf when ymj
"(Idti't kiiiiw wliiit tlif iiint'i<i't |)rici' was? A. I cdiiIiI tell liy
" wimt I iii'iinl of Vessels, it was only liear-suy ol' eiinrse.

" Q. You can statt' what she cost to liuil<l !" A. Yes.

" Q. That is your own opinion ? .\. Yes.

" ii- YoM ilo not know of a sin;;le sah' of a vessel in thi-se
10 " years ' .\. No there inijjht havo iieeii sales, hut I don't know
" anyfhin',' al«nit them."

" He stiiti'il ihiil he knew what il WollM have cost lo hlllM

'• the ' ( 'arolena' in IHHd, luit upon hein;; askeij wha( Muel si

" woulil IniVe lieen, he relilieil liial lie Wou''l luive to have Ihi-
" speeitiejitions. anil llmt lir iliil n<<l kmnf tin Ii'ik/IIi. hn'H'ltli, iintl
"ill /'til III' liiilil of llif ' diiriil'ii'i.' '

Well, thai is true enon;;li. hecnuse the tii.'in iliil not know t he
" ( 'arcileiiii" II I el was imt ;;i\ in;; his cv iileiiee as to her ; hut w hen
lie was asked tn;,d\ea value, hi' saiil he would '/Wf the cost ul'

'20 such a \essel to liuild. and naturally enoiiidi he asked for the
iliinensions.

This is what he said in cross-e\a in i nation. pa;je I! 10. line |."> ;

"(.}. What would it liave cost lo have liuilt a vessel likethe
"'Caroleiia' in ISKti' .\. Wni vvoidd have to ;;ive nie the
" Mpeciliealions of the '( 'arolena' iiefore I could tell that exactly.

" Q. I)o you know liow Ion;; the '( 'arolena' was < A. .No.

" Q. I>;. you know her hreadtli ' \. .No.

"Q. I)oyi)U know herdepih of hold' \. No.

"Q. J)o you know aiiythin;; alMUil her in particular ' .\.
" I have seen her, hue I did not measure her.

" t). How could you lix your valuation then f \. I nieaii
" lur tonna;;e.

"Q. What was hei' tonnao;e ^ \. :{.*> tons. as I underslund.

"i}. How much did il cost tohuildthis ;{.") ton re;;isterei|
" t()nna;;e Vessel ' .\. AIhiiiI :t.!IOO odd dollars.

'<}. Was that in ISStl :' .\. Yes. The i;vera;;e vessel mi;;lit
" run lii;;lier and they mi;;ht run lower: it all depends on tin-
" class of vessel.

" Q. .And if she was only 27 tons re;;ister, what would ymi
"sjiy she was worth ! A. She would he worth lovvei'.

"Q. And if vou were told I lie '('arolena' was 27 tons

"re<;ister, what would you .say her value was then.' .\
"would have to fie;ure that out.

'■ Q. Well ti;;nre it out on your own opinion."

And he does ti;;ure it out and ;;ives an ansvei- of !*:{.:17.'). and
.says, "that was allowin;; she was a ;;ooil avera;;e vessel."

Mr. I..ansine;: — I ask \ou to I'cad in that connection at pa;;i'
1«:{. line |L>: -

Mr. Hodwell :— " Q. Kut from tlie knowledge that you then
"acijuircd of the vessel what wiaild you estimate her value to
" be then? A. Well, of coiu-se tho vahie varies, hut I could
"gjvoj'ou a ;,'encral valuation; it would he ahoiit i^+.OOO, m-
"perhaps a little lower, hut .somewhijrc ahout thai."

All the witness is professing; to do is to ;;ive a ;;eT»eral idea ;
and is it fair to say of evidence of that kind, ;;ivm as it was.
that it discloses "incompetency and i;;iiorance " on tho jiart of
the witness, yet the Argument for the Uniteil States proceeds :
" He stated that he knew what it would have cost to hiiild
" the Caroloim " in l.S8(i, and upon hein;; asked what such cost
60 " woultl have hceii, he replied that he wouM have to have tho
" specification. ' ami that he iliil not knoir tlif li-nijth, bremlth mid
" flenth of hiAil of the Carolenit," and the latter word.s are
italicizcii.

Then we come to the evidence of Samuel McCullougli Smith,

nsi

(Mr. BtMlwi'll'M Ar;,'unii'!it. )■

anil hrro, Ih'ciui^l' tlic witiioNs u'm'ii a C(illo(|uinl uxpros^ioii, a
wiifil not nrtistimlly mi reel, yoin- Honors arc aski'il to infi'itlint
llii' witn<'ss was prcvMricatin;,'. It is coinnion for a witni'ss to
■•iiy " I iniajiinc' " instcail of " 1 tliink," ami yi his I'viclcncc in
-pokt'ii of as a work of tin* itiiH<^ihaton. It is critii-i/ol at
\>ntH' 2S.'{ of the IJniti'il Statfs Ari^iinii'nt as follows:
|() " III' is not cili-ij in tin- Ar;;iiiiii!nt in tin- casi' of tlio
■ " Caroli-na " prrsinnalily eitlii'r out of ilflVrrni-c for liis ni<*tliiiil
"of valuation or lifi-ausi- his iiiia'.;inatioti was not stron^' rnoii<{ii
" to liriiii; his tl'^uri's as liii^h as tlii' otlirr witncssi-.s sworn. "

Sniitli is n man wi-ll known an<l rr^iH-ctnl in Vicloria, who
lias livi'cj thi'i'i' till- ;.,'ri'ati'r part of his lift", an<l simply lin-ausi'
tlii'ro ix tliis I'olloipiialisin in his I'viiii'iici', this inartistic worij,
wonl, his tfstiuiony is spoken of us mrri' inni;{inntinii wlii-u
tliiTi' is not oni' imtonsi^ti'iit or rxai^jifruli'ii stati iii'nt in it.
Now as to Mr. Smith's ipialitications, we liuvi- his eviilonco,
•It) Kieonl, payi' l!M, as follows : -

"if. Whirr clo itsiilf, Mr. Smith (• A. In Victoria.

"if. I hcli-'vc you liavc hccn in the shiplmiliiin;; laisincss
" for a ioni; timn ? A. For a numhcr of years.

' if. For how many years I A. For :i.') years.

"if. Where iliil you la-j^in to work insliipsi' A. At
" .Maitlanil, Nova Scotia.

' (f. That is where all {^ooil Hhip-liuililors come from. I
" lieliuve you ha<l ipiite a lon^ experience in Nova Scotia ?
" A. Yes, I hail a loni; experience.
;tn " if. Vou were a master ship buililer in Nova Scotia, were
"you ? A. Yes sir.

" t^. For how many years before you left there ^ A. For a
"fjoitil many years.

"if. You liuilt some ship* before j'ou left there ! A. J believe
" four ships as master buililer.

" (f. 1 believe they were hxr^e ^hip^ :■ A. From .')()0 to 1000
" tons.

" (f. When you left Nova Scotia, iliil j'ou come here liirect ?
• A. 1 came here ilirect.
4ii 'i.f. That is how many years ago ^ A. I came here in
•• |H7(i.

" (f. Anil since! you have been here, have you been buililing
" ships also!' A. Mostly alto;;ether.

"(f. Were you in partnership in the biLsines.s with any one
" else in this country ? A. Yes sir.

"if. Who were you in partnership with ? A. Well, lirst to

" a small extent I iliil some work with Mr. Tur|)el, Later oit I

" was in business with Mr. Warner.

-() •' if. Are you now en;;a<ieil in shi|ibuililer :• A. I am now

'■ en;»aj5eil as Superintemlent of the Marine Railway at Ksipiinnilt."

The Ciimmissioner on the part of the I'niteil .States : — Before
we risr, I woulil like to hear what Mr. .Smith .saiil as to the enst
of buililinj; a seventy or eijjhty ton vessel. Whatilo you claim,
Mr. iJivlwell, was the cost in IHHii anil 1MH7 of buililinjj a 00 or
"(I Ion sealer at Victoria ?

Mr. liiHlwell ; The evidence <;iveH it at from 12.'»tol.")0
ilollars. I think ?12.'> is alnnit the lowe.st, anil some of the wit-
iii's.ses say SIT.").

The ('oinini.s.sioner on the part of the Uniteil States : — What
ti(t ill) you say for a vessel of 2.') or 'M) toim f

Mr. H<>(hvell : — Well, I <Io not think any witne.s.s speaks of
the cost of buihliny a vessj'l of that size.

The ConnniHsioner on the part of the United States : — You
value the " Sayward," I sec, at ?7,000.

I '

.t,i'

'4 ■

rti :i

t *

u,-:

!). ■ *

1 \- h I

1 !

(Mr. IVmIwi'II'm ArjjiiiiH'nt.)

Mr. I<<mI\v('II : - I liiivi* imt workpil out tln' conI {trr ton ; tluii
WAH lii-r iictiial <'(iNt It) liiiilil.

Till- ( 'DininiHMiiiiier (III (In- |iiir( of tlic I'liiti'"! SlatcH : 'I'Iu'M'
vchni-Im tliiit ciiiiii' antiiii)! rruiii Nuvii .SiMitiii cost &lNiiit ?l()0 u
tonal Victoria, <lii| llicy not !

.Mr. ISoilwi'll : I tliink \vc iiiiiHt u<li| to that figure t lie cnsi
10 of lirin^in;^ (lu>in nnninil.

Till- C'Dmnii.ssioiici' on tlic part of tlic I'liitcd States : — 1
(liink not.

y) .. Moilwcil : I ilo not ipcuk witli very inucli contiilciipc ns
to t' at licrniisc I Imvc not worki-cl it out. It was sonicwliiii.
flicapiT ; it pai'l in'ttcr to l>iiy a vcsi-l on the Atlantic eoa^t,
mill liriiiL; licr ni'otiii<l. tlian to ImiM at N'ictoria.

The ("iiininissioiier on the part of the I 'nited States : Mr.
Turner says it cost him to liuiM a ;li» ton \f>sei alioiit f<l I.') pi r
ton ; H ?•• ton vcs.sci alioiit .**!•() per tiui ; now it seenis to iii>
20 those are very close to your ti^'ures

.Ml-, liuijwell: I think, your Honor, that there is very little
(litlerence ai'ter ii'liliii;; the duty. The N'ii'toria price very nearly
nj^rec'* with the San l''ranci>i'o price.

The ( 'oniiiii^-.ioiiercin the pint of llu' I'nit' il States:-! mean
the cost, not the value. The value of coui'>'i', invohcs other
i|Uestions. 'dii maintain that the cost is tin- way of i^ettin,' at
the value. There seems to he very little ilitlereliee lietweel. the
pounsel and Mr. Turner. While I do not undi'rstand yiair

tiLtnres t" 1m' S|*J."> pi ■ ton, Imt almUt !*l(Kl. All these vessels

• >(• fjoin^' around from Nova Scotia cii>'t apiiruximutcly !<1()() a ton at
N'ielnria. and ihe ".Suy ward. " which you ralue at 5f7,'>i)t>, a little
loss than SI(M) per ton.

.Mr. iioilwell : -That is the cost of huildini^.
The t'limmissioiier on the |)art of the I 'nited States: — Yuu
make yoiu' values on the cost. I was tryiii;; to lind out how
nill' h dillel'ence tllPl'e was hetween you and the counsel of thr
United .Stales nil the lllel'e mutter of cost.

Mr. ilodwll : — 1 will try to i,'.t that into shape.

Mr. I)ii'k son: — llefore the ( 'ommis>.iiiners rise, your lioimr
40 nskrd in co.ncction with .Mc('ulloui;h .Smith, who was the
Marine Railway man, what was his testimony as to the cost of
vessels; and in that connection I will read his answer to the
(piesti::ii as to which he was called, it was in the " t'arolena "
case, and the (|Uestioii is, lleconl paj,'e l!i.">: •

" (}. Vou have heard the vessel descrilied a> heiii;^ rc|iairi'il
" in I. SMC f A. Yes.

" y. You heard that deserihed hy .Mr. Uohinson, n witness
'= here i- A. Yes.

" y. Having; heai'd tlmt, and fts.suniinif the " Curoleim " to lie
50 " somewhere uhout .'to tons, 1 ask you if she were ottered for sale
" in I MM) for a sealiiij; vessel, in your opinion what W(jiild she
"liBve liriiui,dit f"

That, after some discussion, was 'inswered as follow.s hy the
witness. Record pa^^e 11(4.

" The witness :--! am not nhio to ^ive the value of that
" vcssid of my own kiiowledij;e. I cannot hy any means make
" it out even satisfactory to myself. I never .saw her, Imt 1
" imajiiuH the vessel wonhi be worth ahout !?;Mit)() or 8:1,700, or
" .sometltinj^ ahout that."
GO \Ve submit wdiether it is just rij^lit to charjje us with unfair-

ness in our criticism of his use of the word '•imagine," when
he uses it in that connection and states it as ticcessarily imnj,'iii-
ation, he never having' seen tlie vessel, never having iioard of
her valuation, and therefore speaking from imagination.

353

(.Mr. IUhIwi'H'n Ai'^'iiini-iit.)

Mr. Hdilwell :— Thin In wlint I nh\vvl to. Mr. Dickinson.
Ih-rc is ycMir iirjiiimciit ; "Mi' i> iiotcit.il in the nr;,'uiii('iit in
I lie CUM- (if till' " ("iirolfiia," pnsuiimlily i-illirr out of ilcfi'nco

I'nr liis ini'tlioil of valiintioti or liccaiHi! Iiis ii

nii<riiintiiiii WHS not

-Iron;; t'non;,'li to lirin;; lii>« tii,'ur( s uslii),'li astlu' otlii'r witni'h«.c'»
--\\.)ih." Now wliat till you mraii Ity tliat !' Wliat is tlm inxin-
|() nation ?

Mr. Dickinson; — Tlio insinuation is Hint you lalliil tliis
witness t'Xpi'ctini; liini to swfiir tliattlic ' Carolina" was worth
S.'>,()0(», III' iliil nut I'oini' up to tin' murk; Im stati'il a oasi- of
iiiiai;iiiation puri'ly, itml even on iniai.;ination In- iliil not come
up to your valuation.

At luilf-past four o'clock the Conimissioncrs rose.

ji »

ii 11

r >

lit

'7*

Plfm''

'1 i ,

i' -■ f."

Commissioners under the Convention of February 8th,

1896, between Great Britain and the United

States of America.

LcyiHlativf CoviiK'il I'liaiiibfr, Provincial nuildin^'.

At Halilax, N. .S., .Si-ptciuhcr 7tli. lS!t7.

At 1 1 A. M. till- ('(iminissioiuTs took tlu-ir scats,

20 Ml". Htxlwcll continues: — Yesterday your Honor asked nie to

verily the rule as to the time when the value of the vessel was to
he taken in cases were tVei;;ht was allowed. I find at l>a;;i.
Ill ol" Mar.sden's C't^llisious at Sea, Third Kdition, these
words : —

"II' she was earninji l'rei;;lit lie is entitl(Ml to the estimated
" value ol" the shij) at the end of her voyaj^e, tojjether with tlir
" freii;ht she would have earned, less the cost of comnletiuf,' the
" voyap', and interest on the whole frcau the prubahle end of
'■ the voya<;e,"
t\0 1 think that is the way yoiu' Honor stated the rule.

Heferrin;: for a moment to the ijuotation from the eviclence
of Alexander Wat.son, in th<' I'nited States Ari;ument at pa^^e
2K2, I wish to read from the l>ej;inniti;j of the evidence of this
witness. He is a witness called Ity us, a shipwri;;ht and ship-
huildcr at Victoria. At JMi^j^e 187, line 40, he .says that he was a
shipwri^rht and had hei'ii occupied in that husiness since 1874: —

■Q. On your own account :* A. No, not lately.

" You were apprenticed to that trade :* A, Yes.

" f). How lonj; have you Iteen workinj; on your own
40 "Account? A. 18H(i was the first Jol) 1 took on m^- own
" accomit.

" CJi. Was your father in the .same business ? A. Yes.

" i). And were y>iu workinij with him for several veurs '
" A. Yes.

" Q. I suppose you have a ^^ood deal of experience in the
" value of Vessels f A. Well, I have been workiufj at them all
" tlie time, it is all the work I ha\e done.

" (^. What is the class of vessels that 3"ou have constructed
"principally? A. Mostly steamers ; 1 have worked on schoon-
ryO " ers and built schooners

" Q. How many vcs.sels have you built ? A. Do you mean
" myself ?

"(.). Yes ; or worked on the bni!din<^ of them ? A. I have
" worked on vessels of ;(()() tons.

" ii Do you know the "t'arolena?" A. Yes.

y. Did you ever do any work on the " Carolena ?" A. I
" worke<l on her once, I tlii'ik.

' Q. When was it? A. When she was repaired after comiiii,'
"into collision with a steamer condnj^ into Victoria Harlior.
(to " Q.. For what purpose was she Used tht'i! ? :\. She was a

' Pilot boat I think, but I would not be positive on that.

" Q. In what year was that ? A. I cannot <»ive it to you
"exactly, but it was about 18H2 or I88;{.

" Q. Dill you see her out of tlie water then ? A. Yc".

■20

" was

" (
" vahi
" I d.
" time

■' t
" vessi
" Well
■' valni
•• but

Th
evideii
l.s.s, 1
1 888

A(
witne:

lid

•II

'he h;

" Victo
" calcul

'• tllKt c

"at fro
The
disclose
ness, is
."(I evidenc
ation U|
I sidimi
\'ictoriii
ton to
statetl
by Mr.
I lie com
respecti'
Turner,
"I h
" is that
■ 100 to
' ton. ]
" becaus(

■Q.

' tons ?
" averajfi

" ^ es, si

A Th

' ihi' los
" tons /
" Vessels,

■• 'i-
" have ni

" which i

If M:

not be ar
and Ljreal
il be said
\ ictoria

(Mr. BoihvcU'.s Arfjmiiont.)

" Q. Hnil _V(ni occiision then in sih- in wlmt condition slie
" WHS I* A. Yes, we ciMiiil see pn-tty well wlmt siie was liixc.

" Q. IIiul yon any occasion to form an opinion as to licr
" vulnc ? A. Well, \vi' could sec what the vessel was like, hut
'■ I don't know as 1 formed any opinion as to iier value at that
■■ time.
Ii' " Q. Hut from the knowledjjc that you then acquired of tlic
" vessel what Would you estimate her value to he then > A
" Well, <if course, the value varies, hut 1 c(juld ^ive you >\ general
valuation: it would he ahout !?4()0(), or perhaps ii little lower.
" hut somewhere ahout that.

Then he is asked if he knew the •' Carolena," and I read the
evide!K'(? upon that point yesterday. In cross-examination, page
1;SS, line .")(), he savs that he huilt the hull of tlie " Minnie," in
KSNS and tinished her in l.S,S!t.

At page 2S."{ of the United States Argument, referring to this
-II witness, it is saiil : —

" In his examination as to the value of the " Onward," which
" he liad never worked on, hut liad seen in the Harhor of
" Victoria in IfSS.'), he stated that his valuation was hnsed on a
" calculation of !*l"2."t iier rcgistereii ton ^) /<('//</ « iwir rcssrl of
'• thill clitns in iN.Sli; and on this hasis he valued the " Onward '
"at from S4,:{-J:) to !:?."),t)()()."

The suggestion that his valuation of the "Onward"
discloses the incompetency ami ignorance of the wit-
ness, is not justified upon a consideration of the whole of the
."id evidence. Your Honors will ohserve that he is basing his calcul-
ation upon the cost of construction of a new vessel of that class and
I snhmit that all the eviilence corrohorates his statement that in
N'ictoria at that period of time it would have cost at least 812") a
ton to huild a vessel. It further appears, as I have already
stated that our witnesses on this point are eorrohorated
hy Mr. Turner, especially when you take into consideration
the conditions which prevailed at San Francisco and Victoria
respectively. Let me reacl an extract from the evidence ol' Mr.
Turner, page Iti.SX, line 2t).
40 "I luive not mudi^in exact calculation, hut mj' impression
" is that what vessels I huilt at that time, ranging from :U) to
'• 100 tons or a little ovc r, would average ahont 8101 or §102 a
' ton. I perhaps ought to have made this average hefore,
'■ hecause the large vessels cost much less per ton.

" Q. Now, we will take, if you please, a vessel of ahout .SO
"tons!' A. 1 should say al)0ut !*ll.i per ton would he the
"average for that sized vessel, according to my hook heri>.

" ti). And is that the cost, or valuation of delivery > A.
" Yes, sir.

" Q. From yom' shipyard all c(piij)ped f A, All eipiipped.

" i}. That is what wouhl he coming to the ship huilder ^
" A. That is, with protits included.

{}. Take a vessel, if yon please of M) tons ^ I sujipose
' thf cost per ton inei-eases until yo\i get down as far as thirty
" tons / A. Yes, it increases very rapidly as you get to snuiller

" Vessels.

" ',). Does it incr^'iise helow 30? A. Yes, continually. I
" have notlung here of 40 t(/ns, I have one of 50, huilt in 1S8S
" which cost S4,.S0()."
lilt If .Mr. Tui!i"r thought 81 1.'> a ton in San Francisco would
not lie an uid'air price, especially in view of the competition
iiml great ailvantages there were for huilding at that place, can
ii lie said midcr all the conditions proved to have existed at
\ ictoria that a valuation of 8l2o a ton tliscloses anj- incom.

.lO

ill''

J ■ i I - - .

■^1

I,! "I

WmW

856

(Mr. Bodwell's Argument.)

pc'tiMicy or i<j[norancL' in tho person e.xpre.s>*in|^ the opinion ?

I .'suttinit if tliiit is to be siiid it must iilso l>o stilted tiuit .Mr.

Turner is ivlso incompetent itnd ignorant: Your Honors wid

doulitiess lie satisfied tiuit Watson's estinnte was fair and a

proper one, iiaving regard to all tlie surrounding circumstances.

.\ly friends also, at page i.*s:{ of tlieir Argument, criticise witli

10 some severity the evidence of John J. Uohinson, a witness callcil

on iii'half of Cireat Britain. The principal ohject in calling this

witness was to prove the repairs made on the " Cnrolena" in

ItSiSj-, but incidentall)' he was asked for an opinion as to tin;

value of that vessel, and he gave it fairly and frankly, statin:,'

that it was formed simply from his eoiuiection with the ship

b'.iililing business in the city of Victoria. It is ni>t c aimeil

that it has any more weight than lie attached to it wlien he was

examined. \Vc say, how(>ver, that a man who has been in the

ship iiuilding business in Victoria, a joui'neyman if you please,

'20 nnist necessarily form an opinion as to the cost of building a

vessel there which is worthy of attention. This witness in the

onlinary course of things would ac(iuire a consiilerable know-

led''e of shin buildinir. .At uixw I.')'?, line ol.'is the followiiiii : —

" (.,>. Your name is John J. Hobinson ? A. Yes.

" Q. You live in Victoria :' A. Yes, sir.

" if. Anil are a ship carpenter ? A. Shipwright ami ship

" builder.

" Q. How long have you been in Victoria ? A. Ever since
"about 1S77,
30 " {}. [lave you been working at your trade during that
time ? A. Ail the time. "

He is then asked about the " Carolena " and at page 1.).'),
" line 10. he says : —

"Q. Have yon an opinion as to her value ? A. Ye.s.
" Q. What is that o]iinioiias to her valui; in ISS-t and 188.5?
"A. Well, about ^r>Sm).

" Q iiavr you an opinion as to the cost of building vessels
" per ton in N'ictoria at that time and prior to that time? .\.
' Uh, I sn|ipose all the way from S\'>0 up, builtlers' measiue-
40 " meiit. "

Hi- is not attem|>tin4 to speak with authority, his evidence is
valuabh- because it is given so frankly, .\tthe very top of page
I .").") he is askecl : —

• (). In the course of yoiu' liusiness here have you aecpiired
"a knciwleilm' of the value of ves.>eis ! A. No, I could not say
"tliMt I have, I have Ljeneral ideas all roinid. "

He is tc'stifyi.ig from the general knowledge he hacl iiec|uin'd
in I he course of all these years of residi'iiee. lie had an opinion
as to the \alue of the "("arolena," :ind that opinion is supported
50 by the other eviilenee in the I'eeoril. It is based upon the cost
of building. He says it is Si oO a ton, .MeCullough, Smith.
Tin ptl ainl others who has e had experience and ha\enot the
slightest iiiliresl in this ease, who wei'e taken away from their
business, and were \ery unwilling witnesses, gave your Honors
praetieally the same price as the cost of building.

The ('lanmissioner on the jiart of the I'nited States: — At
what tiguie does Turpel put the cost (if building ^

.Mr. liodwell : At Si 7.") to ><-M) a ton. That is at page l(i!>.
line -JO.
00 'i'lie Commissioner on the part of the rniti-d .States :--That
incliiiles the mittit. What iloes Smith .say about it f

.Mr. hodwell : -He ptits it at i<I.JO per ton I think, but I will
make certain.

The Commissioner on the part of the I'nited States: — Ac-

■■!|

307

(Mr. Bodwell'H Ar^inent.)

cording to the Unitetl Stiitt's Arjfuint'iit, Mr. Watson sceniH to
lmv( J)wn an exiMTifnctMl man as far as s)ii|)l)iiil<lin<r was con-
eornt'd. Ho liasis liis valuation of tiic "Onward" at a cost of
iif 12:') pi'r rc<ristt'r<Ml ton, to build a new ship of that class in
lHK(i. The " Onward" was a vessel of 2:1 tons.

Mr. Hodwell : — M").2() tons, as j^iven in llie evidence.
1() The Connnissioner on the part of the I'nited States : — Mr.

Turner puts the cost of huildin^' a siniiiar vessel at !:*11.) per ton.
How inueii diHi-renee is there in the evidence of these two
witne.sses :■

Mr. Hodwell : — Well, ahout SIO per ton and that leaves out
of aceoiuit the duty and inerease<l ti'onhle of liuildin<; in Victoria,
and I nuiy .say they |)raetieally a;j;ree.

The Connnissioner on the part of the I'nited States: — You
have witnesses who te.stifv that it cost !*17.") or S20() per ton. I
am not makini; any sui;i;estion as to the eo.st j)er ton, hut assmii-
•Jo injj that you are rij^ht and that that is the test, I want to see
how near you eonii' to what perhaps mi^ht lie called the leading
witne.sH for the I'liited States.

.Mr. Hodwell : — We .sny the weij^ht of evidence is in favor of
the following proposition, and it is the len;;t!i to which we ask the
("onnmssioners to go. On page HI, line ■'{(), of the Hritish Argu-
ment, we .say : —

"There is an abundance of competent and ri'lialile evidence

" introduceil on liehalf of (Irejit liiitain, which estahlishes coti-

■■clusively that undei' the circnnistances ahove refei'rccl to, ves-

;)() '• sels to the class used for sealing could not have heen huilt at

•■ N'ictoria for less than about f*li")() a ton."

That is our proposition as the result nf all the evidence.

'i"he ( 'onimis.siuner on the part of tie' I'nited States :— Is not
that a little inconsistent with yuur slatiiiient as l,o the value of
the 'Saywai'cl' which you place at ."^T.ODO :■

.Mr. Hodwell: -I think the "Say ward is made up on the basis
(if her iu-tual cost in IN,S:{. .She was iiuilt later than any of the
dtliei' schoonris liilnnging to Capliiiii Wamn, l.Ucr than the
" (Irace, ' " l)(il])liin" oi' " .\inia Heck,'
40 The ( 'omniissioner on the part III' the I'nited Slates: — Tlie

pcriiid we lijive to deal with is I.S.SIi.

-Mr. Hodwell : — That is true, but we give our friends the
lirneHt of the fact that slie was built later and did not cost so
nineh. She was built in baing's shipyai-d in Victoria.

.\t p.ige 2S.") of the I'niti'd ,St ites .Argument then' is a
criticism upin Sieward. We put him forward as a witness to
wluMu we wish your Ibmors to pay more than ordinary atten-

fi'oni the Kei'oril to show
which wo claim that he is a
His testimony will be fouii

tion to, a!id I shall read
your tloncas the ground upon
.■)!) expert on the value of vessels,
upon page 1 "i" : —

' Q, Where do you li\e, .Mr. Sieward ? A. Victoria.

" C^>. " What is ymir occupation at the present time? A.
'• Master .Marint'r.

" Q. Are you ingaged in the sealing busincs ? A. Yes sir.

" C^. i believe you connnand a .sealing ve^.sel ? A. Yes sir.

" y. .Vnd 1 dare say you are interested in them ^ A. Y'es.

" i). Have you any interest in any of the claims before this
" Ciinvention ? A. None, sir.
(i(t " l^. How long had you anything to do with the .sealing
"business in Victoria C A. I started in 1S.S7, in Septend)er.

" Q. In who.se employ diil jou go at that time ? A. Hall,
" Uoepel iSl' Co.

" Q. At Victoria ? A. Yes sir.

;!¥

!;fl

'i ii-

i.'

ill:

' '"'■i

;fe

■i,i!

..-I'V

■'.|. i

■■*■ p:'

'■'i| -'^ .

-: i ■:•■;. M|.'

: ;;' i:

W i!

:! I'll!' =i

f™

mm'

i ■

( '

358

(Mr. Boilwell's Ar<;uineiit.)

" Q. Were they enijajjeil in the st'uliiig biisinosH ? A. Yos
" sir.

•' Q. Flaij tlu'y any nhips wlien yon went there ? A. They
"had an intcri'st in the schooner "Sapphire," nml al.so in tlie
" Juanita."

" Q. I liflicvc v<iiirci»iiii<(<tion \vi».h the firm of Hall, (loepci
10 "& Co. no l(.n.,'.T <".\ists ! A. No sir. I l.'ft tiiein in I.Si>l.

" Q. Wliilst yon wen- witii ilull ( iocpi'i A: Co., diil they pur-
" chase any si'hipiiiii-is tjU'l il'su. Iiow uiaiiy ' .V i went east three
"times I'ortlicm nii i |i iiii-ii.is"! i in' -.cliiMiin'r ' Aiironi," "Ocean"
"Belie" an.! ' ( ;.ii.'\ .i, " in JN^". INMI an.i l.S'.IO.

"i^. W'licrc lii'l yn'i - 1 li iiiiii:i.i-.c tlii'si- «clio()nors ? .\,
"To llaiifax. Nova Scnti.i, ini.i lin^n to Ijunenlmr^.

"Q. That isin 1N.S7 :" .\ Vrs sii. lli.> ■ Anrora."

" Q. Now it' yon will ti'll hk' tin- tonna^i,' :" A. Aliont 7()
" tons.
20 ■' Q. Was slie a new vessel when yon iKtiijjlit lier ! A. Aliont
"six years oM ; she iiaij heen a lisherniun.

" Q. Wlint was her initial price;' A. The first cost was
" Si24()().

" B. What (li<i she staml von before you left IJalifa.K with
"hcr^ A. ^esC.dOO or tiierealionts.

"Q. What iliij it cost to lirinj; lier aronml here ? A. Ahout
".?1200.

••(^. So that with thoso ti^nres she stood yon iiere aliont
"§7S()(). A. Aliont that ; yes sir.
i\0 " Q. sill' was afterwards I'ni^a^i'il in seal fishing !' A Ves,
' sir.

" ij. Tile iifxtvi'sscl tliatyongot — yon ini'iitioned three vessels
"—did yon liiiy more than three;' A. 1 lioiight the fonrtli one
" Dora Siewani."

"Q. Ill wl.al yeardiil yon Imv her ? \. In the year ISltJ ;
"Octoher, 1S<H. '

'• (). V<iu honght her where ! A. I lioiight lier at Linienlnn';,'
" likpwise.

" Q. Was she on the stocks when yon lionght lier^ A. She
40 " was new on the stocks, yes sir

"Q. What cli.l that Vessel cost yon when yon left Halifax;' .A.
••■ When I left Halifax she cost SS74.H.

'Q. What did she stand your firm when she was lanileilhere^
"A. Landed here on .\pril 21. Crews wages paid in full, total
" cost of .scho;incr delivered at Victoria was ^7,t>."{l),2(). Tiiis in-
" chides new sjmrs. new fon'sail and jili, conlage, also one hunting
" boat and a stern boat.

" () < 'oiild ynii give me her tonnage ;' \. D.'Hons.

\tmv tiriii in the seiiliiig
•1 vV Co., but li\'

'i. Mie was also elllpi
oO "bllsiii.'ss' .\. ^'es, sir. Not by Hall, (i
" another eoiiiniinv 1 formed afterwjirds.

The • Ocean Belli

(J. Did you takeanotiier ves.sel t
as next, "she was Ixaiglit in I.S!)() at a first cost of !?2,4()();

.she was

SO t<

as siie new

istei-.
A. Sii

bet

ween si.x a

' old.

.seven yeai>

(iO

'Q. Where wa.s she bought;' A. .\t Lnnenhnrg

'Q. Originally co,st !^2,4()(> ;' A. Originally co.st i?2,400.

'Q. Cost leaving Hal il'ax ;' A. S^d.^OO.

'Q. Stood yon when liere ' A. i:<H,()()() or a little over.

' Q. .She was used by Hall, (loepel vV Company as a .seal

nil'

VCSSe

Q. Yon have another o

ieneva i

I es, sn'.

'Q. Where was Hhe bongiit ? A. At Ltinenbnrg iikewi

1(1

;')(>

4(1

(Mr. Bodwell's Argument.)

"Q. By yourself/ A. Yes, sir.

" Q. What (lid she cost ( A. .She cost in the neighlwrhood
" of SH.700 landed here.

" Q. Her tonnage i. A. Her tonnage, I think, was about
" 1)0. Slie co.st ?8,()()0 first cost, whs tive years old.

"Q. Now we have then front the statement that you in the
" eourse of your experienee, have gone to Lunenburg, Nova
" Scotia, to buy no less than fovn- scluKiners. I want to *-x])lain
" to the (,'onnnissioners why you took the trouble of going away
" aroiMid there f .\. Well, ut the tinii- we foinul it thi' cheapest

■ way to get a good, reliable vessel, notwithstanding the risk of
" bringing her around. Building here was rather costly in those
" days an<l we found it cheapest to go there.

" C^. Just take thi>se four vessels we have spoken of that \'ou

' yourself brought around from Lunenburg, if you had been

" asked to sell them here at tin; verj* tigin-t; that they cost you

20 " lande<l here, would you have .sold them at that price '. A. No,

" sir.

" Q. Were they as a matter of fact saleably worth more ?
" A. They were, sir.

" C^. .\n<l if you at that time had built vessels of that des-
"criplion here in Victoria, could ^'ou have built them for those
" figures or would they have cost you more '. A. They would
• have cost considerably more in the earlv part of 1SK7 and
•' 1HH!».

"t^. .\nd would tilt; siune remark apply to I HS(i i* A. Well,

■ it would naturally, bei-aiise before the ('. I', U. was openeil labor

■ was scarce here.
'■ Q. As a matter of fact, can yi>u build vessels cheaper now

•or the last few years from 18!K), than you couM in l^iH7 '. A.
• Considerablv, I think.

" Q. Suppiisitig you lin\-e a vessel of say !>0 tons, and a ves-
" sel of sa\' -ii) tons, and you come to figure what they I'ost per
'■ ton. wouM the small vessel cust niKri- pei' ton than the large

■ vessel :• \. The small vessel woulil cost ciaisiderably more

■ pi'r ton.
" (^ Befori- goiiiLj to the trouble of going around to Lunen-

'■ burg to get these Nova Scotia schooners, did y<iu make
" en(|uiries as to whether jou could get suitniile vessels on this
'■ side ? A. V(;h, sir, I eiKpiired at San Francisco, and likewise
" corresponileil with parties on the Soinid.

' Q. Of cotiise, now 1 refer particularly to the year 1NS7:

■ at what time did you inquire > X. Hefoi'e 1 went east the first
" tinn-, my firm had left it with nie, ami I wanted to do what
'■ was riglit auii '(ft tti)thiit<j undone to inform uiyscff wln'ri' the
" lit'iit ntiitirt nviild lie.

" (.). And having loaile those entpiiries, you conclu<!ed that
" it v^'as the che'ipot way to go east i' \. I did.

" (j. You considered that a good business tronsactiou ? A.
" 1 did. For illustration, in the year ISill the sciiooner
' " Victoria" was built here : she cost over SI 1. 000.

" (,^>. How nnich tonnage ? A. About 7") tons.

" Q. Was she built for sealing ? A. Yes, ,sir.

"ii. Wiio built her ? A, I think .Mr. .McDonald and Mr.
"Clark ; one of the local builders any how.

" Q. In addition to thi- actual cost of l>rin'.;ing them around
" from Halifax is tliere any considerable risk of their being lost ?
■' A, Yes, sir.

" Q, As a matter of fact have some of the vessels been lost
" coming around ( A, Yes, sir.

" Q. How long does it take one of these vessels to come

III)

|!'

r,' r

hii.l|il'

I'M

: m

i'.m>

ilii;-;l

1 'I

S'ti •

180

(Mr. Bodwcll's Avfjuinent.)

"around ns a rule? A. I went one time in 108 days, ninl
" another time in 157.

"Q. You hroujjlit them aiound yourself ? A. Twoof tin m

" Q. I believe you wvw not personally ac(iuainted with the
" " (^arolena " ? A. No. 1 wa.s not.

" Q. lint from your kiK.'wIedjfe of vessel.s, take a vessel in

10 •• 1H.S7 suitnliie for scalin;,'. and of the tonnajje of 32 tons up

" therealiout.", would \o\i con.sider ?4,()()() n hij^h or low valnn-

'■ tion ? A. I sho\iId e<ln^i^er that a very rea.sonahle valuation

"consifierin;; the exju-rienee I had afterwards in liuyin_<( vessels.

■■ Q. Vou state as a matter of faet that yim never saw the
'■" Cnrolena / " A. 1 will say that in 1«!»1 I paid i?:},2()() for a

" vesM'l ahout 30 years old.

" (^, What tonna<{e was sIh- ? A. 40.

"il And that was in l.S!)l ? A. 18!tl or the l)«j,'inninfr
"of I,s!t2."
20 If your HonorH are Halisfied of hi.s credihility, as I tliink yon

must have heen on hcariii;; '''■"> V"" have the very hest evidenof
you ean j^et as to the .state of tiie market in 1880 for .sealiii>,'
ve.s.sels in Vietoria. He ft)und the only place to jjet veH-
sels jiropiT I'oj' sealing; purpoHcH was on the Atlantic eoa8t. ami
he tells you they were not f(ir sale in San Franeiseo or on
I'ujjet Sound.

The ( 'ominisHioner on the part of the Tnitefl States: — l)ii
you reiie'inher whether the iuHuranee around the Horn was ui-
cluded in the eo.st (
30 .Mr. I^cmIwcH : — 1 eannot tell you from memory.

Sir Charles Tupper: -I do not think is was.

Mi-. Mddwell : 111 the I'liited States .\rj;umeiit referrin;; to
to tlie evidence cif this witness, they sny that he was a sealiii^r
eapiiiiii and hud nolhiiii; to do with liie sealinj,' liusiiiess prior to
liS.ST. I hiive read your Honors the evideiiee and you will see
to what extent that eritiei^m is justilied. Further down in the
I'nited .Sinles .Vrj^unient. they say : —

"Ili.> eA|.erienee in purcliHsin;,' Vessels luid his i;;noranee of
" tlie "Afla," for which he niaile an otler in I8S7, show that his
■J-0 " viilu.ilion of her is mere speculation."

I will read the (evidence to your Honors on that point. He
stateii that he knew .Mr. (Jray and saw tie' "Ada" in 1887. lie
says at line 10, page 1242: -

" l>irect examination : —

"t^. Captain Sieward, you know Mr. (iray who waH just in
" the witness hox f \. Ves.

" Q, Were you in Vietoria in 1887^ A. Yes, Sir.

"(J. 1 >id you know the .\da ^ I ilid.

"<,•. Did you exaniini' that vessel / A. Yes, Sir.
50 '• (,^). J)id you have a conversation with .Mr. (iray with refer-

" ence to the Ada ^ A. I had a eonverMation with Mr. (!rav, in
" the ])re.seiice of .Mr. ].,inidlier^, some tinn' in the midiile of
" April, IK,S7.

" (^. What was it i A. I asked him the question whether
" he would accept eii^dit or nine thousand ilollars for the Ada.
"That is ten yeai'^ano. anil I would not he positive whether it
•' was eiffht oi- nine thousand dollars He said ; " I <io not take
" ten thonsniid dollars for her: I am Koinj.; to send her .sealini;.'

" if. Were you lookinf^ for ships then ! A. I was at that
GO " time. It was the Hrst year that I went into the husines.

'• (^. Was that a /)()7(ff //(/^ otl'er on your part / A. Well, of
"course, his answer cut the nej^otiations short.

" y,^. Would you at the time that you made him that otler
" have jjiven him eijjht or nine thousand ilollara for the " Ada/ "

3«1

(Mr. Ikxlwell'H Argwincnt.)

" A. I was at that time intending t<» Imy a vessel, and I subso-
" '|ueiitly iKuijjlit Olio in SepteiiilHir of that same your. My otter
" in that respect ini^lit be coiiHiilercd houa tide.

" Q. Wlmt do you believe that the iiliip was worth then as she
"Hto(xl? A. First and foremost she Wi<>( a well built ship, well
•' found and in {;oo<l condition, and there and then read}' to start
10 " the season. "

" Q. What was she worth at that time ? A. To my notion
" she would have been worth oiyht or nine tbouHaiul dollars,
" more particular as we had the season rij;ht before u.s. "

And in cross examination ••*, pajje 124.'} he says, iii order to
show what oii(|uirieshe had mHde,an<l what invcstifjation he had
gone to before he made the otter : —

" A. I did not se(> her hauled out. She f^ot a;;round in the
" harlxiur one day, ami I saw her on the mud.

" Q. You had never seen the "Ada " hauled out before you had
•20 " this conversation? A. No ; but I was told alMiut her by .some
" who had seen her in Yokohama.

" Q. How mail}' dayi had the ' Ada " been in port when you
■ had this conversation with Mr. (Jray ? A. Aljout a week, I
" think. She arrived in the early part of April and this was the
" middle of the month.

" Q. (.'annot you remeiiil)cr whether it was eight or nine
" thousand dollars (" A. I cannot. It is ten years n^o now and
" theiM was no writing. I would not swear to it.

" Q. Did you have any instructions from your firm to buy
'M) " that ves.sel ! A. The tirm was !iot organized then.

"Q. Din'tyou tell me a moment ago that you were a member
" of the firm at that time < A. I was at the time I went East for
" the " Aurora. "

At line 8G of the same page be says as follows : —
"Q. You did not buy any vessel until September ? A. No,
" sir.

" Q. You do not mean to say that there were no vessels here

" in Victoria in the spring of 1887 that } ou could have Ixiugbt ?

" A. I tio not know of any, and furthermore, after the sea.son

40 " commenced I did not look for anything until the close of the

" season."

The Commissioner on the part of the United States : — What
j-ear was that ?

Mr. Bodwcll ;~In 18S7. At page 28.-) of United States
Argument there is a criticism upon the evidence of John
Sabist; n. Mr. Sabiston was called by Great Britain to testify
as to what be knew about the sailing qualities of the "Carolena."
He was incidentally asked some questions as to the value, and
lie makes a statement with regard to that with frankness. His
.jO eKiimate of the cost of building a vessel like that, namely
85,000 is quite correct, having regard to the experience which
lie had had in building ves.sels. He built a vessel of 1(1 tons at
San Juan Island ; she cost him 1?3,000. A man with that
experience if asked as to the cost of building a vessel in
Victoria, would be likely to say that a thirty ton vessel woulil
cost ?.5,000. He did not pretend to give evidence except from
his knowledge and experience, and having regard to that
knowledge and exporience, I submit that h\» evidence is quite
consistent. It is not denied that Mr. Sabiston built the vessel
()() he mentions at the time he did, and that it cost him the money
which stated.

The next criticism in the United States Brief to which I
shall make reference is that on the eridence of RicliRrd Collister
ut page 287 of the United State Argument. Mr. Collister could

II r

!•

fjj;;l

,*ij|;i!

if '

362

(Mr. BodweU's Arnumont.)

have no oliject whatever in giving exaggerated evidence before
tlie Coinniission. He has no interest of any sort, and lie is n
public official. At page 1312, line HO, we liave this statement
as tlie result of ids own experience ;

" C^. Mr. Collister, you are at present inspector of bulls ?
' A. I am.
10 " Q. For the Dominion government in tbe province of
" British C'ohunbia ? A. Yes.

"Q. How long have you held that office ? A. Nearly l.'J
" years.

" t^. What was your occupation previous to that ? A. Ship
" builder.

'• Q. Where did you build sliips ? A. Liverpool.

" Q. And when did you come to the province of British
"Columbia? A. Twenty-one j-ears ago."

" C^. And you have reside<l in that Province ever since > A.
20 " Yes.

" Q. In IMS? you had something to do with the " Ada " had
" joii not ? A. I surveyed her in April, l.S<s7.

" Q. For what purpose ? A. For insurance purposes.

" Q. Have you a copy of your report with you ? A. I
" have.

" Q. What insurance company were yoii siirveyinir for ?
" A. Lloyd's Utiderwriters, San Francisco, the Hoard of Undor-
" writers.

" Q. Did vou make a thorough exannnntion of the ship ?
30 " A. I did.

" Q. Had you in l.SJS? a knowledge of the value of ships
" anil tlie cost of ship luiilding in the port of Victoria ? A. Ye.s.

• (}. What in your opinion was the value of tbe "Ada"
" when vou survevi'd lior ^ A. Iti 18.S7 siie was worth fully

" suooo.'oo.

And at line 35, page 1313, in cross-examination says : —

" Q. So that your survey of the " Aila " was not an official
" one ? A. It was not an official one for tbe Board of Under-
" writers
40 " Q- 1 mean as inspector of bulls ; your official designation
" is inspector of steam hulls, is it not ? A. Likewise .Marine
" Surveyor.

" Q But what is your official di'signntion ? A, I have
"just given it to you. I am inspector of bulls for tbe Domiidcm
" Government, au'l likewise I am surveyor for the Underwriters
" at San Francisco, and for tbe Lloyds."

In tbe United .States argument it is stated that bis official
duties were confined to the inspection of vessels using steam.
That is so, but it is ndsleading nevertheless, because in his
50 capacity for IJoyd's Underwriters be bad experience, and
foinied i)|nnions as to tbe value of all classes of vessels. At
tbe same (lage of the record, at line 5S, he gives tbe following
evidence : —

" C^. Do you know anything about what tbe cost of tbe
" Ada" was ? A. I have no idea.

" (}. And in fixing tbe value, do you estimate the cost to
" rebuild her at Victoria ? A. I estimated her at what she
" would s"ll for at that tiuie in Victoria.

" Q. You are quite familiar with tbe sales of other vessels ?
(iO " A. I knew vessels' value at the time.

" Q. How dill you learn that ? A. liecause they ivere in
" (jiritt (le)H'ivid.

" Q. Hut were you fannliar with any sales in Victoria ? A.
" I didn't know any sales."

868

(Mr. Bodwell's Argument.)

As a matter of fact, there were really no sale?. There were
a few transfers of .special vessels under special circumstances,
but really no sales. At page 1314 he gives the following
evidence : —

" Q. Do you know of anyone buying here ? A. Not exactly.

" Q. I am asking you about other vessels ? A. No, because
10 " there were none for sale."

And at line UH the following ; —

" Q. Have you been concerned in building any other ships ?
" A. I don't know exactly, I have been repairing a number of
" ships here.

" Q. Did you build any other ship, or assist in building any
" other ship ? A. I don't know that I have.

" Q. Did you assist in rebuilding any other ship except as
" a journevnian carpenter upon it ? A. Yes, sir, I have.

" Q. What one ? A, I have had several contracts for
20 " vessels since I have been here.

" Q, Name one ? A. I almost forget. I had the ' Barbara
" Hoscowitz ' for one ; I did'nt have her as a contractor ; I did
" that for the Underwriters.

" Q. Repaired her ? A. Yes.

" Q. After she was wrecked ? A. After she was capsized
" on the ways here.

" Q. You helped repair her then ? A. Yes.

" Q. And you had a contract to help repair her ? A. No,
" I did it for the Underwriters ; I superintended the work."
30 I submit that Mr. Collister has .shown a very good qualitica-
tion for passing on the value of vessels. He had all these years
of residence in Victoiia. Moreover, his oHicial position and his
priictical experience in building and rebuilding and repairing
slii|)s for Lloyd's Umiorwriters, would give him a knowledge
sufficient to render his evidence of more than of ordinary
value.

At page 28S of the United States argument there is a refer-
ence to the evidence of John Clark. His evidence in the United
States brief is (luotcd from page 217, line 4, of the record, but
40 that quotation .•should he continued, because as it is given in the
Ignited States case it does not fairly represent the with 'Ss. He
was asked by Mr. Dickinson if there was any building of teal-
ing .ships in Victoria in 1S84, 1885, 16SC or 1887, and he says
no. But the evidence goe.s on, and is to be found at line 35,
page 'in of the record : —

' Q. You don't know do you from any actual building of
" sealing ships whether the price had increased or decreased up
" to 1892 ? A. I think there was one schooner built here about
" 188S.
.''0 " Q. Sealing schooner ? A. I tiunk so, I would not be
■• positive.

" Q. You are not positive about it, of any ships that were
" built of Ibis class ? A. The schooner ' Minnie ' was built
" about that time.

" Q. Has that been in your mind in giving your testimony
" as to increase and decrea.se ? A. Not until you called my
" attention to it.

" (j. Then you have no liasis on which you estin)ate an
" increase or decrease in the cost of the actual building of a
•iO " ship ? A. In 1887 I was in the repairing luisiness. I had a
" chance to know what niateiial —

" Q. What material you put into repairs ? A. Lumber, and
■ the like?

" Q. But you did not have in the building of sealing ships

iSn^

i' '

(Mr. Bodwell'H Ari^uiiipnt.)

" alto^etlier the Name timber that you une<l in tepairiii); ? A.
" Oh, t))o timliurH were all iilioiit ()u> same.

" Q. There Ih Nume ilirtVirence in coHt between yetting eiioufjli
" limber to keep up repairs, anil enou^jh to builii an entire new
" ship ? A. Oh, certainly.

" Q. You cannot tell nnythin;^ about the cost of a ship in
10 " 1884, 1^85, 1N86 anil 1887 i A. Uh, I liad nothing to <lo with
" thent at that time.

That is to say with sealing schoonerH an is shown immediately
afterwards by his re-direct exnuiiiuition : —

" tj. In the answer which you have jjiven to the last que?
" tion, have you in mind sealit'g vessel cir vessels of all sorts ?
" A. 1 merely answered the (|Uestion (hut I had nothing to do
" with sealing; vessels at that time. I w is repiiiririj,'.

" y. But in 188r), in lS8(i, and all Hlon<f to this date you
" have been woikin^at building other vessels? A. Workiiifj
2J " with the contractors here.

" Q. And therefore you have had experi-nce as to the cost
" of such vessels ? A. 1 knew about what tht. co>t of material
" was.

" Q. Would that enable you to Hx a value as to sealinj^ ves-
" sels, the experience you have had all alonj; with other vessels ?
"A. 1 know the cost in \H^'2, and I think that they slij;htly
" decreaseil, I " uulil say, since 18S6.

" Q. But I an> asking you as to whether the experience suu
" hav« had in the buildin;; of vessels ^{enerally would lu'lji you
30 " in formin<r an opinion as to the value and cost of sealiu);
" schooners ( A. Certainly, yes.

Upon that evidence I do not understand why my learned
friends italicize this statement in their arj^ument at page 288 : —

" The ordy value of the testimony of this witne.ss is to show
"" that (i ju lime ipnan xfiipwrif/ht in iiicnmprtent to give e.tpvti
" testiinony (18 to vitlues, diid that one eti'/difi-.d in repair -irorl:
" had little or no knowledge of the cost of build:uo a fennel."

It appears to me that the portion I have read has completely

answered that proposition. If you want to know whether Mr.

40 Clark's experience is such as to enable him to give your Honors

information, because he was a contractor, you have that evidence

at page 210, line 55 of the record : —

" Q. You stated, Mr. Clark, the contract price for the ves.sel
' Victoria' as being l?8,750 ? A. Yes, sir.

"Q. Will you say whether it was, from your experience, a
" fair price or not ? A. A fair price. I was the lowest tenderer
" any way.

" Q. Did you repre.sent the value of the vessel fairly then ?
" A. I think .so.
50 " Q. You built it under contract ? A. Yes, sir.

" ii. Will you say what it included ? A. It included the
"hull of the vessel, spars, standing-rigging, nnining gear and
" sails, two anchors, chains ; I think that is about all. No Hags,
" no siile lights, no riding light, no log line, log, nothing of that
" kind, that, was extra.

" Q. No outfit .' A. No sealing outfit."

It goes without .saying that a man of ordinary intelligence
engaged in shipbuilding, even if he wa.s not actually a contrac-
tor, would necessarily, in a small j)lace like Victoria, aci|uire a
GO great deal of information as to the cost of material ; his natural
curiosity would lead him to ascertain such pai tieulars.

San)Uel Sea is also referred to at page 28!( cf the United
States argument ; he is called a ship carpenter. I do not know
exactly why my learned friends have changed their phraseology

3fi5

(Mr. BixIwoH'm Ar;j;uMient.)

here, l>ecaiisp if th« others wore journeymen, Mr. Sea in certainly
eiititletl to thiit iBnk from liis own evidence. Thin witness'
)|iialiKcntion is to he found in the evi(h>nre at pa^o S'lU. He
states that he lives in Victoria ; is oit years of a;,'e ; is a ship-
wri^lit and f')iiphiiil(h'r ; has heen <'mployed in tliat work since
ahoy 14 years of a^e ; that lie has heen enj»njjed in repairini;
10 and hiiildinj; vessels of various kinds, and has worked on vessels
such as those used for sealinif. He saj's he has contracted f'lr
them, aTiil has huilt two sealinjj schooners. Your Honors will
oliserve that, these men were huildin<{ or repairin;; sliips all the
time, hut as a matter of fact thi"" man oidy huilt two scaling
schooners. He huilt one in Victoria and one at Alherni. One
in IMfi.S and one in !K(KS. He says lie has not huilt any for the
past ten j-ears. He knows the " Onward ;" has seen her anil
workeil on her several times wluin he first came to Victoria. He
was not hoss of the jol) then hut worked for .Mr. ('ook, anil fi'om
20 his knowlcdije he ;»ives his opinion that at that tiiiH' she would
he "nrth 84,r»()0. II.' is cross-examined then as to tin,' vessels he
has actually huilt, and at paj;e S.')7, line +0, he is asked wirh
reference to the Onwaril :" —

"Q. When did you work on her luider Mr. Cook ? A. I
" think it was in ISJS or l.S7!).

" Q. And you have not heen \'- ikinf{ on Miiy otln-r ship
" j-ince ? A, Yes, lots of them.

"Q. Of the samu clas.s the ' Upward '? A. Pretty much the
" sami; class.
30 '''.J. II. iv -rnny do you think you have workecl on iiince
" 187H I A. I snppoi(^ 20, it miijht he more or less."

The aifum. n> of the United States at pii^je 2S9 challenLfes
liis cvidenct \\\'\\ reference to his valuation of the " (Jnward "
on the<,'round that lie has not seen liei'. The conclusion is drawn
that his incompetency is apparent, hut it appears clear that
havinj.; wo'' mI on tlit- " Onward " durinj^ several years, and
Iwivin;^ seen her coming in and out of port, he would accjuire a
knowle<|ije which would enahle him to speak with a }jreat deal
of weijjht as to the value of the vessel. It certainly cannot be
40 said that liis incompetency i.s apparent.

Ml. Lansinj^ : — You did not read his evidence upon which we
base the statement that his incompetency is api)arent ?

.Mr. Hod well : — Thi.s is your quotation from his evidence.

" Q. Have you seen the ' Onward ' since you worked on
" her I A. Yes, I have seen her since she used to come into
" harhour.

" Q. Have you heen upon her ? A. Yes.

" Q. Have you seen her since IMHG ? A. I cannot .say I
" have seen her since \HH{] I mi, 'lit.
.JO " Q. Are you po.sitive you ^ iW her between LS8() and 1886 ?
" A. I think I have.

"Q. Well, are you positive ? A. lean not swear exactly,
" hut I am almost sure.

" Q. Are vou about as sure that you saw her since 188C ?
" A. Yes."

Now then, 188(1 i.s the year in which that vessel was seized,
and he was speak in<j of the time prior to that and of the know-
ledije he acquired by repairinj; the " Onward ", ami .seeinj^ her.
I referred the other da' in criticizing^ the evidence to Captain
tiO Alexander McLean, tot | i linGaudin. He has been in Victoria
vitice 18(j(). He held a masters certificate from the Roard (Jf
Trade in London before that tiiise ; he has been connected with
shipping all that 'me and is now holdiiifr ofiice tiiuler the
Domiiiiun (JoveiiiuR'nt as the agent of the Marine and Fisheries

Si' i

■ 'I 1

A U

II II

\-i'-,

frn^

(Mr. Hoilwt'H's Ai^Miiiifiit.)

Dt'pnitiiicnt. Tlic niticiMin in tlic Unitt'il Stittf^arijiiinvnt U|)oi)
hJH evidcnco is not Jiitttitifil wiitm tlit-y "iiy : —

" Jhiim-h (iiiiiilin, swoiii in rflution to tli)> eonilitioii nnil vnliin
" (if till' ' Alia,' WHS tlic MiiiHterdf tlie vi'»sfl nml iin allcm-il iiiM'sniial
" claiiiiunt iicfdri- tiif C'liiiiniiN.tiun. Ili' isnniy citi'ij in tlit> iiri;)!-
" uiiMit lis to Ills stiiti'iMfnt that tlu' ' Ailn' was tin- ln'st s)>alin)r
10 " sclnniru'i' in tlu! IiiiiImii- of N'ictoiiii in lliat year. Mis opinion „,
" to lii'i' value iloi-s not iippi-ur to lie it'licil upon. NoatttMnpt was
" nindu to ijuaJify liini as an expert, on tin- value of vfss<'is, and
" liis t>vii|i;nc(! (lisi'lost's |ii> luicl nc knowl»'ilj;c on wliicli to Imsii an
" opinion. As this cruise on the ' Aihi ' wjis his tiist ami only ex-
" pei'ience witii sriilini; ciaft, his statement us to the superior ity of
" tliii ves.st'l [los.ses.iies no wei;;lil as cviilence. I[e is clearly in-
" competent to ),'ive any ti.stiniony iis to value.'

I sulmiit with all ih-fiMice, that his evi<lenee iliscloses nothin;^'
nf the sort, if a man like ( 'aptain Moliean is taken to have a
20 kriowleilj^e of these thiuL,"*. how much iiioro shoiihl Captain
(iainlin, who po»ses»es every quiililicatiou that I'ajitain .MeLean
can he supposed to have, and who has hi'sides a Ion;,' experience
in the poll in which the action itiose.

Mr. Laiisin^^r : ^-iliiw muny vears has Captain (iaudin heeu
senlinu i*

Mr. Ijodwell ; — He has hrun connected with sliippinu; nH his

life, and has heeu in Victoria >iiice 1S(1(1. II

e Went sealil|(' ill

\<U

in IIS^?; and he was master of the steamer

"<j)uadia" liefoie lie Was prom ited to he theaijont of the .Maiine
30 and h'i!<heries Uepaitment.

At pHL,"' -!'l) nf the I'niteil states Art:" ilt, the eviclence of

Captain Warren, Mr. .Munsit

the ''round tiial thev are claimants hefon

is attacked upon

( onniiission

savs ;

'I'll

le evidence of these witne>ses, who jiossess a Common
interest in eiihancin;^ the value of sealin;,' vessels at Victoria, and
especially the schooners seized, mu.st he receiveil with the nliuost
caution. That all of them po.s.se^s n cei (ain amount nf expi'rience
as to the value of vessels is un(|nestioiied, hut that they did
40 under the circumstances, and in view of the douhtful cnslihility

sclosed hy poiti.iis of their

(as cli

)f the three first nieiitioneil

testimony,) ;,'ave a fair, undiased opinion of the value of the

vessels, as Ui whit

h tl

ev Were examiliei

1, i-^

not p

)l>ahh

That statement is not at all iustilied hecaiise oiilv

a portion

of ti.eir testimony has heeii ipioted, aiii| upon that partial ipiotii
it is prediciitpd that their creilihility is douhtful — when

not (pioteil in the \'. S.

tion

Vuur honors read the part w

>'liich

,'uiiient, ami which follows immediately after the extracted
|i(irtion, you will liml that tht^ evidenct; is ipiite consistent anil

50 that the witness has not at

liei'u iliscrei

ite.l.

It happens of course in the case of many of the claims that

)hli:;ed ti^ he their own witne ses.

persons interested

No other evidence is ohtainahie ; hut with reftu'enje to al
of these men, I would call your Honors attention to the
following' undisputed facts, 'i'hey «re men of standin;^ in
the community. They have lived in Victoria for a jjreat many
years. Charles Sjirin;;, Mr. Munsie and Captain Warren
have hiisiness connections there of a considcrahle extent,
they w(?re j,'ivin;; their evidence amon^ their own neighhors,
60 and in a place where those who were listenin^j to them, had
nearly as much knowled^jo of the ni;;ttcrs referred to as they
themselves had. Is it prohahle that men uniler these circum-
stances Would injure their whole future, destroy their hiisine.ss
stanJing, and risk their respyctahility hy giving false or ex-

fore
in tl
when
|() rredi
simila

the r

pursii
.Mcl,ei

that
It sei

no CO

i;ivin

is hei

I'lt .M

.%7

(Mr. Bodwt'H's Ari^'uiiiunt.)

«UH«'iatncl oviili'MooHiiii|>ly fill-till' piirpo.sf of cnlinncin^ td" valtio
(if It ft«w vi'N-tils in wliicli tlu>y witd ihtiT('»<ti'(| ns clniiiiiinu

I Hiiltniit tlmt tliiit kind nf ftr>,'iiiiu'iit is to ho d.nrccatcil Im-
foro your HotK.is, unices xt cnn In- nIicwii tlmt tlurro u Honiftliinif
in tin- Kfconl itMt-lf — sonu- Nliitcment of tim witiiis^—wliicli,
when I niii^rlit In pontmst with >turr(iiiniliii^; ciictuiistnn'-'-i, dis-
11) ort'ilitx him. I hnvo rffmint-d lhrui>>.'hout fioin nmkiii;^

■JO

iinili
tlin I

any
r ciihuiii'iit ii|iiiii tlit> wiinfHscs who hnv«i hcun cullfd liy

thu I'nitfd Stati'.N, nlthoii;,'h, if that line of iir>,'iiiiifnt were to I
|pin-sni'd, 11 ;,'niit dcnl nii^lit l-ii Muid with icftniici' to Ciiptain
Mcht'uii, t'liptiiin lUyimr and other witiiexscH ; hut I l.flicvod
tlmt your llonoii would not fncoinin'i' a diHoussioii of that M>rt.
It Mi'ciiis lieiiciith tilt* ili^'iiitv of this ('i)niiiiiMsi

on.

eniiti-nd tlmt

2i»

no comnu'iit .should In- allowed on the fact alone that the witiies.s
yiviii;; evidence happens to have an interust in tlio claim which
is hfiny; presented to your Honors.

.MrLiinsinif: — 'I'hat was the line followed at(ieneva,wns it not?

Mr. Hcidwell : — It apiears to he fmni the (|Uotatioii ;,dveii
111 r«, and I suppoK' there was evidence on which that argument
could he hased ; and, if my friends here can point out to your

I'hich

onors eviilence winch, wiien ipioted fairly and fully, justifies
an assertion of this kinij, I would he ipiite vvillin^r to concede
tliat it is a [>roper arL^ument to present. Hut when they ipiote a
p irtion ''f a man's testimony, and say that that contrndicis other
parts (if his evidence, and it then a|ip> ars hy reading the whole
of the evidence that llieie is no contriiiliction and no iiiconsistcncj',
I say it < not liyht, upon sueii an ineumplete rendering; to make
IX .statement that his claim is so lai'i^e that he must he taken to
he exai;t,'eratiiij.{ from the mere fact of his interest.

Now, then, your ilniiors will perceive from portions of the
arijument to which I have referred, how closelj- the witnessrs
for (ireat Hrituin have heeii criticized. W't; are told that men
who Imvo lived tifteen or twenty years at Victoria, and who
have heeii eii;,'ii>;ed in huildin<; vessels, are not evi'li competent
to yive an opinion to youi Honors as to the cost of huild-
iiij,' a ves.sel. Kvory witness called here is criticized upon every
ground ujii'ii which critici.-<iu can he hased.

The Commissioner on the part of the United States : — I do
not ipiite understand it so. I think there is some misnnder-
standiiii^ ahout tlmt matter. Take, for example, the witness
Watson; you must rememher that you and the counsel for the
United States are looking at these (piestions fiom a different
point of view. Where is the reference to Watson >

Mr. Hodwell : — Paye 2H'.\, your Honor; his testimony dis-
closes the incompetency and ij,'i!orance of this witness.

The Commissioner on the part of the United States: — Now
look at pa^je 2^2 — " his ij^norance of value and his incompetenc}''
as an e:ipert " — there he does not testify ahout value, he testifies
ahout cost

Mr. Bodwell : — He was not called as an expert upon the
value; he was only called to >,'ive evid 'iice of cost.

The Commissioner on tlie part of the United States: — You
and the counsel for the United State . are approachinij this
matter from different standpoints. They are lookint; at the
i|ue>ti()n of values ; you are lookinj^ at the qu- Uion of cost as
laying the basis of the ipiestion of values. It • eems to me that
"0 there is something; of a inisunderstandiiif^ Oetween you as to the
ciiinpetency of the witnesses.

•Mr. Bodwell ; — It may he so, your Honor. Of course I did
not undei stand the laiiijuai^e that way ; hut if that is its mean-
ing, what I have said does not apply ?o strongly.

'\ i

\fy

IHi

!!<•

^WWT

-^^

3G8

(Mr. Bodwell's ArfjfUinent.)

The Coniinis.sinner on the part of the United States : — You
cannot very well read what appears on pajje 2'S3, without read-
ing in connection with it wiiat appears on page 282.

Mr. Bodweii : — Th^iy are .speaking on page 282 of another
witness.

10 Ti>e Conjinissioner on tl>e part of the United States : — I
reineniher the question came up at Victoria, and that I suggesteil
to the counsel for Great Britain that the ordinary way of getting
at the value of vessels was to ascertain their sales ; and Mr. Beique
carefully e.xplained that your position there was peculiar and
therefore you could not get the values in that way, and must get
them by shewing cost. That does not at all change the
fact that you and the counsel for the United States have lieeii
looking at the matter from diflerent standpoints from that time
to till- present.
20 Mr. Bodwell : — I would he very sorry to misaii<lerstand niv

friends or to make any remarks which are not iustitieii hy whiU
they have stated in their argument.

The ("ommissioner on the part of the Uniteii States: — I do
not say that you have or have not, !)Ut merely call your attention
to the fact that you cannot read from one page without reading
I'rom the wtl'.or.

Mr. Bodweii : — And it is quite possible that with the explan-
ation which your Honor has given our statements may stanil
together.
30 I was about to turn my ottention to the evidence as to the

qualification of the witnesses called by the United States and
introduced to yoiu' Honors as experts up(ui value. I have
alreiidy referred to the evidence of .Nlr. Thortdey. His own state-
ment was that hisstateuu'iit of values was from records in theShij)-
ping Othci', and occasionally on prices he actually knew about.
Jlr. Turner's evidence I have also dealt with, and I have contended
that practically it does not differ as to cost of vessels from the
evidence given by us. Captain Anderson I have not mentioned
for two reasons. In the first place, his evidence does not profess
40 to be any more particular in its character than that given l)y .Mr.
Thornley. It is a weak repetition of Mr. Thoridey's evidence.

The Commissioner on the part of the United States; — Is
Captain Aniierson referred to in either your case or that of the
United States ?

Mr. Bodwell : — He is referred to in the Uinte<l States case at
page 2L!9, but your Honors will observe on reading his evidence,
ami especially his eross-exanunation, that he was speaking froui
memorantla he obtainecl principally from Mr. Thoridey while
they were tiavelliiig together from San Francisco to Victoria;
he was not professing to give any original evidence. Any-
thing we say as to the character of Mr. Thornley 's evidence
apjjlies also to that of L'apt. Ami. • son. More than that, the witness
in his cross-examination did not appear to be nearly so frank and
open a witness as .Mr. Thornley.

There are practically only three other witnesses who are

rel'fd on liy the Uidted States on the question of the value of

vessels. The first is ('apt. Alexander Mcljean. I have dealt

with his evidence at length, especially that part of it relating

f;0 to values of vessuls, and I shall not repeat my observations.

The next witness relieil nu is Captain llaynor. Now (Japtaiii
Haynor's experience is this; he has some lu'aisay kfiowledge with
reference to values of vessels, and supeiinfendecl the building of
the ■' AUie 1. Algar " in Seattle. With reference to his general

i^:Nto-

369

(Mr. Bodwell's Argiinient.)

knowledge of values we liave it stated hy himself, Record, page
492, line (iO :—

" Q. Were you acqiiaiiitcd with the general market for the

" sale of vessels of the class largely used for the purpose of sea'-

" ing in the years \SH(i and 18X7? A. Well, I have a general

•' knowledge of it. I never hoiight an}- of this kin<l of vessels

10 " myself or sold any of them.

" Q. Were you posted as to the current prices, or reporteil
"prices, in these years? A. Yes, I iicard it talked about
" sometimes."

1 submit that a man who i.s not buying and selling, unless he
is of a peculiar turn of ndnd, does not carry information of this
character with him in such a form as to make his statement the
basis for an accurate estimate. At page oOS, after stating that,
he bases the value of the " Carolena " upon prices of other
vessels in San Francisco, he gives this evidence : —
'20 " Q. You did not have accurate knowleilge of the market at
" Victoria during these years ? A. No, sir, I did not"

My friend, Sir Charles Tupper, calls luy attention to the fact
that his whole experience, whatever it was, related to San
Francisco and Seattle oidy, in the building of the " Allie I.
Algar.'

This evidence, which I have just qiuited.is at page 50S, line
45, as follows :--

" CJ. In t'orming your idea of the value of the ' Caroii-na,'
" what do you base that value upon ? A. I base the vilui;
.'iO " upon the pricss of other vessels of the same tonnage, or nearly
" the .same tonnage.

" Q, In what ports ? A. In San Francisco and two or
" three Scund ports.

" Q. Kxcluding or including Victoria ? A. E.xcluding
" Victoria.

" Q. You did'nt have accurate knowledge of the market at
" Victoria during those years? A. No, sir, 1 did not.

" Q. To shew an exjierience in this regard, Captain, did you
" inspect the ' Ada ' when she was sold at Port Town.shend to
40 " Mr. Nickel Bon ? A. I inspected her before she was gold ;
" y 3s, h\v.

" Q. AikI for Mr. Nickerson ? A. Yes, sir.

" Q. F. r what j)urpose ? A. For the purpose of buying her.

" Q. For the purpose of informing Mr. Nickerson ? A. Yes,

sir.

Q-

i;o

As to her value ? A. Yes, sir."

Now here is a good illustration of how infirmity tells on a
man's uk iiior',' as to matters in which he has no personal interest.
Page ')Ui, line 2 :—

" Q. Do vou know what the ' Lillie L. ' sold for in San
" Francisco ? ' A. Well, 1 have heard that she sold for SI,H()0.

" Q. What was her tonnage ? A. Something over ()(),

" y. In what year was she sold ? A. I believe it was in
" LSfS') or Ifs.SO; I coidd not ju.st tell which.

" l^. Do you know who bought the ' Lillie L. ' ? A. C. D.
" La.ld."

Let me call your Honors' attention to Mr. Thornley's evidence,
Recold, page 172H, he sh5's this ; —

" One-thirteenth of tlie schooner ' Lillie \j.,' in October, 18,S7,
" was sol.l by .laiuvs W. Todd to C. 1). Ladd fo-' S400. The
" vessel was built in 1S.S7, G:{ tons.''

Now the vessel was not built until lMN7,yet Captain Raynor
thinks she was built in ISS') or 1M«8, and was sold for iflSOO,
which is vor^' ditlerent from Mr. Thornley's evidence. It shews,

370

^^'\^-i

(Mr. Bodwell's Argumet.)

wlien a man is speaking from casual information that his recol-
lection and memory are very little to be relied upon.

With reference to the " Allie I. Alger," which was the vessel
he superintended the construction of, Record, page 509, line 40,
we find that she was n vessel of 75 tons built at Seattle in 188fi,
and that she cost §10,500 to build.
10 Mr. Alexander is also relied upon as another person whose

valuation of ves.teU is to be relied upon by your Honors. Mr.
Alexandei's qualifications .seem to be these : referring to page
409 of his direct e.xanunation, you find that he lived at Glou-
cester from lcSG4 to 1.S73, and from 1873 to 187(i at Lynn, and
then again in Gloucester, up to 1888. During these years he
was a school boy, having no occupation, but in his vacations
went on board some American fishing vessels, and when not so
employed he was working as a sailmakcr in his father's shop,
who was a ship's carpenter. He says he had an approximate
20 idea as to the cost of vessels during that time, but it mtist have
been a very limited knowledge. He was employed in 1880 on
the United States Fish t'ommission ; bis duties there were as
clerk and private secretary to the captain. In the month of
May, 1888, he joined the "Albatross" at San Franci.sco, and
since that time he has been going to Alaska everj' j-ear in the
summer time, and in the winter to the coast of .Mwxico and the
isiatiiis (if the Pacific.

At i>age 400, line ;)0, he gives this evidence: —

" Q. On coming off the coast in 1888 did you make any
30 " exandruicion— niiy notes — in regard to the construction of fish-
" ing vessels on tlie Pacific Ocean ? A. Well, I noticed the
" difience in the rigging generally, and the construction of vessels
'on this coast as compared with those of the Atlantic Coast,
"mid I took mental notes, an<l I took .some notes down at the
" time for getieral comparison.

" Q. What was your reason for <loing that ? A. Well ; for
" two reasons. My interest in vessels, comparing the two builds
"and general construction and so fc.iili, and also as I thought it
" might be a part of my duty, J might be called on sometime to
40 " answer such (juestions for the Fish Conunission, which has been
" th(! case."

1 submit that there is very little in Mr. Alexander's history
and expeiience to qualify him as an expert on the question of
value.

This sums up the evidence, I think, for the United State" on
that question, with the exception of Captain Miner to v^diom T
will refer. His evidence on that point is at page 535, and we
have there this statement, line 40 : — ,

" Q. Now, if you estimate the value of a sealing vessel
50 " have you bad any tin ig to tlo with the piice in buying a sealing
" vessel yourself ! A. I have dickered with other vessels, I
" have never bought one myself, iiut I have had an interest in
" one. I never bought one outside, but I have bargained for
' vessels.

" Q. For others i' A. For myself.

" Q. You know something as to how to keep posted on the
" cost and value of vessels? A. Yes, sir.

" (),. From what time ? A. From about 1888, after I went
"to San Francisco. I tiiought then of getting a small vessel for
00 " mysi'lf to go north otter hunting, and I .spoke then to .Mr.
" Turner.

•' Q. Are you fauuliar with the cost and value of vessels ef
" the charter used in sealing ? A. I think I am."

I .submit that the evidence shews that Captain Miner's busi-

371

(Mr. Boilwell's Argument.)

ness was principally sailing vessels and not buying and selling.
After stating that when he came to California he thought it was
a strange thing that vessels were valued at registered tonnage
instead of liuilder's tonnage, he says : —

" That was 1888, I an: not familiar with any vessels sold
" at that time."

10 So that, on his own statement, Captain Miner is not a witness
as to values in 1886. At page 549, line 1 to 10, he says he had
no knowledge whatever of Victoria prices. He came to Victoria
a stranger ; he was three months in 1880, and again in 1887, and
had no occasion to make enquiries as to ships.

At page 551, lines 1 to 10, your Honors will observe that
lie is answering from hearsay knowleilge about vessels, the names
of which were read to him liy the counsel examining him.

It is said in the United States argument that his opinion
as to the value of vessels, on account of his !ong experience

20 is very vahiable. Perhaps that statement to a certain extent
is justified with reference to conditions since 1888, but it
caimot be said of Captain Miner that his opinion is impor-
tant as to values in 1880, when he himself says he has no
knowledge of sales at San Francisco in that year.

At page 290 of the United States argument there is a
statement that there were no vessels built at Victoria. That is
a mistake. It is true, perhaps, that there were no sealing
vessels built ; yet I do not know that even such a conclusion
would be correct. There were a great many tugs, steamers and

30 other vessels built. Tiie stiitement is also repeated at page 297.
I have no doubt that my friends mean to say that there were no
sealing vessels built.

I have followed this argument at this length out of deference
to my frienils and have discussed it in all its bearings from the
ditfeient points of view ; but I conteml your Honors, that,
for the practical purposes of this Commission, the question may
lie confined within a much narrower range.

As I stated at the outset, the contention we make is this,
■to that these vessels are to be priced at the values which they had
to the men who owned them at the time they were taken
from them against their will. That principle of valuation, I
state to your Honors, is one which has always been followed
ill cases of compulsory sale. I refer to ('ripps on Compensation,
(tliird e<litifin), where it is said on page 112: —

' The basis on which all compensation for lands required or
" taken should be assessed, is their value to the owner as at the
" date of the notice to treat, and not theii' value when taken to
" the promoters. The question is not, what the persons who
"lO " take the land will gain by taking it, but what the person from
' whom it is taken will lose by having it taken from him."

At page 1 1 -t it is said : —

" The value to the owner can bo a.scertained either by a
" valuation oi the lands taken, with the aildition of compensa-
" tion for incidental injury, or by what is known as the rein-
" statement principle."

At page 117 : —

" A fui'ther item to be taken into consideration is the prob-
" alile diminution in the value of the claimant's good-will in his
•10 " trade on the taking of the j)remises in which such trade is
" carried on."

These quotations are a general statement of what the law is
upon the subject— a proposition which is familiar, no doubt, to
your Honors from your experience with that class of litigation.

"ilir

m\ .1]

V'.

ni"

372

(Mr. Bodwell's Argument.)

A familiar illustration of this principle is in the case of Ripley
V. Great Northern Railway Company, Law Reports, 10, Chan-
cery Appeals, 435. In that case the head note discloses the
state of atfairs.

" A railway company took lands on which cotton mills would
" probably have been built; the owner had other land on which

10 " he had built a reservoir from which watei- might be supplied
" to such cotton mills when built. In proceeding under the
" Lands Clauses Act to ascertain the compensnUon, the umpire
" received evidence as to the piofits which might have been
" derived from sujiplying water to the mills when built, and
" awarded conipeniiatiun for the loss of those prospective
" profits :—

" Hdil (affirming the decree of the Master of the Rolls) that
" the umpire was right in receiving the evidence and in award-
" ing such CDiiijiensation."

20 The judgment of Sir G. Mellisli, L. J., page 439, is as
follows : —

" It appears that Mi'. Ripley had constructed these reservoirs
" for the e.xpress purpose of supplying water to mills. Then, by
" an Act of Parliament he was prevented from selling watfr
" except for the supply of mills or buildings erecteil upon his
"own land. In th:it petition of things a large portion of his
" land is taken, anil of course it necessarily follows that a lar;jc
" portion of the value of the reservoirs is taken from him. it
" seems to me quite clear that his prop<^rty in the reservoirs

30 " being prejudiced b}- reason of his otlv r Jiuid being taken by the
" railway companj', that loss is a propL>r head of compensation."

Thus it was his actual loss, not the value to the promoters
who took the prujierty, that was to be considere<l.

Another case which illustrates the same thing is White v.
the CouHuissioners of Her Majesty's Works and Public Build-
ings, 22 Law Times, page .5!H. nml the facts were these ; —

"A. carrie<i on an old established bu»iuess at 11 Parliament
" street. His lease of those premises being about to determine,
" he purchased the lease of No. 10 in the same stieet with the inten-

40 " tion of transferring his business to No. 10 upon the determination
"of his lease of No. 11. Hefore such transfer was etieeted, the
" Commissioners of Her Majesty's Works and Public Buildings
"gave him notice to treat with respect to No. 10 under the
" poweis of the Public Offices Sites Act, 18G8, which incor-
" porates the provisions of the Lands Clauses Consolidation
" Act. The question of the amount that the commissioners were
" to pay him for the compulsory taking of No. 10 was referred
" to arbitration under the Act. The artiitrator admitted evidi'tice
" of the profits that he had been making at No. 11, and .wardi d

50 " to him the sum of .£1,000, in respect of good will attaching to
" or loss of piofits which might or would have been made at No.
' 10 Parliament street, if the premises had not been taken for
" the purposes of the Act."

I give the judgment at page .")03 which is short: —
■' The arbitration took place under the Lands Clauses Con-
"soli<lati()n Act, ami by the terms of the submission, which was in
"accordance with the Act, the arbitrator was to iletermine what
"compensation was to b(> paid to the claimant tor damage or
"injury caused by the taking of tbi- messuages in qut-ii.iri. He

CO "awards jCIOOO in respect of such enuipensation. It miist be
" taken that the arbitrator has come to tlieeonelusi(Ui that loss to
" this extent was really sustained by the claimant by reason of his
" being preveiited fi'om carrying on his business ;.t No. 10. This
" lo.ss, it is true, would not begin to accrue till the termination of

373

(Mr. Boilwell's Argument.)

" his interest in No. 11, but this does not seem to make any dif-
" ference in principle."

Here isaca.se of Bourne and another v. tlie Mayor, Aldermen,
and Burgesses of Liverpool, 33 Law Journal, Queen's Bench,
page 1 "> : —

"The plaintiH's, who wore hrewers, were the owners in fee of
li) '■ a public-house, which was let for an unexpired term of seven
" years, and there wn.s in tiie lease a covenant by the tenant not to
•sell on the premises any beer other than that purchased of the
'• plaintiH's : the defendants were empowereil, by their special act
"( with which was incorporated " The Lawds Clauses Con.solida-
" tion Act.") to take the premises: — Hell.that in ascertaining,
"under section liS and (>'i, the amount of purchase-money and
" compensation to he paid by the defendarits to the plaintiH's, the
" a<lditional value cf the premises to the plaintiffs by reason of the
"covenant to sell the plaititiHs' beer only was to be taken into
•20 " consideration."

At page Hi is found the Judgement of Judge Wightman as
follows :

" I am of opinion that the award is good. By the terms of
" the act, the plaintiHs areentitled to compensation for the damage
" that may be sustained by them by reason of the execution of the
■■ (iefenilant's works."

The piinciple of all these cases is tliat the damage is to be
the loss to the person by reason of the compulsory taking under

;i() the Act. The Act gives the privilege of taking after the pay-
ment of compensation : that where compensation is to be en-
(juired into, it is the loss of the man whose property is taken,
above the value of the property to the Company, which is ascer-
tained. 1 continue the (piotation : —

" The defendants have taken this public-house, and the value
' of the house we find is t!3,!(00. But, independently of that, the
" plaintiHs sa}' that the public house is of gi-Mter \alue to them
" iiy reason of the covenant in the lease, and that by the loss of
" the advantage of that covenant which they sustain by the pro-

40 " perty being taken away and the house pulled down, they sustain
" a further loss of £400. I cannot see any reason why the arbitra-
" tors were not at liberty to take that into consi<leration, and to
"give the plaintiH's that increased value of the premises, — aright
"to them arising from the benefit which they derive from this
" particular covenant. As long as the premises were in their
" hands, they would have tlie benefit of it ; and they are damnified
" to the extent of X40() by the premises beins; taken away by the
"defendants. It seems to me that the award is perfectly good."
Blackburn .1 , page 17 : —

.")() " I am of the same opinion. I think tlie question turns upon
" what we understand the arbitrators to have found. It is not
"disputed by Mr. Mellish, — and it could not be disputed— that in
" givini; compensation for the value of the land, the arbitrator is
" to give the compensation for the value of the land such as it was
" to the plaintiH's."

I have not referred to many authorities on tiu> point, because
it is such II well known principle of law that I thought I woidd
only be taking up time needlessly bj- discussing it at further
length. The point is this. The.se ships were taken from us.

(10 We did not wish to sell them. What value can be just that does
not return to us an amount suHieient to ciuipensate us for our
loss. Take as an illustration the case of a man who has a beau-
tiful residence and spends a large amount of money planting
and preparing grounds. They may not be of value to the partj'

"'II (M

«'«

i i|s'| .

!iii.

;,: r

!' l!

pwil'-IU^

•\7i

(Mr, Boflwell's Argument.)

who takes tlio property, but it is tiie home of the man. He does
not wi.sh to .sell, but it is oxpropriiited say for a railway. In a.ssess-
iiifi compensation, would not a jury be instructed to consider all
the circumstances and award a .sum which would reinstate the
vendor as far as possible in the position in whic'i ne would have
been if he ha-' not been deprivetlof liis property Very often, in
10 order to ncci-mplish this result, a percentajje is allowed in order
to cover the lo.ss sustuinetl by a man beinfj forced to .sell at u time
when he does not want to part with his ])roperty.

Now, if we apply that ])rinciple of valuation to tiiesc vessels,
the pro])osition works out simply. Take the ves.sels that were
seized in 1H,S6, the " C'arolena," the " Onward " and the " Thorn-
ton." 'I"he " Carolena " was bou<;ht by Munsie. It is a (piestion
of fact. Did he pay the price he says he did ? Your Honors
would be justitied in assuming that a prudent man would not,
pay more than the vessel was worth.
20 'i'ake the " Onward " — Charles Spring .says in his evidence, nt
page Hii'.i, line ,")0 : —

" i). Now, at this point I will ask you what value did you
" put on the ve.ssel, as she was, prepared for sea, outside of th'j
" sealing outfit ? A. I put her down at 84,000, considering that
" she was worth every bit of that to me at that special time ; nt
" that, time I considered that I got her at a very low figure, being
" the beginning of the sealing business practically in Behring
" Sen. Kverything looked bright ahead of tis at that time."

(,'iin your Honors come to any conclusion but that she was
30 worth at least?44()()Otohim.

The " Thornton " was re-built at Victoria in I.S81 : the "Say-
ward " was rebuilt at Victoria in 1882 ; the "Anna Heck " was
rebuilt at Victoria in 188.'i ; iind the " (Jrace " and "Dolphin"
re-built at Victoria in 1882. Vom- Honors have in the evidence
the actual money invested by Wai'ren in the.se buildings and
re-buildings. Js it to be saiil not only that his property is to be
taken, but that he is to sutler the lo.«s of money actually disbursed
without sutlicit.'iit compensation. How can any theory of repara-
tion be just which does not reinstate him in as good a position as
40 he occupied before the injury was caused. Suppose the ves.sel
cost bin! more than it ought to have cost him — nevertheless he
paid the money and the ves.sel was worth that much to him
because he could make a profit b}' operating it.

The "Alfred Adams" returned to Victoria and the " Sea-
ward ' was relca.sed from custody on bonds, so that the.se
schooners stand in a ilifteivnt position.

In regard to the " Ada," there was a price actually offered
for her before going out on her voyage. I submit that yon
could not have better evidence tlian that as to her value — that
50 is the exact price that we have claimed for her, SJD.OOO.OO.

I submit that there is a very ea.sy way of arriving at the
value if you believe Munsie and Spring. Spring is a
witness whose credibility is not challenged at all by my frieniis.
Spring's own statement when he .says that she was worth 8*4,000
to him must be taketi as correct.

The {'onunissi<jner on the part of the United Slates: — Can
you give nu? the page where the cost of the " Ada " is shown !

Mr. Hodwcll: — Page 784 and line 40, and page 78,'). The
evidence as to the ofl'er is at page 122.").
GO Mr. Lansing:— It will be found better in the exhibits at

pages 18.'l and 184.

Mr.' Dickinson : — That was a case where the ves.sel was
valued abroad in Japanese yens.

Mr. Hodwell : — Upon the (|UeHtion of depreciation there is a

S75

(Mv. Brtdwell's Argument.)

stiitenieiit iit. the oiid of tlit' iiri;umeiit ol" tin; Unitoil Stiiti-s, ut
pnjje 29!). Tlie point is put tiii'rc on tins basis of tliis evidence :

" Q. WImt would the ordiniiry wear and tear lie ? A. The
' ordinary wear and tear would Ih! 10/.

'The (^oiiuiiissioner on the part of Her Majesty: — Do
" you deduct 10% for wear and tear on a vessel two years old !
" A. It is the custom to allow that on the nvera^^e every year
" as we f^o alonjj."

Mr. Siewerd says practically the same thinj;, but I subnut
that that evidence must be understood in this way ; that it cost
10^ of the value of the vessel to keep her in a state of repair.
The life of a vessel of this ela.ss is thirty years and in fact,
several of tiie vessels spoken of were that aye and were jjood
then. With reference to our evidence we iiave proved that these
ves.sels went out every year in a thorouj^h state of repair. In
addition to that there would be a percentajje based on the
expectation of life. That is a very small percentajfe. Practically,
for the purposes of the sealinj; business it would not be worth
eonsiderin<;. I tlnnk Turner saiil that the tirst year the percent-
a<je was much (greater than in other years.

Value ok Sf..\!, Skix.s.

I liave a few remarks to make with reference to the chapter
on the value of .seal skins. The arj^ument for Great Britain upon
,30 that point is from pajje 88 to the end of page Ho. At pajje Hi,
we say that we claim a value in 1880 of S7.()0 a skin : in 1887 the
])rice claimed is !?fi. 50 ; in 1888 the price is 812.2"), althoufjh I
think there are no actual claims for that year ; in 188!) we claim
the hij;hest price which the evidence shows, Si 1. 00 which repre-
sented the proceeds of one shipment made by Jfunsie ; in 1890
skins were worth between §15.00 to SKi.OOand in 18!)2 the .skins
were wortli 814.00.

I may tell your Honors that both sides place jjreat reliance
on the evidence of Theodore Lubbe. There was some evidence
40 with reference to account sales put in by Munsie and consid-
erable evidence {jiven by Warren and Sprinjj. In 188G, we base
our price upon the testimony of Mr. Lubbe and on paj;e 259 of
the United States Argument there is a (piotation from Lubbe 's
evidence where it is .said : —

■' Q. j\Ir. Lubbe, there were purchases of the Behring Sea
catch in Victoria in 188G ? A. Yes, sir.

" Q. Can you tell me what they were sold for ' A. The
' highest I know was S7.00 and the lowest Sti.oO."

Then the argument procee<lH : —
.")0 ' The market value of the seal skins in the market of Victoria
" in the j'ear 1886 is cherefore definitely fixed as between $().50
" and 87.00. The clanuants demand the highest price. They
• should be allowed the average market price."

That is the United States argument. The evidence that Mr.
Lubbe gives, in the portion quoted, is a slip, becau.se he had
previously testified at page 1890, line 40, as follows : —

" Q. In the j'ear 1880 you liave given us that you purchased
' 16,797 skins / A. Ye.s.

" <^. But of that only 239 were Behring Sea skins f A.
(iO " Yes, sir.

" Q. What did you pay for those Behring Sea skins :' A.
87.50."

And again, on the same page of the reconl, line 65, he
states ;—

'I \>

m i

^nm

37fl
(Mr. KuilwoH's Argiuin;nt.)

" Q. Wliiit price were ni'ssinj^er dt Company pnyini; timt
" year ' A. From !j*(i.50 to $7.00.

" Q. The coast eiitcli comprises ii very liirjje proportion of
" f^ray pups, does it not :* A. Ves, sir.

" Q. Clin you tell me out ol' that lot of 1G,7!>7 .skins, how
10 " K'ay pupM there were :* A. 2,972."

In that same year Munsie sold for 87.00 per skin, as appears
l»y the Record, l)e;;innini; at tlie bottom of pa^je 1 10, as follows : —

" Q. Did you ilispose of those seal skin.s that year, and lU
" what price ;' A. Yes, I sold them for ^^7.00 per skin as they
" ran.

" (). Did j'ou sell them in the summer oi- in the fall of
" l.SNO ! A. I .sold them on the arrival of the ' Pathtinder ' that
" same year.

" (^. Who did you sell them to :' A. I sohl them to Joseph
20 " Hoscowitz, who is engaged in the business of buying furs.

" Cj). And did you actually receive for them ?7.()0 per skin '
" A. Ves, S7.00 per skin

" Q. If 3'ou liad received tlie catch of the '("arolena,' could
" you have sold them at the same price ' A. Well, I could not
'• swear that.

" i}. What is your opinion, is there any reason why you
" should not i' A. There is no rea.son why 1 should not."

So that 1 say we are (|uite justified in asking your Honors
to allow !*7.0() per skin. Lubbe bought at that price and
30 iMunsie sold at that price. Bessinger and Company were paying
from ?(i.r)0 to i?7.0().

The argument then proceeds to deal with the price for liSH7.
At page 259 this statement is made :

" In the year 1887 there were no skins sold directly by
" owners of sealing vessels in any other market than the markets
'■ of Victoria and San Franci.sco."

This is not quite correct, because Jacob.son in that year
shipped skins to London, and it is important to call attention to
that fact. At the Record page 27G, line 2G, the following evi-
40 dence is given :

'■ Q. Would j'ou tell us, generally speaking, without going
'■ into particulars, how did that turn out as to the profit you
" made that j'ear ? — ;just give it in round figures. A. Do you
" mean the sea and the coast catch too '

" . Yes. A. I think, as far as I can remember, I made
" between ?+,000 and .Sfj.OOO.

" *}. That is net profit ! A. Ve.s.

" i) To whom did you sell your seal skins in 1887 > A.
" The first I(jt I shipped was sold bj' a man named McLagan.
50 " *). He shipped them to Lonilon for you ;' A. Yes.

" (,). What did the}' realize:' A. They realized between
" eight and nine dollars a skin

" Q. Would that first lot be what you called your const
" catch :' A. The coast catch."

It is true that this shipment was composed of the coast catch
))ut it is important to know that in that j'oar tiie London market
was a place known to jiersons outside the actual buyers. The
sealer Jacobson had knowledge of it.

Mr. Warren : — Read the next line on that page.
GO Mr. Hodwell, reading : —

" (/ What did you do with your Hehring Sea catch :' A.
" I sold them to Mr. Davies or Mr. Moss, I do not remember
" which of the two.

" Q. What (lid you realize for them!' A. That I cannot

•M7

(Mr. Hodwoll's Aij^timciit.)

" reineiiibe'' but it wiis somewhoro between !*().()!) iiinl SSTOO for (be
" Hobrinj^ Sea seals."

It is true the Hebriiij; Sen cntcli was mdM in Victoria, Ijiit I
merely wanted to make tbe point that the l.iunilon market was
known at that time to persons outside the trade.

Mr. Warren : — It makes the United States Argument rijihf
lu as to the Hehrin^ Sea catch.

Mr. Bo<lweil : — Weil, you say no skins were shipped, and that
is incorrect. Mr. Hoscowitz also shippeil 2000 skins, and these
were Hehrinif Sea skins as appears at pai;e IKH.'J, litie 42. Mr.
Lubl)e is being •■.samined, as follows : —

" Q. Mr. Bo.scowitz bouifht some skins that year :• A. Ves,
" sir ; it does not include the coast catcli.

"<^. And he boufjht the skins that came otl' the ' Wurren
" .schooners f A. I think .so, I think they were shipped by
" .Foseph Ho.scowit/ to London.
-0 , " (). And that was the only siiipinent to London that year
" so far as you know f A. Kxcept the Alaska Commercial
" I'ompany.

" Q, Wait a irioment. That was from San Francisco. I
" am speakinj; now about Victoria. A. I do not think the
" Alaska Conunercial tJompany had any here that year.

" i}. In the year 18S7, all tiie skins that were taken in the

" Hehrinj; Sea, with tbe exception of about one siiipinent of 2000

" .<kins to London by Joseph Hoscowit/ — which were tbe skins

" taken ott' the ' Warren ' .schooners— were sold riyht here in

;i() '■ Victoria — were they not, Mr. Lubbe ? A. Yls, I think so."

As to that shipment, I desire to refer to tbe evidence of
Warren at pajje ls70, line 70; and 1H71, line 1 to 10, to show
tliat they realized as a net return in Victoria So. •")().

Mr. Warren: — Do you say that those skins were Hoscowit/.
skins.

Mr. Hodwell: — Mr. Lubbe says that it was not the coast
catch. Skins were transferred in Hehring Sea to other .schooners
and I do not think that Mr. Luljbe would talk about a shipment
that was not of the coast catch unless lie knew of it. Warren
40 speaks of it in his evidence on that point as if th(;y were
liebring Sea skins, and he is not cross-examined. His evidenci;
is at pajje 1871, lines 1 to 10. So far as that statement of Lubbe
is concerned, Boscowitz might have been buying from other
per.son.s. At page 1870, Warren gives this evidence, at the
bottom of the page : —

" Q. In tbe year 18<S7, what did you do with the skins that
" you got ? A. They were shipped to England.

" <^). How many did you ship ^ A. Between 2.200 and
'• 2,300.
.")() ' Q. What did they net you here, after paying all expenses '
" A. S(i.30."

If the witness does refer to the coast catch, it gives additional
value to tl'ie Behring Sea skins that year, because all the evi-
pence is that tbe Behring Sea skins brought a higher value than
the coast skins, and I have therefore the right to a.ssume that
our value of S6.50 is well within tbe mark.

At one o'clock the Connnissioner.s took recess.

(i()

At half pfVHt two o'clock the Comnii.ssioners resuineil their
seats.

Mr. Bodwell : — When the court adjourned I was referring to
that part of the United States Argument which appears at page
25!> with reference to tbe year 1887, where it is stated that the
only witness sworn as to the market value of skins in tbe city

■m

i ^m

i'i' il''Ji.-3

;s';ta

*■■<

, n

1
t

'mm<\

-ni

i i,l . ■ !

:i-t

f^'

37.S

(Mr. Botlwoll's Argument.)

of Victoria in the year IN87 was Tlu'odori" Lubbe, wlu) ti'stiHc(|
that lie purcliasod i'loni Cliarlus Spring \' Co. on tlio lOtli ol"
Octolu-r. 1887, l(i25 .seal skins at S4 5() iwli.

That was tlio cargo of the " Kato," hut Mr. Mun'<it' also

HoM skins (hat year, as appears by his eviilencu on page IIM,

line ()-2 : —

JO " i}. Now leaving out the amount of seals you got in 1887,

" can you tell me the price of seal skins in 1887 :' A. About 8').

" (j). Where ilid you .sell your seal skins that year, and to whom
"did you sell thorn i* A. I sold 2,320 to Jos. l^hlman, of \ew
" Vork, or to his agent here. I see that -1.93 wero sold in small
■ lots, but I have forgotten whom they wero sold to.

'■ Q. All the skins you dealt in that year wen^ the .skins
" from the ' Pathfinder ' ' A. Yes."

Charles .Spring also in addition to the .sale of the cargo of the
" Kate" sold the eargo of the " Favoiu'ite " to Morris Mossat!?7.
20 I" the United States Argument it is said that" if Charles Spring
"sold any skins that yi'ar at !*7 it was much earlier in the year
•' than the eargo of skins from any of the vessels seized wonlil
" have been landed in Victoria." I think that statement is not
([uite exact, because at page 874, lino 15, we have his evidence
upon that point.

■ (,>. What was the price of skins in 18S7 that you received '

" A. !*".

" Q. What was the market price, or what you got :• A Th.it
' is the best price that I got.
;}() "(,), Voii got them from what ship ' A. The Favourite.
In 1887 ' A. In 1887.

Then you .sold to whom :' A. To Morris Moss.
What did you reali/.o foi- Hohring Soa catch ;' A.
Did von sell any at a less price than S7 in 1887 ?
" Yes, I did.

" Q. For what price ? A. For $5.

" Q. That was the spring catch ? A. That was later on in

" the same year. Lite in the season, a considerable time after

" all the schooners had arrived in, cjuite a few skins had arrived

40 ' here, and mine being the last, of course everybody had been

" supplied.

•• Q. In the early part of the season, what time did you sell
" for .*!7.00 ' A. To the middle of Soptembcr, I think.

" <,*. Did you have any coast catch that yisar ^ A. Yos,
"i). Did you sell that ' A. Yes.
" Q. When !' A. During the spring. '

So that that was actually a Behring Sea catch, liaving been
sold the middle of September, and it was possible that one of
these vessels might liave returned by that time.
50 '^n the same page (2()()) of the United States Argument there

is a statement which is not very material, j'et it .should be cor-
rected. It is said that Lubb(! bought the " Penelope's " collec-
tion of 1,.")0() skins at 85. .oO, and then it says below that other
skins were bought from the ' Pathfinder" at So. 50 and from the
" Penelope " and the " Theresa " at !?").25. That is a mistake, I
think, in taking Mr. Lubbe's evidence down, for at page 188:{,
line 30, he says :

" J. Uhlman, of New York, bought the 'Pathfinder' collec-
" tion, 2.;J77 skins, .at $6. Of cour.se, I am taking this from a
GO " letter I wrote at the time to New York. Amongst these 2,377
'■ there may have been 10 or 15 grey pups, which would change
" my figures sliglitly. but would not amount to anything. 1
" bought the ' Penelope' collection of 1500 at 85.50. Liebes &
" Company' and the Hud.son Baj- Company and others bought

!?7.

M7!)

(Mr. Uoilwell'M Argument.)

".sonic of tlie skiii.s tluU yeftr, making ii total, iicconliny to tlieno
" Kyiiros, of 10,200 in Hulirin); lleii."

Mr. Warren :— At paye IMSI, line '), lie ;,'ivi's the price of tlio

• Penelope " skins at 85.2").

Mr. HfMlwell : — Ye.s, anil I say that is a mistake of the sten-
o;,Mapher or the printer or somebody, as is shown by the otiier
Iti evidence of Mr. Ijublie.

At paije 2til of the United States Ar;;ument tlnre is a

■ |iiotatiou from Mr. I^ubbe's letter book in which he says i\\n*,

riilnuin appeared to have enough. Davis (I'hlnian's aj^ent)

• eonid have bonjjht a lot at .S5."

His evidence is also ((noted at pa;;e MY.V.i, line 30.

Mr. I..ul)i)e was at the portion of his examination so ex-
tracted speaking of the whole northwest coast catch, hut the
iivera^^e price of the l-iehrinj; Sea catch cannot he avera<;ed by
liikinji the whole northwe;<t coast catch, for this season
20 llie northwest coast catch is a ti^rm invented by Lampson and
liikes in the whole catch of tiie northwest coast, includin<^ the
I it'll rini^ Sea catch. In the coast catch proper, there are a very
;:reat number t)f j;rey pups. Mr. Lubbe statin;j it to be as hiijh
lis hS per cent., whereas 1 per cent is a hiyh averaf^e for {^rey
imps in the Hehrini; Sea catch. The witness at this point is refer-
liiij; to that very thing. He is being examined b}' Mr. Oickinscn
and this is the evidence on page liKl.S, beginning at line 2-i: —

" Q. Will you please state, Mr. Lubl)e, whether in 1H86,

" from your own knowledge of the price of skins, taking .seal

;iO '.skins as they ran, including grey pups, coast catch, and all,

• whether in the market at Victoria, purchasing as you were

* '• purchasing, and as ].,iebes was purchasing, right here, i<i.W)

" would be a fair average ? A. Yes, for the coast catch.

" Q. For ail :* A. For the coast catch only, Mr. Dickin.son.

" Q. In 18H7, would S.").,')0 be a good, fair average ' A. I
"should think so ; yes, sir.

" Q. For all ? A. Yes, sir, for all.

" Q. In 1888, would !?5.75 be a pretty fair average for all,
" including IJehring Sea ^ A, No.
40 " Q. It would be a fair average, would it, for the coast
' catch ! A. Yes, not for the Hehring Sea.

" Q. And that would give a fair average for liehring Sea,
and altogether in 1888, including Hehring Sea and the coast '

■ A. Yes, I think it would be.

" Q. Now, for 188!), for all, would #7.20 be a pretty fair
"average, taking them as they ran ? A. Yes, I should think
" so. It would depend.

" Q. Taking them as they ran ? A. You cannot do that.
' If you take 7.5 per cent Hehring Sea, and 2o per cent, coast
.■)0 " catch, the average would be more than S7.20.

" Q. Hut as they ran in 188!), from your knowledge of the
" market, S7.20 would be a fair average, would it ! A. Yes, I
" should think so."

Now, at page 1035, line 30, he .saj s : —

" Q. Now, you said the ^mer day that in the year 1880, for
" the spring catch, there was a percentage of seventeen and a fi'ac-
" tion of grej' pups out of a ctjrtain lot of skins ;' A. Yes, sir.

" Q. Speaking now, from your knowledge, was that an
' unusual percentage of grey pups :' A. No.
00 " Q. You said also, immediately afterwards, that there was

■ no such percentage of grey pups in the Hehring Sea catch ^ A.
" Yes, sir.

" Q. Can you tell me what would be the percentage of grey
" pups in the Hehring Sea catch ! A. T have never seen as

>M- i.
'*|i I,

' Hi

mil

'Ml .

<M,

:^^-

u ■ \i

m^^r^wT

;ts(»

(Mr. linilwfH's Aryiiiriiit.)

" iiuiiiy UH i)iif-i|iiiirtt>i' of Diiu pur cent, i will Htiito here tinw
" timt it would not ln' jiossihit' to t'.xct'cl dih- per cont.

" if Now, tlu'ii, if ymi wi'i'c tryiii;; to ;;ct lui iiv('nij»i' prior
" for Hi'lirin;; Sen skiiiH, iloyoii tliiiik you could ;;i't a fiiir iivcrii;;.'
" j)rict' liy taUiii;,' tlu- whole of llic iiortliwi'st coii'^t cutcli, as y.iu
" Imvf descrilicd it, hiuI avt'rii<;iiij; tlii'in ' A. No.
10 Q You would 1)1' tiikin;^ in tlion nil tliis lar;;i! pcrfcnta;;!'

" of ;;i'i'y |>n|i'^, wliicli would l)riii;f the i)ric(' down on that lot
" very mui'h ' A. Mi;;ht he '.M pi-r cimiI., 2.'i or (iO of pups ; it is
" no criterion."

lie also Haiti, Just Ih'forc that, on the s;inh) j)ij,'i', at line .'11 . -

"Q. Vou .Haiti n inouu'iit ai,'o that the northwest const catch
" was ti term invented liy Ijain))son :' A. Yes.

" ii. It incluiles, does it not, all the .skins that are caught t)n
"coast from California to Alaska ^ A. Yos, .sir.

"if. The spi'ini; catch also jjoes in as tlu- noi'thwest coasi
20 "catch in liUinpson's salt; ' A N'es, sir."

Your IIt)nor.s will sec that such ,a comparison will not j^ive
the averaije ])rice, even if {\u\ I5ehrin;; Sea skins he inclnileij in
the amount represent in;,' the t,n-oss .sum receiveil for the whole
northwest coast catch.

The eviilenco of Ca)itain Warren is also referral to at pa;,'e
201 (d' the Uniteil States Arjjument, wliere he says that S.'i.oO
was til" price the ilt^alers were i)ayin;j at Yi('tt)ria, in IHST
(/Uptain Warren was a partner of Mo.scowit/., who was ship|iin<,^
to Loniloii, anil 1 ipiote his evidence from paj^e 1.S71, line •_'.
no whei'e he says he realized !*(i.H() for the skins shippml to Li)ndon
that year; that is tlio net price at Victoria.

At the hottom of jiafife 2(11, of my frienil's ari:;ument, it is
sail] :— " The value of se/il skins in the year ISS.S is ixjt directly
" involveij, ami the testimony is ntit important." Hut we ctiu-
teml that the year ISHJS is important, hecause it shows that in
that j'ear nearly all the owners were shippinij their skins tt)
Lonilon ; so that after IX.SS there is every reason tt) say that the
ortlinary ship owner would .sell in Lonilon. In Mr. Luhbe's evi-
ilence, page IHS-l-, line 20. it i.s said : —
40 " Q. In the yi.Nir 1S,SS, who, hi'sides yourself, wa.s purchasini;
"skins in Victoria:' A. That is pretty hard tt) titnl out. I
'thiidv there were very ft?w skins sold here that year. They
"were all shipjietl by the owners."

After 18HS we say there was no tpie-ition about the Lontlon
price beinj^ the price of sial skin.s taken by vessels operatini,'
from Victoria. There were instances before, but after IHHH they
were nearly all shipped to Lumlon.

At pa<j;e 'IViZ •;? the Tnitetl States Ari,'uuient there is antither
statemi.nl iliat \> : . Liibbe say.s the price in Victoria was ?7.20
50 per skin ft)r eoji sfc catch ; that the highest market price of skins
in Victoria to' 1881) was between i:<7.7.') and §7.<)0. Mr. Liibhe
was not puiL'ha.sintf any skins in 188'J. That price is from his
eviilence as j^iven on page 1880, line (12. It is from a report
report made to his owners. The letter was read into the notes at
page 1888, lines 20 to .'50, and in that report he says to his prin-
cipals : •' Y'esterday in London, Culverwell, Brooks & Company
" sold the catch of the ' VMva ' at 47 shillings," which he trans-
lates into our money as about ijicm. He arrives at the Vic-
toria price by deducting (>0 cents a skin for freiglit ami packing.
tiO That principle of calculation is stated by him in his evidence at
page IDS.j, lines 25 to GO.

Immediately after this there is a statement in the Uniteil
States Argument that llr. Lubbe afterwards stated that he made
a sale in London in 1889 at $7.7C per skin, but the sale that is

Ill

•20

;)o

.•)()

<)0 cents a <<kiii
*7.7«.

(Mr. Hoil well's Arf(uiiK>nt)

tluiio lofirri'il to was not a salt' hy I^nliW', liut ii one lie read
iilhtul. On piit;f iy:iM, lini' 27 :

" (j. That M $D.2(>, IM it not ( A. No, it \h iHM. That Im
" no criterion of the valiu-. and then you innst take the freight
" oir, too,

" Q. You take the freight off tliiit of tiO cents a><kin' A.
" (iO cuntN IM full, liut take it off'.

" i,i. How much does that leave ! A.

" if. That was a Lindoii sale in the yoir 1S89, in the fall ?
" A, Yes, sir.

" Ke-cro.ss-exaniiiiation.

'• (^. In the year KSKi) you hon^^ht a h)t of how many skins >
' A. These were not my skin.s.

" Q. Was that not your lot ( A. No.

" <.^. What skinH were thos(! f A. I cannot tell. Someone
•' had shipped northwest coast skins and they realized US
" shillingH.

" Q. Was it your sale ? A. Oh, no ; they may lielonjj to
" anyliody.

" Q. How many skin.s were there ( A. The telegram read,
" ' -i.OOO at MM siiiliinKM.'

" ii. And you do not know the circumstances as to whether
" these were culls, or otherwi.se f A. I cannot tell that.

•' ',!. Would that sale be any criterion of the market ? A.
" No, it would not.

" Q. The average price of the Hehring Sea catch that you
" ;jave — how did yon arrive at tlie averajje which you gave for
"IMS!)? A. In the autumn, October nOth, 1H8!), there wen;
" two sales in Limlon, one of l'),000 skins lor C. M. L'lnjpson &
" Company, avera<»injj -t.") ihillinfis, and, on the .same day, Oulver-
" well. Brooks & Company solil, I think, 10,400, nod the average
" was 44 shillings and (J pence."

At page 2(52 of the United States Argument it is stated :

"The highe.st market price of skins in Victoria in lHH\) was
" between S7.7r. and .?7.()0."

" On page 1H!)3, line '<iO, Mr, Lubbe says :

" Q. Will you tell the lowest price for the same year ? A.
" I think they were all 87.G0.

" Q. All about !?7.C() ? A. Yes.

" Q. And that is for the skins as they n n, including grey
" pups, just like the London sales ? A. Yes, sir.

" Re-cro.ss-cxamination.

" Q. Mr. Lubbe, who ma<Ie that offer, do you know ? A, I
" think Uhlman — yes, I have it : ' Uhlman appears anxious to
" buy at 87 .7").'

" Q. Were there many skins ? A. The total collection for
• 18S!) would not be less than 2;i,000 ami might reach 33,000,
"(refering to book). The prices offered hero j'esterday (4th Sep-
" tember, 1889) by Uhlman and Boriies was ?7.7o aud S7.G0
" respectively.

" Q. Now, Mr. Lubbe, the 4th of September would be about
" the first vessel that arrivetl — the beginning of the season f A.
■• Yes.

" Q. Is it not within your knowledge that prices went up
" in 1889 very rapidly from that time on ? A. Yes.

"Q. So that was the lowe.st price that was offered in that
" year (' A. Ych.

" Q. And that was the reas )n, was it not, that the sealers
' themselves shipped to London, because they found the prices

V i|

i.*

■4

..MtI

382
(Mr. BiMUvell's Aijjument.)

" there were hijjlier ? A. Ves."

W'u know tlmt tlie prices went up becnuse we have Mr.
Miinsie that year with his account sales .showing that he soltl
10 the " Viva " catch in London at ?ll. That it appear.^ on pajifu
1S(!8, .ine 'AO, and on ISCi't, line 1. There were some .sales at the
smaller price also made by JIunsie and we have Mr. Liibho
sayini; that prices went up and that the shippers beffan to send
skins tt) l..ondon.

The Commissioner on the part of the United States : — Ought
we to take the prices at the close of the season or the middle of
the season ? In one year you have got it in the early part of the
.sea.son and in another at the latter part of the season, which are
we to take i
20 Mr. Bodwell : — The early part of the season was the price at
Victoria.

The Commissioner on the part of the United States : — No,
the prices changed at Victoria. Mr. Munsie testified that he
sold the last part of the season for ?5 and he explains that
and yon have already read his explanation. Now, which part
of the season arc we to take, we must do the same by each
season.

Mr. Bodwell : — No, I do not think so, not in a special instance
like that. That was the special occasion of the dealers having a
go supply and he had to take what he could get. That was not ii
lest of the market price for that year.

The Commissioner on the part of the United States : — Should
not we take the price of skins at tht^ time the ves.sel would havr
arrivt'd if she had not been interferred with :*

Mr. Bodwell: — If you take the Victoria price, yes. But it'
you take the London price, no, because the London sales took
place in October or Noveinb(>r. Lampson only had two sales a
year.

The Commissioner on the part of the United States : — But
40 the higher price in Lindon was the close of the season. Munsie
says that he Hrst got between 87 and !?S and later in the season
lie netted Sll.

Mr. Boiiwell : — I think I can explain that apparent discrep-
ancy in this way. .'?7.7(i was rt^ferred to as the Victoria price.
Skins went up and they were shipped to London and $11 was
the London price.

The (Commissioner on the part of the U^nited States: — But
Mr. Minisie testitii'd that his early London sales wore $7.!)2 an^l
then his later sales were $11.

Mr. Bodwell : — I think your Honor is (|uite right in saying
that Munsie got a higher price in the latter part of the season of
that \'ear, i)Ut we think we oiight to get the best price that was
obtainable.

The Commissioner on the part of the United States : — -But

looking at it from a reas)nabl(( stanilpoint should not you gnt

the best price that seal cins would connnand when the vessel

1 pr(jl)Libly have arrived if she ha'l not been interferred

.•)()

WOUJi

with.

Mr. l5odwi'll : — Yes, but in that event they would get thei
(!() shipments to London in time for the November sales.

The Commissioner on the part of the United States: — Yoii
lerstand that $11.00 was the net

un<
ehar<r(!s ?

pric

aft

er |iayinj.

all

Mr. Bodwell : — Yes, that is sworn to as being the net price.

:{.s:?

(Mr. Hotiwt'll's Arj^iimcut.)

Till' C'omiiiiMHioiu'r on tlii' jmrt of tln' riiitcd States: — At
|inj;(' l(S();{, line ol, of tlii- Ri't'onl, tlii' ciiloilatioii is to sliow
■ wliat tilt' skills cost. " slioiild that not lie " net f"

Tlic Coniiiii.ssioiii'r on the part of (Jrcat iM'itaiii : — 'I'liat
word is a slip nodoulit, it should he ''what they brought."

Mr. lioiiwi'll ; — If your Honor will rt-ad a few liiu's jirt'ci-din;;
|(i limt I think you will see it means net price.

lown as

■10

riie Comniissioner on the part of Oreat Mritain
evidently a clerical error in the Ueconl.

Mr. I'etei's : — On the face of the document it is sli,,,,.. „..

• net." 1 rememlier your Honor asked tlwit<[ue.sti()n particularly
at Victoria.

Mr. Hodwell: — In the Tnited States Arj;ir.iient at pn^e 2(>;{,

in s\nnniin>; up this (picstioii they use the followin;; lanijuaye: —

"Till' claim is made for the market price at London, in the

■ ar^jument on hi'half of Oreat Britain. There is no testimony
of the market value of skins in London in the years l>i8ti and

■ liSH7. There is no evidence of any direct shipment hy sealers
"to London in the year IHS7. The statement is made that
' Captain Warren shipped skins to London in IHS7. The fact is

• that .). Hoscowitz, who was, and had heeii for a i;reut many
" year.s, purchaser of seal skins in N'ietoria. sent his skins to
" London, where they were sold at the auction sales t"or' his

• account."

That is ei|uivaleiit to a st.'itement that t'aiitaiii Warren
sold skins in London, hecause the evidence is nncoiiti'adicteil
:i() that Warren and Ho.scowitz were [)artners in the result of the
voyaije in these years, and as Ho.scowitz was shipping; to Lonilon,
Warren as a matter of law was entitled to one-half of the |)rotit.
There is evidence that .lacohsoii shipped to London in !S,S7,
Mithiaijj;li it was not a Melirin;; Seacatcli.

( ienerally with reference to the i|Ui'stion as to whether or
Mill the Lomlon price should lie taken, I think I may repeat the
ntiservations I made with reference to the value of vessels,
namely, that the i|uestion, on the evidence, is contined to very
narrow limits. I'pon the jfeneral sul)ject we have cited the
40 authorities and evidence at pa;;i' S.S and the top of piiy;e 'S4 of
o'lr ari;ument, in which we show from ijuotations from tlu'
I'liited States case, and from the evidence of Luhhe, that the
London prices was the yovci iiini; price at X'ictoria. Mr. Luhhe
'^HyH positively, that the London [irices i^overned the Victoria
price.".

lint your Honors ari' not driven to draw any very tine
'listinctions u, jii this point, hecause it heeomesvery simple when
I lie evidf.ic^' is fairly cmsidered.

With leference to the year iSSti, the ipiestioii does not arise
at all, hecause ilie value that we are claiming is hased on the
\ ictoria pliee. I'liere is no eviilence with reference to tic
Li "..io;< ix'ice of tiiat year.

.\s to the year IHS7, there is a claim for the value of seal
^l\ills on account of the "Sayward." the 'Anna Meek,' the

■ l>ol]iliin," ■■ the ' ( Jra'.'e," ttie ".\lfred Adams,' the "Ada" ami
till' "Triumph" Kour of these vessels helonij; to Warren, and I
lia\e Just stated to your Honors that the i{ecia-d discloses that
III- was a jiartner of Hoscowitz who was huyinj,' and shippini^' to
London, atid Wai'l'en would ;;et one iialf of the London priei'.
That is heyond all contradiction.

It was shown hy the evidence (hat .lacolison was shippin;^ to
I.I mdoii that year, and we think il is a fair (liinj; to say that the
owners of the "Adams." ' .\da " and "'I'liumph' would have
knowled;;e of the London prieeR, and if (hey ilid not tl'et as ^iiod

."id

:.,. V-t

|l V

' :lw. :

l(- \i

11.

3S4

(.Mr. Hodwell'H AryuiiuMit.)

pricoH in Victt)riii, would liiivc sliipped to l..oiulon as otlier.s were
doing.

Ill 18SK the ((Uestion lioeH not nriHe becausf the owners
then began to ship to London an a con.stant practice.

With reference to the vessels for which claims are made

in liSSt), the evidence is still more distinct. We know from the

10 evidence of Hall, page 1873 of the Record that the catch of the

Juanita wouM certainly have gone to London. At the top of

page 1874, he says as follow :

" Q. Had you previous to that time — previous to the seizure,
"sold any of your skins in London ? A. We shipped in 1888
" ex .Juanita.

" Q. To London :' A. To London.

" t^. In 1879, was it in }-our mind to ship to London also ?
" A. We had that in contemplation.

" Q. Did you communicate with parties in London about
20 " it '. A. Yes, we had been to the London market.

" y. That was before the seizure ? A. Before we know of
" the seizure.

" Q. And I believe you originally put in j'our claim for
" S8 00 >. We put in our claim for .S8.00."

Mr. Wan-en: — He got skins off the Juanita — d' 1 1 ; -i..,il
them to London >

Mr. Bodwell : — These skins were sent to San Fnii. .c) um.
sold to the United States authorities.

Mr. Warren :^N'o.
JIO Mr. Bodwell : — I think so. If what my learned friend says

haii been the case, it certainly wouM have been brought out in
his cross-examination; but in any event there was only a vory
small lot.

The " Pathfinder was owned by Mr. Munsie and he was
shipping to Loiiilon beyond all (juestion. Mr. Lubbe speaks of
him as the pioneer shipper to London, as far back as 1887 he
was disposing of the catches of his vessels in this way.

Mr. Jacobson of the ' Minnie" had shipped to Lon-
don in I8N7, and it is verj' reasonable to suppose that he either
40 would have shipped to London or got the London price.

The " Kate " was owned by Mr. Spring. Mr. Spring must
bi^ taken to have had all the information in the posse.ssion of
Mr. Munsie and Captain Warren, and he would either have
received the London prices or would have sliipped there.

The " Black Diamond " and the " Lily " were owned liy
Morris Moss. Morris Moss w'as Mr. Liebe's agent in N'ictoria.
He bought for Liebes iV; (yo., who were dealing directly with ihe
London market. It is beyond all question that Morris Mi)s>
would have got the London prices for his skins, because
"jO he must have known it from his cori'espondenc« with his prin-
cipals.

The " Triuin|ili ' was owned by Iv Crowe Baker. There was
a contract made with reference to these seal skins, and we have
set out our views on that in the Argument on the " Triumph "
case, I will not takt; up time because that will necessarily have
to be discussed when the " Triumph " .seizure is taken into con-
sideration.

This leaves only the •' Anel " and the " Wanderer, '' and it is
reasonable to argue, that in view of the fact that everybcdy
(iO practically was shipping to London, the owners of these two
vessels would have done as well, and that we .should get the
iiondon price for them. I submit that under tiiese circumstances
the burden would be upon the Uni* "d States to convince your
Honors that theie were some special • ason r'dating to these two

'**:
.;»•'

385

(Mr. Bodwell's Aifjuiiient.)

vessels which would prevent their cargoes of skins going to
London. In the ah.scnce of any .such proof it wouiil be only
riglit that the cargoes should bo placed at the same value as if
they had been so shipped.

Jlr. Warren : — Were the 844 skins of the " Ariel " .sold in
L.indon ?

10 Mr. Bodwjll : — I say it onlj' leaves the " Ariel " and the
•• Wanderer" — even if that were so, it would not detract any
from the force of my argument. Here you seize our vessel,
bring us back to port in a state of more or less distre.ss, and the
iiwnerinust realizeon his caigotbebestway he cat). Huclian action
iiitei'rupts the whole course of business, and no inference can be
drawn from what a man does under such ciix-umstances as to what
his cour-e would have been if these special comlitions had
not existed. If these vessels harl been left alone, if the seal
m&i'ket ha<l not been interrupted, if these seizures had not taken

20 place, all the evidence is in the direction that the shipments
woidd have been made tu London or that the London price
would have been realized.

in 1H!)0 a claim is made with respect to the " Pathfinder."
That is Mr. Munsie'.s vessel, and he wa.sdealiny with toe London
ni.'U-kct during all these years.

In the ycai' lS!)-2, it being the setth^d pi'aetice of all the
owners to KJiip to London, surely the London price must betaken
;iO ,is the mai'ket value of any skins which are ieferr«'<' to in any
(if t)ir claims for that year.

Page •i(i4 of the I'luted ."^tiites .Arguuient, says: —

" No rule of law is more tii'udy established than that which
"declares that in ease of a loss of cargo before a voyage at sea
" is completed the value of the cargo is dett;rmined by the
•■ murket Vidue ruling at tlie])ort of ilrpintiu'e."

.\o authority isiit.'d for that projiosition, and I think your
Honors \\iilrcei'i\t' suelia st.iti'mrnt of law with nolittle sur(),.ise.
'Hie marki't value of an artiele, I eontend, must be the ])riee at
-10 till' place where the article is to be clispciscd of, and not the
jirice at the port of departure of the shi]). It is a (piestion of
i'.iet to be detei'uiined on thr evideni'e, whether or not the market
|irice foi' seal skins in N'ietoria, was the price which dealers paiil
,ii X'ietoria exufcting to m.aki' a profit, or the prices at London
which were known, and which was the market resorted to by
individuals who were not buyi'rs, but vessel owners.

MKTII()I> I'Dlt (■(t.VIl'lTIM; KSTIMATKI) (ATCII.

.")0 In the iirgument for thel'iiiteil States, there is also a verv
(■unsid(!rable amount of criticism upon a rule which we have
.idopteil as the method for eomi)uting the estimated catch,
Tliiit subject is veiy f\illy dealt with in our printed argument,
begiindiig at piige 7!t ; and what has been stated there,
lias been su])plemented by th(> remarks svhich has been made
by my leiirned friend .Mr. Peters in his opening argument. I
ijii not think under the circumstances I wtadd be justitied in
iiccupying ymn' time at this stiige with any lenitthcned discus-
sion of our method of computing the estimated catch, especially

tio ill view of the fac' that the United States have not suggested
in their argument liny betti>r plan. The method of computation
may be a dilHcult one to settle but that is not a reason why
the Uniteil States shoidil be freeil from making compensation
under the head of estimatecl catch. We contentl tleit

;l ,; . :! !v

1 1

I: 11

:i' 1
i.

\l\

i''" si-'
m

.H>': : li

1 '^ i ■ ■ i;

i;:;!

h^ S'

t;^^;

mwwm

386

.')()

(.Mr. Bodwell's Ar{;uinent.)

that tlie duty of arrivini:; at some basis is cast upon your
HonoM, auii wo have done tlie I)ost we can to {^ive you a rule
whicli will enable you to arrive with reasonable certainty at the
result. It seein.s, with all deference to my learneil friendH, that
they might liave done a little better tlian to have taken tl>e
very smallest catches whicli have been reported and used

10 them as means of refuting the argument which we have
ailvanced with regard to the ' Mary KUen." Wo say tliat the
" Mary Ellen," her voj'nge being unititt'rrupted in IJSSU, sliould
be taken as a type of what would have happened in any other
vessel had it not Iwen interfered wiih. To show how reason-
able our calculation in that respect is, the statement which was
put in by Mr. Peters is very useful. It demonstrates that
while the " Mar}- lillen " in that particular year had
about IjOO skins more than some of the other vessels, yet she
had not liy !in\' miians a higher percentage of catch per boat.

20 Several of the vessels whose catches are maile up, per boat or
prr e.iiioi", average ei[UalIy if not beyoml the average oi the
■' Jl.iry Ellens" catch per boat in that year.

It is true that the witness Bragg saiil that the " .Mary
Ellen's" catch was a very exceptional one, but wt' have already
dealt with that in our Argument at ])age SO, where we show
lliat there were a great many other eatclu'S which, when taken
in eonnecticn with the siu'iouiiditigeireumstunees, wen.' not very
far beyond tlie " Mary I'^llen's" eatcii. Kor instance, we say: page
SO of i)ui- .Vrgument : —

'■'riic " I'^i\ ourite " in ISSd, with an oiittlt of 10 canoes, , il-

■ tbuugli iier vuy.igi' was int^'riupted by the cutter, took 2l>74
•• sells between tile 7tli .luiyand the loth August, in 1SS7,
" the '■ i'atiiliiidef, " with a erew of ti boats, eaptnred 2200 bi'-
' tv.'crii the 2Stli of .luiie and the ITtli .August, and would
" doubtless have a dilrd l.irgely to the number if she had not

■ til. '11 lii't'n frigliti'Ui'd from tin- gi'ouiid 1)\' her pro.simity to the
■' traek of tin' cutters. In the same year the " Mary KUen" took
■ I.ViO seals between the ISth of July ami the IHrli August.

■ Till' •■ l'',ivonrit('" took ls:i4 between . I idy lOtb and .Vugust
2titli. In ISSS, t!ie "Moiuitain ( "liicf," with o canoes and a

'strni e.inoi', caught 000 from the 1st of .\ugust to the :h'd or

■ 7th of Srptemb.'i-. So ill !N.S!(. till' •• \'iva' eauglit 2IS() with

■ six boats, ix'tweeii the (itll of .llllv and tie' 21st of August, and
•in ISIK) hrr eateli was 201.") lirtween 7th duly and 12tli
'September with six boats, 'i'le' " .Miiinii'" in that year also got
" 1400 with eight canoes and one boat between the middle nl'
•■ .Inly ami the 2."itli August."

'I'lii'se e.itelies having regard to tlir eireiimstanees which siii-
louiidi'd lluiii, compu'r very favorably with that of the " .Mary
Ellen' 1 siibiiiit that on all the exiili'iiec we are justitii'd in
a.ssumiiig that t he " .M;ii'_\- I'^llcn " was simply an a\ei;ige \i'ssel
and that her c.itcli would have bcm ei|iialli'd by other vessels
dining the same peiioil bad there been no interruption of the
xciyages. ill reference to this matter the .\rgument of the
fniti'd States says: —

" That we have involvt.'d the (piestion b\- the referenei's to
" the lowering days, and that while we stated that factor as an
"an eh.'iiient fur making the calculation we did not use it. It is
"certainly an error, whatever infeiences my friends draw from

■ the tigures, because these lowering days are in every case
"ado|)ti'das the basis foi- arriving at the lowei-ing days which
" wc consider the other vessels woul I have in during t(j the time
" they remained in the Sea. "

Mr. Lansing: — What is the object of stating it?

.JO

flO

387.
(Mr. Bodwell's Argument.)

Mr. Borlwell: — We set out the number of lowering days.
'Phis is said in our Argument at page 81 : —

" The number of seals taken in August by the individual
" hunters is given in tlie evidence, and may be summarized as

" follows :

^0 DeFries, hunting 1 5 whole days, 3 half days, took

Jacobsen, " 1.5 " " 4 " " "

Julian, " 18 " "4 "
Lorenzo, " 1.5 '• " 4 '•

Dillon, " 10 " " 4 " '■

Seals.
, . 220
. . 17.5
..231
..179
,.1.53

9.58

"In that month the stern boat took 47, hunting on the Ist,
"3rd, 4th, Oth, Stii, lOth, 12th, 15th, lt)th and 24th.' This num-
" hi-r is not taken into account in the calculation which immeili-

•20 '■ ixUAy follows.

The practical deduction to be maile from tliese facts may bn
stated thus : —

"The " JIary Ellen" had Hve men who were in the scaling
" waters 24 days in An^^iist. This wonld be equal to one man
'for 2120 days. But there wcM-e .51 A days in wliich no bunting
"was done, leavimj (isA actul working days for om; man.

" During these (JHl ilays, !)5S seals were taken (not including
" till' 47 taken by the stern boat in ten days). This is ecjual to
" 14 seals per day for the one man power at work."

;j') If you take our calculation in any one of the individu'il claims

yon will find we >>et out the numlier of days the vessel was in
the sea. We take the ilay slu; entiM-e(l and the ilav she wouhl
have left if she bad not been interfere-d witli. We say on the
]iro]i()rtion of lowering days that the '• Mary Ellen " had, tliat
another ve>s<'| would have h;id so many lowering days, had shi'
lieeii rtlloweil to remain in the sea : an 1 on the pi'oportion of the
iMteh of tin' '■ Mary h'.llen " in the year l.SS(i, we say that vessel
would taken so many skins jier boat or ]ier canoe. A vessel is
ill sea from the 1st of .\ngust until the l.'ith of Septi'mber. \N e

40 ilo not say that she will hunt every 'lay. but we the a eraize
hunting days of th " '■ Mary Ellen," ami upon that basis we
coiiclude the hunting days of this vessel, for the time she was
ill the sea. would b:> so many lowering days. It seems to me
iiiipossilile to make a proper caleiilatioii without that factor.

Mr. Lansing: - If you try it without that faetor wuidd you
get at the same .'

Mr. Hodwell : — That would be altogether on a dillereiit b.isis.
Take the whole number of days that the vessel was in the Sea,
as Mr. I'eters iliil. an<l aver.ige that with the number of boats ,iiid

."id her eati'b.aiid you gel a b.isis of eoiaiiirisoii, it is true. Ibit I do
not see bow yon eould maki' up one coinparison by the us(\
111' two ealeulatioiis. If you st.-irt on one basis you must
r,iii-v it through to the eml ; ami if you start on tin' basis that
out of 120 days in the Sea there wouhl be an avi'ivige of o!U
working days, you must earry that calculation on wiieii you
compare the eat'di of iiiiy vessel hunting for a similar period in
the s.ime vear. Otherwise you wouhl get no result which could
he proved in mathematics.

.Mr. Lansing : -1 call yiuir attention to the calculation at

(10 |iaL,n' 24S of our .\rgument, and ask you is not th.at our formula ;'

Mr Hodwell:— 1 inu.st say that I <io not follow that, but 1

Mill waiting with a good de.il of interest to hear Mr, Lansing

explain it, 1 would rather not pass an opinion tmtil I bear

what he ban to sav about it. It seems to me that we have made

i ill

I ill

!i li'

I I

li:.

11 i il

ifli; :l

!:i =

.Hi '■ !

'' ^ ii.

It i

■'Ml-

|P!flfffPP

388

(Mr. Bodwell'd Argument.)

the computation ou a very simple basis, provided tl»e premiseH
are admitted tliat tlie " Mary Ellen" is a representative vessil,
and that the time is to be averajjed on that basis for the catili
of the other schooners in the Sea. If my learned friends can
HUfjjjest any more satisfactory moda wliich would do ub justice,
we are prepared to yield to their better knowledge of figures.
10 Mr. Warren: — We could not give you so much any other

way.

Mr. Bod well : — I submit with all <leference tliat we are not
getting anything more than justice on the calculation we have
made.

Yoiii- Honors, I think I may now relieve you from the labor
of listening to an\'tliing fin-ther from me. With every desire
to economize the time of the Commission, I find I have occupiecj
many hours more than I at first intended. I have to thank
your Honors for the very patient attcntioTi with which jnu

20 have follo'.v'ed my remarks.

Bifore inking my scat I desire to join in the expressions
which have fallen my lemlers who have preceded me. It is a
fact of peculiar signilicaiict' tlmt this old city of Halifax, in the
surrouiulinjjs of which there is so much so remind us of the
triumphs of war, should hiive been chosen ns the place for tlic
filial sitting of a triliunul organized for tl;f> purpose of
concluding an imiicnlile adjuslmeiit of a contn ersy between
(Jrcat Ihitiiin and the United States. It need not be stated to
your lionoi'H that the (juestions which are here presented fur

30 consideration, are of an iniportiuiee whicii renders them worthy
of the jitteiition of those holdiui,' the distinguished olKcos whie'i
you occupy in tlie eomitries which you resjiectively represent.
-Mfiy We not hi pe that the I'esult ol these proceedings, wiiieli
irom their inception iiave lieen so harnionious and well-ortlered,
will foiMi iin iniportiint hind-mark on the road to the peaceful
solution of n.'innnal disputes, — n road which we believe will
eveiitiiallv Ijeconie Llie hiniiway of the nations.

!'-■ .

Commissioners under the Convention of February 8th

1896, between Great Britain and the United States

of America.

(Not fully levisefl.)
Sir Charles Hibbert Tiipper : — May it piciise Your Honors : —

Following in the order siii^jjesteil by the leadin;; couhsl. for
Her Majesty, I propo-^e to deal as brieHy as I can with some
aspects of the case, if for no other reason, for reasons of grati-
tude to your Honors for tin,' patience already shesvn to counsel
in the presentation of Her Majesty's case. Recogniziiifj, as I do,
the sjreat ability and ieaiiiini,' of the distin;4nished leadin<{
counsel for tlie United States Cioverniiienf, "restless liut ready"
in every sense fioin the befjinnini; of chis investigation to the

30 present moment, kiiowiniij, as I do, how ably anil loyally he has
been supported in the work committed in his bands, it is, perhrps,
a siniTular, but happy accident that over the deliberations of this
tribunal there have been apjiointeil such repiesintatives from the
two countries concerned. I ilo not wish to embarrass your
Honors by flattery ; indi td, it would i)e as unneeossury as
improper at my hands on such an occasion ; Imt in connection
with some of the consiilerations that I have to brinif to your
notice, I venture to sui,'i;<'st that it is a happy accident that, in
comiection with what seemed at the outset a mere asse.ssinent of

40 damaii[es by two ("ominissioners learneil in the law, there are
liei'ort! us, holdinj,' at this time, after many months' experience,
the contideiice of all concerned, of counsel for the Uidted States
as well as of counsel for (.beat l^iitain, two men distinguished as
jurists in the two jfreat nations to whieb they beloni,'. Vou have
indeed come here as representatives of no particidar nation, but
as aibitrators on what has developed into an important interna-
tiimal tribunal, ready to hear this case on its merits and decide
it aeeorijini; thereto.

1 refer to the theory of this convention, so to speak, a.s it

,50 was at the outset ; and I do so for the obvious reason that here,
at the end of a lon<j; record, we find ourselves face to face with
many interestiriif and intricate q\iestions of international law
resurrected almost from the very tribunal from which this
tribunal may be said to have sprunj];. In one or two particulars,
as I shall shew before I sit down, some of the self-same (luestions,
ajiparently not Hmilly settled by the Paris Arbitrators, are here
for (inal adjudication. Those questions concern primarily that
fjreat (]uestion which was put in the fore-front by iter Majesty's
counsel in the proceedings at Paris, where (Jreat Britain appeared

CO to vindicate the freedom of the seas. It was not necessary, as
my learned friends have more than once pointed out, that, in the
mere question of jurisdiction, a specific judgment should be
given on each and every one of the points incidentally raised.
Ill connection with that question, the imlependence of the

M' rid

.11=

J!|;

r* 1

ji ■ li

;,.(::

390

(Sir Cliai'lt's H. Tiipper's Argument.)

(litfureiit sovi'it'ifjntit's, tlii' inviolability or sanctitj* of ii national
Ha^, llie iniiniinity of national ships on tliu hi;ili soas — those
• [■.iL'stions were certainly gone into, Imt, if tliere lie anything in
my learned fiiend's contcrition, in a largo part, and touching a
very important aspect of this case, we came from that trilmnal
without a final juilgment. Those (|uestions have lieen raised,

10 those (piestions have heen <lisc\issed, and tho-ie (piestions must ho
settled hy your Honors. It is a suhject that has more than onco
threatened the peaceful and happy relatiotis that for the greater
part f)f the last ninety years at any rate, have existed between
the two countries now concerned.

In our written argument we have refeired to the changes of
front lespecting the seizures that took place in ISSfi and follow-
ing years. They were referred to at Paris for obvious reasons,
and iuive been adverted to in the argument that has been
addressed to ycui by my loarnoil colleagues. [ refer t) change.s

20 of front on (piestions of jurisdiction ; and it was not uidmportant,
nor did the endiient counsel of Paris consider it unimportant to
dwell to some extent on those changes as indicating the acti(jn
taken liy the Fnited States, indicative, too, of the weakness
of the |insition assumed by the Tnited States, their liesitancy,
theii' viicillation, tluir {'onduct in conneetion with the disputes
and in the disctission of the riwtsons upon which those; seizures
were biis<".l. Those incidentally became important, I submit, in
the Consideration of the ipiestion of jurisiliction. On that wo
v(;iitured to submit a ]iiis'i!!g referetict' in the argument for Her

30 Mfijivsty. The Unite(l States counsel ill thi'ir reply, at [lagi; (i, I
think. foun<l fault, — at any rati; pointed nut, and to some extent
correctly, that the lefeieiices given in the liiitish case were not
wliolly accurate. 1 will do no more now than attemi.t generally
to correct the references.

In volume 4 of what we know as the United States Reprint of
the Paris Tiibiinal, pages !)2-10;!, and in volume 13, pages .5-8,
there will be found the reasons u|)on which Her .Majesty's govern-
ment charged before that high tribunal, that there had been
vacillati(jii and changes of front; and I will venture to supple-

40 nient that by calling your Honor.s' attention to facts now beyond
dispute. For instance I will ask your Honors when did
w(; ever understaml, or did the world for the first time hear, that
tlie I'liiteil States had a property interest in or a right of pro-
tecting the fur-seals i:i the Hehring Sea ? Was it before lSS(i,
was it in l.S.S(i, or was it after ISSO > l)id not that become, after
all, the gi-eat (loint upon which the United States case was hung f
And yet had it anything '■o do with the seizures which took place
ill 18.S(i ? Was the subject referu'd to in the solemn judgments
passed uniler which fh'se British ships were condemned, or was

■")0 it an afterthought ? Was it an ini,'eiiious theory, suggested at
iibiiut the time the ai'liilration pniceeiliiigs were begun in 1S!)1
anil !M)2, and tlen rai>eii and ably argued by the I'liitiMJ States
counsel before that arbitration, to find in the end that it was not
only a novel but an unsupportable theory and an unsup;iortable
ground for the action taken or for anj' claim of jurisdiction in
connection with those shi|>s ? And so coming from that which
is an introiliictory statement and an intrcjductory point, we come
to what is more germane to the (juestions with uhicli we have
iii'inediati'ly to deal, and we find again changes of front. We

CO (ii.'d changes of front not only in the histoi}' of this transaction
at idle times to which I have already referred, but we find them
all through the record, from tlie pleadings down to the written
argument, and we are now face to fac(\ I venture to say, with a
very ingenious and very plausible theory, supported by no less a

891

(Sir Charles H. Tiipper's Argument.)

man, no less (listingtiisliod counsel, than our learned friend oppo-
site and his associates, hut it is a (juestion which was never
seriously discussed. Head the diplomatic correspondence lietween
M''. HIaine and Lord Salishury. Read, imleed, ihe corresponderce
hetween Mr. Bayard and Lord Salisbury hefore that; continue
the reading of that eorrespomlence down to the time of the treaty.

10 Head the argument at Paris. Read the written argument put
in liy the United States counsel at Paris You will find no such
argument and no such theory, I suhmit, and as I hope to he ahle
to shew liefore J get through, as you finil in the written argument
of the United State.s counsel here. They did not refine ; they
did not come ilown to the very delicate and dillicult point which
my learned friend's coiuagt; has enahled him to present, hut they
put tlieir case, so far as the ownership of these vessels was con-
cerned, on an entirelj- ditl'erent ground from the techidcal ground.s
that are for the first time sul initted for consideration in the

20 iiresent argument. They juit tliex? grounds upon fraud ; they
put forward a ground that would naturally ap])eal to any self-
respecting nation, and which certainly "vouM at all times appeal
to the gooil faith and integrity of a nation like (iri'at Ih-itain, and
in words, voiced as they were hy alile men in the senate when these
atliiirs were discusseil and these treaties wer(! heing considered ;
and all through that correspondiMice, anterior to the evidetice
hrought out, there was the serious contention that AmiM'ican
citizens, men owing ftill and uuilivided allegiance to the President
of the ITjiited States, or, piu-haps. to he more correct I should sa}',

30 to the United States, had, in defiar.cc,' of their own laws and of
their own nationality, come under the flag of (ireat Britain, and
there, hy fraud and tricki-ry, ol)tained, illegally iiiid iiiiproper'y,
the protection of the J-Jritish flag in order to violate the laws of
their own cotuitry. And I do not hi'.sitati> to e.xpress the helief,
standing, as I am permitted to do, on this occasion and speaking
for the British government, that, as in a similar case to which I
will lafei on refer, when it was hrought to the attention of the
I'liited States authorities, had those facts at any time been proved,
ntid had the government of Gnvat Jhitain been convinced that

40 tlieii' flag had been abused, and had been, so to speak, and in the
langua^re of the hooks, prostituted to that purpose, that they
woidd not be here to claim at your hands protection for those
men, or ask the United States to pay Great Britain anything ' y
way of damages or compensation for men who, under those c' -
einiistances, although technicallj- they might have the right to
the protection of the flag, would not have the right to demand
anil secure that at the hands of any self-respecting government;
and so 1 say the evidence, whatever may be the result in this
ease, has certainly established this ; that there has been no fraud

■)() practised upon the government of (iieat Ihitain, and that in con-
i.i'Ction with the sliipping laws, tlici'e has been the ordinary
every day practice in connection with the history of the ports of
British Cohimltia, as in the case of mnny other potts of thi.s
eonntry, so far as regards the diveis interests and complication.s
that often surroiuid registry.

Foreigners may bo, an<l have been, directly or indirectly
iiitereste(l in a British ship, and foi'eigners have been interested,
directly or indirectly, in voyages of a British ship and the ventures
of a i'ritish ship.

()(> But this idea of frainl, T ventun- to submit again, has entirely
disappeared, and we are face to face with a novel proposition, novel
in every sense of the word, a proposition never advanced in the
diplomatic correspondence, nor, as I venture to sa\% at Paris.

It is put forward bj' the counsel for the United States, and

ii I- ;!'

i! *#/

I'll:

1 '»

■m

■ l!

lifWfMf II'

:rjrr^ ,

nfl2

(Sir Clmrles H. Tupper's ArjjiiinLMit.)

it is to this effect, that, if, in tho ivilministmtion of a British
inuiiicipiil law reiatiiij; tosliippinijf, them is any irii't,'uiarity, con-
nected with citizens of the United States it lies with tlie
United States (lovernnient to claim jurisdiction over thi ' ship
when found on the liit;h seas; or, in other words, as it is put iit
other plnces in the United States ari^nnient, to interfere with

10 that shij), to seize that ship, to take that ship into their own
ports, to tear ofl' the iiinsk of its re^jister and tear down the tlnff
of the British nationality, and to say to (iroat Mritain, should
she complain of the violation of the immunity of her liaj,', of the
disre<;ard for her national certificate, the ship lielonjfed in whole
or in part to a citizen of the United States and under those
circumstances you have no claim at oui' hands,

I inn not exaiji,'eratinj,' the position with which 1 am
nttcniptiii;; to deal when I say to your Honors that a more
dangerous proposition could not he put forwanl, either in the

20 interest of the United States, in the interest of Great Britain, or
in the interest of any shippinj^ power in the world. It is as
dan;.nM-ous, as it is novel.

Tim United States, at Paris, lost on all j^rounds. Tliere were
the claims, first, of jurisdiction over a hirj,'e ex])anse of water,
if not the whole of tht^ eastern side of Hehrini,' Sea : second, the
claim of a ris^ht to protect the fur-seals which were in the haliit
of fre((iientinij; the PriliyloU' Islands; and there was the third
and other claim of the property rii,dit in such seals. On all tln'Ne
coiitentiniis t!ie United States lost; and it would seem under

30 those circinnstances there was nothinj^ left hut to have the
amount of the liahility ascertained for seizuies nuide on such
jj;roiui(ls and to jiay the amount withotit further (piestion.

Our learned friend, tlu; leadinj,' counsel for the United States,
led ine to suppose at Victoria that his mission was simply to
ascertain in the (piicUest j)ossili|e and most satisfactory manner
how much this action on the jiart of the United States involviMl
to the United States treasury, later sui;i:;estiii;,', as we will see,
the question as to whether these ships were Jlritiuli ships. That
settleii, I understooil my learned fiiend's position to lie, that there

40 was nothing left hut to ascertain the amount; hut no one can
read the written arLlunient, the very ahle and ingenious arL,'un!(^iit
presented to this trihtnial liy the United States, without lindiiii,'
there yrave claims asserted in its hehalf, and the United States
counsel j)ro|)oses to ar;;ue, that a very lari,f(! nunilier of these
ships which have always heen treated as British ships, which
were condemned as liritish ships, and referred to all throiifih the
<liploniatic discussion as British ships, and, as 1 shall show, found
at I'aris to he British ships, were not British iiecaiise of the
intei'est in them on the part of United States citizens.

50 Now on the (piestion I piopose to consider, 1 put at the

heyituiinj^ of my ari,'ument so;ne references that have hei^n
already introduced, but which ai'e essential to a clear under-
.standiiifi of thi points I wish to ai'(i;ue. 1 wish to read into the
]{ecord aLjain from the Findinj,'s of fact found hy the Trihunal
at I'aris. 1 take this pariiffraph from the Findinj^s: —

" 'J'hat the several searches and .seizures, whether of .ships or
"of <foods, anil the several arrests of masters and crews, rispec-
" tively mentioned in the schedule to the British case, pp. 1 to
" (iO inclusive, wc^re made by the authority of tht! United States

60 "Government. The (piestions as to the value of the said vessels
"or their contents, or either of them and the (juestion as to
" whether the vessels mentioned in the .schedule to the British
"case, or any of them, were wholly or in part the actual prop-
" erty of citizens of the United States, have been withdrawn

(Sir Charles H. Tapper's Argument.)

" from, and have not been considerml hy tlio tribunal, it b^ing
" understood tiiat it is open to tlie United Sttites to raise tliese
" questions or any of tiiem, if tliey thinl< lit in any future
'■ negotiations as to tiie liability of the United States Oovern-
" ment to ])ay the amounts mentioned in tliu schedule to the
" Uritish case,"
10 Passing over paragraphs 2 and 3 to paragraph 4 of these
findings, 1 read as follows. —

' That the several orders mentioned in the schedule annexed
" hereto and marked ' C,' warning vessels to leave or not to
" entt^r Behring Sea were made by public armeil vessels of the
" United States, the commanders of which had, at the several
" times when they were given, like instructions as mentioned in
" rinding 'S, and that the vessels so warned were engaged in sealing
" or prosecuting voyages for that purpose, and that such action
" was adopted by the tJovernment of the United States."

id The annex " C " to that award is ns follows, and 1 call par-
ticular attention to the distinction between a British vessel and
a vessel owned in part or in whole by a citizen of the United
States, and I submit the proposition more definitely, that a
vessel may be a Uritii^h vessel and justiciable tmly in liritish
courts for acts done on the High Sens and owned in whole or in
part, lis a matter of fiict, by any individual in the world. Annex
" C ' reads as follows :—

" The following table shews the names of the Jiritinh nculing
" i'c,s.sri'.s neized or warned by United States revenue cruisers,

HO ■ 1 StSG- 1 iS!)0, and the appioximate distance from hind when
" seize<l. The distances assigned in the cases of the ' I 'arolemi,'
'■'Thornton' and 'Onward,' are on the authority of United
"States Naval Commaiuler Abbey, (see .'lOth Congress, 2iid
" St^ssion, Senate Kxecutive Documents, No. 1(1(5, pp. '10, 'M), 40).
" The distances assigned in the cases of the ' Anna lieek,' ' \V. F.
" Say ward,' 'Dolphin,' and 'Grace,' are on the aniliority of
" ("uptiiin Shephard, U'niteil Stati's Revenue Marine, (hliie
"Book United States, No. 2, !«!)(), pp. «0-82. See Appendix,
" vol. iii)."

40 A little research will shew that that table was taken from
the British case and is biise<l upon the authority of these United
States orticers, who in their reports, referred to these vessels just as
thev were always referred to up to the time the United States
were beaten on every other ground, as British vessels,

1 think I can shew from the United States argument, that
nothing has occurred in connection with the drafting of a single
phrase in the Claims Convention, umler which your Honors sit,
and that nothing has been done by the Oovernmeiits to warrant
your Honors in condng to any decision which. conflicts with a

•'0 -ingle proposition or |)rinciple of international law. Your
Honors are appealed to, on behalf of the United States i,^ ■■■ell
as on behalf of Her Majesty's Government, to deeide ev m ■ : ' ing
under the (,'laims Convention upon the well known and well
settled principles of international law,

I have referred to the origin of the suggestion that has fouml
its way into those findings, and, as some impoitance 1 think
attaches to that history, 1 wish to deal a little more fully with
the ideas which prevailed in the United States, and the grt)und
upon which the IJnited States ought to take advantage, in some

liO way or at some time, of the fact that their citizens had lieen
defying their laws by a fraudulent use of the British Hag to
protect vessels really owned in the United States We rind first
at Paris under the heading of " damages " an allusion to this
subject, and I take it from some of the language used that it

■Il
''[

;■!
1.1

]

■i

1 !
1 (

! .i
I !'

.'1

II.

II r

i' !l

l;li: a

S94

(Sir Charles H. Tupper's Argiiiiiont.)

mi^'lit have boon put forward, ntid a Hi'iitence of Mr. Plmlps in
tiic argument confirms tluit supposition, l)y way of riMJuction of
(lamajjes ; liy way of extenuation of a wn>nj,'ful aot of tin;
United States, or r)f a tet'iinically wron;,'ful apt ; and fliat it
niif(lit atlect tlie minds of the triliunai nt i'lu-is jiiid tliey licen
presseil to award dama^'^'s ; or, again, liavini,' referenec to (lie
10 wtdi known case of tlie " Virginius," wliicii is nieniioned in tlie
hriefs liotii for tlie Uniteil States ami for <ireat liritain, it may
have Ijii'ti put tliere liy way of appeal to the honor and gooil
faith of (Ireat Ihitain, and the ITnitecj States, having an oppor-
tunity in that regard of liiinging forward their evidence to
prove tliat there liad lieeii a fraudulent resort to our registry hy
way of ap])eal, I say, to the lii)ii()r ami integrity of tin; (Jovern-
inent of (Jrent Britain to press no further claims uiiiler such
circumHtances.

Art^ these extravagant assumptions on my part that the (pies-
2) tions of owiu'rship had reference to fraud and fraud upon tlie
United States :' 1 will give yo\ir Hoix.rs the grounds. Refer-
I'iiig to volume 1."), of the i'roceidings at Paris, I would like to
call your nttrniiou to an (ilisiivatioii made there \<\ Mr. Pliil|vs,
in his argument, fur the United States at |i.'ige ;{. He said :—

" Now, sif, what are the i|Uestions jirnjiosed liy the Treaty for
" decision ? 'I'hej- are chietly two, the one the alternative of the
" other. Tlie first i.s, (and in one view of the ca^^e it is tlie only
" question) whether the Cimadian sealers ainl the renegaile
" Americans who seek thi' piotection of the liriti'h flag in order'
30 " to defy with im|iunity the laws of their country, have a rii;lit
" to which the United States must suhmit, ♦ i Continue tlit;
' destruction in wliieh they have lieeri engaged.

And Mr\ Plieljis, I need not say, was not only a man d guislied
in his profession, liut a nrm who weigheil vei'y ca every-

thing that he said, and on that occasion was not on , lait to

nry knowledge, ahly and thoroughly iristi-ucted. Vov iiistance,
again in that, aiguineiit, speaking of an act that heen inti'odiiod
into Congres.s, extending the prohihition from Hehring Sea over
other parts of tlu^ North Pacilic, so far as regai'ds American
40 citizeii.s. Senator Morgan askeil him olxiut this and he .said : —

"Mr. PIrelps: — It is very r-ecent — just as we were coming
" here it was passed through Congress. And now, in order to
"seal in the Northern Pacific a^ well as in the Hehring Sea it
" will be necessai'v foi' that class of American citizens who want
' to go into that business to gt^t their vessels registered in
" Canaila or- sail irr.'der airother flag." •

And Senator Mcigan, one of the arbitrators named by the
United States, said et tliat stage:— -

" I sirpfiose it woild be as well to say that Congress was not

50 "aware irntil a recent peiio(l that citizens of the United States

" were obstructing the policy of their own country by putliriLt

" their monev niider- trie Hiitisb ting in oi'der to seal on this

" herd."

I have another ref'reiice under that head fr-om Mr. Phelps.
I dwell on it, as I hope your Honors will under'.stand, in order to
show what was the real object of this clause in the convert! ion.
Later on, in 1803, in a letter- to Mr. tiresliain. which is published
in " Executive Documents, Senate No. (i7," olh'd Congi'e.ss, Mr.
Phelps, discussing tiie future in conni'ction with the past, said : —
CO " If, therefore, Canailian sealers should propose to avail them-
" selves of the protection of the Hags of othiir governments to
" prosecute a business in which the subjects of such govcrnuients
" are not engaged, it can mil}' be accomplished by ol)taining
" fraudulent registi-ations of their vessels in those countries, so

(Sir Charles H. T upper's Argument.)

"as to evado the laws of tlieir own. Tliis would involve u con-
'•(livnncp on the part of the n.itioiiN allowini^ such ro({istratioiis,
"which is not to ho pn-Hiuiieil of any sovfri'ii,'n powor."

An ohservntion inmli! \>y His Honor iIiKl^e I'utfiant, a day or
two ajjo, worrants nio in dwellinj; for a nionii-nt on the gravity
of the point that is raised. Mr. Phelps said that the protectinn

10 of a ting, in a case such as alleged, could oidy he ohtained hy a
liaudulent connivance on the |)aitof a frien<lly ])()\ver, and there
is much to support him in that statement. I^ritish counsel was
interrupted hy His Hdnor here, who spoke on that occasion, I
venture to say, not f(ir the I'nited States, hut spoke as a judge
in an International 'I'rihunal, representing neither the United
States nor Oreat Britain, when Ik^ said that he did not consiiler
tlint either juclge in this trihunal was here to listen to charges of
had faith or charges of fraud, I follow this up, and I t'mi)iia-
si/.e, if I can, the ohsurvation liy pointing out that the argument
.III the part iif the United States, under the general language
used in the Conventiofi, anil to which ! will give another con-
slructiiin later on, consistent, as I lielieve, with the law of nations
and the practice of nations, involves at once your Honors
iidjudieating upon theRdiiiinistration of tin- Ihitish shipjiing laws
hut investigating and adjudicating upon the good faith on the
part of th(! Hiitish governuieiit in the administration of these
laws. It involves the very serious cliHrg(> of fra'id and had
fiiith, which, as Judge Putnam considt^red, ami I helieve rightly
eiiiisidered, are e.Ncluded from the coiiHideration of such a trihunal
as this. But I stop now, for at another |)eriod of my argument
I will point out that this is not the only danger, if yon:- Honor.s
sui>ported the extreme contention in this regard put forward on
tilt' part of the United States. It is not the only instance of the
confusion that would occur if, under any excuse, in times of
])euee one nation were permittid on the high seos to administer
till' police over tliii shipping of another nationality. I hove said
that all these impressions in regord to framl in fact had lieen
cleared away hy the evidence. I think I shall he ahle to support
that hy references to tlie record. And so the Uniteii States

■to counsel, as I have already ];erhaps intiiimtsd, has heen ohiiged to
come to clean, clear cut, propositions of international law, wholly
disconnected with the cliarges wliicli gave I'ise to the language
that has been inserted in the Claims Convention respecting this
question of ownership.

May I ask your Honors to remember, for the purposes of my
aigiimeiit, that I approach this cpiestion, treating it as a question
having to do with ships rather than witli men.

I approach this ([uestion of ships as cases siii generis in that
aspect, having no connection with domicile, so called, " double
allegiance " or that class of cases to which my learnt!d friend has
so often referred in his brief, having to do with claims where no
ship was concerned, wheie no laws relating to ships or connuerce
of ilid'erent nationalities were involved, but Ctt.ses which had to
ilo with persons only. I contend that your Honors have to do,
in the consideration of this subject, with such questions as these,
— when you talk of the " Thornton," or the " Warren " ships, or
iho " Carolena " or the ships in which the McLeans were inter-
ested, and using always the language of the books, from which
my learned friends have drawn their authorities : — Of what
navigation did they form a part? What was their home port ?
Whence did they hail ? Of what territory might they be con-
sidered to form a part ? To what sovereign di<l they pertain ?
Also I might suggest to your Honors, that in dealing with
the contention of the United States, there is this interestinrr

.•|0

(iO

1 » i

■ 1 '

■•;. ■ I '

fip!

39C

(Sir Charles H. Tupper's Ar{»uinent.)

question to consider — that wheic.*.-, liie LTnited States claims the
right to forfeit to the United States — to declare to be United
Slates property, any ship where a United States registry 1ms
been obtained by fraud or illegality, and Great Britain has luiil
for sometime in statutes relating to shipping clauses whereby
the moment a foreigner — a United States citizen or the citizen of

10 any other country in the world, obtains a British registry at an
English por^ that that ship ipso fucto bcconas the property of
the Briti-ih Crown, — I beg to submit if their argument be right,
you will have to conclude that these laws conflict with the laws
of nations. If the fact that a United States citizen whs inter-
ested in that property called a ship, gave the United States the
right to take that shi|» on the high seas, the right to look
behind a British registry transaction, surely the position of
(jreat liritain and the position of the United States, so long
un(iUcstioned, are not compatible with the law of nations. I

20 have said tliat the rec(U"d shows that the transactions, whatever
they were and whatever interest Mr. Bechtel,or the McLeans, or
Boseowitz, or Cooper might have had in th«m, were hoiui fidi'
transactions — they were transactions wholly apart from, and dis-
connected with, these interesting questions I'aised by the United
States as to the fur seal fisheries in the Behring Sea. That in
many of these cases, if not in all, American citizens had been for
a long time resident under the Biitish flag, doing business in
their own legitimate waj' with British subjects and without
liearing in mind these ventures at all ; that now and tlien a firm

30 with which one or the other might be connected liought a ship,
without regard to any particular voyage and without regard to
any particular business, and it was only by the accident of that
suddtMi develo|iment of interest in Behring Sea, when, so far as
we know, ttu'i'e had been no claim in connection with the fin'
seals or right to protect that particular free swimming animal —
these sl'.ips, having the British registry, cleared from a JSritish
port, carrying tin; British liag, happened to go into these seas.

This is the sinu and substance (>f the evidence and therefore
the idea of anj' fraudulent atteuqjt upon what was or was under-

40 stood to be the law of the United States has entirelj' disap-
peared.

Now, in regard to the shifting positions, inilicating. as I
think, a weakness on the part of the b'nited States contention
here, — suggesting it as an after thought and giving sujiport to
my assumjilion that it was not the reason for the seizure — tliat
it was not the reason which induceil tlu; government of the
United .States to touch ime single ship Hying the British tlag,
I wish to brietly refer to Volume 3 and one or two other volumes
of the Record at Paris, — -to trace (piickly, the history of that

50 sul)ject.

For instance, in the report published with the United States
case, but not referred to in tlu^ case at all in connection with any
point put f(;rward \ip to liH<)2, liy the United States, there is tlie
first indica'^ion that the ()uestion of ownership was invoKcd
directly or indirectly. At volume ',], page oO."), there is a report
of Mr' Williams <lated October 1N,S<), which says that the
' Thoiiiton " was owned half by Boseowitz, an American citizen
and registered in the name of Captain Warren. Tlien in the
Ignited States counter case Movember liS!)2, ( the date the counter

(iO case was served on the agent of Her .Majesty ), at page ]'M,
volume 1 , it is stateil that the " Thornton " was in War:en's name
but he bad no real interest ami tiiat Boseowitz was the re«l
owiu'r, and Boseowitz is referred to as a citizen of the United
States. The statement is that the '• Thornton " was in Wnrr^n's

•JO

307

(Sir Chailes H. Tapper's Ari,'miient.)

name ^vllO had no real interest, iind that the otlier " Warren "
vessels were registereil in the name of Cooper, who ii!i<i no
interest in tlieni. In vnltiiiio !», pr,<res 217, 22it, of the Uniteil
States arii;unu'nt, it is cliari^'j;'. that the Warren vessels were
owned in fact by Boscowit/, and were registered iii Cooper's name
for the purpose of enahlini,' Hoscowitz and Warren to sail under
the British Hajj;. The question relates, so fur as ownership is
concerned, only to ve:-.sels not to car<:;o and tlie rpiestion of
iialiility occurs oidy where it appears — tiiat a llniird Stalcfi
i-itizen ( not a citizen of .rny particular Siatt; hut a United
States citizen ) was the artiud owner in wdiolt; or in part of the
vessel. I refer, in this connection, to the Record at pai;;e o, for
the purpose of callini; attention to the position of tiie learned
counsel for the Uidted States, even as late as when we opened
this case at Victoria, by way of contrast to the present position.

Mr. Dickinson said to you : —

" Othei questions reserved by the Award of the Tribunal are,
" whether the property claimed to have been seized, and claimed
" to have been owned by Britisl; subjects, was in fact the
" property of British subjects, or, on the other hand, was the

■ jiroperty of Americans — or citizens of tlie l.^nited States —

■ wdio, under cover of the Briti.sh Hag, defied the laws of their

■ country, were caught at it, and their property seized."

In referring to the evidence taken on the trial I have oidy to
call to your Honor's attention tliat in accordance no doubt with
the learned counsel's instructions, and I do not mean to imply
iO (for in his case it was impossible to suppose it), that he was
contined to any particular line, but was invested with the largest
|)ossible discretion ; you v.iil remember the strenuous and pertin-
acious attempt on his part to prove that this theory was right —
that l'>oscowitz was really the owner of the Wari'en vessels, ancl
vou will recollect in that connt^ction thai that coiitetition was
followed up as late as the last sitting at Montreal. For instance,
where the learned counsel, seeing that the defence stood upon
the ground of actual ovvneiship, not registered ownership,
recognizing that all through until the evidence was closml, and
10 the time came to review the evidence and alter his position,
siiid : —

' My friends will coi»tend that he h.-id no half interest in the
■' ship. We shall contend that he had, itml wr propose to show
" it before we finish the case."

.Mr, Dickinson : — Where is that f

Sir ('. H. Tupper : — That is in the Record, but not at Mon-
treal. This was before the evidence bad closed at Victoria, and
al a time when my learned friend was dealing with some of the
pleadings in n suit betweei\ Boscowitz and Warren. Then I
''0 would like to call attention to the Record of what occurred at
Montreal. My learned frienil's position is 'iiscussed at Montreal.
He sail! at page two of what I ndglit c.'.'l the Montreal Record
of the evidence : —

" The evidence as to his citizenship had been put in as soon
" ns found, 1 think three weeks before the close of the session
' at N'ictoria.

1 call attention to that as the counsel's own admission as to
what his case was at that late period of the enquiry as to
oxvnership: —

" It liad been charged in the pleadings, evidence of it had

1 n adduced on cross-i^xandnation six weeks before the close

lit the session. But the final testimony of the admission of
Joseph Hoscowitz under oath, in the proceedings where it was
essential for him to make out his American citizenship, was

(io

I i;

i'Hij ^-

.11

II li

■1. 1^

(Sir Clmrles H. Tupper's Arjjument.)

" not found ivnd piotluced until, I think, three weeks before tiio
" close of the session. This thing was raised in tiie record from
" the beginning of the seal arbitration in Paris in 1S92, and it
" was continued in the record all through down to tlie close of
" the session."

Now, on page 8, skipping what is not material to my point,
and lit the bottom of the page, I find as follows from the learned
counsel'" addr'.>ss : —

" Under liiese circumstances, taking into consideration the
" time at which Joseph Boscowitz was called before the Cou:-
" missioners at Victoria, taking into consideration the time at
" which he should have been called and submitted to examination,
" taking into consideration the fact that the United States had
" rested upon the oath of Joseph Boscowitz in testimony that
" was material and in litigation where he had sworn that he was
" an American citizen."

I do not know that it is necessary for me to do more for my
purpose, which I hope fully to develop as I go on, than to refer
to the facts that I have already adverted to in order to show the
position so far as the " Warren " vessels were concerned, at any
rate up to that date.

Mr. Dickinson : — But at Montreal you remember the argu-
ments had been filed and po.sitions taken on the facts.

Sir C H. Tupper : — The counsel is quite right. Before this
evidence >vas taken the United States had filed an argument
which was significant. I do not know whether my interpreta-
tion of the significance be right, but it was significant for tiie
omission to r;fer to Mr. Boscowitz in any shape or form. I
think that Air. Boscowitz disappeared for the first time since
liS92 from the Record. But here 1 may sa}' that it would
shorten my argument if ni}' learned friend had no objection to
tell me now what is his contention in regard to Boscowitz, that
is to say, whether Boscowitz's connection with the Warren ships
will be relied on by hint in any particular in connection with
the Warren's claims and to their prejudice.

Mr. Dickinson : — Yes, that is wliy we took the testimony at
Montreal.

Sir C. H. Tupper : — So that I will go on to refer to the facts
in connection with Boscowitz, ami I will give the reference at
the end of each statement : —

Bo.scowitz was born at Floss, Bavaria . .page

Attended school there

("ame to the United States when young., n

Lived with his father

Came to Victoria in 18G2

50 Dill not know that his father had been

naturalized ■■

Was never naturalized as an American. . •■

Never applied for it ..

Never took the oath

Never vt)teil in the United States m

Married in 1 Hd!)

Began dealings with Warren, IHfiG to

IMOK

Supplied him with funds and continued
60 to supply him till 1.S77, when Bosco-
witz left for Great Firitain

Nothing to do with Thornton "

In liSSi renewed dealing.'' with Warren.. ••
Advanced money to Warren

1!)()4
1970
19(i.-)
1971
196(i

1980
19(i8
1978
1978
1978
19f)7

1970

1972
1951
1972
1937

399
(Sir Charles H. Tapper's Arfjuiuent.)

And now I will trouble your Honors with a letter that was
put in evidence from Boscowitz to Warren in 1884, it is at page
1967 of the llecon).

Mr. Dickinson : — Do not misunderstand me in my reply to
]() tliecolloquy just had. The relation of Boscowitz in the matter
will bo used in no manner to detract from the ownership of
Cooper. It will be used, and the testimony was taken in that
regard, in Montreal, to show a probable reason for putting tho
ownership in Cooper. That is what we will maintain from the
beginning to the end, as stated in the brief — that Cooper is the
owner as to the United States and (Jreat Britain.

Sir C. H. Tuppei': — May I ask my learned friend whether
Boscowifz was an American citizen.

Mr. Dickinson: — I do not know. If you can find out from
•2(1 the Record I wi>h you would state.

Sir C. H. Tapper : — Your Honors will see how difficult my
learned friend's position has been. Here he is with the Record
to which I have referred, and unable — certainly from his written
argument there i.s a confessed inability — and now I understand
that he admits that he is unable to tell me what nationality
Ho.scowitz has a right to claiu).

Mr. Dickinson : — Can you ? I speak from the Uacord.

Sir C. H. Tupper : — He certainly never was a citizen of the
I'nited States.
;j(l Mr. Dickinson : — On the other hand, you will not contend
that Boscowitz, at the time he registered in Cooper's name, couhf
have registered in his own name

Sir C. H. Tupper : — We never contended that. We asserted
that all his rights, as that of other citizens, were perfectly safe
under the British Hag.

Mr. Dickinson : — But he did not havo a register, and the
(|uestion is whether he could have had a register. You would
not contend that he couM.

Sir C. H. Tupper : — No, we do not claim for a moment that

40 as a Bavarian he liad a right to regi'^ter, hut that he had the

right to have a mortgage my learn< rieml will not deny. I do

not understand my learned friend l^ kmin that he had the right

to be mortgagee of a British ship.

This letter is of some importance as showing the position of
Hoscowitz ((uoad these Warren's ships — that he was for a long
time putting his money in the hands of the owner of these
vessels and taking security. These vess-ds were only part of a
concern in which the money of Boscowitz went. There were
other vessels that never went to Behring Sea, and there was
.")0 property situate in British C'olumbia, not connected at all with
shipping, that formed security which Boscowitz obtained for the
advances he made. The letter is dated the 5th of March and is
read into the Record at page 1974.

At half past four o'clock tlie Commissioners rose.

!::i

Mlli

^!-\1w^ ■■-

.'l:

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4'h

:' ).

!«•'

'■Ai;fi-,|

W^,:

Commissioners under the Convention of February 8th,

1806, between Great Britain and the United

States of America.

Legislative Council Chamber, Provincial Building,
10 At Halifax, N. S., September 8th. 1897.

The Conimissioneis took their seats at ten o'clock, a. m.
Sir Chas. Hibbert Tupper, continuing : —
The letter of Boscowitz was datoil the .ith of March, 188:5,
and written from 11 Lansdowne Place, Brighton, En^jland, to
Captain J. D. Warren. That letter which is to be found at page
1074 of the record, reads as follows : —

"11 Lansdowne Place, Brighton,
"oth March, 1883.
" Friend Warren : — Your letter of the 1st February came to
20 " hand this morning, and I at once cabled you 40 as follows :
" ' Will advance twenty thousand dollars (.^20,000) ; caution ;

"await letter.'

♦ « # »

" You cannot hope to find any one to loan you money unless
"you have the security. I an) (juite willing to advance you the
" 820,000 more on this condition : In addition you transfer all
"your interests to me in the following property : —

" Steamer ' Sardonyx ' 815,000

" Steamer ' Pilot ' 1(5,000

SO " Steamer ' Gertrude ' 2,.i00

" Steamer ' Beaver ' 1,000

" Steamer ' Grappler ' 1 ,000

" Schooner ' Bonanza ' 2,000

Total 838,.500

"Then you are to give me a mortgage on the following prop-
"erty: .Steam schooner ' Grace,' schooner 'Barbara Bo.scowitz,'
"schooners 'Dolphin,' 'Thornton,' 'Anna Beck,' real estate in
" Victoria, on the west coast. Five Stations, Salmon Canneries,

40 " \aas River, X. W. C, 8.50,000 ; transfer of life policies signed
" by Mrs. W,, 82,000 ; transfer of Lodge certiKcate signed by Mrs;.
" Warren.

" .My reason for asking for this security is, I do not consider
" the schooners enough in case anything should happen to you.
" I could not gi) out uikI run theui, and if they should be sold at
"auction they would not bring half what they cost. Besides, I
"don't think you are the man to own such riskv and dangerous
" property, and it i^ my intention to otter all these interests for
"sale l)y jirivate ti'iidiT or public auction. This is the only way

50 '■ to free yourself fioiii all the steamboat interests. I wish you
"to ri'turn again to your legitimate business as fur trader.

"The time is not far oH' when your schooners will be worth
"all your interests in the steamer-*, and 1 wish yt)u to trade on
" the west and niu'thwest coast for mink, marten and other furs.
"The prospect is very good for a change of the natural furs
"coming into fashion again. Seal will be used oidy as a garment
'■ for use, not fashionable, as it has been, and I wish your entire
" attention in Htting out your schooners. I think I can sell
" thosi interests better this distanct; from here than you and I

CO " would advise your friends, unle.ss they are steamboat men, to

"sellout. However, that is their business.

• • • •

" I have written to C. K. Fooley, of Davie ii Pooley, to draw
" up the mortgage and make the transfer of the steamers, real

401

(Sir Cliarles H. Tapper's Argument.)

' ( -tate, cannery, life policy, ami the certificate of the Lodge A.
' (). U. VV. Mr-i. Warren will have to sign the last two with you.

* • « »

'■ Perhaps yon think me hard in asking for all your property
" Imt I think it safer in my hands than in yours. It is my

10 " intention to otter the steamers for sale by private tender, and,
" il' not sold that way, to advertise them and have them sold by
auction. You have nothing to say in the matter, and whenever
you have any spare money place it on interest ; it will pay you
" lietter and is much safer than steamers. You can have the
" money for one or two years interest at five per cent, per annum.
" You have the right to pay the entire amount at any time, or
"any portion and if we continue in business togetlier any profits
'• will be placed to your cretlit against the mortgage. If you
"don't wish to transfer the steamers I hope you will then secure

•21) " me by mortgage for the twenty-four thousand dollars now due
" me, with interest. You will give me the real estate in Victoria,
" life policy. Lodge certificate, and a mortgage on the ' Grace ' and
"'Dolphin.' You may have this money for two years at the
" same rate of interest. I cannot tell you how bad I feel to ,see
"your money invested in such foolish property, besides the large
"amount of interest you must have paid. I almost think if you
■' could give it away it would be better for you. I do not care
" iiow much money they have made or are going to make. I do
" not want you to have any steamers.

* » * »

" I want you to make a separate mortgage for ten thousand
" dollars (!?1C,000) for three months against any money you may
" liiive drawn for the sealing season.

'■ Yours trulv,

"J. BOSCOWITZ."

In connection with that letter I might read the following
I'vidence given by Bo.scowitz, as it occurs on page 1975, of the
record : —

' Q. Mr. Peters — At that time on the 5th of March, were
40 " yoLi in London i A. Yes, .sir.

" Q. In pursuance of that letter did you make the advances ?
" A. Yes, sir, I did.

" Q. While you were in London ? A. Yes.

" (}. And that was the original arrangement ? A. Yes.

" i). And that went on until Captain Warren had to assign ?
".\. Yes.

■ Q. Do you remember when that was ? A. In 1885.

" Q. Were you in \'ictoria or in England at that time '
' A. I was here.
.")0 ■' Q. You came out here when ? A. I came out in 1884.

" (^>. I believe you obtained a judgment against Captain
■ Warren ? A. I did.

' Q. And the sum of the judgment was I believe !?G5,000 ?
A. Very near that.

'(^>. And this was the result of your transactions up to that
' puriod ? A. Yes.

" Q. You made further advances ? A. Yes, sir.

' Q. Mr. Warren having assigned Mr. Griffith was the
' assignee ? A. Yes, sir.
(iO " {}. The position of affairs then was that Griffith was the
' nominal owner of the vessels and you had the mortgages ? A.
" Yes, sir.

" Q. Did you cause the vessels to be sold under your
" niurtgages ? A. I did.

,, ■ <■ '. :f!. J

i(-.

.■f^

' ft-'

,; !•

iSH

402

(Sir Cliarli'H H. Tupper's Aiffunieiit.)

" Q, And uniler that sale they were tmnsferred to Mi.
" Cooper, I believe f A. Yes, sir.

" Q. Mr. Warren's brother-in-law ^ A. Yes,

" Q. What was the object of that i A. The object of it
" was to jjive Captain Warren the control of the vessels, and in;
" had always had the control.

" Q. T)id yon take mortgages on the vessel from Mr. Coopor f
10 " A. I did.

" Q. These are the mort(;ages I believe i A. Yes, sir.

" Q. There were just three were there ;' A. There were
" more than tliat originally. There were Hve.

" Q. Hut you took mortgages on the Anna Heck, tln'
" Dolpiiin and the Grace :' A. Yes, and the ' Sayward.' "

In connection with that I refer to the registers in evidence.
For instance in the " Thornton," on the registry there is eiitori'il
the first of December 1S83, a mortgage from Warren to Hns-
oowitz for i?4.,000. On the " Grace " May Jkd. 1883 for $8,000 ;
•20 and again on the Grace December 188.S for ^•l',000. On the
Dolphin the date is the same as that on the Grace, and the smuk'
amount of the mortgage, in favor of Hoscowitz; on the Anna
Heck the mortgage to Hoscowitz was on the 14th August, 1SS4,
and was for SC.OOO ; in the case of the Sayward the mortgage
was October llUh 1884. It will not be disputed that at that
time there was no suggestion from Hoscowitz to Warren or from
Warren to Hoscowitz that these vessels were to be useil in
connection w ith the fur seal fisheries in Hehring Sea. I ret'er
also to the evidence on the Record page 1108, simply to cm 11
30 your honors attention to the fact, that, although Hoscowitz
wished to hold the mortgage on the Sayward, he was obliged to
release it. The money was formally tendered to him after the
the .seizure it is true ; but nevertheless in connection with that,
and as some corroborative evidence of the explanation given as
to this being a bona fide mortgage transaction, lioscowitz desir-
ing to hold that mortgage and not to release it and to have
further connection with the Sayward, was compelled to roloiise
it when the money was legally and formally tendered to him.

(.timing to the end of references to Hoscowitz only, I would
40 like to read the section of the United State.^ Statnte.s, and i|uoto
the authorities in connection with some of the ([uestions which
have come up about the naturalization of Mr. Boscowitz's father,
and about his nationality. Section 2172 of the United States
Revised Statutes, reads as follows : —

"The children of persons who have been duly naturalized
'■ under any law of the U. S. or who previous to the passing of
"any law on that subject by the government of the U. S. may
" have become citizens of any one of the States under the laws
" thereof, being unrler the age of 21 years at the time of the
,50 " naturaliziition of their parents, shall hn"e dwelling in the U. S.
" to be considered citizens thereof."

Mr. Hoscowitz, born October l.^th, 183."), woulil be 21 years
of age on October 1.5tl), 185(!; so that to come within the pro-
visions of the foregoing statute — should my learned friends be
successful in their efforts to show that there was a compliance
with that — Aaron Hoscowitz the father of Joseph Ho.scowitz must
have been naturalized before October 1. 'it h, 1850. I submit your
Honors that the evidence in connection with the naturalization
(pf Aaron Hossowitz has entirely failed. It has simply been put
(iO in evidence that Aaron Hoscowitz had filed, in the State of Wis-
consin, a declaration of intention to become a citizen )f the United
States.

The ('ommissi(jner on the part of the United States:— What
is the flate of that declaration ^

403

(Sir Charles H. Tapper's Arfruinent.)

Sir Charles Hibbert Tupper : — I will tell your Honoi in a
moment.

Mr. Dickinson : — 1852.

Sir Charles Hibbert Tupper : — My learned friend says the date
is 1852. Under the law of that State, which is peculiar I believe
to some 7 or 8 States of the Union only, by filing a declaration
\Q of intention, an individual obtains nearly all the political riffhts
appertaining to nationality exercisable in the State where that
declaration is filed. For instance in the State of Wisconsin, by
filing that declaration, I believe an alien could hold and transmit
property and could vote at most of the political elections.

Mr. Dickifison : — In Wisconsin an alien could anyway, with-
out regard to his declaration of intention, and that is true of any
other State, except one.

Sir (Miarles Hibbert Tupper : — The organic law oi Wisconsin,
adopted the 20th of April, 182C, as the Constitution of the State,
20 P'^B*' ^^' Volume I, of the Annotated Statutes of Wisconsin, has
reference to this question. Page 47 sets out those who are quali-
fied to vote, including those who have <leclared their intention to
become citizens. In that connection I would like to call your
Honors attention to the Treaty between the United States and
Havaria which concerns naturalization. That treaty was ratified
in 18(i8 — and article one contains this clause — "Citizens of
" Bavaria who have become or shall become naturalized citizens
"of the United States of America, and shall have resided unin-
" terruptedly within the United States for five years shall be held
;jQ " by Bavaria to be American citizens, and sluill lie treated as such. '

Then there is the reciprocal clause which I need not read to
your Honors. At the end of Article I, there is the following: —

" A declaiation of intention to become a citizen of the one or
"the other country has not for either party the efiect of mitur-
" alization," So that under the law and according to the express
treaty Aaron Boscowitz the father, never became a citizen of
the United States.

ik'fore passing from that point I will refer your Honors to a
case in the Wisconsin Reports, re Conway, 17 Wisconsin, p. .')26,
4Q where it is held that the children of aliens born and endgniting
in'.o the State during minorit}' d.> not become citizens until the full
naturalization of the father. I sul)mit, your Honors, that having
faile(l utterij' in their contention as to iioscowitz, my learned
friends occupy as hopeless a position in cotinection with Cooper.

The present Argunn^nt filed by the United States refers to
Cooper as a civil citizen of the United States; and what-
ever that argument may amoimt to in the end, and no matter
how strongly niy learned friends may press the various points in
their brief touching Cooper, it is absolutely impossible for my
5Q learned friend, Mr. Dickinson, to bring Cooper within the langungo
of th(! treaty in regard to this (juestion of ownership. That refers
to a case of an actual owner, a case where the actual owner is a
citizen of the United States — not a citizen of any one particular
State — and there are, as your Honors well know, these distinctions
obtaining to-day in the United States, where a man may be a
citizen of one State and yet not a citizen of the United States.

The Claims Convention contemplates no character such as
Mr. Cooper is said to possess ; as for instance, of civil citizenship.
As we will see Cooper is referred to in manj- character-! in the
(jQ course of the written argument of the United States. In con-
nection with Cooper I call your attention again to the allegation
in the counter case filed at Paris, in 1802, where the charge was
that Joseph Boscowitz was a citizen of the United States, that
Joseph Boscowitz was saiil to be the real owner and the counter
case of the United States uses this lansiuasie : —

. f !

ii i

i ' '

( ': .
■ J^ i'

i '

1:.,;. tli

;!|(!l|;f'' '

i> '!l

404.

(Sir Chailes H. Tupper's Arijumeiit.)

" Ami that Thomas H. Cooper, in whose name the clahiis
" growin)» out of tlio seizures of tlie schooner ' W. P. Sayward '
" and of tlie steam Mcliooners Grace,' 'J)o!phin'anil 'Anna Beck' are
" iiiadi', had in fact no interest therein and Invs in no respect heen
" dainnitied or sustained loss by the seizures thereof, eitlier as
" owner of iliese seliooners and steam schooners, their outfits, or
10 " tiieir catches, the same being mortgaged to their full vabie to
"Joseph Boscowitz, above referred to, pnd iiaving been conveyed
" to Thomas H. Cooper, without consideration, for the sole pur-
" pose of giving them a registry as British vessels."

Mr. Blodgett, one of the counsel for the United States, in his
written argument made use of this language : " Cooper, a
" Britisli subject residing in San Francisco"

We have tlien this e.xtraordiiiary position, that whereas the
contention of the United States, on practically the same evidence
in connection with the same transactions, charged at Pariv,
20 Cooper as liaving no interest as owner, yet the argument pre-
sented to your Honors by the counsel for the United States on
this occasion charges him as set forth at page 52 of their Brief
with being " the legal owner of those vessels." Tiie United
States Argument at Paris page 218, volume 9, charged (hooper
with b(!ing "a British subject residing at San Francisco," and
tiuit is followed by the argument presented by the same govern-
ment at Halit'a.^ (page ")2 of their argument) charging Cooper
witli being an American citizen. In this argument at Halifax it
will perhaps not be without interest to refer to the different

30 characters given to Mr. Cooper. In the Halifax argument of the
I'niteil States we find at page 14 that tliis man is described to
be "a foreigner perinanentlj- djuiiciled in the United States like
the claimant Cooper," at page 40 Cooper is described as " an
original subject of Creat Britain, still owing that nation qualified
allegiance ; " at page 41 " the domicil of Cooper as owner is
conclu.sively against him; " at page 45 "that he i.s a citizen by
doniieil ;" at page 4() that he is " a domiciled foreigner; " at page
4.S as " stranger commorant ;" at page 50 " a British subject by
reason of allegiance don)iciled in tlie United States;" at page 52

40 " the legal owner of these vessels and an American citizen ; " at
page 80 it is charged that " the entire ownership of the ' Grace,'
'Dolphin' and the 'Sayward' was in Thomas H. Cooper;" at
page 153 that " the sole owner of the 'Sayward' was a civil
citizen of the United States;" at page 1()0 Cooper is again
referred to as a British subject ; and at page JJ82 it is again
stated that " the ' Sayward ' was owned by Cooper a civil citizen
of the United States."

[ wish also to refer to the charter in connection with the
Warren ves.sels in iSSO, pages !)4;{ and 1185 of the Record. I

50 shall not do more than give that reference to the charter from
(Jriftiths, tire assignee, to Warren. I will also read from the
decree that was put in evidence at Victoria :

" His Lordship doth find that sometime before the month of
" March, 1880, the schooners ' Grace,' ' Dolphin,' 'Thornton,' half
"of the ' W. P. Sayward,' thL ' Anna Beck' and 'Rustler,' were
'■ the property of the said James Douglas Warren, subject to
"certain mortgages thereon in favor of the plaintitl', Joseph
" Boscowitz, ami that the said schooners (subject to the saiil
" mortgages) having become the property of John GrifHths by

00 " virtue of an assignment for the benefit of creditors, dated 18th
" day of Si'ptember, A. D., 188.), were chartered from the said
"John GrifHths by the plaintiff for the par[)ose of sealing, were
" fitteil out by the plainfiti'for the purpose of a sealing a<lventure
" and were by the plaintiff" sent to sea uniler the management of
" the said James Douglas Warren, to whom the said Joseph

405

(Sir Charles H. Tapper's Argument.)

" Boscowitz promised that, in conslrleration of the care and
" attention of the said James Douglas Warren to the concerns of
" the plaintiff in respetit of the said sealintj adventure that he,
" the said plaintiff, would give to the said James Douglas Warren
" an amount equal to one-half of the net profits of the adventure.

'That the schooner 'Thornton' was, during the sealing
"season of 188C, seized l»y t!ie Government of the Uniteil States
" for an alleged infraction of International law, together with the
" cargo of sealskins, hut that the other schooners returned in
" safety, ami the said Joseph Boscowitz, in pursuance of his
" promise, allowed the saitl James Douglas Warren in account an
"amount equal to one-half of the proHts of the adventure.

■' And this Court doth further Hnd that the remaining vessels,
" that is to say, the ' Grace,' ' Dolphin,' • Anna Beck ' and the one-
" half of the ' W. P. Say ward,' wore offered for sale and were sold
" by the said Joseph Boscowitz in the month of October, 1886,
" under the power of sale in the mortgages to the Defendant,
" Thomas Henry Cooper, who purchased them ns a Trustee for
" the said defendant, James Douglas Warren, but had no beneficial
" interest iit the said vessels himself, and that the said Joseph
" Boscowitz chartered or hired the said ves.sels, and also the
" schooner ' Mary Taylor,' from the said Thomas Henry Cooper, and
" in the year 1887 sent them upon a sealing voyage in charge of the
" defendant, James Douglas Warren, and agreed to give to the
" said James Douglas Warren, in consideration of his services in
" the premises, an amount equal to one-half of the net profits of
"the adventure; and that the vessels 'Grace,' ' Dol[)hin ' and
"' Anna Beck,' and ' W. P. Say ward,' were in that .«ame year,
" 1HS7, seized by the United States authorities, together with the
"cargoes of seals on board, but the said ' Mary Taylor ' returned
" home with a cargo of seals which were received and sold by the
" said Joseph Boscowitz."

I now read from the United States argument the extract from
the evidence on page lUi) of that argument.

Warren, testified relative to Cgoper's residence, (Record
0-iO, 94.1), as follows:—

" Q. He is an American citizen, is ho not ? A. No.

" Q. Lives in San Francisco ? A. Lives in San Francisco.

",Q. How long has Cooper lived in San Francisco ? A. Well,
" he lias lived there a number of years.

" Q. He has lived there about twenty-five yer*rs, 'las he not ?
" A. I think likely.

" Q. Now, in regard to Mr. Cooper, he is your brother-in-
" law, is he not ? A. Ves.

" Q. He has been living in San Francisco ? A. Yes.

' Q. You produced the other tlay a power of attorney of
' T. H. Cooper. A similiar question was asked in the Thornton,
" but not in these cases. Wheie does Cooper live ? A. San
" Francisco.

" Q. How long has he lived there to your knowledj'e ?
" He is your brother-in-law, is he not ? A. Yes. I e.xpecfc it
" must bo getting close oi thirty years.

And at page 3 of the British reply it is .said : —

" In connection with the observations directed against Thomas
' H. Cooper, in addition to what has been already said bearing
' on the point, (ante, p. 2), attention .should be calletl to the fact
'that the party beneficially interested was C.ipt. J. D. Warren,
' who meely used Cooper's name for the purpose of holding the
' title to .lis .schooners. Cooper's evidence on this point, (11., p.
■ 18:i7, line 38), is as follows :—

" Q. Your name appears in connection with these ships as
' registered owiier ! A. Yes.

f k'

'■>*

Hiji'

II li

.ir-\'

400

(Sii ClmrleH H. Tupj)ei's Argument.)

" Q. Had you any real interest, or whonj difl you represtnt
" in these transactions > A. Captain Warren.

" Q. You allowwl your name to lie used in connection with
" the reffistered ownersiiip I A. Yes.

" Q. Hut you did that in the interest of (^aptain Warren '
" A. Yes.

10 " Q. And at liis request ? A. Y'es.

"(). I suppose you Iviiow next to notliinir aliout any of the
" questions concernin;.; tliese rey;isters ? A. Nothinj,'."
Cross-examination hy Mr. Dickinson: —

"Q. Y'ou did not l\now uiucii ahont tlie .sliips, did you Mi,
" Cooper ? A. No, sii'.

" Q. And liardly enquired why he wanted you to take tiu'
" title ill your name ? A. Nevei' hud luiv interest.

" Q. Dill not know except that Captain Warren asked voii
"to? A. That is all.

20 "Q. You did not know whether Captain Warren wanted

" 3'ou to take the title to hold for him, or to hold for sonieoin'
" else, did you :' A. Ho wanted it for him.ielf."

Then on the point that lie held for I'ajitain Warren, there is
a reference at (la^e it40 of the record which 1 wisli your Honor.-,
to note, and also a reference at paj^" !t7') of the Record. [ wish
to add to this part of my arj^iuiient that we have in connection
with Coojier the fact that he, a Biitisli suliject residinij;, or domi-
ciled, if you like, at San Francisco, went, as he had a rif^lit to do,
to a British port to olitain the registry of vessels in liis own name.

30 In the Cniti'd States brief, Cooper's domicil is said to hefatnl

in connection with the ships which were reijistiTed in his nmiic,
I shall do my hest to avoid travelliriL'' o'ver the ;^round so well
occupied hy the learned counsel with whom I nm as.sociated, liiit
in connection with that question of domicil and the reference to
it, at paj^e il of the lJnite<l States Ari^ument, I will stoj) to ask :
Why should there lie any fatality connected with the domicil that
Cooper undouhtedly enjoyed in the State of California ? It was
suf^gested that because he was domiciled there, that he cannot
invoke the aid or a.ssistance of the countr)- of his orii,'in and the

40 country to wdiich it cannit he denied he still owes allegiance.
My learned friemls, it seiiiis to me, forget or overlook the fact,
that we are not dcalin<; here with ("ooper: — for that matter I
suliiiiit we are not dealii'j,' with individuals except the individuals
,so far as connected wi'ii the ship either in the navifjiitioii of it
or the interests j^rowiiij; out of it. I suhmit that in the list "f
claims referred, the ships are properly and jiointedly mentioneil,
anil tiiat the law in regard to domicil, complicateil ami ditliinih
thoui^h it may lie, has no place projierly in the determination of
the action of the United States quoad the.se ships. I submit

50 that the relations and diH'ereiit connections between the ships
and citizens or subjects of any country whatever they may be,
by way of ships security or by wa}- of direct interest, or by way
of any domestic concern, liave nothintf to do with the question
of the liability of the United States and the amount of clainai,'e.s
the United States should pay.

As it seems to me the (piestion is : was the action of the
United States connected with a British Ship on the High Sens
in a time of peace ; was the action of the United States in
connection with that British ship according to the law of nations (

60 If we are to ascertain the damages, then the question is : what
was done with the ship, what was the value of the ship, and what
the value of the interests affected by that improper treatment of
the ship ? I shall endeavor to make that plain, but let me first
ask this question : What law of the United States iJid Cooper

407

(Sir Clmrles H. Tupper's Ar<,'uiiient.)

break ? What law of the United States did Coojier offend ?
Were wo arguing tliis (|ue.stioii before tlie <iecision at Paris tliero
niiglit be dirticuity in utis\verinj» that (juestion, hut argning this
question after tlio award, after the interpretation lias been put
upon that award liy the courts of the Uniteil States, I tliiiilc I
can asli, and it will be ditticult for tlie otlier side satisfactorily

10 to answer ; what law did (,'ooper violate? If I can nuike out,
as I think I can, that the ships with which be was connected
were British, and thnt the ships registered in his name belonged
to British eoinnierce, and were ships of Hiitish natioiudity,
what law of the United States then woulil Cooper viidato iiy
going on the British registry ? Is it against the law of the
United States, for instance, for an American citizen himself to
be the owner of a foreign ship ? In the language of Judge
Hopkinson in Fox vs. Ladonia, (Jrabbe, p. ilCi: " Is there any-
' thing unlawful in an Amtu-ican citizen beeoudng part owner of

•20 " a foreign ship ? Certainly not." In this case as has been
already forcibly put to your Honors, it is not the case of an Ameri-
can citizen, but it is the ca><e of a British subject domiciled in a
State of the Union, owing a certain duty it is true to thecountrj*
in which he is domiciled, but having the right in the country,
from a sovereign to whom he has never changed his allegiance,
having the right there, as has been shown, according to the
niiiiucipal laws of his own country, to bo the registered owner of
a British shi|).

1 submit moreover in connection with the Claims Convention,

30 under the treaty, and under the circumstances of the case, it
cannot successfully be said that (hooper was thu actual owner.
The actual ownership of these ships were certaiidy not in Cooper
whose name was used fur the puipose mentioned by all the
parties to the transaction. Neither was he a citizen of the
United States.

I refer to pages (il and ()2 of the Uiuted States argument,
to show what I think is on the whole well put in connection
with the principle ncmu potent exiierc, putrldin, as follows : —
"Now, until the joint resolution of (Congress ot the United

40 " States, in liS68, declaring the right of expatriation, which was
"shortly followed by the treaty between Creat Britain and the
" United States of lh70, providing for naturalization, it was held
" by both (Jreat P>ritain and the Uiuted States that a citizen
" could not throw oti' his original allegiance.

" In the United States, the inclination of the judiciarj' has been
" to follow the rule of the Knglish common law, ami to hold that
" neither a native or naturalized citizen can throw oH' bis
" allegiance withi;ut the consent of Ins State. (Kent's Com.,
"241); Story on Constitution III, 3, Note I; Wharton's State

•id "Trials G54 ; Opinions of Attorney Generals, Vol. VIII, 157.)
" The doctrine of original allegiance remains the same in both
" countrie.s in every respect except in the case of actual and
" formal naturalization.

Lord Chief Justice'Cockburn, in his " Nationality " (pages
214-21")), after a fidl review of the whole subject, says : That
' under a sound system of international law such a thing as a
"double nationality should not be suttered to exist ; " and that
nothing short of actual naturalization carried out by solemn
and formal act as the law of the particular country may

60 require will have the ati'ect to divest the subject of his former
allegiance ; " that renunciation of former allegiance or rights
" will not sutHce to give the character of citizen or subject of the
" country of adoption, which can be ac(|uired only by the act of
"naturalization itself; and that the effect of the naturalization
" is prospective only and has no retroactive operation."

; '•:;'

1 1

l|!rqir^r'

40S

(Sir v^'harlt's H. Tiipper's Arj^umont.)

I liavi' a furtlicr ict'cri'iicc! to Cock hum on tliis point wlicvc
lie (Iciils with till' law of Kii^'liind iiinl tin- l^niti'ij Stuffs, (p O;},
" Cocklmrn on Niitioniility, " Ktijjiisli mlition IMH!).) " it varies
"in this ri'spfct witli tip' laws of ail oivilizi'il nations; tho law
'' of Knylanii foliowi-il ns will presently l>e atteinpteil to lie shown
" tiy that in tlie United States, asserts as an uni|Uestionalil(^ rule,
10 " that no Britisli suhject can pnt off his country or the natnral
" alle^'iance he owes to the sovereitjn, even with the assent of
" the soverei;,'!!. In short, that natural allegiance cannot lie (jot
" rid of liy anything,' else than an Act of the Ijeifishitnri', of which
" it is lii'iieved no instance has occurrt'd. " He cites the opiniotis
of such ;,'reat le;,'al authorities as .ludjje Stoiy, Mr. ('aieliCiisli

HI'' am

I Ch

Kent. I'resiileiit t'leveland in his uiessa-'e

to Coiiiires.s in ISS.'i, deals with the suhject freciuently averted
to hy I'residents of the United States in coiuiection with the
luisatisfnctory conditiin of the United States laws on that
20 Milijcct — anil the fact is at present, that, otie enjoyinj,' the ri;,dits
of a citizen and heiiu,' a citizen of ii State may not he a citizen
of the United States, and inarkin;^ the distinction so clearly luiil
pointedly as to apply to the case I am dealinj; with. 1 shall

i;ivc your honors that reference later on.
There is an interestini' reference in tl

le case o

f M

anenstern

v. L^-mnn in the Uniteil States Reports. The facts are lirietly
put in the jiid;rment. It is said :

'The pliiintitl's in error are all citizens of Switzerland,
" the deceased was also a citizen of that country and removed to
HO " Virjjinia, where he lived and acijuiied a property to which this
controversy r' lates and where he died. The validity of his
" ■ i/.'d

e is in (piestion. There is no pioof that he denational

titl

himself or ceased to he iicitizen or suliject of Switzerland. Hi

riL'iiml citizen.shii) is therefore iiresumed to have 1

I n cd'i-

tinued. AccordiiiL; to the record, his doiiiieil not his cilizensh.i/
was chan;,'ed. 'J"he testimony of the heirship of the plaintilf's
in error is entirely satisfactory, etc."
I point to that as an aiithoritv in the line of the others

mentioned, which distin<rnishes lietwi

the case of donucil ain

40 citizenship, and I sulmiit that in tliis case W(! are dealinif not

ith ill

micd wdieii the fpiestion ot ownership comes up,

hut

are dealing; with United States citizerislii|i. I'residi'Ut (Cleveland,
I said, drew attiMitinti to the distinction lietween a citizen nf a
State of the Union and a citizen of the United States. I lielieve
thi.s was Ids tir.sfc annual messa;je, and no douht my learned
friend, tin; ieadin;.; counsel for the United States, ma\' have
advised in connection with this interestinir suhject when he was
one of the advisiirs of I'resiik'iit Cleveland that yi'ar. I reail

his f

list annual mesvai'e ni

1 ss-

follows : —

The liLrhts which sprinij from domicile in the United States,
eciallv when coupled with a. decliiration of intention to

especially when coii|
" hecome a citizen, are worthy of deiinition hy statute. The
'• stran;jer coniiii;,' hitliei' with intent to rpiiiain, estaMishini,' his
" residence in our midst, contrihutiny; to the L;cneral welfare, and
' hy his voluntary act declarini,' his piirjiosc to as.sume the responsi-
" hilities of citizenship, therehy gains an inchoate status which
" legislation may properly define. The laws of certain States and
" 'I'l'iritories admit a domiciled alien to the local franchise, con-
" ferrinj,' on him the rights of citizenship to a degree wliieh places
flO " him in the anomalous position of heitig a citizen of a State and
" yet not of the United States, within the purview of Federal and
'• Inlei national law . It is important within the scope of national
'■ legislation to define this i-iglit of alien domicile as distinguished
'■ from Keijeial naturalization."

One of my learned friends wd-o preceded me dealt with the

409

(Sir Cliarlei 11. Tiippor's Arf^iiinont.)

qiievtion of tlw'so lu-in^,' national claims, aivl [ ilo not proposo to
worry your Honors witli any ii'n^^thy rcfcn^nco to tliat. 1 desiro,
liowcvcr, to add t(>n said liy refcrrin;^ to tho two
trnatips, thn Treaty of 1HJ)2 and tlio (!hiin»s Coinniission, for the
|)iMposc of calling' attrntion to Arficlo M in the Treaty of 1H1)2,
and Articii' 1 in tho <'l,iinis Conniiission.

10 Art ich' >< is as follows : —

" The hii;h contractitiLf parties haviii;,' found tht-uist'lves unable
" to aLjriM- upon a rcfcrcnci' which shall include the (pit^stion of
"the liahilify of each for thr injuries alleged to havt; heen sus-
" tainecj by the otlwr, or by -its citizens, in connection with the
"claims presented ami iirj^iMl by it; and, bein<j solicitous that this
"subordinate (juestion should not interrupt or lon;,'er ilelay the
" submission and diiterniination of the main ([uestioTis, do ajfree
"that either may submit to the arbitrators any ([uestion of fact
"involved in •<aid claim-i and ask for a tiiidinr; thereon, the ([iies-

20 " tion of the liability '' either jjovernment upon the facts found
"to be the subject of further nei,'otiation."

An<l Article 1 of the Claims Convention is as follows: —
" Th(( hii,'h contractinj,' parties a^jree that all claims on account
"of injuries sustained by jiersons in whose behalf (beat Britain
" ia entitled to claim compensation from the United States, and
"arisinc; by virtue of the treaty aforesaid, th(; award and the
" tindin;,'s of the saiil tribunal of arbitration, as also the additional
"clninm specitieil in the fifth para^jraph of the prcambli! hereto,
"sliall be referred t(< two commissioners, one of whom shall be

:i(l "appointed by Her Britannic Majesty, and the other \>y tlio
" Pi-esident of the I'nited States, and each of whom shall be
" learned in law."

Take Mr. Blod;,'ett's arrfuinent, V^)luuu■ !) of the Paris series,
paije 220, wheri^ he puts the construction u])on Ailiclt! <S of the
Treaty of 1802, showin;,' that the claims are national, because, a.s
he says, ' they unL;ht be for all on whose behalf the British
"fiovernment can i-laim whether on the part of siilijects of the
" Queen or on tlu; part of the (^*ueeu herself." In addition to
this lanj;uaj;e of .Mr. Blod^'ett, one of t'le counsel for the United

40 States at Paris, let tis take from the lips of my learned friend,
Mr. Dickinson, when the case was opeiu'cl at Victoria, his inter-
pretation of this treaty, atid I think he accurately tjives the
construction of the Claims t'onvention at that time. He said: —
" These claims are not presented separately. A claim is made
" by Her Majesty's Clovernment upon the Government of the
'■ United States for a sum of money claimed to be due for damaijes
'resulting' to British subjects by certain uidawful seizures made
" by the (lovernment of tht; United States. It is true that in
" the Convention the evidence, to a certain extent which i,'ots to

oO '' make up that claim, is pointed oi:t by a certain schedule namini»
"the ships beyond which, an<l beyond the items named in the
" schedule — or the ile^cription of the ship- named in the schedule
" — Her Majesty's (Jovernnient cannot '^o, before the Commission.
"That was the object of the list of ships appended to the Con-
" vrntion and the list of claims pointinj;; out the evidence tending
" to support the one claim of Her Majesty's Government for a
"sum of nionej- ajjainst the United States. It would be against
" the theory of thi.s (Convention to hold that the Government of
" tli(> United States should close its case in defence, in this assess-

Gl) " nient of <lamages, in Victoria. The theory of the Convention, as
"tiiially agreed npon is, that the evidence to establish and verify
"the claim of Great Britain should be put in at Victoria, in
" British (.'ohnnbia."

And at page 10 of the Record my learned friend, Mr. Dickin-
son, states : —

II I,

■i

.1! il

, I

■l( •

' fj

ii-'

410

(Sir Charles H. Tapper's Arfjiiinent.)

"There is no iliffieiiity in my learned friends, representinj,'
" Her Majesty, ptittin;; in their entire case, i'or it is a mere assess-
" ment of damaj^es in the ordinmy '.vay."

On the line of tii&t interpretation let me read from Wharton,
page 727, volume 2 : —

" Thus, while all claims uiij;ed liy one nation upon anothei are

10 "technically speakinjjf, 'national', it is convenient to use collo-
" nuialJv the words ' national ', and ' individual' as distiiiy;uishinLr
"claims founded upon injury to the whole people from tliose
"foiuided upon injury to particular citizens."

It was clearl)- in the mind of uiy learned friend Mr Dickinson
at Victoria, that thest claims are technicalU', if j-ou like, but
strictly speiikin^ aiul in the sense of that Convention, nothiiiir
else thiiii tiiitional claims, and no lanifuaije has been use<l in the
treaty to ehauije, (liy tlu' consent of both parties, which woidd
be necessary,) their national character; for otheiwise we would

£0 have a court of claims estab!ish>^d, the Treaty would refer to
claims of individuals oidy and woidd jjjive the claimants a status
before the Claims Commission, and wotdd re(|uire them to put
them''elves into a certain position to come within the treaty as
iiidivi<lual claimants. Of course in that, case they would have
the rij^ht to bo represented before this Claims Commission, lint
it never has been disputed, from the moment that it was sui,'-
geste<l by your Honors at Mritish Colundiia that no private party
has any loriin utiiuili in this court.

This is an international court. Your honors are tletermiiiiiij;

;iO national claims, which are to be presenteil liy and on behalf of
the (Joverimient only ; and the individual claims are referred to
collo(iuially, as tlu' aiithotities citeil by Wharton |iut it, for the
purpose of obvious convenience. That the nationality of these
ships was Ibitish I think there can be no manner of doubt. I
suiimit, that all that it is necessary for us to jirove in coiuieetion
with the ownership of these shi|)s — that any other ownership is
immaterial — is national ownership and not private ownership,
which enters into the tiuestion of the seizure, le;;al or illeeaj, on
the hijj;h seas in a time of peace.

■ 40 In the iliplomatic correspondence, and it was leniftby, ex-

tendiiiij; o^-er years', conducted, on the side of Ci'eat Britain and on
the side of the United States, by men of si;,'nal ability and j;reat
diplomatic expeiience, thtue was no qiU'stion imt tiiat they were
dealine; with ships whose natiiiiuility was HritiNh. I almost
hesitate to im|iose on the patience for wiiich your Honors have
been so remaikable duiitii^ tliis heariiiij; by readine- much of that
corresiionileiice ; liut 1 refer, tlioULih not at leiiiith, to the
authorities under that head. Kor instance, in volume .') the
correspon<lence is set forth between Mr. Hayard and iiOrd

50 Salisbury at pa^jes 24ti, 247, 24!) and 257 ; Appendix to the ease
of (ireat Hritain, volmue 5. pa<,'e ;}()0 ; the British case, volume
4, yiHiH' 5 ; the United States case, volume 2, paf^e .'501 ; the
United States case, volinnt! 2, pai^es UOl and ;is:j ; volume 1,
Appendix to the United .States case, paf;es «,'{, IDS and 10!) ;
volume 7 of the United States case, pai,'e 834 ; and the table of
vessids seized in liehrini; Sea, volume 2, pa^je 1()!S of the United
Status case; also, imij) No. 5, Uiuted States case, volume S;
Unite<l States case table, jiajfcs o!)!), 5!)1 ; chart No. 5, United
States case, volume li, paij[e 4!).'{ ; the United States counter case,

GO volume 7, pai,'e .S.'U : volume 12, pages 11, 12, 34, .S.'), 107. As I
saj', these contain reports of .seiztnes of British vessels, the
record of conilennuition of British vessels, ([uesiions asked about
the seizuies of these identical vessels as British vessels, answers
given as to the treatment of these British vessels ; reports to

411

(Sir Clmrli's H. Tupper's Ar<;uiiient.)

l^onsjiass ill reiijard to tliesii vessels as British vessels anil the
uliole |)ositi()n of the ITnited States, ii<i;lit or wron<(, starts upon
till' priinarj' fact that British vessels and no otliers wery con-
cimiukI.

The fiiuiin^s of fact I iiave referred to. The\' followed after
the argument at Paris, and I say that no (luestioii of national
ownership was reserveti, (anil a i|uestion of private ownership
10 only was reserved,) for what it was worth.

Mr. (ireshani, Secretary of State*, in reportin<^ to the Speaker
in House of ilepresentiitives, .'):tril Congress, Unl session, ivxecu-
tive Document 132, had the same idea, as an examination of his
report will slu)w. lleferiiiii; to Article N of the C'unvention of
JMI-J. he says : —

" Under this article the arliitratois unanimously found

"iliat a nunilier of British sealini; vessels were seized in

'■ I'lelirinjj Sea or warned therefrom liy cruisers of the Tnited

" States on the days and at tlu^ places in the special tiiidin>;s

20 ■ iiientioneil, leavinj; foi- future determination tlie ipiestions as to

the value of the said vessels or thi'ir contents or either of

■ them, ;inil the i|Hestion as to wliether the vessels mentioned in
" the schedide of the 'ISritish case or any of tliem were whnlly
' or in part the tictual proporty of citizens of the United States,"
ilrawinj; aijain, as I sulimit, the distinction between national
ownership and private ownership.

Let ine refer a^jain to the laniiuatie of niy learned friend who

is condiietino; the cise hefore this har foi the United States

;,'overiuni'nt. Speakiiif,' at Victoria the learned coinisel said : —

.'iO " That tiilmnal of arhitration settled the ipiestion of the

■ seizure, so far as British vessels were coneerned, as illeo;al.
' When they .settl' (luit she was seized heyond the le;,'a! distance
"fiom land they have settled that the condemnation must there-
'■ fore have heen ille^ral. Those i|Uestions are adjusted, idhI, if
"flic in (I liiifish irnxi'l, llic;/ liiiir sdllcil tlmi the xolr iincntioH
" irnitiiiii));/ is i(.s /o llif ditmuiiv tlnif (tccnwd to tlic oirntr."

1 do not intend, if 1 can possilily avoid it. to say one word
other than what may he ahsohitely necessary, so an.Kious am 1
to close 111)- ary;ument as soon as possilile ; hut, I must mention

40 in this cotniection the release in lMS(i of the jhitish vessels when
tlie United States (iovertiment treated these vessels as British
vessels. If tin present contention of my leannd friends liail
ever entered into their minds at that time, it is impossible to
I elieve that these oi'ders would have j,'one forwa'-d at the reqm'st
of (lieat liritain ; ai\d so all the tran--actii)ns as to the hoiidin;,'
of these vessels related to the hondin;,' of these identical ve-sels
in the character of liritish vessels. References to the release
are in volume .'i, pai,'es o7 and nH, Fehnnirv .Srd, 1!S87; tho
liondini; of British vessels volume j, pajj^es !)('), 24.S, 1 shall not

')0 read them, hut 1 ask your Honors to he ijood eiiouoh to take a
Mote, In the British arLjument, pai;es )• and 7, where, for
instance, the seiziiio otHcer wrote front Sitka, Alaska, tin- Mrd of
Septemher, 188(1, to the Secretary of the Treasury repoitinif the
seizures, and, on the 2()th of Januarv, 1887, the United States
(lovermneiit, heino in possession of all the facts, caused tin- fol-
lowinjj; tclei^rant to he sent to the .Indite and District Attorney
at Sitka : — "I am diiected by the President to instrur you to
" discontiinie all further proci'eiline;s in the matter of the seizure

(10 "of the liritish vessels ' Uaroluiui,' ' Dnward,' and ' Thorton,' '"
and so on.

There is an interesting; case in ('ranch's repoi ts on this point,
(that of the schooner "(tooil Catherine" v. United States, 7
I 'ranch, .'Ui)), where the Supreme Uotnt of the United States
held suh.stanlially what I have siibmitteil, that althouglt a vessel

■m

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412

'Sir Charles H. Tiipper's Argiunent.)

were privately owned iti the Uniteii States, she still might Lo
British in nationality. This was a case where a vessel of the
United States was captuied, condemned, sold and purchased hv
her former master, a citizen of the United States, who obtained
a Danish hurghers hrief, and who cleared out of a port of the
United States as a Dane. It was decided by the Supreme

10 Court of the United States that that vessel was a foreit^n vessel,
within the .5th section of the Act of the !)th of January, LSOS,
snpplementarj- to the Einbar;,'o Act, although really owned by a
citizen of the United States. That Act, or the part of it in
point, is set out in the case :—" If any foreign ship or vessel
"shall take on board any specie, or any goods, wares or merchan-
" dise, other than the provisions and sea-stores necessary for the
" voyage, such ship or vessel, and the speeit! and cargo on board,
" shall be wholly forfeited." She was carrying this foreign
registry, and sailing under that flag, although .she was ownnl in

20 the United State.s. Her nntionality was considered by the
United States Supreme Court to be that of her registry and not
that of her owner.

Mr. Dickinson: — Where was tlie owner domiciled in that
case i'

Sir Charles H. Tu]ir r : — Well, the report is so short, I am
afraid it is imjiossible to answer the(|Uestion my learned friend
so properly puts. It simply saj-s here:

" She was originally an Amei'ican vessel, but had been
" ca])tured and condemned as a pi-ize, and purchased by Hurst,

30 ' her former master, an American citizen. She took on board
"goods other than the provisii)?is and sea-stores necessary for the
" voyage, MUil cleaied out as a Dane."

\Ve submit that we obtaineil at I'aris all the findings neees-
.sary, outside of the question of actual damage, for the judgment
of your Honors. The United States will argue, and will have
the right to argue, that this question of owneiship is vital; but
when one eonsiilers the nature of the act, and the claim under
which thest' ships were taketi, title becomes to the minds of
lawyers absolutely immaterial. The United States admittedly

40 stan<l in the position of wrong doers. They did what they had
no right to do, and no justification for doing, to these ships fiying
the Ih itish flag, and as I have subndtted cnjoj'ing the benefits
of liiiti>h nationality on the high seas. They ilid not take
thos(! ships as propeity of the United States, or under a claim of
title, or under a color of title. They took them on entirelj'
ditl'ereiit grounds, which have been held unjustifiable; and there-
fore, as against a wi'ong doer, we could refer to such cases as
Sullon V. linck, which was one of a seizure of a ship with(jiit
color of title, wheie the ])ossession was sutHcient against the

oO wrong doet. This is reporteil in 2 Taunton, .'{O.S. Also we
might r(d"er to the well known rule in c(jiinection with actions
of tiover and tresjiass. The point 1 ha " to niak(' is that there
is ill this Reconl a similarity in the position before 3'our Honors,
as in that case between piivate parties; that here there was im
such (piestion originally raised, and that it is too late in any
event to raise it now with eti'ect. True, they can rais(\ it, but
your Honors' minds must revert to the (U'igituil seizure and to
the ^'rounds upun which the seizure was nnide ; and in coiuiectiun
with that 1 suliuiit that the I'nited States occupy in the eye of

(jO the law at this time the position of mere wrong doers. Before
leaving that ]ioint I would like to refer to v(dume o, pages
()4.'{, 1)44, where Mr. Blain(,' makes a reference to this subject in
December, I (SDO, after years of discussion of all the phases of the
ipii'stion.

413

(Sir Cliarles H. Tupper's Argument.)

" The United States desires only such control over the limited
"extent of the waters in Bohring's Sea, t'or a part of each j-ear,
" as will be sufficient to insure the protection of the fur seal
"fisheries, already injured, possibly, to an irreparable extent by
" the intrusion of Canadian vessels, sailing with the encourage-
" merit of Great Britain and protected by lier Hag. The gravest

10 " wrong is conunitted when, (as in many instances is the case),
" American citizens, refusing obedience to the laws of their own
" country, having gone into partnership with the British flag and
" engagetl in the destruction of the seal fisheries wliich belonged
" to the United States. So general, so notorious and so sliame-
" lessly avowed has this practice become, that last season,
" according to the report of tlie American Consul at Victoria,
"when the intruders a.ssembled at Ounalaska on the 4th July,
'■ previous to entering Behring's Sea, the (hij- was celebrated in a
"patriotic and spirited manner I)}' the American citizens, who, at

20 "the time, were protected by tiii^ IJii'ish flag in their violation
" ot the laws of their own country.''

And I say that where a statesman of the standing of Mr.
Blaine at that stage of the discussion, having heard of all those
rumors in 1800, hearing all that had been said as to the abuse of
the flag, as to the misconduct of the American citizens and as
to their shelter under the British flag to tiefy the laws of the
Union, when he himself in a lai'ge part, as he undoubtedly did,
drafted the treaty afterwards ratified, and known as the treaty
of lX!t2, without single leference to the point now pressed

:{0 upon your Honors' attention in connectio!i with those seizures ;
and when under tlie supervision of Mr. Blaine, and again under
the supervision of his successor, Mr. Foster, who became the
agent of the United States, their case at Paris was |)resented
without a single suggestion or single reference in the case to this
point, it is clear, 1 venture to argue, that these able and astute
statesmen did not think there could be i question as to the
piotection of the flag.

And no matter how annoying it niig it be to the United
States, and how much these facts might apj)eai lo the arbitrator.s

40 in other coiuiections, they could not att'ect the question of right
or wrong as regards the seizure.

That no such circumstances as those would justify the action
taken relative to vessels uu the high seas flying the British flag,
1 thiid< I am borne out to some I'Xtent by a reference made to Mr.
Phelps l)efor(! the tribunal at i'aris, vohnne I.'), page 22;}. 'I'here
is a reference to this subject of ownership. The president of
the tribunal seems to have asked .Mr. Phelps a straight question
and to have received a straight answer. Slv. Phelps read from
the counter case on the subject of ownership, and it is not

;")(,■ peiluips irrtjlevant for me to call your Honors' attentiotr to the
curious manner in which that subject was first mentioned at
Palis. Thi^ ease of the Uiuted States luid been presented, as I
have already said, without any ground being suggested of this
nature in connection with the seizures, but this liad occurred :
the llussian correspondence, which went far to make the
strongest ground for the Unitei! States contention as regards
their jurisdictional rights over the waters of Behring Sea, was
discovered to have been largely forged fr'oin the original Russian
docuruents, to have been intet]iolated by an employee of the

(10 (iovernment, a translator, and, of eoiu'se, to the diseond'orttire of
the I'liited States ; these facts appeai'ing, there was alisent what
would have been a very ftirmidaiiie basis for' their contention. It
was after that prop had gone that the suggestion as to owner-
sldp first ajipeared. It came under the heatling of "damages,"

414

(Sir Charles H. Tapper's Arnriiiuent.)

if my inemorj' serves me rifrlit, and it was wliile reading from
tlie counter case tliat Mr. Phelps was iiiteirupted hy the Presi-
dent — the passage is familiar to your Honors and I shall not
repeat it — where he referred to Bo'jcowitz and Bechtel and all
those various individuals who were saiii to he citizens of the
United States, "You argue that," said the President, "only as a

10 moral consideration ; it does not ch.mge the legal point of view,"
and Mr. Phelps atiswered : "It does not change the legal point
"of view as to the general propositions that have heen advanced,
" but it does, I respectfully suhndt, enter into tiie general char-
" acter of this .Act when it is weighed as a part of tlie freedom of
" the sea." There has been a construction put upon the language
wdiere one is the actual owner, or part owner, and is, at the same
time, aciiizeii of the United States.

Mv learned friends in their argument refer to the case of the
I'nited States vs. Hrune, 2 Wall. Jr. 264, 2C7, and I will refer

20 to tlii't case as well, in support of the proposition that tliere is a
distinction between national ownership and private ownership.
This is a happj- citation for us, it seems to me, and is directly in
point in C(jnneetioii with this phase of the case. The head note
is as follows : —

'■ On an indictment under a law which makes criminal
"certain acts done on hoard a vessel owned in whole or in part
" Ijy a citizen of the United States, an American registry is not
"even pniiKi facie evidence of such ovvnershi|) ; though such
" registr}' is made by the Goverinnent only on the pre-supposi-

oO " tion of such ownership, and after oa'h by one or more persons
"of such ownership by ihem. Nor is general reputation of such
" ownership any evidence of it. Ownership in such a case is a
"fact to be proved as other facts."

The case was deciiled in 1S52. Ju(ige Grier says : —
"The very gist of this iiriictment is the owrnMship by a
"citizen or citizens of the (Jniteil States. The act of Congress
" makes it so. The indictment properly alleges it, and it must
"of course be proved. The registry, though it may perhaps be
"evidence of ownetship for some ])urposes, is not even ^)/'(ma

40 facie evidence of it in a criudnal prosecution like this; nor
" would connnon reputation be. You must sh(!W the fact of
" owi'er.ship, as you generally shew other facts; proving it by
" witnesses whom the' defendant may cross-e.Nandne. The man,
" who swears that he owns the vessel, may have .sworn an
" untruth, and she nuiy not be owned either ' wdiolly or in part
' iiy anj- citizen of the I'tdted States' at all. And even if the
" persons set foi th in the icgistiy as owners, were owners at the
" (lati! of it, their o.vnership may in point of fact have ceased
" before the alleged piracy, though the proper entry or uo entry

50 " nuiy have bee!i made at the custom house.

"If the act hail ordained that the detention, etc., on any
" vessel ' donunated and <leeined a vessel of the United States,'
"should be ])iracj', the case might bi; dill'erent. The register,
" wlu'ther (granted on a true or false oath, settles that. That is
" the distinction between the case of national ownership of a
" vessel, the national character of a vessel, and private o'.vner-
" ,s])ip. But the act re(iiiires that the vessel be owned by a
"citizen or citizens of the United States, a ditlerent thing and a
" fact, of which the oath before the collector of customs is no

(lO " more evidence ni a case like this than an oath befoie any other
" person would be. It was extra-judicial, and in this case
"ex jxnii', and without a single re<iuisiie to make it evidence."

The Judgment being short I read it in full. The language of
that Act and the language of our Convention, I submit, refer to

415

(Sir Cliarles H. Tupper's Argument.)

private ownership, ami I shall argue tliat private ownership in
a case of this kind is wholly immaterial. The word "actual" is
important too, and should not be overlooked. It is defined by
Webster as follows : " Real or effective, or that exists truly and
nlisolutely ;" so that you have, according to tlie language of the
( 'onvcntion, when this ijuestion of liability is raised as to owner-
Id ship to ileal witii an actual ownership, as distinguished from any
technical or formal ownership ; and you have to deal, as I have
already said, with the question whether that actual ownership
is in a citiz(!n of tlu' United States, in a citizen of a State, or in
a Uritish subject douiiciled in one of the States.

On the sulijeet incidentally lefcjrred to j-osterday, where
foreigners, under the shii)ping laws iif England, are permitted to
hold mortgages on a British ship, 1 shall do no more than refer
to page 45 of the Hritish Argument, where we have set out
authorities under that iiead
•20 That the register is not a document of private title, seems to
be admitted by the United States argument, pages 7(i and 77.
At those; pages authorities are mentioned : first Uniteil Status v.
Ihune, already referi'eil to. As I read from those two pages, the
United States regard this register smnewhat in the same way as
I have done, as a national certiticate touching the connnerce to
which a ship holding the register belongs.

it might lie interi-sting to ii'i'er to liussey v. Allen, G Mass., Ui'.i
as one of a large class of cases where the actual owner was not on
the register ; but 1 takt; it that is hardly necessary, as 1 do not suj)-
:>() pose for a moment that my learned friends think to the contrary.
I now refer to the United States argument, pages 1!) anil 20,
where a principli! is laid down having, I think, general concur-
rence ill this tribunal : — " In this controversy all questions must
" b(! eoiisldereil, weighed and decided liy international law."
That is the language at page 10 ; and at page 20 : —

" The United States do not expect here a ditlerent application
" of the ru!es of international law from those whicli liave been
'■ applied to their disadvantage in their past history, nor will they
" seek a reversal of those rules which they have heretofore suc-
|il ■■ cessfully invoked io their advantage, although their application
•• to the present contioversy would be unfavorable to them."

It is clear, thi-'U, tliat tli(> principles of international law are to
])ievail, and in that connection the most serious qiiarr'd I have
with my learned friends is, that, while ap|)arently ready to how
Io these principles, they have, in a large measure, in connection
with this argument as to ownership, departed from principles
which the United States have vindicated, and, as I shall bi; able
to conclusively shew, vindicated against the pi'etension of Gieai
liiitain herself ; and from the day on which that vindication
■() took place, 1 do not know of an instance until the present where
it has iieen attempted to depart from such |)rinciples, the settle-
ment of which without doulit prevented very serious consetjuences
to liotli these great powers.

In the written argument, page Oi), a very pertinent (piestion
i^ iisl<e<l by my learned friend as to the object of the language
used in the (Jonvention, and there is a suggi'stion that, if our
view of its construction \n' correct, it was a wholly vain thing
for tiie two nations to agree to the language in the Claims t'on-
\iiition which I have I'ead , I submit that having put the ipiestion,
(in they have answered it. 1 adopt their answer, as found on page
(ill: — "That the C'onvention opened the door to the empiiry,
■ li'aving the ((Uestion of citizenship to be determined on the
" testimony by the Cominissioners a.s a matter of fact." I call
imrtieular attention to this part of the answer coming from my
learned friends ; — " And tin; question of liability on that deter-

r
ii

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416

(Sir Clmrles H. Tapper's Aif^ument.)

" ininntion of fact to lie Heciiied hy tlie Commissioners as a matter
" of iiitL-niatioiml law." I claim that tlie words in tiie Conven-
tion allow nothing more. The lanfjunf^e would have been entirely
ditierent hml nij- learned friend's interpretation been correct, or
if it lie correct now, that at the moment they proveil that tlie
[)rivati' interest, in whole or in part, of anv of these ships was in
10 an Aniericfin citizen, at that moment tlie lialiility of the United
States should cease to that extent.

Accord inj^ to the princiiiles of international law, can my friends
obtain that advantage ? The United States pressed for the right
to raisi' tliiit (]uestion, and Great l^ritain, not unwisel)', agreed
that this ([Ufstion, with the otliiM-;, miglifc be raised. My learned
friends now liappily say: " That (juestion must undoubtedly be
'■ deii'rmiiu'd as a matter of international law." For what pur-
pose might it lie raised >. Take, for instance, as one possible
purpose, the case of the "Virginius," which I mentioned yesterday

20 lleforc dealing with that case, let us see again what Mr.

Pheij.s and Sir Cliailiss Russell, who is referred to in the argur.ient
iiere in this ver}' connection, said on that subject. Ii' "'Idition
to what 1 ahead}' (juoled in volume l.S, pages 4<', 47, 48, 49, 50,
31, there are referetic. s to the subject, and Mr. Phelps afterward,
at j)ag(' (i!), says, '• Wluither some of the.'.e vessels were the
" iD'opi'ili/ of lirithli Hiihji'd.i (it (ill was a (luestioii of fact." At
page 70 of tlie Unite I States argument iny learned friends refer
to a Colloquy th.it took place in that argument at Paris, where
the present |j onl ('hiuf Justice of England said : —

30 " Tlie tiiidiiigs iliat the vessels, the names of which appear in

" the case, have been seizeil while exercising a legal rigiit would
" not iiielude the liability of the United States to pay, if for
" instance, it turned out that some of those vessels were owned
'■ by citizens of the Uiiiteil States and subject to the laws of the
" United States."

Had Sir ('liarles Russell stoppi^l at the word " St ites " and
said, that the liability woidd not be concluded if "it turned out
that some of those vessels were owned by citizens of tlu^ United
States," we woulil be placjd perhaps in an awkward position to-

40 day b\' ,irguiiig anything to the contrary : lait lie took very
good em; not to stop there. He adileil : "and suliject to the
laws of the United States". In other words, that they were
parts of the United States commerce — a ^lart of the United
States shipping — and that then it might well be argued before
this bar, or before any legal tribunal, whether the United States
should lie made to ])ay any damages for intiM'fering with ships
that weie -ubjt.'Ct to the United States laws.

Ill the ease of the " Virginiws ', for instance, when my learned
friends ask ; wli)' rais(! this (juestioii when we are not to take

.")0 advantage of it f Why have we gone into all this eviilence, if
your contention be that you cannot go behind the tl ig and the
registei f I answer that by .saying that, according t) the agree-
ment, as a iiiattei of evidence, permission has been given, your
Honors have properly allowed evidt!tiC(^ subji'ct to all objeetions,
as what c()iisei|iiences follow under the pi iricijiles of international
law, or according to practice among nations, inider these facts,
can the United Stati's resist the claim offbeat Britain ? A great
deal of evidence, my learned frii^nds say, has been taken and an
enoniioiis amount of time .spiint in investigation, and yet tlii;y sa}' :

(iO " nothing came of it, not even ridlridan »H(tv, only vacuum an<l
'• no birth ", to cplote from their brief.

Well, in tilt! case of tlu; " V'irginius " what was
done? I intimated yesterday that this evidmice brought
'lorward by tin; United States would have enabled
{jicat liritain herself to exercise that discretion which

417

(Sir Charles H. Tapper's Argument.)

the United States exercised in the case of the " Virginius."
What was done there ? The " Virginius" was owned wiiolly l)y
citizens, not of the United States, hut suhjects of Spain, a vessel
fradulently, and contrary to the laws of the Uniteil States, on
the shipping list of the United States, registered as an American
ship, and Hying the American Hag. She having lieen interfered
10 with, the United States allowed a mass of evidence to be taken,
and that evidence is worthy of regard because the case bears an
analogy to the present and is dealt with by both briefs. In
Executive Documents, House of Representatives, 1873-7'!, First
Session, 43 Congress, the facts in connection with the " Vir-
ginius " are made to appear. Hear with mo, your Honors, while
I refer to the evidence to show the character of the case of the
" Virginius." On page 102 of the volume to which I have just
referred there is an examination of one Sheppard, and he says
there : —
20 " I did have conversations with Patterson " (that was
the name of the registered owmr) " on that sulject. He
" said that the vessel would go in his name ; anrl he at that
" time and afterwards expressed to ine regret at allowing his name
" to be used in connection with the ownership of the vessel."

Vt page 109, when one of the (.'aptains is examined he is
ftslvi d ; —

' Q. When you took command was thei-e any Hng on board
" t'lie ' V^irginius ? ' A. \o, sir.

'■ Q. Of no nationality ? A. No, sir."
30 At page 110:—

" You took command of the vessel, tlieji,
" was owned by tlie ('ubans ? A. Yes, sir.

" Q. But sailing her under the AmiTiciin lla^
" be a vessel of American ownership, and intended as such, to be
" used in landing arms and munitions upon tlie Island of Cuba,
" against the consent of the Spanish government ? A. Yes,
' sir."

At page 114, witness Smith testifies ;--

" Q. K'^w did you happen to be in Puerto Cabello and to
40 " take commaid of the 'Virginius'? A. [went to Laguayra
"first as a mate from a brig from Piiiladelphia, and from
" Laguayra I went to Puerto Cabello and there I heard that tiiis
" steiimer was there, and that she was witliout a master, and I
" applied for the situation and got it."

Later on, on being asked where the expedition was to go, he
said : —

" y. To Cuba. A. Of couise they did not tell me that the
" first day, but it was all understood

" y. When you took command of the ' Virginius ' diil you
"0 " tind any ship's papers on board ? and if so, what papers ^ A
" 1 found nothini; on board but the log book, and that was not
" written up, but I did find the papers at tlie consul's.

" Q. Describe as correctly as you can, what papers belong-
" ing to the .ship you found at the American consulate in Puerto
"Cabello. A. As near as I can recollect, I found a certificate
"registry with no official number markeil on it, and no crew list.
" 1 found a bottomrj'-bond attached to the papers for about
"810,.i00 American gold, purporting to have been given at
" Aspiiiall by Captain Bowen.
(10 '• Q. Describe what flags, if any, yon found on bnaid the
" ' Virginius when you took command, A. I found an old
" Venezuelan flag, and an old American ensign.

" y. Any of (Uiy other <le.scription '. A. No. sir I did not
" find them at that time ; they were on board of In r. though, but

iiilieving that she
purporting to

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418

(Sir Chillies H. Tupper's Arj^ument.)

I dill not not fiiul tliein then. A few ilay.s afterwards I was
sliew the ('uban Hairs on lioard."

At payfe ll'i, he

savs :

Q. Whom, at Puerto (.'ahello, did you consider tlie owner
of tlu! ' Virfiiiiiiis ' ( A. 1 always considered that Alfaro was

le owner.

" Q Did you ever have any instructions or connnunication
' from Patterson into the ' Vir^inius ?' A. 1 never hail a word."

At pi

IIG

bott

' Q. For what was the ' Virj^inius' sold ? A. Under the

omiv-honc

'■ Q. J)o you know whether there were any proceeding's
before a juiiieial officer in Puerto (Jabello ? A. Yes, there

were.

' Q. After the sale did the En;,'lish Consul at Puerto Cabello

say anythinii; to j-ou in respect to it ; am

1 if so, what ? A. Ye

-0 "the Kni;lidi t.'oiisel mtjt me the next day after the sale, I think,
" but I am not certain aliout dates; it was shortly after the sale.
" He siiid to me, ' You are fj;oinu; to hoist the Knj,'lisli Hiii; '.' He
" said, 1 have a teh'i;ram from the Kni,disli Minister' at Caracas
" to sinze her for ii jiirate, if she hoists the Knj,'Ush Hajf.'

" Q. Did you have any conversation with the Aniei'ican
" Consul subse(|uently about the sale '. A. Ye.s.

" Q. \\'hat dill he saj- > A. He told lue the shi() was sold ;
"and, said he, ' Captain, I will have to take your ri';,'ister and
"cut it in twi', send orie-iialf to the Department at \VashiiiL,'ti)ii,

•SO " and j,nve you the otle'r bait.' He also said to me, ' (Japtain, don't
'• boisi the American tlii;;; au;ain.' The moni'y for the pui'ehase
" was tu be [)aiil in three days and I asked the American Consul
"if I b*id the ri;jht to hoist the American tliij; before that time
" wa.s up, and he said. No."

\i'.\, another witness is examiii

' Q. What bappeneil m-xt ? A. We took the powder, shot,
slieij, and ammunition out of her and put it on board the

^'ir!'inius. Mv tiremen turned to at it.

le nit-n were

I)rondseil a dollar an hour in f;old." And so o

Att

oil

41.) (Jeneial Will

lams, in siimminir up the whole o

.'h.

)f th

ley

e evulence

ly.s. at pa^jf I'OS, at the bottom of the pai,'e : —

ii'dnius ' was rei'istered in New York on the 2Gth

September, bSTO, in the name of Patter

son, who maile oath as

ith

" itipiired iiy law, but the despositions submitted abiindantlv
" show that, in fact, Pattei'son was not the owner at that time
" l)Ut that the ship was the propertj' of certain Cuban citizens in
" New York, who furnished the necessary funds for her purchase.
" J. E. lSlii'|ipenl who eomiiianded the ve.ssel when .she left New
' York with a certifieate of her rejjister in the name of Patter-
')0 ' son, teslities |)ositively that he entered into an aLjreemellt to

command sanl vc,>ssel at an interview

betv

Qi;

da, Ml

" Patteisiiii, and otlieis, at which it was distinctl}' understood
"that the Yirjfiiiius beli)n:.;ed to Quesada, Mora, and other
" Cubans, and that said Mora exhibited to him receipts for the
"purchase money and for the repairs and supplies upon said
" .steamer, and explained to him how said funds were raised
" amoiii^ the Cubans in Ni!W York. Aiioipho J)e Varoiia, who
" was the Secretary of the Cuban Mission in New York at the
"time the ' Vii^dnius' was purchased, and afterwards sailed in
(10 " her as tjiiesada's chief of stall", testifies that he was acijuainted

ith

the details of the transaction, and knows that the

ir;,'iiiius was purchaseil wi

th th

mils of the Cubans, and

with the understaiidini,' and airan{,'ement that Patterson should

appear as the n

linal

own

er, because foreii'iiers could not

419

(Sir Charles H. Tapper's Argument.)

" obtain a United States register for the vessel. Franci.s Rowen,
'Charles Smith, Edward Greenwood, John Mcl'ann, Mattliew
■' Murphy, Audirose Rawlings, Thomas Gallagher, John Furlong,
' Thomas Anderson, and George W. Miller, who were em|)ioj'ed
" upon the ' Virginius in various capacities after she was
" registered in the name of Patterson, testify clearly to the effect
10 " that thev were informed and understood while they were upon
" the vessel that she lielonged to Qiiesada and the Cuhans repre-
'■ rented by him, and that he navigated, controlleil, and treated
"snid vessel in all respects as though it was his property."

These then were the facts in connection with the " Virginius,"
lUid though stiehail all kinds of Hags and Hew different Hags at
rliti't'rent timei, she happened to he Hying tlie American Hag
wiii'M that vt'ssel was seized by the authorities of Spain.

Mr. Dickinson : — And having an American registry ?

Sjr C H. Tufiper : — Yes, and having an American registry.
•20 III tliat case the United States, as the coirt'spondence will show,
(III furtiier investigation, took very good care that it should
never he said, upon the transactions leading to that register and
the use of that flag conse(|uent upon it any other power should
pns-i judgment than the United States, hut they allowed the
S|i.iiiish government to examine these witnesses in New York
without prejudice, and to collect all |)ossilile evidence and submit
the results to the United States, agreeing, iu)t that Spain siiould
infiiet any ])iinishment or take aiij' action witli regard to tlio
-.liip. supposing tiiere had been a fraudulently obtained registry.
,So but that the Unitfd States would follow iij) in tlieir courts and
miller their laws the vessel for anj' infringement.

.Mr. Dickinson : — Hut before you Hnisb that yixvt 1 wish to
stiitc that Spain's counsel was permitted to intervene ami show
tliOM' facts.

Sir C. H. '{'upper: — No doubt. I shall cleal with that phase
(if it at a later stage. .My learned friend says that Spain was
allowed to show these facts and so here all these facts have
liceii shown without prejudice in either case, but it was never
iilipaiently dreamed or thought that any other power than theUni-
40 tcii States should administer the law of the United States where it
liml been shown to have been violated. Now, on that particular
])i)iiit to which mv friend calls attention 1 wish to cite from
the book to which I have just referred, a letter which the
b'liiled States Secretary of State wrote the Spanish represen-
tiifive on the 'Ht\\ November, \K7'A, acknowledging the notice
;;ivcii by the Spanish representative on tlie taking of the testi-
iiKiiiy before the United States circuit court, respecting tlie
ownership of the " Virginius," and intimating that a represcn-
liitive of the United States government would attend the
.'lO examination ; the United States Secretary says : —

" 'I'he undersigned feels sure that Admiral Faulo will agree
" with undersigned that neither party contemplates substituting
■ such pioccedings in the place of iliplomatic discussion of the
" grave (piestions involved in the seizure of that vessel on the
" high seas wdiile sailing under the flag of the United States."

.And again, in that correspondence, I Hnd the Attorney
(ieiieral saying in an opinion froui which I have already i-ead ;
that Spain " has no jurisdictioii wdiatever over the question as
" to whether or not such a vessel is on the high seas in violation
(iO ■ lit any law of the United States. Spain cannot rightfully
" i.'iise that (juestion as to the ' Virginius,' but tlio United States
" may, and, as understand the protocol they have agreed to do
" it, and, governed by that agreement and without admitting
" that Spain would otherwise have any interest in the question,

|iii-

420

(Sir Cliarlt's H. TuppLi's Ari^iiment.)

" I (li'ciile that tlio ' Virginius ' at the time of her ca|)tnre wiis
" without right ntnl improperly carrying thu American ting."

The similarity in tlie two cast-s is tliat my learned fricinj
could raise this (|Uestioii of ownership, Iml as inj' learned t'rieiiij
admits once (he facts arc lu-fore yon, you are to apply to tlmsc
fact>4 the principles of international law.

10 Mr. Dickinson: — l5eforo you leave this part of tlie ease docs

it not appear also tliat on the investigation tliat this slii|i,
althoiiL'li there was no lefercuee and no private claim made — the
only claim made was an aimlogy for the insult to the iiatiniml
dignity and Hag — does it not also appear, on it appearing tlmt
.she was not an American owiumI vesstd and was improperiv
registered as such, tliat the United States waived the apology
and ilisavowal tliereliefore demanded.

Sir C. H. Tupper : — That does not concern the point 1 him
maitiri;.'. More than tliat appears ; as 1 hefore intimateil this

20 transaction was covered with fraud, that the vessel was in no
sense the propel ty of an American citizen, tliat all nianiiers nf
Hags were used, that the vessel was the property of suhjects uf
Spain living in the United States, neveitlieh'ss the position
taken by the United States was— no tnattcr what fraud or wlmt
prostitution of Hag — while we will waive the apologj* to the
IJnited Stales l)ecaus(! Spain, titider these circumstances, in self-
defence really (though lliey diil not put it on that ground) fnr
the purpose of self-dcfi-nce interfered with tliat piratical triuiip
on the high seas ; yet evi-ii so the United States insisti'd that it,

30 alone li;i I jurisdiction, saying in effect we alont' have jurisdictinn,
and we will not under any circumstances hand vou over tlie

your sulijects own her and our registry was

L'lit

ship, til

by fra.. i, it is in the United States courts alon(! that punishiiieiit
can he imposed for improper use of the Ameiican Hag, and the
ship owned by Sfianiards was delivered up to the States.

That was thi! jiosilion of the United States then. Hut it
cannot be said to be the position of the Uniteil States to-dii\-.
For instance, r.uder that head I will call your attention to what
we cited on pnge 44 of our argument, paragraphs 327, 408, 40fl.

40 The Commissioner on the part of the United States : — Wlint

volume is it ?

Mr. Dickinson : — The quotation they make is veriHed in the
United States argument as correct, 'i'hey did not cite the page
but we did.

Sir C. H, Tupper ; — The reference is volume 3 of Wharton,
parnj,' .plis 40.S and 400; 40!) reads as follows : —

'■ A certificate umler the authority of the United States
" must he taken by foreign powers as genuine, and can be
"impeached by them anly by application to the Oovernment nf

50 " the United States. 'I'lii^ has been hehl as to naturalization
" certificates (supra, 174 a), an(i the same principle as was held in
" the ' Virginius ' case (su])ra, 327) applies to papeis certifyiuL;
" under tlu^ authority of the United States, that the vessel hold-
" iiig them is a vessel of the United States. If such papers are
" fraudulent, the parties forging or wrongfully using them art'
" liable to piuiishment in the Utiited States ; and the I'niteii
"States will not permit tliein to be employed as a basis of a
" claim against foreign powers. Hut the United States must !"■
" the sole judge of tl; 'ir validity, so far as concerns proceedings

(30 " on the high seas. \o f<ireign power can he permitted to deter-
" mine as to such validity."

My learned friend himself claimed on the Record (page 107'"')
that that wa- ;he principle in regard to naturalization ceititi-
cates. It is true that he has drawn a distinction between tlioin

421

(Sir Cliarli'H H. Tiipper's Argmnenl.)

Ill the iirf];uinuiit, in so far as one represents tin; iiiil<;nient ol' ft
court, and tin? otlior is not, liti says, of so liij^li a cliiiracter,
tiK)n),'h it seems to nio that tho text writer tiiere is ri(,'l»t in con-
sideriii); that tiiese are iioth national certifieates Now, I have
ventiireil to say that tlicsu vessels were pan of the British
coiiiiiieice anil in no sense could they he said to he part of the

1(1 United Stales coniiiieice. A passin;^ lefeiciin! to Kent on that
which is not cited in our arymnent I now desire to make. In
Volume .'i, star |>at{e 142, I tiiul: -" No vessel is to lie deemed a
" vessel of the United States or entitled to privile^eK of one
' unless ref^istered and wlujlly owned and commanded hy a
"citizen of the Unitcl .States."

The (.Jommissioner on the part of the United States : — That
is a little hroad, a little inaccurate.

Sir C. H. Tupper :— It is a little liroad ; United States
minister to thi." Spanish minister in the " V'ir;;iiiius " case, said : —

20 " The undersij^'tied has heretofore declared anil he now repeats
"the declaralioii, in the name of his ircivnrnment, that the
" ' Virffinius ' was, at the moment of hef capture on the hit;h
"seas, a re;,'ulaily dociniienteil American ship. The assertion of
" a j,'nvernmi'nt which has accorded to a vessel the rii^dit to sail
" under its Haj;, is the hest (evidence of her nationality. Kveiy
"such ship is iei,dNter''(| in the puhlic archives."

The CumiiiissioMii' on the purl of the United States : -I'roh-
ably he meant t" ii^" the woril " register" in a hroad sen-".
.Mr. Dickinson : — In the sense of a sea letter or ceit|ticato.

'M) Sir C 11. Tupper: — In tlmt <'"M.' ciion, hid'ore 1 deal witli
the i|Uestion of immunity of the natit'iial tla;; there is a refei-
ence to the ship's papers I wish s. iniike. The su;,';;estion
mii,dit naturally occur to the minds of your lioiiois, in followiiij;
my arj,'ument — of what value are these ship's ] ipers f Why
nn,' they referred to if the first, po>ition we take i- correct — that
the tlai; is the protection, Wel'ster, in a cori'iwpoiulence which
liKik place with the British (Jovernment in 1S4:{, refers to the
value of these pajiers. They constitute not oidy a national cer-
tificate K'^''"n t" '■'"' holder the ri^^ht to fly the tlaij and enjoy

40 th:' protection that the tlajj; ^ives, hut they are in modern days,
almost ahsolutely necessary whore the ships helong to the
United States or Kn;;laud in connection with their treaties and
in times of peace in connection with the mutual right to search
so often mutually conceded : —

"Nor can the United States Government agree (wrote Mr.
" Welister ) that the term right is j istly appliiMl to such exercise
' of power as the ihitish tiovernment thinks it indespensahle to
" uuiintain in certain case's. The right asserted is a right to ascer-
" tain whether a merchant vessel is justly entith d. to the pro-

,50 " teetion of the flag which she may happen to have hoisted, such
" vessel being in circumstances which lender her liahle to the
" sus|)icion first that she is not entitled to the piotection of the
" tlag ; aiul secondly that if not entitled to it, she is, either hy
" the law of England an Knglish ve.ssel, or by ' the provisions of
" tieaties with certain European power.s subject to the super-
" vision and search of British cruisers.'

" If visit or visitation be not accompanieil by search it might
"well be in most cases merely idle. A sight of papers may be
" deiiiandeil, and papers maybe produced. But ii is known that

(iO " slave traders cany false papers and difl'erent - ■:^ of papers. A
"■search for other papers then must bo made where su-^picion
"justifies it or else the whole proceeding would be nugatory. In
"suspicious ca.ses the language and geneiil appearance of the
" crew are among the means of ascertaini ig the national charac-

'Ilr

)l;l

1 ^

II (I

T'-

422

(Sir (^mill's n 'rii])|)i'i's Aijfiimont.)

' ter (if iluf vesm'l. Tlit'cnrnoon lionnl nlso imliuutcH tho conntiy
fniiii whicli slic cdiiH's. Mcr Idj^IiooU sliowin^f tin; pnniou
coil
iM|ui)itii('iit lire all t'viilciiccs for 1

isi' ami fVfiits (if licr vdyam' '""'' intcrnnl titiiii'iit ni)<l

t III

Iff or nt,'niiiHt tier on licr
all('>.'nticiii of clinractcr Tliest' mattirs it is oliviiui.H ciui only
be asccrliiiiii'ii liv vi;,'oroiis Ncarcli.

" It inivy li(> (islct'il, if a vcmhcI may not lie I'lillcil to nIkiw licr
papcrH ? No (loiilit nIk' may ln' cnlli'il upon to sliow lier piipfis :
liiit tilt' (|iiL'stion i.s wlii'rc, wlu'ii ami liy wliom ? Not in time
of pi'jicc, on tlic lii;,'li seas, wIutc licr i'ij,'lilH are ('(pial to tlio
ri^'lits of any otlicr xos.scl ami wlicic noiu' lias a rij,'lit to molest
' 111 r. 'i'lif use of lu'r piipiMs is in tinit! of war to prove lier

■utialitv wlicii visiicil liy li('lli''crciit cruisers, and in

liiitli

peace ami war to sliow lu-i- national oliaracter ainl tin- liiwfui-
icHs of lier voyaj;e in those ports of other coiintr'es to which

shi

(I f(

slit? may proectMl tor purptiscs ot traiU

f tr

20 'l"he re^'isti'i is, strictly s|)('akini,'. I think jieculiar to the laws
of Kiii,'hinil and the I'nited States ami is in itself a Custom
House (iiieiinieiit. It is so ri'ferriii to Ky Kent, vohime .'{, piiee
i;i!l and 141; -I niav mention that the notes there I'ive the his-

toiv o

f tl,

rej.'ister in Kiij;land atn

the rnited States, and in it

;,'ard to that there is not much dith'reiice lietweeii the jiiisitioii
of the I'liited States and our own. 'riiiit it seciirus the protec-
tion of the nation's tla^', we Inivt? shown, I think, on |iaL;e 44 of
the Ihitish Argument; and to show that it is a ci'itificale of
iiatioiial ownership I would leftn- also to tl

le auihoritic-i < iii d on

JiO paL,'e 44 the Ihitisii Aii,'umeiit. In lliat connection I wmilil refer
m;;iuii to the case of the United Slates (W Mriille, reported ill
Wallace, pMi,'e 2t)4, whcieit is said : — 'It is not rc()iiired hy

Inw of nations as iiti cxiiression of national characte

rea.soii

that

and tl

I is that in times of pence the Hai; siifliciently
expresses the iiMtioiial cliaiacter. The ninnici]ial law aloiii! le-
(]iiiies the Hegisteiy, where for instance revenue vessels and
where veHsels of a nation to which the siiip litdonjrs for manv
purposes in the at'.ministration of municipal allairs maki> it
necessary that this re;,nstry should ht; on hoard. See Kent on

40 star ptij,'e 14!(. A passage in the United States Arynment pai,'es
7-'{ and 74 ; — shows that on this tlicrt! is not much dis|>ute ; so
that I collie at once to what tlie national tlajj amounts to— what
its |)rolection ami ininiunity from interference is worth in times
uf |-eace, and what the position of the I'niteil Slates has Keen
in that connection for many years, if not always, until perhaps
now- — and what the position of Kn<,'land has heen certainly since
l.M.ig, after a very loni,' and thoroue;h threshiiit,' out of that (]ues-
tion with the Tnited States Government itself. If nij^ position
he correct it sweeps away every consideration of these domestic

")0 matters surrounding the dirterent ships and the conm>ction of
the Havaiian as a mortgage!! 'if a Ihitish ship, or the connection
of any citizens domicileil in I'ritish territory as partners or in
any other cafiacity. There is an interesting return laid liofore
the parliament in England containing the correspondence with
tlie United Statts on tin; ([uestion of tlie right of visit. It is
piililished in the hlue hook entitled, '' Accounts, papers. Navy
l!So7-'>M, Vol. 8!( ". I would like to call particular attention at
the outset t(j the very signiticant language used in this discii.s-
sion.

(JO In a letter from the Consul Ceneral at Havana, dated May

iStli, l)S')fS, to Mr. Appleton, he says:

to the world tlat we have always contended

for the freedom of the seas and have insisted that the flag of an
'independent nation home by a vessel shall give her immunity

•10

42n

(Sir Charlo.H H. Tupimi's ArKumont.)

" af^iiiiHt stnnpu^i) or aniKiyAiioii for piirjiDscs of visitalion or
" si'urcli. Wli('n such is flm prinriplr annnunccii by uh it can
" liut be matter of ninrtiliciitioii to ail wlio fci'i an itit('r('>it in our
" (lay to si!n till! pi'inciplu violatud uonstaiitly almost lu sij^lit of
" our own slioii's. '

Mr Dickitison ;— Who is that Consul (it'ncrai ? What is
Ills iiaiiif !

Sir ( '. If. 'I'uppi^r : — A. K. lUythc l.onl Napifr, who was the
ri'picsiutativi' of (iicut I'lrit'iin at Washington in IMoH- -writing
III any rati' from Washiiij,'t(m in iSoM, says in a report to IjohI
Malinsliiiry, " referring to ihu iliscussion with (ieiwral t'nss who
was the Unitrd States Secretary of State at the timo : —

" I have ailverteil to the same sulijcct in conversation with
■ tlie Secretary of the Navy anil willi several f)thcers of tlie
" American si'rvice. The general impression certainly appears
" to he tliat, tlie vessel of war is justitied in enforcing,' the ex-
■ hiliition of a flai,', hut not to ),'o any furthei in ascertaining;
" whether the tin;,' is justly assumeil."

Tiiere is aiiotlier interesting,' citation which shouM l)e hrou^jht
foi'ward. In the correspondence pioduceil at I'aris hy the Fnited
States Government, (Volume H, pn^'e !J.S7), there is an historical
leFerence to the liussiaii Aichives, an extract from a letter fi'om
Mr. l{icord, wheie the protection of the l\ussian lla^' at that time
and the value of it is hrotiyht out I shall not read the whole of
it. It shows the practice hm;,' aj,'() as understood hy Russia, " the
'• stipidution that whalers shoulii he allowed to lly the Hussian
;j() " Ihi;,' is very ailvantaj^'eous to us from a political point of view."
That is sijrned by tlu- (iovernor.

Mr. Hickinson : — What, is his name ?'

Sir ('. H. Tiii)per : — Count Jaco Lambert, Vol. '■], Wharton,
contains a passa;,'e which is useful (para},'raph 327, pa^it^ 128),
where! Mr. Forsyth, Secretary of State, writinj; to Mr. Stephens,
on tlu! representative of the United States in (Ireat Hritain in
1 .S4(), says :—

" It is a inattiM- of re<;ret that this practice of fraudulently
" iisinj,' the tlni.' of the United States to cover slavers has not
' (dread}' been abandoned. The President on learnin;^ the abuses
" which had i,'rown out of it, and with a view to do away with
" every cause for its lonj^'er continuance, luivinj,' now directed the
" establishment of a competent iwival force to cruise alon^' those
" |)iirts of the African coast wdiich American vessels are in the
" habit of visitin;,' in tlio pursuit of tlwdr lawful commerce, and
" where it is alle;,'ed that the slave trade has l>een carried on
" luider an illei,'al use of the tla^' of the United States, has a riyht
"to expect that positive instructions will be gi'en to all Her
' Majesty's oHicers to forbear from hoardinj; or visitinj^ vessels
" und-r the American lla:;,"

That was in 1840. There is a reference in the British Ariju-
iiient to Mr. Hayard's o|)inion in IfSMd, (at pa^e 42 of the British
Ar;,niment), where he wrote to the British ambassador in the case
uf the " Ij. M. Merritt," as follows: —

" By the Law of Nations as it is understood in this department,
" the citizens or subjects of a particular countrj' who are owners
" of a shij), are entitle<l to carry on such ship, when at sea, the
" Ihij; of such countiy ; and Siich tlai,' is to he rei.;arded by all
" forei;;n sovereigns as tlie bad;.,'e of nationality."

This is the case of a vess(d wdiich, if I remember rie;ht, (and
1 had the advantajje of seeini,' the papers respectini; it from the
Department of the Secretary of State, which I can furnish my
trained friend if he cares for them), was comini» to port without
any ship's papers. The position of Mr. Bayard was, — " That is

')()

(iO

^11:

II ll

' Ijl:

424

(Sir Charles H. Tupper's Argument.)

" no concei'n of yours in time of peace, that vessel is carrying an
" American Hag hihI this cjuestion of ship's papers is a matter of
" domestic concern."

Mr. J)ickin ion :— He saiil, however, that citizens or suhjects
who are tlie owners of a slii|) iiave the right to carry the ting.
Sii' C H. Tapper: — Ves.as against the nation giving the right,

10 but tiiat iloes not (h'stroy the force of mv reference which is a
reference to tlie value of the flag once given ; tiiat was never a
qnextion for a foreign nation.

The Commissioner on tlie ]mrt of tiie United States: — How
<liil tliat ease come up and wliat was done with the vessel ?

Sir (.". H. Tiipper: — She had entered a Canadian port and slie
l.,i;! no papers, anil it was a (piestion at the time, whether as the
United States were contending, they could license vessels for
certain purposes in eoinieetion with tiie late Hsheries treaty, and
some <liseussio:i had taken place. I thiid< in connection with

20 that the authorities in Canada contempliited the exercise of smiie
supervi>ii)ii over her ship's papers. Finding she hiid not any,
the communication referred to was written, and Mr. Hayard
answered in etl'ect : — " She had the ting, and that is enough for
yon."

I refer now to the c'iplomatic corres|iondence in thi; Paris
Record. l''or instance iln- nations iiignged in these very matters,
i'n connection with the protection of the seal Hsheries, saw, all
through, as the evidence shows, what a jiossiiile dangt r there
was, no mattei how much (^ireat Hritain and the Uniteil States

:>() might be in accord in coiniection with the seal tisheries. True,
wi' may agree to prohibjt l-nited States and English ships seal-
iie; in these waters, but what will that do? It will drive
Canadian sealers and United States sealers to Hawaii and Japan
and they will obtain their registry, not Ihitish and not of the
United States, but iMiiler the protection of those (lags, these vessels
will contiinie the business regnrdless of regulations \v{'. ado]it
That was the view sulimilted and discnssecl. It is impossible for
us, once declaring this Sea to be free to the world — it is inipossilile
for two powers to etl'ectively police that sea. Mr. Blaine denl-

40 ing witli it on one occasion, declined to consider thnt as material.
Russia, he said, for obvious reasons would prevent the Russian
Hag from lieing use<l ;(iermany had only ajipeared once and it
was a remote contingency to suppose her ships would come, and
in connection with the other poweis the United States and
(ireat Hritain would succeed in oiitaining from such powers a
promise to ]>revent tlu'ir flag from beiitg used. Phis correspond-
ence indicates that th"se nations recognized what might be done
inider cover of another Hag nnd the impossibility of either of
these two gi at powers going behind that Hag in order to pre-

")() vent Americim cii'zeiis or Hritish sniijects from enjoying its
protection. For ir.stance, in I.S!ll,.lnly 2.'!, .\lr. Whaiton wiiting
to Sir Julian I'auncefote, |iage l,S-J.2, N'olume 5 of I lie I'aris
Series, discussing another' phase of the (|nestion says : —

"The United States might well insist that Her Miijesty's
"(lovernmenl should admit nv.ponsibilit j for the acts of the
"Caniidiun scalers which it has so dji-ectly encouraged and
" promoted, precisely as in the projjosal the United States admits
" the lesponsibility for the acts of its revetun.' vessels, Ihit witli
"a view t ■ ■ uiovi; what seems to be the last point "f (litleieriee

(JU ' in a disei:^-lon which has been vt'ry much protrjicted, the I'resi-
" dent is willing to modify his proposal and directs me to otfer
" tlie following :

" I he (ioveiiniient of (ireat l^ritain having |)resented the
"claims of its subjects for conrpensation for the seizure of their

42.-)

(Sir (;iiailfs H. Tuppui's Argument.)

" vessels l)y the United States in Heliriiiif Sea, and the j;()vern-
" nient of tlie United States having,' ])res' iited on its own lieiialf
• as well as of the lessee of the ])iMviley;e of taking seals on tlie
■' I'lihylott Island claims for compensation hy reason of the kill-
" in<{ of seals in the iiehrin^ Sea hy persons actiiiij under thi^

■ protection of the British llajjf, the arliitiators consider and
10 "decide upon such claims in aeeonlance with justice and e(|uity,

"and the respective ri;,'hts of the hi;,di coiitraetin^ parties,"

On December 7th, hSDI, pay;e !)l)l{, the MaKiuii of Saiislmry

wrote Sir .luliaTi I'ouncefdte as follows : —

" Her Majesty's (lovernment do not tear that ret,'u!ations

" which linv(! heen made hy the Aritrators will he rejected liy any

■ of the maritime powers ; but tliej- think there is nnich ground for
' apprehension that those powers may refuse to accept treaties
" framed for the purpose of .''-.rJilinf; our cruisers to arrest ships
' which are violating the regilations while sailing under theii'

20 " Hag. It must he expected tiiat under the circumstances sealing
" will lie pursued under their (lags during the close times."

On Deceuiher 1st, KSiU, Sir Julian I'ouncefote wrote Mr.
I'llaine as follows : —

" 'I'here is nothing to prevent such third ]H)wer, (Russia, for
" instance, as the most neighhoring nation), if unpledged from
' stepping in and securing the fishery at the very seasons and in
" the very places which uuiy lie closed to the scalers of (lieat
" liritain and the United States hy the regulations. CJreat
" circumspection is called for in this direction as British and
;!() ' Auieriean sealers might recover their freedom and evai'e all
" regulations hy simply hoisting the tlag of a non-adhering
" power."— Executive Document, Senate No. (i?, page 24.

Mr. Phelps wrote to Mr. (Iresham a letter which I read yos-
ter<lMy. In adilition to that Mr. Carter one of the United Slates
eotmsel in writing to the Secretary of State, J'age 2(!, ot this
volume of Senate Documents .slid : —

" If it should turn out that the regulations have destroyed
' the profits of pelagic sealing or reduced them to so low a ])oiiit
■' as to afford little temptation for the Canadian and American
4(1 ■' vessels to engage in it their lirst resort will he to seek the pro-
" lection of anotlier flag and this may easily he ohtained indess
" all t'' ' Maritime powers should he inducetl to adopt and enforce
the re,_,ulations."

And again Mr. Hayanl wrote Mr. Gresham, on Nc)vemlier 1st,
I.SD.'J, page 41, of that volume of Kxeentive di)cuineuts, saying : —

' And at the proper time, and m such mode as may he deemed
" most advisable, such co-operation will lie claimed by the Ignited
"States; but at the ))i'esent writing, the point 1 desire to
" make is the word of a friend by notification and caution to .lapaii.
."itl " ("orea and the Sandwich Islands, lest the use of their tlags might
" be obtaineil by the solicitation of fur-seal hunters from the
" United States or (!reat Britain and her colonies."

And again Mr. ( iresham at iiage4.'> of the same vohiuie, cabled
to the L'nited States representative at 'I'okio, as follows : —

" It is reported that American and Canadian seal lishery
■ vessels may be placed iiiider the .lapaneso (lag next season,
"Comity will naturally counsel Japanese (iovernmeut to defei;t
" any such atteinpto<l abuse of friendly flag to evade results of
" I'aris arbitration."
• ;() Now it appears during the argument that the subject was so
dealt with, (Vol. [>, page lo!*); I mean the written argument
tiled before the Paris Tributuil. " Nm- ii-' the sea free to any
"vessel whatever, not carrying the flag of some comitry and
"shown by its papers to be entitled lo carry that flag."

•i<.

■k-

'f'm

il !

mmmp^

iii«.iiVJ|^wij. „..j.,,^._^4 —

■lUJU^IU-i-i- ,

42*1

(Sir CliiU'los H. Tujipt'r's Ar^niineiit.)

-Mr. I'helps, ill that ar-nnient, at paj,'es 222, 22.S, 224 and '.Ul ,
niHilo olisorvations wliieli ] tliinU wo ail would liicp to have
bet'oii' lis in coiisidpring this suKject. He says, in discussing fcjr
instance, pirae\', and tl\e jurisdiction of nations in conncotiiMi
witli that crime, in rej^ard to siiips forming part of ditl'erenl
jurisdictions : —
10 " ^^'^y '*■ *'•"' taken away in the case of piracy i* In tlie casi'
" of nuirdt'i-, of rohhery at sea, whicli is what piracy really is, —
" why may a man ho taken to any port if the country chooses to
" exercise the Jurisdiction and lie trird and condemned and
"executed f Siin])ly hecause the protection of nations reipiireit ;
" simply hecause in the days when jiiracy was more fre(|Ueni
" than it ever can he ai,niin owinijto improvements in navipjatioii
" it was necessary to the protection of the world and of maritime
"nations whose ships were afloat upon the sea that they should
• he required to wait for the slow and possihly tlie reluctant
0() " ]iio('ess of the nation from wliom the pirate; came, to |>roceid
" and enforce it.

" The same rule prevails ahoiit carryinj^ a tlai,'. What is the
" reason, pray, why I may not jnit to sen in a vessel of my own
" upon some honest and innocent pursuit without carrying; a tla.;
" t)f my country or any other /

■' Senator Morj^an : — May you not ?

" Mr. I'helns : — \o, I may not. I understand it to he settled
law that a vrss(d may he overhauled l>y the armed vessel of
'■ another nation unless it carries -iouu' known tlajr.
;{() '■ Seiiiitor Morijan : — Overhauled hy the armed vessid oi n i\

'■ nation '

"Mr. Phelps: — Yes, unless it carries some known (la;4 and
" hails from some known jiort.

" Mr. .rustice Harlan: — Will you state the proposition airain '

" Mr. I'helps : — That a vessel is recpiired, or may be rccpiired
" on the high sea lo sail under the tlag of souu) nation which she

■ is authorized to carry.

" The President : — If there is a /uv>/<»c Mag. It must he under
" the (lag of its nation.
•iO '■ Mr. Phelps: — Yes, so that she 'hails,' as the seamen say,

" from somewhere.

'Lord Hannen:— I think the Senator's douht was one that
" parsed aci-oss my mind, whether it was olihgatory litei'ally to
" carry a tl;ig, wliicii means a flag of some nation.

" Mr. Phelj)' : — 1 used the word ' flag' tignratively. I mean

■ to say it must he registered— legall}- set forth. When I say
'■ 'carry ' a tlag, of course I do not mean that she would never he
' fcjund at sea without a tlag flying.

' Senatiu- .M( rgaii : — It must have a license.
")0 ' Mr. Phelps : — It must have a license — it must have a home

" — it must have papers."

The iiwnership, as the President [lointed out, was only a
moi-al eonsidiM-ation, (at page 224). In connection with the
li'gislation that .Mr. Phelps said was going through Congress, a
eon\ers!)tion which 'onk ])lace het ween Senator Morgan ami hiui
in regard to it. At [lage l.'JlT, discussing the regulations, Mr.
Phelps was talking of siigge'stions of th.e Uritish government as
heing unsuitalile or impraeticahle and he said : —

■ Now, stup a moment and reflect. Here you are in the

(il) " I'ehring Sea. There is no Au.eriean jiort nearer than the

" I'liiled States, an<l no P>ritish port nearer than Hritish Coluni-

' Ilia. The Tnited Stales cruiser seize.s a vessed caught red-

■ handecl in thi' act, — a crinnnnl vessel, so to speak, if that is a
"(■iirn'C; expression, and lake- her pajieis and sends them home.

427

(Sir Charles H. Tapper's Argument.)

" There is no mail from there. You have to keep them until
"the United States cruiser reaches some American port, where,
'• by some American official, these papers can be forwartie'l ta
" Canada. Where is the vessel in the meantime:' You are deal-
" ing I say with a vessel that is out for the purpose of violating
" the Uw and regulations. You are not dealing with a re.spon-

10 "sible ship. You are dealing with a tramp of the oeea >. I.s it
"going hack to surrender itself at Briti.sb Columbia for the sake
"of being condemned? What interest is tb.ere in a countr)'
' where all the sympathy is all the other wiy, i;i prosecuting
" thi-< vessel <

" The President : — They are registered vessels an i covered
" by a flag.

" Mr. Phelps:— Yes.

" The President ; — If thej' do harm in one year they will not
" continue to do it indefinitely.

20 "Ml Phelps; — If they are not condemned they will nut go
" home, — no ship of that character. I do not deal now with a
" vessel on an upright errand, which, having a false charge
" brought against it would go home and meet it at once.

" Tli(! President :— But a ship cainiot become a vagrant on
" the higli seas unless it is n pirate.

" Mr. Pliflps : — No, but it can go to some other port and
" shelter itself under another Hag. I pointed out the other day
" what we meant as to these vessels having a different owner-
"ship from the place of registry,"

30 There is an interesting bo,)k published l)y William DeBurgh,
of the Inner Temple, in 1HG8, on the Elements of Maritime
International Law, and on page 6 of that work he says : —

" The fact of a .diip at sea being subject to the jurisdiction of
" the state under whose flag she sails, is a most reasonable and
"advantageous regulation ; if not amenable to the jurisdiction of
"their own state, to whom w<)uld the crews of ships, at sea, be
■'answerable? And if they were amenable to no t 'ibunal, the
"sea wojld be a place where every crime might be committed
" witli impunit}'. "

iO 111 Davis on International Law, published in 1887, page 379,
it is said : —

" The belligerent right of search has never been seriously
" questioned, and is accepte<l by all nations as a fact inseparably
"connected with the existence of war. A right somewhat
" resembling it, called the right of visitation, has been asserted
" to e.tist in time of peace, but has never received universal
"sanction, and is now generally abandoned, save in a few cases,
" where it maintains a lingering existence by treatj'. In the
" long controversy which was carried on as to the assumed

,')0 "legality of this right, during the early part of the present
"C(Miturv, iMigland and the United States were the principal
" contestants.

" It was maintained, on the part of the Hritish Government,
' that the right-- of .seHicli and visitation wen.' entirely distiiu't
" from each other, having a dilVereiit (uigin and purpose. The
" right of search was peculiar to a state of war. The right of
"visitation existed in peace, and consisted in such an examiii-
" ation of merchant vess.ds, on the high seas, as was necessary
" to deternune their natioDality, the suffieieiicy anil regularity

tiO " of their []aper:>, and the legality of the undertaking in which
"they were engaged.

" (_)ii the part of the United States, it was contestecl that the
'right of search was an incident of belligerency; that it existed
"only during the continuance of war, and not only did not exist

1: ' l(

i»!ijy!Mf||!ji Mil' .w»i

428

(Sir Charles H. Tupper's Argument.)

" in time of poaco, but an attompt to excirciso it was an invasion
"of soverrtiiftity which, if not lii^claimoli woiiM constitute a just
" cause for war. "

There is a litti." book, a suniniiiry of International L'lw from
these authors, puliii>!iieci by Herbert Wolcott Bowen, in 1890, in
New York ami Lin^lon, ami it is an attempt to present the

10 principles of International Law simply anil concisely. It is a
codification of notes taken on treaties, municipal laws, ami the
works <if publicists, especially Whcaton, Woolsey, and Wharton.
I am pleased to find in the opinion of this writer, that we are
supported in the position I am endeavorinj^ to take. At page
f>7, paragraph 181, he says :—

■' As a rule the nationality of a shi|) is determined by the
" domicile of the owner, unhiss she sails uiuler the flag and
" paper.i (crew-list, shipping artich's and register) of a natio'i in
" wliich he is not domiciled, in wliich case sIk; is deemed to be

20 "of the nationality of such Hag and piip.irs. The Hag only oH'ers
"prima facie uvidence of nationality; the papers, however,
" must be accepted on the high seas as valid by all nations, un-
" less the nation that issued them <lecides that they wore secured
" in contravention of its laws. Each nation has the right to
" regulate the documentation of its ships, and to legislate as to
" whether or not it will ailmit foreign-built vessels to the privi-
" lege of being registered and of paying equally light duties
" with those made at home.

" The United States do not admit foreign-built vessels to that

30 " privilege ; but such vessels when owned by citizens of the
" United States are entitled, if they were pin-chased in good faith,
" and if the ownership is absolute, to be regarded and protected
"as American propertj' and to Hy the flag of the United States;
" and tlie consular officers of the United States in the ports in
" which such foreign-built vessels were purchased may make
"records of the bills of sale in their oflicial registers, authenticate
" their execution, and provide the purchasers with certificates to
" that effect, and endorse o;i the certificates the fact thnt the jiur-

■ cbaserH are citizens of the United States. These certificates
40 ■■ furnish prima fucie evidence that the sale was bona tide.

" Home made shijis of the United States are entitled to be
" registered, if employed in foreign commerce, and to be enrolled
"and licensed, if employed in the coasting trade or fisherie.",
' provided they are wholly owned liy citizens of the United
" States. Wht^n owned wholly or in part bj' foreigners the\' are
" entitleii to be reconied, iiutnotin general to be registeied or
" enrolled and licensed (Act of 17!>2). As international law does
"not prescribe the documentation of ve.«se|s, the nations in order
"to avoid difliculties with one anotluM' generally have stipu-
oO ■ lations in their treaties to the etrecttliat if one of the parties to
"the treaty is engagecl in war the ships of the other party shall
" be furnished with sea-letters or pnssj)orts.

In Wharton, Volume 111, page (it):}, paragraph 410, it is said;

"Ownership is the basis on which n.itioiiality rests; owner-

■ ship is evidenced by bill of nale and guaranteed by the Hag
'■.the ship carries; foreign nations will not look into the question
"of title, nor examine bow far municipal laws have been com-
" ])lied with so as to enable th(! ship for municipal purposes to
"carry the flag; a certificate or passport, tiierefore, from the

60 " sovereign of the flag, or a certificate* from one of his consuls,
■' that the vessel is owned by one of his citizens or sulijects, will
"be a sufficient assurance that the flag, for international pur-
" poses, is rightfiHIy carried. Si-a-letters, as issued b;. the
" Oovernment of the Uniteii States, are in this view simply an

42! •
(Sir I'liarle-* H. Tiippei's Ari^imu'nt.)

■ .I'^suriince l)y the (lO'.eriiiiiont i-<siiini; tlioiii, hiisod (ni owiier-

■ ^liip, of protection on tlie liij^li seas. Municipally such U'tters
• hiive no ertect. Internationally they merely extend to the ship

I lie protection which each sovereiijn, when not otherwise hound
iiy treaty, is authorized by international law to fjive the ships

■ nl' his sulijeets or citizens on the hii;h seas."

'{'here is on paj,re -l-;} of the Mritish Ar<,ninient. a very itnpor-
l.-.iit statement by the Secretary- mI' tin United States Navy.
I'iscd upon the position I am takni;;, and on the construction I
,iiii putting upon the Law nt' Nati(jiis apiilicalile to ships on the
liii,di seas in tin»e of pence. The Commander of the United
.Suites Navy in the Fieln'iui; Sea, in I.S!)4, in order to eH'ectually
I n force the rej^ulations, drafted instructions he proposed to }^ive
to ihe patrol v<^ssrls, and he sent tiiein to the Secretary of the
N.ivy. The instructions read as f()llows, aniunij other thinjjs :
■ It is not believe(l that any friendly power wonlil permit its
llfli,' to be used as a cover for the further perpetration of such
' wronifful acts."

" Should yon fall in with a sealing;; vessid flyini; any lla;^
" other than the American, or the Eni^lish, or clainiin«; to beloni^

■ to ,niy other country, or producini; pajiers in proof of such
"claim * * * you will proceed to warn him not to seal any-
■• where within the limits si)ecitied in the I'resident's proclama-

■ lion."

|ii

!l ^§

,'il) ■ Any such vessel, previously warned, found to have been

■ en^jajfed in sealin"' within the limits referred to, whether he
' has accepted a license or not, you will seize, kc, kc."

lie quickly received orders to cancel such instructions.

' Kevoke immediately your circular letter of i[ay "iS, \o.

14. (.'losely confine self to instructions from the department:

" seize under the award only 'Tnited States vessels and British

" vessels. Do not interfere v.'ith the vessi'ls of other nationality

" if colours anil papers are rejj^ular, kc, kc"

'J'here is the celebrated case of The LeLouis, and before call-
1-0 ini,' attention to the Judj^ment. 1 would refer your Honors to
p,i;,fe i\'.\ of Volume 2, Dodson's Ke})orts, in coiuiection with the
lads : —

" Advertinjf to the character of the vessel, they adnutted that
'■ she was French ; liavin<r a rej^ister as such, and bearini;' the
" French Mag. Hut she had likewise i->rilish colors on boanl,
" and had recently been the propei'ty of British subjects; and
" therefore there was. on the most limited grounds, a special
■'justification to ])ersons under British authority to examine
"into her national character. It was not, from a mere idle
50 "curiosity that this e.Kamination was resorted to; for it wa^

■ I'xpressly certified that the vi".-<il lutd been British, and there
" w.is nothing but the mme a-isuniption of tlag to distinguish he;'

as having acipiired another char.-icter."
That statetuent is in the arguni'Mit nl' counsel, and counsel
M'liiiit, as appears on page 215 :

That the courts of one country are not authorized to take

■ cognizance of breaches of the iiii^re nuuiicipal law of another,
' but contended that thi' present was a case of a very ditterent

licscription."
Ill) Then, at page 21U, Lushington said : —

' If, then, thert> exi.sted no right of search and detention, all
I hat had been iU>ne wis mere lawless violence ; unjust ab initio
mil a \ iohition of the law of nations,"
I'oniiiig to tlu" judgment Lord Stewell, on page 2;<!t, says : —

pif

4;i(»

(Sir (JImrli's II. THpjier's Argument.)

" Neither tliis l^ritisli act of PiU'liameiit, nor any coimiiissi, j
" i'oiiiuleil on it, ciui aticGt any rij^Iit or intcrost of forriynci
" unles.s they are fonnileil upon [jrinciplesand inipose rei^ulatimis
"that lire eon.si.stent witli tlie hnv of niitions. That i.s tiie on;,
"law wliieli (ireiit Hritain can applj' to tlieni ; Mnd tlieijenii
•' alit^' of any terms employed in an act of parliament nnisi ],.■
10 " nairoweil in oon.struction liy a relijjious adlierence tliereto."
On page 242 he further sa/.s : —

" As^mning tlie fact, '.vhicl; i.s indistinctly proved, that tliriv
" was a demand, and a resisi,in.<, o producing tin; deplonihle resul:^
" here ilescribed, I tlnnk that tlie natural order of things eoiupii-
" me t(> enijuire lirst, whether the party who demanded had ,
" right to search ; for if not, then not otdy was the resistanci' t .
" it lawfid, lint likewise the vei'y fact on which the other groiiivl
" of condemnation I'ests is totally removed. For if no right ii
" visit and seai'c i, thi'n no nItiTior right of seizing and hringin-
20 " in. and proceeding lo adjudication ; and it is in the course of
" those jiroceedings alone, that the facts are [)rodnced, that sin is
"a French ship trading in slaves; and it' these facts are m.hl'
"known to the seizor i)y his own unwarrante<l acts, he cinimi
", avail hiuiself of discoveries tluis r.nlawfully produc.d, nort.ik'
" advantage of the e(jnsei|Uences of his own wrong. '
And on ]>age 2V.] : —

" Upon the tii'st (piestion, whether the right of search e Jn|s
' in time of peace, I have to observe, that two [)rincil>les of pulil ii'
"law are generally lecognized as fundamental. One is iln
.SO 'perfect e(juality and entire inilependence of all distinct .Stiitrs,
Relative magnitude creates no distinction of right; rel,i(i\'
iudiecility, whether permanent or casual, gives no addilion:il
right to the more powerful neighbor ; and .any advantage seizi'd
upon that ground is mere nsuri)ation."
And on page 2-H), speaking of rights of search, he says : —
■ For till the ship is searched it cannot bij known whether
" she is a slave trader or not, and whether she belongs to a nation
■ which admits the act to beerinnnal. or to one which niaintain-
it to be simpiv eonnnercial. and 1 say h'gally crinnnal, becausi
40 ' neither tM» court nor any other can carr}- its ja-ivate appre
" hensi(.ins, independent of law into its public jiidgmeids on the
" ipmlity of actions. '

I have no doniil th.it while 1 have ipioted to your Honors
from te.\t-books, an<l from ■ther authorities, these principles, il
has occurred to your llonor~ that I am laboring to upliold ii
pi'inciple not dispute I, a principle ditiicult to conti'adict at this
day, and a principal \"iy tanuliar to jurists ; but to show tli.il
there is a Ii licult}' and end)ariassment in connection with thi-
\ei-,- jj'opositiou, inifxirtaiit to this case, I must read two ni
.")() ihiee passages in the United States Argument that havt; made
till couu'.el ft)r Her Majesty consider it their duty to go ovei
this gro'ind sn often travelled bid'ore, anil, as I have.said, groinid
which luust lie familiar to your Honors, in lader that it may U"!
be said that we lia\e not suppurted otn' position, and given (Ih
answer to tie? opposing contention as completely as pos.sil)le. 'I'm
show what issue is raised by counsel for the LTnited States, take
page 72 of their argument wlnire there is. I venture to say, witli
sinciM'e respect i'or the learning and ability oj' the counsel for tie
I'liiteil State-i, a startling proj)osit ion,
(iO • The i|Uestion here is as to the right of Aineric in authorilv

• to lake an American-owned shi]), wdiate\-er her registry."

Tlii'n again on |)age Si, they say: — "It follows on Ihil i--!.
"and .American authority alike, that ownership, and bona lid-
uwiieiship and not registry, confers the right to c'lrry the lla;:

431

(Sir Cliarles H. Tuppcr's Ai'i,'Uiiient.)

Bet'ofe ruiidiiij; t'litilier I would like to say tiiat this luttiT
[jruposition wouM hu purfcsctly tnu! as ajfaiiiHt tlu' tuuiun ol*
re^fistry, hut, from authoritiuH hefore citud, and IVoui many of
thesu liriot's, I venture to say a stat'^inent not correct as au;ainst
any other. Then my learned friend says on paj^e Si : —

" The position of the United States here, as ulw.-iys, may
10 " ajrain he repealed.

" Tiiat nation asserts without i|ualiKcati'.ii, and with empliasi.s,
" li\at where the tla^f floats over a ship in tiine of peace: any
" other nation invades the fleck undiir it at its peril,"

Keadin;,' that, however, with the Hrst statement, youi' Honoi's,
1 think, will consider our construction not at all e.xtreme, that
the I'uiteil States mean to say that "its peril" means this, —
that havinjf disreijirileil the Hiiff, hiivini; ijone on to the deck
notwithstandinj^ the Hay of another nation Hoated i.t the must-
head, then tile peril involved is simply that if the vossel turns
i!(l out to l>e the hona tide pro])ei-ty according,' to the ilaj^, a claim
for damaijes follows; hut if the vessel tuiiis out t) lie the
pnjperty of an American citizen, though havinj; a rc^^istry in
the country of the Foi-eii.'Ti tla};r which he is llyinj;;, then there is
no wi'oni^.

On pane <S2 of the United States arifument, there is this
further statement : —

" 'I'he tlaj;, and not the rejjistry, should he prima facie evi-
" dence <if ownership. If it should turn out, however, that the
" tliig does not truly represent the actual ownership, there is no
;!() " i^round for reclamation on behalf of tlu- owners who turn out
" to be actual citizens or subjcetH oi' the nation .so invadinjj the
" ship."

How (leliifhted would the Eaolish jfovernment of Lord
Maliiieshury's or Lord Aberdeen's time have been with lanjfuajfe
of that charaet>-r coming from the United States of America.

The I'euson for the trouble was this,— lMi<.;lan<l said to the
United States, as I shall show a little later on :— " We have
tn^aties with Spain, treaties with PortUi^jal, for suppressinjj the
eruel and inii|uitous slave tratlic on the Afric-in coa«t. Under
Mi those ti'eaties, Sjiain and I'ortufjal ayree that we may se ich ships
llyiuLi; their tlai;s in oriler to suppress this t rathe ; but we tinl
these Vessels Myini; the American tlay, and we ask and (;laim the
rio'ht to visit the ship, not to j:;o behind the papers, but when we
tin(i the ship Hies your Hag we claim tlie rii^ht to board the ^'essel
and if Hnd liy her papers she belongs not to the Uiiiteil Slates
but to I'ortU'^al or .Spain, to take hor witho;it nivinif you a cause
tor (|uarr<d or f^rievanet'.'

The United .States position to the I'ontr-iry was taken and
\ indicated, and it is the position of tireat Ih'itain to-day — that
.")!) the lla;;', e\en under these (londilions, would make it, in times of
peace, a wronij for any other power to int(M-fere.

ContinuiniT as to the position of my learn. ■(! friend, takepa;;es
III and ')2 of the Unite 1 States Arguim'nt, where it is siid : —

" It follows, that if (b-eat Hritain shall shift from (he yr.juiid

" lu'retofor(i taken, that ownership in ih.it nation's [)olitieal

subjects is concluded by showin;^ a ship's riiris'.er, and now

' claim the rij,dit to protect Ameriean citizens as agairjst their

"own country becai; ^e of their domicde (a proposition nevor

' ii,,ii(i of before, ex: ![)t in the aiiru uent heri'), the eh.inge

HO " sho\dd start frtun the i^ostidate as to them, that tln'ir domicile

liy residence has been eMiclusi\ely shown, b ith at the tuu' of

" the seizure, and at the t.i'ie of the Ire.ity and ]iresenta:ion of

■ the claims.

"The (piestion remains a to the etl'i-L't of p.irt owui'iship by

" m

.1 1

N !'

1' |i'

liU

■w

4:{-J

(Sir Charles H. Tapper's Ari^iiiiient.)

" ail Ainericim citizen with a Britisli siibjopt. If joint owners or
" partners, tlie whole claim must fail beyond (|UeHtioii."

So that 1 say that the |K)sitioii of my learned friend is not
only contrary to the well settled doctrine of law and practice of
nations, but is a doctrine frau;;ht with the {gravest possibU^
dan^'er, and inconsistent with the imlependence of the nations
10 and with their i!xehisive rifjht in all municipal concerns. My
learned friend, a moment aj^o, su<rj;csted to me the cause of the
dirtieulfies that broiij^ht to a head the discussion which at times
became dani;erous between (ireat Hritain and the United States,
(■reat Britain's efforts to su|)press the slavi? traffic i)ei;an at a
veiy early ])eriod in this centur}-. Her enerj^ies were remark-
able ; C-t()(),()()') were paid Spain, practically to obtain the rijjht
to visit and search vessels carryintj the Spanish tlajr that were
eii^aijed in the slave trathc.

It is to till! crisis that occurred between (Jreat Hritain and
20 the United, States in 1>H4!, that I wish to particularly refer. It
j^rew out of the action that had been taken under the circum-
stances already mentioneil, where the United States tlajj; was
usi'il by vessels not owned nor belon<,'in<; to the United States,
but owned and beloiiiiinjf to nations which ha<l agreed that Kiii;-
laiid could search tl'eir vessels, and should take them if en<faued
in slave tratlie.

Ilistoricus (pawl's IS2: and IH.S) says: —

"The rif,;ht of search is exclusively a belligerent, right.
" Neither the American nor any other (iovernment has ever dis-
J{0 'jjiitedthe right of search in war. What the American (Jov-
' eminent denied in the discussions on the subject of the slave
" trade was the right of search in time of peace. In this dis-
" cussion the Americnn (iovernment was un(|Uestlonably right in
" point of law. The English (iovernment, without maintaining
" explicitly the right of search in time of peace — a pretension
" which would not liear argument — had contended for a iiiodi-
" tication of tiiat i-ight disguised under the name of a right of
'•'visitation,' which it was contended was neeessaiy for the
" purpose of verifying the /w)(ri Jiili'n of the ship's thig, and
40 " ascertaining her nationality. This doctrine was, however,
" found on examination to be unsustainalile, and the (lovern-
" ment of Lord Deriiy in 1S.'),S very properly intimated to the
" Americans their formal abandonment of the pretension."

The foll"wing words are from the speech of Mr, S. Fitz-
gerald, the Under Secretaiy of Koreign Affairs, July 1-, bS.hS.
(Mansard, vol. l.")!, p. 1:^07)":—

'• As I stated to the House not long ago, as soon as Her
"Majesty's (iovernment found that the right which we have
" hitherto as.serted of verifying the? national flag was one which
no " w(! were not entitled to put forward, they thought it only be-
" coming the dignity of a great nation at once to say so, and not
" to ])ut forward a right which we could not justly ami legiti-
" inately assert. "

Lord Lyiiilliiirst in the same volume (p. '20S2) exposes the
absurdity of the distinction between visit and search. He
says :—

" What is the use of visiting if you can do nothing ' The
" moMieiit you ask a single (|uestion it l)ecomes a seareli. Hut
'■ suppose a party visits only in the strict seiisi; of the word, wliat
<iO 'right, I ask, has any person to go on board a vessel to visit it
" without the eonse'.t of the master ? Lord Castleroagh in IS I.")
"applied to the Flench (iovernment to establish some mutual
'■ systiMii by which cruisers could visit the vessels of each
"country; but the Due ])e Richelieu replied that France

4a»

(Sir ('liiii'lcs II. Tiiinici's Ai'^iiiiiiciii.)

WDuld iii'V.T (.'oii^uiit ti) IV uuiriiiiiii! i)i)lii.'i' ln'iiii,' cstjiljli^ilu; 1 on
ll"l' own suhjucts, I'XJcpl \ry [,, ;• ..>ii., '... Ii.n^in^ i,i. li.;, D'.VIl

lUiitrv.

jiatiDiulitv I)

IHMctioal
f tl

liilii'ultii-s ill till

•rlniiiiiiL' tlis

II' Vl'SSl-

vvtTi' iiisi-.ti'il iiiMin IpV tlic r<ii:

I'l

iiiii'iit ; Uiit tl

Liiu'ficaiis ri'hi-^oi

,111 I r^'l'iisoil ,MiC('('«s-

1(1 liilly.tii iitliiiifc Lliis us niiy i,'i-i)iiiiil tor ile|iiutuit^ I'ruin tin- rulo of

llUV. Ill till! Nfimo ijl'lilltl' IjIIIiI MmIiii — ■ r_. , (;.. I ih\,} ) HHul,

llUV. Ill til
uilllllllt

•tlllll

Till- Aiiirriciiii inncriiiiii'iit ussiTt timt tiifv iiu'i ii riirlit to

iiiiiiiitaii'. tiii'ii' own |iiiii(M

if till' Aiiii'riciiii

il timt, wimf'Vir nii;;liL in' nii

i'^iiL lo visit it. 'rii"y sniii llial tiicy (_• )ii-;t;;iitly carricil out
itatioii liy tiicir own |>i)lici', umi tliry wmiid not In- rrici

was llyiiij,' wt' liiiil no
a

itti liy any otiicr conntry.

In timt siiiii>> yi'ar, thine IS.'i.S, tlic Unit 'd States Minister at

■>i) i.niiilon, writiiii; to lionl Maiiiiesliury, (tlie letter is I'ouiid in

(lie liiiie lioolv, voilliuo .'{',), Navy, lti.'i7-'iM uses ant Inntniiii^e,

i ie says :-—

'■ liy tlie tVaiiiiiiieiit iirostitiitioii of tiieir tla^', to eovei- a tnuie

wliu'li, as res|ji

tiie penalties of jiiraey

•ets tlieir own liti/.en-

tlii-r

lllte

tli
State

•y

ll.

•ele

liceiitioii.s msok'iiee to winch al

hap

ire treatt.'il with a
nall\

nations aii; eiinally liable

])ily, liDwm'er, only from tlii> leclvlessiy ei'iinin

resiiit, an ), if ])ossil)le, to piinisii unci prevent that insolunct',
is a (liitv

exeliisiveiy ineniiilient upon tlieir own s

t-re,si)(

'Ct;

:!ii

41) .1

r.o

(iO •

ami their exertions to etleet that oliject in I'Very loLritiiiiuto
way are constant, nnwearieil, anil sincere, lint can it ln^ pre-
ti'iuleil, for tl iiioiiieiit, that tile wroiij^ thus intlictC'l hy
I'oiispirator.s ami outlaws siioiihl constitute a luotivu for the
American ifovernmeiit t > yielil their L'([iiaiity amoni,' nations;
lo forci.^o tlieir aclviiowleiljieil rii,'lits iiiuler the Law of Nations;
to siiliject, voluntarily, their commerce toafoieijuii iiiaiitiiue
police, and .so siiiiendtr their I1.il; Lo the doiiiili.' indignity of
' misuse liy tlie wielded, ami clialleli;;e liy tile .stroll!.; i' "

tieneral Cass, then Secretary of State, in tlie same month,
iiiU'. IS-VS. writini; to Mr. I)allas, says in laiiL;iin:^e wliicli can-
iil he misunderstood : —

'Tlie President is aware of the aluisrs to wliicli the fraU'hi-
leiit ussum|ition of tlie tla:,' of om- oower liy the citizens or
siilijer'ts of another, may j;ive rise, ami lie di'i'i)ly regrets that
llie Ihl'.^ of tin.' lillited .Sl;ates has ever heell prostituted
to uiiwortliy puiposes liy such a reprehensible proceed-
ing. At the same time he eiitert.iiii.s ii .stroni:;
loiix iclion tlitit the oecasional alnise of llio llaj;' of any nation
is ;u! e\ il f.ir less to he deprecated than would he the e.stah-
lishmeiit of a preti'iiKion lil\e this, which i.s iiieom]).itil)li' with
t 111' free lorn of the se.is. Hut while' fi\ ijwin;; t his eiin\ietioii,
lie instructs me to s;iy tliat the Unilivl .States .-ire not less
s'ljieiious than (Ireal ISiitain tli.at a remedy should lie found
for I lii.s false I'luploymeiit of national colours, to wliieli J.iOrd
Maiiueshiiry reft.'i'.s in just teriii.s of condemnation, and the
I'residelit, thoUj,di not prepared to make any sut;'ji'estioii iifion
tlie sulijeet, i.s yet re.-idy to receive any propositions which the
I'liitisli ( iovernmeiit may feel disposed to make, and to con-
sider them with an earnest hope that the objei't may be hafely
.'iiid satisfactorily attained.

" liiil, wliile coinmunieatine to his Lordship tliese faNoralile
seiiliiiiellls of the Presicleiit. it is due to the oceasioii ti i Hji y
that there are j^rave dillieulties in tlie way of recoiicilin^r any
kind of ex.iiiiiiiation, loolviiiiJ' to tlie detention of vessels, with

ill

jl Ii

! U

TWifsif"

l^wi^n^^

4:t4

(Sir ('IimiIi's II. 'rii|i|)c'i''.s Ari;uiiifiit.)

tliiit I'lilirt' immiiiiit\' w liii'li is sn

•riiitfil Sl;lt.

tu t lie Iieu|)lc of tlii

mikI Mil iiii|iiii'tMiit til nil I'niiiitii'ni.'il iiiitiuiis.

1 1

jiract iciil i|iirHtiiiii wlmsf n; Jiitinti ri'i|iiir('s iiiwrli ciiuliuiis enn-

' siilcfiUiiiii. tiMii ;ill tlif iiMsiii'iiiici' tliiit ciin imw lir jrivoii

I'y tl,

«'

vcrmiii'iit is, tliiit if hIiiiII litMliMciisstHl witli iinaiixiniiH dcsin

tliiit it iiiiy 111' MM iiijjiist i'll as tu |ii'cs('iit tlio evil tu lii' cmii-
10 " plaiiii'ij of, wiiili', Mt till' sHiiH- tiiiii', till' ucoaii hIiiiII lir ji't't I'li'i.
'• tl) till' iiii'i'i'liMiit vi'ssi'ls III' all iiatiiiiis, I'acli iiiaiiitainiiij,' its
"iiwii iiiilici' witliiiiit till' iiiti'i'fcri'iici' III" iitlii'i's."

A;;aiii

irlli'ni

I ('ass writ ill!' in Is")!' tu Liird l/Voiis:

I^L'aviiiir (lilt 111' vii

h li

I'W ttic cniiK' Ml jiiiacy, \\ liicli lia|i|iily is
now .si'liliiiii cnininitttMi. tlii' niily instance (t-xi'i'iit ninliTtrcatvi

111 wtiich a slii|

war may ')•' fxcnsi'il in visiting, ili'tainn

' arri'stiiij;. (ir si'i/inj,' miy niiTcliant vcssi'l lii'aiiii^ a I'liri'iL'M
' tiai', is wlicn Hiicli vessel is, for irooij ami siiMl'-ie'it ri'i'-j"";

Ijclieveil to lieloiiif,

fact, to till' coiiiitrv of the visit-

lie

I localise

slii|i. A slaver cannot lie iletiiineil liy a forei<;ii vessel

it is a .slaver, unless the rii;ht of detent

ion 111 Sllcli ;|

case

ha.s been conferred liy the j;ovei'iiineiit te which t

furei;;ii vessel l)elon;,;s. Ivxcejit so far as it may have parted

itii it liy treaty, every nation Iihh
own llaij iijiiin tle'hi^li seas

e exclusive care o

f it^

In this return their is an interestinj; draft of the proposid

iiist met lolls

to \li

riven should the rnited States airree for ii

visit and scare;

" 1<

'M thi

Kii;;laiiil forwarded draft instructions, and sa

ranee ai

ml oiirselveN. and the other I'owerH, are ai;rceiii'r to

And what wi.re they ? 'I'he rnited States was tijrht

llie

for the immunity of the llai;, and declined to allow or coni'iHe
to KiiLrland to verifv the i'i>dit to carry the AmericMii

lermission

, hii'li

you, was to he deterinined liy the {lapei

hoard the ship. Knj^dand did not even a.s

k to j^o III

hind the p,'i|iers. The instriictioiiH agreed to by tli

powers

■aloiis, and I believe

propi

■rh

il(

every power was of awy claim of pretence beine; made liy a

f(i

orHiiiii iiower

';;•> 1

to interfere with their ship.s

uiifier tlie

Ntroiijri.st possible circumstaiici's. I will read the jiroposed ii

40 struct i(

As soon as the niereluint vessel by hoistiii;,' her lla;;. Ii:

established her nnti
no authority over hei

itv, the foreii'ii man-of-war can

Til

e utmost wliiel

e latter c

ail d(

Uncertain cases, to cl.'iim the rijjjlit of Hpcakiiig with lier; that

is to sny, to ask her to rejily to i|iiesti

ddn

d to h

throu^^h a speakin;,' trumpet, but without interferrint; with In

coursi'.

With th

llljeet

it shall be sent toth(

rhicli

lall h

I'll 1

ireviouslv

haili

SlISJ

lec

ted

vessel

to annouiice tin

intended visit. The \r.|-i(icatioii shall consist rif the examination

of the

exhibit!

All I'doi

if tl

roviiii

the ii,'ilionalit\' of the vessel. Tli

lese docuinelits is a

II t

lat can be desired. All

ito tl

le 11,'itliri

if th

or, ill a word, I'li nii\' other

oared, eiimnierciMl ojieiatiiuiH,
it but that of iiatioiialit V, all

o|- Vlsl
itlici'i' intiiist''
jroeei'diiiLfs wit

t of an\- kind, are absol'itel v forbidden. Tl

ith the veritication oii'dit t

o com

lilet his

it di

Ve the \

■1-in^ to enter

iscretion and with all courli'sy, ami

111 .'IS the \e|-ilic;it ion has been ell'erti'il.

ill the shlli

Stan

if th

Ni'i'ihcation, am

jis pai

iMtiers till

fact,

and circinii-

I tl

motives which deterniiiii

iiii to resort to it.

-M

I )ickinsoii

If Jiroposed iiist ructions were never aj^ri

Ill

4nr,

(Sii' Clmrli'N II, 'riipjji'i'.H Ai';;umi'iit.)

Sir ('liiirli'H Mibhcrt 'i'lipjuT : — No; Imt my |p()iiit is tlic
ri'iisonaliiiMit'Ks of tlio rtMiiifst iiiiili,'!' tin- circiiiiistimcds, imil tticii
ilii' position of till' Uiiitt'd Stati's iiotwitlistftmlin;,' all tlicsf sufc-
Ljiianls. " Wi! ciiimot on (iccoimt of oni' or two nioi'i- tiiifortnnat"
iiTi'Lfulftritics and aliases yiuM a saff-^'iiaril alisolntrly essential
to tlie indepence of tlu; niuritinio interests of tin; United
StatoH."

It was not until 18(12 that tiie United Status wert) prepared
to make an arranv;ement of tliat diaracter, as w« shall ueo, with
tJreat Mritain, applieahle only to a limiteil part of the African
coast, so jealous Wert! tliov of any interference or an\' attempt of
nations to ^o hehind the Aniorican tla;,'.

At one o'clock tiia Comniissiuners arose.

-" At half-past two o'clock the (.'omuiissioneis r(>snmeil their
seats.

Sir Charles Ilibbert Tupper (continuinj.;) :

I mentioned a little whih^ as^o that it was in I.S(!2 after these
(|iiestions that J had referred to had been threshed out between
the two poworn, (ireat J^ritain and the United States, that the
United States were at last reaily to enter into an arranj^«'meiit
and to ti.x the terms upon which they would permit tlie (iovniii-
inent of Great Britain to interfere with ships earryinj,' the

30 American tlajr. In the volume entitled " Treaties am] Con-
ventions between the United States and other powers, 177G to
JSS7 " at pa!4e 4.")4 will be found the result:

.Mr. ])iekinson ;— The Ashburton Treaty in 1842 had first the
general provisions as to slavers.

Sir Charles Hibbert Tupper : — Yes ; and the trouble was that
in connection with that, England pressing all the tiine for some
eli'ective power in coiniection with the detection of these slavers,
the United States would not consent, and, as tln> corresp-indence
undoubtedly shows, would not permit the warships of Creat

40 Britain to touch, interfere with, visit or search any ship whether
Spanish or Portuguese in reality, which in a time of peace was
carr3'ing on the \nfi\\ seas the American tla^'. But in 1S()2 these
pnvers reached Homethini; delinite, and (at ]iajj;e 4")4) thei'e is
the treaty of 18(i2 reached by these powers for tlie siippiessioi\
of the African slave trade. In adilition to the observations I
made this mornini;, I call attenlion to the fact that in that treaty
tlie United States took the Lrreatest possible care that even tho
permission to visit or interfere with .ships carryint,' their ilai,'
should be limited to a comparatively small porlinn of the

•"lO waters of the (ilobe, and in connection only with this one tratlic
which both ])owers desired to discountenance, and in refei'-
ence to which the}' were in entii'e accord. We see how
jealous the United .States was, and properly so T submit, of the
indepence (jf their tlai;. Tiie greatest possible cure is taken
here that iMii^land under that tn;at_v should not i;o bi'hind the
papers althou;,di she was )iermitteil to j^'o l.i'hind the flau;. Tlio
articles are set out in this treaty, anil considerini,' the loo'^ time
that we have necessarily occupied in the discussion of all these
matters, 1 do not intend to trouble the (\)iiimissi()ii b\- readiiii;

liii into the record of this art!umi>nt thesu provisions, I merely call
your Honors attention to th(Mii knowing that they will be fully
examined by 3'ou.

The Commissioner on the part of the United States :-~riease
refer briellj to the provision on which j'ou lay the most strus,'

■1. M

IMAGE EVALUATION
TEST TARGET (MT-3)

1.0

1.1

tiiMM 125

■u IM 122
^ ^ ■■■

^ bS 12.0

IL25 III 1.4

1.6

Photogrepbic

Sciences

Corporation

«^

23 WEST MAIN STRIET

WEBSTER, N.Y. M5M

(716) 173-4503

4:t(i

(Sir ("liiirlcs II. 'riipiiir's Ar^umciit.)

Sir C'liftfli's Hililu-rt Tiiitpcr : -TlK-y are nil set out, if your

I '

4.H.

Tlif ('omiiii-sioiR'iMiii tln' part of tin- United States; — HricHv

■r ' ' ■ !!■ (Ml wliicli yoii rely tlie iiiont.

Sir (Iharles llil)liert Tiipper: -Artioie one I think covirs all

tlmt 1 l!e^ilt' to refer to.

Mr. Dickinso:

.Vrticle si,\ vvotiM fiive tlie evidence, on

V,i i' •• _ 1 ii,h>l net uIm).

Sir ('luirifs llililieit Tupper :— .My learned friend i-efers to
article si.x, wliicli deiil> with them erchant vessels detained when
fonnd equipped with certain thing's such as shackles and
nianHoles, whicii would tnidoniitedly ^'o to show that the ship
wa-^ iLsed for only one purpose.

Mr. ])iekinson :- They were made prima facie cvidcnc of
the vessid lieinj; a slaver.

.Sir ("!;;irli's Hilihei-t Tiiiipei- : -I a;;ree in that, lint article one,
20 for my purpose, is the article to which I refer in that trealv

(iO

•ili.iwiii.T liiiw very careful these nations

that

even 111

that extreme case, which is the most extreme that couM
be, when they are allowinj,' this riylit of vi.sit and search, it pro-
vides that wdieii the papers were all rii;;ht then the foreij;ii
jiower .should lie satislied, and any irrefjidarity heyoiicl these

the ;i<ivernmiMit e;ivin;; these

pap

'IS was a matter solelv lor

national papers or national certitieates. Hut itdid not lie in the
forei;,'!! ^^ovcrniiieiit to <io lieyond these doeumentK.

The ('(inimissioner on the part of the I'liited States: — I't^--
'.\0 haps you would re;id into the evidence which you rely on f

.Sir Charles Hililiert Tujiper :— I am much ohlij^ed to your
Honor for that sn;,';;estion.

Article I, reads: —

"The two liij^li contriictinj; parties nnitnally consent that
" those .(hips of their r>s]ieclive navies which shall lie proviled
'■ with Hiiecial instruction for that iiuriiose, as hereinafter iiieii-

lioned, may visit such merchant vessels of the two nations as

" mav. uiKiii retisoiiabie jfrounds, lie susiM'ctiu i,, _ , ii^ain'il

"in the .\friejin slave tiiide, ur of havinjj; been fitted out foi'lhat

40 "purpose; oi- iif haviii;,'. d'M'in;; the voy!i;;e on which lln'yaie

"met by the said cruisers. Ih'cii en;ra^'ed in tin- African slave

inlrary tothc> provisions of this treaty: and that such

trai

cruisers mav detain, and send or carrv awa\'. such vessels, in

order that they may be bi(iu;;lit to tri.il in lie' iiiaiiner leTiii

ifl

er a^leeil Upon.

Ill ordi'i' 111 tix the reeiproc'il rii,'ht of M'areh in such a
liner as shall be .'idapteil in the attainment of the object of

manner

this treaty, and at the .same time avoid di
coiiiplaiiils, the said ii;,dit of se;ireh shii

mills, cjispiit

aiH

Ulldelstooil in llie

oO " ni.uiiier and acedidinjr In the im

les f.

First, It shall never In

low my;

exi'l'elseil e.v.iM'jit liy V

ds of

war,

RUlhori/ed expressly with I hal obji-ct. aeeoidiiij; to thi' sti]Uil
tionsof this treat\'.

' .SiToiidlv. The ri'dil of se.ireh shall in no ease I

with respect to ,1 Vi'KM

I of till' lia\ V of elliiel'

le exercised
>1 tilii iwo

powers, but shiill be exercised only as re;;ards nierehaol \i

•Is

it sll.lll not be exercised bv a Vessel uf Wiir of I'itlier

' eoiil racliii^; pa

'I \ within til limits of a settlement or iiort. noi

.itliin the territorial waters of the otiiei- party.
ThirdK'. When" \er a nn'iehant vess
f

IS seart

bed 1

>V ■

shiii ot war

the coiiimander of the said ship shall, in the act of
HO doiii;;. exhibit to I he ccimmaiider of lln' merchant vessel the
sjiecial inst riielioiis by which he is duly authori/ed tti .search :
imd shall deliver to such commander ii eertiticate, siyned by

437

(Sir C'lmrlcH H. 'I'uppor's Arguim-iit.)

" liiiiiM-lf, Htatiii^ luH rntik in tlu; iinval Hcrvice of hin country,
" uikI tluMiiiiiU' of the vcssi'l lu' (i<iirni<iiiii.-<, nin! tti.^u tK'cliP'iiig
" tliiit tlic only ol>i<'ct of tlic Ht'iiicliiH toflsrcrtain wlictluT the vcs-
" hijI is eniployffl in the African Hlavi' ii;i('i' rr is f'ttpil tip for tiie
"Hiiid trade. Wlicn tlic st^arcli is inailc hy an olfict-r of the
cruiser, who is n<it the connnnnihT, sncli otKcer sinill <-xiiihit
|0 " to the I'iiptain of the iiuTohant vessel a copy of the hefore-
" niuntioneil sipecial inntruetions, si^nifu '•» *' r coiiiiiiaiiiipr of the
'• cruisei' , Mnil he shall in like-manner ileliver a certificate signed
' hy himself, stating his rank in the navy, the name of the
" couniiancler liy whose orders he |)r(iceeds to make tin; search,
" that of the cruiser in whicli he sails, and the ohjeet of the
" search, as ahove descrihed. If it appears from the searcli that
" the papers of the vessel are in rej^ular order, an<l that it is
" employed on lawful oljects, the oHicer shall enter in the lo^'-
•' book of the vcf.ssel that the search has heen made in pursuance
'jD "of the aforesaid special instructions; and the vessel shall he
" left at lihert}- to pursue its voyoin-. The rank of the oHicer
" who makes the search must not he less than that of lieutenant
" in the navy, uidess the commiind. either hy reason of death
"or other cause, is at the time held l>y an otlicer of inferior
' rank

" Fourthly. The reciprocal ri^ht of search and detention

" shall he exercised only within the distance of two huncJred

" miles from the coast of Africa, and to the southward (jf the

" thirty-se >nd parallel of north latitude, and within thirty

;{(' ■ leajiues from the coast of the island of C'uha."

That is the point of my reference to this treaty. Once they
have allowed an ofKcer of a foreign power to j^o on boartl u ship
tlyinj; their Haj^, and that hy treaty, after havinj^, as 1 have
shown this morning, denied their ri^ht without treaty to ^o on
hoard a vessel tlyinjj; their Maj^ — the moment the papers on
hoard that vessel are found to lie in regular order and that the
V()yaf,'e of the vessel is lawful, then all further enipiiry and
inijuisition is at an end.

Till! C'onnnissioner on the part of the United State.s: — Does
4(1 the treaty nnike a provision for sending in a vessel for condem-
nation :'

Sir t'harles Hihbert Tapper: — l'vn, there is a special jiro-
vision for the prosecution.

The ("onnninsioner on the part of the United States: — Where
were they to be seen /

Sir Charles llibbert Tiipi)cr: — Article •!■, I think, fixes the
lovuii of the courts— the place of the trials. Wharton, (vol. 2,
paragraph II, pu;,'e214) sets out a circular by the Department
of State for the United States toiichini,' the information reijuired
.")(! by the citizetis of the I'niteil States wherever a ehiim arises
against a forei^'ii jrovernmeni and the citi/.eii invokes the aid or
suppoit c)f his national (iovernm.-nt ; at paragraph il I tind
thi" clause : —

" When the claim arisi's from the seizure or loss of any shiji
"or vessel, or the carj^o of any ship or vessel, a certitiu'l copy of
" the enrollment oi registry of such ship or vessel shall be pro-
" duced, totjelher with the original clearance maidfestit, and all
"other papers and doctnnontH required by the laws of the United
" States which she possosed on lier last voyage from the United
tiO ■ States, when the same are in i,lie possession of the clainntnt or
'can he obtained by him, and when not, certified copies of tlie
" same should be prmlucod, together with his oath or atiirmation
' that th«* origimiis are in his possessiun and cannot be obtained
•• by him."

'' I

fk^

Mil it; ^

II ii

if^

mM'f ■■■■

:>^ i :

i , ;. 1

4:iM

(Sir C'linrli's H. Tii])|)cr'.s Ar^^iiinciit.)

TImt \% tlitf circular issued Ijv tlio Stato DHpurtincnt of the
Unit'''! Statt^s, tiiucliiiii; the pfirtii'iilars r(ir|uiru<l by timt
<lc{>ui°tiiii>iit wlii-r*! a claim lias liccii 8«tit to it to lie |ir)-f(>rrt''l
u;{:iiiist II forfii;!! pDWiT, aiiil relates to any olniin arisiiiij frnin
seizure or lo^-s (if ii sliip. In tliiit case, in ucconliiiice witli tlie

imi,' liti'- lit" ailllmriries, :)ll tluit tl\e l"'ei|fnil aiitlioritv wishes to
10 kii i\v fiMUi tliiit |)ai'u;^ni|ili is whether thechiiiiiant in (Miniieetinn
with the ship had, wlmt I have taken the lilii'rty of riilliiii;, ainl
I think with the Rnthnrity of jurists —the national ci-rtifieate
of the sliip. i'lesident (Jrant's inos.viiffi is of iinpurtanee. It
is fonni lit tia'.'es 1 anil 2 of the Kxei;utivi> Doeuinents of the
■t.'Jnl (."oniiri'ss Himhi; of liejiresentutives, 1st Se.ssion, No. Hi) in
th" '• V'r^ouins " ease I'eiiiiit me to call particular attention to
the I'ln ;!!;we 'vhicli. in this year. 1H74, thi! President used.--
..... .1, ...•,!. I.... ,,f s,.pteiiil.er, I.S7(», the •• Vir^'iuius ' was

'..■....;.♦...•,, I ill tile ( 'iistiim House at New York as the pi-opiTtv

20 " (jf n citixi.'ii of the l^iiteil States, he havin;^ tirst made oath, as
•' . ••:■•• ) ),y |,i\v, that lie was the true and only owner of the
".said vessel, and that there was no sidiject or citizen of nnv
" forei;,'!! jirinee or stales directly or indir-ctly. Iiy wa}' of trust,
" enntidenee or otherwise, interested therein.

"Having' complied with the reipiisitcs of the statiite in that
" liehalf, she cleared in the Usual way for tlii' jiort of ('uraeini.
" and on or uliout the 4.tli day of Octolier, 1S7<) sailed for that
" port. It is not disputed that she made the voyaeje accordin;^'
" to her clearance', nor that, from that day to this, she has not
•i<i •' i'.. turned within the tiM'ritorial ,jurisdicti()n of thr United

■ S>.-»..s. If is alsii understood that she preserved lier Anieriean
'• jiapers, and that when within foreij{ii jiorts she made the
" practice of puttinj^ forth a claim to American luitionality,
" v,!.i,;!i 'A as ircoi.'ni/.od hy the authoriti*!s at such ports.

• When. theref<)i-«', she left the port of Kinf^stoii, in Octoher
■■ last umli r the lla<; of the I'nited States, she would aiijn'ar to
" have had. as !'i.'aiii«t all powers except the I'nited States the
" i'i;4;ht to lly thai tia;;. and to claim its protection, as eii,ioyedliy
nil rej;ularly iloeumeiiteil vessels re;;i.slered as a part or oii.i
' ciiiiimercial m.irine.

'■ No st.-ite of wai' existeil. conferrinj^ upon a maritime power

• the ri;;ht to mole.xt an<l detain upon the hi;,di seas a doiii-

• iiH'iited vesKel: and it cannot he pretended that the ' \'ir-

■ e;inius' had plaeed hi-rself withont the pale of the law hy acts
'of piiaey a;^ainst the human race.

" If her pijiers were iire;;nlar or fraudulent, the otlence w.-is
one a;,'aiiist ihi-lawsuf the I'nited States, jnstitialile only in
' their trdiuiials.

Skipping,' a ])ara;;i'aph, I read: -

• Tie principles upon which these demands restecl conld not
'• 111- sriiiiusly i|UeNtione(|, hnt it was sn;,fj;ested liyihe Spanish
'■ ;;overnnient ih.at there were ;,fr!i\e donlils whether the ' \'ir-

■• ;;inins' was eiil iilid tutl haiaeter ei\en her hy her jiapers ;

"aiidthat thei-efure. it nii^dil he jnoper for the I'niled .Siatis,
"aftei' the snriendiT of the vessel and the survixdis, todispen.se
" with the salute to the lia;;', should such fact lie estalilished to
" their satisfaetion. This seemed reasonahle and .just. I tiiere-

■ fore asst.nted to it. on the assnranee th.at .Spain would I h< ii

■ deelare th.it no insult to the lla^ of the I 'nited .Stales had I u

<)l» ■• int.nd.d."

A;,'ain skippiiiLC a ii.iia;;raiih, I read: —

"The surrender of the vessel anil the survivors to the juris-
" diction of the trihunals of the I'niled States was an admission
"of the principles upon which oiu' demand had lieeu foundefl."

.)(»

(Sir I'lmrlfs H. 'rnppci's Arf^iiiiifnt.)

'I'lint tMiviTs llii- cviilriKV l(» wliicli I ailvt'i'ti'i] this n.oriiin;;:
llii'i'viilciK I- ix'li'.'ir iiikI ii<>( ili^piili ;I tli;it IVaiiil Inn! iMTiiprdcliscii
iij)i)ii tlio liiws of till' I'liilril Stud's; tliiit SpiiiiitinlH wimt tin-
ri'ul nwiii'i'M iif lliitt vi'Hsi'l ; tliiit tliiit vrsHi'l ImviiiT Dlitniiii'il ii
tiHiniult'iit it';;iMtiy I'loiii tlin riiiloij Stiili'.s, iiinl Irailiili'iitly

•■siiiiii'il till- flu 1' 1)1' till' riiitfl Stat

.■!•; cliri'ctr:] with mii

(I ami niiiiiiiiiiitinii ii;,'niiiHt tlir Suvi'ici^fiify uf Spain. Willi all tliiU
i'\ iilt'iici' hi'l'diT liiiii. I'l'i'siiji'iil ( irant ili'ciiii'il it ]ii'npi'r,aMii I lliink
was aliuii<laiitly jiistiii'ij liy iiiti'i'imtional law. to say tliiit tln'si'
iiialliTs wi'fn for till' I'.xcliisivi' lurisilicl iiiii ami cuirni/.aiK'i' ul' tlii'
I'll it I'll Stati'H ( iiiviTiniifiit. It wiis (lirir IIiil; dial was iiisiilti'il ;
it WHS llii'ir (!uniitry wliicli slutiilil a\i'ii;;r llii' msiiJi. aiiij sluiiilij
piiiiisli till' wruMj,' -III) iiialtiT wliiTi' (he artn.il uwinTsliip woiilij
that wlii'i'i? t'li' lla;j was iisi-il Inr assimiiiic^ this iial iniialitv

'iilarlv

anil M.iiiriiiM'i

Iv tl.

'f tl„. I!

I'ml

M'cn wriinj^i"! was tin' iiatnMi tn tak" ni'tmn.

•>()

S(i I WDiilil ri'l'iT ill this ciiiini'i'tinii to ('alvn. panij^raph I 14.
'j'lii' I'llitinii I liitlij is ill l'"ri'iii'li aii'l I .nii not snllirii'iillv satis-
ticil with my kii<iwl«'i|;fi' of that laii;;na;;t' or even with my pi'o-
iiiincialioii of Kri'iich—to rcaij it into Kii;;lisli or in Kri-nch. Hut
I am iihli' to say, or I vnitui'i' to say, that ('alvo lays it ilown
llnTi' that it is for vai'h Stair to fix thi' roniliiions upon which
llii'V may lit'obtaiiu'il, and jnilfirs of tin' nationality of that Stati',
Su in till' cast' of thi' " Monlijo," in Hritish and Korci;;!! paprrs
Mil, (Ifi, |>a;;i' 4(>0, I tind tlu' followiii;,; laii^^naj^c :

" TliiTi' I'l'mains to hi' noticed tlii' allt';;alions of the ( 'olumliian

;}() ■■ .Vrliitrator, that tin- " Moiitijo" w.is mu mtilli'd to Ins rrpiiti'd
'as an Aini^ri<'an vcssi'l, lii'caiisc onlv a third of Iiit crfw wiTi'
" .ViiH'ricaii ('iti/»'ii!4. and that this is a violati<.>n of a law of the
" I'liiti'd Stall's. 'I'lif iindri'si;,jiii'd must ri-maik, first, that this
" is rathiT a ipii'stion for '.lie ( iovcnnnciii "f tin' I'niti'd Slali'S
"tliniifor this Trihunal of Arliitration , ami, si'con<lly, timf it
" I'diistHiitly liappi'iis that (hi' niiiiiiiiiii'iii-- oi' mu'Ii a law
"I'Miniot 1)1' carriril out, owiiif,' to liii' impossihilitv of prorurini;
" such citi/.t'iis. The intsuiiii;^ of the law is that I lie vessel when
'sill' leaves an .Ainerinan port, shall have a certain proportion

40 "of the crew of the class provided liy its provisions. Il would

■ he ahsurd to condeliin a vessel to enforceil idleness in a

" Korei;,'!! port, hecaiise. owinjr to the descrlion or death, or

"any other cause, that |)ro])ortioii had I u disturhed, and

".\tiierican citizens could not he ohtained to supply their
"places. I {('fore the rejieal of the liritish Navi'.;atiou Laws, the
" same coiiilitioii was cxaeteil.as rcLjanls Hritish vessels hut it was
" .'ilway iinderstocid that " circumstances alter cases, " and that a

■ vissei mii^lit lawfully naviy;ate with such a crew as she could
" :ret at a distance from home. The undersigned cannot l'" he-

')*> " hindtlieundi>ulite(| fait that the* lovernilientof the I 'ni ted States
' cipiisiders the ' .Montijo " as an .Aiiieriean sliip. I )n this point

" it is the sole lud'^e. "

The ( 'oiiimissioiier on the part of the United Slates; — What
p,l;,'e is that '

Mr. Dickinson : It was cited first in our hrief.

Sir ( 'liarles llilihcrt Tupper : -It was cit'd in the I'liitcd
."srates lirief on the ipii'stioii of catch.

.Mr. nitskinsoii : ^'es

Siri'harles llihheil Tupper: - I have L,'iven some authority
lilt Im show that no matter what privah' interest were iiiNolved,
iiiid no matter how under the municipal laws p.nties dealt with
tlii'se ships, ,))• what securities may have lictu ohtained upon
tlieiii, the ships were liritish ships. I refer ai,'ain to the case \
iiiciitioiiid this morning', hut I do not think I ',,'ave the paL;e —

•'•Il I"

!'#•

■ it*''

-..ii

440

(Sir Cliarlt'M II. 'I'lipiitTH Aij,nniH'iit.)

tlint tliu.se liL'iiij; Hiitisli .sliijis could only l)i> .'^laliji.'ct to Hritivli

Mr. Difkiii.soM :-- Ht'fort' yon loiivi' l\w. "Mctntijo, " iit pi

4U*J, I wi-li t ) shitf tlic |Miiiit.s aliout wliicli luitli ariiitnitors wen
njiri'Pil. " Till' .'<liip was (jwikmI liy Scc^^cr Hros., uitizi-iis of tin

I'liiti'd Statfs.

Tliat

wns c'on(•l^l^iv^• as Id in r ii.iiiuiialit v.

>Sir Charles llililicrt Tiippcr : — Yes, luil it was in eoniu'ctitm
[liiiioiii that have hccii j;ivi'n in tlio other cases that 1

referred to tie lainjiiaj^e of the iiiiipin

til

Mont

I here the umpire is rel'errinj^ to this verv princip
At paije 4()J):

IJO case

The uiniersii.'ned cannot Lfo I vhind the undoiiiitod ('net that

the ( ioverniiient of the I'nited ■■states considers tli

Monti

"as an American shi|i. (hi this jioint it is the sole jiiilije. "

It wa.s not merely ttecan.se the evidence was one way or till

iitli'T, liut it was in line with the aiithoi'ities I have referred ic

20 that that national certiticate was ;;iven and in times of peiKi

that that iiiitiniiiil eerliticati' is alisolntelv conclusive. It is tl

es, e\en ni ciise u

f tl

ic
ejilies.

riiifii)! il'i'trr. it is that which >^'w

tlie value of rej;istry, secnrin;; as it iloes protection nt the hand:

of the country which j^iants the naticaiality certificate.

To sup]>ia't the |)roii<isiti(ai that the sliij)s clothed with tin
character of nationality are subject alone to the jiower yrantin;

dstration. and that th

esi' Ve.s.sels, rilf

:lit

or wronj;. con-

stitute a part of Piritisli ccanmerce. and under the laws as undi
stood in the I'nited States and (ireat I'iritain. they had receiveil

fiO at thehandsof (ireat Paitain a certiticate of national character.
I referto the lan;;nae;eof Lord Stowell in the case of"l.,e Louis."
where it is said at ]>ae;e 20M, 2 |)od.son; -

" Advertin;^; to the character of the ves.scl, tliey admitted that
" kIic was French ; having; a re^^istei- as such ami Iwarinj; the
" l''rench tla;X- ''"•■ ""l"' '"'■' likewise iiritisli colors on lioanl ami
" had recently lieen the projierly of Uritisli sulijects, anci there-
" fore there was on the niost limiteil ;;rounds a ;.pi i i,il jiistilica-

" tiiai to |iersoiis under lliitish autlioiily ii> • into hri-

" national character, it was not from a meie idle curiosity that

40 " this examination was resoited to; for it

that the v.

had heen Mritish, and tli

was expressly certitieil
was nothiiii:' Imt

"theniei-e assuniplitai of tlaj; to distinijuish her aH liavin;;
"aoiiuired anothei' characti'r.'

Nevtrtlieless tins vi>it was held to he without lii^ht. Wliintnn
says (p. 727 vol. 11, 24.S.)

" 'I reaty or no ti'i'aty a foreign nation cannot 1 1- permitt'd
" to confiscate an American Meichant man cnea;jed in le^itmate

' commerce upon

th.'h

ccau^e

s crew

list

■fulfil tl

le noui

rments of that nation's local oi'dinances,'

■'}() In the I'nited States are;nmeiit we find on pai,'i' 7'.

Ui.t,

{\i<

foil

owini,' : —
The (ille-

tion here is as

to the ri.;ht of Ameriia t.) tii

'American ship whatever her rej;istry.
A^rain on jphlIc M and jia^c H2 : —
" i'liat the position of the I'nited States lieie as al\Na\s iim \

aLjani !"■ repea

ted. That nation as>crts without (lUalilii

nd with emphasis that where the tla;; floats over a ship in
' the time of peace any other nation invailes the deck und'^r il
t its peril. The tla;,' and not the rei^istry should in- prnna

(iO " facile evi<lence of owiiershij). // it .•</niiilil t

t In

lint oiil iii)w< 11 1

tliiil III!' ftiiif (Iki's )I(iI Irnli/ iri>risi'iil tlir iictiial oinierxliifK thvri'
in 110 ijniiuiil for mliniiiitiini oh Iii'IkiU oJ tin' oniiii.-* n'lm
fnrn out to hr (ictuul ciliziiis or .sal)jcct'< of I In' ivilioii .■">
' invmliiiy the xliiii."

441

■it

(Sir Charles H. Tiipper's Argument.)

This position cannot lio supportud by authority. It \h in
direct contradiction of the povition succe.sRfuily asHerted by
the United states, us I have more than once said.

If your Honors will indulge me, I propose to refer rather
fully to a book published by n distinguished man in the United
State*. I refer to William Beach Lawrence. He was the eiiitor
10 of VVheaton's Elements ,.f International Law. He reviewed the
whole subject of visitation and search, which so ininiediately
concerns us in dealing with the proposition the United Ktiitis
have advanced on the pages I have nientioiieJ. I venture to
compare his reference to thin interesting hi.story of the relations
iii'tween (ireat liritainand the United States, with those passages
which, practically, resurrect, for the lir»t time, the position of
(irest tiritain, resisted .so liotly by the Uniteil States, ami, as I
have argu«'d, tinally settieii between these two nations in accord-
ance with the United States views, and never ijuestioneil from
20 1H')1> liy either nation down to the pre^eut day. I quote fn)m
this book : —

On page HH. Lord Palmerston claimed, August 27th, 1841, the
right to search vesseU " to ascertain by an inspection of papers
" their nationality, and that the United States tlag should only
" e.xempt a vessel from scaieh when she had proper papers."

France denied the right of verification except in tinic of war
and elaimetl that " vcMsels sailing under the French Hag eoiilii
" not be regularly seizeii and proceeded against unless by French
"Cruisers." (Page 4W.)
:!() Instructions were given by the British (.iovernment I2tli

December, 1841}, to visit a vessel having American colours lo
a.seertain nationality. (I'age G(<.)

Lawrence observes : —

" The privilege of the Hag is the privilege of the State ; <ii,<l
" }ilii'u there i» inula Jules m the (vrouijdoers, the Stnt" thniuijh
" coitilexi/ tritivcn itn privilcije, and either permits the State whitii
'" has been injured to avenge the breach of its laws, through it.s
"own tril>unal-i, or will assist it to obtain redress against the
" wrongdoers before the courts of thel/ own C(»untry,if they have
4(1 ' in any way made themselves amenable to punishment ftjr a
' breach of their own laws. (Pages 74 and "iJ.)

" liautefeuiile is quoted as follows : —

" l!» time of peace, the flag of a ship is a sign of its nation-
' ality, not merely priiixi j\tclf, but absolutely, lor all foreign
■ ships. The cruisers of the nation to whom the ting belongs
"have exclusive jurisdiction over it including the power lA
" veriticalionand enciuirj" (enquete). The only exception is in case
"of piracy. As to the words, ' the slave-trade and other unlaw-
" ful commerce,' of which the Treaty of iM+i) spi'aks. they are
.')() " without meaning. The slave-trade is not an unlawful com-
" merce on the part of a Frenchman, except so far as French laws
' ni'ike it unlawful. It is only so with respect to F'rance. What
" I say as to the slave-traile, 1 say of all other kinds of commerce.
• without exception. In time of peace there is not any unlawful
"commerce as regari Is foreign states, unless the individual or the
" vessel that is carrying on the trade is within the custom-house
" limits, upon the territory nu«l under the jurisdiction of the
" foreign state. Thi.s principle is absolute, and admits of no
" exception. (Pages 70 and 77.)
(iO " (jieneral ()ass concentrateil in his reply of April 10, ls.')S,
" the arguments which had been so eti'ectii > in France, sixteen
" years before, with the results of experience and recent investi-
" gation. He declares that ' the ilistinction taken between the
' right of visitation and the right of search, between an entry

Mii

XW.

'1 I'

;<!!■

in,

448

(Sir Ghnrlt's II. Tuppor'n Argument.)

" for thi! purpose! of oxnininiii;* tlio iintioiml character of u
" ves,s('l (ind nii t-iitry fur tlio purpose of ixiiriiiiiin>{ into tin-
"olijnctsof her voyii;{i', cannot l)0 Justly nntiitainccl upon iiiiy
" rft'oj,'nir.L'(l principle of tin- liiw of nntions,' T!ie United Stnti'M
" tliMiy. lie repents, ' tlte rii,'lit of cruis-rs of any power whatever
" t.i entiir their vessels ijy foroe in tinii' of pence, niueli less cm

10 " they permit foreign oHieers to exiiniino their piipers nml
" ailjuiiieiitc upon their nutionnlity ninl whetlier titey are navi-
" niited necorilin^j to hiw. No ehun^e of niiuie run cliun^^o tiie
" iile;;iil eliiinieter of the iissuin|)tion. Seiireh or visit, it is
'• eiiualiy an H.ssault up »n the iuiiepetnienee of nations.' " (I'aj;eN
S^ and ^!t )

Lord .Mahiiesliury said :- -

'■ Not Ion'.; aijo he (the Karl of .Malnieshury) endeavoured to
" ol)tnin from all eivilizccl eonnti°ie>'. some a};reenient l)y wliieh
" Hritish oHieers nii;;ht know exactly how far they coulil ^o in

20 " e;ises of stron;^ suspicion, and he protected hy t!io «;jreenient.
" lie was antiei|)ated i>y tlie French ( ioverinncnt, wiiich laiil
" down this law : That, in time of ])eace, no French Hhip hIiouIiI
" hi.' detaineil or searclied or iioarded. hut that certain forms
"should he j(one throuj^h without detainins' the ves.sel, wliich,
" to a certain de;;ree, thou;;li to a small decree, might enahh? the
'■ nati(>nalit3' of the ship to be ascertained, anil her rij{ht to the
" tlai.; she carried, lie had no reason to conceal what ho had
" done since recent events, llr hdil iiiliaitli'il the interntituniiil
'• liiii' <is liiiil iltiii'ii hji tlif Aiivri'dii Minister for Fiirri(in

30 " Aff'tilrn. Ilmitiili not, of roiirsi', icilliont fichii/ foitijit'il Inj
'th<' oi)inioiin of till' liiir oliiriTx of the crown, Imt, liavini;
" admitted that, lie had put it as stron^^ly as possible to the
■' American (Jovernment, that, when it was once known that th«
'• American Hai.; covered the carj^o. (!very pirate and slaver on
" the face of the sea would carry the American (la;;, and that,
"instead of the honour of the country beiuL; vindicatt-d, that
'■ every fact must hriu'^ dishonour on the American nation, if an
" obstinate adherence to its present declarations were persistisl
■■ in, and the American tla^j would hi' prostituted to the worst

40 'purposes. Il(^ had urned that it was necessary in thes(^ civi-
" li/ed times that there should be, if not a ri^ht by international
" law, some a'.,'reement amon'4 tlie maritime states as to how far
" their otKeers niii;ht ijo to rrrifij tlm iiiit'uj»id\lij of re><nt>(n ond
" til'- li'il'iliti/ of lh'i}'fiii(i."—ii^\\ lOS, l()!t.)

In 1^+4, in the House of Coinmons, Mr. I' t/^orald stated the
views (if her Majesty s government : —

" Mr. FitZi^erald would now inform the hi nouruble f^entle-
" man wliat the views of Her Maji-sty's f^overiiiuent wim'o as to
" the claim of the American ;5overnmi'nt that the ri^jht of search

50 "or of visitation should be renounced. This ri;;ht had no
" iloubt been a constant sourci- of irritation between the two
■ nations, and, whatever mij^ht have been the practice of precfd-
" ine governments of this country, it had never been aiimitteii
" by the Auioricans. It hail become the duty then of Her
•' Maje.sty's (government, in conse(|uenco of thu unfortun.ite
" circumstances which had recently transpired, to enquire what
" were our rij^hts ; whether, if we had such rij^hts, wo should
'■ be prepared to stand b^' them ; and whether, if we had them
" not, we oui^ht not at once candidly to disclaim them. Tht^y

GO "had accordingly taken the advice of the law oHicers of the
" crown, whose decided opinion was that by international law
" we ha<l no right of search — no right of visitation whatever in
" time of peace. That being *», he need not say that they had
" thought it would be unbccuining in the British governntent to

443
(Sir Cliarlt'H H. Tupper's Argument.)

" declare for one tnoinont the avowal of thi.s conclusion." —

(I'lll).

Lord Malniesliury HuiH : —

" Altliou{{li all Hi^riiu tiiat tliu ili^iiity of our scvcnil iiiitious
' woulil l)e Mioro or less couipromlsul hy n rlf^ht of search, I ilo
' (Ml think tlieru can ho any douht of tlu; nuccssity of uitahiish-
' iii.r miint) HDrt of si-curity ai^aiust tin; fraudulent usa of the

■ imtional fla;^. We have jjone no further than this ; we hnvo
' iiliandonud the ri<;ht of viitit and search ; and the American
" (icivernnient have a^jreed to entertain n.nd iionx'ulei' any fUKjijes-
"tiiiii, iv miif nuike to oltt<iin sfctirity aijuinHt the frauiiulent

iixi' i>f llir flofin o/t'Uhrr mttion. The French Oovernnii-nt are
" ready and anxious to assist U4 to obtain the yanio ends."—

(p. i.sr))

Mr. Lawrence concludes : —

" This debate may wed terminate the chapter on Visitation
' and Search in our diplomatic history. It leaves no room for
" doubt aH to the abandonment of the British claim, while the
" ililjicult;/ of convi-ntiondl (nljtiHtmi'ut which doea not concede
" /() erfi'y country an exclusive polux over He veineU Heems to be
■ud,iiitted."—{\,. 188.)

" The Htatoment by Lord Lyndhurtt of the law as now

■ acknowledged, and which concedes to us anexcluHive police over

■ ihe veaseln under ourjlufj, with the admission of Lord Malmesbury
"that the in.structions of 1843, which vested in the naval otficers
"a discretion that extended to the suarchin^; of the vessel
' rnquire to be changed, will show how much has been gained by
" the late negotiations. The immunity of the Hag is |)laced
" beyonil cavil, in consequence of the course adopted by the
" United States; and though a total withdrawal of the existing
" instructions, with a repeal of obnoxious statutes, might liave
" better accorded with a just regard for the rights of ull nations,
' we do not think it possible that tlie order ' to respect the

American flag under any circumstances,' will ever be with-
drawn."— (p. 191.)
Yet, after the observations of that learned authority, and
after that exhaustive discussion, your Honors are face to face
to-day with a position absolutely the contrary of that which was so
successfully maintained by the United Slates Ciovernment ; and
wo are not dealing with crime, not dealing with fraud or with an
oihince against cither the laws of the United States or the laws
of (ircat Britain, as was the case when Great Britain so
energetically endeavored to got behind the tiag. The United
States comes before you with the claim of right to invc«tigate
every ship carrying the British flag, having a British register,
wherever there has been any irregularity committed, and
wherever they are able to say that the British authorities ought
not to have been given that register, or to have allowed the ship
to carry its flag, becuu.se of American interests. There could not
be stnmger cuntradiction, there could not be two po.sitions more
diametrically opposed, than the position of the United States in
1H!)7, and the position of the United States from the beginning
of their in<iependence down to the time of these and other
seizures in 1886.

At half-past three o'clock the Commissioners rose.

;'v.

.!(!*■

Commissioners under the Convention of February 8tli,

1896, between Great Britain and the United

States of America.

Fj(';,'i>lutivi' Ciitiiicil ( 'Imiiilii'i-, I'lMviiiciul JiiiiMiiii,',

At, llalil'ax, N. S., Sr|itciiilii'r !ttli, 1.">!I7

At 11 A. M. tlie ( "oiiimis-iiiiiii'r-i t(

til

SiiC. II. T

"!'!"■'•:

W'lii'ii I '*tii|i]if.l my ar^jiiiiicrit yf>t('i-ilay 1 Iwi'l nnclicil tl

I lull

soiiicwiui
" Vir^'iiiiiis.'

(•iiii>j>ii'rali(iii I [irnpi'M^ tn i,'ivi' tln' ci

.1 II

Iiffiii'i- (ifuiitii,' witli till' iicDni us ili;vi'lii|), (1 i,,
tlio t"oii!.'r('s>iiiiial liiH'iiiiii'iits, F call utti'iition to tlic coiistnii'
tiiiii III' tills casi' ill ilir I'liitiMl States Ari^iiiii* nt, (|.a','i' 77), mil
I I'lialli'iitii' till- coiTictni'ss 1)1" tliul (■oiistructiuii. Tin' I'liitnl
Stall's ( 'oiiiisi'l say : ■

••(III |iiirsiiiii;,' tln' liistory of tin' " Viri^iiiius " casr, in .'!
' Wliaitnii's Intii'iiatiniial Law |lii;t'st,it appears tlmt ii|miii tin'
'/>/'/((((< /!/('/(' casi' |ir('M'Mtcil till' ' \'iri;iiiins ' was the projiiTty nl'

a citiziMof the I'niteil States, wlio was the true and only uwiic;

if the vessel. ISiit, it liaviiii;^ appeareil thnt the ' \'i|Miiiii

was nut DWiu'il in fact hv citi

if the rniti'.l Stat.-s tl

,'V frmii Spain ainl the salute tu the thi'" <'f the lliiili

' Statis Were (lispelis.ij with, as it was cunci'ileil hy the Uliitt
States that Spain had a ri^lit to aiMiice ])roof to slmw that tli
' Vii'iiinius' was nut riL,'htfnlly carr\inn the tiai,' of the I'liiin

40 "State

I hnve more than once aiheited to the case

j;inins" and it will he ;i|ipaient from what I Irive said, wheniii
1 think that this inte: pi-.-tation was not enrrect. I propose nuu
to ^'o ihrollj;!! the record of the' " \'ir;;inills " us it was hroll^lit
to till." attention nf ("on''rr-s.

A t:

elC'Taiil I

ate

rth

from the lliiLid

States Secretary of St.ite to tiie I'nited States Minist

er caIN

attention to the capture on the hi^h seas of a M'ssel liearin;^' lln'

American tia:: -('I'ht.' ( 'on^ressidnal document, pa^je 1 ."> >. At

")() pa.re Is the I'nitid States .Minister wind the I'niteil States

IS toHows:

Secretai'V of Stat" Noveniher Mil, In7'

Tornado had exceeded her jurisiliction in iiiiclertakin;; to capture
u ship under a foreign lla;,' in the open sea," and, (i skip a part )
this iunntniity of every known llai^ on the ocean was a principle
that Spain, in common with all maritime nation^ had an eipinl

niterest in maHit.iminLr in\r

ilati

1 call paitiridar attention to a. note from the I'liited Slates
Secretary of State- to the I'nited States .Minister of Novemln r
12lh, l.S7''{, pa:,'!' 22, ("on^'ressional Deicuinents of the 4:ird Con
I'ss First Session, Kxecutivc Uocinnent, No. HO, (tlie pa;,'e> I

lieu
lar attention to the date of this note, hecause at that time the

liave mentioiu'd are the pa;;es in that document.) I call pai'

I'liiteil States j^overnmeiit was apjirised of the douht as to
wdiether the " Vii^Lrinius " had, as ULrainst tlie I'nited States, the

(Sir Cliarli'H H, Tiippcr's Arjjiimeiit.)

ri^ilit to carry her (Im;, ninl the niinistor is toM that I'lKiiiiry is
liiinir inadti in tlmtiliicctioii. NovfrthcioH", on Mit' 1+tli Novi'in-
lii'T, 1H7.S, tlit!r« was a ttdo^rani to tin- Uniiidl Statt.'s Minister to
ilfiimnii tii«i restoration of tlic " Vir;,'iniiis, " ami ti\-n to insist tlmi
tlic riajj of tiie Tnitfii States 1h« siilutiMJ. 'i'hat is at pa^n 20.
( >n tln! I7iii of Novcinlicr, ]HT.\, the ^'overnnient of Spain, thrnn<;li
1(1 tlie Spanish Minister of Stale, in a coniniuiiinalion to the I'niteil
States Minister, i|iii stioneil wiieiher tiie " Viryinitis " was nut a
lej^niarly liociinientiMi Anieri(*an sliip. For insfimce, the position,

I lal\e it, from tliat letter is tliis : the IImk of thr> Tniteil Stiiti-s
limy iiave iieeii llyirii;, hut we are nsrertaiiiiii;,' wlietlier she wiis

II ri'i^iiiarly (hieuineiiteil Aineiican sliip. On tlie shiiik point
there is a eoiniiiiinication of tiie |,sth c.f Noveniher. IM7H. pii;,'es
H' aii'l 4.'>, wiiere tlie llnited .States Siinister leh-^raplis the
I'niteil Statfcs Secretary of State; "Spain declines to art until
• sill' ascertains otleiici* c< iiiniitteil against tiii- tlai^ of the Uniteij

•Jl» 'States;" j)ai;e 4S, the Uniteil States Minister teie.'raplis the
I'liiteil States Secretary of State on the li)th of Noveniher;
'■ iMii^'iand declined j,'ood otHces toSpiiiii unless on hasis of iiinpli'
" reparation to tiie United States;" pa;;i- 01 and (>2, the rniled
" States Minister CDniniunicatei as follows to the Spanisli Minister
" 20tli of Noveniher, IST.'J: — "The undersii;iied has licietoi'ore
" ileelaied. and he now repents thv' declaiation. in the name of
' liis j,'i)vernment that the '• Virj^inius " was at ttie monieiit of
" her capture on the hif;li seas, a re;,'ularly <lociinieiited American
" ship. Tlie assertion of a j,'()verniuent which has accordi-d to a
:)(! ■' vessel the ri;,dit to sail under its tlai^, is the hest evidence of
" her nationality. Kvery such sliip is registered in the puhlic
"archives. It cannot he supposed that any respectatile state
" would volunteer its protection to tiiose havin;,' no rii,'ht to claim
" it Nor is it usual when, in a case lil<i' thi^t. the injured
" t;overiiiiient aHiiiiis the nationality of the ship, to put that
" averment in issue and demand proof as a pridimiiiaty to the
"consideration of reclamations for an atlVont utli-red to its Ha<;.

"Tilt! undersii^ned, therefore, suhniits to the enlightened
" judijmont of Mr. Carvajal, that, in liarinony willi the usnj^e and
40 " comity of nations, Spain may well dismiss all controversy as
" to the nationalitj- of the " Viij^inius, 'accepting; as indisputahle
" the fact that she was a rejjuhirly documented American ship,
" and, moved liy the traditions of a frienilship uninterrupted for
"a century, proceed at once to accord to the United States that
" measure of reparation which she has already loyally reco>i;nized
" as liefittinj^ her own dij»nity ami due to an ancient ally."

The Spanish Minister replies to the United States Minister,
Noveniher 2iSth, 1H7*<, paye G2 of the correspondence : —

•' Mr. Jose I'olo de Bernabe, duly autliorized liy Mr. Mamilton
."lO " Fish, infurms me tiiat your government, animated hy the hest
" desires of conciliation, would ailmit a settlement on the hasis of
"the immediate return of the '' Virginiiis" and the survivors,
" reserving; tlie salute of the Hag to be performed if tlie Spanish
" (,'overnment do not prove to the satisfaction of that of the
" United States, before the 2'>th of Decemlier next, that the
" Viri,'inius" had no rij,dit to carry the American tlajj.''

At pajjes 6.'}-{j4, the United States Secretary of State t<de-

1,'raphs the Uniteii States Minister, Deceml't-r 1st, 1M73. The

telegram states that the ship and survivors of the passengers and

liO crew are to be restored forthwith, the United States flag to be

saluted by Spain on the 25tli of December, and saj's : —

" If Spain before then satisfies the United States that the
" ' Viiginiiis' was carrying the Hag at the time of capture without
" right, the .salute will be spontaneou.sly dispensed with : but

1 . . ( ■

'.' Il

44(t

(Sir Cliiirlcs li. Tiippi'i's ArjjuiiK'iit.)

" Spftiii in xiicli cam' U to diHclniiii nn iiitunt i)f iiiiii^nity (o our
" Haj;.

" III tlif siiiiic event ilie Uniteil States will insiitiile ii)<|uiry

" nnti l(il(i|(t lei;al proct'edin^H n/^'nilltt tlie ves>.e|, if it lin fiillllil

" Nile lias viiiliileil any liiw of tlin Uniteil Stales."

At pii^e 7l> tlii'ie i'4 a c..inniiinicatii)ii t'loni the AsMisiaiit
10 rniteil Slates Seeretaiy of Stale, Mi', Atlee, tlieii ami now AsMist
ant Secietiiiy of State, ilateil Docenilier .'Mst, l.s7.S, as follows ; —

" Spain liavini; ailiiiitteil (a.s cimiIiI not lie seriously tpiestioneil)
" tliill a li'iriilaily iliieiiniellteil vessel of tlie I'nited .Stales is
" sulijeet nil I lie lii;,'li seas ill time of peace oiil\ to tlie poliee jiiris-
" ilictiiili iif llie power fidlll wllicll it receives its papers, it seemeij
" to tlie I'tesiilent that the United St/lles should not refuse to
" concecle to her the riylit ti) ilddlice proof to sl;i)W that the
" Viryiiiiiis " WHS not, ri„dilfiilly carrying; our flaK- When the
" i|iiesliiiti of national honor was ailjiisted it also seemed that
2J " there WHS a peculiar propriety in our consenting,' to an arhitra-
' tion on a ipiesiidn of pecuniary dauia;;es."

At paLjes 74-"), a iiieiuoiunduni appeavs of an interview he-
tweeii Admiral I'oio ami Mr. Ki-.li, "Jlst of N'ovemlier 1H7.'I:

" .Ml. Kish iiiiiaiked that while the irovi'iiimeiil of the Uniiecl
" Slates we most sincerely nnd earnestly desirous of an amicahh;
"and hiuiourahle ailjiistuicnt of the (piesiion and was ready to
" refer to arliitiation all ipiestioiis which ar.' projierlv siilijects of
" reference, the i,iii'stion ctf an indignity to the ll i'.,' of the nation.
" ami the capture in time of peace, on the hiyli seas, of a vessel
I'iO ■■ lii'ariiiij that tl it; ami liiivin^; also the register and papeis of an
" Ameiicaii ship, is not deemed to he oiu' wliieh is referahh' to
"other povvcis to dcti'iniiiK! ; tliat a imtioii must he the judue
" ami tli( custodian of its own honor, and that hi- could not doiiht
" that Spain herself ever siuisitive to the protection of her own
" honor, aiiil ready to do justice, would appreciate the impossi-
" liiliiy of the reference of such a cpiestion. and that initil atdiie-
'■ ineiii 1- made to ih.' wounded <ii>rnity and siverei^iily of this
" ;,'ovcri. eiit, it (Mi'inot enlerlaiii a proposition of arhitration hy
" ref4'ii'n<;t! to other powers."
40 At paijres 7")-(;, umler date of Noveml.er "JMrd, 1S7:{, tho

Spanish representative yives iiotici? of the takiiif^ of testimony
liefore a coinmissidiier of the United Stales circuit court respecl-
iiiL,' the ownership of tin? Vir^jinins.

At pajfe 7<>, the United States Secretary of State to the
Spanish representative, 24th of Novciuher. lfs7M, acknowledi{es
the notice, and intimates that a ropresentativu of tlit! United
Stales government woiihl attend the e.\aininalion, and adds: —

" The iinili'r->i;.'ne>l feels sure that Admiral Polo will a^jree
" with undersigned that neitluu- party contemplates snlistitutinj;
" such proceed iie.^s in the placH of diplomatic discussion of the
" jr.-ave ijUestioiis involved Ml the seizure of that vessel on the
" hi;,'h seas while sailing; under tho llaj^ of the United States."

At pn;,'cs 7''<-!*, Noveinher 2rith, \H7i), there is a iiieini)randum
of a conversation hctwecn Mr. Kish and Admiral Polo, as fol-
lows : —

' The United States in their own interests, as well as in tho
' interests of all niaritimo powers, cannot admit tho ri<;ht of
" anv other power to capture on tho hi<;h seas in time of peace
CO " a documentetl vessel hearin<; their Ha<^. Tho tla<( which they
" j,'ive to II vesiel must ho its |irotoctioii on the hij^h seas a^'ainst
" all avf^rression from whatever ipiarter. and tlicy reserve to
" themselves the riifht to eiKpiiru whether the protection of that
" Hai' has l)een forfeited.

447

(Sir C'liarlt'M II. Tiippi r's Ainument.)

' They av-eit the ri;,'ht nut only in thoir nwn inttTcut, luit in
" lliit intfi'cNt iif nil niaritiiiu- powcrN, Spnin luTHcIf incliKlcd,
" altliiiii;;!) niiw it In* atxTtcii uppnrt-iitly ui^'ain^t Spiiiii.

"On this {ri'diinii tiicy rt'scrvt! in tlifuisclvcs thf riyht id
" iii(|iiiii' into tlic M';,'nliirity of llu- pnpiTs of tlic \'irj,'iiiiiis, and
" tiu'V Hi'i- pri'pait'ii to ninlvc this i-n(|iiiry, on thu cX' 'ution
10 ■ iniiifuti'd ill the ti-h-^iiipiiic ilt'spiitch from liis ^oviTnincnt.JiiNt
• now it'ail liy A(lini«al I'nio, of the nparution to the indii^nity
'■ conimitti-d to lliL'ir i\n>^.

■' Thf iillfmd di^ci-fpnncy hetwct-n thu description of tlio
" vessel and lii'i' piipi'iH is tcehnicnl. It nmy 1"' that the vcsm 1
" may have siisiuini-d damn^'t* rt'ipiiriii;; ri'pairs, which may
" huvi' involved somo cliaii;,'e, as is sii;.'!,'es|ed in licr desciipiion ;
" liiit it i-( tlie saim" vessel, and slie has not hfcn within tliii
"Jurisdiction of the Tnitcd States since a date immediately
afti'i' that of her ref,'ister, and, tlu^refore, coidd not. have »ncli
2(t •■ chan!,'es noted on that re;,'ister.

■' Hei' papers, therefore, niUNt coiiir to j«ive lier a national
" chaiacter, and. with her tla;,', must he 'i i protection."

At |iai;es .Sl-2 of the correspondence there is a protocol of
('cinfiMcnci', 'Jlllh Novemher, \H7',\ uliich provides for the restor-
ation forthwitli of vi.'ssei, survix" > of her passei:j,'ir.s and crew,
and to salute the tla>{ of the rniiud State on tlii-2')th Deceinher.
It says : —

"'If. however hefore that date Sjiaio shouM prov(! to the
" satisfaction of the < loveiiinieiit of the I'niled Slates that the
3(1 ' \'ii|,'inius was ••ot ei. '.itled, iS:c., fhesahitt- will he spontaneously
' dispenseil with ' . . . Later on, ipiotini; from the |)rotocol,
" ' hut the I'nitei) States will expect, in such ca»e, a (li-claiiuer
" of intent of indiuiiity to its tia;,' in the act which was coni-
" niitted.' This protocol provides also in the event of it lii'ini;
" made to appear to the satisfaction of the I'nited Slat(>s that
" tlie \'Mi,'inius had lu) rii;ht to cairy the American lla;; or
'• papers. ' the I'nited states will institute incjuiry, and adojit
" U')in\ proceedinj,'s a;{ainst the vessel, if it he found that she has
violated any hiw of the United States.' "

Then at pai,'es M4-.">, there is an aj^reement to carry out tho
terms of the protocol, under date of the Hth of Decemlier, 1S7.S.

At pajje 20H, tlu-re will he found Attnrney-(ieneral Williain.s
rejiort to the I'nited States Secretary of Slate, 17th of Decemher
ls7''l. All these documents had heen referred to him with the
r((|Uest for h.is opinion ; also his attention is called to the statute
of tlu! United States, to the United States re;;istry and statute
reipiirini; it to be wholly owned hy United States citizens in
onler to be deemed a vessel of the UnitiMl States. After review-

,-,0 iiii; tlu- facts, hv concludes ; —

" That the ref,'ister obtaineil in his name ( I'attprson's) was a
' fraud upon the navigation laws of th»' United States." . . . ' I
"am of o])inion that she had no such ii<,'ht, because she had not
"heen registered accoidinj; to law'; (to carry the American
" Hajj ) ' but I am also fit" the opinion that she was as much
" e.xempt from interfer' nee on the hij,d) seas by another power,
"on that ground, as th,,(!<jh she had been lawfully reijistered.
"... Spain has no Jurisdiction whatever over the (pU!stion as
" to whether or not such ii vessel is o:. the hii;h seas in violation

00 of any law of the Uniteil States. Spain cannot rif^htfully

raise that cjuestion as to the ' Vir^'inius,' but tlie United States

" may, and, as understandin<r tlie protocol, they have aj^reeil to do

" it.anci, ^'overned by that agreement and without adinittin<ir that

" Spain would otherwise have any interest in the question, I

■'It

I'liHI'

. II

rtil'

-n \i

;u)

(Sir Cliarlos H. Tiippor's Argument.)

" (leciilo that the ' Virginiiis,' at tlie tiiuo of h«r ciipturi>, wns
" witliout rii;ht iiiul impri)perly I'liiiyiiijj; thi' Amcrinan llaj;. "

111 voluiim ."{ of Wharton, pnnij;riipli 327, pii>;i' l')«S, it will tu-
fuiintl that, ill uiiilition to whiit took pliu>t>, ami iiotwithstnuiljuu
that that ship was canviii;; without riijht as u<rainst the Uiiitcil
Statt^s thoso papciN iiiiii that tlai^. atul notwilhsiaiiiling tliat lit-r
10 mission was hostil'- to the intircst'; of Spiiiii in coiiiit'i'tion with
lu!r troiihit' in I'liha, Spain paiil .'iyhty thousand dollars to the
I'liitcil Stall's for tlii' n-lii-f of tin- faiiiilics nf thi> snihu-s iind
passonijcrs on the " Viij;iniiis". The a^'i-fiMiicnt for that iiiilciii-
iiity is ill tilt' {{litisli and Koroigii Stiiti' Papt-rs, vohiiiio (id, wliicii
has lii'cn rotVircd to inon- than oiicc, dati'd the 27th of Ki'linmry
I.S"'). Atpa;;o I l!tof tliii vohiiiif thorf is an aLircciin'iit lictwci'ii
Spain and tlu' I'nitt'd States rt's]iei;tini,' the indc'tiiiiity to he paid
liy S|).iiM for the relief of the families of the ship's conipiiny und
of the piissenijei ■; ivf til"' -"teaiiier " \'ir;;iiiius " sij,'ned at .Mailrid
20 Ftdiitiary 27ih. I.s7'>. It appears tlu-re as fallows: 'The
" Spanish (lovernmeiit eii^^aLTi-s to deliver lo that of the Unite. 1
■'.Mates the sum of SO.OOO ilollais in coin, or 4()0,()()() pesetas, for
" the jnirpose of relief of the families or persons of the ship's
" eom])any and jiasseiiifers aforesaid of the ' Vir;;inins'.

2. " The (Jovermneiit of the I 'iiiteil States enijai^'es to iiroept
"til" sum meiitioiieil ill satisfaeiion nf recdamations of any siirt
" which, in the sense of personal indemnitieation in this lielmlf
" iniijht hereafter he advaneeil against the Spanish (Joverniiient.

.'? " When the sum refi-rreil to in Artieli' I shall liavi' lieii,
' reeeived, the Picsiiielit of the I'nited Slates will proceed to djs-
" tribute tile same among the families of the parties interested, in
" the f'irm and m:iinier which he may Judge mo!*t eiiuitiiMe, witli-
"oiit liidng oliliged to give account of this dislril ution to the
" Spanish (iovernment. "

The other article is not important.

I would like to place in the liaiiils of the counsel and your
Honors the complete papers, as hrouglit ilown to the KngliNli
rarliameiit in the case of the " Costa Kica I'acket". At the time
of our argument these papers had not heeii formally presented
to parliament in Knglaiid, as the printing had not then leeii
fully completed.

Mr Dickinson ; — Not at the time of your printed argument ;
3'ou had it on the talile I think at the time of the oral arguments
of Mr. I'eters mid .Mr. iieiijue.

Sir C II. Tiipper : — We hail this in our hands at the oral
argument. I simply wish to call attention, in connection with
those (piestions, that have liceii ruined, to some authorities that
arc found in this report entitled " I'apers relating to the Arhilia-

.50 tion in the ease of the 'Costa Kica Packet,' commercial, No. ;t,
lS!t7, presented to hoth houses of I'arliament liy the comiiiand
of ller Majesty, .May, liS!l7." At Jiage ."), de Martens, who was
the umpire in this case, is (pioted at page +!•] of his work :
" Traite lie Droit International." At section ltd then* is set out
a seetion from that woik. Translating fieely, hut I think cor-
leetly, so far as the point is concerned, he states that it f.illows
t.at every »liip, when on the high seas is suliject exclusively to
the state whose llag it heais, and at page (!, Chief .lu-lice
Marshall is ipioted in the case of linse v. Himrlji. I call atteii-

(JO tion to what, he says : -

" If these propositions he true, the sei/.ui'e of a person mil a
" suliject, or of a vessel not heloiiging to a sul ject, made on the
" high seas, for the hreach of a municipal regulation, is an net
" which the sovereiiMi cannot aiulioii/.e."

44!t

(Sir Clinrli's 'I'uiju'i's Ai;,'imu'iit.)

At pivj^c S, Hull is miott'il : —

" !?.it, iis the jiii'isdictiiiii ovvr tlii' liittor is set up ns ii con-

'■ -ii'i|iiiMice of their prcst'iicf iiiion flu- (t-rritnrv, it ln'^ins witli

' tii'ir fiitiaiict', Biiil I'cases with their oxit. so thiit it cnniiot,

' except in ii particular case to he luentioiieil later, lie eiiforceil

when they left the coiinlrv ; aiiil will, respecl to acts done hy

10 roreii,'u per.ioiis, it can only he exerciseii with reference to such

■ in hiive lieen iiccouiplishi'ii, or. at least, hetjun. durin;; the pre-

• sence within the teriitory of the persons doiiii,' them. In

' jiriiu'iple then, the ri;;hts of sovereii,'iity ijive jurisdiction in

" respect of ail acts done hy sul'jocts or fori'imiers within the

'• liuiitN of the Stale, ami of those actii done hy lueiuhers of tiie

'■ couiuiunity outside the State territory of whicii the State may

■' choose to take coi.;lM/.niU'e."

Auil in the award of de Martens, pa^e 70. heinuin;; with tlie
senteiu-e, " I pronounce the followiii;^ award of arhitration." h-
20 siiys : —

" ('onsiderinij tluit the rii;ht of .soverei!.;uty of ihe State over
'• territorial waters is deterniiued hy the r.ue^i' of c mnon.
" uii-Msureil from the low water mark

"That on the hi;;h seas eviui tnerchaut vessels constitute
" detached portions of the terrilciry of the State whose lltitjthey
•• hear, and, coiiseipicntly. are only Justiciahle hy their respec-
•■ live natioiuil authoiities for acts conimitteil on the hi^h seas."
It is not. ]ierhaps. out of place to diaw attention to the posi-
tion of the Netherlands ;^overiuuent, althou;^h it is only to he
30 taken for what it is worth, liiit in coniu'ctiiui.

Mr. l>ickiuson: — I'lel'ore you proceed. Sir Chailes, I c|o not
think that the point was clearly maih; in tlu' " N'irjjiuius ' case
as to what the .settlement was inaiie for. 1 thiid; every one who
livi'il at the time ri'uitmhers the case of the ' Virijinius," and
the student of international history and of the practices of
civilized nation^ in their relations to munkiuil in ^'eneral well
know for what that iudi'Minity wa- i,'iveu. I> was not i,'ivenfor
the sei/ilie of the " Vir:,'inius," hut it h.is lor thai which
occurred at Santia'4;o de (.'ulu, when the piisseii^ers and crew
■K) were set up ai^ainst the dead walls anil shot t) death. Kn^land
iiiMile redauuitiiin and the I'nited Stales made reclamation. To
that it is contineil in the convention. The reclamations were
pii'si'iited hy I he ^^overnment i if the I'nited States in conseijuence
.if what occuired at SaniiML^o 'le Ciiha, in rejfiird to (he persons
o! the ollicer^. cr 'W and passeus^ers of tlie ^leanler " N'ireinius,'
it liein;; uiider>too I that fioni these reclamation are to he
excluded, in so as far as respects tlie ship's company, nil
iiidiviiluals already indenniitied as l?>'itish sui.jeets.

Sir ('. II. 'I'ii|)per : - With defeience, 1 do not Ihmk that,

.■)!) c Me-iileiiui,' that I have re;id, and purpus'ly read so very fully

liiiii tlie diplomatic correspondenee. that it is neees^arv for nu(

I 1 note that hleik Ml IIIV are;UmeIit. 1 only le;,'ret, that f(n' the

>:ike of ciMitiniiiiy my friend did not laise the ipiesiion lufoic
I 1' I'l the case of the " \'ii;,'iiiiii» " and had enue into tiiis othrr
lii.iiieh of my arj^unient.

Mr. !)ickinsoii: — I did that out of coii'-ideration for \oii,
finiii wlioiii, as I understand it in the order of areunieiit, we are
not to hear ic'xin. and to he entirely fair I thoii^^ht that I should
iiil attention to the point so that it may he replied to hy you.
(10 Sir t'. II. Tupper — I do not resi-nt interruptions, and per-
haps on consideratiiui, I would not have expressed the rej^ret
that the interruption had come when it did. |!ilt, lU'Vertheless,
I wish to say, and I ho()c (hat I say it without otl'eiu'e, that
c msiderinjj my purposes and references to the Virjfiniiis case, it

1 (

%ll

iii

r«

T\-< --rr,

450

(Sir CJmilos H. 'riij>i)i r's Ar;;(iiiifiit.)

(loos not seem necssury (or me ti) iI.'kI \vitl> what my lc«rM..,|
frltitiil liai sail). I know tlie spii-it liiat luis prompti-d liiiii. aini
I ilo not complain of it. I plmlif.iijt'il the stiitfrncnt. of tin'
United States ai-f^iiment, and I sav that it
pr.'tation of the history of the " Vir^'inii

not ft C'lrrect intiM •

hen

Is ciaiiiiii

tiiat tin- United State-* conceded that Spain under tho cireiiiii-

l^ stances of the ea^e had tiw; ri;,')it to ad liiee proof to show that

tiio " N'iri^iniiis " was net rii;htfnily carryini,' tin; Aiiieriean tla;;.

1 clialh'ni,'ed that, and the ln-st way, us 1 supposed, to siippoit

my pusition was to take

the record of tlie Ulliteil State

f{ov(^riiinent ]ireseiited to ( 'miLtress. ( "ertaiiily I r'd'erreil tn cihI
read from the H<;reement for indemnitv, and 1 am willing thut

voiir Honor-: slio

\vi

til the facts

uhl
tl

s as tliev are

ir "'v ci'iticism of the li-arned cnuns' I
di^ehised in tiie Uniteci States histMiv
of that case. These facts stand Diit, that wiiether Eni,dand had
lieeri ulile t) olitain ivpaiation for the daimiLje done to lur
sulijects, where frami had heeii practiced on the United SlatiN,
and the registry had heen olitained improperly and liy a false
oatii, and wiiile the vessid had put to sea carrvinjj tlie tin
without riitht and contrary to the Uniteci States 1

aw-

-thiit.

neveitlieless

in that case, tiioii'di the ve

ssel s commissKjn vas

injurious and of a lpelli:,ferent character as reijards Spain— il
position was clear atnl haiclly ilispiited hy Spain, that tiie wimii
in that case (pioad that ship were d

one aira

inst the United

.no

States, and it was for the United States, in lier discretion, in
insist upon the penalty and awanl the piinisjiinent, and thai
Spain's action was not ri;;ht iiiiiler international law, in inier-
feriiii; with a siiip carryiii;,' the American llij,' in .ime of p-ai'e
on the hi^h seas.

Spain,

far a

s It ap|)ears.

.lid

not maki' the point of sr

defenci', hut ni'\ ci-lheless the intsition of the United Stati

iiid il was tiiat, fraud or iid fraud, in tiim

f peaee III)

nation can interfere \viih a vessel on the liiith seas earryiiii; th<'
United States lla;f, I'.xcept the United States itself. And at the
conclusion of all that, when S|)aiii had shown the fraud tiiat wms
li-cliise.l, there is the fact that .Sj.ain had Id pa\ tie- amount of

^0 .'SJSO.OOO to the Unite,! Stat
aninii^' the fiiniilies wliiidi hai
connection with the sliij), and t

Lrovernni'Mii, to

UtI'eied at tlie h
he siM'viviii s am

ilistrihiilr
f Siiaiii III

i f.

ili

d' til

crew of the -hip and of the pa-sen^el■s, and all on hoard exe. |it
the liritisli suhjects, for whom Kiii^land had alnady s.tthd wiili

Spain at the time that aereement fov iiid'' ity was -i^iu d.

'i'lie ( "(immissidiier on the part nf the I'liited States : |)il

Sp;iiii pMV aiiylhiiie- to tl wiicis nf the ship '

( '. 11. Tiiiiper: Nii; I he ship « as re t iiriied to the Inili'd

Sir
Stale.'

.Mr. I >iekilisiiir There was n(itliiii''il:rniii'i| lor t lie.se

i/.iire

iIk

demand of both eninitriis was I'm- the murder or massacre nl' il

peojile at S.indiai,'<i I '

('111

imt l'(ir the sei;^ll|e of the ship.

ir ('. II. 'I'lippir : Si i that w let her that eritieism lie in puiiil

or not, that lla<' Was, in that case

.1 r

I''

or evcrvoiie nil iioari

itictinll for the sh

was eiiilsK

lend

SU(

III

le I'll'

■\-'Ui\' the ( 'ost.'l Hie,! e.ise ihefe is a n fen -I lee to t he llialli r

if ilninieili'. will ii' il is admitted liy the .Netherlands (!ii\eiii
iiieiit in their lniif that a ildinieilel eili/.ii is not respon.sihle ti

( 'nil I it ry of iliimieiie for aets (jniif li\' him nut
tin nf I he domieile,

tiie llirisdiellnii

The ( 'nmmissinlier nii the p,ill nf the I'liited Stall

A I

what

part

til.

that

Sir U, 1 1, riljiper : l>i(riiiiiiii;,Mit the secoiiil eomph'te p,ir.i
;rapli. I kliiiik I alreft.ly ref.-rred to the British .\r;_'iim.'iil

451

(Sir Charles H. Tapper's Argument.)

pajfCH 17 and 18, Hh(iwii>K tlio peculiar protection to sailors aii<!
those under the lla^ of the ship su far as their personal claims
are concerned, and I ilo not understand, in my readinj.; of tin-
United States brief, that there is much diH'erence between us
with regard to the protection that the flaj; atfords to the RHiiors
and all lawfully on board the ship.

There is an intcrestiuj^ case that nii;jht be added to our

10 authorities in the brief — a recent publication of the Senate, ND.
79, ')4th Cont^ress, 7th Session, jiaj^es 15, 26 and ',i'.]. It is con-
nected with Spain al.so, and the claims of United States citizens
ayainst Spain. That subject it referred to, and the Consular
Hejjulations are (|Uote(l, and they very happily include in tlicKe
rcfjulations the lan};u«f^e of Webster, and have adopted tlieiii as
part of the Consular instructionH. "In every re),;ularly docii-
" meiit.ed American merchant vi'ssel the crow who navipite it
" will find their protection in the lla{^ which is over them." Ami
so in this case the Jlritish and United States Consuls a,',need tliat

"20 in a ease where the United States flay was over the vessel tlif
United Stat(!s Cons\d was the pmper person to represent the
British as well as the American saihjrs.

Now, if I havt! made the point that lam endeavorinj^ to sup-
port deal', there is a distinction between the case of subjects an<i
citizens and the case of ships, and those connected with siiips.
those behind the ships. Takinj; the authorities in the Unitrd
States lirit;f it will be found on examination that they do nut
conilict with that position. For instance, at pR<;e 4l and 42 of
the United States Hrit'f, there are cas(!s mentioned and at pai;e 47

31) Koszta case is referred to and at pajje 50 and pai;e M4, other caso
ar(! referred to, from which my learned friends endeavor to bulM
up a lar^je part of their case. These are cases having no cdu-
nectiuii with shi[i8. 1 refer to Koszta case, Laurent ca.sc,
llcHuj^h case, Drummond case, etc.

There are some cases that do refer to ships. Let us examine
them, 'i'he case of the " Kxperiment" or " Kxi)erimento, " is men-
tioned by my learned friends. That case is in 2 l)odsou. 'U'l.
wher(^ the Spanish and the Mritish claimants both invoked the
aiil of the coiu't in a cau.se of possession. The facts are briefly

40 set out. They relat*^ to a state of war between the United States
and Lnjjland in 1HI2. The representative of Donaldson was
claimin;^ the ship. Donaldson had sent this shij), liefore the wai'.
to Nassau forlumbei', the ship jjot stranded, was taken possession
<pf by the United States jfovernment, and proceeding's wei-e in-
stituted in the Ailmiralty Court, in the rej^ular way. in the case
of a prizi.'. A special act of Conffress was passed for the reiifl'
i<\' ships that were taken un<ler the circumstances of this slii]i
I'lider that the .ludjfe oi-dercd a j)ass|iort to be <,'ranted for tlic
ship, but delay occurrerl, and aftei'ward or. application in IMo

50 there was a decree of sale of the ship niaile by the .ludj,'i',
luiluss Certain court costs and charjjcs were pai<l. and under liiat
ilccice the ship was sold. She was reuioTnl to Fernandos.
and what was called an act of Naturalization v^as pa.ss.cj
and siie was ilelivered to the Spanish governor. She was then
cliissed as a Spanish ship antl named the " I'Lxperiinento :" slie
siibseijUeutly came to Portsmouth where these two claimants put
ill their claims ill connect" in with the ri;,'lit of jiossession. 'I he
ciiiiteiitiiiii was that there had been no re^fular sale in the pri/.e
ciiiii't, 11(1 coiideiiinat ion and |>rize and that the Hritish title had

• ill never ilivesled. The case, therefore, relates to a time of war,
and both ])aities, without deiiyine- or resislinj; the juiisdiet inn
111' tiie court, follj;ht out the i|Uesti<Ui as to whether there
had been a re;;ii!ar condenination and .sale. Sir William
Scott deals with it at page 42, and also refers to proceedings in

■\

ll <.^.ll

Kill' W

\> 1;

'i -41*

I':

452

(Sir ChnrlcB H. Tuppcr's Arjjuinent.)

tlif I'liitecl States, and ftlso nt lniK**" ''•■'' "'"' ■**'• t" ^''•ow timt in
his (ipiiiioii there hml itfeii a rc^iiiur sail' under tlie order of a re-
fjiilar prize court.

'I'hc cane of tlie " Trent" is mentioned on pa;;e K2 >f the
Uniteil States brief: I NJniply call your Honors' attention to an
()l)ser\at ion made inCrapoand Kelly, Hi NVallaee, at pa;;e (151: —

In the eele))rated ' 'I'rent ' ease

ofcnri

injr in IKt!2, Messr?

■■ Mason and Sliih'li were removed from a Uritisli private vtissel
" hy ('onnnodori> Wili\es, of the ' San Jacinto,' a pulilie vessel of
"t!ie I'nited Stati-s. (Jreat iiritain insisted that the rij^hts of a
"nentral vessel not oidy hail heen violateil,— for which she lie-
■• niiinded apolo;^y, hut she iiisisteil that these ])erson.s should Ik'
" replaeei] and returneil on hoanl a liritish ship. This was done
"anil they were avtuidly placed on hoard a liritish vessel in or
"neiirthe harhor of Huston. They were not British sulijectH
"and their return could only have heen demanded for the i-eason
-0 • that they had heen torn from Mriti.'-h .soil and the .sanctity of
" Hi'itisli soil as re|)resenteii hy a Hi'itish ship hail heen violated.
" ( "iti/i'uship or residence had no inllueiice iijion the (lUestion,"
1 think to some extent that ohservation is in line with the
distinction 1 am drawini: lietween the cases wliero shins are

concerned and between the e
cerned.

ases wnen

partit

are con-

Then there is another case not within the list I first ;jave

from the I'nited States brief, which concerns [ler.sons only. At

paj^e S") of the I'niteil States arjjument there is found theca.se

HO of ( "ainiibell vs Spain. To propei'ly understanil that case and

the application of it. it is necessary to refei' to the aj;reement or

lueniorandum ini<

der which the

IS constituted a Coint of

Claims -not a commission such as we are here — but a ("our: of
Claims provl.lin^ an ea.sy methoil by which i>rivate claimants
could tile their claims and present them and i;et separate and
independent jud^^ment -the claim to be jirosed and adjudicated
muler the proceclm-e to be laid down and rules made for the
conduct of these cases which lar;;ely partake only of a private
chai'acter.
40 In a volume of "Treaties and Conventions between the

I'nitecl .States ami other jiowers," there will be found at paye
lO').') an ai;reement for the settlement of certain claims of
citi/ens of the I'nited Stati'S on account of wi'one;s and injuries
connniited by the autlioi'itics of Spain in the Island of Cuba, and
it will be found that this memorandum of a;;i'eement be^^ins i)y
refei riu",; to the arbitration for the settlement of claims of citizi-n.s
of til" I'nited States and of their heirs ajjainst the ( iovernment

f Si):un.

.">()

ara;4rai)h

:{: —

Hacli (iovernment mav name an advocate to a

pjiear before

ibitrators or the umpire to represent the interests of th
" parties respectively. "

Paragraph 4. — Directs that the arbitratoi's shall have full
powei-. subject to the stipulations, and it shall be their duty be-
foi'e proceedine; to heal' any ca.se, to make convenient rules anil
pri'scribe the time ami manner of hearinjj the claims and the

)roof th

l'ara;;ra|ih 5. — I'rovides that the arbitrators shall have juris-
diction of all claims presentecl to them by the jfovernment of
<iO the I'niteil .States for injuries done to citizens of the I'nited
States by authorities of Spain in Cuba, and eontinucH as

foil

ows : —

Adjmlications of the tribunals in

(^il

la eoncerninrr citizens

)f the I'nited States, made in the absence of the parties in

4r):{

(Sir t'liiiilcs 11. 'I'lippcr's Ar;;iiiii(iit.)

" ti'i't'Htt'il.or ill vi( lint ion of intfriiHtioiial law, or of t}ie<;iiAraiitr>(!s
ami forms pidvidt'd for ill tlif tifatv of October 27, 171!.', l.i-
liftwfcii tlir I'liitcil Stutf'H ami S|)aiii may Im- ri'vicwcil hy the
Hrl)itrators." • » » " Nojinl^^mi-iit of a Spaiiiiili tritiumil.
(lisailowiii;; tin- atiiriiiatioii of a party tliat In- is a <'itizcn of
till' I'liitfil Si.in.-,, nii.ill prrvciit till" arhilratorM from licariii;;
III a reciaiii'itioii prfseiitt-il on heliaif of Hai<l jiarty liy tiic I'liiti'il
Stall's (Jovcrnmcnt. Nevt-rtlii'lcss, in any case licaril liy tin'
arlatrators till! SpaniMli Govfrnmi-nt may traverse tliealli';;rt-

■ tioii of Aim'ricaii cili/t'iisliip. ami tlu-rt'ii|ioii couiiiett-nt ami
siitfifirnt proof tlicri'of will bi- rfc|iiirt*<l. Tlic ( 'oniiiiis8ion
Iriviii;; r»!i'Ojjiii/.t' 1 tin.' ([iiaiity of Ami-rii'ii-.i citi/i-ns in tlu'

claiiiiaiits, tlii'V will aci|iiir(! tin' ri;;lits accoivjcil to tlii'iii t)y tlii'

■ present stipulations as siicli citizens. Ami it is further a;;rceil
iliat the arliitrators shall not have jurisiliction of any re-
clamation iiiaile in liehalf of a native-horn Spanish sulijecl

•ji) iiatnralizeil in the I'liited States, if it shall appear that the
sa:iii' suliject matter having heen adjinlicateil liy a comiicfcnt
iriliinial iiiCuha, ami the clainiaiit havinjj; apjicareil tlierein
either in person or hy his duly appointed attorney, and heing
•' rei|iiin'il l»y the laws of Sjiain to mak.' a deilaration of his
nationality failed to declare that he wasa citizen of the Tnited
.States."

Now, both parties put u])on this the coiistriiction that it was
,1 iiiemoramluni for the reference of claims in the manner sii;;-
.;esti'd hy the memorandum, on the pai't of those who could
;!ii establish theiiiselvi'H to be American citizens and that the claiiii-
,iiits were to have no stamlin;r unless that proof was ^^iven in a
certain way. I have in my hand, ami it has some relevancy in
(Ills coniu'ctioii, a diK'uiiieiit certitied to by the Secretary of
St.ite for the I'liited States -a paper from Mr. HIaine where he
refers toone of the claims under this ("onimissioii. On the'2'2nd
.it' \\m\. IHKI, to the t'otiiisel for the riiited States before this
Commission, lie says: —

" Vour letter of the l!>th inst., in connection with the claim
" of I'eilro • * • hr.s been received."
1 Then lie ifoes on in the next ]»ira'.;raph of this letter to refer
to naturalized citizens of the Tnited States who niij^ht be

■ suitors" in that Tribunal ; and a<;nin he refers to naturalized
I'iti/.ens who are "claimants" before that Tribunal, and a;jain,
lie refers to the rules ami procedure ndopted by the Tribuinl,
wliere it is providecl that every memorandum Khali show the
]\:iuii' of the " claimant," his placn of bii'th, and if he be n
iiiitural citizen of the United States. This, of course, merely
ill liealeil the view that .Mr. HIaine took of that ("ommission

hi this case of ('iim|>liell a;^Minst Sp;iiii. " Record of t'ases
'.•+. ' etc.) I would refer to |ia;fes .J and li of the Spanisli Hrief,
showing that there was, as part of the defence, the stitemeiit that
tiie seizure was made ut a time of belli;r,.feii(.y, that it was in s-lf-
ili'l'i'iic. luid also settine; up self-defence in an additional brief
tiled fur Spain. So also there is a reference to tlmtplnse ,)f the
lii.ir.ieter of ihe seizure in the Spanish arliitrators opinion, Jiage
4. Tills hinvever is the part I wish to read in tiie decision of
tlie umpire so as to t.ike the case out of that class that ousrht to
li. ;ir upon the cases before this commission : —

" As a matter of fact, it has been established that the arms
mid ammunition shipped on the ".Mary Lnwell " were
.eliiiittedly intended for delivery, even by illegal means, to the
' ( 'uban insur^fcnts. It has been established in retiard to the
' .Mary Lowell " that, even if it be doubtful on the proofs 'that
' lier ostensible destination for Vera I'ruz 1ms been simulated

."ill

III)

.t*'

'I II

4-)4

(Sir Cliarli'M H. Tiijipois . ;;uiiu'iit.)

" I'rom till' ilcpiirttii'f from Now Vork slit' was aliaiidniieil at.
" till' HiiliiiiiiiiH liy liiT fiiptiiiii ami iti'W, tlii'v iiili-jjiiii^ unwill-
" ini^iip^-i ti) piirtii'lpiitf in ii ili'sei'iit upon tlio (."iiljun coast;
" that sill' was tluTi-upon left liy lifr proprietor uihIit tin-
" eoiiiinanil of one of tlie memlKMN of a lioily of men, orjinnized hs
10 " a military compiiiiy, wliicli liii<l come from Jacksonville witli
" C H. I'amphi'll on another ship heloni^jini; to (). H. Campliell

fid

hiiiiself : that the alleif/tion that tli

arv Lowe I

was

ifti

erwanls plaeei

I in custoilv of a Mritisli otficial is inconsistent

with til

e positive ilecia

rations of the British (loverniiieiit

' that the aforesaiil company was manifestly en^^'aifcil in the
■ initiation, at least, of an atteiii|)t to make a descent upon the
Culiaii coMst in aid of the insurrection: and that before the
'capture of the " Mar}' Lowell " hy the Spanish forces the voHsel
' and carijo had passed into tl

issession and under the

coii-

" trol of the insury;rnts, whatever may lie the weitrht properly
'20 " rtttrihutahle to the assertion that the claimants lind lost and the
" insur^ients had acipiired ownership of ilie pro])erty,

"The umpire must lie understood as «|i|ilyinLj the rule of
"estoppel only aijainst the private claims of t". H. Campliell and

A, A. A

lividii

ranjio, as claimants i

indemnitv for their ow

n III-

account. 111 which jirivate claims

the

question:

Was the cajitnn^ of the " Mary [jowell " and car^^o unlawful ?
is suliordinute to the other ipiestion, viz, : Were th'^ " Mary
IjOwcH " and cari,fo cn<,'aj,fed in a lawful enterprise/ The

n to treat this ns a

"umpire cannot lie loLjitimately called iipo
!50 " case of the United States against Spain, having its direct i
" ject a suitable reparation for the oHended di'^nity of their i\

[n such n case th

'iTularity ot the caiiture w

i-ould

air.

constitute

' the principal ipiestion to be considered, the personal sitiiatiuii
of the owners of the pro|)i'rty beeomin;^ siiliordinate. Hut ii

ise of the I'niteil Stati

s aLjainst Sjiam

has 1

leen or coulil, in tin

"opinion of the umpire, projierly be presented to this tribiiinil. "

I do not wish to travel over the arijuments presented so

uiucli better than I could possibly hope to present them toiu'liiii;;

one a.spoct of the case,

-K) I have referred siitiieieiillv to the ease to illii.strate mv own

jiositioii ill am

)tlier chanter of the .ireiimeiit. and that is to show

that there is iiiithine- there when \i)ii look at the re.isons f

the jlldj;lilillt to destroy the principle which seeiiis to me to be
supported by the aiitliiirities I li.ive nrerred to. and not in coiitliet
with the authorities referred to by my learned friends, poiiitiiii;
out a ili.stinctiiiii between the elaims for a ship and all part its
repri">ented or concerned ill a .ship by a nation and the ehiiiiis
of private iiidixidiials cither as pri\ ale claims or at the hands of
a j^dveiniiieiit claiming for wroiifis done to private individuals

•")(> (not to shili.sl lis eiti/eiis or silbieets.

here is u case lefern

to ill the I'liite I States I'

rief nil

)ia^re t
J'rte

4. I

pagi

nite

Stati

U-llllstfl'

reporl"

-.S,S-.-)!t7

7 and iii\- learned Irienil mivs it is «

leadi

\iiierieiin caMe. which ceit.iiiil V c.iiiiiot be contested when it i-

nowii

that it is a de

bv Ju.Il

Sforv.

The tirst head-note in this ca<ie indicates sometbiiiu' o
1 whiih it came up :

the nth lutiile of the tiv.itv of ISlII, (S Slatm

f tl

manner ii

mlei

W'r

•.).

for tl

roooer* I

what IS elaiiiii
iiii''iclmndisiv

■tween till- I'liited St;

and Njiain. iirnviiliii

restoration

|)ro|)erty risen

111 the liiirll seas, it is iiecessai'V to

i| ?spaiii. p
from piiati'S aiei

d fa

Is within
at it ha-

serililion

i.lei

I on the hi^h

iirati

■ \. That the as'd'l-ted ]irii]iriel nl-

:;(!

45S

(Sir Clmrli's H. TiipiiiTs Aij;iiiiifnt.)

■ the tr

cl liiive f^tal>lislieil tlteir title I>v

ni'o llie tnn! pniprictors, niic
• ctimpi'ti.'iit proof.

I wisli to refer lirii-tly to two or three points in tiie eusr ; for
iiistiuice, on piiLje 5MfS : ■

"On tlic 2(Jtii of Aiignst, tlie vrsicl was diseDVertMl liy

■ liieutenunt (leihu-^-, of tlie United Stati's firi;; " Washinu'ton,"
Ml " at nneiior on the iiitfli sens, nt tlie cli'-taiiee ■ f iialf a mile from

' the sliore of l^on^ Isiand. A |).irt of tlie ne^jmes were then

■ on shore at Culloden I'oint, Loni; I-'land ; who wen' s(Mzed hy

■ Lieutenant (iedney, and hron^dit on hoard. The vessel, with
"the nej,'roes aiul other persons on lioanl, was liroti!,dit hy
" liientenant (iedney into the district of ( 'onneclicuf, and there

■ lihelled for Kulvage in the district court of tli'> I'nited
•■ .States."

Further ilown. on the same Jiai^e, it sajs: —
"On the l!)lii of Septemher, the Attorney of the United
-i' "States, for tiio district of <Jonneetient, tiled an information or
" liliel. setting; forth that the Spanish minister had ollieially pve-
" sented to the proper clepartment of the ^fovernment of the
' I'nited StnteH, a clMim for the restoration of the vessel ear;;o,
■and slavt?s, as the pro|)erty of the Spanish snlijeets, which
" had arriveil within the juri.sdietiotial limits of the United
" States, and were taki-n possession of hy the said piihlic
"armed lirig of tlie United States; under such eircum-

■ stances ns made it the duty of the Unitec] States to eiuise
the .same to he restoreij to the true proprietors, pin-HuanI to the
treaty hetween the Uniteii States ami Sjiain : and prayin^; tin-

■court, on its heinjj niaiie lejrally to appeal' that theelaim of the
■Spanish Ministei' was W('ll foumh'il, to make such onler for the

■ disposal of the vessel, earj^oand slaves, as would hest eliahle the
■' I'nited States to comply with their treaty stipulations Hut if

■ it should appear that the ne;:;r(n's were persons transported fi-om
AlricM, in violation of the laws of the United States, and

■' hrouji'ht within the United States contrary to the same laws,
'he then prayeil the court to make such <iri|er for tlieii' removal
■'to the coast of Africa, iiursuant to the laws <if the United
^" ■'States, as it should deem tit."

( )n page ."iiU ,ludj;p Story is referring to the fa"ts that I have
mentioned, and he says : —

" Till' cause has h.-eii very elahorately areurd as well upon

■ the merits, as upon a motion on liehalf of the appejiei's to clis-

■ lilisH the appeal. ( >ll tin: JKirt of the I'nited States it has hcen
■'contended: I. That due and sutlieient proof concerning the
■propi'ity his heen nm(le to authorize the restitution of the

■ \-esscl. cargo and negroes to the Spanish suliji'Cts, on whose

■ liehalf they lire claimefl pursuant to the treaty with Spain, on
"'•' ■■ 'JTtli of Oe.tolier, 17!l.'). 2. That the United .'^tati's has a right

■ to intervene in the maimer in which tliey have done, to olitain

■ a dei'i-ee for the I'estitutiou of the property, upon the appliua-
tioiiof the Spanish Minister. Tlirsi' projiositions have heen

■ strelieouslv iieiiied nn tlie other side, ()lher collaternl and
" inciileiitiil points have heen slated, upon which it is not

■ necessary at thismoiicnt to dwell.

■' liehire eiiti'iiiig Upon the di.^eussi'iu of tie' main points
■' involved ill this interesting .nul imiiortanl conti'<iV('rsy, it may

■ lie iiecessarN' to sav a few words as to the aetiinl jiostiii'i' of the
''" ■■ case MS it now sli'iiijs liefore us. Ill the fii'st place, then, the

■' oiil\- parties now hefore the coiii'l, on one side, ari' the United

■ Sintes. intervening for the sole ptirposeof procuring restitution

of the projierty MS Spanish property, pursuant to the treaty,

■' upc>n the grounds .-,1 ited hy llie other parties claiming tin-

•I!
' irill

"■ *> I '■

-ii ■ !■'

4r>(i

(Sir Clinilcs II. 'rti|i|i('i's Aifjuiiu'iit. )

" property ill til t'ir ivHpi'ctive lihi-is. Tlit' l^iiitt'il StiiteH ilo iidt
" asfJi'i-t any pr..,.. . l_, in tli. iii-.. !vis. or any violation of thfirowii
" ri;;litH, or Hovfi-fiiriitv or la\v«, l>y tlic actscoiiiplaiiu'<| of. Tlioy
" lio not iiLsist tliiil tlii'^i' fici,'rofs Imvi' Iwcii iiii|Hirt<>(l into tlif
•' I'nittMl Slatt'M, in contra vcntion of our own Hlavc-trjuif acts.
" Tlicy do not m-ok to Iihvc tlifwc ncjjroc.s (K-iivcrcil for tlif |.,,i
10 "post' of Ipfin;; transportt'<l to Ciiltaas jiirat»'H or rohlmrn, or a^-
" fu;;itiv(' crimiii.o^ r<iiiiiil within our ti'rritorif.s, who havr hini
" j;iiilly of otli'MCfs aj;aiiist tilt' hiw8 of Spain. 'I'lify do ikiI
" a.s.scrt that the Hfi/.uri', and luiii^in;; thf vessel, and carjjo, nml
" nej;roes into port, liy Lieutenant (lediiey, for the purpose of
" ailjiidieation, ii a tortious aet. They simply eontine theniHelves
" to the ri;;ht of the Spanish elainiants to the restitution of their
" property, ujion the faets a.sserted in their respective allejjatioii-."

Aj,'ain on pai,'e oU'2 he says : —

•' No (luestion has heen here made as to the proprietary iii-
20 " teresti in the vessel and faryo. "

On paLje ")!•."> the learned iiid'/e jiroceeds : —

" If a private .ship, clothed with Spanish papers, should enter
" the ports of the rnited States, claimin;^ the privileges, inmiu-
" nities, ami i-i^hts helon^ini; to hoini /idi' suhjiets of Spain,
" under our treaties or laws, and she should, in reality, helong to
"the subjects of another nation, which was not entitled to any
" such ])rivile;^es, iiiiiniinities or rij^hts. mid the proprietors were
" seekinj; hy fraud, to cover their own ille^^al acts, under the tla^'
" of Spain ; there can he no ilouht that it wouhl he the duty of
:J0 " our courts to strip ntl" tlie disjjuise .'ind to look at the case
" accordin;.^ to its naked realities. In the .solemn treaties he-
" tween nations, it can never he presumed tliat either state
'■ intends to provide the ineuni of perpetrating or protectiiiL,'
. " frauds."

So that I think hy these references, that case cannot he uii;ed
as in any way conllictinj,' with the principle for which I have
contended.

The C'limiiiis-ioncr on the part of the United States :- -Whcie
was the Arinistad homid ?
40 Sir Charles Hihhert Tupper:-(>n th.' :i7th dune. I8:i!>, vhe

cleared from the port of Havana, in the Island of Cuha. for
I'uerto Principe, in the same Island. On the voyage and liei'oie
the arrival of the vessel at her ])ort of destination, the ne^'iocs
rose, killed the cHptaiii. and took possession of the vesstd, and
on the iiith of Au^'Ust the mvsscI was discovereil at anchor on
the loLih seas, a half a inile from the shore of Lon^' Island.

( 'oinmissioner on part of the United States : -She was like
the " Franeonia. " She hail not suhniitted herself to the juiis
diction of the United States.
,")(1 Sir Charles Hihhert Tupper : — No, hut she was within the

jurisilietintial limits ot the L'nited State>.

" Miilhis coiiiiiKiiiiiiii iiif)i ))' jioli sf tie iiijnriii sim jiviijin't.

I do not know that I have taken the point formalir. hut I
wish to refer to certain lnn;;un^e of Koril Stowell in tlu' case of
The • Le Louis' to which I ref( rred yestenlay in '2 Dodson, paj;e
242, where in rtd'eriiii; to the rij^ht of visit and search : —

" For if no rij^ht to visit ami search, then no ulterior liL'ht
•'of seizing' and hriinjiini,' in, and procredinj; to ailjudication :
•' and it is in the course of those jn-oeeedin^s alone, that the
(iO • facts are produced, that she is a Fremdi ship tiadin^' in slaves ;
•'and if these facts are maile known to the seizor hy his own
'' unwarranted acts, he cannot avail himself of discoveries thus
'unlawfully pnjduced, nor take advantage of the consequences
'• of his own wrong."

457

(Sir Charles H. Tapper's Argument.)

And then l)u iijuuh on to discuss the nmttor of sliivu trudu
iiccordinj; to tho laws of France, arfjuinj; tiiat it would not
niuttcr whiit tliu laws of Franct! wuru, or wliat tho laws of
France were not, nor were tho facts material that wore dis-
covered, if that ship, under the French Haj», had been taken
on the hi<;h seas for any oHence other than that of piracy.

;,) I come now tt. certain observations 1 .should like to make,
not relating particularly to the points with which I was
immediately concerned. 1 refer to a ijuestion that has come up
in the brief, respecting; the delay and nejjlect, or the conduct of
the United States irovernment in connection with this claim. I
call your Honors' attention to the case of " The Jones," mider
that head, dealt with in the l!ritish reply, whore the I'nited
States were relyin<;, and relied successfully on the neglect of the
British government. In fact this casj first appears in the (Tiiitcd
States Brief, and. we have been very glad to call further atten-

20 tion to it. In this case the United States Commissioner said ; —

" That the delay and neglect of the Hi'itish (lovernmeht in

• looking into the ea.se, aftermost earne.st remonstrance of the

■' United States had been repeatedly made to tluin, is without

"excu.se, and has greatly prejudiced the just rights of the.se

claimants. "

.\n e.xaminalion of that judgment will show that very

properly these elements (.'ntereij into the nunds of the Com

nii.ssioners, and .so an e.xamination into this I'eeord will indicate

that the Uinted Stat»'.i — it is not nece.s.sary for us to impute

:!(i motives at all unkind, for according to the facts, the United
States are responsible — i say, the Uinted States lunl in pos-
session, in some depai'tment. information regarding tlu'Se vessels,
whereas another <lepartment, evidently not knowing of that in-
t'liniiation, professed that there was no such inforniiition in the
hands of the government of the Unitecl States. Therefore, to
iimke our point, I am glad to say that it is not necessary, even if
it were allowable, to press upon a connnission of this character
Muy u|)lea.sant or an^' otii'nsive language, but we, representing
those to whom an admitteil wrong was done, come before you,

+0 .iiiil siiy it was not a mere accident ; it was an intended wrong ;
.1 wrong intended to be doi.e in the most injiu'ious maimer |)os-
sible. All possible profits wivc known to the wrong-doer,— the
great gain within our reach they were fully cognizant of, they
not only took the lesponsibility of |)reventing our making
iiioney, they not only treated us as prisoners, but they took and
i|estroye<l our pr<tperty to prevent our gain.

The Commi.ssioner on part of Her Majesty :— I think yow

iiiean a deliberate act, rather than an intended wnaig.doycm not :"

Sir Charles H. Tupper : — An intended wrong, as it turned

.')0 out. I am not asserting that the United .States did not rely on
their rights, did not rely on their view of the law; but that
might be (|Uestioned still without imputing a wanton or
unworthy object. The United States in one senst;, let me say it
lint otl'ensively, right or wrong, wished to pro.serve these seal
tisheries on any ground as long a.s they could preserve them; they
gave instructions to take the vessels, they proceeded by their
otHcers against them on one groinid, and when discussion on that
ground took place, that ground, wo submit, was practically
iiliaiidoned, and then resiirrecte<l again. I am not going over all

liO that ; I am merely referring to it as illustrative of theconttntion
I am making now. I say there was ;in intontion, at any cost, i>v
lit any price, to keep us out. Their motives were to preserve
these Hsheries for the benetitof mankind.as they claim, although

More than onci', that their object

I'l; I

rl!

r> iv

'li '||;

there has been a suggestion.

458

(Sir CharlfH H. Tupper's Argument.)

wiiH to iiiiiko all tlu> money tliat wiih to be made out of tliat
valuable iiuhiHtry. Hut leaving that aRide, aixl coining riown to
tlie question of (laniages. I submit that we are not only entitleil
to press upon your Honors attention the facts concerning the
case in connection with your determination of the amount of
(lamiiges, and on wliat basis it should be allowed, but it is our

10 duty to bring before you the fact, that we not only suffered from
acts afterwards admitted to be wrong, and in violatiim of the
law and practice among nations, but that this great, powerful,
and rich (iovennnent, did not deal promptly with the facts as
they were presented, and with that attention and promptness
that was to bo expected at their hands under the circumstances.
In " The Jones " case the Commissioners dwelt upon the great
delay that occurred at the hamls of tlie British (iovernment in
dealing with that ship, the months that passed by without the
facts being liealt with or without the lii'itish (Jovernment pajinj;

20 to the remonstrances of the United State.* (iovernment a prompt
and speedy attention.

Knowing as I do Mr. Hayard, and appreciating and recogniz-
ing how he is regardeil by the very best elements in the United
.Stales and Great Hritairi, it would ill become me to say that Mr.
iJayard sat down and penneil what he knew to be an untruth in
tliis diplomatic correspondence ; but we have indisputal>le
evidence that Mr. Bayard was not advised as ho should have
bt'eii as .Secretary of State. Tiie evidence was not before the
Paris trilmnal, as it is Itefore yon, when Sir Charles Russell maile

30 the admission referred to in the United States l)rief, that tliev
were not guilty of more than ordinary delay in these matters in
assuring Kngland upon what ground they were intending to stand
but that they had pursued the ordinary routine among nations.
Sir Charles Hussoil had not the evitlence to which I propose to
call attention, and I .say, when you read Mr. Bayard's answer tn
the British amliassaiior, when you rea<l the correspondence that
appeared up to the lime of this Commission, and then compare
the documents that came out in the evidence at Victoria, you
cannot reconcile them on any other basis than that the officers

40 of the United States Government did not <leal as promptly and
properly with these matters as they should have done, and for
all that neglect, just as for the treatment that was shown by the
United States officers in command of the cruisers to the crew, we
elmri;e that the United States is responsible. We say tlie cir-
cumstances concerning the seizures are matters for which the
United States Government, as a whole, is responsible. We have
nothing to <lo with any trouble between the department of the
Secretary of State, and the Treasury Department. With the
(piestion whether the Treasury Department did or did not supply

50 Mr. liayard as promptlv as it should have done with these docu-
ments, we have no concern.

The result of it was, that whereas the United States Govern-
ment knew every fact that was material, and the Government of
England kept asking over a period of years to know on what
formal ground the United States was taking action, Englaml
received no reply.

The Conunissioner on part of the United States : — In your ca.se
you have itemized the damages, and now, to what item of dam-
ages do you claim this line of discussion applies ^

CO Sir C. H. Tapper: — I say it applies in considering any item.
Suppose your Honors were in doubt upon the item of wrong to
the men, the claim we make on behalf of the master and crew,
suppose under ordinary circumstances, the United States Gov-
ernment had answered promptly, and had given prompt notice

4A9

(Sir CharU>R H. Tupper'i Argument.)

if all they inten<i<Ml to do, your HoiinrH iiii^ht in some cnsei
incline to nwartl nominal ifamagc!), but whore there has been
niiything like nejrifct, anything like a reckless dinrc^rnrci on the
part (if the Uovernment of iho United Statvx, your Honor*
iiii^hl bo inclined to give a larger amount.

The CunimiH.-<ioner on tlit- part of the United States: — To what

10 .itlier items do you say that applies ?

Sir C li. Tupper:— I should say the chief coniiideration was
ill connection with these a^^^ravatin^ circumstances, and of
ciiiirsc to the item of interest above all. The ri^ht to interest
would be atTucted by the character of t'le act ant! the circum-
stunces concornin)^ the wron^.

The Commissioner on tlie part of the United States: — Do you
cliiim that it aHucts any of the damages for "catch. " or for the
value of the vessel, or anything that relates strictly to property
daiiia;;es 7

20 Sir C. H. Tupper : — No, I sliould not bo prepared to attach
llio argument to those did'erent items, so far us the value of the
siiip goes, or what a certain article on board the ship was worth.
I would attach it more to those claims which arc very difficult
to adjust. For instance, there is the discretion as to the amount
of interest, and there is certainly a discretion as to the amount
of personal damages which it is hard to fix. Speaking generally
it seems to us that it would incline the Court to give the benefit
of all doubts on any item to the claim, where there was an
apparent conflict of evidence.

.SO Since the United States Argument has made reference to the
admission of Sir Charles Rusbell at Paris, I cannot do better than
refer to a few extracts from his argument which will be found
in V ime XIII, of the American Reprint. On page 5 of the
United States Argument before you, it is said : —

" Naticms do not take positions upon facts which may affect
' their rights and obligations without deliberation and proper
" investigation. The presumption here should bo that Secretary
" Hayard acted in accordance with the usages of nations and the
"conditions as they existed. (It was conceded that he so acted

40 " in this matter by Sir Charles Russell, now Lord Chief Justice
"of England, in his argument before the Paris Tribunal.)"

Now as to the position of Sir Charles Russell. I am reading
from Volume XIII., pages 6!, G2 and G5, where Sir Charles said :
" Let me ask the Tribunal to realize the position of things.
" He has been told that the seizure has taken place in the
" Hehring Sea when these vessels were in pursuit of fur-seala.
" lie has been told that they were seized at distances from land
" which showed that they were outside the ordinary territorial
limits; and yet the Secretary of State cannot give any answer
to the challenge of Lord Iddlesleigh, who affirms that these
facts point to a grave breach of international law, but must
" wait till he gets exact information from the place of trial.

" Senator Morgan : — How can that be if the British govern-
' iiient disclaims all responsibility for the conduct of its
'nationals?

" Sir Charles Russell : — I am sure it is my fault, sir ; bu '.' e
" appositeness or connection with my argument of that remark
''I fuil ijuite to appreciate.

60 " Senator Morgan : — I understand that the British govern-
" mont has disclaimed in the diplomatic correspondence, and
" excluded from the Treaty, all considerations of responsibility
" for the conduct of its nationals in taking fur-seals. If that be
" so, I do not understand why it is that Mr. Bayard was required

! !

1';

i; ■

,.ir ,.

iu)|lt.,,

1|H

!I it

il i'

|i':t»

'■%7]

i1JS.i

4«>0

(Sir ('liiulcs II. 'ru|>|Mi'f< Ari^uimnt.)

til imiki' miy ri'|>rfsi'iitiitii>ii to lln- Uritisti ;:civi'riiiiii'nt. iilmiit

iimtti'i' llmt In- wi^lii'il til ^l'l||l•^s nr

lUrVMll

ir Charl.-* Kiism.|I : Sir, I ,iill fail, witi

■ III SIIK'rl'.

" I'i'>-|)i'Ct, tilM'f till- <'i)l|lli'('tii>M witll till' UI';,'lllMrllt I Mill |ilirslliii_;

" Si'hiitiir MiiruMii: I ri'^nt tliul ymi t'nil In m'i' it.
"Sir Cliiirli'i l!ii»'>i'll : I iiin (•iillin;^ iilirnlimi In tln' fmt
I" "tliiil Lnril |i|ili'>li'i!,'li has statcil fact", wliicli arc not ciuurn-

ilictiil, tif llif Mi/iiic lit' lirilisli V(

c^sl■|■^ III! tlic lii'^li sea iitltsii

tirritoriiil limits; sciinj nut l>v tlic act uf iiiiliviijiials, I

III

■izi'ij iiv till' .\ct 111" till' Stale iliniiiuli its Isxcciitivc aii(lMirit\

Liir<l llaiiii

Wiiut is \

our 'j-ripiiiiil o

I' cull

|ilaiiit,

'('liarlcs!' It was incissni'v tu asciitaiii tin- I'ails, miil tl,,

si-ciii' 111' actinii was a Imii; way nil'.

■ Sir < 'iiarlcs Kiisscll : — With ;,'iiat ilcl'i'rciicc, my |,(iril, u.

If the case ii-ally were, tliat tiny c ailil jllstiTy themselves u
' liaviiii; a le^jislative ]Hi\\er ii\er llehriii;,' Sen, tir, which is tli

<'a." ii'iw iii,ii|e, as |iriiti('t iii^' thiii' priiieity in tlie fiir-siiil.

lere was M |iriini|it aiiij iiniiii'ili.ite niis

We h

liiltte ! no iillence ai;aiii~t inteinatiiina! law at al

the many pr'Hil's tiat I tun uiiini; tn aiMiice ihat this v

is now |iieseiitr.l t" this 'rrili\inal

ive Cniii

is lau' ■ r

ase wiiiili

l.'.r.l llani

r^laiiil that voii ilo nut make it

It 11

ilit that thev tl

lime til ascertain il

facts: hut yuii -ay that they iji.l nut t.ihr ii]i the ;;ruuni| ihai

■y are nuw taking; U|i.

.'to •• tl

Sir < 'haii

IS liUssi

11: -Cert;

tliat

is my |iiiiiit— (inc nl'

c manv |H):nts winch will U"

-huw lliat as tiiis case ili

(11

Velu|ieii ilS'lf in thi' ili|i!uuiai currcsponilelice uilil ;is it
lias still faitllrr ilrVeli,|ie(l itsell in tllc Ciilllse (if the ]iriilti' i

ar'^iimeiit. it has taken a form that was nut |iresi>nt to the min 1
of tlie ICseciitise at the time of these occurrences, us it ull-lil
to have liieii |iri'.ent, if the i-ase Were as real as it is now iiinik'
out."

An.! fiirtlii 1' .iu^vn on paije (ilJ, he says, referring tu iho

|iliimatic cuiresjiuiiileiici

Tliel

I he savs he is wa

litiiii,' the ])a|)i I i.'X|ilaiiis that ih
th

islance (li the vessels Iruin aiiv laiiil or tlie cn'eum-taiii

atleiiilant, n|iiiii their sci/.iirc were iinkiiuwn to him, anil tlun
treats it, aii'l i|aite accurately treats it ns a matter which is .if

' so ;i'rave im]iurtance that it is rieht tlie^- shuuhl he in |ius--isvii n

' (if accurate inl'urmatiuii. '

lell on na'i

li.'i. LuT'l I laniien as

|)ues it a|i|.e;ir when tl

AhisU.-in Ciiurt was recii\ril at Wa^hiiiLiti
I'eFure the 'rriliiiiial jit Paris was uii

• I uf (he |iruceei|iii.;s in tin

anil iiil'urmatiuii : hefure the 'I'

y a ]iart uf the eviileii
1 iliiinal at N'icturia "'as infurmati

tlieic fur the lust time hrui^'ht iiiit. It is n.cessuvv to refer
(ii~t tu the iu-tiiictiiins of the Treasury I 'i'|iartmen; uf the
.S|)rin4 uf jssd. which will ho fuuu'l un pa^'i fuiir of the liritisli

ArL;llliiellt li. I'lJle yull, miller which these s..|/iii-,.s tiiuk |il,l(e. Il

is, uf eiiui se, |iresumalile, tliat when the instiui'tions wei'e ilrafli'i

the I'liit'il states (luvernment hail e\ei

cl-eil line care, all!

tluit

ie-.c men Were actiiii/ '.vilhin the ilireet line uf niithuiit v. 'ihat

IS. Ill

Imittin'' "f cuiii'se, thnt the arrests t

link place un accuiint

the iii-triictioiis tu that ell'ct uivcii liy the I'liitcil States I'lxecii-

<iO live, ami this is est.-ihlisheil liy till! tiniliii;,,'s uf fact at I'ari-.

As I siiy, on pa;^c foiu' uf tin; ISritish Arijiniieiit, there i- a

letter flum the s,.izillL,' ullicer, ilatei] Septellllier Ih'il, ISSt), to the

Secretary uf the Tieasuiy at Washiiij^tun. Nunc uf these lettias,
frum .\lr. Bayuril's statement, came tu Mi', ^la^■ar(i, nor is it siii,'-

:t(

4(1 1

(.Sir C'hark'H U. Tupper'n Ar){uuient.)

k,'u»t«(l tlittt liiH |)>tU.M-H mvrv aot written in the very tient of kimmI
laitiL 'llie letter in im folloWH : —

" Upon arriviiiK here I repurtuil luy wixureH to the UniUtd
' StateM District Attorney, who Iwd been ailviHwl in iuiv«nce hy
' the arrival of the schooner ' San Die)^>.' on AugUHt 23rd, and
' litid infonnationH s^^MinHt the iiuuttern u.^ nmteH of the Neize<i

veNHeJH for violfttion of Ntsction 11)50, Kevined StatiiteH, v,!.wr;<-
' upon they went removed from the ' (/orwin ' luid Inken in

custody liy tlif rtiited StatfH MiirNhiil. All wcru urmi^ned at
■' n Npecitd Hetwion of the Unitud StateH DiHtrict Court of AluHka,

.lud^u l^fayetttt Diiwhou, and the iiiUMterH and niateH of the
" Kritinli Hchooner ' Thornton ' and American Mciiooner ' San
" Dif)^>' were convicted, the f»jriner by a jury, the latter by th<>

Court, and Hentence<l to tine and iniprimHniieiil. The other two
" criminal trialu— of the 'Onward ' and 'Caroleiia ' partien — will

come on aH soon uh a new Jury can U' obtaineil. The Adiiiir-

20 ally CBMCM I have not fully decided how to proceed with. There

' may be a doubt iih Uj the juriHdiction of the Alaska Court in

their regard, and I will endeavor to Hettio it before proceeding
•' at ail."

On the 22nd Septenil)er, l8H(i, the same wi/.in^ otKcer wrote
to the Secretary of the Treasury at VViwhin^ton from iVstoria,
( (ri'jjon, as follows : —

" 1 would respectfully report the arrival here on the 22nd
" iii.st. of the revenue steamer ' Corwin ' under my command

from Sitka, September lOth, via \anaimo, British Columbia,

• HcptemlHjr 17th, Port Townstmd, W. T., the l«th, and Seattle,

• W. T, the 20th.
" Refernn^ to my letter of the 3rd instant, from Sitka, I

" would state, in continuation, that I remained at Sitka in con-
tinuous attendance at court up to the date of my departure.
' The masters and mates of the seized sealers were all criminally
" convicted and .sentenced to various terms of iniprisonment and
" tines."

On the 12th November, IMHO, the United States Secretary
111 State wrote to the British AmbasBador — as follows : —

" The delay in my reply to your letters of September 27, and
" October 2 1 , askinjj for the information in my pos.se.ssiou con-
" cerniiij; the seizures by the United States revenue-cutter
' Corwin ', in the Behriny Sea, of British vessels, for an alleged
" violation of the laws of the United States in n^lation to the
" Alaskan seal tisheries, has been caused by my waitinj; to
receive from the Treasury Department the information you
"desired. I tender the fact in apology for the delay as the
"reastmfor my silence, and repeating what I said verbally to
" you in our conversation this morning, I am still waiting full
" and authentic reports of the judicial trial and judgment in the
' cases of the seizures referred to.

•' My application to my colleague, the Attoniey-CJeneral, to
" procure an autheutic report of the.se proceedings was promptly
' made, and the delay in fur.dshing the report doubtless has
" arisen from the remoteness oV the place of trial.

" So .soon a.s I am enabled 1 will convey to you the facts as
" ascertained in the trial and the rulings of law as applied by
" the court.

" I take leave also to acknowledge your counnunication of
' the 21st of October, informing mo tliat you had been instructed
" by the Earl of Iddesleigh, Her Majesty's Principal Secretary of
" State for Foreign Atlairs, to protest against the seizure of the
" vessels above referred to, and to reserve all rights of com pen -
■ sation. All of which shall receive respectful consideration."

.■)(l

liil

I '

■ I '11

'I 1

:i ii

i
ll

=^i'

402

(Sir Cluirlos H. Tupper's Arjjument.)

Then at p<i}:ft> (i of tlio British Arjjiimoiit we find thai on the
!)tli Jiinuiiry tlie Hritisli Anihassiwlor wrote to tlie United States
Secretary oi' State rel'errinij to his prior letters, and addin^j; —

" Umler thise eirciiniHtances, Her Majesty's (Jovernnient dn
" not hesitate lo express their eoneern at not havin^j received any
" reply to tlteir rei)resontations, nor do tiiey wish to ct)nceid the
10 " Jii'-'ive iijiture whicli the case has tlins assumed tun] to wliieh ]
''am now instrueted to call j'our immediate and most serious
" attention."

On the 12tii January, 1.S.S7, the United States Secretary- of
State wrote to the British Andiassador : —

" l''rom week to week T have been waiting;; the arrival of the
"papers, autl to-daj*. at my reijuest, the Attorney-tieneral has
" tele^^raplied to Portland, ()re<;ou, the nearest telegrajjli stiitioii
" to Sitka in Alaska, in order to expe<liate the furnishinj^ of the
" desired papers. • * » » »

"20 " The distance t)f the vessels from any land or the cireum-

" stances attendant upon their seizure are unknown to me save
" hy the statements in your last note, and it ises-ii-ntial that sueii
" facts should he devoid of all uueertainty."

On the 1st Keliruary, 1KS7, the British Amhassador wrote lo
the United States Secretary of State, in(|uirini^ whetlu'r the
information asked for had lieeu received.

Outiie.Srd Keliruary, 1.SS7, the I'nited States Secretary . if
State rejilied :

" 1 am informed that the documents in i|uestion had left

;]{) " Sitka on the 2()th January, and may be expected to arrive at

" I'ort 'i'owns-.'ud, in \Vashinu;ton Territory, about the 7tli

" instant, so that the papers in the usual course of mail sluaild

" be received by me within a fortnifjht. '

On the 4tli April. 1.S.S7, the British Ambassador ;i,'ain
empiii'ed from the I'liited States Secretary of State us t )
whethei' the documents had been received.

On the l-2th April. I.SS7, the United States Secretary of
State wrote to the British And)assador that " * * * the
" records of tlie judicial proeeedinj^s in the cases in the District
.}.() " t'oui't in Alaska referred to were only received at this Dep.irl-
" ment on the Siiturday last and an' now under examination.
• • * " And in this letter the Uniteil States Secretary

of State proceeds to refer fur the first time to sections l!),")!! to
1071 of the Revised Statutes of the United States.

The documents left Sitka, according; to the record .set out in
oni' Aromnent from the correspondence, on .laim.'iry 2()th, I.S.S7.
'J'lie British .\nd)assad(ir wi'ote one of his numerous letters fur
inloiiiiation on April Mb, 1S,H7, and on April 12th, 1.S.S7, thf
United States Secretary of State wrotf as I have just read.
")0 i''irst. then, there was the information, not perhaps in Secre-

tary Bayard's personal possession, but there was full and
complete information outside of the Court record to which I
havi- .ilreaily adverted in |)osse.ssioi) of some otlicer of the United
Stales i,rovernment. Secretary of Slate Bayard had not received
that, but it is clear that he had i-eceived on tlu' 12th April, 18X7.
thi^ (^)urt recird, and on tlie Kth of .Inly, 1.SM7, it was necessary
i'oi' the British Ambassador to write a;;ain askinj; to obtain that
recoi'd. A copy of it was not obt.iined fi-oin the Secretary of
State of till' I'nited States luitil the llth of duly, KH.S7. 'riieii,
(iO at pa<,'e 7 of our written ar;;unient, tlic^re is another feature in
connection with the facts, to which my learned friend Mr.
Beicpie particularly- referred, namely, that there was a po>»itive
promisi' on thi' part of the ruited States Secivtar}' of State
which was never fulfilled, which was no doubt overlooked — I

■A.

]M^^-

I' I

•20

;;()

\\)

.)ii

(id

46»

(Sir Clmrles H. Tupper's Arftumont.)

<\o not in fact suj;<;est that tliis promise was tnade in oriler to bo
broken, but it is a very important tliin^j in connection witb
notice. 'I'bis is the reference :

"On April 12tli. 1.SS7, tlie United States Secretary of Statu
wrote to the MriMsii Ambassiulor :—

"The (|iiestion of instructions to (lovernment vessels in
" re<;ar(l to preventinj; the iiuliscriminate killiiij; of fur seals is
' now beiiifj considered, ant! 1 will inform you at the earliest (hiy
•' possible what has been decided, so that l^i'itish and other
•' vessels visitini^ the waters in (piestion can jjovern theuiselves
•' accordinirly."

Well, the notice was the seizure of vessels in bSH? and no
(itlier iMtice was jj^iveii. In connection with this treatment and
tJH'se facts, at one stajje of the en(|tiiry the le;irnei| Connnissioner
for the United States t|Uerieil us to the importance of notice and
1 will refer in that eoiuieet ion to Voknne I") American reprint
containinj^ the ary;uinent of Mr. I'helps at I'.iris, where he makes
an olvservation which I think is in |)oint uniler that head and to
.some extent would answer the (picstion put by the learned
(\immissioner. IJussia had taken some similar action as to ihat
taken by tlie United States, and had seized our vessels, and in
iliseussiiiir tliat as well .as the seizure under consideration, Mr.
I'liel|)s at paee ]-2'i of iiis oral arj;;uinent s;iid :

" Now, one of the incidents that must always attend, and the

■ least rellection will show that it is an indespensable re(|iiisite,
" is that befoiv measures of force are resorted to in defence of a
" nation, reasonable and |»r')|)er notice, or information shall be

• ji>ven to the world of the olijectioti that exists to what is bein<r

■ done, and of the rejjulation or the defence that it is proposed

■ to exert. Wh}', it was a part of my learru'd friend's arjfinnent,
in deaiini; with these seizures in the Piehrin;; Seas, ' You have

"seized thesti vessels witliont trivinsjr notice to (ireat Hritain that
"you were fjoinij; to do so.' Well, if that had l>een true, I mean
"by that if the facts that had taken place did not amount to
"sutlicient knowledije, there would be f,'reat force in my learned

■ friend's sn;j;i;estion. This was the very point that, as I have
" remarked this morninrr, was t!ie informality of the seizures that
' wii!' maile by Ilnssiii of the Canadian vessels for sealiuj^. A

• vessel came there with no notice whatevi-r that seidin^ in the
" hiifh sea was j^oinj;; to be prohibited, and it had not been pro-
" hibited elsewhere: and the tirst warninj; that the vessel had
"was this .seizure. Russia may well say that it was necessary

• to do it. ' We caimot prestn-ve this industry in any other way '
' ' Vt's, but is it necessary that you .should resort to the extreme

■ uieasnie of ciif)ture of a vessL-l before you had j,dven notice not
' to do here ns they eoidd do elsewhere, and had j;iven them a

• fair opportunity to withdraw,' as it is pre-umed that they
"would withdraw when they fouiid that the nation atl'ected
" obji'i'ted to it ; then when they deebniid to witlulraw and per-
" severed in face of the oiijection and the notice, it would be time
" to <jo a step further and enforci^ yonr K-.';;ulations by actual
".seizure."

The Connnissioner on the part of the United States : — That
is not (]iiite the point I called attention to. Tnis matter of
nations proceedin<,' without notice to nriki' seizuics of this
character is not a new point to me. What I asked fcr was
lei^al authorities to show that tin- matter of proceediii}*
without notice was relevant to the (piestioiis here. 1 can
well see that proceediuj,' without notice may be a !,'roinid of

I i

M :

■(■ .

'if: [

l^ll

464

(Sir Charles H. Tupper's Argument.)

national oomplarnt, but I ask for authoritiea relevant to the
proceeding;!! {^r damages in this respect.

Sir Charles Hibbert Tupper : — I submit that what was in

Mr. Phelps mind was that ia a case where therii is a trespass : —

The Commissioner on the part of the United States : — You

cannot find any authority there except as to a trespass which was

10 malicious.

Sir Charles Hibbert Tupper: — In the computation of damages
it seems to me that there is a difference where there is a trespass
to the injury of a man without notice ur suggestion that he was
going to do the act in the case of property to which he laid
claim ; and a case where ample notice was given that he claimed
to have the right to enter upon property, and in order to enforce
these rights he would proceed at a certain time to take a certain
course, it being decided in the end that he had no justification ;
I think that would be a fair matter of comment in connection

20 with the computation of damages as to the absence of notice in
one case or the giving of notice in the other.

The Commissioner on the part of the United States : — Mr.
Beique did reply quite fully to my suggestion as a matter of
argument, and so have you.

Sir Charles Hibbert Tupper : — Wtiat your honor desires is
some authority.

The Commissioner on the part of the United States : — I simply
ask whether there is any authority at hand. The matter has
been discussed by both of you gentlemen from the point of argu-

30 ment, but not from the point of authority — and thiscitation]froin
Mr. Phelps is hardly an authority.

Sir Charles Hibbert Tupper: — It is only argumentative I
adniit, but what I meant by that was that Mr. Phelps in thai
stage of the history of this case seemed t" recognize the force nf
the point we are pressing ; that it was done without notice and
it is only fair to Mr. Phelps and uiyself to point out that he went
on to say that the American statute was notice, and that the
difference between the United States and Russia was that Russia
did that by an executive act which of course was no notice

40 whatever, but that the United States by her statute section 195()
gave notice to the world. At the time Mr. Phelps was making
his argument there was no doubt something in that point, but
after the decision of the Tribunal at Paris there was of course
nothing in it because the statute could not exist as applied to
this case and could not be any notice whatever. I do not wi.sh
to trouble tlie ComniL^sioners by dealing at length upon that
point, but I will refer to page 201 of the argument on behalf of
Her Britannic Majesty, where there is a promi.se of a notice in
this connection and not the promise in Mr. Bayard's letter to

.50 which I have ret Mieii. That point at page 201 of our argument
is put in as part of the findings and is as follows : —

" Treasury Department, Office of the Secretary,

" Washington, April 21, 188(1.
" Sir, — Referring to department letter of this date, directing
" you to proceed with the revenue steamer ' Bear', under your
" cunimand. to the seal islands, kc, you are hereby c'othed witl'
"full power to enforce the law contained in the provisions ot
".section 19.50 of the United States revised statutes, and directed
(iO " to seize all vessels and arrest and deliver to the proper authori-
" ties any or all persons whom you may detect violating the law
" leferred to, after due notice shall have been given."

It was apparently present to the mind of the executive that
this action of IHSO should be preceled by a notice, then in 1887,

465

(Sir Charles Tapper's Argument.)

and tliat is the point of my other reference, the British ainhassa-
dor pressed to know on what ground the United States are
proceeding, what are tlieir regulations, what are the offences for
which these vessels are taken, and passing hy all the delay that
occurred in thai connection, there was a promise given on the
part of the United States government ; that these regulations

10 were under consideration, and that there would he a compliance
with the request at an early day. It will not be pretended by
any one that it was not the opinion of Her Majesty's government
from that conimunication that notice would be given before the
seizuies were repeated in 18S7.

The Commissioner on the part of Her Majesty : — Passing by
any question of law that might be involved, do you not at another
point of your case set up that the sealers were endeavouring to
avoid the cruisers ?

Sir Chas. Hibbert Tupper : — Of course in 1887 they knew of

20 the seizures in 1886, and there is no doubt that in 1887 the risk
they were running was present to their minds. Your Honor
remembers, however, that tb • British government understood
there was an assurance that there wouM be no seizures, but the
United States contend that nothing was intended more than
the release of the vessels seized in 1S8C. When the vessels went
into the Behring Sea in 1887, the release of the vessels in 1880
had been ordered. During the argument there has been a refer-
ence to the case of the " Argentino," the " Risoiuto," and the
" Gleaner." That subject has been very fully dealt with since

30 then. I think there was a reference casually, though perhaps not
on these notes, to the decision of Lord Hannan in the case of the
" City of Rome."

The Commissioner on the part of the United States ; — Have
you the full report of the " City of Rome ?"

Sir Charles Hibbert Tupper: — I was about to explain what
we have in connection with that case. We have obtained from
Mr. Marsden the notes, and in the notes the jmlgment of Lord
Hannan seems to be very fully and literally given, although the
case has not been reported. I take it, although i am not speak-

40 ing with any authority, that the reason that the decision is
not reported is that it would have no very great weight or
interest, notwithstanding that it came from so distinguished a
judge as Lord Hannan, because it was anterior to the case of
the "Argentino." The "Argentino" ca.se was decided by the
House of Lords, and Lord Hannan could not have decided as he
did in the case of the " City of Rome " with the "Argentino"
case before him." The " City oi Rome " case is not reported, but
I shall lay the notes before your Honors. I shall crave the
indulgence of your Honors to take recess now, as I have to refer

50 to these three cases this afternoon.

At 12.50 P. M. the Commissioners took recess until 2.20.

' < 1

■'l

.■i

i; .,i.iiH

I-'

!.fc

At 2.20 P. M. the Commissioner.s resumed their seats.
Sir Charles Hibbert Tupper, continuing :—

The case of the ' Citj- of Rome ' is referred to in ' Marsdons
Collisions at Sea,' and the foot note simply says, ' City of Rome,
(lO Admirality Division, 11th May, 1897.'

The Commissioner on the part of the United States : — Is
that case referred to in your printed argument ?

Sir Charles Hibbert Tupper: — No. It has never been
reported in the regular law reports; the cases we have referred

4GG

(Sir Charles H. Tapper's Ar<j[iiment.)

to were the latest, anil from the Eiifjlish point of view tlie
autlioritive judgments of the court m tlie rejjuhvr order. 1 wi!l
read to your Honors a re<;istrar's report of this case, which was
obtained by Mr. Marsden, to whom counsel for Ifer Majesty
wrote askinij hii<i to give such a riport of this cast? as he was
able to, he having referred to it in his Ijook. I sliall now read
10 in full all that we have received in reply:

" Rkoistkau's Repout, Thk ' Ci rv of Rome.'

"(Before the Right Hon. Sir James Hannen, the President,
' Shipping Gazette,' May 12, 18>S7.)

"This was an appeal, on an ohjection to the Registrar's
'• Report, on behalf of the owners and others of the Hshiiig
" vessel ' (Jeorgi^s i-t Jeanne.' The ol)jectii)n on the part of the
" Appelliints was that the Registrar had not allowed that part of

20 '■ the claim which had reference to the value of the tish which it
" was estimated wouhl have been caught between the time the
" ' Georges at Jeanne' was sunk and the teiniination of the tish-
" ing season ; the Registrar holding that such loss was too
" reujote and speculative for him to take into consideration.
" The .sum claimed, which had been struck oil" amountecl to
".l"1707 His. !)il., and the appellants were orilered to bear their
" own costs of the reference. The respondents submitted that
" the ai)pellants were not entitled to recover for a possible
" future catch of tish, and that the Registrar's Report was usual

30 " and |>roper under the circumstances.

"The I'resiiliiit in giving judgment said: When 1 first
'applied my mind to this case I was favorably inclined tiwiirds
'■ an appeal on the ground that this appeared to be so near the
" en<l of the venture that it occurred to me that this amount of
" ])i<ispeetive gain might have been taken into account by the
" Registrar. Rut the result of further consideration and hearing
'■ the arguments leads me to the conclusion that no distinction
" can be drawn lietween this case and the case of a longer
" venture, such as a sealing or whaling voj-age which miglit

40 " be put an end to by a collision. There is a difficulty, of
" course, in arriving at a conclusiin as to what will adeipiately
'• compensate the owner of a vessel which has been run down
" for the loss which he has sustained. Hut, as has been pointeil
" out by Dr. Lushington, some definite rules must be adopted by
" courts as their guide, and he had laid down with his usual
" clearness and force the rule which guided him, and which so
" far as I can see, has continiunl to guide his successois in Iheir
"judgments. And I cannot adopt the suggestion of ])r. Sttilibs,
" that two or three deliberate decisions of J)r. Lushington's have

50 " become oljsolete because some cases which are apparently
" inconsistent have been decided in the Registry, and it is remark-
•' able that when the strongest of those eases comes to be sifted,
•'it turns out to be no authority at all, Ix'ing a case not of total
" loss, but of |)artial loss. I consider the matter is concluded by
" authority that where there is a total loss the (piestion of the
" value of the things lost at that time is what is to bo taken
" info accoiuit, without reference to the tpiestion what a vessel
" woulil have earned if she had gone on a longer or a shorter
" voyage than the one on which she was engageii at the time.

00 " I therefoit; think the appeal must be dismissed with costs.

" l)r. Stubbs appeared as C'ounsel for the Appellants, Dr.
" Raikes for the Respondents. "

That was in May, 1SS7, and the learned jmlge there likens
this to tlie case of a longer venture such as .sealing or whaling

■)()

(iO

4(37

(Sir Charles H. Tupper's Argument.)

voyai,'e, which uiiijlit be put an end to by collision. The ca.ses
(if the " Gleaner," the " Risolnto," and liie " Arf»entino," are in
the Uritish brief. It will be found that among the various
!iuthoritie.-> before the courts this case timls no mention — thi; case
(if ihe " City of Rome " not being reported might account for
it. Nevertheless, in this very case of the " Argentino," we find
Lord Haniien giving the judgment in the first instance, and we
iilso find him giving judgment in faror of the allowance of
future profits; and in supporting him in the court of appeal we
tind Ijord Justice Bowen referring particularly to a whaling
voyiige: and we also find the court in confirming his judgment
in the case of the " Argentino " dealing with the case of the
• itisoluto," quoting it with appioval. 'I'hat was the case of a
tisiiing v()yag(! where the vessel was run into on her voyage off
the biiriks; and the case of the ' Oleaner," also in our brief, was
included in tlw. case of the counsel of the successful litigants.
If your Honors will bear witli me for a moment, we will take
tlipsi- eases in the order set out in our brief. Take for instance
the ■' Argentino" case as it appears in 1:? Probate Divi.sion, page
til, in January, l.S)S8.

The motion came up on objection to the Registrar's report.
This case was heard li(>fore Lord Justice Ilaniien on February
14th, 1H8.S. He delivered hi> judgment and adopted the facts
tliiit I have mentioned, which were in the Registrar's report, and
in dealing with the case he sny.s : —

" Tile registrar in his report states that he was referred to the
•' e.ise of the Star of India (1). He distinginslies that case from
" the present on the ground tliat the arrangement in the present
" case ' had not the force and eHect of a definite charter partj'
" under which a specific amount of gross freight is contracted
" for.' I difler from the learned registrar on that point. There
" is nothing special in the advantage to lie derived from a
'■ (IcHuite charter paity, it is sutKcient if lihere is something
" which leads to a definite assurance that some benefit will be
" derived, whether it be from a charter party or an agreement
' not of that kind."

Again, he says : —

" In the present caae, for the reasons I have given, I am of
" opinion that the owners of the ' Argentino ' have proved that
" freight would have been earned, and that it wa.s lost through
" tiie collision.

" Tiie nature of the advantage which has been lost is not
" indeed (juite as clear as it would have been under a charter
" party, at the .same time its character is clear, tliough the
" iiiuount is uncertain."

'{"here was an appeal from that, but the court, when tlio
ii|ipeal was heard, seem to have gone even further than Lord
Hiiunen did, for instance, in 1.') Probate Division, 102, where the
t'lisc eaii\e iief(u'e the (^oiirt of Appeal, there is set out the mituro
(if the claim in dispute as follows : —

" 10. Loss of profit on .succeeding voyage which had been
'• contracted for, but which defendants were unable to carry out,
" and for which another steamei was snlistituted, including
" eighty days' time lost in loading carg-^ upon next voyage
" licyond the time which would liave been consumeil in loailing
" the cargo originally contracted for, .t7N5 Kis. .'id.

" The registrar disallowed claim on tli ground that the oral
■ arrangement amomited to jiegdtiation merely, and the damages
" sdught were too remote : but on objection being taken to the
" registrai's report by the owners of the ' Argentine,' the Presi-
" dent of the Probate, Divorce, and Admiralty Divi.sion held,

^l!

. m

:ii

, m
[||

..j,

,|, i-fe

.''HI • I'

HlPllI

468

(Sir Charles H. Tapper's Argument.)

" first, that the arrangement amounted to a binding contract ;
" and secondly, that the profits made hy the ' Beta ' should be
" used as a basis to ascertain the difl'erence l)etween the advan-
" tage derived fron> the two voyages, so as to arrive at such
" daii' »ges as would represent (1) the ailditional profit whicii the
"'Argentino' would have made lunl she gone, as originally
10 " arranged, on the Batoum route : (2) the loss due to the diH'.'i-
" ence in the size of the 'Argentino' and the 'Beta'; (3)
'• demurrages for such numiier of days as was reasonably lost
" by tlie ' Beta ' being loaded mure expeditiously than the
" ' Argentino.' "

Sir Walter Phillimore and Boyd argued for the respondents,
and referred in their argument to the cases on fishing voyages
which supported their view. They mention the " Gleaner," the
" RiMjIiito," and some other cases. Lord Esher dissented from
the judguient of the Appeal Court, but even in his <lissenting
20 judgment he deals with these (|uestions in connection with the
principle of reafitufio in intet/nun and the remoteness of the
damage, where damage is not contemplated by the partie.s. He
refers, however, in his dissenting judgment to Sedgewick (ni
Damages, as follows : —

"This general principle pervades the civil as well as the
" common law, and applie:; "iiually to cases of breach of contract
" and of violatioM of duty; to all cases in short, where no coiii-
" plaint is made of anj- iieliber«.te intention to injure."

This is worthy of remark m connection with our chief point
30 in regard to this prospective catch, whtre the question of inten-
tion \i of importance. At the end of his dissenting juilgmeiit
he says : —

" I am of opinion that the existence of a head of danmiie
" which is found to be too remote ouuht not to be regarded nt
'' all. It ought to be treated as not existing. I am of opinion
" that the appeal must be allowed, so far as the judgment of tlw
" learned President directs an enquiry as to any allowance in
" respect of the loss of the agreement for the future hiring of
" the vessel."
40 Justice Bowen in delivering the judgment of the court, in

which Lindley, Lord Justice, concurred, said :—

" The learned President has held that the ca.se must be
" referred to the registrar to ascertain the amount of loss which
" the owners of the " Argentine" have sustained by their vessel
" not being able to fulfil their contract, and has intimated that
" his calculation is to be made from the profit actually earned on
" the same voyage by the Beta, after allowing for the difference
" of capacity, etc, between the two vessels."

After stating what the case is, the learned judge goes on to
50 say : —

"Courts of Admiralty have no power to give more, they
" ought not to award less. Speaking generally as to all wrong-
" ful acts whatever arising out of tort or breach of contract, the
" English law only adopts the principle of restitutio in integrum
" subject to the qualification or restriction, that the damages must
" not be too remote, that they must be, in other words, such
" damages as flow directly and in the uiual course of things from
" the wrongful act, To these the law superadds in the case of a
" breach of contract (or to speak according to tlie view taken by
CO "some jurists, the law includes under tlie head of these very
" damages, where the case is one of breach of contract) such
" damages as may reasonably be supposed to have been in the
"contemplation of l)oth parties at the time they made the coii-
" tract as the probable result (jf its breach. With this single

4G9

(Sir Charles H. Tapper's Argument)

'' modification or exception, which in one that applies only to cases
" of lireach of contract, the English law onl^' permits the recovery
" of such damages as are produced immediately and naturally by
" the act complained of."

Later on he refers to the very class of vessels adverted to by
Lord Hannen in the case of the " City of Rome," and says : —
Id "A wlialiiig vessel which loses her season is thrown out of
" employment just as surely as if she had been a cargo-carrying
" vessel under a charter which has to be abandoned."

Later on he says : —

•' It remains, however, still to be considereil what is the value
" at which this loss of employment is to be calculated in the case
" of a vessel which, but for the accident, would have been ser-
" viceably used by her owner in a particular manner. This is a
" difficult matter to calculate, tut the difficulty is only, after all,
" one of fact. Where there is an actual charter party such diffi-
20 " culty is reduced to a minimum. Where there is nochailer
" party, but merely a reasonable certaintj' of employment, the
" matter is left more at large."

He says again : —

" I do not think that the loss of such average and ordinary
" earnings in respect of a vessel which was advertized to sail, as
" the ' Argentino' was, woulil be other than tlie direct and natural
" consequence of the colli-ioii."

And later, in hi» judgment, he supports his reasoning by re-
ferring to some of the cases I have mentioned, and says: —
'.]{) " On these grounds loss of a fishing adventure was allowed in
" the ' Ri-solute.' "

We come then to the House of Lords, where the case was
finally brought, and in that year, 1889, Lord Herschell delivered
the judgment of the court. He .said in that judgment, as
follows : —

' Your Lordships have therefore to consider whether, if this

" were an action brought in the Courts of Coiunion Law and

" tried by a jury, the judge ought to have directed the jury that

" these damages could not be recovered on the ground that they

40 " were too remote."

Later on he says : —

" I think that damages which flow directly and naturally, or
" in the ordinary course of things, from the wrongful act, cannot
" be regarded as too remote. The loss of the use of a vessel and
" of the earnings which would ordinarily be derived from its use
" during the time it is under repair, and therefore not available
" for trading purposes, is certainly damage which directly and
" naturally flows from a collision. But, further than this, 1 agree
" with the court below that the damage is not necessarily' limited
" to the money which could have been earned during the time
" the vessel was actually under repair."

Later on in his decision : —

" Where no claim is made in respect of loss arising from the
" owner having been deprived of the earnings of a vcyage which
" was in contemplation, ami the engagement for w.hich had been
" secured, it would be right, and is no doubt the usual course, to
" award damages under the name of demurrage in respect of the
" loss of earnings which it must reasonably have been anticipated
GO " would ensue during the time of detention. But where such a
" claim is made as in the present case, the owner cannot, I think,
'• be allowed in addition, as a separate item, demurrage in respect
" of the time the vessel was under repair. If he obtains as
" damages the loss which he has sustained owing to the loss of

r.o

^i\

!l li

M, I'

T'-i

470

(Sir Charles H. Tapper's Argument.)

" the employment lie hail secured, he is put in the same position
" fls if there had lieen no detention."

Lord Fitzgerald adds a few words to the judgment, as
-.1 follows ; —

" It is to lie regarded in the light of a common law action
" brought liy the owners of the "Argentino" against the vessel
10 " in collision ; and upon the main (jui'stion as to whethfr the
" dnmngps resulting to the owners of the " Argentino " from that
" collision wiTc too remote, 1 never from tlie heginning enter-
" tained any douht. It is not alone that they arti not remote, but
" 'hey art' the proximate result of the collision."

That liriiigs me to say, and I shall be very brief, not only in
deference to the court, but in deference to my learned friend,
who went so exhaustively and thoroughly into that branch of our
case, where we are content to rest it, so far as damages are con-
cerned, that it does not depend for suppcvt upon the "Argentino,"
20 but upon a principle which up to the present time is not chal-
lenged by any decision, either in the United States or in England,
in any of these courts. The distinction between that particular
class of cases of tort, ami the class of cases having to do with in-
ter-tion, and where there v^as an act from which one party suf-
fered, intended in its efl'ect by the party doing the wrong, is that
there is no possible room for the question of remoteness, liut the
court is called upon to assess the amoutit of damages actually
intended to lie done by the party oH'ending. I simply leave that
subject liy aiiverting to that, a distinct anil separate principle

30 from tlu> princijdes involved in those cases that I have been im-
mediately referi ing to.

I close by saying that, in this case, it ha« been proved, not
merelj- that the ol>ject of the United States was to prevent us
from making n catch of those .seals, but the avowed object was
not merely to prevent foreign vessels, or our vessels, taking a
single seal in the waters of Behring Sea, where we had a right
to take them, but they were arranging so as to enjoy the benetit
themselves from the taking of their .seals to the extent of one
hundred thousand a year on the Pribylofl' Islands.

40 I have covered the points I deem it my duty lo discuss and
for the patient hearing which has been accorded me, no poor
words of mine are sutticientl}' adequate to express mj' thanks
and gratitude. I have, as your Honors cannot fail to observe,
rested my portion of the argument largely on authorities drawn
from the United States, and I have sought to have vin<licated at
3-our hands those principles which the great names of the United
States have successfully hitherto upheld, and upheld as I have
pointed out, when questioned for a time by Great Britain herself.
Having referred so much to the great names of the United

50 States, and remembering how my learned associate, Mr. Beique,
deemed it fitting to closa Ids remarks, I, in order to follow his
example and the line I have adopted, would call to your atten-
tion two passages in the closing address of Mr. Phelps at Paris.
One is of special importance, in connection witli the nature of
the assessment that your Honors have been occupied with ; I do
not believe it will be neces.sary to impress upon your Honors
that, in ascertaining the amount of damages due to those who
have been injured, and by the admission of the Uniteil States
under the judgment wrongfully injured at their hands, that you

60 should refine too much, or investigate at too great pains, to .see
what item could lie cut down or what amount of damages largely
reduced. I take it that we have a right to expect at your hands,
where the claim is honest and boti'i fide and comes within the
terms of this treaty, a generous award. I believe the United

471

(Sir Charles H. Tupper's Argument.)

States, when once the principles upon which the assessment is to
be made, have been determined, would desire to pay nothing less
than a generous award, and so bury this question at once and
forever. Certainly that seems to have been the view of Mr.
Phelps when arguing the larger and greater questions that came
between the nations at Paris, where he said as follows referring

10 to the amount of damages : —

" Mr. Blaine once offered to pay it, as you have seen in this
" correspondence, if he could settle the important rights of the
" country for the future in respect of this industry, saying that
" it was too small to stand in the way, especially as the money
" was going to individuals who might have suppo.sed and pro-
" bably did suppose that they were authorized to do what they
"did."

I adopt, changing only " America" for " Great Britain" the
closing remarks of Mr. Phelps, and place it side by side with the

20 conclusion of my learned associate Mr. Beique, where he adopts
the language of Sir Charles Russell on the same occasion and
say :—

" It is with a confidence predicated upon the justice of the
" British case, inspired by the high character of the Tribunal
" these nations have been fortunate enough to bring together,
" and strengthen by the anxious solicitude each member of it
" has shown through this long and wearisome discussion to reach
" a right conclusion, — that Her Majesty's Government submits
" this case to your consideration."

i'ii

Pi:

■r

ii-i'

li'i'

I u'

•10

' 1

ARGUMENTS ON SEPARATE CLAIMS.

Mr. Peters: — We now propose, yoiir Honors, n taku up llie
special claims and to ileal with tlioiii very shortly. I pro-
pose to (l(!iil with five vessels, heginninj^ with the " C'lirolena,"
iind ill (loin;; .so I shall, as much a.s possible confine myself to the
tiisputeii (juestions arising in eacli particular case.

C'AUdi.ENA Cask.

If your Honors will refer to the arj,'uiiii'nt on iiehalf of the
Cniteil States, at pa^'e .'W7, you will find that my learned friend
he^'ins a discussion of this case with the following paragraph : —

" Tile f)resentation of this claim, in the Arj,'uiiient on hehalf
'of (ircat r.ritain, radically differs from the claim as presented
' I'V tile testimony of the claimants at Victoiia. The eviileiice
'offered relatiiif,' to the cost of siipplyiiij,' Miinsie's tradinj;
" station, the cost of e(|uippin<; a sealing' vessel for a huntini^-
" voyai,'e on the west coast of Vancouver Island l.efoie the
" departure of the ship for the voya;^'' to lii-liviiii,' S. :i and the
' vooclicrs placed in evidence. a;,'<|re}iatinj5 aliout !i<(!,(l()(), 'I draw
■' your attention to these words' — which, according' i ■ tlii! claim-
" ants, represented the cost of outfittini,' this small ^ehooner of
" 21^ tons for a sealin;^ voyajje in I^ehriii;,' Sea of two months
"receive no consideration in the British aru'unient."

At pa;,'e .'!42 of the same ar;,'umeiit I'e states as follows: —

'• Although the claimants have not a^kvd this Hij^h Cjiu-
" mission to award Sii.OOO, claimed as the total expense of
" oultittiiif,' the ' ( 'arolena " in Behrinj; Sea for the voyage of
" KSSti, the amount has not heen Icsseneil, hut on the contrary,
" as shown, is increased without any apparent reason, from the
" time that the claim was Hied at Victoria."

I have lead these pnssaj^es in full in order that I may make
no mistake in the comment which I wish to make. From that
statement I shouhl judge that my learntc', friends wished this
Triliunal to think that .ve ha<l made with regard to the' ('arolena '
a very exaggerated claim, and that we hud proved or attem|)ted to
prove that !?t),0()0 was the sum it would .letually cost to outfit that
ve-.sel for what he termed a two months' voyage in Hehring Sea.
50 I think that is the meaning of the words if you are to take
iheiii as thej- stand in the argument. That is an entire misap-
prehension of the facts as 1 understand them. What are the
facts ? If your Honors will refer to the vouchers in eviilence,
and found iti Ajipor '..a li, heginning at page <S ; there ai'e some
fifty vouchers, !?(J,12!S constituted one part of these vouchers,
and the other amount is §4i,000, the value of the ship ; i?(),12M
does not represent, as you would understand from n»y learned
friend's argument, oi', at least, as I understand from it, the cost
of outfitting the vessel for the voyage in Hehring Sea for t«i
iiumtlis, hut it represents a great many other things. W <-
never claimed that it cost .S0,000 to outfit the " (.'arolena " for
Belli ing Sea, such a claim was never pretended to be presented
hy the counsel for Cireat Britain. If you will ref^r u> the
Vouchers which are set out in that Appendix, Nos. I, 2, o, 4, 5, (i,

iiii

a. :

III!

■ UM'

474

(Mr. IVtors" Si-coml Arj^uinont.)

22, 2.'). :{7, MS Jv 4:'(, it will Im foiiii.l tliat in ivll tlioio voudicn
witli ill* exception nf part of (itio of llioiii refcrrud to, ariiclos
piii'i'liasi'il not for tin' It.'liriny; Si'ii vayii;.'(i iit ftll, lint for ii<t! in
tlic winter voynLje lieLiinnin;; in tlie inoiuli of Felirniiry, iMSf),
wliicli voyi\;,'e WHS piirllv a tradin;^ voyii^'e iind piiitly i\ seiilinL;
vo\iii'«. 'I'lie-'e voiiclicrs total Hoinetliini' less tliiiii 1:*K)(), so timi

10 in lliivt pnrlieuiiii it is not correct to say llint tlie !'<i!.()(ll)

WHS

reiiniriii for the voya;,'e to Melirin;; Sen, oi that it repi'events tliu
oiiltit for tliat vipyn;,'!'. Ai,'ain, let me refer ynu to certiiin ollni'
items inclinleil in tlie total nf the voiielieis wliicli ceitaiiilydo
not iieloni; to tlie outfit for the voya;(i' to Helirinj; S 'a. Vouclu'r
nnmlier .'JD, cash ^jiveii to ();;livie, No. .'t.'l, jiassaye and e.xpeiises
(if crew I ■ '

(it ; No. l.'i was for law costs which
coiii'ictioii with th

from Sitka, wdiich iiad notliiiii' to do with th it-

■re ineiirreil at Sii

i\a ni

i/nre • No. 40 was Mr. i)id\eirs hill, snnn

■i(»; No. l

4r was a

Lrain for law costs at Sitka : No. 4.S

was the

20 amount paid .1. 1). Warren for ;,'oiii^' to Ottiwa and presenting,'
tills claim to the Canadian ^overtwnent : and No 41I was for tlie
personal claims of Mniisie for troulile and expenses incnired in
jir-sentiiiL;' his (;laiin and so on. So it appeals that a vi'vy lar^je
proportion of the !*<i,Otl(). which, if I read my learned friend's
stateiiieiit eoriectU', hi' wants it to appear was changed merelv a.s
i'X|ien^es for oMifittinj,' the ve.ssid for a two months' voyaL''' in
liehiiiij,' Sea, did not rf'lati! to tin; outtit, hut nroso on account of
the seizure liavini,' taken place. I point, this out, liecaiise j do
not wish to stand in tin- position heforc this 'rrihiinal of pri

sentini' a claim which on i

t.s fr

lid h

exai'i'erateii

vecoli

pa^'e

1 10. yoii will find an alistiiict of what the

vouchers are. Kiom thin it appears that !*2,7"2I was for outfit
ither than jiio.isions, ^oins and ammunition ; |)rovisioiis onlv

cost ?<!t-'i(); lh:

d niiiiiiiinition cost !?(i().'i ; siiiiilries SI ,70(), ainl

the cost of the Vessel .':?tO{)0. So that a.s far as the " ( 'aroliiia "
is concerned, instead 'of this enormous sum of !?(j,t)()0 iicin^
clinri;ed for the outtit of the vessel, we are chai;,'iiif,' for pro-
visionini,' the vessel, not only for the Hehriiijj Sea voya;;e, hut
in the winter time, the wiiin of S!*")" ; and

also for the vovii

40 v

on Wll

IllKl, I

f you apply to that the test that Mr. .McL an
apiilii'd, that in outtittin^f vessels where wdiite miui are emjiloyed.
you are to allow 810 per man per month for provisions, there
will not lie a veiy larj^e ditl'erence lietween this statement and
the statement of Mr. Mcijcan. While I am on this point of the
Cost of the outfit, I wish to point out that, if we are li^jlit in
our con'.M.tion that we should he allowed prospective catch, the
(piestiovi if chat amount we had to spend either in provisions,
ainniunitioii, or aiiythiiiL; that may he called coiisuniahle outfit,
becDM" I I I'eally very small importance.

■CM'iso il we are allowed for the erross prospective catch, it
ollows, as a matter of cotii"

that

wo are no

t t I 1

le ailowec

foi

the ]irovi-ioiis and amiiiunitioii which we would necessarily have
to consume in ;;i'ttin;4 that catch. If you will look at the claiins
}ou will Hnd that in no instance have we put forward a claim to
he entitled to the catch and the provisions and anurjunition as
well I fully suliiiiit that if we fjet an award for prosjiective
catch we do not claim for the others. ( )f course if we do not trot
un amount for piospective catch another (piestion will he raised.

GO 1

Then my learned friend takes up certain items which we

lave claimed for am

Certain I'rouii

Is. Tl

says tliat they are ohjectionahle upi
first item that he ohiects to is at the

bottom of paife ;},'JS and the top of pa^^e tV.lO. He .siiy

milt chiirircd for the four canoes and outfit is

exhorliitant. Captain Warren testified that 820.00 was the cost

47.')

(Mr. IVtcrs' St'eDiid Ari^fUiiU'iit.)

" of till! canoes oil tilt; " Saywnid." In tli'i splicliili- iirrpftrcil lij'
" till) owner of file " Ailll" till' clini-^e is niiuie, ',\ Piuioes, ':il4(l.(H),
•• Iminjj .soni«\vliiit over 81 ''.<•() enjcli. The testimony of other
" witnesses in the Keeonl shows Imyoml chiiilit that the values
" ]ihire(l upon these canoes liy Mniisie wa** lictitimis."

Oiir I'laini for tliesc canoes is as fniiows : " 4 canoes ninl
10 outfit, .'?24.'S. 00." The eviilence in support is. .Mr. Muiisie swears
tlint he lMiiij,'iit theiii at a certain specili'il pi-ce wiiicii auiouiitecl
to.if'J4!S00 altoLtether, mill lie proiluceil voiiciieis from an IruliMii
hy name of .limmie, from whom he l)(iu;,'lit them. Monsiu swears
to that positively, as will he foiiml liy reference to the liottom of
piii,'!' !I4 of the Recoril. Ili^ was asUeil to look at voucher niimhcr
2;t, ami to state what it was. This is his answer : —

" A. This is a voucher, a leeeipt fiom " Indian Jininiie " tor

"Sil'S.OO fot 4 canoes, (i paihiles unci seal Khl'lilelH.

" <^), These you l)ouj,'lit for the schooner "' 'arolena " ? A. Ves.
20 ■' (}. That purports to he a receipt .sii^ned liy " Inilian
"Jimmie"? A. Yes.

'■ <.^•. \\'itnes.«c(l l>y wh )m ^ A. Witnessed hy one of the
" meti on hoard flu; vessel.

" (}. Did you pay tlint money to " Imliaii .limmie " !' A. I
" paid it ill the presence of the person lefeinil to."

That is the evidence i,'iven !iy himself, and the voucher
proiliiced is vouchor numhor 2H, which ajiprars to he a voucher
for the sum in ipiestion, the icceipl indieatinij that it was paid
oil Miiy (itli, l!S!)'p, and the voucher is siLjned I'V " Ind.inn •limmie,"
30 per W. M. iV C K. ^'our Honors will remeiiiher that we pro-
(luceil all the living; mouiliers of the crow of the ■' Caroleiin," lait
the witness (.'. \']. was not auioiiL; them, lie was either dead or
ah-eiit. See ;;lso Uecord jip. !>.") ami !)(!.

My learned friends rel\' on the cvideiiee of Cotsford, at paf^e
.')7-'i, lino 1."), and |inLce 'MS, line .")(). Witlin it readinj,' his evidence
1 may state that he had jj;ono in the "Cavolena" to ( 'layiipiot,
fiMii; whence she was to sail to the Behrinj^ Sua. He was one of
the hunters, and stales that hi; was ])res!'nt at a conversation at
which he .says these canoes were liouLjht. He said the value
40 nj/reed upon for each canoe was eleven dollars ; on cross-exaiui-
iiatioii he wa.s not(|uite clear, (see ilecord .S!S7 and ;W<S) and ;iiiy
wei;,dit to which his evidence nii<,dit otherwise he entitled is
removed hy tiio evidence of Russel, at paij;o .")!>2 and .11)7. -Mr.
Ilussel slates that those canoes were there when the vessel
aniveil, and were on the shore at this place. Claj'oipiot, on the
arriviil of the vessel. (Jotsford was liroin,dit to prove two points :
first, liiat Mr. 15eclitel had smuethinif to do with the pnrciia.se of
the canoe.s, and second, that the amount cluiuievl was excessive.
Iiussel, at pa<,'o .597, states that the canoes were there at the
.50 time of the arrival of the vessel, and had evidently heen pur-
chased hefore that time, which is a practical contradiction of
( 'otsford on the point that Bechtel purch.aseil them after the
vessel arrived. At pa<jfe y,)7, line 4. Russel says: —

" Q. How lonj; did you lay at Clayociuot ? A. I cannot
" remeiiiher exactly.

'• (J. Ai.out ? A. We
" I would not he sure.

'■ (.»). What did you do there yourself, personally ? A. I
" helped put rih.s in four canoes.
(10 " Q. The putting' in of those ribs wa.s done at Clayoquot, was
■' it ? A. Yes, .sir.

" Q. And the canoes were l)rouj,dit ahoard ? A. Ye.s, sir.

" <V- Were the rilw put in on hoard >. A. A.shore.

" y. Put in ashore ? A. Yes, sir.

hetween four and six days, I think.

iri

111 .

jjpis^»i-i»ir

'"-*•■

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Mi '^1

li ' |l '
if

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m-ffAyv '.mi^f-'jHim^'

476

(Mr. Peters' Second Arjjiinient.)

" Q. Whereabout , were the canoes wlien the ribs were put
" in ! A. On the beach

" Q. And wore tlio ribs steanieil ? A. Yes."

Then he states tliat Beehtel was sick all this time, wiiich is

naterial when you come to consider that, accordint; to Cotsford,

Beehtel was there purchasini,' the canoes and actin;^ as it" he were

10 the owner of the ship. Russel relates that at this time Beehtel

was sick and subseipiently went away to Alberni.

Then if you ivi'ei to llio evidence of Mr. Munger at page G.S.S,
you will find that he speaks to the same point: —

" Q. When you got to Olayociuot, how long after you got
" there did you go ashore ? A. On the same day.

" Q. And you swear, do you, that the canoes were on the
" bank then f A. Yes.

'■ if. The same four canoes that afterwards came on boai<l
" the • Carolena '.' A. I di<l not mark them, I do not know
SO " about that.

■ (.^t. Never mind about marking — you were doing seaman's
" work— did you lieln to load these canoes on the ' Oarolena ? '
"A. No.

" Q. Where were you ? A. 1 was on boartl.

" t). And had von anything to <lo witli loading them '
" A. No.

"Q. Who did load tliem ? A. Dave Russel.

'•■ y. Do you swear that these were the canoes you saw on
" the bank wlion you first came theie ? A. Yes."
30 The oiilj- wiuie.ss the I'nited States jiroduee to show that

these canoes wre of less value than elaiuusd was (\itsford, and
we find him "la.iug that th(^ canoes were bought from several
Indians, whereas .Mtniger, a witness called by the United States,
says that these canoes were there at the time and ready to be
taki'u on boarii the " Carolena," except that they required to be
rjl.lieil. So that you luive a voucher produced by .Mr. Mimsie,
and also the statement of (.'ot-;foi<l, tliat these were good canoes,
and taking it altogetlier, it seems to me that unless the court
has come to the conclusion that in a small matter such as th<;
40 price of the canoes, Mr. Munsie has not only couunitted perjury
but has produced a forgiul voucher ; then your Honors must
come to tlie conclusion that he actually paid this price for the
canoes. Then there is another important witness, Mr. Serault.

Mr. Wairen: — You stated that the witness ^[unger was
called by t'- < rnited States, the fact is that the witiuss Munger
was your \\ itiiess.

Mr. Peters : — ^Yes, it was the witness Cotsford who was
produced by the (Jnited States. Now Serault was a man who
carried on business at Clay. M|iiot . and he conies forward ami is
fjO askcil this (|uestiot\ at page (I4S, line (iO : —

" Q. Couhl vou liu\- one of these canoes for ii^lLOlW A.
^' No."

StMault, who also settles the point that lieehtel had notiiing
to do with the mattei-. Taking the evidence together, we liave
a case that is i, ' answered by the evidence of the Jniteii
States.

If you look at the evidence of (Charles Spring, who is
admitti'd by the I'nited States couiisi^l to lie a nmn of high
respectability, an 1 who n ord has been taken by my learned
60 friend as absolutely i fct — a man who has never even

attempted to make his own cases look as good as perhajis he
might — -hi! says at page 24.S, line ,").") : — " Canoes cost from :?!) to
!f4()." Colsford's :. was that the canoes were bought when
tlie vessel was thereon that occasion, but the evidence of Munsie

477

(Mr. Peters' Second Argument,)

is tliat the canoes were bought and paid for as far back as
May, and that is corroborated by the evidence of Munger and
Serault.

Tlie next material objection that is talcen is with re;i;ard to
the price of guns. At page 340 of the United States argument
it is .stated timt " the charge for rifles and shot guns is out of all

10 proportion to their real value."

Upon that point I refer to Munsie, at pages 100 and 101 of
the Record, where he distinctly swears what these guns actually
cost. He produced a voucher for the guns and proved that the
guns cost SUO.OO, less 2") per cent., and he puts tiie exact amount
in the bill. The riHes were worth so mueii besides, and he pro-
duced in that case also a voucher. That voucher is set out in
the Appendix. That evidence is backed up at page S74 by
Cotsford, who was a witness for the United States. Cotsford
said the guns were lirand nnv IBonehil! guns. Probably none of

20 us know what a Bonehill gun is; Byers, at page 319, line 30,
says that Bonehill guns are high priced guns.

Then again, we have on this question as to what should be
allowed for guns — and these remarks applj' also to guns in
several other cases — the testimony of J. G. Oox, page 141, at
tiu' top of the page. He says that guns laid down at Victoria
cost ?(I4.7'^, that is the class of guns used there. The evidence
of Seiward at page 101, line 11, is in point, where he says that
guns cost each S?(J2.00. The evidence of Raynor, a witness relied
on by the United Statts. is that ho paid S+0.00 for guu^ and

30 ?"22.()0 for ritles. But if I remembor con^cflv, he was there
speaking of the price in San B^'ancisco and at some ports in tbe
United States. The evidence of J. D. Wn •; n at page 910, is
that ritles cost S4r).70 and guns .'JS-'i.OO each, in this case of the
" Carolena " I submit it is unnecessary to encjuire what the
general price of guns is, iiecause it is apparent that the price of
guns (litter entirely according to the make of the gun. ()ne gun
may cost !?")().()() and another SSO.OO, and they may both look
alike. We have in this particular case the evidence that the
guns seized actually cost so much money. I submit that that

40 should end the matter My friend on the opposite side has not
produced any evidence to show that the charge for guns is
exhorbitant. If he had given evidence of that kind it would of
course be entitled to consideration. He might have produced
the otHcers, or some of the officers employed in making the
sei/.un , liid might have asked them id give a valuation of these
guns. l!.>wever, tliat matter has been left by him without any
evidence at all. T may cite the evidence of Alexander McLean
at (Bge 4.i.'), line 30, who values iocond hand guns that he had
to do with at !?(/.'). 00, and who stated that the guns when new

50 cost about SSO.OO. So far with regard to guns.

r'len my learned frienil again objects to the charge that we
I'.i'.-.ke for a boat. He states his objection at page 339. His
reasi)i\ is that we did not have a boat and he alleges that when
the " Carolena " started out on her voyage she bad a boat l)Ut
that she lost it on the way to Behring Sea. He attempts to
slidw that a mistake has occured because in the case of the
"Thornton" which had four boats, the United States had only
put in the inventory three, ai\d he contends they had by mistake
taken it od' the " Thornton " and credited it to the " C:" ,i!ena ;"

(iO that might be well enough in theory l)ut it is clcai' ibat the
"Carolena" must have got a boat somewhere, if she had lost her
old one. Raynor at page ")15 puts the matter beyond doubt.
On cross-examination 'il line 52, when be is being e ^s-examined
as to the invei'.tory that is produced by the Unind States gov-

t
-i,

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■1 ill)

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478

(Mr. Peters' Second Argument.)

ernmont and is being asked for the ditt'erent items, this question
is put to him : —

" Q. Did }-ou sfie the yawl ? A. To the best of my
" meniorv tliere was a yawl.

" Q. Why do you (jualify that ? You speak very plainly about
" other things, but I notice every time you are asked about the
" boat you say to the best of your memory ? A. Tliere was a
" yawl.

" Q. Are you sure of it ? A. Yes, 1 think I saw a j^awl on
'■ her.

" Q. When did }-ou see it? A. The first time I went on
" board of her.

" Q. Whore did you see it, on the ship ? A. It was along-
" side of her."

Now, however the yawl got there — whether the " Carolena "
as the evidence appears to show lost her boat — she may hare
recovered it — or might have got a boat from some other ship —
but lu'ie we have the evidence of Raj'iior, a witness called by
the United States, wdio settles the doubt and says that there was
a boat. Wo say that if there was a boat, no mattev from
whence it came, we are entitled to be paid for it 'n i Idition
to that we have the most foinial evidence that tliote \" ' i • woat,
because it is put in the inventory made by the Ui''^e(i .- ' s at
the time of the seizure. I siibnut that the Uu'i .i ol.i.js will
have to pay for that boat.

'riu'M again my friend objects to the item known as the
Belyea bill'.

Mr. Wurren : — Before discussing that item would the counsel
state what value Raynor pluces on thiit boat.

Mr. Peti'rs: — The valiuition he puts on it is like every other
value wliifh he places on anything belonging to the iSritisli ships,
it is put low. He puts it, 1 think at !?15.00, I do not ehoost> to
take that valuation. While not desiring to nuike any haish
conuneiit on the testimony in question. I desire to say that all
these witne.sses had a tendency to put a low valuation on articles
taken. Raynor was inclined to value things without any ex-
amination. He inidertook to value the guns on the "Thornton"
when it was shown that they had never come out of their gun
cases, and under such circumstances, no man coidd value them.

Mow, with regard to the Belvea bill, at page SIO, my friend
says ; — ' The item Belyea's bill S7.')0.00 rests upon the following
"testimony of Munsic." The United States counsel then quote-
the evidence as cited on page 340, of the United States argil
ment.

" Q. The contract with Mr. Helyea was not in writint;, I
" think ? A. No, not in writing.

' I}. It was made up at the tiuiH though ? A. It was made
"at the tiini' he undeitook to look after the case.

" Q. You are liuund to pay him .S7")0. A. If I do not get
«' the claim I nught not pay him ; 1 might object to it.

" Q. But you agreed to pay him )i*750.00 at all events, for
■' his services, A. There nnght have been a condition.

" Q. Was tliere ? We don't want any statement as to wlia
"there might be, but what is? A. I won't state positive
" whether I agreed to pay him ; positively whether the clmiii
•' were paid or not paiil, iiut I rathei- think tluMe was an unde.
" staniliiig that if the}- were not paid I would not have to pa)
" him (piite M) much.

" <). Did you name any ani' U that -o'l shoidd pay hiui,
" at ail events >. A. I do not rei .c uber tiiaL there was."

■#*.

479

(Mr. Peters' Second Argument.)

I think it would bo better to couipleto the reference there,
because there is ju.st a question and answer that is left out at
that point. After what the witness said, as just quoted, the fol-
lowintj testimony is given by him : —

" Q. But you were to pa}' hiui S750.00 if you succeeded. A.
" Yes."
10 Now, this is in Munsie's cross-e.Kamination, and from the
statement of my learned friend you might imagine that this is
the only evidence upon the point, but as a matter of fact there is
a good deal of other evidence, to which I will refer very shortly.
I first refer to the voucher that was put in by Mnnsie, No. 46, at
page 25 of tlie appendix —

" To professional service.? re seizure of ' Carolena '

" in Behring Sea in 1886 and so f o th S750.00

" Less allowance bill of Drake & Jackson 71.10."

20 Your Honors will see that Belyea had agreed to do the whole
business for 8750.00. Next I refer to the evidence of Munsie, to
which my learned friend bus not referred. At page 100: —

" Q. Take voucher 46 and state what that is ? A. That is
" a bill for S678.90 from Mr. A. L. Belyea; the original amount
" of that bill was S7')0.()().

" Q. As a matter of fact, was an arrangement made between

" you as to the amount ? A. I believe there was an arrange-

" ment. ]Jnikeand Jnckson were pre{)aring the claim originally,

" and it appears that the government wanted a revision of the

30 " claim, and Mr. Belyea then took the matter m' hand.

" Q. At whose re(juest ? A. At the request of the owners,
' myself amongst others, and Mr. Belyea conducted the further
" business in ccjnnection with this and other claims.

" Q. Did he make an arrangement for the amount he should
" be paid for the whole transaction ? A. He was to attend to
" the wb(jle matter for the sum of .'?75().00.

" Q. That was a bargain made with 3'ou years ago ? A.
" Yes.

" Q. And before you had any idea that there would be any
40 " Convention of this kind ? A. 1 never dreamt there would be
" anything of this kind.

" Q. That agreement was made by you ? A. Yes.

" Q. As a matter of fact j ou did not pay that amount yet ?
" A. No, I paid part of it only.

" Q. Only a small portion ? A. Yes, in this bill I have niy-
" self deducted the §71.10 of Drake and Jackson's bill, which I
" had to yiii-y. At the same time, to keep the expenses within
" the claims I deducted the S71.10.

" Q. You agreed with Mr. Belj'ea for $750, but when you
50 " jiut in the voucher for Drake's bill, you deducted that so as to
" make the whole thing 8750 ? A. Yes.

" Q. You paid the $71 and you also [)aid Mr. Belyea some-
" thing on account of the bill ? A. Yes.

" (.),. And there is a regular agreement that Mr. Helyea should
" get l:?75().00 ? A. Yes."

Si) that I claim that my friend has not stated ail the evidence
upon that point. The evidence that I have lefened to is quite
siitlieient to support the item. It is further contended that the
claim for Belyea's fees is too large in amount, but I venture to
(iO siiy that any erson who took charge of a claim of this sort from
the bi'ginnin;; and put the claim in «hape would find it very
troiililesome. Belyea was resident at Ottawa, and he formulated
the claim an<l followed it up through many slow an. i troublesome
steps, far more truublesome than would be the case in putting a

::-A

'i I'

s -r;

it:: I.

|l l!

480

(Mr. Peters' Second Arfjument.)

claim before a regularly organized court. I submit that $7.iO
was not exhorbitant, but was a fair and reasonable charge, more
particularly when he had to pay all expenses involved in the
matter. During the pendency of the pioceLiiings at Victoria, I
did not understand the counsel for the United States as raising
any objection to the amount of Belyea's charges, on the contrary,
10 in one case, that of the ' Winnifred,' Mr. Dickinson took occasion
to remark that Mr. Bel3-ea's charges were modest. (Record, p,
1740, 1. .->6.)

The next item that objection is taken to is a charge by Clark
at Sitka. On page 340 of the United States brief, counsel says :

" Regarding tho charge of Willoughby Clark, ' Charges at
" Sitka, S,500,' Munsie testified that he regarded the charge as
" excessive, and refused to pay it ; but that Clark seized some
" skin-i cif his in Sitka, a!id rather than have a lawsuit regarding
" the claim he jiaid the amount. This seizure of skins was
20 " made several 3-eais after 188G, and because Mr. Munsie was
" willing to allow Clark to secure from him an exhorbitant sum
" the (jovernnient of ihe United States is not liable to repay
" that exhorbitant amount expended on account of his own
" negligence in not protecting his interests."

I think he further says somewhere that there was no regular
retainer. Let me refer to the evidence on this item. At page
101 of the record, the matter is considered and voucher is pro-
duced. At line 12 is the story of the whole matter : —

" <}. V.iucher 47 is a bill for S.iOO from Willoughby Clark
30 " i'.ir !■_;.■,: I'xpenses ? A. That was incurred in Sitka, Alaska,
" and I nrtually paid it, and this is the original receipt. Mr.
" Clai ■- I. I'i nded the case at Sitka.

" Q. That was for the whole legal work at Sitka 1 A. Yes,
" for the whole legal work on the part of the ' Carnlena ' at Sitkn.

" Q. Who was it employed Mr. Clark at Sitka ? A. I
" believe it was the master of the ' C/arolena,' or at least so the
" mate informed me on his return. He said that Mr. Clark
" otTered his services, and that he would see the case through the
" Supreme Court of the United States for S500.
40 " Q. Were you drawn upon for this amount ? A. He made
" a draft on me forljoOO.

" Q. Who was the draft signed by ? A. It was signed by
" the master, I believe, before he died.

" Q. Did you honor that draft ? A. I did not.

" Q. Did you afterwanis have to pay the draft ? A. Yes.

' ^l. I believe some skins belonging to you got into American
" territory? A. Yes.

' Q. And did Mr. Clark .seize theui on account of the bill ?
" A. Ves.
50 " Q. And what did you give him for it ? A. He seized 100
" skins, and I was forced to give him ,10 skins to settle the bill ;
" the skins were worth to me $750, as it afterwards transpii'c i
" according to the sale.

" Q. So that instead of paying 8500 you actually paid §750
" for Mr. Clark's bill ? A. Ye.s."

These are the facts, Munsie iictuall}' had to pay the money,
anil Claik was employed to do the work. Now, if you will
refer to a letter from Munro to Spring, at page 885 of the
rec(U"d, j'ou will t' hat this matter was also dealt with. Mr.
CO .\Iunro, as your h us will reniomliei', was tlead, and bis letters
were allowed to go in evidence. Ho writes to his principal, Mr.
Spring, on thi^ .'bd of September, 188(), as follows : —

"Of cm,, we i)leacli;l not guilty, and was asked if we
" would be tried by a jury or not. I asked for time to consider,

481

(Mr. Peters' Second Argument.)

" but was told by the court that I would have to decide at once.
" Being in a strange place I thought I would want a jury, but
" after being let out on our own recognizance we sought a lawyer
" to take the case up for us, agreeing to pay hitn 8.")00 in each
" ease. They appeared for us next morning and demanded a

" ,ii"y-"

Then he goes on to describe about the hearing. So you have
the complete evidence that Clark was employed, the mate
informed Munsie that he was employed, and you have the testi-
mony of Munro that they employed him and agreed to pay Inrn
?.'i()(> in each case. Ami on that same point I would refer your
Honors to the record, pi»ges 870, 871 and 872, where the
employment of this man is dealt with more particularly in
connection with the " Onward," but 1ms .some connection with
this case too. It not only shows that Clark performed certain
duties at Sitka, but that ho came down to Victoria and there
20 consulted with the owners. He not only did that, but he ])ut
in the foi-inal pleadings at Sitka, and no doubt, as Munro states,
ap])eare(l before the court. At any late, the bargain was made,
and the money paid, whether the price was high or low, 1 am
not prepared to say. It is, however, ([uite clear tlrnt we had to
pay that amount.

Mr. Warren: — What citation did j-ou i^ive that C!ark came
down to Victoria ?

Mr. Peters: — I will give you tliiit, when T come to the
' Onward." There is another item tiiat mj' learned frier.d objects
to, and that is the iiein of insurance. At page 841 of his brief
lie says ; —

" The item S3.":2 I'oi insurance covers the charge for a year.
" The iiisurance woidd l)e cancelled immediately u|)on the Itoat
" being seized, and the premium, if paid in advance, refunded.
" Tiie policy is not in evidence. If the owner is paid for the
" value (if the skins taken before the seizui'e he will leceive the
" l)enetit of the insurance to that time."

Now, as to the first point, namely, that " insurance would be
cancelled immediat(dy upon the i)oat being seized," that is all
40 vii y well, but the fact is the seizure took place at Behring Sea,
mill Mr. Munsie was at Victoiia, and he did iu)t, and could not,
know of the seizure until long after it took place ; how could he
cancel the insurance ? There may be something in the argu-
ment that up to the time of the seizure he had received the
benefit of tiio insurance. But we claim that it should be allowed
on this gro\ind ; i ship in the liehriiig Sea insured is worth more
than a siiip up there not insured. If I want to sell a ship, then
Stalin;; ill the Behring Sea, I could sell her better if she was
insured than if not insured, and lerefore we say we are entitleil
.'lO to the insurance whether you put it i:nder the actual item of
insuiance or add it to the value of the ship. Either waj- it
would amount to the same thing.

The next objected to is Capt. Warren's expenses to Ottawa.
It is contended that the "Item, J. ]). Warren, expenses to
Ottawa, putting in claim §1.52, is for expenses in connection with
tliis claim against the United States, and cannot be allowed."
No authority is cited for that proposition. I submit that the
claimants were compelled to incur these expenses by reason of
the wrongful act ot the TJniti ! states government. It would
have been impossible for t'. : t.i) have pressoil their claims
without incurring expenses of tins kind. Such expenses are the
ilirect conseiiuence of the seizure. Look at the case of the
' Costa Uica," where the iliitrntor, after giving all the items of

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482

(Mr. Peters' SeconJ Aifjuiiient.)

damage, added on £250 for costs. Tlii.s is an item tliafc wo
necessarily had to incur bj' reason of the seizure. It is not
chvitiied tliat tlie amount is excessive. We all know that a
person who has to travel from Victoria to Ottawa of necessitv
must incur considerahle expense. And as these men actually
paid that amount, it is clear that they considered it was reasoii-
10 able, and there is no attempt here to show that it was unresnniiMc
or too much.

There is another item that my friend objects to, " time ami
personal expenses of owner, S2.")0." He i^ives no authority I'nr
that nlijt'ction, but simply makes the bald statement that it
cannot be recovered. Munsie's evidence on this item is at page 101,
and, I submit, issufhcieiit to satisfy you that the item shoidd Ik;
allowed. I'erhaps not the exact amount claimed. Of course it
is within the discretion of the Comndssion to tear all these items
to pieces, and give us what they thitik we actually ought to
20 have. I am arguing more upon the piinciple than upon t' ->
amount of the item itself.

Then on page .'i-tl of the United States brief thej- saj' : —

" The propeity aboard the schooner was inventoried by the
" Uiuted States officers, and the only other property removed
" from the vessel was that put aboard the "St. Paul.'

"The claim for 'estimated value of provisions and amuiution
" which would have lu^en left after a full ■ yage, say S200." is
" covered by the value of the property inv. jiiorieil by the otlicers
" of the cutter and the property put aboard the ' St. Paul.'"
.■)0 lie says, " This is covered by the value of the jjroperty

inventoried by the officers of the cutter," but we are not claiming
for til. ;.iovisions and auunurdtion which would have been eon-
sumeil on a full voyage. That would be contrary to the claim
we put forwiinl for prospective catch, but we do say this ; after
the close of the sealing season everyone of the ships ha<l more or
less provisions and amnuudtion left over and above the (piautity
actually uniuired for the voyage, and that should come back to
us. I'he amount of that would depend upon the length of tlie
voyage, but in every case souu; amount would be left, and for
40 that amount we ask j-our Honors to allow us a fair sum, which
we |)ut at ??100. Tru(! it is the provisions would not be very
valuable when they came back but that remark does not appl\-
to the ammniution. We are handica]iped to some extent by the
great lenjjth of time which has elapsed since the seizure, because
it is now difficult to prove what amount would be left.

Now then as to the expenses of the crew. The Uiuted States
brief says : " The item, ex]ienses, remainder of crew, sa\' S'jO, is
without any testimony to support it."

With all deference to my learned friend, there are some things
.")0 that we tl'i not recpdie evidence to support. This fact is before;
the Court ; we had great difficulty in getting the people who
were aboaril the '■ t'aroleiui" as witnesses. It was a long while
btd'ore we could get any of thi in, and some we coidd not get at
all. The memlieis of the crew of the "Carolemi" found them-
selves at Sitka iri the month of August, IHiSG, and it does not
reqiure evidence to prove that they mtist have paid something in
(U'der to get down to Victoria again, or San Francisco, wherever
they did get to. We have the eviiience of what these men had
to |iay whose testiuuuiy we did get. and what would apply to
CO one would ajipK' to another. We have vouchers here showing
what it cost some of them to get down from Sitka.

The Comiuissioner of part of Uidted States;— You have not
charged fifty dollars each, but fifty dollars for the whole crew.

Mr. Peters; — That makes it still more reasonable.

483
(Mr. Peters' Second Arfjuinent.)

The Commi.ssioner on part of the United States : — Is there any
evidence about what it cost the crew of the " Carolena " at all ?

Mr. Peters: — You have evidence about what it cost the other
men.

The Commissioner on part of the United States :— Is there any
evidence that the ownors of the vessel paid anything on account
10 of tliat ?

Mr. Peters : — Yes : JInnsie paid for some of them ; but where
the men paid them.selves, we say the men are entitled to gi't that
back. We make that claim on behalf of the men. Without
havinjj any expres.s evidence on that point, we simply say that
we do know what it cost some of the men, and it is reasonable
to suppose that it cost the other men a similar amount.

The counsel for the Unitcii States object to the item of ?100,
one-haif of the value uf the slop-chest. This item stands in this
way. The " slop chest," so called, is owned by the owner or
20 master of the ship, and consists of various necessai'V articles of
clothing, etc., that are given out, from time to time, by the
master of the ship to the crew and paid for by thtm, and it is
therefore an a.ssut not to be looked upon as consumable, and
which, if taken, is to be paid for.

About one-half of the voyage was over when tliis vessel was
seized. The probability is tliat the slop chest would have been
about half sold to the crew, and the other half would still be on
board the .schooner, and for tliis we claim.

You may say, tliese things are not put in the inventory made
aO up by the U^nited States oHicers. I say, in this particular case,
we have a right to complain that the officers of the revenue
cutter did not take the pains they oughi ;;) have taken in
making the inventories accurate. Wo know that before any
inventory was made, a lot of goods (the e.xacL amount we could
not ascertain) were taken from the "Carolena" and sent aboard
another vessel, and of these no account was taken. We there-
fore say that you can place no reliance upon the inventory,
because you do not know what was taken out of the vessel
before the inventory was made. We have proof that a slop
40 chest was put aboard the fjhip, and we say there should have
been one- half of that left, and we claim that the Commissioners
should allow us for that half.

I need not refer to the value of the skins which they object
to, nor to the estimated catch, which I have argued at full length
already, nor need I refer to the item claimed for hardship to the
crew as that has been already dealt with.

There is one other matter that I wish to deal with shortly.
It is charged that this vessel was partly owned by a citizen of the
United States named Kechtel, and it is claimed on that account no
•)0 compensation can be awartled. The charge, as I understand it,
originally made by the United States Government, was that these
vessels were transferred to the British flag for the purpose of
defrauding American laws. Let me remark, that whatever may
lie aigued in other cases, iu this case the argument cannot lie
used, because this vessel was bought, and whatever interest
Hechtel ac(|uired was accpiired in the month of January. 1S8."),
liel'ore there was any (piestion of any person being prevented
from sealing in 1-iehring Sea, and, therefore, if it was simply a
()iiestio'i of trying to defraud a statute of the TJnited .States, that
(10 object could not have been in their minds, because nobody knew
that the United States was at that time making that claim. I
need not go further than to state the bare proposition, that no
person can be guilty of fraud without knowledge.

There is another point I wish to emphasize on the same

1
1

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484

(Mr. Peters' Second Argument.)

matter. In 1885, the " Carolena " did not j^o to Bohrin}? Sea, nor
did any vessel in which Munsie was interested. Tiie " Carolena "
was houglit for the purpose of tradinij; on the west coast of Van-
couver Island, and sealing; alon<5 the coast to a certain e.xtent.
So that she could not have heen purchasud, and a British roj^ister
could not liave been olitained, wit)) any idea of defrauding the

10 United States law at that time.

Now I do not know that it is necessary that I should go very
largely into the (juostion of the value of tlie " Carolena." I am
going to refer your Honors to the eviilence wo have put forward
in our printed argument.

The Commissioner on part of the United States : — I am not
quite clear as to your statement just now. Do you admit that
Heelitel was the owner of any part of the " Carolena."

Mr. Peters: — No, your Honor, I only put the matter in that
form, that no owiicrshi}) could have heen obtained for the purpose

20 of defrauding the I'nited State.s laws under these circumstances.
I most certainl}' do not admit that he was anything more tlian a
mortgagee. I am coming to that in a moment. So far ,is the vaUio
of the " Carolena " is concerned, our case is fully set out in our
original argument on pages 89-1)1. The cast; on the other side is
set out in their argument, and I do not see that any gco 1 purposu
conli^ be servi'c] ly going over the argument which is already in
a M-adalile form. I simply refer your Honors to it, and ask that
you will look at tlie evidence as it i.s (juoted there.

Now, on the (juestion of Bechtel's .supposed ownership. Wo

30 claim tliat Munsie was the owner of the whole vessel. The
United States counsel claim tliat Bechtel owned onudialf. We
.say, it is innnaterial whether this was a fact or not, l)ecausc
Heehtcl was <lonuciled at Victoriii, doing business there, ami
there was no fraud on the laws of the United States. Hut even
if it were material, we claim the facts show that ii 'clitel was
only a mortgagee. On this point we iiave the evidence of Mr.
Mun.sif. I am not going over the evidence, but I am referring
to one line of argument taken liy my learned friend on the other
side. He says you must disregard the positive statement made

40 hy Munsie, that in 188.") he l)ought two-thirds of that vessel
froui Unjuhart at a valuation of !:i«3,800 ; tliat at the time he
bought it, lie borrowed from Hechtel l^.JOO, and took a mortgage
for .'li'tK)? ; that when he ae(|uired the rest of the property he
Ijorrowed another !?50() of Heehtel, wlu) took another mortgage ;
and these were leally nothing but mortgages, and that \nu
should conclude that, liecause it happens that ^(Jfi? is just one-
thiril.or nearly so, of the .S2,000 which the United States coui.sel
say was tlie real pure! asu money, the real transaction was not a
jiurchase for !?.'] 800, but was a purchase for S<2,000, and that the

50 mortgages given were, in reality, wiiat he calls, and I think
the woiil arose from a statement made l)y the Conmussioner on
the part of the United States, •' Whit-wasliing Mortgages," and
that .Munsii' is to be disladievi'd altoiiether.

What is our side of the story ^ We say Munsie bought the
schooner originally for S'WOO. Munsie swears to that positively,
that he l)orrowed §.')00 from Bechtel, and mortgage was given
for !?()G7, presmnably to cover intere.st. Aiy friend draws your
attention to the form in which the bills of sale were taken. It
is true that in the bill of si.le given by Unjuhart to .Munsie, the

(JO amount put in is 8007, and in the writing is inserted "It lieing
one-third of the value of the ship." Now we have a theory in
regard to that matter which is opposi'd to my learned friend's
theorj. We have the theory that Unjuhart, at that time was
not the sole owner of the ship, but that a part of it belongeil to

486

(Mr. IVters' Second Argument.)

one Mickt'y, and that ri(ndinrt, for tlic jiurposu of tryin;^ to clu'at
llickt'V, had purposely ;;()t tl\e wroni,' nnioiint put in the hill of
sale. It appi'iu's that Unjuhart only acfoiinted to Mickey for his
one-half of the !?'20()0. We say, tiiere may have ))een fraud, hut
it was between Mickey and rnpihart, and that theory is sup-
ported hy reference to the evidence.

Ill 1 refer your Monor.- to pnyes l()2'2, l()2-'5 and 1024 of the evi-

dence. Without readintf it at leni^th 1 may say that Mickey de-
poses that he was in a peculiar position with rej^ard to Unpdiart.
Uniuhart was his chief and Hickey wanted to keep the half of the
vessel to himself, and with that in view ottered to j)ay Urc|uhart
the amount rr(|uhart said he was scllinji; to Afunsie for. rii|u-
hart put him ott' with some j)huisil)le excuse, leaving; Mickey
under the impression that the sale was for S2()(I0. Mickey adds
in his evidence that he di<l not want t) sell because tlu; 82000
was not anything like tiie value of the vessel. We produced a

2(» .Mr. Hevan (Record 1!)14) who was cusodiau of the hooks of an
old hanking company, (Jureste ( Jreen i>k- Co'y, with whom rr(|uhart
had k(!pt his hanking account, and vvt; proved that at the verv
time this transaction took |»lace Mr. i?evan deposited a sum of
money — and it was rarely any sums were deposited by him —
that would ab(jut come to the amount he would have receiveii if
the purchase had been 88800 at the rate, as we allege instead of
82000. The svidence as to whether the schooner was bought
for .8;}S00 and not for 82000 is mi.xed up with the ([uestion of
llechtel's alleged ownership if you conclude that the real jiurchase

.'ill was for 8:{.S00, tlie whole theory of the rniteil States falls to the
j,'round. W'e contend that we have given a reasonable explana-
tion of the matter, and that we have produced positive evidence
as against mere suspicion. We produce tlu; receipts for interest
pai<l on the mortgages, and we show that the mortgage has been
paid off. My learned friend points out that the receipts were all
ni.ud)ei'ed consecutively and ho says that this could not have
occurred if the transaction took place in ditl'erent, years. On
the other hand we have shown by the production of many other
receipts that Mechtel numbered every other transaction consecu-

40 tively, and we have shown that if he hail one particular house
as his property, he nundiered consecutively the receipts for all
transactions with regard to that house. We ask your Honors to
cjicido that Munsio owned the " t'arolenn," and that l>e('itel was
what he claimed to be, nothing more than a mortgagee, 'i'o
strengthen our pcsition on this question we refer to the evidence
with regard to the transaction of the " I'athtinder." As your
Honors will remember, after Myra Hechtel's death, the executors
took charge of the estate, and the tirst item they collected (see
lioconl ].")!)9) was the capital sum of tlie mortgage, showing that

.'lO tiiese men themselves treated it as a bonu tide transaction. 1
have but another word to .say with regard to the prospective
catch for LSST in the case of the " ( -arolena." There were special
circumstances applicable to tb.ai vessel, and also the " Thornton "
ami the " Onward." Thai, special circumstance is that the parties
did not give up the hope that the vessels were not to be returned.
The correspondence shows that they had every reason to hope
that the ves.sels would be returned, and therefore during the
whole of the year LSS7 they expected the vessels would bo
returned, anil they had a right to expect that they wouM bo

!)(• allowed to use them in the sealing business. 1 shall now leave
the case of the " Carolena " and proceed to say a few words with
ii'gard to the " Oi">'ard."

The Commissioner on the part of the Ignited States : — I under-
stood you to say at Victoria Mr. Peters, that the schedule of the

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(Mr. IV'ters' Second Ar;,'iiment.)

cIiiiiiiH of thi' " Carolena " put in at Paris represented tlin ontiru
enteipriKe. If you are allowed for the prospective catch it would
lie important to understand this, because if it does lut represiMit
the entire enterprise we niij^ht he compelled to do(hict from the
f^ross catch the value of the interests which tlio others had. I
would lie yla<l to have at some time dnrinsj your argument a
10 statement as to tliat.

Mr. Peters : —As a matter of fact, I did make a statement
upon that point at Victoria.

The L\)inmissioner on the part of the United States : — Hut it
was not ilevelopoil.

Mr. P(^ters: — I shall refer your Honor, at some other oppor-
tunity, to the statement 1 made at Victoria, when I have time to
look up the record, and I may also have something to add to
that statement.

The ('omnd«sioner on the part of the United States: — It is
20 confused in my min<l just nt)vv.

Mr. Peters : — It is a point that from our point of view we
should fidly elucidate to your Honors.

The Commissioner on the part of the United States : — You
claim the gross catch, without niaking any deductions for the
lay, as we call it.

Mr. i'eters: — Tiiat is the position we have always taken. 1
will deal with that later on.

C.V.SE OK THE " OXWAKD."

I now wish to refer your Honors to the case of the "Oii-
waid," which is answered at pa'^e 1^04 of the Argument of the
United States counsel. Jly learned friend, Mr. Dickinson, after
setting forth the seizure and enumerating the articles that were
seized and what happened after the seizure, draws thi.s conclu-
sion : " Tiiis evidence is conclusive of the fact that the ' Onward
" was a total loss to her owners and was s) considered by them."
My learni^il friend makes this statement witii a view of laying
<lown the principle upon which we ought t<> recover damages,

40 and he ajiparently follows out in this particular case the doctrine
whicli he announced in an earlier part of his argument : that
when there had been the absolute loss of a ship, the damage was
simply thf; loss of the ship, plus, perhaps, the interest. If we
are iii;l-.t m our contention with regard to the prospective catch,
that distinction has no weight whatever with regard to this case.
The " Onward " was a vessel of :{.5.20 tons, built at California in
IcSTl, and registered at the time of her seizure in the name of
William Spring & (."ompanj-, and was really owned by the tirm
of Charli's Spring A: Company. The amount claimed for her

.")0 value is ::*4,000. The counstl for the United States claim that
she is only worth from !i?2,-200 to S2,.W0. They raise the point
that in the year liSS4 this vessel changed hamls, being sold by
the old firm of Spring \' Company to the Hrm of Charles Spring
A: Company for S2,200 ; and they say that should be taken into
consideration in valuing the vessel. I contend that on the
((uestion of value no ile<luction should be drawn, from the fact
that she was taken over on the formation of the tirm of Charles
Spring i^' Company, for the value of §2,200 ; and I call your
Honors' attention to the Record at pages 87!) and 880, where the

GO whole transaction is fully explained. The Record explains there
that tile low price of the offer was undoubtedly due to the fact
tliat both .Mr. Lubbe and the executors of the firm of Spring iV
Coin|)any wislied that the vessel should be transferred to the
new tirm on very favourable terms. There appears some little

487

(Mr. IVters' Second Argument.)

confusion with rcijanl to this transaction, and to correct tiuit, I
will state the fact>i. Thev are a.s follow.s: William Sprinj; ii
Company consisted of William Spring, Theodore Luhho and
I'eter Francis. (Hfcoi-d, page SSH, line 4'7). William Spring
died in March, 1SN4. A new firm was formed, called " Charles
Spring and ('ompanv," consisting of Charles Spring. Alexander

III .MeL"an dn<l Pef(;r Francis. This firm took over the assets of
the old firm, and amongst other assets tlie " Onward " was taken
over at i52, 200. The small price was e.xplained \>y Mr. Spring.
This latter firtn continued nntil the death of I'eter Francis,
which occuiTed in tiie year I8S.0, when Charle.s Spring and
Ale.sander McLi'iin l)oiight out his interest in the firm for a
fixed Slim. A memo, of the wliole transaction was taken in
writing, as will appear liy reference t'> the pages mentioned.
The firm of Charles Spring and Company continued until the
month of 1)ecend)er, l.SSd, when it was dissolved by mutual

■20 consent The dissulution was put in writing — it is not printed, —
lint it contained u clause by which each of the partners were to
retain to themselves a half interest in the net amount to be
recovered or received on account of the illegal seizure and deten-
tion of till! schooner "Onward." It will be unnece-ws'iry to refer
to the rest of the evidence as to the value of the " Onward," as
a reference to it was given in our original argument, pages 104
and 105.

My learned friends take olpjection to the item of !*2.'J2 for
nine canoes, this olijection is taken at page 'MH of their arguiient.

:i() The objection is ba.sed on the evidence of Charles Spring " that
" tlie canoes were worth anywhere from twenty-five to twi 'ty-
" eight dollars.' We put the highest figure on the value, and
they took the lowest, and we think we are entitled to our con-
tention in that regard. They also say that some of the canoes
were owned by the Indians and not by the owners of the ship.
We say that it cannot make any difiierence wiietlier these canoes
were owned by the Indians or by the owners of the ship. They
were originally claimed for in the claim presented to the Pari.s
Tribunal, and no matter to wdinm they belonged we say it was

40 illegal for the I'nited States to take them. Whether Spring or
the master of the ship owned the cano.;s, lie was actually in pos-
session of them ut the time of seizure, and as a matter of common
law either Spring or the master of the ship would be entitled to
maintain the ordinary action of trover for possession of these
canoes. These canoes were actually taken out of our possession
and we have a right to claim for them; settling of course with
the other j)arties afterwards. Objection is also taken by counsel
for the United States to the item ciiarged by us for 12 guns at
•S2.") each, apparently on the grotind thiit the pri, u i- too high,

")0 although that is not very clear from their argumeiit. in Spring's
evidence he .says as follows : —

" Q. What do you value the guns at ? A. Taking them all
"round §2.') would not be too much."

The counsel for the Ignited States take two objections to thi-'.
First, that some of the guns belonged to the Indians, and second
that the price is too high. A« regards the first objection, the
same remark which I made with regard to the canoes would
apply to the guns, anti as to the second objecti<m I leave your
Honors to deciile on Mr. Spring's eviilence. Mr. Spring told us

(iO that they were breechdoading guns in some ca-es and in other
cases muzzledoading guns — but in reference to the muzzle-loading
guns they were good guns of their class. The next item of our
account objected to in the United States Argument is !?.jOO, paid
to Mr. Clarke for the cost of the defence at Sitka. The facts are

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(Mr. I'i'Ii'in' Si'coiul Ar;;iiin('iil.)

tliiit Mr. Cliirko wns I'liiployeil by tlio mnstcr of tliu ship, and tin-
KvidiTicc of h'lH lir.Ht I'lnployinont \h I'oiiinl in ii IcttiT from Mr.
Miinro to C'iiiirif.s Spiiii;,', diiteil tlui .'ird of Si^jjloiulier, iHMi
(Ut'cord, pofjo Hf^f) (iiid iS,S(i) and which siiy.s ; —

" Hi-iny in a striiiii;i' place I thoii^jht I woidd want a Jury, hut
" nl'tiT lii'inf» k't out on oiirown rico^^nizunees wo .souijht a h.wycr

]() " to taki! thi^ t'li.si! up for uk, n^jreeiri;; to pay iiiin !;«.'()() in inch
" cnsi". They apiicarcd for ns next niorninj; and dcuiHiidcd a
"jury. The 'Tliornton ' ease wns taken up Hrst. * *

" My caHo will he tried on the (Itli."

At pa^o SM7 of tlic Record an(;thor letter from .Munro to
Spring; is .sut nut, part of which is as i"ollows: —

" iSince writinj^ you I have; hecn tliiid<iutj over tliu draft 1 ;4avc
" the lawyer on you should feel inclined to honor it. It is a lariji'
" sum, hut if I lost the case here he has to take it to Oroj^on for
" the same money. '

20 It appears that the Master drew on Sprinj; for !?")()() and that

Spring refu.sed to accept the draft, hut that he was afterward.-:
sued not, as the I'nited States counsel seem to think, at Sitka,
hut nt Victoria, foi' the atnount, and jiidjriiient ohtaine<l a;;ainst
him, which has not j'et hecn )>aid, the fact heinjj; that .Mr. Sprini;
has not hecn able to pay it. It ai.so appears hy the record tiiat
.Mr. Clark came down to Victoria and there considted with .Mr.
Spring' about the case. This evidence shows that Mr. ("lark was
employed at a ti.\ed sum to <io certain business, which he did,
and it is also clear that if .Mr. Sprinj,''s cireunistanceH allowed

;{() him to pay the anioiint he will have to pay it, and if .Mr. S|)rin^'
obtains his claim in this case he certainly will h to pay this
amount. There is a clitlerenco of opinion bei my learned

lri<!nd and niyseil'. My recollection is that tl is that he

was sued and jud;,'ment was obtained aL,'ainst hmi at \'ictori'.i,
but tlu! record is not very clear upon that point.

Mr. Warren : — What i)ai't of the record ilo you refer to show
that the suit was commenceii at N'ictoria :'

Mr. I'eters : — I say that the; record does not disclose wIkic
the suit was, but my undtustandinji was that it was a suit at

40 N'iotoria, however that is immaterial. Mr. Spring,' was sue I
somewhere and Judy;ment obtained against him and if lie is able
to pay it he will have to. Now the next item objecteil to by
the I'idted States counsel is a small sum of SI") paid to the
Indians, but there is no doubt that this was paid as was shown
by .Markotich v'vidence. My learneil friend then objects to the
amount allowed .Mr. lielyea. This charge of Uelyea's is reported
by the record at paj;e .S71 — it had nothing to do with preparing
this case for the Commission as is shown by t';at record, it is
shown that at the time the agreenuint to i)ay the Sl.OOO was

50 niade lU) person evtr imagined that proceedings were to be pm-
tracced in the way they have been or that any mi.xed commission
would have to be invoked, (."ounsel for the rniteil States
objects to the pers )nal charge of .S'iOO. This is supported by
evidence at page 87') wherein Sprinir makes this statement :

" Q. Now. in atldition to that, have you yourself gfiiie to
' any trouble and expense about the niatter personally' .\.
" \'es, I have been to a great deal i>f ti'ouble.

" <j>. Did you ha\i! imicli correspondence ? A. Yes, cor-
. '• respondenee with ilill'erent people in (!onnection with the

(JO ■' matter, bi th at Ottawa and Sitka; diU'erent otlicialsuj) there."

I contend that thei'e is no reason whj- the ])ers()nal trouble

that the owner of the ship was put to should not be compensateil

for. As regard.s the objection to the insurance, the same remarks

that I made witli reference to the " Carolena " will apply to the

W.)

(Mr. PcttTH' Sfcdiid Armiinciit.)

" Onwnnl." \\v oonti rid tliiit tin? in.-iiniiifi' hIiouIcI Ik.' iillowt'd,
iir Ht all evcDl.s if nob iiliowt'd, as itisiii'uiu!i>, it mIiduKI Ik- addud
to tiie vului! of tliu siiip us II vi'Hs(>l itisiiri'd in Helirini^ Si-n
would for sclliii;^ pui'pn>'i's lie worth iiiori! tliaii a vi's.scl unin-
sured,

TitiiMiMr, IhJSl).

Now, your Honors, with rc^^ai'd to tlii' "Triumph" of ISS').
My li-arncd frit-nds deal with this ca.se at pa;;(' 442 of thi'ir
ar^UMit-nt. If your Htuiors rcnu'inhfr the " 'i'riiniiph " was ii
M'liooner owiuMJ l)y Kdward (Jrowc liakt'r and ci-rtain otliiT
parties ainon;;st whom was Daniel Mclii'an. The "Triuinjjli"
was a hiri,'e ship of 10(1 tons, and as rej^'ai'ds her we were not
left in doulit as to what shi' had aetualiy cost, oi' as to wliut
her |)rovisions and outht amounteii to, and as to what was on
hoard. We had the most ahsolute and eompiete infoi'uiation

-" upon every point eonneeted with the money actually expi'uded
in ruiniin^' that ship. 1 mu}' remark tiiat my leai'ued fiiend
Mr. |)iekin<ion, has mudi- uu exiument on the evi.lence witii
reiiard to the "Triumph." This vessel went into the Hehring
Sen on the llthof July, hut on aecouut of tin- warnin<,' she
iuniiodiately came out of tlie sea and therehy lost her season,
and we claim that it was the intention of the captain of that
ship to have stayed in Hehrini^ Sea until at least the end of
.Septeniher. The first part of my learned friend's argument
with i-ei;ard to this in an attem it- to show what we had no rijj;lit

;{(l to have had any such expectation, and in doin;^ that ho refers
to Mr. Haker's evidence at 442 of the Argument, wherein it
appears : —

" (). Did you ;,'ive him any instructions as to the time that
" he should stay in the soa ? A. Well, of course I (nu not really
" jMs'uice ti» to iiinlriuiioiiH. I was simply one of the partnera
" mana;;inj^ the atlairsof the schooner, and a i;ood deal, necessarily,
" would he left to .Meliean's discretion, hecause it was he that
" ;,'ot me to m;o into that veiitni'e. y<itii riilli/ I irontil lie ipiideil
" III/ Ills lejiort (ts to the (•ircaiitstmires lelieii lie uvs to relani.

40 " liut it was distinctly understood between him and myself that
" he would remain there to the very last of the season tliat he
•'could catch seals, M) as to ascertain, if pos.^iWle, how loni; tint
"season I'eally did aTid (diild last.

"(^^. Was there any undei'staiidiiiLr at all to that etl'ect ' A.
'■■ Yes ; hr wus to I'eiiiain there until late in .Se]itemi)er.

"*}. 1'hat was fully undi'i'stood !■ .\. l""ully understood
"lietween him and uie. In fact lie wanted to Know something;'
'• aliiMit what heeame of the seals after they jclt the Sea, includ-
" inn t-l"-' Prihylof Islands. Jlc irunteil lo ijo on n liltle eni/niie of

.")(( " ilii (ii'ei'i/ to II certitiii extent, iiiiil tniee tlieiii. nitil iinAmtilij tto
" xoiiie xeiil i III) lit the mime time."

.\ly learned friiiid italicizes this part of tht> ipintation from
the evidence, hut here follows a jiart which he does n(jt italicize,
anil which I would like to have italicized and which, your Honors
MO douht will see. is v<'iy material in the case.

" (^). It was mentioned helween you. or understood, that Ii^-
•■ could stay there until jiretty late in Septc iiihor .' A. ()h. yes,
"The previous year he liad come hack (to \'ietoiia) on the lOth
• of Septcndier, and he hail fverythiiiL; on lioard that would

IKI ' eiiahli; him to stay there until the end of the year, for the
" matter of that. "

Here is the detinite statement hy .Mr. Huker that those two
men met toi,'ether, ami that it wa'! distinctly understood that
Captain McLean was to I'emain in the Sea in the "Triumph '

iliii

, I'll

. I

400

(Mr. Pet< v» Sl'CoiuI Argument.)

until tho end of September. Look at my learned friend'^ coai-
ment on tlitit evidence — it is us follows: —

" If the testimony of an owner, who was never in Behriiif
"Sea to tho eHect that he had instructed his captain, who was a
" man of lon:^ expei-ience in the sealinj^ busine.ss, to stay in th(!
" Sea as late as possiiile, is to outweiu;!! tho positive statement of

10 " that captain, that tlie sealing season terminated toward the last
" of August, the opinions of all thinking minds regarding the
" weight to be given testiuiony of this nature will be disre-
" garded. "

Wiiere does my lerivneil friend get tlu? evidence that Mr.
Baker instructed his captain to go on a voyage of di.scovery '
On the contrary as your Honors will see, the statement i.s that
Captain McLean who knew all the circumstances, and who
knew the Behring Sea, and who liad been there tlie yeai' before
exj)reHHed his desire to go on a voyage of discovery. It seems

20 to mi- tliat my learned friend has taken from that evidence
rejilly the oppo.^ite meaning to that which it conveys. My
learned frienil goes on to state at page 444 of his argument that
even if we are to get the prospective ratcii — of course, hi' does
not admit that we siiould get it — the owner of the 'I'riumph had
made a contract with Liebes \' Company to sell tlie skins for
S(!.25 each, and that therefore he could not get the actual value
of the skins, but is confined to the jirice contracted for, and must
accept less than the owner of tlu' " .luanita" or the "Ariel," or
any (jtiier vessel seizecl in ISSIt. This is answered by our argu-

30 ment at page 147, where we say as follows: —

•• Anothc'' (|Uestion raised was that bi'l'ore the commenceineni
" of the season of ISS!), Bakei' had entered into a contract with
" l..iebes 1.V Co,, to sell his catch at !5<1.25 a skin, and it is cliiiiiicd
"that no more can be recovereil. A sutKcient answer will 1k'
" f()U!i<l in the fact that the contract with Liebes \- Co., was
"subject to certain conditions whicii were of an onerous nature,
" namely, the s ■uding of a steamer to .some point near liehriiig
"Sea, t) take M transl'ei- of tho 'Triumph's' catch and bring it
"to Victoria. This condition was made necessary through fear

4,0 "of seizure, it woulil. therefore, be manifestly unjust for the
" Cnited .States ( ioM'rnmeiit to claim th>' benefit of ;i contract
" wliieii wotiid never iiave been entered into if they had not
"comniitteil and tlireiitened to repeat acts ■now deelareil by the
" j'aris Tribunal to liave been a breach of inti'rnational law."

As a matter of fact the contr;iet was not fulfilled, and .Mr.
Baker was not in anyway bmind i)y it. i*'il'ty things iiiigiit
have lijippened wiiy tii.-it contract might not t)e i'ullilled, iind it
sei'ins to me that tlie " Triumph s" citeii shou Id be plaeeil ill the
same jiosition as the catch of any other of the vessels.

,50 At hiilf piist four o'cloi-k the t.'ommissi<iners rose.

Commissioners Under the Convention of February 8th,

1896, betwean Great Britain and the United

States of America.

•20

:«)

411

.)()

Li'ijiHlntivL" Counei' CliiimbLT, I'rovinoi.-il Biiildiiiji;,

At Halifax, N. S., SopUnnhcr lOtli, 1807.
At olovon o'clock tho C(,:uiui,ssioiiers took tlieir .seats.
^Ir. Pftcrs (cotitinuinjr) : —

When tiu' fouit adjourned yesterday afternoon I was proced-
in;,' to consider the case of the '■ Trimnpli," and had made .some
proj^ress. In this case, a.s in the others, a claim is made for
prospective catch, and there is one remark I would like to make
ill rej^anl to that item, arisinj; fi'om the statement made by my
JeMrned frienil on the other si.le in his written ar;,fument, which
did not particulai'ly strike me wlien 1 was speakini; on that
point <;enerally. It is at paj,fe 2.5.S of his ar<;nment : —

•■ Wlieti the.se claims were orij^inaily presented to the United
"States in the case .)f (Jreat liritain, submitted to the I'aris
'■ 'I'libunal, til" method of reachini; an estimated catch for the
'• the claimants of IfSSt! was by means of a computation, ba.sod
" upon the avei'Hi^e number of seals .secured by tliirteeti vessels
'■si'alini;' in that year. Why this method was aband(jned on the
"])artol' (Ireat liritain is ajiparent from an examination of the
"data for IHSO, which is printed in a table attache(l to the British
"arjfiiini'nt.'

My learned friend rather asks foi- aii explanation as to why
V r chanijed the mode of computation which was ori;;inally put
forward in the claims. The claim was orij^'inally insei'teci, as
will appeal' by referrinij; to any one of thi' oriijinal claims, for
iiist.Mice, the claim put in the "CaroU'na ' case in the following
I'cirni: — •

' Number of seal skins taken b\- each of
"the foUowini; thirteen sealinjf vessels diirinjf the
" year ISSli in and about the Behrinij Sea, le.ost
"of the s:iid vessels leaving; the Sea before the
" end of seasiin fearinj;' ca|itiirr.'

.Vnd tlirn a list of some thirteen ■ • s^ids is tjiven, siatinj^, for
iiist:ince, that the ' rathlindcr" e'ot ■ many, and the " .Mary
Kllen" SI) m;iny. and j;ivinjj a full list of the total number
ciuyht by each vessel. The tot'il catch of the 1:5 is found and
the sum divideil by |:!, thus ji'ett inn' the averaee per ship That
was the way it was put in the orjeinal scheilule, but when we
came to e;ive evidence at N'ictoria, it .it once became apparent
'liatto estimate the catch to be made by simply !.;:-.kiii;; .it
wliMl one vessel cauelit an<l com]mrine- that with another, could
nit hi' ,.|s satisfactory or fair a nu'lhoil, because (he ditrer<'nt
till \i-isels were possesseil of ditlerent out tils, Koi instance, .some
\issels woulil have more boats and more canoes than others, and
llierefiire We found it necessary to come down to some method
111' >aiculation which would be based, not so much upon the fact
iliat one vessel caiie'ht so many, but showine- the oiitlit of the

!»!!

jlf

:iii;t

lilt

■-.tr

:i.«jM.|i

! I

■ i ■ •

|i li

■.flMHIJk^. v,vp ^,T^.

402

'Mr. Pi'ters' Second Arjjurneiit.)

partifular vi'ssd, I tliiiik this iitt'onlH a reasonable explanation
why we have departed from tlie ealculation orijjinally niaih", and
why we ha\e soiii;ht t.) f^ive tlie Connni.sHion evidenee tli.il
would fmther elneidate onr position and {jive the t'onmiission a
better data npon which to base their decision. While on the
subject of estiinateil catch, a c|nestii)n was put yesterday by the
10 Honorable C'onunissioner loi' the Initeil States, to winch I wisli
to refer. Weclaini that, if we are entitled to the estimated eateli

It all.

we are entitled to receive the i;ro.ss value of tlie skins

without making any rlecluction for lay of hunter, waii'es, etc.
As I undeistand the ipiestion of the learned C'oinmissii)ncr, h<>
wishes nie to {^ive om' \ iews as to whether instead of jiettin^-
the i^ross value of tile skins we are not limited to the net vahic
The C'oninii^oioner on the jiart of the United States : — \un
claim to represent the hunters with rcfereri.'iice to each vessel :*

-Ml. Pet

er,'

le owiieis

crew ami hunter>

Tile t'oniniissioner on the part of Her Majesty : — That da

III!

is ill terms put forward with rc^^ard to several of the vessels if
not all of tliem.

Mr. Peters: — I think as rcLfards

)f th

that

Mr. Dickinson : — In just three I think vour Honor will HikI

claim maile.

Mr. Peters : — I submit that it is made in respect to every
L'laim. I know it is not e.spresseil in every claim in the waj" it

IS ina-Je in r,ome c\
sliiij. " J!ut the tti

vah

(Jn behalf of cr
:-l

ew HUil owners o
ue is claimud in everv instaiici'

,S0 My learned friend, with reejard to some of the items of our
claim, aises the objecti(jn that tiie items were not included in
the claims a"* presented before the Paris Tribunial, and he ar^'ucs
that they are not properly before this Commission.

l>ut with re;,'ard to the item now under consideration, that is
our rie^ht to obtain tiie jjross catch, it was put in in the orif^inal
schedules, and therefore that contention cannot avail, m\- lennied
friend. In order to see that I nm rij^ht in the statement thut

lese wert- included, 1 have looked at the claims this mornui'; am

I Hi

the case of the " Carolena, ' for instance, the I'l

L-ulch

40 is put as f(

Estimated catch for bSNii." That is tiie \\a\

le claim h

put

le claim was made \ip in this \M,y : liist

the value of tlie shi|), then the value of the (Hittit — what they

unciinsuma

>f all kin

ipp

IS a fad this item inclinles a
to 1m

II tl

le on the " Cnroleiia

Kxliiliit \. to ftri'dmd schediiK

aiu

1 tl

u n

,lien

le nlittit
seixed.

le wnL'is

.f th

Vt'sse

thr

nifii tl)
wIimI

at.'

cif seizure.

d otl

ler Items «ri' c

har-

ded

u
the valllft roiisiiniei

p, and then they dediRt li

for ])articiilars of which
"" "' It

I d
L'ludl

Ul IIIL

iholi

viivnee.

lie to onuinal claim. e.\

liiliit

.")() F (Note the wnees included ai e i lliy to date (

m). Tl,'

ilfdiiction bir wai/es was men

a cross eiiirv am

1 th

ma}' be -aid with the ileduetiiin for roiiMimable oiittit as it Wiis
charged in the second item claimed wiih regard tu the (stiuiiitd

flit

lire c;itr

le claim tormnlU . Vv as anil now is.

the wl

estimated eati'li, the 'friiss sniii.

to tl

II' ease

if th

t liiwaii

\.<

which IS hilt III

le same mav

lasis ami the same with leeanl In the

lid with
aiiii'

lOl llinn W lileii Is ell

the

■asis.

le n

ference to the " t'ar(deiin.

aceOK

line tl

pau;lll;,'

iiive liere. IS a

t jia;.'e I of tl

lesff e

.xhibits. 1 Mil

(10 not sure wliether it is

I refer first to the c;

me paeinu which your lienors h«\i

til

fail

in that clam

stimnt« fur tl

■ frills ea

tcb of IS.Sli, ' Kslimatei

,tel; for iSSd

l?l(),()i)0." Till II a dediiit ion is imu
value consniiied diiriiiL' the vuvnire.'

le fi

that

iuetiii'j

hen as iveanls

til'

4!)3

(Mr. Peters' Second Arjfuinent.)

" Tliornton," at page 5, it is put in exactly the same form.

The (Jnmiuissioner on the part of Her Majesty :^The same
applies to aii tiie Warren vessels?

Mr. Pi't'.'r-i : — V'os. The jrross estimated catch is claime.l in
every case. In our arguuient particular attention is called to
this point and we have referred to several cases where they
10 went furtlier than that, and claimed not on!)' for estimated catch
hut expressly st ited that thoy were claimini^ on behalf of
owners, croiv^ luid hunter.^. \Vhile it is not expressed in so
many words in each case it is clear that what we were claiming
before the Paris Tribunal and herj, is for the total f.;ross aujount.
Now tile oi)jection tliat my learned friend tikes to other items,
as, for instance, " Hardship ti the crew .iJ.JOO.OO to each man,"
is that such an item was not placed before the Paris Tribunal
and therefore cannot be brou..;ht before this tribunal. 'I'he
nljjectioii [ have shewn <I()es not applj' to the claim for j^ross
'20 catch. The piiint Hu;,f^;e,sted is that we should only j;et the r.et
valut! of estimate(l catch, ileductins^ from the j^ro.ss tlu? lay of
hunters v.;::;:' ■. vt:-. Mr. Beiiiue lias fully stated our eontention
on this point. 1 shall therefore content myself by merely stat-
\u^ oui' position.

Article 1 of the treaty .says: " The hii;h contracting; parties
aj^ree that all elainiB on account of pensons in whose behalf
(ireat i^>ritaiii is entitled to claim compensation. — .so that we are
dealinj; with the claims of all pei'.sons on whose behalf (Ireat
ih'itain is entitled t<> claim compensation. .\iid we say that it is
;i() not only the owner and master, hut the crow. And we can show
by the eviflence that some of these men made a very lar^e
amount of money on account of the s(>als killed by them. Some
of the men unde a coiifjle of thousaiuls dollars in a short lime, and
several of tlie men made hnndri'ds of dollars in a few days.
We say that, by reason of these seizures, these men were pre-
veiite;! from makinj; vii-y larjje -^ums of money.

.\rticle 1 continues as f()llo\' " Appemled to this t'onven-

tiou is a list of claims," Now ail these cases are in this list of
elaims, and the names of the vessi'is are mentioiiid, 'I he claim
■4-() is simply named in the list by the n.ime .I' the vessel, and
the el.iim is to compensate all persons on whose behalf (in. it
j-iritain is eutitleil to claim com[)i'nsation, by reason nt' the seiz\ii i-
of each ship named '

The ( 'onnuissioner on the part of the United States : — ^'ou
do not say that we are bound to hunt out each claimant your
proposal is that the ship represents the whole claim ^

Mr. i't'tera: — -^'es, of course the ( ioverument of (Ireat hiitain
will have to see th;it the motley is distributeil properly.

Take the ( "osta Hieacase; the ai'bitrator oives so much to
■")(• the master, and so much to the crew. We know in this case that
so iiiueh money should be jfiven and it will be tor the jfovern-
ineiii of (ireat Hritain to see that the projier persons jjel the
money. I do not think that we will h;i\c any diltieulty on that
]ioiiit.

Now, while 1 am on that )ioiiit of esiim.ited ealili. I
wish Id say that 1 told my le.nin'il friend tin' nllier day. th.il if
I hail any other auth(M'i'.y on the ((iii'sl ion of i;ii .ni imi I would
nieiiliiai it before he was called nimii to speak, [ have sini'e lli.-it

t illie fiiliud line ea : • wliii-ll seems tn hi- X'TV |irllillrllt In the

(in rni|uiry, I vel'er to the case nf |).>imis\s. M.'.l^^iii'M. 10 .\il,iii,
|:>N. Till' ease was as follows : —

The ,-ietiiin was one brouii'lit by the master of a whaliiijx ship
a;;aiiis( the owners of iheNliip for wroii^i'ful dismissal. Hi' was
iiiiployed to ^'o on a wlialin;:,' Miya^e that was to last sonie ti\e

V I

L;|:..

II II

Ml ^|i.(

WWB^^^BfTT^

494

(Mr. Peters' Second Argument.)

veiirs, anil l)v ttie ti

ii h

lovin Mit lio was to rfcivc a

ccrtiun shan

le eirriini's o

f tl

ic vessfl

If tl

11' vessel ijot

S<7(),()()() worth of oil foi- ex-nn[)le, he was to ;;et so iniieh : if shi
fjot i?.Sl),()0!) wortli lie was to ;^et so miieh ni')r(v The more sh
the vessi'l ;;\)t tlu' iar^;- T share li
at the en! of t «"o vt-irs ami

was to I'.

■t. H(

disci

larjiet

iji'oiiii'lit ai'tioM aiiairist ti

10 owners of tlir shi

(iO

ai'tioii he elainii'l two elasses of
oarniniTs hi'voiid 1
the time of his dis

iirj)ro|ii'riy disi'h'U'ijiiiif him, and in thai

i^'i's. h'irst, for the I'xt

lis waives wiiieli

■i I

)"en eai'nei

SivDiid, damay;e-

i 1)V 1
<r the 1

nm to

OSS of

prospective earninj^s. whieii it mi^ht 1)-' supposed he would havi
miide. if lu' hi 1 conlin.H' 1. The objection wa-s tikea hy
Mr. Dnd^e, counsel for the di'femlant : —

The ftiturt

profits

ure earnniirs ol the ship were mere eontinifeiit

nd the plaintirt's elaim to shar(! in them is to share in

pnssibh; ])roHts wliicli he mij;ht have made out of possible

20 " future catch injjs. Tliere could bi- no ailecpiate or trustw(jrthy

"basis upon which a computation of such damajfes could be

founded. For au^rht that c:

,de to appi-ar, tl

plaintitl" was bi'iietiti' I instead of injured, by savinj; his tim

ami lal):)r for the uncx

ortion o

f tl

le contract.

Mr. Justice Hii^clow, ^^ives thejmlijment, and I refer to what
he says at pa<;e 142: —

" We think it eipially cl(>ar that the plaintirt' is entitleil to

" recover in this aetion his share or proportion of the future

"profits or earnings of the vessel after his di.schargn by the de-

30 " lendants. These constitute a valid clain. for ilamaires, because

" the parties have exijressiy stipulated that profits shall lie the

)asison winch a ]

tion of plaintiff's comiiensati

lor ser-

'vices slioiiM tl ' reckoned. These e.irnings or pi'olits were
'therefore in l^irect contemplation of the parties, wiien the con-
' tract \Trts entereil into. They are undoubtedly in their nature
'contingent and speculative and ditlicult of estimation; but,
'being made by express agreement of the parties of liie essen'-e
' of the contract, wi' do not see how the\- can be exchide(l in

asceitaining the compi'iisation to which the plaintitl' is .■ntitled.

40 " Would it be

I bar to elaim for damages for breach of

articles of co-p irtnership, that the pr'otits of th(» conteinpliteil
business were uncertain, contingent and difficult of proof and

could bi' lieM for this reason that no ri'coverv con
•h of

had
li

case ot a breach ot such contract ' ( )r iii an action on a policy
of insurance on profits, would it be a valid flei'eiice in the event

)f I

OSS to sa\' that no ijamaires eouf

•1,1

I b.

cause the subject of insurance was merely speculativt> and ti
d.'ita o!i whieb tin- profits must b

calculateij were ne

•ssaril\-

inadeiiuate a;

insufh'ieiit to constitute a sat

oisis on will 'h

to rest a claim for indemnitv.

.answer is.

that

case

uncei't'un am

e |i,irties li,i\iiig by their contract adop

in such

1 cant iiigent,

iii'ciilatue measure ol

must ;ll)ii|e liV

il, and coiirls and Juries must approximate .is nearly as p issible
to the truth ill eiideii voriiig to ascertain the amount which ,i
' party may be eiit itled to recover on such a cnntr.act in tlu' event
of ,1 breach, if this is not the rule of law weilonot sei' that
there is any alternative short ui deeliiring that when^ ]iartie,s

'negotiate for coni|iensati r indemnity in the form of an

'agreement for prolits or ,i >baie of them no recovi'i'v can

had

)ii siK'h a contract in a court of law— a or

proposition

which is manifestly absur<l. There are doubtless many cases
where no claim for a loss of |irotlis can properly constitute
an element of dainag' in an action for breaeh of a contract.
These, however, are e i-,es in which thiM'c was m sii])iilation for

406

(Mr. Peters' Second Argument.)

"componsiition by 11 .sliivri' of tl)o profits and wliere they were
"not witliiii the ediiti'iMiil.it ion ol' tlic piiitics, and did not i'orin
"a natural iicccssai'v of niDxiniati- icMiilt ol' a l)icacli of tliecon-
'■ tract di'i '.ircd nn. Imix \s. Harding, 7 ( 'iisii. 5l(i. Hut these
'• cases ai'i' no aiilliii ity lor the Kroad proposition tliat in no case
• wliateviT ;';»n ))i-otitsijc ini'luiled in cshniatin^' dania<;('s for a
10 •• hrcacli of a couirart."

And then lie cites iirown \ s. Snnth, and iin sa\'s t)nit tins
il('ci-.ion stands upon the ^'rounds tliat tiiei'e was no .-itipulation
ciinei 1 ninj,' tlie prolils.

Tliere is anoiher case of I'ciiston ct ill ex. State Rijflits, quoted
in Orahlie's llepoit-i, pa^e '22. 'I'liis was a c(j|li-.ion case. It
was ailejied that the coili-inii took ]ilaee lietween two vessels
maiiietinir in a line of jiassenijer trallie tip a certain river, and
it was alleged that the collision took place purpos(dy, with the
olijeet of preventing one ship fron» carrying on the business.
20 At page 42, the Judgment was given : —

The Connnissioner on the part of the United States : — Who
was the judge.

Mr. Peters : — Judge Hopkinson. This was in Pennsylvania.
The judgment is very lengthy and seems to be very well argued
out.

At page 42 the Judge saj-s; — "Taking the facts of this
case to he as the witnesses have testitied, and I can have no
other knowledge of them, I do not see how the inference can be
avoiiled, that at least as to the afi'airs of the thirtieth of May
."SO and the thirteenth of June, the attack upon the "Linnaeus"
were irilfid and mulicioun, and a mo-^t unjustifiable use, on the
p.irt of t'aptain Allen, of superior powei-, to injure and crush a
weaker rival. If such were not the fair and unavoidable de-
duction from the circumstances of the several transactions, the
express declarations of t'aptain Allen would remove all doubt on
the subject. H(! never seems to have sought to shelter himself
imder any apology from accident, or the necessitj' of his
position. "

Then at page 41? lie says : — ' Again, it is saiii that in the case
40 ,if collision of vessels, tliere can be no I'eeovery beyond the
actual damage. This may be true in eases of rcutd niHjIiiji'nce,
or iriint of (hie d:'dl and cave, by which the Injwry omtrreil, hut
Clin hdfdti/ he applied to a case of a n:ilful and malicious a.s-
Kdnlt upon the property and riijhtu of another, with a direct
view to ]iroHt and gain. The injustice is manifest, of putting
siu'h a ease up m the same footing with one of mere want of
care and skill.

.Vml again at p.ige 47, he gives this n^ison : The damages
which are called exemplary are nothing more than a high and
"lO exaggerated estimate of the wrong or injur\-, which courts and
juries take upon thems(>lves to allow, bringing into the calcula-
tion, not a new and distinct injury, but sDinething beyonil the
mere pecntnary loss or personal sutl'ering, still belonging, how-
ever, to till' original iiijniy and to no other. I woidd instance the
cnses of arri^st by a general wari'anl issued by a Secretary of
Stuti': in which enormous danniges were given by the jin'ies,
and allirmed by the court although the jn'i'sotiKl sutlering was
ie;dly nothing, but the essential, invaluable, political rights, and
liberty of the pl.-untill' were supposed to have been violated, and
"" this wrong was added to the jiersonal iiijiu'v as a p.'U't of it. 'J'liis
ocnu'LTcrated estimate (d' the damages of the tort which is the
ground of the action, is generally resorted to on some principle
111' public policy, as in the cases just nientioiUMl. So in the case
h1' nn atrocious and dangerous libel, the real injury to the

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40G

(Mr. Peters' Second Argument.)

plaintiff tnay be inconsiderable, but the preservation of the
yuhlic pence cail.i for n liij^li estimate of tlie wroiif^f, that private
revenije may not be resorted to for such injuries. Contteiiuenlial
ilamiKjes are of a diH'erent character; they ai'ise from a new-
injury .su.stiiined in consequence of the first wron^. and derived
from it, but which is not inseparable from it, but may or nuiy
10 not have happened accordinj^ to eircunistanees. Such was the
case cited from Jacob.son, .'{28 ; in which a vessel was so damaged
by beinij run down, that, in retiltinif, she lost the tide and
was taken by a privateer. Ilt'r eapt<ii'e was the consenueiiee
of the first wroiiLT, but not a part of it. I think therefor, that
it is not le!i;ally correct to say that a court cannot nive exemjilary
damau'es in a case like the present, against the owners of a vessel.
If any dama^'es may he awarded, the sound discretion of the
court must be exercised iti ascertaining^ them. Then he proceeds
to say at pa<,'i! 48 ; — " In a case like this, the actual dainas^e is not
" limited by the cost of repairing the bi'oken parts of the bdnt.
"The loss of business by laying her up for repair, by prtventiiig
" passengers from gt>ing in her on account of the danger anj
" alarnisof these collisions. areproper items of charge in estimating
" the diimages. Hut I can hy no means ajiproaeh the aniouiil
" which the libellants have imnginedthey are entitled to. 1 shall
" do what on my best unilerstanding all the circumstances of the
" case, I think its truth and justice reiiuire of me. " Now, passing
from that point I would bring your Honors attention to a special
(piestion raised in this case, to which leference is made by my
learneil friend in his argument, at page iA'i and 44(1 wliere he
states : — •

" The United States contends that Darnel McLean who was
"the ownerof twenty-two shares, or one-third of the" Triumph'
"can be awai'ded no sum for damages."

McLean became a naturalized citizen of the United States of
America on the .")th <lay of Detober, KS.S2. Without obtaining
the consent of the 1 -nited States, " that is the point I wish to
call attention to, " atul the United States not having consented
to his throwitig otl' allegiance to theii' (iovemment, Mci..i'un on
40 the Jtith day of Octoliei-, l.S8(i, made a{)plication for and reeei\
papers declaring him to be a naturalized subject of (ireat Hritaii..
On the 7th of Septendier, 1892. lie made an affidavit that he
was a naturalized Anu^rican citizen.

The laws of the I'ldted States, the decision of its courts, and
the establislu'il law of nations bearing upon the eitizenshiji of
McLean, and his right to recover damages for an act committed
in violation of the sovereign rights of the (lovernnient of the
Uidted States ami the niunieipul law of the country to which it
is claimed he owe<l allegiance, ha\e been heretofore di.-cu.'-sed at
oO length and the position of the bin* • I Stutis detihtd.

N'ow the position taken tlieie is that McLtan had ro right
as I undeistatid it, to be re-naturalized in (beat Itritain without
first obtaining the C(insent of the United Slates. 1 piopcM'
shortly to deal with that pi(i|iosiii(ih. 1 will first itfi-r \our
Honors to the treaty of |S7I), whieh is fnuiid in " 'I'lmtie- mil
Conventions between the I'niteil States ami other I'owt rs, at
paiie 470. Article 1 of that treaty pidvides foi- nai iirali/aiioii.
Article 2 of the treaty authorizes certain jieisons who were
nutnralized before the pas.'-age of tlmt treaty to leiKunie tl eir
tiO naturalization, provided they do it before a certain date, which
date has long since jiassed. That has no Ijeaiing on this case.
Article ;) piovicles as follows, ami I am reading the last part of it
which lefers to persons originally Hritish subjects. It says: —
" Jn the same maimer, if any such IJritish subject as afoie-

497

(Mr. Peturs' Sucoiid Ari,'umt.'i>t.)

"sniil niituralizfd in tliu Uriiti'd Stntt's sliDiild it'iii-w his resi-
" deuce witliiii t!it; dominions of Hci' Britannic Mnjiisty, Her
" Mnjesty'M *loveinment may, on Ins own aiiplieation and on sucli
" conilitions us tiiat Government may think lit to impose, re-ad-
" niit him to tiie cliaracter and priviU'Lfes of a Hiitisli siiipject,
"and tlie United States shall not, in that case claim him as
10 "a citizen of tlie IJiiited States on account of his forinci'
" nntiM'alization."

It will 1)0 noticed that under that treaty it is open for Great
Britain or for the United States, as it, is reci]ir(ical, to re-admit
any person wlio has been naturalized, upon .-ucli conditions as
tlie t;overnment of tlie country re-admittin;,' him shall see tit to
impose. There is no (piestion of consent whatever'. It is not
stated in the treaty tliat the United States must consent that a
person who has been naturalized in the United States, may bu
re-naturalized in (ireat Britain ; that is not contained in the
20 treaty and it is to the treaty that we must loidv altogether.
There is another treaty of liS71 , but tliat only ajiplies to per-
sons who were re-naturalized, I think, before the year l.S^2, and
has no application to this case. The only tieaty that applies to
this case is the one 1 have just rend. I will also refer j'our
Honors to the Canadian Statute on that point, — the Statutes of
IMHl. I will read section 20 of Glinpter l:!44, Victoria:—

" A natural-born British subject who has becoii>e an alien in
" piusuance of this Act or ot any Act or law in that iieluilf, and
" is in tliis Act referred to as a ' statutory alien,' may, ujion the
30 " same terms and subject to the same conditions as are icipiired
" in the case of an alien a[>plyini^ for a eertiticate of naturaliza-
" tion, apply to the proper court of authority or person in that
"behalf for a certiticate hereinafter referred to as a ' certiticate
"of re-ailinission to British nationality,' re-admittinj,' him to the
" status of a British subject within Canaila. "

He has really to i,'o thi-oui,di the same course as if he

originally applied for naturalization. As a nuitter of fact,

Mcl^fan did a|)|)ly for re-admission, and obtained his certiticate

in (.)ctober IhSC, which is set out in the proceedin^fs in

40 Appendix B.

The Commissioner on the part of the Ignited States: — I do
not see in the avifument of the United States any claim that the
pruceediuj,'s were not rejj;ular under the laws of Caiuula.

Mr. Beters : — The point he takes is that the re-naturalization
without the consent of the United States was worthless. That
is, as I read the ari;unient.

The l\)mmissioner on the part of HtM- Majesty : — Perhaps
those words "consent of the United States " relate rather to his
becominj.j a part owner, than to the re-naturalization.
50 Mr. i'etors : — The treaty says, in so many words, that the
United Slates shall not claim him as one of its citizens, and as
he became re-naturalized before he obtained anj- interest in this
ship, we say that ends the matter.

The Commissioner on the part of the I'nited States: — How
do you reconcile the fact that he imnle an atRdavit that he was a
naturalized American citizen in 18!)2 ?

Mr. Peters : — He made oath that he had been a naturalized
American citizen.

Mr. Warren : — He made an affidavit that he was a natural-
GO ized American citizen in 1892. That you will tind on page
1821, line 50.

Mr. Peters : — -Yes, he says he was a naturalizeil American
citizen, and .so lie was at one time. He fails to state that he was
afterwards re-naturalized, but it does not matter what the man

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498

(Mr. Peters' Second Ar>{un)ent.)

saiil, whetlier In- niaile sucli ftii affidavit or not. The general
loinaiks (ipply lioii', tliat Mr. Bodwell made as to the .same
allitlavit. fieri is uii atJidavit for one purpo.se only. Your
HiiMors will notice that the statement at the beginning of that
nlli'iavit \\Hs lint the gist of the affidavit at all. It was not
upon that iii-itler that he was asked to make an affidavit —

10 whether lie whs a naturalized citizen of the United States or
not — that did not affect the purpose for which he was giving his
affidavit. He says that he was a naturalized citizen of the
United States, and so he was at one time ; it omits to state that
he was afterwards re-naturalized But there is no doubt that he
was afterward.s rc-niituralized and we have the formal cer-
liticate of the court where it took place. Against that we have
si'vernl iiffidavits, I think one at Shelburne, Nova Scotia, where
lie made an atlidavit, when he was acquiring one of the .ships,
iitatiii>4' that lie was at one time naturalized, and aftei wards tonk

20 an on 111 nf allegiance to the Queen. On another occasion he
made an atliiiavit that he was a natural-born subject, and said
nothing about being naturalized. These affidavits cannot be
reconciled, perhaps, in accordance with the facts, but we have
undoubted evidence so far as re-naturalization is concerned.
])iiniel McLean has not .said anything which anybody disputes,
excL-pt perhaps his affidavit where he .says something about the
length of the season, which is explainable. There is no dispute
abuiu till- I'act that he had become a naturalized citizen of the
United Slates, and afterwards became a re-naturalized citizen of

30 Great Briiain, and therefore it appears to me that that is con-
clusive on the case.

I do not know that I gave your Honors the reference as to
the details uf expenditure, but Baker, at page 1419, gives full
details of everything that went out in the ship, and the full
vouchers are there set out.

The Commissioner on part of the United States: — You re-
ferred to that yesterday. I do not know that you gave a refer-
ence to the pui^e.

Mr. Peter.s : — That is all, then, I wish to say on that case.

The " Pathfinder" 1889.

We come now to the case of " The Pathfinder " 1889. I will
take the same course of following the objections taken by my
learned friend. On page 418 of the argument for the United
States, the tlrst objection taken to this claim is one that has
been argued to a great extent, and that is the question of
Bechtels ownership. But before I come to that there are some
items speciall}' mentioned here, which I do not know whether he

50 really means to object to or not. He savs " William Munsie
" testified that the guns originally cost ?55 each, and the rifles
" $26 each". Whether he intends to object to these sums or not,
I cannot say, but in any case, the remarks I made on this point
in regard to the " Carolena " will apply with equal force to the
gians supplied to the " Pathfinder ", and I need not repeat them.
He further proceeds to slate with regard to the case of the
" Pathfinder : —

" In the argument on behalf of Great Britain this s5tatement
" is maile : —

60 " In the ease of the ' Pathfinder ', the schooner was owned by,
"and registered in the name of a British subject, but one liechtel,
" wdio was a native born citizen of the United States, had pur-
" chased a half interest in the profits of the sealing vojages of
" the vessel.

499

(Mr. Peters' Second Argument.)

"The United States accept.'^ the admission, made on bRhalf
' of Great Britain, that Andrew J. Bechtel wax ef|nally inter-
" ested with William Munsie in the venture of the ' Pailifinder'
" in the year 1889, but a.ssert that Andrew J. Bechtel was aUo
"an owner of one-half of the vessel, restinjj this claim upon the
" testimony of William Munsie."

10 With regard to this matter, I do not know that it is necessary
for me to do anything more than to refer you to the evidence
^'iven by Munsie on that point. It has all been argued out at
considerable length, and the dispute between the parties is very
clear and very plain. The " Pathfinder", if you will remember,
came around the Horn, I think, in 1886, — the first year she
sealed, but I do not think it is necessary for me to go any
further, but leave the matter just where it is. All the argu-
intnts in regard to the position of Bechtel apply to this ca.se, all
tlie arguments that we have used that there was no attempt to

20 defraud the United States law apply to this question, and in ad-
dition to that the argument that we have referred to incidentally,
in the case of the " Carolena " that there was another mortgage
given to Myra Bechtel. It will also be remembered that we
admit that in the year 1889, a year before that date I think,
Imt, at all events, in 1889, which is the only year we have to do
with the "Pathfinder", Andrew J. Bechtel was interested in the
voyage of the " Pathfinder ". He entered into a speculation on
her voyage. He said to Munsie, when the voyage was about to
he undertaken, — " 1 will give you so many thousand dollars — I

30 " think it was $2500, — for a (me half interest in the probable
" catch that the ' Pathfinder ' is going to make ". My learned
friend thinks that is suflicient to prevent Bechtel from recover-
ing in this case. I refer, your Honors, to the words of the
treaty. There is oidy one question under that treaty which
the United States have the right to raise, and that question is,
whether the vessel was actually owned in whole or in part by a
citizen of the United States. That is the only question they are
entitled to raise under that part of the treaty. Every person
rightfully on board a British ship is entitled to the protection

40 of the British Government, and the only qu'istion the United
States had a right to raise was, — what would be the effect if a
citizen of the United States was entitled to to .some share in the
vessel. Now that is not authorizing thent to j'aise the question
of what would be the effect if a citiren of the Unii^ed States had
some interest in the catch, cargo, or voyage. Tnere is nothing
in the municipal laws of Great Britain to prevent a citizen of
the United States from being interested in the voyage, the ven-
ture, the cargo, or the charter of the vessel, and the treaty, we
contend, does not give the United States the power to raise that

50 question, and bring it before you for adjudication at all. You
are confined to one question, — when it shall be proved that a
citizen of the United States, in whole or in part, actually owns
one of those ships. So that we contend that that proposition,
as laid down by my learned friend, dues not in any way affect
the case ; that the question does not even arise, unless the actual
ownership is proved in whole or in part, and of course when it
is proved, it all becomes subject to the argument put forward by
my associates, Mr. Bodwell and Mr. Beique.

Mr. Dickinson : — What becomes of your contention, that these

CO are cl.ums of vessels instead of claims of 'he persons ?

Mv. Peters : — That is it exactly. They are claims of the ves-
sels. I do not think that helps my learned friend at all. We
do not agree that there is any such thing as a right to protect a
person under the British fiag which is to be merely a nominal

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(Mr. PetiTs' Si'conil Ai'^'Uineiit.)

rijilit. My leai'iicil fiieinl says ; — " Von Iinve a riylit to protect
" H person uiidur the Hiii,', but wlien you eoim^ ilowti to tin- |)rHcticiil
" ri)j;lit of protection you have no rii,'htat all. You have norij^lit
" to claim compensation " Wo .say that compensation follows tlu!
ri;,'lit of protection as cleai'lj' as nij^lit follows the day. What is
tlu; use of protection whicli doe.s not protect ? and of what use
10 is protection which you cannot put in practical shape ?

.Mr. Dickinson: — It is claimed hy some f)olitical party that
we Iiave in the I'nited States a protection which does not protect.

Mr. Peters : — 1 am not ^'oini^ into the politicul line at all. It
is adndtted l>y my learned friends that CJieat Britain has ari;,'lit
to ))rotect every person wIk) rightfully works under our Hii^, and
my contention is that the ))rotection must not he like the politi-
cal protection which my learned friend has reference to, hut
actual protection. If a man is usini^ the British flai,' ri;,ditfully,
as these men were, the protection unist be a real one, and not
20 merelj a nominal one. At paj^e 421 my learned friend lays d()wn
what he claims is the rijjht measure of damajjes. He says :—

" The ilamaj^fo chiiniecl is for the value of iS5-t seal skins, the
" £funs seized, and the charter value of the " Pathtinder " fr.im the
" iiJSth day of July until the close of thosealinjf season in Behrin;,'
" Sea. The value of 50 seal .skins, taken after the seizure, shouKl
" be deducted."

I read that sentence as beini^ a statement by my learneil
friend of what he consideis the damajje should C(jnsist, bi^cause
the qui'stion of charter value is ju^t the very dispute between
30 us. The (luestion of the estiniaie 1 catch I need say nothing;
more alioiit, as the evidence has b.-en referred to by Mr. Bodwell
so fully.

" OscAU AND Haiti K."

Now I come to the case of the " Oscar and Hattie," upon
whi(!h some comment is necessary. My learned friend referred
to this case at paj^'e 477 of his brief, and we have referred to it
at piii,'e l(i() of our brief. I do not propose to go over the evi-
dence in the case, bi oaiisp if your Honors iemenil)er the evidence

40 it is in a very coui^ise form, beitif,' a copy of the evidence laid
before the Sii|)reine Court of C'aniida, when that case went upon
appeal, and I take it for granted that the facts are before your
Honors, and that it will not be necessary for me to go over them
any more >h.<\'i they are set out in our written brief. I wish,
howe^'i;r, to call your attention to the contention made by the
counsel on the other side. At page 4cSl niy learned friend lays
down a proposition in which he says: —

" The United States contend that the captain of the roveinie
" cutter " Mohican " had reasonable cause for seizing the " Oscar

50 " and Hattie." The construction j)laced upon the modus vivendi
" of 1S!)2 by both governments, as contained in the Fishery Act
"of liS!)], anil in the instructions of the government of the
" United States to her cutters in Behring Sea, was a reasonable
"and, moreover, the controlling conntruction."

The construction he refers to there put Upon these two acts
is found at pages 477 and 47^* of his biief, in whicli he points
out that in order to carry out the modus vivendi of IH'JI, which
was continueii b\- the modus vivendi of hS92, the British govern-
ment passt^d a statute which contains the following clause : —

60 " If a British ship is found within Behring Sea, having on
" board thereof fishing or shooting implements or seal skins, or
" bodies of seals, it shall lie on the owner or master of such ship
" to prove that the ship was not used or employed in contraven-
" tion of this act."

501

(Mr. Peters' Second Argnnipnt.)

My learned friend arjrnes tl.at liecniise the Hritisli fjovernment
passed tlmt statute, tliey, liy j)assini^ it, niiisl lie talien to
have put upon tlie terms of the modas rivoxli a certain con-
strucrion, ami that construction was, that if any vessel was
found in Hehrin^; Sea when the viodtis rircnili was in force,
having' on hoard seal skins, or arms for takinj,' seals, that such

10 vessel from that fact nUmt', hecame ahsolutelv liable to seizure,
alth(>ui;h the seizin;; otlieer at the time knew there had been no
hreacii of theiHO(/(*.s rivc.ndi. My learTiecl fiiend proceeds to show
iiistiuctions ^iven hy the United States ;i,'oveinment, ami he says
that these two ^'overnnients a^'reed upon the construction put
upon the vwilan v\miuii. We ii^'ree with my learned friiMid that
the case turns upon the question, whether or not there was reason-
able cause for seizing the " Oscar and Hattie." We say, however,
that under the terms of the inodas virviuli, that the oHence was
not having seal-skins or arms on board, but that it was catching

20 or attempting to catch seals within a pioliibited place. The
staM.teof liSyi merely nuikes the possession of skins or arms a
surticient excuse for the (jtficer to seize and hold the vessel until
the presence of the skitis or arms is satisfactorily explained. If
the ffcts are such as must have made it clear lo the uiit\d of tlie
seizing otlieer at the time he seized, that the skins were not taken
in Hehring Sea, atid that the schootier was not there for the
purpose of breaking the niodan virciidi, then the onus to prove
his iiwioccnce wdiieh was orittinally on the master of the schooner
which haii the seal-skins on lioard, was then and there satisfied.

30 It is argued by my learned friend that in this case Chief Justice
Hegbie found that there was reasonable cause, and that there is
in the judgment of the Supreirie Court of Canada a finding that
a prliiKi fiii'Ji'. ease was established. On that point I aiu not
(piite ceitain, but the Commissioner for Dreat iiiitain will bear
tlu! facts of the case in mind, as he was a member of the Court
at the lime. I wish to point out that theie is evidence before
this Counidssion that was not before Chief Justice Hegbie nor
before the Supreme C'ourt of Canada, and that evidence shows,
tiiat the captain of the cruiser who seized tliis vessel at the time

40 he seized lier knew that there was no breach of the iudiIiis
viiyndi. contetnplateil. We have not only verbal evidence on
this point — -about which there might be some iloubt — liut wo
have written and formal evidence, and it is u\ion that ground we
jHit our case. We say that at the time the United States seized
that vessel, their officer had before him evidence wddch shoidd
have satisfied any reasoniible man that there was no breach of
the moilus viri'uill, and that he was then satisfied and reall}'
seizi'd knowing no breaeli had been committeil or wai intended
to be connnitteil. We refer your Honors to our argument, page

50 170. where is set out the report of the seizure made bj' Oom-
iiiaiider Evans to the Secretary of the Navy. On the 10th of
September, lh'J2, a few <la3's after the seizure took place, the
Conuuander wrote that he sent the " Mohican " there to capture
fiiiy sealers who might have been .sealing on the Russian sitle,
u jilaee where tliej' had a perfect right to fish. He says : —

" During the latter part of August, I had sent the ' Mohican'
" to the vicinity of Attou Island to apprehend and capture any
"sealers from the Russian side, wdio might be found in that
" vicinity. 1 feared that some of the schooners', after watering

GO " at Attou, would, in case of good weather, stop for a few days'
"sealing in Hehring Sea, which I determined should not be done,
" atid at the same time wished British schooners to uriderstand
" that the}' could no longer make a convenience of American
" ports illegally for carrying on tiieir sealing operations."

\\V

^ .

■H tl

I' «

■ill 'm

■■trp^^7

802

(Mr. Peters' Second Aif,'uinetit.)

It would sci'tn from tliis that he> Imd soiiin iilca that, althnuf;)!
a ship wi'iit tlH'if for tlir liniia (ide purpost) of wiitcriiij; only, lit-
was fjoin,' to lot tlicni nndi-rstantl that tliej' shoiiUl not use
Ami'riean pnrtu for convt'iiii-nce.

" On my arrival • • « • J found tlie ' Oscar and Hattid ' in
" port, liavirij; liei'ii c-iiptnrnd at (iotzlid) Harliour, a small wattT-
" inj; port on the Island of Alton, liy the ' Mohican ' on Scptfiiilifr
" lut, anil sent hcri' in char;»e of an ottic«r and pri/.i' ort'W.
" When ciiptiiri'd she liml. oo hutiiul 270 far xeid nlcins, iitken on
the coaat of Japan, and a full scidimj old fit."

Here is the conniiandi-r of the erniser sfatinjj that this ship
ha<l oti hoard 27(! fur seal Hkins taken on the coast of JH))an,
That evidence was not licfore Chief Justice He^liie and it was not
before the Supremo (.!ourt of ('ar.ada. If it had heen lieforo
Chief Justice Hi'^'hie how <lo you think he would have answered
the (piestion : }lad this seiziiifx otiicer reasonahlo cause to think
that a liieach of niddas virciidi had or had not heen committed ?
A^niin, if you refer to the report made to Captain Evans hy the
captain of the "Mohican," which was not liefore Chief • 'i tice
Heyiije, you will find eoirohorative evidence of this. Th.is report
is dated the •'Ust of Auj^iist, the very day aftei' the seizure, and
it is set out at paf,'e 1(!9 of our written argument as follows: —

' Sir, — Yesterday I si-ized the schooner 'Oscar and Hattie,' of
"Victoria, Mritish Columliia, at anchor in (.lotzh'h lliirlionr, on
'■ these j,'i'ounds : (1st) \'iolation of the Hnitud States revenue
" laws, as heinjr illc^rally in the United States ports ; (•Jiel)
" Violation "f the same law in havinj; transferred siial skins to
"ami i-eceiviny; supplies from the ' Cocpiillam ' ; (Hnl) llarlnfi
"on liDnrtl JTH ^k'nis and a cuniplete tu'dliixj outfit in ciolatlna
" of the 'iiiodnn rircndi."

I say that the whole transaction, so far as the captain n; 'lit
cruiser was concerned, shows a certain amount of want of bona
tides, It does not np))enr like a fair attempt to carry out the
VKidiiH x'ivenili. If he really thouijfht it had been broken why
were chai;;-es for breach of Revenue laws inserted ? It is sinf,'MlHr

40 that when mui come to ileal with the cases of the " lleiirictta"
and " Winiiifred," the same tiling' runs tlirou^di them all ; there
does not apfiear to have beijn on tlu; part of liu; Revenue cruisers
a full uiiiierstandiii;,' of what their proper duties were when
they made the seiziu'es umler the nioduK rircndi. Your Honors
will mark that when he comes to deal with the only real (ground
of seizure, the (ptHeer failed to appieciate what the rnudtiH viri'itili
was. Sc'iiliiiLt in Hehrini; Sea was the ciime unde the niiKhin
virctnli, but he seized for havini,' on board " 27() skins and a
complete huntinjj; out tit," in violation of the luiidat^ ciccndi, which

50 it is plain wiis not a violation of the inndan viveiuli at all.
llaviiiH- on board skins or haviini- a Innitinif outtit was never
made an oU'eiiee urnlcr the ihdiIuh vireiidi. As st't out in our
written ar^'iiiiient, your llnnois liavi; tht^ iindoubteil fact that
this vesiel was there fur the pur|)nso of obtair.lii;.' water, and for
no other pm'pose, ami that there was no seals •.viihin 200 miles
of the placi! of seizure. When yoin- Honors come to ileal with
the i|Uestion as to whether these otKcers had reasonal)!'! or pro|)er
cau»e for makiiiLj the seizures, you will, I have no dcibt, find
that the ('viilenee is a^'aiiist them, and that they well knew no

CO olhiice had been coiiimitted. The arf,'ument lor the Cnited
States further says, that althou^di this vessel had been seized by
the Ignited .States, she was handed over to (Jreat Britain, and
that the United States consei|Uenlly washed their hands of the
mutter. 'J'hey say thht Gieat Britain need not have pros^'cuted

5().'J

(Mr. pKteis' Si'conil Argument.)

tlio vpssfil if slio (lid not tiiiiii< tliero was ^^ihuI ^(rounds for
prii.st'cutiiiy lior.

T'.ie I'oniinissioner on tlio part of tim Unitt'd States : — Wlwit
was tlie ^{ronnd upon wliich the Oliinf iIiisticH condcintu'd ln-r ?

Mr. Peters: — He condeinntid iier on tiie f,'iound tliai siie was
lireakin)^ the mo'l iit vivcndi.
l(t The ('oniniissioiior on tlie part of tlie United States: — In
what particular. He did not firul that she was seaiiii;;, did he ?

Mr. Peters: — I do not know wliat he fouiwl exactly. He
came to tlie conclusion that the presumption was aj^aiiist the
vessel because she was found with a sealin;^ outfit.

The Commissioner on the part of the United States: — He
had all the facts before him.

Mr. Peters: — He had all the facts before him with the
exception >if the two letters I have read, and he ha<l not these
before him.
20 Mr. Dickinson : — Ho had the evidence before him as to
whether or not she was h'lntinj^ in the Hehrinj^ Sea. He had
the same evidence as the Supreme ('ourt afterwards had. He
had the master and the crew before him.

The ('ommissioner on the part, of tlie United States : — The
condemnation was an act of the Uritish (lovernmonl.

Mr. Dickinson; — And the liritish court of last resort found
aj^'aiiist the vessel

Mr. Peters: — I do not consider that tlie Court of Appeal
found ai,'ainst the vessel, and in an}' case tlie court of last resort
30 did not liave these reports. We contend that th(! Supreme
Court of Caimila is not the court of last resort in this case, Ijiit
that this international tribunal is the court of last resort. If
there were no reasonable M-rounds for seizirifj this ship tlie
tieiity has been broken, and this is the court of last resort for us.

.NIr. Warren: — The Supreme Court says there was a prima
t<ici<' 1,'round.

Mr. Peters : — They may have said that, but if the court bad
before it the repoit of these seizini; otKcers, I do not think they
Would have said even that. Chief Justice Begi>i(!, when he was
40 ^'iviii;; his decision in that case, lost si^'ht of the reiil point.

The Commissioner on the part of the Unitecl States: — Now,
Mr. I'eters, is the lliiited States to pay damai^es because a
Supreme Court Judj,'e at British Columbia, under proceodinj^.s
by the Crown, did not understand the law of the case >

Mr. Peters : — 'j'liat is not th(! point I submit.

Tiie Commissioner on the part of the United States : — Is not
tliat })ractically what it is? I uknui beyond the mere fact of
trespass and detention — that mifflit be another question ?

•Mr. Peters :--lf on account of the improper judj,niient of one
50 of our jud;^es there had been some extra <lelay caused, I am not
prepared to saj- that the United States would be responsible for
that. Tliat would relate to the (luaiitum (jf danm^'es and not to
the ri;,dit to recover damaf^es. We contend that the liability of
the United States to paj- dama<i;es naturally tbiwinif from their
act, was settled on the first of Aii<;ust, lcS02, when the seizure
took place. They can only justify themselves l)V what took
])li'.ce then. They cannot re.sort to an erroneous judgment of one
of our judges to take away from lliem the liability which they
had incurred before that judgment was given. The}' were either
'iO liable or not liable when the soizuie took place, and the sole
ipiestion comes down to the point, whether tliey were justified
ill making that seizure at tfie time. We say that on the very
day, and at the veiy time that the vessel was seized, wc <lid
undertake to .satisfy, and did .satisfy, the couiniander of the

':it;

i!f

);•

1'^"

I ■

504

(Mr, Peters' Secoml Aryuinent.)

cruiser tliat there was no cause for seizure. If tlie iiiiiul of tlie
seiziiifj captain reniaineii in an unsatistied .state, if he liislielieved
the statements made to iiiin, if he imagined that the 27() seal
skins, or a?iy one of tliein, were taken in IV'hritifj Sea, or tliat
the schooner {joinj.'; in tiiere for the purpose of watering was a
sham to cover tlie intention of aeaiinjj in Behrinj^ Sea ; if the

10 mind of tlie otHeer of tli(> cruiser remained in tiiat state I could
understand the court sayinjj; that he had reasonahle cause to
make the seizure. Hut the ,seizin<» captain's own report shows
that he helieved the statement of the captain of the schooner.
We have the report of his superior showing that these seal skins
were not taken in the Hehrinii; Sea, hut on the Japan coast, and
he admits that the schooner was in there for the legitimate
purpose of getting water. I just rememher one part of the
evidence, from which it appears tliat the guns were all piled
away in the vessel and not in the hoats. When all these facts

20 weie liefoie the seizing officer, and his mind was .satisfied that
there was no intent to break the motluH vivendi, I say it was
uiireasonalile and that it was wrong for him to seize the sehoon"i,
and that his government should he held responsible for his
wroiiiiful act. That is where our claim arises. We deny llu;
proposition that the American (Jovernmi'nt can make that which
WHS wrong on the 1st of August, 1S02, right by reference to the
judgment of (,'hief Justice Hegbie, who. at the time he gav(> the
judgment, had not all the fiicts before him, and seems to have
misunderstood the real question befure him, and was afterwards

30 set right by the Supreme Court.

The ( 'omnnssioner on tlie part of the United States: — Your
chiitu is for " hiss oecasioiied by the forced sale of the vessel,"
not l>y her " seiy.ure."

Mr. I'eteis : — '{'he forced sale of the vessel took jilaco before
Chief Justice j-iegbic gave his judgment, and was the direct
Coiisicjueiice of the imjuoper seizure.

T"he Commissioner on the part of the United States : — liut
the forced sale of the vessel was by order of the court in British
Columbia.

^^ Mr. I'cters : — The very moment a vessel is handed over to

the Admiralty Court she has to be sold, or ludd prisoner, or
bimils must 111' given. Thai must oecui' whether the seizure is
right or wrong, so long as there is a proper lilxd. There is no
doiilit that there wiis in this case a libel order in proper form,
and Child' ilustice Hegbii' would not enquire as to wlualier the
facts of the liliel were correct or not. The onler for the sale of
the vessel, or for security being given, would have to go as a
matter of course.

Mr. Dickinson . — May 1 ask you a (juestion ?
Mr. Peters :— Certainly.
Mr. Diekinson: — In the case bi^fore Chief Justice Pegbie in
the Su|ireme Court of Pritisli Columbia, ditl not every one of
these facts appear as stated liy the learneil counsel ? Was it not
stated by the ollieer (,f thi! United States, anil was it not con-
tended thci-Q that the skins were taken in the ilapan Seas, that
she was not going to fish in Hehring Sea, that .she was going to
fish oiitsiile (d' the Sea, and that she was in there for wat-^r ?
Mr. Peters : — That is perfectly "correct, but that does not atl'ect

GO the (|Uestion as to the state of mind of the seizing otlieer when
he seized, or his knowdedge. As I before siated, we have on this
point more evidence than the C^hief Justice had before him; we
have now somt!thing that puts the nmttcu- beyond dotibt. 'i'hat
is the statement of the officer himself, that he believed that ho

505

(Mr, Puteis' Socoml Argimieiit.)

was siitistii'd ivt tlio t.iiiu' lie iniide tlwi seiziiro tliiit tlio act was
not <loiH! in contravention of tlie .stRtutc.

Mr. Dickinson: — 'IMie seizing; otlieer was on tlie stand, and
was examined on these (juestions.

Ml'. Peters: — The seizin;,; oHicer did not d<'ny it, hut lie was

irivin<r his evidence as to what his s'ate of mind was when he

10 was ^jfivin^j; his evidence, and as a niatter of fact we have his

written statement, the day of the stMziire or r.lioi tly afterwards.

Mr. Dickinson: — Not until after the " Molponieiie " took
char;,'e.

Mr. Peters : — 1 think I can show that is not a correct state-
ment. The first seizm-e was made on the .'U)th Auj,'Ust, 1892, and
the lettei- was written liy ("aptain Johnson to ("onimander Hvans
on the Slst Au^^ust, liS!)2, which is om- day after the seizure.

Mr. Dickinson : — The lettei- j-ou read was Septeiiilier lOlh.

Mr. Peters: — I read them lioth. That letter of the Hist of
20 August is followed liy a hitter from (.lonimander Kvans dated
September lOlh, and it must he rememhereil that Commander
Evans could only ijr(..t his information from his inferior otiicer,
the Cajitain of the " Mohican ' who made the seizure. He
stated that the seals were taken on tlie Jajian coast, and when
you tak(i that in connection with the letter of the .'Ust Au^nist,
you st-e how it fits in. The coniniander of the " .Mohican" kin-w
the schooner did ii"t take any seals in the lieliriii;,' Sea, and ho
knew he could not seize the vesst I, and so he puts in as the
chari^e (No. ;},) " liavin<; seals on hoard." If that evidence had
30 been before the court of original juiisdictioii thi'i-e is no doubt
what the answer would be. It is said by my leiirned friend that
because this vessel was taken over by the Puitish aiilliorities,
that the Unite(l States fulfilled all they liad to do under the terms
of the vwditx riveiiili, and that aflerwai'ds the matter became a
(piestien between (.Jreat l^iitain and her own subject. Well, let
us see how that works out. 1'he ai^nment would assume that
Captain Parr, the l^ritish officer, to wlmm the vessel was teiid-
ere(l wou'd have a right to have lefused to prosecute, if in his
opinion iheie was no reasonable or picibable cause for seiziiie,
iO and would have the right to refuse to take charge of the ve^Sld
In other words, it assumes that win n the vessel was brought to
an otticer of Her Majesty's ship, it. was his d-ity to hold a pre-
liiiiiuMry en(|Hirv and to settle the ipiestion, in his judgment,
whether or not the seizure shoiihl have been made. We submit
that then! is no ground for arguing that proposition, and we
submit that so long as the rnited .Siati-s p"rsi-.ted in asserting
probable cause, the Ibitish (ioveriuiient had no option but to
prosecute. If the Hi'itish (lovi'Mimeiii had refused to prosecute,
the United States would have had a cause for complaint. They
50 might have said : you think there is no probable cause, but we
think there is, wi^ have tied our hands under the inodiix viucudi,
and whatever may be the result, the United States court lit
present have no jurisdiction, ami you refused to lesoi t to your
courts. Could (beat Mritain reasonably have been ex|iected to
put herself in such a false position f We contend that as a
matter of fact, when the United States e.\ercised her discretion
in seizing the ship, the (piestion as to whether it was a reasonable
or mireasonable seizure, is not one that could bi> settled liy the
Ihitish otiicer to whom she was handed over; and we further
(10 contend, that there was no other course than for (ireat Britain
to prosecute. If the original seiz\ire was improper and without
reasonable cause, the nation whose otiicer has done the wioiig
should in all fairness pay the damages. As between two nations
who make a treaty, which treaty gives the government of one

=^!i?V;i';

(I li

11 i;

506

(Mr. Peters' Second Argument.)

countr}' the rijjlit to interfere with the property of the citizens
of the other country, as i.s the case liere, when that rijjht is {riven
hj' treaty , how can tlie (jnestion, as to wiietiier these treaty
rights have I'een properly carried out by either government he
better .settled, than by a fribnnal eho,sen by the two nations
interested, and more particularly when you consider that this

10 claim was allowed to come before this tribunal, by the ilirect
special agreement of both nations.

The Commissioner on the part of the United States: — We
would be put in rather a bad predicament if we were required to
reverse the judgment of the Supreme Court of Canada.

Mr. Peters : — Your Honor makes the remark that you .should
not be called on to reverse the judgment of tlie Supreme Court of
Canada. We do not ask you to do so ; it was in our favor, and in
any case, if we could bring before ll-.is court a state of facts
different from those before the Supreme Court of (,"anada, this

20 court would have no hesitation in giving judgment according t.)
the facts, but I want to point out one thing now which perhaps
I did not biing out so clearly as I should.

The Commissioner on the part of the United States : — The
state of facts may be one tiling and the reasons given by the
seiziiig otHcer another. Hi-fore j-ou go furtlier, are there any in-
structions from the Jiriti--li government to its cruisers !
Mr. Peters : — Tlio.se instructions are in the case.
Mr. Warren : — If J'oui- Honor jilease, they are at pages 477
and 47(S of our ai'guiiii'nt.

30 Ml'. l)iekinson : — We agreed upon the instructions and they
are exhibits.

'I'lie Cniiimissioncr on the part of Her Majesty : — They are at
the fort of page l."):!4 of tin- l{ccor(l.

Mr. I'eters : — 1 would like, again, to refer you to the letter
set out in my arguiiitiit fioni Captain Johnston to ( 'omniaiKler
Evans at pages ](i!laiid 170. H' you notice, he undertakes to
seize the vessels for thice alleged crimes: — First, for breach of
the I.^nited States revenue laws; second, for having transferreil
some skins to a steamer ealK-d the " Co(piitlam,'' and it will be

40 luhiiitied that under neither of those two heads had tli(\y the
light to take that vessel and hand it over to Cajitain I'arr or any
other otiieers of Her Majesty's navy : and tliird, having on board
270 skins and a conijilete sealing outtit in violatioli of the terms
of the niddnft riirnili. What right had they to seize or luunl
over for thati eriiiie > When she was handed over, as the jiro-
ceeilings shew, she was not handed over for that at all, but she
was iiaiidiil over for having broken the moihis riri'inli. That is
the crime all(>ged against lier, but what was she really seize.l Fdi- '
She was seized fur a c inie, wiiich, if it hail been put in thatfoiiii,

no would not liii ve jiisi ilied the handing iier over, or seizure, at all.
I do not tliiiik it is necessary for me to sav anything more about
that ctise. 'I'lie e\ ideiiee on both siiles has been fully set out in
the written nr^uiiieiits.

'J'he ( 'oimiiissioiier on the jiart of the United States: — bet
me a-k you another i|uesti(]n, This is a very interesting matter,
and 1 hope i will be excnserl if j nsk some (|uestions. 'I'he Seal
Fishery Act, page '2y.\ of the exhibits, says : — " If a Hriti-^h ship
is found within i'ehiiiig S"a having on board tishing or shooting
inipleiiieiits (Ji- seal skiis, or bodies of seals, it shall be on the

(50 owner or master of such snip to prove," and so on. I'rove to
whom ?

.Mr. I'eteis : — There is just the point. If he proves it to the
seizing oltieei at the time, I s;iy his duty is perforiiied. Where
are you led to if xoiido not adopt that construction? The

507

(Mr. Peters' St'cond Arj^nitient.)

statute themselves: — "We will not require you to find a man
" itctiially comiiiittiniif an offence; we will not recjuire j'oii to
" tiiul him catchinif seals : we will not re(|uire you to see him
" actually committiii<T the crime ; hut, if, at the time of seizure,
" you find on beard that ship seal skins, or seal hodies, or arms,
"you may, if there is nothiii;T else to the contrary, seize that

10 "sliip, and that seizure will he good unless it he proved that
" those things are on hoard honestly ;" hut the point here arises,
{)rove to whom ? I say there can he no better waj' than to prove
to the seizing officer at the time of the seizure that those things
were on hoanl honestly, and not for the puipose of breaking the
mo<lu8 vivendi. Otherwise, it would he necessary untler that
statute for a United States vessel to seize any sealer who hap-
pened to be in Behring Sea with seal skins on board, although
known at the time that she was, perhaps, simply taking a short
cut across from the Japan coast to Victoria, or that stress of

20 weather drove her there. Knowing the facts, they would still
he hound to seize. Supposing the commanding officer of the
" Mohican " had .seized the " Oscar and Hattie," and the master,
on being asked where he got those seals, had refused to give
information, or had made a statement which there was some reason
to doubt, something aro.se that caused suspicion, and the captain
of the " Mohican " was not satisfii^d and seized the ship, I say he
would be perfectly justitie<l. But what was the fact here ? He
liad many other modes of information. He had the conimander'.s
log, shewing wlie"e he had been hunting. The answer to the

30 (|Uestion that your Honor puts is that if he can make it clear at
tlie time that he was not breaking the modus vivendi, that is
sufficient.

Case of the " Hkxkietta."

I will proceed to deal shortly with another case, that of the
"Henrietta"; and I will again refVr to the argument of my
Icarni'il friend on the other sicle, who very frankly admits, that
the United States were wrong in the nuunier in which they
dealt with that vessel. Tliis admission was made at page 47(),
40 where he says as follows :

" The Government of the Uniteil States is liable for the fair
"charter value of the 'Henrietta' from the (ith of September
" 1.S92, until the 2.'h(l of Noveiid)er l.S!),S, together with such losses
"as the owner actually sustained. The boats were undoubtedly
" (Inumged, legal expenses were incin-red at Sitka, and the value
" of the skins depreciated."

Also, at page 4(i.S, he perhaps ptits the admission a little more
clearly. It is a very fraid< acknowledgment, as ndght be ex-
pected from 103- leamecl friend, that in this paiticidar case,
.10 through the negli<reiit act of some of the otHcers nf the United
Stiites government, this vessel whs treated in a manner in which
she should not have lieen tn^ated. He says : —

" Thegovernmer.tof the United States admits its liability for
"the detention of the ' Henrietta' frum the (ith day of Se[)ttMu-
" ber l.Hi)2, until the 2.Srd day of Novemlier JSlt.S." '

I would lik(^ to make a short statement with referencf; to
this case. I find that the " Hei\riettn " was a vessel, built in
ISSCi ; that she was seized on Sipteudier (ith IM)2, for an idleged
bleach of the miidan rireinH of 1M!)2; that she was impropeily
DO proceeded against for another allegi^l offence :.that the pioeee'l-
iugs weri! afterwards dropped, and, after considerable delay, the
Vessel was taken buck to Victoiiii. 'I'lie vessel was aetiuilly re-
leased on the 2.'h'd November I SOU. I want to bring especially
to your Honors's attention this date, November 2Urd ISOU. Up

•;5ii

(•!

' 'l-'i: , '-11,
1

' 1

|l i.

508

(Mr. Peters' Second Argument.)

to tliat time tlie United States admit llieir liability. In tliat
. admi.ssinn they only aiimit liability for detention ol: the ship to
the 2.'{rd of Novemlier, 18!)3. Now the evidence shows that
there was an order for tlie release of that vessel, made some con-
siderable time before the 23r(i of November, 1893; that Captain
Piiickney went to Sitka for the purpose of taking charge of the

10 vessel ; that, as a matter of fact, she was not given into his cus-
tody until the 2.'5rd of November, 1893 ; that, after that time, in
order to get ready for the voyage from Sitka to Victoria, a
further very considerable delay took place, and that it wus not
until the 23rd of January, 1894, that Captain Pickney was really
able to sail with his vessel to Victoria. So, with regard to the
admission u-ade there, my learned friend could, I think, and your
Honors are entitled to go a step further. We were deprived of
the benefit of the use of that vessel, not only up to the 23rd of
Novpn;ber, 1893, when actually turned over to Captain Pinckney,

20 but until the 17th day of February 1894', when she actually ar-
rived at Victoria. That is one point I bring to your attention.
They proceed to take certain objections. If you remember,
the history of the case was, that the vessel wa.s seized on aeount
of an alleged breach of the mothtH vivevdi, but that when she
got to Sitka, instead of being tried on that charge, a prosecution
was commenced charging her with breech of some revenue laws
of the United States. You will I'emember that after the vessel
arrived at Sitka, Captain Pinckney left for Victoria ; that the
crew of the vessel also had pasMiges taken or could have got

30 [inssagcs, by the same steamer that Captain Pinkney sailed in,
but thiit the United Slates Maisiial, acting no doubt under the
insti uclions of the seizing officer, did not allow them to go down
in the steamer " Coquitlam " that hap[)ened to be there the ne.xt
day ; iiut, whilst the " Coiiuiihim " was at Sitka, they imprisoneil,
or kept their liberty from, the crew, so that they would be tle-
■ taiiieil in .Sitka, they wanting them there for the purpose of get-
ting their eviilence for the prosecution then being commenced
against the " Henrietta ". Then Ca|)tain Pinckney went to Vic-
tr.ri'i. He stayed there for some considerable time and returned

40 to Sitka in July and came back to Victoria afterwards in charge
of the vessel. My learned friends admit, t)f course that the ex-
penses of Captaiir Pinckney irrcurred ingoing from Sitka to Vic-
toria are prfiper; but they say that we make a chai'ge that Cap-
tain I'iiK'kney was entitlecl to remuneration for the tinte he was
idle at Victoria. They say : " You are not entitled to that," and
that is the tirst ([uestion that comes up. Tire first objection
taken is that there is soirre 8(ifl0 charged for the master for e.x-
penses at Vi' toria. All we have to say with reference to that is
(..'aptiiin Pincktrev was there, erirplo3-e<l as nrastor of this vessel,

50 and we contend that he had a right — he was interrupted irr the
comse of his voyage — to some reasonalile reirruneratiofi for tire
tinre that, he lost, while waitirrg to get his ship back agairr.
The airrount of that remirneration is f(.i- j-our Honors to detei-
iirirre. We say that the surr> of i?(i()0, under the evidence
given, is not excessive. Wt; do subnrit that we are entitled to a
reasonable suirr utrder that head, and that it matters trot whether
he stayed at Sitka, or whether he went down to Victoria, but
that he is entitled to it nevertheless.

The Conrmissioner on the part of the United States : — What

GO is the itetir of !?700 on the next page ?

Mr. I'eteis : — There are two charges mad«, one is charged for
the tinre he was conrpelled to waste as he says at Victoria. He
went back at the re(|uest of the Lnitod States CJovernment, sup-
positrg the ship was going to be released, to take cliarge of her.

.509

(Mr. Peters' Second Argument.)

The Commissioner on tlie part of the United SMatts : — Then
that should he, instead of " expenses at Victoria, SGOO "; " loss ot
time," shouM it not ?

Mr. Peters: — Loss of time and expenses hotli. He says he
wns put to a considerahie portion of that expense. In order tliat
you may fully understand, it is just as well to look at the

10 history of the thing as it occurred. In the Hist place, the vessel
was seized in September 1S()2 ; tlie captain then came to
Victoria; he stayed there a certain time while negotiations wero
talcing place between the two governments. Tiie result of those
negotiations was that the vessel was orcleied to be released ;and
if you remember, a sort of option was given to the British
Government whether the United States would hand tiie vessel
over to the master of the ship, or whether they would send her
down to Victoria, to be chargeil under the moditu vivendi. That
option was given, and it appears to have been accepted in favor

20 of handing her over to the master. The master, then, for the
purpose of taking charge of his ship, again went to Sitka. He
got there in July, I think it was, and when he got there,
although the correspondence sliewed that the vessel wks to be
immediately handed over to him, she was not handed over until
November, and he did not get away until February. The next
item that we charge is loss of time waiting delivery of ve.ssel, at
$100 per month, S700 ; that is for tiie time he was idle — not
idle exactly, but while he was detained at Sitka trying to get
delivery of the vessel, which the United States had agreed to

30 deliver, and did not deliver. That is, his wages were put at the
amount a man like Captain Pinckney would bo entitled to receive
and in addition there was charged the sum of !?14S, which he
swears he paid out in expenses, and which is really not attacked
by my friend. This is the way my learneil friend deals with
this matter. He say,s; — "The master of tha vessel left for
Victoria two days after his arrival at Sitka, that it cost him
about $50, to go down. About a dollar or two would cover my
expenses at Sitka before leaving for Victoria." I do not think
there is any serious objection taken to that .SoO, that is charged

40 here. Then he says he remained in Victoria until Julj' 18'J8,
this is taken from the argument of my learned frietid, " When
he returned to Sitka," and the S7()() was a charge for his time
from July, 1893, when he arrived at Sitka, until Feliruary, 1S!)4,
when he was enabled to get away from Sitka, which time was
entirely taken up and wasted on account of his having to wait
for the vessel, and that is the reason we charge the 8700. Then
my learned friend goes on, at the bottom of page 4()9 : —

"Captain Pinckney testified that the cost of returning to
"Sitka from Victoria was SoO, and that he incurreil $14fi for

50 " personal expenses at Sitka before leaving with the ' Henriet'.,a'
" for Victoria "

There may be some question about the different items, liut, if
you follow out the history of the vessel, you will see how these
charges we have made here come in quite easily. I will speak
of the depreciation of the vessel in a moment. Take the item
of three boats destioj'ed, $255. There is no objection to that.
The boats were good when they were taken, and ruined by
worms when we got them back. Then it goes on items in
Exhibit A, page 108, $913. There is an objection rai.sed to some of

60 those articles. My learned friend says with reference to the $913,
that it includes the item for boats, and that that part of it is a
double charge. I have looked into this matter, and it appears to
me that my learned friend may be correct and it is charged twice
over; but my as.sociate, Mr. Beiciue, says there may be some

1.') •

1*'

f ••'

fh:

510

^Mi'. Peters' Hecontl Argument.)

diiulit about tlifit, and I will nmko sure of it before tlie next
sitting. My learned friend savs, further on, in regard to this
item, on exnniinii g the exhibits referred to, tliiit almost every
nrtiele, except ])rovisi()ns, wci'e articles undoubtedly returned in
the vessel. On this point, if your Honors will refer to the (jvi-
dence. Record, page I(i(i.">, line ."jS, and pane KiOS. line 10, and

10 also to Kxbibit fS, you will Hnd it is nnvde up on this prineii)li' ;
in the tir.st place, all the articles on board the ship at the time
Klie was seized, are stated; in the second place credit is given for
all articles returneil when the vessel was returned, aucl that
gives a net balance of !*i)Kt.(iO: so, as a matter of fact, that
amount is right with the exception of this (|uestion of boats,
which, as I have said, I think is charged twice.

If you refer to that exhibit, page iS2, you will see the theory
on which it is nuide up. The inventory- is headed; " Inventory
"of stores left on boaid schooner ' Henrietta ' after seiznn^ in

20 •' September, 1(SI»2 ;" the list is given, anil at the bottom is creditecl
the things returned, at so mnch. I think I am right in say ing that
my leiiriied frienil is inMceurate when he makes tlu^ statenier.t
that the. •?!»!;! inclndes a large mnuber of articles which must
have been retnrne<l at the time the vessel was retuined. We
have given credit for everything that was returned in this very
voucher.

At one o'clock the Conimissioners took recess.

At half-past two o'clock the Connnissiijners resumed their
seats.

Ml'. Peters : — During recess I have looked cand'ully to ascer-
tain if these boats were charged twice or not, and I find that as
a matter of fact they have been charged twice, so that we will
hav(^ to stiike oti that amount from that item, or a similar
amount from the next item. Of corirse the repetition of this
clmrue was entirely unnitentional.

40 The next, item that my learned friend takes objection to is

the first item ehaigeil in the list — that is "depreciation in the
value of the vessel. ?20()().0()." In support of my learneil
friend's attack, he cites in his arLiiuiient the evidence given liy
Cajitiiin I'inckney who, I must say, stated that a consideiidily
snuiller amount wmdd have been suHieient to lepair the vessel.
That eviilence, however. nni>t tie taken in coiniection with all
the evidence we have before us. He puts it at 8-00.00 as a
sufficient sum to put the vesstd in a state of satisfactory re])aii'.
It will be within tfie menioiy of the t'omnnssioners that when

50 the captain of the vessel mulerlook to take the vessel from Sitka
to Victoria he put temriorary repairs on the vessel just suflicient
to bring her down to Victoria. Now, in oriler t.) show that this
witness I'inckney nnist have heen speaking of temporary repairs,
or something of that <lescription, I will refer you to the evidence
as to the value of the vessel liefore she was seized, which
evidence is given by .Mr. Tiirpell, who describes the vessel as
beintr worth 8+000. She was a vi'ssid of some ',]'! tons. The
next fact shown is that Mr. Spring owned five-eighths, or a little
more, of the vessel, tbt^ other partner being a man named Fell,

60 and Spring's interest in the vessel after ,sho came back sold for
SIOOO, which shows that she must have been in a dehipidated
condition. It is triu- that she was sold under execution, but at
the same time it was at Victoria where you woidd naturally
expect that a reasonable pi ice would be obtained. We also refer

511

(Mr. Peters' Secoivl Atfrnment.)

to the oviilence of Fell, who was tliR othor partner, which
evidence is set onfc in our arijiinient at j)aL;e lot). Wn ilescrilieil
tlie condition of the vessel wlien .she canu- liaok :--

" She was in an nnsi'awortliy condition," he said, " she was
" just what you nii>;ht call a pateli up to i;et her down (to Victoria)
" and no more; everytliing was worn out.

10 " Q. Wliat was worn out especially ? A. Well, her sails
" and ropes, and they told nie thej' liad to borrow ropos from
" the cutler to get lier down with; she haii no paint on lier. I
" cannot say anythitifj aViout the worms, i)ui, she was leakiiiLT
" very badly. I had to pump her out every morninir. I
" neijh'cted it one Sunday and she was teiribly by the head; in
" about another 24 hours she would have sunk. Aliout two or
" three days after I saw her, I (jot ii party to j,'o down and look
" at her.

Here is a piece of evidence to wliich I wish to draw parti-

20 cnlar attention : —

" He wanted iier for immediate use, and I asked him a piice ;
'■ lie said to |)Ut her in seaworthy condition at once wouhl cost
" a jfri'at deal ukjic than she was worth, and he would have
'• nothing to do with her. The price nskcd was ^sl.TOo"

Now this is the price the owner of the ship was asking for
her ill Match, 1>H!)4., which is after she had come back. You
have the evidence that before she went out slie was wortli 84000,
and you have also the evidence that the owni'r, who naturally
desired to get a go.id price, was asking only !<loOO. The price

;iO that he asked was refused, so that notwithstanding the conten-
tion in rt!gard to Pinekiiey's evideiiee, it seems that he must
have lieen thinking of temporary repairs. Besides that, although
Pinckney nuiy have been a veiy good captain, and may have
understood sailing a ship, there is absolutely no evidence to show
that lie would be competent to give an opinion as to what the est
would be to put the vessel in repair. In addition to that and
in respect to all the vessels, it is umlonbtedly a fact that it costs
every year a certain amount to jmt these vessids in rt'pair, and
W(> have this vessel seized in Sejitember, bSD'J, and remaining

411 without repairs until March, lfS!)4, and in the natural course of
events, a sum of money far more than the amount mentioned
by Pincktiey must have been necessary to put the vessel in a
reasonable state of repair. So that when you examine the
evidence you will spe that when we ask for S2000 00 we are not
asking too much after taking into consideration the time tlie
vessel was kept from us. You cannot take the eviijeiice of
Pinckney only, but you must look at the other evidence in this
case, and the evidence in the other cases, and what we all know
Would be the circumstances in such cases. Now, my learned

")() friend follows on with his argument, and at page 47.'1 he comes
to this point : —

"The demands of this claimant are so grossly exhorbitant, so
"absolutely without foundation in the llecord, and so unusual
" that a detailed discussion of each item is unnecessary."

In regard to that statement I might quote the words of an
authority cited in another connection before this Tribunal, " that
is elo(iuence but I do not think it is precision."

" The High Commissioners, ui>on inspecting the sche<lule,
" will find tliat the illustration of tlie double charge for the boat.s

CO " practically represents tiie method in which the entire schedule
" is made up' Two items for legal expenses, as follows, are con-
" taineil in the schedule: 'Legal expenses at Sitka, S112..")0;'
" ' Bel^'ea's bill re proceedings at Sitka, $11.'}.()0.' I do not know
" whether my friend means to suggest that these are duplicate

III

'!ti

■!i:

I'i

IfFffw

J 1

512

(Mr. Peters' Second Arjjuiiient.)

" cliarfjes. I do not tliink he does becnuso he states that ' these
" items are supported hy tlie Record.'"

Mr. Warren : — Tliey are separated and di.stinguished from all
the others,

Mr. Peters : — There is no intention then to say that these are
oveicharf^es. Then, as to the item " Belyea's bill," my learned
10 friend sets out the evidence by which it appears that there was
an absolute uj,'reement that Belyea should be paid that amount.
I fail to see why it should be objected to. There is an objection
made to the clmr<j;e of Charles Spring for personal expenses).
Whaf. I have said with regard to the claim for personal expenses
in other cases applies to this.

The next item referrerl to is as follows : —

" The item, ' 105 skins solil at Sitka, S15.00 a skin,' does not
" take into considerution the fact that the captain testifies that he
" obtained 8525. lo for these skins at Sitka ; nor the fact that in
" the Argument, page So, line 50, the statement is made, 'in
" LSf)2 skins were worth SU.OO.' "

I put aside the last statement as already argued, and as to
the first statement in regard to the fact that that $525 had been
realized upon the pledge of these skins, I say that if that were
so it must be remembered that it was all spent in getting new
sails for and making temporary repairs on the schooner, which
were not charged for, and therefore my learned friend has no
right to take that item into consideration. I do not think it is
necessary to go through all the items mentioned in these cases,
Jf the history of the case is followed you will find that they are
simply items that must have arisen out of the history of the
case. There is a large number of charges made for the time the
men were detained there, their wages. As I have pointed out,
these men were kepi against their will for the purpose of giving
evidence, and it was shown that they could not get back before
a certain time, and we charired their wages and their livin''
expenses at a rate proved by the United States to be reasonable.
We charged SIO.OO a month per man for living expenses, which
it is shown in the evidence would be a proper charge under this
item. I think that when you follow the history of the case, the
way the sliip was seized, anil the way the men were detained,
and if you examine these items one by one it will appear that
each one of these items arises out of the fact that the ship was
seized and the men detained. We do not wish to make any
exhorbitant claim, but, under the evidence, I am justified in
denying the statement made by the learned counsel, that these
claims are of such an exhorbitant nature as to call for no com-
ment from him.

Having made these remarks with reference to this case, I
5^ shall leave it with my learned friends to follow with other cases.

MR. BEIQUE'S ORAL ARGUMENT ON SPECIAL CASES.

The "Favol'ritk" Claim No. 4, ]8«G.

Mr. Beique : — I have been entrusted with the tluty of review-
ing some eight cases ; I will confine inyseit' merely to supple-

10 nienting the BritLsh Argument in relation to these cases.

The first case which I will take up is the "Favourite," claim
No. 4, for 188(j. It is to lie found on page lOG of the British
Argument and page 'Mid of the United States Argument.

She is admitted to have been warned in Behring Sea on
August 2nd. We claim for prospective catch, for proportion of
Captain Warren's expens^es at Ottawa, for Belytii's bill, and for the
time and expenses of the owner. The claim was objected to on
the ground that the vessel continued its sealing operations for
the balance of the season. Three books have been put in evidence

0() in this case — the first one is Exhibit No. 7(3, Great Britain, some-
times referred to as No. 12 for identification ; it is a sealing book
kept by Captain McLean on board the vessel from the time f-ho
vessel left Victoria in February to the 81st July. The vessel
went on a coast trip, returned in may to Victoria when she left
41!) skins and started for Behring Sea. In this book Captain
McLean entered from day to day the po.sition of the vessel and
the daily catch. The next book is Exhibit No. 75, threat Britain,
referred to as No. 11, for identification. Jt is al.so a sealing book
kept by Captain McLean, being a continuation of the first one,

;{() commencing on the 1st of August. The third book is what is
known as the Sealing Book of Captain McLean, his book con-
taining general information on sealing. This book is Hied as
Exhibit No. 9, of the C^nited States, merely in connection with
page .") of the book, where the catch in Behring Sea is to be found
amounting to 22o(). In regard to the catch of the " Favourite "
I desire to call your attention to the daily catch in .luiy, from
Exhibit No. 7G. It appears that on the 0th of June, before
entering Behring Sea, there were 17 seals taken, and on the 10th
there were ;i, making 20 in all. The vessel entered I]ehring ,Sea

40 on the 8th Jul}' and commenced sealing on the Dth. In July the
catches were as follows :— Jul v !)tb. 11 ; 10th, 16 ; 11th, 7n : 'l2th,
li:5: i;kh, 10(1: 14th, 17:?; 15th, i:W : IGtb, 24; 17th, 47: I8th,
i:i'J; 20th, 11:5; 21st, 124: 22ml, 48 : 24th, !)2 : 25th, 31 : 28tb,
IG; 2<)th, 154; ;}Oth, Hi): Sl.st, lOG. In all, from the 9;,h of
July to the JVlst, inclusive, 1()44. These figures are taken from
Exhibit No. 7G, and are admitteil, I believe, by the other side.

Then we find on reference to page 5 of Exhibit 9 of the
United States, that in August there were taken on the 1st
Aug., 128; 2nd, 118; :kd, 142 ; lOth, 125 ; I'Jtli, in the pass

.')() returning, G2. This gives 575 taken in August and 1,G44 in
July, or a total of 2,21G, which with the 20 taken on the 9th
and lOth of June would make a total of 2,239. There is there-
fore u deficit of 20 unaccounted for, as it is claimetl in the
United States brief that the total catch amounted to 2,259.

It is claimed, on page 3G9 (;t the American brief, at the
bottom of the page, that the cateh throughout the entire sealing
season was2259of skins, ()75 whereof were taken after the warning.
This is evidently an error because from the figures given the whole
i|nantity taken in August was 575, from which the skins taken

(io on tiio lat of August, 128, have to be deducted. The 118 taken
on August 2nd nuij' possibly be considered as having been taken
after the warning, because, I believe, it is in evidence that the
warning took place at two o'clock in the morning. Now, if your
Honors refer to the two charts to which Mr. Bodwell called

t;'-

1'^

'■!

(-■■■

u ^

i' I!

- t:,ll- ■

v!'

t:jlilTjTit-a-'t"

,,.r

-^Kom

'^^

!iU

(Mr. Bei(;ue's Oral Arjjuinent on Special Cases.)

attention during liis arj,'uuient, you will .see that tho vossol I'tdiii
the timo that Hhc eiiteri'd Hehring Soa until the '\n\ of August,
remained practically on the sanie ground and that after the .'trd
of August .she covered a very large territory. At that time tlu'
vessel had not only its own catch, but had also ")07 skins whieli
had lieen transferreil from the ' Onward,' so that she had reallv
IQ some 2,800, and McLean being aware, as he was, not only that
the vessel was warned against scaling in Behring Sea, but that
the ' Onward ' the ' Thornton ' and the ' Carolena ' had been
seized, it would not be crediting him with common sense if he
had not tried to avoid being seized.

This was undoubtedly the reason why he left, on the nigiit
of the .'ird of August, a sealing ground which had prcjved to be
so profitable and covered the large territoiy shown by this chait.
Now it is attempted on the other side to satisfy us with the
catches of the lOtli and lf)th of August, amounting in all to 1H7,
20 for practicnily the month of August, when tho vessel with her
crew of si.\ white men and twenty Indians, ten canoes and one
large stern boat, had taken 1()44 .skins from the !)th July to the
iHst July, and bad taken in the tbieo (irst days of August .'iMS
more, in all 2,();J'2. Now, are we to be satisfied with 187 seals
nu)re ? It seems to \\\c that it is unreasonable to take that
position ; it is (|uite evident, from the Kecord and from ailuiis-
sioiis made by Mcliuan and the evidence of Spring, to which I
will refer, that we are entitled to a much larger catch. It will
be suthcient, however, for me to call attention to the fact that
;}() McLean admitted, us wns proved by Spring, that there was nn
understanding l)etween them, when be left, that he was to
remain in the sea as late as possible: there was no reason for
his leaving e.\cept the warning : he had provisions to remain up
to the 1st of September, and no reason can be assigned for his
leaving soone-r except the warning and the seizure of other
vessels. Captain McF.,ean was on the best sealing ground when
he was warned, lie took IIS skins on the 2nd and 142 on the
3rd, luit he was no doulit afraiil of being seized, and he navi-
gated from that j)lace for the pm'pose of avoiding cutters. No
40 other explanation can be found from bis po-sitions as appearing
in tho lo^'.

Mr. Warren : — Will we be furnished with copies of these
charts ?

Mr. I)ei(|ue :— Yes, they are being prepared; you will have
them to-day. They are made' from the log.

Now, as to the charges for proportion of Captain Warren's

expenses, Helyea's bill, and the time and expens(^s of the owner,

tiiey rest on the general evidenci: referred to in the cases of the

" Carolena " and the " Onward." i do not think it necessarj' to

50 ad<l anything in connection with this case.

Friday afternoon, Sept. 10th, 3.30.

TiiK " I5f,ACK Di.\.\u)M)" Claim No. o, IScSti.

Mr. l>ei(|ue: — The next case is the "Black Diamond," claim
No. 5, liSSG. It will be found in Great Britain's Argument, page
lOS, and in the United States Argument, page 37").

The first ground of objection taken is that this o'n.im does not
fall within the scope of the Convention. I have already covered
that point, and I have no intention of repeating what I said in
that connection. However, I shall call your Honors' attention
to the memorandum which accompanied the letter of Sir Julian
Pauncefote to Mr. (iresham, printed on page 2G and 27 of the
Record. I think I did not call attention to that in my previous

81S

(Mr. Bei(|Uc'H Oral Argument on Special Cases.)

arf^unient. Vour Honors will also Hn<l on page 1808 of tlio
Record the comproiniso lietween the parties in connection with
this case.

5Ir. Dickinson : — Thecorrpspondenct.' you just referred to wa.s
in connection with that compromise.

.Mr. Hi'i(|ue : — It was in connection witii the presenting of tlie
|(i claiiii of till' " Ulnek Diamond," and stating tiie reason wliy the
iliiim had not been presented before.

Now, as to the facts, the case rests mainly on the evidence of
Ciii>tuin I'lixton, ll(!cord pay;e 17.")(i, and of Owen Thomas, pages
17fi(i and 17+4. The grounds of dcfenci; are s\nnmed n|) in the
.Vmerican Arginiicnt on page '.iHO, as follows ; — Tirst, " I'hat the
■ 'HIack Diamond' was not seized f)r warn 1 in 1880 by a United
" States revenue cutter, as found with reference to tiie vos-iels
" nameil in Annex C a])pended to the award of the Tribunal at
" Paris." This ground,! believe, is covered by the argument I offered
•)(-) on the (|Uestit)U of the scope of the Convention. Second, "That
" no warning was given this vessel by any person acting with
"authority on behalf of the I'nited States."

We claim that there was a warniuLr. That the warning was
given by the collector of ('ustoms at Ounalaska on the Hrst of
.luly, the evidence is referred to in our brief.

The ])ropi)sition asserted! here is that the Collector of Customs
in OiMiaiaska had no aiithoi'ity from the Cnited States to give
warning. It seems to uu' that he had authority ; he was siip-
))i)seil to have authority fioni the position he occupied ; when it
;',(i is in evidt'uce that th(^ United Stiitrs (Juvernment had decided
to seize all vcsseds found sealing in l^ehring Sea. and when they
had given writti'n instructions to the en* crs of the United
States to seize all vessels sealing in Hehriog Sea, it was not
iieci'ssary for us to wait for seizure, or even for warning. It
seems to me it renders the evidtuice of warning n)uch more easy
than it would otherwise be. TIh; vessel, notwithstanding iho
wnvniug, entered Mehring Ssa and continued sealing for some
time, but afterwards hearing from the ' \'anderbilt ' that vessels
had been seized, she decided to leave Bohring .Sea, and did leave
■l-O for till' Pass immediately. He was not ()l)liged to wait for seiz-
ure, and this ground of defence sot up l)y the United States
ought not to hoiil.

The third ground is that the vessel lemained in Behring Sea
until the lOtli or l.')thof August, when she sailoil with her cargo
of seal skins {ov N'ictoria. The evidence is that the captain
received information on the -tth of August that vessels had been
seized, and after consulting with his mate, tiiey both decided
to make for the Pass. The vessel was not a very large vessel,
iiud meeting with bad weather, it took them initil some time
."() iiliout the 12th or 14th of August before the}* could actually
le.ive the .Sea, but they did not seal after th 4lh of August.

The next ground of defence is that " Had the vessel not left
lli'liring Sea, she woidd have terminated her voyage between
tiie 20th and 2.^th August." This has been coveretl by the
general argument made by Mr. Bod well.

The remaining ground is in connection with the position of
.VIexander Frank, his citizenship, and his interest in the venture
of the vessel. I have <lealt with this point in my general
argument.
(Ill .Mr. Warren : — Pardon me, Vmt you said that the answer to
the proposition that hail the vessel not left Behring Sea she
\v(julil have terminated her voyage between the 20th and 2.5th
uf Aus»ust, was made by .Mr. l:5;)dwell. Might I ask, about to
what time you claim the voyage would have? extended f'

ii:
11

m ■) 1'

i*-'

\'\i

616

(Mr. Hei(|Uo's Oral Argument on Special CaseN.)

Mr. Beiijue :
line 48.

-About tlio end of August : HocurJ, page 1757,

The "Ai.kukd Adams" Clai.m No. 8, (I8>s7.)

The ne.xt case is the " Alfred Adams, " claim No. H, It wan
tiiki'n up in the Itritish Argument iit page IKi, and in tlic

10 United Stales Argument at page 392. On reference to tlu!
Record, page 1M()2, line 2i>, your Honorn wUl find an admission
that the vessel had outfitted for the usual Hehring Sea voyage,
and on the same page, line •'>.'>, that she had ten canoes and on*-
Htern boat. We claim in connection with this vessel l.'}8(j .«kins,
and the American brief allows (jnly 1382. There is evichinci'
that there was a dispute between the captain of the revcniio
cutter anil the master of the vessel n.s to the number of skin«.
The moster of the vessel claimed that there was an error in
counting the skins ; that there wore really l.SSO ; anil the vcr-

20 t*ion of the master is corroborated by three of the men. On
referring to the atlidavits of Peterson an<l of two other mendjeis
of the crew, your Honors will find that they corroborate tin.'
mastei' entirely. The Rtli<lavit of VViiliam Dyer is at page IHHI).
and that of the other members of the crew on pngn 1:{()1.
There is a special mention made in the atlidavits of the dispute
between the master of the vesstd and the captain of the cutter.
I find it stated in tiio American bi ief, page ;{!)2 : —
" There is no evidence in the record that the ' Alfred Adams '
"continued her .sealing voyage after being seized, but her captain

30 "stated in the atlidavit, read into the Record, that ho refused to
"obey the instructions of the boarding otiieer of the ' Hush' to
" proceed to Sitka, iiiul insleatl started for Victoria, arriving at
" that port on the 31st of AulmisI,"

It is in evidence, and undisputed, that the spears and guns
were seized, and therefore there was no object in reuniining in
Hehrins' Sen, and thev could not have continued sealing. Tlie
balance of the defence bears on tlie question of American citizen-
ship, and the pretended interest Fraidc had in this vessel ; I need
not repeat what I said in my general argument on that point.

40 I do not think it is neces-^ary for nie to refer to the items of claim
in this case : they are not disputed. The only items objected to
are the lei.'al and pei'sonal expenses, which are covered b}' the
general evidence. I must, howijver, call your Honors attention
to the fact that we claim in this ease for one Winchester ritlc ;
this is a niistake, we are allowed for three in the Americen brief,
wliicli makes a ilitference of seventy dollars.

Till': " r.i.ACK Diamond ' ( "i.ai.m No. 1.") an'd tiii: " hii.v " t'r.AiM

No. U), (ISSIt.)

50 Tile lu'.xl case is the " Black Diamond" claim, No. 15, bSM).
It was taken up in the British Argument, page 137, and in the
United States Argument, ])nge 423. This case, and that of the
" Lily," were dealt with under the same head or in the .•■aiiie
chapter in the .Vmerican brief.

The " Black Diamond " entered Bohring Sea on the (ith of
July, and ciinnicneed sealing on the 10th, when she took 7(i seals,
and was seized on the lltb of July, when she had taken .j") more,
and was in expectation of taking a large number on that very
date. The seizure of this ves.sel i.s aggravated by the fact that

(JO as appears from the report in the evidence at Sitka, the com-
mander of the cutter made preparations to tire upon the schooner,
antl that be ordered the locker to bo broken for the purpose of
removing the papers. The vessel was put in charge of the seamen
of the " Rush," and ordered to proceed to Sitka, but instead,

•21)

517

(Mr. Bei(iue's Oral Ar^juinent on Special C'lises.)

proceeded to Victoria. I am not awaro that there were any
special uxceplloiH taken to the items uf chiiiiiH. The main
defence as t(j thiiso two vessels rests on the citizenship of Alex-
ander Frank. The C(jntention amounts to this : (hat althoiifjh
we hiivo proved hy the re;^ister of l>c)th vessels that ot» the 10th
of November, IcSH.S, they .were sold to Morris Moss, the allidavits
of Frank, taken in lHH7,are to he nseil for the purpose of showinjj
that he, Frank, was the owntrr of the vessels in IHS,9 when the
stMZurtM took place. They pretend that the evidence of i'Vank
is not to liii lielieved, I am not aware that there is anythin^j to
discredit Frank ; lint whether he is to lie believed or not, we do
not rent our claims in either of these cases on his evidence at all ;
we rest on the title as appears from the rej,'ister. We claim that
I'" rank was n )t the owner in liS87, Imt even if he was, and if he
e()ntinu(.'d to he the owner up to November iOtli, IMHS, it does not
follow that ert'ect is not to be jjiven to the two bills of sale of iho
lOth of November, IHHH. On pajje 2!) of our reply that point is
discussed. The re^'ister of the " Black Diamond "will be found
ill tlie (::;!)i!)iti, piye .'17(), ami of the " Lily," orif^inally known
as " Alfred Adams," on p:i;{e 1!)7, and the new rejjister for the
" Lily," on paj^e ;-!84 of Appendix B. It is pretended that the
bills of sale have not been put in cviilence, I am not sure
whether the bills of sale are in or not. I have looked in the
Hfcord, and failed to Hnd them. But they are not re(|uired, the
re;{ister is conclusive evidence on that point. Under the British
law, and, I daresay, under the American law, no change of retjistry
ciui be made before the bill of sale supported by aftid'ivit is pro-
dueeil.

The fact that the ves.scls were sold to Morris Moss is confirmed
by the evidence of Frank taken in Victoria on the last day of
tlu! sittinji of the Commission, and to which there was no
objection.

It is stated in the American Arifument that Frank really
purchased the estate of Jacob (iutnuin, and therefore accjuired
llie ]iroperty in these ve.ssels. That is adnntted to a certain
extent. There is evidence that he bouj;ht previous to the JSth
of November, LS8.S, the whole estat(!. He had a rii;lit to buy
the whole estate, but as he had no rijjht to own Bi'itish vessels,
he eoulil not have them roj^istered in his name. He bouy;ht the
estate for pur[)a.se of licpiidation, and made provision to dis-
p(jKe of it as fast as possible, he arranjjed for the disposal of the
vessels to Morris Moss. '!"h(> bill of sale was, mad(! over by the
executors of the estate of (iutnuui to ilorris JIuss, on the <Sth
of Novendjer, 1888, for the two vessels.

TiiK "Pathkisdkk" Cl.Al.M No. 21, (1800.)

;,Q A", to the " Patbtinder " claim, No. 21, 1S!)(), diseussed in the
iifitish Ari^ument pa<;e 1 04, and in the United .States Arjfinnent
pi;;e 4()2, and in the British Reply pajje ',U, your llomirs will
see, on rel'errin;^ to tlu> United States brief, that the defence is
on its own face utterly unfoundcil. In the lii'st para;^raj)h it is
.ille^ed, " That the seizure was made on the ijround that the
"vessel had been .seized in Behrinjj Sea in the year 188!t for
" violation of the municipal laws of the United States, and
" instructed to proceed to .Sitka, there to be surrendered to the

■ .luthorities ; and that slu; bad, contrary to instructions, jriven
Co " lier captain by the ollicer of the United States cutter ' Hush,'

■ refused to surrender to the jurisdiction of the Uourt of the
" United States in the territory of Alaska, but, instead, proceeded
" N'ietoria," Here is a positive .statement that the <fround of
K-izure was because the vessel had disreifarded instructions iriven

1 1.1

' I

lit

;i^i;
ir

'I ;

IJ,

I
J:

> in

(Mr. Bi'i(Hic's Oral Argnmt'iit f)n Spocial Caios.)

liei- tlio year Iv.'foiv, iii isS!), 1 1 prD.roi'il t;i Sil.ka fur t'lc purposi-
of l)oiii!f coiidi'iniii' 1 in tho eotirts of Alaska. On pat^o 4()."'), it is
furtlior alloi;t'il 'that tlw voss(}l wassoizcil within tli»^ jiirisiiicti

)F tliL^ Uiiitt'il Stat(!s; tint the sclioDii^'r havin<r b

I'en iDrciM

1 iiiti

Xivili B'lV (wliero thi> si'i/.nrc tituk placi') uikKt distress, she hal

tln> rijrht to (lop.irt \vitli')iit interforonco, hut that it \va> iiioiiiu-

10 biMit lip )n h M- owiiiT to claim that |)rivil(\<jL', which he failed to

do.

And on these fa'-ts, tlvy say no (hiina;;es can be awai'.led.
One would hardly expect that at this sta^v of the eout

ro-

vi'i'sv, the [''nite 1 States would still claim the riirlii to eil'ii t,

li.'hriM'j Sea foi' alleLi'ed violatini

seizures of Mritish vessi
t iieir muuicip il laws.

if I miy h" p'rmittel tii assum ■ that tliev had n(
I'lirht, it would .se 'Ui to follow loii'ieallx' that in disoUevii

o\v loLi'ieally tliar ui (lisoOeyiiiy uk

d to Sitka for the pur|)osi' di lii-in;^

"20 tried, iind no iloubt coudemiieij and declared fori'^'ited to th'

nisti'uetioiis ijiven to pr

benetit of the Ignited States, the vessel cuuniiitie 1

no uiifUci

I th.it thei'efore this

llleirei oltelice col

uld hardiv iustifs' tl

new siMZUre, wli'

inide within the jurisilietion of the Unitid
ler had entered Ne;di r.iv

States or not, and whether the scdux
under (listro^s or for inerciintili' ])iirposes.

Mr. Dickinson: — Voii are aware that the " I'atliHnder" case
is treated in anotlier part of our brief, page !")() of the ITnited
States Arguini'ut.

Mr. I'l'ters:— On the ijuestion of catch more than anything

:iO el!-

Mr. 1)

icKuisDu :

page i.")l! there is C(

HisideiMlili

atti'iition given ti> the whole question, and I did not kriw hut
that you might have omitted to observe it.

^fr. I.Jeiipie :— There is a. reference made to that case at page
l.")(i of the .Viiiei-ie.in l)rier, but the eontenti-.!!; ret" "v. t!;" same
assumption —an Mttem])t is mnde to defei]<l the' second seizure.

n tlu' first si'izur(> wl

ucii waii iii(>iiai

Till- -WiNin!!;!"" ('1..MM \<>. -24. (lsn-2,)

1.0

The iK'xt C'lse is that of tl

iiniifrecl" (('lain

■24 ( lMt"2) liiitisli .Argiiinent, page 172 : I'liited Stati-s .Argument
''.'A and 4S4). Atp'ige IT);} of the .\meriean Argument the claim
isobjected to on two grounds : 1st. That C.iptain I'arr, as captain
of a British warship, consented to the in'ocediircf adopted liy the
(■nitecl S^.it.es. and that hisnetion was liindingon (Jreat lirit.iin,
;uii| e-tii|i-. I he latter frcHii now ]iresenting t\n^

claim, zm!

That the uwu'-r of the ship h.ad im recourse against the United
States until he had availed him^i'lf of rvery right of appeal
."lit which the law- of the United Stales atlordiMl him, ami that, it is
nut Mpcn t ' ihi^ ( 'ommissiiin to revise thc^ ainimi of the .Vlaska
coin! .

d'lii' lir-t prnjiiisitiiMi is attempted to be sUp|lort<'d by a

citathin Ir^oii

ilali. on i uteiaiatiomil law, section (i"i. ( )n refer-
tiuu t'l") it will lie founil that the (piestion discussed is
as to whethi'i' a < lovernnii'iit will not imair liability for illeuul

■nee Id -'ei

acts of their otlieers -we will sav iia\'al oliieer

.Mv atti'iition

is called to the following jiortioii of section 0") : —

" its administrative ntlieials and its naval and military t:om-
(iO ■■ mand.rs nv eiv^a^'ed in carrying cmt the policy and the
" liartiiailar mdirs of the tiovernmeiit, and they are under the
"immediate aii'l disciplinary control of the t^xecutive. I're-
"sumalih' tle-rrfori', act-- done by them ai'e act.s sanctioned hy
' the stale, and until -uch acts are dis;ivowed, and until, if thoy

(Mr Rcicpu'S Oral Arginncnt on Special Cnsos.)

" are of sufficient importanco, tlieir autlmrs are pniiislied, tl'.o
" state may fairly be supposed t.) luive iiK^iititied itself with
" llieiii, "

Mall here, is discussinff how far and under what circum-
stances, one country can hy acts of pi'rsoiis in its servicer incur
liaiiility towards anotiier, w idle this case presents the entirely

10 tlilli'rent ipiention of whether a naval otlicer can deprive it of
any of its ac(iuired rinhts and expose its suhjects to serious
oppression. Here we have the case of a naval officer, who
exchisiveh' entrustod with the duty of carrying; out a treaty
hetween lireat Uritain and the Unittid StatcH, is alle}:;e(l to
have ^'iven a consent, di'privini^ the former of tlu; rights derived
from the treaty, and periniitiiiu;' 'i British vessel to he seized on
the hi^di seas hy the riuted .St'ilcs for allei,'ed anterior con-
travention to its munici,ti''i 'aws. It seems to me that Captain
Parr was clearly outsidi of his dutici if he ever |)ermitte(l

21) auytliini:; of that kind, ami it is incumhent upon our learmnl
fi'ieudson the other side to show that he had authority to do so.
We have put on record the instructions yiven hy hoth ^Govern-
ments. His instructions wiM-e not to allow Hritish sulijects to he
oppic'ssed li_v lieiuL; seizi'd on the hi^h seas for violation of
nnmicipal laws : they were simply to receive the vessels handed
to him as havinj,' hcen seized under the modus, and to hrinj^
them hack to Victoria for the ptnpose of prosecution.

i: The seconil proposition to which 1 called your Honors atten-

tion is supported hy the following lany;u>ige at pai^e \i)i of the
Aiiu:i"ic.';u Brief : —

"The intematiomtl (pii'stiun of juiisdiction l.einj,' out of the
" way, issue is taken with the position of the British counsel that
"the comniissicjiu'rs under the jiresent ("onveuti<in can revise
" the tindiiii,' of theCotu'tof Alaska on any juri<lical (piestion.
" No international coui't can revise the judj:;ment of the court of
" a nation, tndess that judgment he hy the (-(Hirt of last resort in
■ its jin'idical system. This nde is estahlished as one of uni-
• \(i^al application, to which there can he no exception, unless
" an appeal was prevented.

lo "The owners of the " Wiidfreil " cannot enter this intcr-
" 'lational co\irt without showine; an unsuccessfid apppftl to the
ht t apiielhite juiisdictiou in the judicial system of the Uniteil
"States. (See vol. (), I'aper.sete Washinejton Treaty, p. .'S,S-14I)
' where the authorities are collected and the whole suiiject is
■exhaustively consiiiered and is repeatecjly pjisscfl upon."

I already have had occasion t > say that I absent t-o tie-
proposition, that where n eitizei\ of tin' Ijniteo .-^uaies or a
f,irt'ii;iiei- is hiumi within tie- territory oF the Uniteil States,
and is chari^ed with a \ii'laii'in nl' the muiueipal Law. he has t,i

">ii tind his remedy in the courts of the enuntry ; hut, I deny the
proposition a> applyiu'j; to eases of seizure on the hii^li seas, such
as till' one in ijuestion, for the pin'|io-e of heiie^ taken into
American territory aiiil prosicuteil for violation of miniieipal
i.ius; a violation that may have heen committed two, or three,
or I'oui- years previou--l\', a^- w.'.s ilie c,'i>.e in this instance.

Tlie waul of jiiri-^dietion wa^ so alisolute that it was heyond
the power of the OWU-'I- of the Vessel (ti wjUVi- it; anil if lie had
the power to make su.'h \\nivi r. it could only have heen done
e.^liressly, and not as an iid'ei'"nce from his liavin;;" jile/iilcd to

<i'i the eliju'^'e without raising,' the (|uestion of jurisdiction.

I nnist also call your Honors attention to the fact th.at
the defence of the I'nited Stat.'S hased as this is on
<'a|itaiu Parr's alh'^jed consent, tends only to justify the
-ei/ure of the vessel, hut not the arrest, imprisonment, an I other

..1

i! V.'

• IP''

'j. ^

520

(Mr. Bei(|ue's Oral Argument on Special Cases.)

indignities inflicted on the master of tlic vessel and members of
the crew. If your Honors refer to tiie evidence of Captain
Conlson 3'ou will find that he does not pretend that Captain
Parr permitted the arrest or imprisonment and carrying away
of the master and members of the crew. In this ca^e we are
cliarging the United Htates government, not only with the

10 arrest of tiie vessel imt we are charging them with the arrest,
imprisonment and taking away of the master antl members of
the crew to Sitka, and detaininj; them there for a lon<f time. It
appears your Honors, from the evidence that the main idea
was the prosecution of Hansen — he being suspected of having
three or four years previously raided St. Paul's Islands. That
was the real object of the seizure, and for the purpose of achiev-
ing that object, the United States officer seized that vessel on
th(^ liigh seas, and represented to Captain Parr that the vess»;l
had infringed tlit; nnniieipal laws of the United States.

'20 Mr. Dickinson : — Is your contention that the Captain was
arrested for raiiling the islands ?

Mr. Beique : — 1 say that it appears from the letter of
Captain Coulson that the real object was to prosecute Captain
Hansen.

Mr. Dickinson : — That may be your construction. The
captain of the United States cutter merely mentions incident-
ally that this was the same man who raided the islands, but
as a matter of fact he was j)ro.secuted for breaking the revenue
laws of th<' Unite<l States, as was the vessel.

'M Mr. Bei(|Ue : — Ye.s. One must always hear in mini' as

appears from these lettei's, that immediately after the ser'.iiie nj'
the vessel and the arrest of the master and the members t 'ia'
crew, the mend)ei-s of the crew were transferred to the revenue
cutter and jirevented from having any ci)nuMuni<'ation with
Captain Hansen — they were put under oath, as we claim illegally,
lor the jiurpose ;;f getting evidence against the vessel and hei-
master, '{'he letter at Jiage I.'jIO fiom Captain Coulson to the
histriet Attorney at Sitka, sajs : —

" We think there is suflieient evid<'nee against Captain (J. M.

40 " U. Hansen, tln' master of the ■ Winifi'ed,' to hold !iim lor
"raiding the Island of ,St. Paul, iiehiing Sea, on the 27lli day of
"November, lS!li, while in eonniianil of the British sehoonei-
"' Borealis,' and taking about four hundi'eil (-K)O) f\n' seals from
"that Islnnd. Maj<ir \\'illiams, special ,igent, Ticasury I)epart-
" ment has obtained some evidence this year regar(|ing this laid.
' \ On will notice' that Hansen, and one of the crew of the

''Winifreil' .bisejili ilutehings- in this testimony, a<lniit being

"in the ' Borealis last year, and Hnlehings fully ideiititii d ll.in-
' sen. who is also without doubt the sume man who raided St.

.")(» " Paul islanil in the M-liocner ■ Adele' late in ( letober, IMK), lb'
" admits ha\ ing been seized while in the act of taking seids
"near St. I'aul Island in the 'Adele' in |,S.S4.'

It seems to me that that is snificieiit justification for my
saying that the objict of Caj'tain Coulson at the tiiue, was to
enable the United States to prosecute Cfiiifain llnnsen for this
aihged raiiling of the Island. I adndt that the charge actuidly
maile against Captain Hansen when he arrivc(l at Sitka was not
I n this groinid. the charge was that he \iolattd the revenue
law s of the United States.

()(( I have only one other I'lniark to add in (onnection with this

case, and it refers to the eontention of the defence, that
we cannot leeoscr bir the price of the skins thai
weie seized, because they Were taken in violation of
the indiliin rir(inli: and it is adde<l that it would oe

521

(Mr. Beir|ue's Oral Aifjumont on Special Gases.)

against public policy to grant any remedy in this case. It
•seeing to me tliat the rjiiestlon as to whether the skins were
taken ai^ainst the modus vivendi, or not, could have been
enquired into only on a seizure made under the nridus. Of
course we do not claim for the balance of the catch bec<iu-ie we
had no ri:.,'ht to seal in Betu'ing Sea, but I say that evidence

10 showing where the skins were taken is not proper evidence
in this case, for evi<lence of that kind could have been ottered only
after the vessel had been placed on trial under the moiiu;*, which
was never done. If the charge had been made agairii. Captain
Hansen, he possibly might iiave been ab!" to prove that these
seals liad been taken outside of BeiirinLr Soa. There was no
seizure and prosecution under the modus viveri'.'i in tliis case ;
the Tnodiis vivendi cannot be applied to it and tiierfforc we are
entitled to recover for the value of the skins. If the vessel had
been proceeded against under the modus, the skins would have

20 been forfeited to the benefit of Her Majesty; — wlieieas in tiiis
case they were forfeited to the United States, and. the United
States got tlie proceeds of the skins.

The " Wanderer " Clai.m, No. 25, (lSt>2.)

'{'he next case is the case of the Wanderer claim, No. 25, 188!),
British Argument 181 : — ITnited States Argument p. 4!)0. Your
Honors will recollect that tiiis case r(;sulteil from the fact that seiz-
ures had been made in 188G and 1887, and that rarly in 1889 the
proclamation of the President of the United States was issued and
:!0 that iMstruetioi\s were given to the revenue cutters to seize
all persons sealing in Behring Sea

CJaptain Paxton was the owner of the vessel, and was on his
way to Bi'iu-ing Sea, when his Indian crew, hearing of the
proclamation and that seizures were liktdy to take place, refuse'd
to proceed further. The contention of the United States is that
we havt! not proved the proclamation. On referring to the
Rfcord, pigi's 18:J2 and ]8H:{, the following ccrtiticate signed by
Joliii W. Foster, Secretary of State, will be I'oun I : —

40 "United St.vtes of Amek' a,

" Department of State.

" 'I'd all whom these presents shall come,
" greeting : 1 certify that a proclamation, of which
" the ainiexed is .a true copy, was issued by the
" President of the United States in the year 'l 889,
" and that a proelamalion of similar ])Uiport was
" issued bv him in each of the following years, to
" wit: 181)0, 18!)! and 1892."

.; I <

, ; III

■fill!

.")0

(..')

This eertitieate was dateil the ;U)tli day of .luly, 18!)2. At
page I8;i-t of the HtH'ord will also be found a letter from Secretary
Windom to Captain Shejiard ; I reail the last ])aragi'aph :

" Herewith arc tiansmitted thirty copies of the President s
■ pi-oeltmation of .M.inb 2bst, |S8!l, for distribution to parties
'atrictrd thereby, as far as may be practicable,"

So that we have here the date of the proelamalion of the
I'lvsident, which was the 21st of March, 1889, and it is well
i-.iiowa to your Honors that not only were these insti'uetions
given, but that thes essels were .seized. Under that jn'oclamalion no
warnings were reijuircd. 1 claim it was not necessary for the
.leeiiiing of the I'ight to claim that the vessels slioulii proceed to
r>rhring .Sea and be seized or warneii ; b\it that from the fact
lliallhe decision was taken and made known bv the I'nited

11 I
\

t ' '

■pmii

™!lT-T!fl5Kw

522

(Mr. Bi'i(iue's Oral Ar;(iiiuent on Special Cases.)

States autlioritios that seizurtis >fmild be made, the niastur
of the ves.sel was justified in returniii};; homo, and that
a claim accrued. We have in this case tlie fact that not only
had preparations been made, but that the voyage was com-
menced; the crew had been secured; but the crew, hi.'arinjf
that .seizures wen; again to be made, alttiough no seizure

10 had been ii^ 1888, turned on the master of the vessel and
refused to proceed further. Another ground stateil in defence
is that the crew turned back on the masttsr of the ve.ssel because
ho was a poor man : that lie had no means; and it is claimed
that, if he hail btien rich, if they had been sure of getting their
pa}', they would not likely have turned back on him. Whether
that was the main reason or not, or wliether it was because some
of thi^ Indians were on vessels seized in previous years, and
that tliey did not want to expose themselves to a repi'tition of
the same experience is innnati'rial. Captain Paxton was n>'ver-

20 the less preventf'd from carrying oiu his operations from the fact
that the proclamation was issueil and that seizures were orderi^l
to be nuide.

Mr. W'arren : — What was the date. Mi'. Beiijue, of the
instructions to make the seizures ?

Mr. Hoique :— Tliis is dated May 2:ird, I88it.
Mr. Warren : — Hut vour crew turned around on the 10th dav
of May.

Mr. Bei(|Ue ; — Those instructions are to Captain Shepard, and
we have it that the proclamation was issuer! on the 2lHt of March,

30 but I rest the case on the fact that tiie proclamation was issued,
thiit the United States having treateii Behring Sea as a man:
claiisuin in 188()and 1887, and having siMzed vessels during these
years, decided in JIarch, I88i), to adopt the same course for that
year; that in issuing the proclamation they notitied the worM
of their intention to seize vessels fishing in Behring Sea, and
that this was what prevented (Japtain Paxton from carrying (.)u
his operations.

Mr. Dickinson : — It does not reriuire an overt act to con-
.stitute A claim.

40 Mr. BeiijUe: — No, I do not believe it does. It would amount

to this, that there coiJd have accrued no right to a claim inilcss
the parties had actualU 'eft Victoria, gone to Behring Sea. and
been Beized. The moment they were, as a result of the action
of the Governinent of the Unit<'d States, intimidated, and,
l)ecause of that intimidation, prevented from carrying on their
operations, I sul)init the claim accrued.

(10

Thk " W. p. Sww.ahi) (Cost C.vsk) Claim 26.

The next case, and the only remaining case to which I shall
cill your Honours' attention, is thit of the costs in connection
with the ajjpeal of the " W. P. Say ward.'' This case has heen
fully dealt with, 1 believe, in the general argument — and in the
British argniinMit, page 184, and in the Uniti'il Statiss argument
page 148. All I nei'(l do is to refer your IJonoi's to the Keconl,
page I82!t, line oO, wlier(> will he found a reference to volume 8
of the American lli'priiit, page 20!). It is a portion of the pro-
ceedings at Paris, shewing how thi> elai.n was there presenttnl.
I read the following: —

" With refen-nce to the claim for ilamages mentioned at page
" 12 of the British casi> and the particulars si't out in the seiiedule
•'thereto, (Jreat Britain will claim, in addition to the amount
"there stated, the sum of 1?(12.84'7.12, thi' amount of (expense
" incnrreil by the (!overr\nu'nt of Camilla in eoiuiection with the
" proceedings before the Supreme Court of the United States

523

(Mr. Beique's Oral Argument on Special Cases.)

"with a view of establishing the illegality of the seizure of the
" " W. P. Saywar-i. "

I read this only for the purpose of supplementing my argu-
ment in connection with the scope of the Convention, a.i I
omitted to refer your Honors to that portion of the proceedings
at P:iris.

10 With your Honours' permission, and without mak'ng any
cn.nment, I desire to say that I should have referred in my
iDiiin argument to a case to which the other side I believe,
luivu rufei-red, the case of the " ]'i»a Oyen," 1 Robinson's
Admiralty Reports, page 134. The judgment in that
L'lise was rendered by Sir William Scott. I refer to
the case in connection with the question as to whether
the cases here sh.ouhl bo treated as cases of total or partial
i()ss. it will be found on reading the judgment of Sir William
>icott tliat he expressed the opinion that it became a case of

20 total loss only when the vessel was actually sold, not
tiDiii tlie date of the sentence. I desire merely to add this, that
it was a case of prize court in time of war, wliere, of course the
si'iitcnee was presumed to be legal, and at any rate where there
was no absence of jurisdiction. Here as I have; already stated,
the seizures were absolutely illegal because made on the hiirh
spas, there was an absolute want of jurisdiction and we had
the right to expect that justice would be done.

|i.-

Hi.

:/l

I ' n'l. •'i>*- ".^"i

.50

.=10

SIR CHARLES HIBBERT TUPPER'S SECOND ARGUMENT.

Sir C IT. Tiippcr : — If it ploase your Honors, I take up
first the case of the " 'I'liointuii." I would like to call attention
to some of tlie points inentioneil in tiie arifiinient of the United
StHtes. At pai,'e ;i()(i, on the value of vessid^, there appears a

10 reference to the Hecoid. pai,'e fS.")!), line ")^, and the learneil
counsel argued that from this that wlien the " 'I'liornton "
chaiijfed from a sloop to a schooiua* she had a centre-hoard. On
turninLC to that evidence I think it will he found that it relates
to the " Onward " and not to the " Thornton." I would refer in
that connection also to pu^e 1070 of the Record, to show how
some mistake of this kind has arisen lieeause the statement is in
the ([uestion ])ut hy the learned eouiisul in crosi-exanniiation,
and the answer does not nseossaiily connect thai ))art of tlie
question so as to authorize that inference. The Icai neil eoinisel

20 there said : " It appears from the testimony that she hail heen
" chan<»ed from a sloop into a schooner, alti'red from a ceiitre-
" hoard to a keel hoat." I think that was meant to he preceded
hy "if", and the question f;oes on, " wouhi that make any ilitt'er-
nnce in tlie value of her ? A. It would depend wliether a
■' new keel had been put into her." A reference is made at pa're
30(5 of the Ignited States arf,'ument to the evidence of Captain
McLean, where it is said that he states that she was an old
ino<lel. I call attention to the reference itself, to show how
Captain McLean was led into altering a very important ami dif-

30 ferent statement, as it seems to me ; for on paj^'e lO(ii) of the
Record, McLean is asked as to what sort of a schooner she was.
He said " she was on ordinary schooner lines "; and on the .same
paf^e lie states that he never .saw her out, of water ; and, I sup-
pose, following from that, he answers a little later on that l:e
coulil not say if sIk; were shallow and thit. Then referriiij^ to
the same paij;e of the argument and the same suhject, theie is a
reference to the testimony of Captain Ravnor as to a broken
main-mast; and in that connection, 1 i«ferto Reeonl, piij;e 1057,
the cross-examination of the witness, at the hottom of that pajjfe,

40 to show that he does not seem to recpiire as much information
as Captain McLean to know the style of a ship. I need not call
attention to tlie lonj; period that elapsed, ami the slight know-
ledjje that this nuin wouhl in the ordinary course, have of the
" Thornton "; hut 1 will content myself with readin;^ the ex-
.'imination there : —

" Q. You did not hoard the " Thornton ' for the purpose of

exRminiii'f her at all f" A. No, sir, I diil not.

I never went
A. No, .sir, I

" Q. And you never went into her hold ? A.
" into her hold.

" Q. Anil you never .saw her otit of water ?
" never .saw her out of water.

" Q. You never saw her bottom ? A. No, sir, I did not.

" Q. Nevertheles.s you undertake to siti'ak as to her lines ?
" A. Yes, sir."

I'receditii; all that, at the middle of page lOM. he descrilies
the " Thointon " as a Hat shallow vessel.

As to credibi Hy tluMe is the reference Record paj^e 1050
casually made the ther day, bnt I do not think brouf^ht directly
to the notice of the otirt : —

" Q. What stj-le of f^uns, if you remember, were the guns
" taken otl' the "Thorii on ?' A. Well they were passably good
" guns.

"Q. Do you remem' '!r them ? A. Well I don't remember
" them exactly.

-i

ill;

I ' 1

IPPIWWP

r)2()

(Sir (.Jliarli's Hihlit'it Tiipju'i's Second Arjj[nm(!iit.)

Mr. R('ii|iip : — I siipjiosp it i« licpniise you do nnfc rpiiiernbor
" tlit'iii tliiit ymi say tlicy wuio fair? A. I don't renu'inbur tlio

TlicM as to tills must licail licint: liroken, tliori! is tlic cvidcnci!
of Noiiiian, pat;" Itill, liiii' ."0, wliieh I would like to contrast
witli till' I'viilciici' ol' Itaynor: —
10 " (,). What was wrong in lior ? A. The mast head was
" broken ; that, was all."

Also Dallas, liccord, page S4+ :^

" Q. She had earried away I'er mast head? A. Ye.s, sir.

" (). And her fore ri^ij^in^' ? A. No.

" (^). You ilid not have her riggini^ on when she entered
" I'.ehring Sea ? A. No.

" Q. Siie was in had shape when she went into the Sea t
'■ A. I fixed her mast all right on tlie passage.

" (.). What, did you do to it ? A. I fixed if."
20 And on further examination, page S47 of the Record, Dallas
i.s asked : —

" Q. Was the ' 'I'hoiiiton ' in such n condition when you
" entered the Sea that ynii eoidd lower j'our boats and .seal on
" every good dav f A. Yes, sir.

" Q. And stie dill that > A. Yes, .sir."

Also I have a i efeictice on that subject to the Record, page
Of)], where the inspector is being examined, and after having
transciibt'd into the notes the record of the ins|)ection in l!S85 of
30 the " 'riiorntoii," he explains the language tbi-re and says : —

" My reason is given hero, this independent inspector reports
" that everything is ' very fair ;' ' fair' in the otlicial language of
" the book mentis ' ''ood,' an<i ' L'ood ' means excellent."

Then passing from that subject and to another reference on
that page as to the weai- and tear on this vessel amoiniting to
S1,00(), the reference is Record, |inge OHi. In the first place, the
reference itself is not fully transcribed in the argument. It is
suggested there that the evidence is that the actual wear and tear
40 upon the vessel would be fully 81,000, whereas it is the actual
wear atiil tear upon the vessel mid runuin;/ yi'ur. Jitit special
reference is not lieitig made in that part of the record to the
"Thointon." ] call attention to l».'ige !H7 of the Record, where,
in connection with that general subject, into which I have no
desire to travel now. Warren is being exaiiLined, as follows: —

" Q. Antl you sjioke of overhaulitig your vessels constantly
" was this vessel o verba ided after 1883 atmually ? A. Yes
" every j'car."

!){) Then as to beii'g ashore in 1S8.T, referred to in the United

States argument, [lage ;)()(), the refere.ice is to Reccu'd, page DID,
it appears there as follcsvs: —

" i). How many times has the ' Thornton ' l>een wrecked?
"A. Well, 1 don't know as she ever was wrecked; she got
" ashore some time anil it cost me considerable to get her
" otf."

Rut in coiuiection with that, the tuan who got Iter off' was
cxainined. Record, page 1028, atid he saj's : —

" Q. You examined the vessel ? A. Yes, as far as I could
60 "see, 1 seen tlie vessel wasn't injured at all."

1 do iu)t kiiow as I need read the whole of this, but I call
attentioti to '.{ecord, page 1028, line .SO, at the bottom of the page,
to that so-called wreck, (,r when tile vessel got ashore and was
taken off. As I submit, the evidence shews this was done with-

527

(Sir Cliailes Hil)l)eit Tiipper'N StcnirJ Artjument.

out lier Imviiii; sufl'i'ieci tlie slijjhlcst injur}', or injury tliat could
not be iunnuiiiiitoly repaired.

Tiieu there is a reference to tlie vessel l.einji; towed into
Uniiniilt Pass, pa^'o HOG of the United Suites iuj,'unient. Of
10 CDurse, the suf^j^estion is ohvious ; she was, as a nuitter of fact,
towed in hy the " Dolphin," because the " Dolphin " was faster.
The reference to tiiat is Hecord, pajje Mi ; liut there is no evidence
that she was towed in because she was in distress. 1 have
already referred somewhat to that, but at pa<;e 84-4 there is a
reference aj,'ain to this : —

" Q. Why was she towed into Behring Sea ? A. The steamer
" ' Dolpliin ' was faster.

Then tliere is a reference as to the engines. I would refer
in that connection to pages !J!S7, !)H8, Dh!) of the Record as to
20 their peifect condition.

Turning to page 307 of tlie TJnited States argument, a.s
to the cost of vessels, there is a (piotation from the evidence.
I woultl like to read a little more of wdiat appears on page 9-ie4i
of the Recoril, as to cost, from evidence given liefore, where it
was admitted tliat at one time Mi'. Warren luul stated that the
cost of the ' Thornton ' was S+.OOO. This is the evidence in the
aiuument, page HO? ; —

" Q. 1 want yon to state as nearly as you can wlnvt the co.st
30 of these vessels was ? A. The cost of lunning them ?

" Q. No, tiie vessels. A. Well, I put the ' Thornton,' I
" think, at if+.OOO — that is, the time she iiad iier machinery put
" itito her and was made a steamer of."

1 will have to trouble your Honors with a little further read-
ing of that evidence. Of course, as it appears in the argument
of the United States, it was evidence of being read from pro-
ceedings in another caue ; and following on from where the
(|U0tatioTi stops : —

" Q. Did you so testify ? A. Yes, I expect so, I don't
•ID " know whether that is exactly the way I put it or not.

" y. Have you any doubt about it that is the printed record
" in this appeal prepared by your counsel ? A. If it is put in
" in the value of the vessel, I doubt it. I think I was putting it
" in as value for him as security.

" Q. I ask you whether you so testified on December 13th,
" IMOO, in that case, just as I have read it to you? A.
"(Examining) I don't recollect of making that statement to say
" that the ' Thornton ' was valued at §4,(100, for she certainly
" cost me more money than that considerable."
JO Then skip two paragraphs: —

"But you say that although this testimony speaks directly
"of your putting the cost of the ' Thornton ' down at S+,000,
"that testimony is erroneous? A. Yes, she cost mure than
" that."

Then skip three qtiestions : — -

" Q. You said back, ' the co.st of running them ? ' he
''answered back, 'No, the vessels?' meaning the cost of the
" vessels ? A. Certainly. All I know S-i,000 could not be cor-
" rect on the cost."
(lO That is on the cross examination of Captain Warren by mj'
learned friend ; and I would refer to page fl.JO, where on
re-examination Capt. Warren says as follows, in answer to
()uestions.

" Q. Now, parts of different examinations of yours in

if-''

, ■ fj

ill*

Hi)'

mmmmm

■iiii

20 '

o2.S

(Sir Clinrli's Hibbert Tuppcr'x Secon<l Ar^jninent.)

' liti^iitidii wliich you hnvo Imd wirli Mr, Hospdwitz liavc liccn
' shown to 3'oii, (IIkI you were Bskfd pititiciilarly ri';,'ai(liijj,f a
' Htnti'iiifiit niaih- wlicn^ you unimI the lMnt,'iiat;e, ' I put tlic
" Thdi'iitiiii,' I think, at !?+,0()0.' What did you actually nu'an
' liy that Ml'. Warren ! A. Wtdl, as 1 said hi-foie, 1 must havi;
' had ri'tVrcnct' to security for him.

" Q. As a matter of fact, have you not, on one or two
' occasions, put your various ships on a list in order to suhudt. a
' proposition to Mr. Hoscowitz for further advances ? A. Fur
' netting advances.

" C^. And did you intend to represent to him the cost of the
' vessel, or what the cash value would he in case of sale under
' .security, whicli ? A. No, my intention was not to represent
■ the cost, of the vessels, hut to show hiiu that lie would ho safe
' in loaniiiii; that amount of money on them.

•' (^. 'I'o those statements to whicli reference was <;eneraliy
'made, were not the other vessels, say the ' Grace,' put at a
" small ti;,'ure as wtdl ? A. Yes, much smaller than the cost.

" Q. She cost you ahout SUi.OOO did she not? Aiiout
"?1 (5,000.

" (^. She was a steamer of what tonnaf]fe ? A. She
" carried 1,50 tons of coal.

" (i. She cost you $1(5 000. Do you happen to renienilier
" what you put her down for when horrovvim; money from Mr.
" Hoscowitz I A. Ten or twelve thousand dollars, I think.
" Something like that.

" Q. So that in these stateiiK'Uts of assets you were not
" putting; what you would call us their real value hut their
" value for safe security > A. Yes, when I put them down h'ss
'• than the cost.

•' (). As a matter of fact, if these papers were produced
" from the court, would they not shew various values evi-n in
" rei^'ard to the ' 'riioriiton.' one time at S.'5,0()() another at S<5,()0()
" and another at S4, )00 ? A. Yes, you will Hnd all the.se diti'er-
" ent statement^."

Then as to the sale of those vessels, there is a reference in
the United States arffument, pai,'e .'507, where the statement is
nuKJe that, after heiiiij; r('<,'ularly advertised, this vessel sold for
one dollar, suhieet to the mortija^fe. The reference to e:jpliiiii
that in the Record is at pa^'e lOSM, line 43, and paj^e 1975, line
50, and the followiiif,' lines; hut 1 shall not trouhle the court iiy
rea<lini,' them, merely reminding' your Honors that the explana-
tion as to the ohject of the sale, an<l what took place, and the
reason that these ves.selH were knocked down at one dollar, is, I
think, satisfactorj'.

Then in the United States argument, page 307, there is a
reference to the charter party, if your Honors please, and it is
rather an important reference.

At 4.30 the Commissiouer.s adjourned.

Commissioners under the Convention of February 8th,

1896, between Great Britain and the United States

of America

Lpyislative Council Cliarnliei', Provincial liuiMin^'

At linlifax. N. S, S.])t( ii,l < i' lltli. 1S!)7.

At 1 1 A. M. tilt' ( '()iiiiiiis-,i(iiu'r.s took tlicir si'rIs.

2(1

Sir C. II. '{'uppor, ountinuiti;,' : — Tlui cliarti/r |iiuty to wliicli I
was rt-fiMTiii;;' y(!sttM(lay is ri-'ferrml to mi piiLCf 'M7 of tlif I'liitril
StatHJs arifuiiii'iit, wIhmc lie says: " It appears al«o, liy llic oliartci
party froiii Warri'ii's imsiifiii'o to Huscowitz, dated I''('lini(U'y, ISSC,
that tliuvissi'l coiilil iKjt lie .sold for tlie aiiioiiiit due mi tlie iimrt-
j,'n^'e." 1 iiave aliiiidy called attention to tlie evidence ^'iveii liy
the a.ssjeiiee, and the eviilence which shows that the chai'tcr
]iarty, and all those dealiiies with him to have pintaken of
strictly a formal character, in oriler that Warn-n slimild have

Ji'i undisturbed possession of the shiji, and I now point out that
tie- chartoi- party on pafje lOST of the Record does iidt make
special reference to the " 'riiornton," as would ap]iear liy the
written ar^'iimeiit, hut a inference to the whole Meet, '■ (Irace."
the " Dolphin," the " Anna Heck," the " 'I'lnrnton," the " Hustler,"
and one-half of the " \V, ]'. Saywaid." In any event, the state-
ment, formal or otherwise, in the recital of the charter party
states: "And whereas the amount due to the said Jo.seph
Boscowitz upon the said 11101 tj,'a^'es, or hills of sale, is ^jreater
than the same for which said schooner and interest can he sold,

40 iKiw it is hereliy mutually at^reed, etc." That is the recital, and
it is not that the " 'i'hointmi " could not he sold for the amount
due on the iiiort;,'aj;e, Whntever force there is in it, it should
he borne in mind that the reference is to the whole tieet.
Mr, Lansing : — There were separate inortgai^es.
Sir(". H.Tnpper: — Ye.s, hut there is no sui,'eestion in any
document that there is any one ship, the "Thornton' oi- any
other one, that would not briiij^' the anionnt of the niort;^aL;o.

The next .statement I desire to call attention to is a
.')0 reference to H. J. I'ook's evidence on ])Mi,'e ;j07 of the rnite(i
States arj^ument. 'J'hey say : " H. J. I'ook gave her value in
l.SSl at S5,")0(), but stated that he was not talking about the
market value ' ' I will simply refer to the Recoid, |iage (S;U),
where it will show that .'i<.")..'iO() refers to the ' Thornton ' icithout
iiu(clii)ii'ry.

Hefoie leaving that ca-e, there are some general reference.^
I would like to give which iieai npi.n the discussion tnuehing
the ships gener.'illy. I'age !•+(! of the Ueooid refers to the
CO ecist of removal of the ' Thnrntmi ' ^from Oumilaska, where
she was put after' being seized, amounting to little less than her
total value. Page !i;jl of the IJeconl refers to the " Thoriiimi "
July IH, 1(SS7, being ill a liail state, but she could have been
fitted up.

> ■

.^^ii^,

■>

IMAGE EVALUATION
TEST TARGET (MT-3)

^%<Sf

1.0

I.I

11.25

kitU |25
■^ liii 12.2

140

2.0

Ni&

U 11.6

"^^4"^^^

Hiotographit;

Sciences

Corporation

>T MIST MAIN STRUT

vynSTIR.N.Y. MSM

(716)«72-4S03

530
(Sir Charles Hibbort Tup|)L'r's Second Argument.)

At page 524 of the Record there is an observation of
some importance, I thinlc, witli refjurd to tiie cliaracter of tiiis
court at Alaska, and upon that my learneii friend, Mr. Beiijue,
touclied in ciosinjj his oliservation.s yesterday wiiere Mr. Dickinson
says : —

"In this very statute tliat Mr Hayard sends to Her Majesty's
" ami>assador, it appears tliat tiie judiciary of Alasi<a had not
" been tni;aniz(Hl, tliis very court tliat condemned tiie ' Caroh^na.' "

Mr. Dickinson: — The remark al(out tiie court not lieini;
orj;ttnizeci was witii reference to tlie statute, a copy of wldcii Mr.
Bayard furnisiied tiie Hritisii Oovenimeiit. The statute diil tint
endirace tlie section orj,'anizinj,' tlie Alaskan court, ami was
passed liefore the o. ^^anization of that court. Tiie fact was, lie
f^ot tlie wroti^f statute.

Sir C. H. Tupper: — Then the statement by my learneii
friend, »s referred to in the Record, is not t(uite accurate.
However, tliere is another reference, I think, in the Record that
this statute had liecome obsolete.

Mr. Dickinson : — Vi's, the stututt- was the wioiiif statute. It
bore upon tlie question that Mr iJayard desired to make, that
is, the condition of the law, but it did not lieai' upon the organ-
ization of the court.

Sir C. H. Tupper : — I do not know that I referred to Tingle's
report, althouj,di it was touched on, liut it is on pagi; 20 of the
Kxhibits, Exhibit No. I.j, and I think it is worth repeating here
'^^ in the notes, and, as it is not long, I will read it :--

■' Office of Si'txiAi. Aokn'T of the Tke.\siiky Dkpt.,

"S.\x Fkancisco, Aiuj. IS, 18sn.

•' Ho.v. C. S. Kaikchk.I),

" Acting Sfi'i'f'lKri/ of tin'. Ticdnuri/,
" Washington, D. ( '.

" SiK, — On mv arrival at Ounalaska I met the revenue cutter
' Corwin,' Captain Abbey, in charge of four schooners, viz.,
"'San Diego,' 'Onward,' 'Thornton,' and 'Carolena,' the last
" three Englisli, from Victoria. Captain Abbej' has, unfor-
" tunately, been short of coal, or he would have made more
" seizures. He has, however, been very active and done good
" work. I urtred him to remain if he couhl, cruising around the
'' island until the ' Ijear ' arrived to relieve him. If ho should
'' be obliged to leavi' the waters earlier on account of the non-
'' arrival of the coal ves.sel, which up to the time of our leaving
■' Ounalaska hail not been heard of, it will be unfortunate, an the
•' fleet of schonners will play havoc among and with its seals.
•' If the cases now uiidi'r Heizure are convicted, the marauding
•' will be broken up : if not, seal life will be seriously assailed
•' next year by « larger fleet of vessels.

" I earnestly hope that no etl'orcs will be spared to convict
" Captain Abbey's piisoiiers, as he has certainly done his part
" well. I telegraphed you as per his request, also of my own
" arrival.

" I am very truly,

" (iKOl{(iK U. TiNOI.K

" Trt'iifitrif Agent."

(iO

Then as to the return of the 188(5 vessels, there is a reference
in the Kecmd showing what the owners supposed was goitig to
lie done, and the reason they had for believing that these vessels
would still come back to them. I will give the reference, so in

581

(Sir Charles Hib'juit Tupper's Secon 1 Argument.)

case your Honors wish to follow that up you 'vill have it pointed
out. The references are pages 1149, ll'ifi, and 1157 of the
Record. Then the authorities told Warren in 18S7 that there
would be no danger, page llCn.

On the bon<iing of the ' osscls and appraisals references in

|(» the Recor.l are pages 1177. 117S. 11H3, 127G, and i;W6. That

the vessels were dilapidated August 2')th, 1S88, not being cared

for, page 1277. As to the bond at Sitka, sue page l!)7(i, and

generallj" a reference at page 914.

On page 3.5S of the Unitoil States argument there is a state-
ment which I do not think strictly warranted by the evidence,
where he draws the conclusion that the " Mary Taylor" was
purchased for the sofn object of replacing the " Thornton." I
(juestion that, and the i-videiice upon which that conclusion is
20 based precedes it on tJie .same page.

The next statement relates to the abandonment of the appeal
to the l^^nited States .Supreme Court, and the entry of February
2Sth, 887, in Warren's journal that the vessels were to be sold,
is made to establish conclusively that the schooner became a total
loss to her owner, anil was so treated by him.

Now I would like to call attention to page 7 of the British
argument, where the order for release is printed. I say that in
view of all that was happening, and the negotiations, it would
lie (littic"'t to say lUit the vessel was a total loss until the dis-
cussio . as to the release of the vessel was finally closed.

There are certain references to guns on page 358 of the United
States argument, and I would like i<» refer to exhibit 15, page
30. page i»n of the Record, lines 8-10. Also to pages, 9«6, 910,
912, and 844, where it is stated that the guns were all new but

one.

On page 359 of the United States argument it in claimed : —
" The claim for ' value of articles in inventory not properly
' ' belonging to the ship, on board at the time of seizure,' is ba.sed
' according to the marginal reference.s in the British argument,
' upon a schcdide prepared from inventories appearing in the
• log of the schooner. As the value .set opposite these articles is
' given by James D. Warren, who was not shown to have had
' knowledge (tf their condition at the time of seizure, it is to be
' presumed that they are based upon what such articles would
' liave cost when new."

And on pages 360 the learned counsel .says : —
" The original co>t is the basis of the claim, without any
" deduction having bi-en made for the depreciation of such fire-
" arms, which is excessive in Behring Sea because of the prevalence
" of fogs ami rains in that region."

1 claim that the presumption upon that point is the other
way. These guns were tortiously taken from our pos.session.
They are not produceil in court, and in eoiuiection with the
ccielirated " Diauiond " case they would be presumed to be of the
very best value. 1 also call attention to the fact that the seizing
iO iirtieers were not called as witnesses, which is a point advertt^i to
in more than one case of (hi.s cbarneter. 1 think we are entitled
to the benefit of the presumption i:. stead of their being entitled
to it. We have given some evidence as to the original cost, and
tliey dill not produce the officer who took them, who could

W }'

332

(Sir Cliarles Hibliert Tuppcr's Sicoinl Ar<;iiiiR>nt.)

tell us wlirtt their condition was nt tiie time of the wrongful
taking.

Then as to the slop chest I Hhould like to refer to the Kecuitl
on page IGIS.

At page 3GI of th»> Unitod Stnte.H iirgunient tliere is a coi-rec-
tion winch shouhl Ije nindf in the trnnscription of tht; notes.
The t'vidt'nce in the record is ut page !U7. The evidence is not
accurately reproilueed at page Ufil and 'MM of the Hritifih argu-
ment. In the Record, witness snys, in ans\,-er ;o the question : —
clinrged the §1000 in the " Thornton " case. You

" if. \ on chnrgeil the iJlOOO in the " 1 hornton case. You
don't mean to say, do you Captain Warren, that you expended
?l()()0 in travel for the ' Thornton ?' A. No, I haven't stated

'(I

•?l - - -. -

' that ; I spent ?l,()0() and consideralile time."

In his answer it will he noticed tliat there is a semi-colon after
' that," and he says " I spent l^I.tMIO and ccmsideralile time.

I'll (11, r»ll"« in • '*J '^ ■ ■-'in IIV •_■■,"»•»' (HI'I V.i/H.T|liI_itIri'lv. VIIII1. 411

the answer, as ipiott'd in the Uniteil States argument, the semi-
colon is put after tlie word " No," and he is made to .say, " No;
I hav(! not stated that 1 spent a !?10()0, a consiilerahle time."

I now colli" to the ease of the " Anna Heck," which is taken
up 1)11 pau'e.'lIO of the I'niie.l States aigi;ment.

Tliei e is a reference to Captain Wftrron's testimony, that the
cost iif.ri'-liuildiiig was ahont ?5,000 everything complete, and
30 the words "every thing comphite " are put in special type,
because, I suppose special stie-^s is laid on that. U])on refeienoe
to the eviilence, I do not think il will he found that that i-^
home out. I do not think there was any intention on the part
of Captain \\'arren to say that the vessel cost only §5,000 with
everything on her.

The engine, itself, cost $3000, and from the rest of the evidence
referred to, after this statement, it will he seen that he wa"- re-
ferring to what the ships cost, le.ss the putting in of steam. The
references to the engines are pages !»77 and lOlG. In connection
40 with the statmient of depreciation, I would like to refer to page
97m, whei'e Walker was asked : —

" Q. What would you estimate her value to he in 1887 '
" A. From §7,')00 to S.S.OOO ; the jjrinciple depreciation would
" he in the engine and holier, and part of the rigging."

On page 310 of the rnited States Argument they .say: —

" Orlando Warner, who worked part of the time on the 'Anna
"Heck' while she was undergoing repairs in 1883, valued her
" without her machinery at fron: 8:),000 to ?(i,000."

At page 311 of the I'nited States Argument there is a state-
ment that I would like to call your attention to in cminection
with an argument that has already been laid before your
Honors: —

" It must also be borne in mind that the cost of repair work
" was moi'e expensive than new work in Victoria, ainl that a
" vessel similar to the ' Anna Heck ' could lave pioluihlj- been
" built in IS83 by the day's work for a sum less than the cost cif
" her rebuilding, init at the time when the accident occurred
" Warren, who was then her registiMed owner, was absent from
" Victoria, and the repairing was done umler the direction of an
" agent or attorney."

As to the sale and the charter I have nothing to say in ad-

ass

(Sir Charles Hiblnirt Tupper's Secoml Ar^niment.)

<lition to what I .sai<l in the case of tlie " Thornton ", but I wouhl
draw attention to those observations as applying; in this case.

The appraisment at Sitka is also mentioned on page 811 of the
United States Argument. I submit that is evidence that cannot
be used against us in any sense. In the Krst place, to be of ini-

10 portonce, we sliould have had the best evidence, not the Record
or official report. There were several things of importance
needed to make it testimony at all. We should know in connec-
tion with that, not what the vessel sold for at a particular time
up there, but the condition the ves.<<el was in at the time of her
seizure, and I think we should be entitled, before any impor-
tance could be attached to that evidence, to the direct testimony
of those officials who were concerned with that sale. We have
had evidence already in connection with the sales at Victoria
where the object was not i ') rcDiizo money, but to change the

20 title or arrange other matters. Wo know nothing about the
market or the number of people present at the sale or anything
about it.

At page 812 of the United States Argument, there is an allu-
sion to the objections to this appraisment, and I call attention to
IX part of that statement which is not emphasized in print. All
that is emphasized there is that the owners claim that the ap-
praisment was excessive at the time, on account of the inclement
weather of Alaska, etc.

;{() I call particular attention to the Record, pages 116G and 1!)77
to show the difficulties in connection with the bonding of these
vessels. Mr. Warren understood the trouble to be with reference
to appealing, making it too onerous for them to take the vessels
at any appraisment, but Roscowitz shows that he was ready and
willing, and prepared to enable Wurren to get everyone of these
vessels back, and went with bonds and crews to Sitka, going first
to Seattle to arrange with the bank, and then took tliese crews,
and going up ; but the refusal and failure 'o get the vessels is on
any appraisment all explained at page 1977 of the Record.
40

On page .'US cf the United States Argument there is a
reference to the Inspector's report in connection with the value
of the vessel, and this statement is made : —

" The principal witness produced on the part of Ureat Britain
" as to the value of the engines and boilers of this vessel and of
" the others registered in the name of T. H. Cooper was F. A.
" Thompson, the official inspector of hulls at the port of Victoria.
" His testimony is based upon surveys, not made by the witness,
"appearing in the records of his otHce for the year 1885."
'>[} It is well to remember thai his predecessor in office was
Edward Vigor, who was shown to have been dead, and at page
!)87 of the Record it is shown that it was with his records that
the witness Thompson was dealing.

Then this witness, who, I think, made a favorable impression
on the court, who holds a responsible position, and who has a
1,'ood standing in the community, — this witness to my great sur-
prise, is attacked by my friends on the other side. Your Honors
will remember Mr. Thompson in the box, and under fire of my
learned friends cross-examination in regard to all these ships, it
(to would not be extraordinary for an honest ami intelligent man to
iiiuke a slight variation in connection with the values to which
lie was referring.

To show you upon how slight a variation his cruiiibilit}' is
attacked, my Icnnied friend says: —

,i'li'

&'t ■

'^^m

534
(Sir Charles Hiblmrt Tuppcr's Second Argument.)

" His values are evidently uncertain, ai at one place in the
"Record he values the machinery of the 'Grace' in 1885 at
" 33,500 and again at 93,200, but does not state whether that
" valuation is for 1885 or 188(i. If the latter valuation is
" for 1885, it ia clearly contradictory of his former state-
" nient, while it is a valuation for 188G the depreciation of
" the enjjine and boilers wouM be iipproxiniatuly 8J per cent.
" Yet he stilted that the ' Thornton's ' machinery could be sold
" ' lifter five years ' using at but 7J per cent. otT its orijjinai
" value. These stftteiiieiits >)f Thompson are much at variimcf
" with those of Andrew Gray, inspector of boilers in 1882."

I want to call attention to the Record, paires 1)!)7, and lOOI.
whore the valuation is put at 93,.')00 in ot. ■ pliicu, and S'3,200 in
another. On page !)!>7 he uses the words " about S3,500," and,
■' about 83,200." Certainly, in the examination of him then, I
do not for a moment suppose that the court or the counsel would
20 think that this witness knew, or su|)poseil that he was bi.'ingcon-
tine<l to dollar for dollar, but was only asked to give his general
opinion of values, and, as he was taken rapidly, from ship ti>
ship, I think that is very fair evidence indeed, and perhaps bet-
ter than if he had struck hard and fast to a certain sum on each
occasion.

At page 388 of the argument, still referring to the " Aimii
Beck," there are some statements which call for an observation
or two. In the first place, I call attention to the fact in connec
tion with the presumptions to be made in this case, that the
papers are .shown to have been taken from the ship. I refer to
pages 1,041 and 1,042 of the Reconi. The United States have
produced none of these.

Then in regard to the manner in which that vessel was
seized and taken, it appears that no inventory was taken by
the .seizing officers and it will not be denied that that was
an indication of some recklessness or carelessness on the
part of those officers, for upon an occasion of that kind,
where a vessel is taken, the greatest care ought to be observed
in taking an account of all the property that goes into the
hands of the seizing party.

At page 389, the first statement I wish to correct is, that the
vessel had 336 sealskins. Page 1045 of the Record shows us
stated in our claim that the number was 337.

At page 389 of the American Argument is a reference to the
list of things on the ship, and I would call your Honors' attention
50 to the following references (Record ;^4ges 1045, 1061, 1066 and
1141) so as to complete this.

At page 1141 the reference is made to the slop chest.

Then at page 390 of the American brief thete is a state-
ment about the guns. In connection with that I would refer
to the record page 1040, (exhibit 66, claim 7, page 151) where
Lieutenant Hall's evidence appears as follows : " Was in Behring
" Sea on this day, seized the British schooner ' Anna Beck ' under
60 " Captain L Q. Sheppard'a order and (skipping a description of
" the place) the seizure was of the veasel, tackle, apparel, car^o
" and 336 lu r seal skins and arms and ammunition."^ That is
where my learned friends no doubt got the number of skins they
give, but I call attention to the other statement :

:iii

535

(Sir CharluM Hibbcrt Tiippor's Succnd Arjfuincnt)

At ptigc 3!l(> of tlie United States Ar^uiiiciit : —
" It is therefore claiineil tlmt there ih no evi<lenpe tlii'.t tlio
" Hreiirnis l)elonjjinjj to the owner or liunters wen^ ever iictnally
" seized by tiie United Stutt's."

I submit tiiat wimtever tlie IndianH jrot after that seizure
whether they stoio it, or wliether tliese tliin^js were yiven Ut
them, we liave 'nothin<r to do witli tiiat: I Hiilimit that what
we hiivt! .sim]ily to siiow is thfvt cverytliinj; on board our .ship
went into tlie iioMsession of tlie sei'-'M", and thi' seizor is neconiit-
iil)le to ns and not to tlie Indians. Tliey cannot rliiir^'e us with
.inytiiin;; d(<ne l)y the Indians in cimniM'tion witli mw propTty.
'I'hen; is a presumption on lliat same subject, wliieh 1 do not
think is a fair one or one that can be ur;jed aj^'ainst ns.

At paf^e 3!)1 where it saj's : " The item for ' sealing; bo^it and
" ontHt,8l40,' is unwarranted, as it appeal's by tiiu e' .lienci' that
" tlie Indians of the ' Anna Heck ' took it when they started for
■ Victoria, the presumption beinj; that it was returned to thc^
" owner,"

There is no such prestiniption, it seems to mt^ tliat they
could avail themselves of in connection with the tortious taking
of our property.

Then, coniinjj to the " (trace " and " Dolphin," if your Honors
please, in the first reference at page 396 of the United States
Argument, I liml it staUsl that there was no mate of the " (trace."

" The attention of the High Coniniissioners is called to the
" fact that there was no mato of the schooner ' Grace,' and no
" claim on liehalf of one was made in the (-lainiH submitted at
rari.s.

The next .sentence explains that the witne,ss Norman, who
testitie(' as having acted as mate of the ves.sel, wan also the
engineer.

The references in the Record ns to the arrest of the ship,
page 1107; Uie airest of the captain, pages 1122, 1124 and
1126 of the Record.

The imprisonment of the captain, pages 1127 and 1146, 1147 ;
and the release of the prisoners on Septent''<;r 9tli, 1H87, pages
1266. 1267. 1268, 1612, 1613, 1615. and 1617.

All these references make it impossible to say that, because
this man was not formally indicted or formally prosecuted, or
manacled, or anything of tha1< kind, that ho was not a prisrner.

Every person connected with the ship was a prisoner the
moment the ship was taken, and all on board had their liberty
interferetl with for the moment. It is a mere question of degree,
but that he was detaine<l is indubitable.
.■)0

At page 398* we tind our friend Captain Warren turning up
almost in the character of an owner again, because there is a claim
in the United States Argument that the charter money for taking
the " (trace " and bringing the other seized vessels from Onn-
alaska to Sitka should be deducted from the clbiin that the
owner would otherwise be entitled to. If your Honors please, I
submit that the United States cannot charge anyone with that
§2,500, which was duly earned. The amount may be large or
small, but the services were rendered for every dollar of that
<iO payment. If a deduction at all were made, it might perhaps be
from the personal claim that Captain Warren hod, but it is pre-
posterous that it could be charged against tlie ship, when one
considers that this property was at that time in the hands of
the United States, and they simply bought the services of one

'1. -t'

n' • t

™

53(1

(Sir CliarleN Hibbert Tuppei-H Secund Ar|{uinciit.)

of their priHuniTH — a man uwiiititi); hiH triiil — nnd gtk\e biin ho
tnucli money. If they claim tlint the act waH IheiirN — though
the evidence HJmply refurH to the Marshal at Sitka- -ho far tLs
that payment watt made, the money wan earned.

Air. LanHing : — It appears, does it not on the record, that it
was untere<l by Captain Warren on the books of the ship a^jaiuHl
10 I'ooper !

Sir CharlcM Hiblxirt Tupper : — I am not aware of that refer-
ence, but my learned friend no doiilit can turn up that reference
where it was charf^ed to ('oojtcr. It wiis referred to as l>eing in
''aptain Warren's books, but whether it was charged to Cooper
or not so iar as my recollection goes does not appear. The facts
are before you Honoi-s, and the fact is that money was for ser-
vices rendered, and so that account would be Hi|uarc.

In connection with the " Dolphin" Record pages 1147, lltil,
it shows that the ship's papers were seiziHl and never returned.

At page :)90 of the United States Argument there is a mistiiko
I think in connection with the evidence, perhaps of no very
great importance. There is the word " back " inserted there
and the word " back " is not in the record. " Tlie Indians on
"' Dolphin ' got their guns ' l)ack,' I do not know how, but I
" suppose that the Indians on the CSrace got their's back also."

Tlie word " back " interpolated there has perhaps the same
meaning, but nevertheless the record has not that word " back."

At record page 1 1 7 1 I would refer your Honors for a list of the
guns taken by tlie " Rush." Page 1162 of the record refei"s to
the guns taken from the Indians and returned ; and I will
content myself with submitting, as a fair construction of the
evidence, tliat there were these two sets of guns, and the argu-
ment in our claim in reference to the " Grace ' and " Dolphin "
refers to the guns that the " Rush " took from us, and whicli
were not the Indian's guns. There was a large stock of guns
and ammunition on the Dolphin and we explained how it was
she carried so much, and my submission is that by referring to
pages 1171 and 1172 of the record, and the evidence that is
expanded here in the United States argument, where it will be
seen that this alleged return of the grns relates not to the guns
and rifles we have charged for but the so-called Indian guns.
And I again repeat my point in regard to that sh( «. '*\<r a return
of any of the property on that ship is not a sutlf^ient answer
to our claim. Page 89!) deals with the purchase that Captain
Warren made of some of these guns : and there is i\ reference
further to the purchase of skins.

I submit that is not relevant in this case at all, any i.iore than
if it were John Smith or people wholly disconnected vith the
transactions who made the purchase. The fact that a sale of the
character of which we know nothing and the condition of the guns
we know nothing of — we know nothing |but the fact that lie
bought some guns and at that ut time he happened to be the
owner of the vessel, but this would not make the transaction
with the claim.

There is also evidenee in regard to the sale of material in
connection the .skins touching the value that they were iiti'ucte<|
by the rats having got at them.

Mr. Lansing : — What is that ri'ference ?

Sir Charles Hibljert Tupper : — I have not the reference to tlu'
rats but my learned friend will rfinendx'r that then- was ii.
i( lercnce to them, that tluTi- wen- rats. There is in eoiuifctioii
with tlic iiKiiicy pii<;i' 41(7 n\' tlic riiiled States Arguinent.

2(t

S87

(Sir Clmrli'M llihlu'it Tupijcrs Second Ar^^uiiifiil )

Mr. Lmsiiijj: — Tlii^ ruts rulurrfd lo iiro in tlic casu of tlio
" Henrietta. "

Sir CliuH. Hiblicrt 'I'uppcr: — Hut I lliink tliorc are hoiiio rats
in tluH ciisi'.

Mr, Ijinsinu : — I tliink ,so to.

Sir ('. If. Tu|)))L'r : — .My iearnwl friiMul niiiinds inc tlnit tliuro
is iirt'forence in tlie Ui'tonl, l)a^L' 241, lino 11, to Sprin<j'.s evidence,
as to the value of tlie Ix-ddin;; and that will aj)ply to all the
different scheiluleH of our claim where we have charj^ed for hed-
liin;;. The S40 in the "Thoiiiton " ca.se fur in.stance, relates to
the heddinj; for white nun.

The atlidavit of Victor Jacnhson in the case of the " Jlinnie "
is alluded to at p.ifje 4.'J7 of the American Ari;ument (Record,
pajje 14.')1). It reads : —

"I cleared my ves.sel from Victoria in the early part of May
" for a .sealinj; voyage to I'lfhrinj; Sea. .My crew consisti'(l of tive
•white men and sixteen Indians. I entered the sea on the 27th
" ,lune, and commenced se^iliii;; on tlii- 1 '>lh July. I was hove to
•' unilcr reefed mainsail and jib, when I ])eroeived a vessel under
" full steam liearin;; ilown upon us. This was ahout '•] p. m. I
" made sail and trieil to ;ret away, hut was soon overhauled hy

• what turned out to he Tnited States Cutter ' Rush.' Someone
" on lM)ard shouteil eut ' heave-to.' I did .so, and a Ijoat filled with
" men came alon;jside, a lieutenant c.uik! ahoard and asked me

;!0 " for my jiapers, which I {^ave him. He then asked mo how
'■ many seals I had. I replied atioul 4.")(). Hi^ then took uiy
" pa])ers utr to t!ie Cutter and return" d and oi'dered his men to
"take off the hatches and hriiiij \i\) all the skins they could tind.
" They took oil 4.") I skins to \.\a: Cuttei-. 1 went on hoani tin;
"Cutter and interviewed Cajitain Sliepurd, who told nu' he must
" obey his orders which were to. seize every schooner found sealinij
" in the l-tehrin;; Sea and send then, to .Silka. 1 n^turned to the
" sch- iner, when tlu; lieutenant asked me for my j;uns and spears.
" Me v..)ok a breach- loadin;; <.;un and a mu/.zie-loadei", but refused
a French musket, which 1 otleri'd him. He then left with his
' men. leavin;; one man on hoard. The Cutter tluMi steamed
" away. The lieutenant told me before li'avinjj that I was rtvo

■ miles southeast by east from IJnimak I'a.ss. After the Cutter
" left the Unitetl St.ites sailor told me he was in charj^e, but ho
"never attempted to interfere with the workiu}^ of the vessel.
"Some time jifterwards he showecl me his written instructions,
" which were that the vessel should proceed to Sitka ami there
"be handed over to the United States Mar.-hal, and that the

' Ca[)tain and .Mate should he arrested. I then concluded I wcaild

• not ;;o to Sitka, but would continue my voyajje. That nijrht

■ we made some new spcai's, and next morning commenced

■ hinitinjx as thoujjh nothiuf; had happeneil. We captured tifty
" seals on that day an<l ninety on tiie next: kept on huntini;

■ imtil the ITlh Aufjust, when bavin;; 'AH) .seals on board, I left

■ for the south. After passin;( throu;j;h Uninuik Pass I told the
' prize crew I should steer for Victoria, lb; rei)lied, ' 1 ahvay.s
' ihoii^ht so.'

"The Indians told mo that if the United States s.iilor

atti'Uipted to take the vessel to Sitka they would throw him

"overboard. We arrived in Victoria last evenini; and t )-d;iy at

■ noon the prize crew came ashore au'l repoiteil at the American

" Consulate."

In connection with that the United States Argumont says : —
|>a^c 4.S7.

4(»

.■)((

(ID

ii:.; r

ii'

ii w

!1k

w^^

(Sir (^liiirli'M IliljInTl 'l'ii|i|)or'H Stroiul Ar^uinont.)

" Tlic NcliooMur was ordureil to prococil to Sitka. 'I'lie iiiHtrnc'
" tions wi'i'u not oheycil, and lliiit ni^lit nwulo Honiu nuw N|iears
"mill iH'.i't }iiiirni III/ riiiaiiii'iii-til Iniiili ini nn tlmiiiili iiotliiiti/ Iniil
" h<ii>pc)\vil ; wi' ciipturod ')() Hfals on that day an<l !)0 on tlir
" next.' Kupt on hunting; until the l7tliof An;;ust, whun havin;;
" .')()() seal.s (in hoard, 1 left for the .soutli. Aftt-r paHsin^ throii^ji
10 " I'niniak I'ass I told the pri/u v.Yvvt I Hhoiiid .stot'r for Victoria
" Ht' ri'|ilii'il, ' I always thought so.' This Indians told nii; that
" if thf Tnitcd States sailor attempted ti) take the vessel to Sitka
" they would throw him overhoanl. NVoarrivetl in Victoria last
"fvenin;; and to-day the prize crew came ashore and reported at
" the American Consulate."

Mr. Warren : — Have you taken up the ease of the ' Minnie.'

Sir C'has. Ilil)bert Tupper : — Yes. I would refer your Hcaiors
to paj^e VM of the Ainerie.in Urief, where particular attention is
calliMl to the fact that next inornin;; he cjiinnenced sealing as if
20 nothing had happened.

On cross-exainination tlie witness testified .— " Q. And thf
" next morning; y(ju eomincnced sealing; as though nothin;r hud
" happened '. A. That is what v e ditl."

1 would also call your Honors attention to the Record, pa;,'e
144(), line l!l, and following, in coinieclion with that. Showin;,'
that sealinir there was while wind wa.s calm or calmed down ami
the ve-sel sealed till wiiiil came and then they went away. Also
see Record W'M, (pmted in Hritish Aijjument. 14.'{, where May-
ne.sen eAplains See also United .States Argument, paijo4;)I) and
30 Keeord 144'i, showing; vessel was liecalmed, hut after that went
north-east. And also to the statcmi^nt at pajjo 427 of the Ameri-
can Ar<,'iunent and paye A'.\H : —

" Q. Then you were where sealH were at the time, if you had
" taken that many, were you not f A. The Hrst few days we
" wasn't far awa}' from whore the seals were, because as the
"navijjator states, the wind calmed down and we <liiln't go far.
" We lowered the canoes aixl .sealed right tlle^^ Then when the
" breeze sprang up again wo came away.

" (l Where f A. To the north-eaHt.
40 " Q. When you .say you were around Annak Island, you do
" not mean that, do you ; yon mean that you were to the nortli-
" ward of Aiuiak Island !' A. We were oH" the Island.

" if. Northward of the Island ? A. Well, to the north-east :
" it bore north, north-we.st as we started.

" Q. That is your ship bore northwest from that island '
'•A. Ve.s.

■' (^). And you were a considerable di.stance from the north
" west of Annak Island f A. No, I don't tliink we were a
"considerable distance because we wore pretty cIo.se around the
50 " land."

I refer in this coiutection to the evidence set up at page 142
<jf the Hritish argument wliere Captain Jacobsen describes what
he did after the seizure, and I Hubmit, tlmt taking those refer-
ences that I have given, and also page 143S of the evidence of
Magncsen (pioted in the Hritish argument at page 14:i, your
Honors will tind that the statement made in the argument in
the case of the 'Minnie' in the Hritish Argument \h on the
whole correct. There is in the United States argument a (luota-
tion from record page 1437, line 37, and that .sliould Imj followed
CO up by the next ((uestion and answer for a full understanding of
the evidence at page 1437, lino 37. Reading pivge 438 of the
United States argument :

On direct examination by Mr. Heique:^— "Q. After being
" ordered out had you any conversation with tlie master of your

5«0

(Sir Cliarles HibbtTt Tupper'H KccuikI Ar){uini'nt.)

" \eHHf\ iiM to wliat you wouM <ln ! A. Vt-t, we talknl tlio
" iiiitttor (ivur hikI wo coiik* to tin! coiicliisioii tliat wi> wiimu'i ;;uin;r
•' to yo out of Kehriii); Son unless wo woro tnwod out. "

Tlio rofort'iico to llio ovidoiico in the Anioriciui Hr<;uiiiont
stops tlioro, liut tilt! witiiosH coutiiiui'il :

" tf. l)i<l you coiiio to tlio conclusion ol' n^niiiinin}; on thu
■ sfiilin;; j;roUM<ls wlioro you wore' A. No, we stooroil towards
" tlx' I'lisH until ovenin;;, iiixl in thi* ivonin^ we wont ii|i to llio
" nortliward, >tcorod to northoiist."

In tliis connection tlien read lust para^nipli on pa^o 4:tS
I'nilod Stati's argument and .lacol>sen's statenioni refern-i| to is
iniderstiKKl.

'i'lion at pa;;o 441 of the I'niti-d States iirgunient there is n
reference to the 2, !)()() seals that weio taken up lo August 2;lnl
"20 — ""'' '" '•''''' eonuecti(jn I would refer you to pa^je 1,443, lino
22 of the reconl.

Mr. Varren : — Where did you yet the 2,!K)() from; our ar;,'U-
nient .'

Sir Charles Hihhert Tuj)per : -2,(i()0 is it !'

Mr. Warren : — l,(iOO is the correct number.

Sir CliailcH Hihliert Tupper : — 2,(i00. I will refer you to pajjo

1. 44!> of the evidence, line 1: "I had close on 2,(100 seals that

year." That was in ISOO. And lie says the Indians thoui^ht

that enouj;li and that is why he came 'lut of Sea. I'ayo l,4+.'{,

no line 22 of the record contains this:

" (,>. When you luid nolhin^j to fear you ma<le jjood ctitches ?
' A. I have done it before that and have done it every time of
" late ; several times 1 jjot 2.000 ami 2,(iO',) with the schooner"

'I'lie liritish Ar<rument, pa;;i> I4.'>, in this connection has
reference to Captain Shepard's report, as to the number of seals:
' She had l)een in Hehrin;^ Sea since the 27th of June and was
• found to have 41X fur seals on board." And,althouijh we claim
tin- smaller number, 420 of seals stated to have been taken, thu
iiference on paj;e 440 United States Arfjument would make it
40 appear that we had 488 skins, and a calculation is ^onc into at
page 488 on that basis.

At pajje 440 of the United States Ar;jmnent there is a refer-
ence t<j the catch. On referrin>j to p.if;e 1441, lino 20, of the
Record, it will be seen that in the calcidation, that of the.se 18
days seven were not lowerin^j days. The weather up to July 1 5th
was referred to at pa<;e 1441, line 47. In that calculation no
allowance is made for 7 out of the 18 da^'s were not lowering
days. I would refer your honors to llecord, 1441, where il
apfiears the number is 418 or 420. At page 445 of the British
Arj;ument it will lie seen that we are only charjjinj; for 420.
.")0 Mr. Warren : — You are jjettinj; them all mixed up. There
were 488 taken after the seizure an<l 420 before.

Sir Charles Hibb«!rt '''upper: — It will be a (piestion as to
which of us is mixed up. The reference I have given here shows
418 skin.s.

Mr. Warren : — With reference to the catch in 1890 he was
rxamined explicitely as to that at pa>;e U(i4 uf the record, and
ho testitied at line 3 that he took 1,«)0() seals in Behring Sea.

Sir Charles Hibbert Tupper: — I have {jiven my reference to
that, and what I make it in 1889 is that there were 418 or 420
(id taken, and we have char^jed for the 420. If I am wrong and
my learned friend is right, that will give us 488 skins and my
observation will support the other statement I have made, that
in that calculation there ought to bj seven lowering days
deducted from these 18 days.

! «

H li

«40

(Sir Cliurli's Ilil)loi'l TupptTM Sccoml Ar^rniiieiit.)

At [>i\f>e 441 of tlio Uiiitcil States Ar^uini'nt tlioru '\n a rcfer-
cnce to tho Kcconl, paijo 1447, lino !i'.\, ami l>y tiiiKtaku thoy refer
tu the aliHiiiloniiieiit uf Healing in \HHH, its on the 3r(l of Septem-
ber. Tlio UeeortI, pa>{e 1447, shows that it hHoiiIiI be September
7tli, instead nf September Krd.

Then as to that other Htntemunt toucliing the catch of 1 S!)0,
Ww expianatiiin };iven for having; on that Any is thiit tho Captain
had seaU eni>iit;h and liad made money eiioii);h. Tho Record
HhoWH tha^ tiin nii'ion whh tiiat the Indians thought they had
hunted l< .i^ enough. In order tn bo Ntrictly accurate tliat cor-
rection muKt bo made.

At pn^c 441 of till- I'nited States Argument th('re is ii n.-fer-
encc to (he Britisli (iovernment Hondin;; Commissioners to
Vietoriii " to pay the senh-rs for the losses incurred by reiisun of
" btiiit; deprived of hunting in the Sea in tho year 1H!)|,and tiiis
" witness received from Jlii- (iovernment of (Jreat Britain the sum
" of !?S,()0O for diuna^jes suH'ered by two Hchooners." Tlint it not
Hit accnra(e stnlement. The Kecord reference is pa).'« 1447. The
indemnity there was as set out in (he l^ritish reply, pajje ."lO, for
the cost of tittinjj the vessels up ; and I would like a special note
nuide of that, if your Monnrs please, that it is dealt with by the
Hrilish Arj,'ument in reply at pajje .SO.

Mr. Warren : — Where is the citation from tho Uecurd that
that is what it was paid ft.r ?

Sir C. II. Tupper: — The nri(i>h Arytiment in reply, pa^je ">()
dtals with that, 'i'liere is no citation that will shew tlmt thi'
S<H,(H)0 was for ('ama;;i>s that were sud'efeil liy the two .schooners,
ami that is i\olorious|y contrary to the facts. Tho (loverinnent,
never pretended to pny on that basis.

Mr. Lniisin;,' :— There is nothinj,' in tlu! Uncord to shew it.

Mr. I'eters: — There is nothing in the Record to shew tlu?
contrary.

Sir C. II. Tup'^er : — In (he case of tho " .Minnit! " at pajjo 14.'),
there is a referen^ to Appemlix 1>. pa^je 200. That is in the
(aliuluted stntenie.it. That .-hoidd be 270.

MR. BODWELl'S tROUVENT ON SPECIAL CASES.

, \m

The "Saywaud."

10 "Mr. Boilwell :— I iflur your Honors to a coiisidtTiition of
tlio CHNH of tliu"W. P. SHyward." (Jiir Htali'iiit;iit of tlint chnu
is sot out ill tlin Kritisii SUituint'iit, pu^us 110 an<l 111. 'i'liu
vossd WHS rcturiieii to tiit; owners iiiiilcr tliu boiul tliut lius jiihI
hwn ii'ffiTfd to in the ari^iniitnt of my fiieml Sir CiiarleH
TuppiT TiiorKfort- tliiMi* is no cluini for tliu vaiuo of tiiu
Hcliooncr ill tliis caso. Thu grounds on wliicli wu lut.^e our
dciiiand aro fairly siinuiinriziMl in tiiu ar^'iiiiiLMit for Oreut Britain
ut tlu' pii^<-'< i liavu iiutntioned, and iiucd not l)f ispt'ciaiiy
ruforrud to at tliin staj^u. 1 shall only notice one or two of tlit

20 olijcctioiis, which an; made in thu United States Argumene
hi»;{innin;^ at page ',iH'2.

Before proceedinj; to that, however, tla're \v;iS .some evidence
drought out in this case, leferriiig generally to a suhject which
has heeii (\ften spoken of in the argumt"'-. whicli have pive. led.
At page 114S of the Record, lino (iH, tain \Sarren on cross-
examination said : —

' t^. It was pretty well knr>\vn then in Vi .toria from the
" experience of iHNd that there would he .s<'..iuv . in the Behring
;{() " Sea. A. No, I think not. It was reported in the |)apers that
" the vessels seized in ISSO \.ere to he i (.turned, and we supposed
" that ended the seizing. \Vu took it for granted that there
" would he no more seizures."

At line 20, page 1,14!):—

"Q. Do you saj' that you <lid not expect to he seized if j-ou
" went into Behring Sea with this lleet ! A. I did not expect
"it in l.S«7."

At page IKi'Jon re-direct examination : —

" Q. Can you n-collect sutliciently now to speak of what
40 " you actually ha^' heard of the situation of the Behring Sua
" disputi! in 1>.S7 ^ l''or instance were you aware that the
" Kiiglish lii>vernment had endeavcu'ed to oti'ain dulinite iiifor-
" Illation from the United States (>overnmeiit as to its policy
" that year ? A. I knew they were negotiating ahout the old
" seizuri's.

" Q. Was tliere than a rumor that the United States in-
" tendi!il to reniime seizures that year ? A. I think not, I know
"our authoritii's here told us there would he no ilanger.

' Q. The authorities of the port of Victoria? A. Yes.
.")() " (^. Who? .\. Atthecustomhou.se.

" (} They expressed the opinion that there was no danger ?
" A. No.

" Q. Was any order left hy the cutter ' Walcott' on the Hub-
" jeet at Hiis port or anywhere and eominunicated to you, any-
" thing in the nature of a warning ? A No, not olKcially.

" i}. You heanl of no warning ? A. No.

" (}. You were alMiut t .say what you reimiiihered ? A.

" Some man on the cutter, I Nuppose a deck haiitl, 1 should say an

" or(|inarv man on the cutter, made ^o■Me remark that thev

(io •• would be Ht'izefl again. It come from tliis Munroe. He told

' some of them.

' Q. That they heard from a deck hand on the 'Walcott?'
■' A. Yea

"Q, And you put that down to he an attempt on the part

• J 1 ■

' ll i'(

» If .' ,

1 '

U |1

rrr

;jo

542

(Mr. Bolwell's Arj^tnent on Special Cases.)

"of Muiiroe to prevent others from getting Indiana at that
' point ? A. I siippo.tetl lie had something of that kiiul in
" view."

At page 38-1 of tlio Unitoil States Argument it is contended
that the United States are not liable to repay the sum expended
IQ by the nuite Laing on his visit to Victoria during the period of
hisimpriHonment. The evidence which ia there (juoteil sets out
the circnnjstanees fairly enough. The point is this : Laing had
been arrested and taken to Sitka : he wished to go to Victoria in
order to .see his friends. Before lu^ was allowed to depart, how-
ever, he was put upon his parole to retiu'n. The journey may
be saitl in every respect to liave been caused by the wrongful
act of the United States in arresting him. There is no (piestion,
but that his return journey was dirtictly in conse(|uence of
such act. He might have come to Victoria, and, if ho had been
allowed to remnin.of course there would be no claim on liis behalf;
but, having been compelled to return, we think the expen.ses of
that journey are fairly chargeable against the United States, if
your Honors consider* that he is entitled, under the circum-
8ta!ices mentioned in the evidence, to indemnity for the impri.son-
ninent which occ»n"red.

The l\)mmi.ssi()ner on the part of the United Staten : — Who
do you say paid those expenses ?

Mr. Bodwell : — ^The mate of the vessel Laing.

Mr. Lansing :— Do you claim for his imprisonment at the
same tinte f

Mr. Bodwell :— Here is ?10() actually disbursed. The amount
which is claimed for damages might, of course, include a smn
sntficient to cover this $100. (Jn the tiieory upon which tin;
ca.se was put forward that these damages were to compensate
him for his suHering, iianl.ship. and tiie indignity which had been
intlieted upon him, it would not be fair to deduct from that
allowance, which we think is only suttieient to cover the items'
1 have just mentioned, the sum of JflOO actually disbursed I'oi-
a journey, maih- necessary on aci'ount of his arrest.

At page '.IHrt of the United States Argument the United
States contend that they are not liable for the item under the
heailing " Helyea's Charges." 'i'he evidence on that point has
been already referp'il to. I do not know whether yom- Honors'
attention was called to C'aptain Warren's statement with
referenci- to the " Sayward," which is at page 114:} of the
Record. There the witness says at line 40 : —

" Q. Do }'ou know anything about the legal expenses ut
" Sitka in the " Sajward " matter ? A. I don't remember just
50 " what was paid there.

" Q,. And there is a claim made of ?7.")0 for counsel, what is
"thatf" A, That wo\ild 1m' the same as the others — Belyea.

"Q. Anil personal claims have been made of ?'2()0. To
" what ilo thvy relate ? A. That would be a proportion of my
" personal expenses made in eiu-h of the case s.

'• Q. i suppose you have the same observations to make
" in regard to these items charged originally' in making out the
" claim in connection with the "(irace," the " Anna Heck," and
" the Dolphin " alnnit Ihese legal fees made for lielyea's claim,
60 " S750, and the personal expenses in connection with each, and the
" legal expenses at Sitka I A. Yes. "

My friend, Mr. Peters, has already argued to j'ou the ground
on which we base that claim in every in.stance where it is made.

548

(Mr. Bodwell's Arguiiient on Special Cases.)

The United States also contest oiirclaini of SI 000 for ex-

ImnseH in connection with the bonding of the " Sayward." My
i-iend, Sir (-liarleaTupper, referre*! your Honors to a jwrtion of
that evidence, namely, tho statement of Mr. Boscowitz, pajje 1976
and H)77 of the Record. I will jjive you the next reference,

Mr. Boscowitz Hhews what he did. We contend from the

]{) evidence before your Honors on this point that the sum we have

charfred for the cxpcn.ses connecte<l with that matter is not

unreawmable. I will read the evidence of Boscowitz, Record,

jiiij^e IDGT, line 20: —

" Q. Did you, as a mutter of fact, put in appeal bonds and
appeal the " Saywaitl " case f A. I did.

" Q. And she has got l)ack into your possession, or into the
possession of Captain Warren ? A. When I bonded her.

'■ i4- ^ cs. A. Captain Warren.

■ K^. And at the time she was bonded was there a mortgage
•JO on her to you ? A. There were two mortgages.

" y. When you bonded the "Sayward," it was done at
Sitka, I believe ? A. Yes.

" Q. Who was with you ? A. Captain Warren.

" Q. Had you gone up there for that purpose ? A. Yes, sir.

" Q. When in Sitka, in connection witii bonding that vessel,
did you incur expenses up there ? A. Yes, .some .small expenses.

" Q. And in addition to that you had to put in the bonds ?
.\. Put in bonds for SSS.OOO. "

;}() Now here are the expenses, that i!=, the acts done nece.ssarily
incurring expense. At page 1977, line 10, he testifies : —

" Q. When the ves.sels which are referred to in this case
" were seized and taken to Sitka did you take any steps to bond
" these vessels > A. Yes, sir.

" '}. Whure did you go to? A. I went to Port Townsend
" and Seattle to procure bonds.

" Q. Did you make arrangements for the procuring of
" bonds ? A. I did.

'• Q. Through your banks I believe ? A. Tiirough my
40 " l)anks here.

" Q. For all the vessels ? A. For all of them.

" Q. With these securities did you go to Sitka ;' A. Yes,
" sir.

"Q. When was that? A. In 1X88.

" Q. Did you have an application made to bond the.se
•' vessels ? A. Yt>s,

" Q. The whole of them ? A. Yes.

" y. When you went to Sitka whom did j'ou take with
"you? A. Captain Warren.
■'iO " (^>. Did you take anj* other persons with you ? A. Ves,
' iliere were captains and sailors and mates to bring the seized
" seliooners back.

"Q. For all of them ? A. For all of them.

" Q. Did you cause an application to be made to have the
" Tt-ss('ls bonded ? A. Yes, sir.

" Q. Did you make" any objection to the valuation then ?
" A. None whatever.

' Q. Was tlie application successful ? A. It was refused.

"Q. In all the cases ? A. In all the cases.
• iO " Q. Having been refused in all the cases, was it afterwards
' allowed in the " Sayward " case ? A. Yes, sir.

' (i. How long afterwards ? A. I think it was the next
" day or the day after.

'.s

m m

544

(Mr. Bodwell's Argument on Special Cases.)

" Q. The matter was re-opened and you were allowed to
'• bond her, and you did bond her ? A. Yes.

" Q. Was it your intention to bond them all ? A. Yes.

" Q. And vou went there prepared with the bonds ? A.
" Yes.

' Q. And with the crews and the captnin to bring them
10 " down ? Yes. "

Mr. Lansing : — The expense, then, should have been divided
aainnir the four vessels should it not ?

Mr. Bodweil : — He only bonded one vessel ; but he went to
all the expense necessary to bond the four.

Mr. Warren's evidence is at page 1177 of the Record, line
tiS, as follows : —

"Q. You were asked in reference to bonding the " Say ward."

" Do j'ou recollect how many bonds were actually taken to Sitka

20 " in the spring of 1888 for the purpose of bonding these vessels ?

"A. I think that we took bond.s for the whole of the vessels.

" Q. Those were the " Say ward, " the " Anna Beck, " the
" " Grace " and the " Dolphin." A. Yes.

" Q. Were not these bonds prepared in the United States and
" with United States sureties i A. Yes.

" Q. Do you remember anything about the captains,
" mates and sailors going up on that occasion ? A. Yes,
' I took several parties up in order to bring the vessels down.

" Q. What do you mean by several parties ? A. T mean
.SO " several men. I know Captain Keefe was one of the"i.

" CJ. Do you remember any of the others ? A. No, I do
" not.

" Q. Can you tell me at this moment without refreshing
" your memory in any way, how many captains you took up ?
I cannot.

" Q. Do you remember how nmny mates jou took up ? A.
" I do not.

" Q. Nor do 30U rememVjcr the crews ? A. No.

" <,^. Do you remember going going up on the " Karbani
40 " Boscowitz > A. Yes, we took the men up on her.

" Q. For what pnrpuse did you take these men up ? A.
" For the purpose of Ijringing the vessels down.

" Q. Which vessels i The " Ann i Beck, " the " Sayward, "
" th" " (irnee " and the ' Dolphin. "

Your Honors know, of course, that they would rei|uire a
captain, mate, and a certain number of crew.

" (^. Do you riMiiiMiiber lifter reaehing Sitka, an application
" being miidi' to bond the wlif.ie four / A. Yes.

" Q. What was the result of that ? A. It wiis refused.
')() " (.^. After the refusal, what oeenrred ? A. 1 think it wiis
" the next day they opened the court again, and gave us the
"privilege of bonding the ' Sayward " iigain.

" (.}. Of bonding the " Say ward " oidy i' A. The " Say-
' ward " only. "

-A.

We charge ?1,()()0 for all that trouT)le and expense. We
have it in evidence tliat the ordinary rate which was piiid for
j.-isscngei-s going up ami down in those waters was S.'iO. Nearly
all the eaptiiiiis and mates who came to Vietoria have told us
*i0 that that sum was the steamer fare. There would be a CH|iti(in
and mate ami at least four men for each ve.s.sel, and their hires
up and down wotdd recjuire to lie [>aid.

The riiited States in their Argument, at page nSCi, also oh-

548

(Mr. Bwl well's Argument on Special CaMea)

joct to our charge for tlie depreciation of tlie " Sayward." The
evidence that they have (|Uote<l shows that she liad been lying
uiicared for from the time of the seizure down to the time she
wiiH brought to Seattle. Captain Warren in the evidence there
(|Uoted, and also the Kecord, pages 1104 and 1165, uays that
there were a goixl many articles which were on the vessel at the
10 time of seizure that were not returned with her, although he
was supjK)sed under the Injnd to get everything back that had
been seized. He says at page 1 104: —

" Q. Now_ Captain Warren, <lid you get Imck with the
•'Sayward' any of this personal property that you have men-
" tioned as having charged again.st the Unitetl States ? A. I
" do not rememlu'r exactly what was cm the ' Saywanl,' but I
'• know that the stuH' that was suppcwed to be on her when the
" list was taken at Sitka was not in her when I got her back,
" and which I was .supposed to have got back with the bonds.
20 " Q. When you did get her Iwek did you take an inventory
" of what was on her ? A. I think I did take an inventory of
•' what was short.

" Q. But not of what was on her ? A. I do not remember
" that I did. I know I had an entry of what there was that I
" should have got and did not get.

" Q. How did you take an inventory of what was short if
•you did not have an inventory of what was on her?"
This is in the crosH-(>xamination.
" A. I had the appraiser.s' inventory.
;{0 " Q. The Sitka inventory you mean ? A. I had a
'■ niiMiioraduin of what the appraisers had.

" (). Where is the memoran<lum from which you checked ott'
•' to see what was missing on the ' Sayward f A. I do not
' know where it is just now.

" Q. How could you take an inventory of what was not
" in the " Sayward " when you had an inventory of what was
"on her ? A. I had a memorandum of that inventory in 188S.
" When I bonded there I got a niemoramium from tlie man that
'took the inventory and made the appraisement, and when I
40 "came to look over tl:3 vessi'l there were curtain things not
" there, and I entereii them.

" Q,. What wan not on her then that was on the " Sayward"
" when slie was seized ? A. It is hard to suy from memory,
' but 1 know there was a kedge, I think a gatf topsail, a stay
" sail, a ship's compass ami running; gear.

" Q. Wlien did you gt-t the chronometer liack ? A. That
' was given back before.

" Q. Did you get anything else bnck before she was bonded ?

" A. Tlio chronometers were given back, and ail the sextants,

.")() ' mill (luadrants ami other things. 1 think they were given

" back at Sitka Imt I cannot be positive as to the day

" exnctiy."

It is quite evident that there were a nuuilier of artieli!s
lost, if onlj' a few unimportant articles were missing he
would not liavc pone to tlio trouble of making a list. It can
lie well understouil from the manner in wliieli these vessels
wi .•e dealt with, that a very large number of articles, aggregating
in value a considerabh! sum, eonid have been takiMi away: ami
that such wns the case is plain from the evidence of Captain
(10 Warren. We submit that, lir.'iiig re^jard. to the necessary
depreciation of the vessel untler the circmnstances, ami the
loss of these articles, which is not dispute<I, we have made a
very reasonable charge in the 1?2,0()() which we claim a.s depre-
eintion in value by reason of the seizure.

i! •

fii'i

546

(Mr. Bodwell's Argument on Special CascH.)

At pigo ;iS7 of the Uniteil States Arj^iiinent, thore u a
statement that our char<;c in. the bill of particulars of loss on
account of not lieinjj l)ein<» able to use the "Say ward" in
coistini» <iurin<T the winter is not justiKed. We make a clmr<;e
of ?!)00 for timt loss to the owner by reason of detention in
1HS7 and I.SSH when, if in owners possession, she woultl have
been coastin;^ in November, December and January ; — tliat
would be three months in each year.

In tlie Unitcfl States Arjjument at page 387 we find this
statement : —

" There is no evidence before the Commission that this vessel
" hud ever been entjagpd in the coastin;» trade other than wa«
" usual in connection with a sealinjr trip on the coast in the
'■ sprinjjj months The mnr<^iri)il rel'iTcnces which appear in
" connection with this claim do w t boar out the .statement made
" in the Arj^ument on behalf of Cirent Britain."

As to the item for roKstintr, the reference i.sat pajjes OOO ancl
94(i. In the United .States Argument it i» allejjed in respect to
this claim that the evidence doen not bear out the statement
made on behalf of Clreitt I^ritain. Such tin assertion nni.st simply
be a play upon words, btscausc Captain Warren swears, although
he does not specify this particular vessel, that all his vessels
were so used : —

■'Q. A (piestion I omitteil to ask j'ou, Mr. Warren, ami that
■' is, what u.se you maile of these vessels after your coast seal -
" inj; < A. Sdoie of them I used to do freightinj; with.

A. The fall and

In what seasons of the year ?
Did vou use the 'Thornton' for

that purpose ? A.

" winter

" Ves r

Then at line 30, page !)()(! : —

" <^. Wli.it 111 •( li.iu \i»i ill I SS'J engaged in that business of
" coasting and sealing :' \. I had the ' (Ji-aee,' the 'Dolphin.'
"the ' Arnia Hi'ck,' the ' S.-iyward' aiiii tlie ' Thorton.'

" i). For how many months were they out on a cruise in
•' l>iH2 < A. For .about four months or a little over it.

" Q. In IS.S3 what tleet had you out sealing and coasting ^
" X. I thing 1 had only three sealing and coasting vessels that
" year.

"(.^. What were these:' \. The " .\nna IJeek." the
""Thornton" and the " Say WJU'd."

" (.),. And ill I.SS4 ! A. I had live out again that year, tin'
■ "(irace," the "Dolphin," the " .\inia Meek," the "Thornton '
and the " S.-ivward. '

4^1

Th.'it evidrnee should be read in conneetion with the evidence
.■,() at page '.♦4t!. It appears that this vessel was eoiisting after the
scaling was over. The meaning of the witness is clear, and if
there was any defect in his ti.-stiniony, if my learniid friends did
not imderstand it, it was theii- place to clear it up on cross-
examination. As there has been no cross-examination yourHonors
should construe the evidence according to the intent of the
witness as it appears from the language he used when all of it
is read together.

TiiK " Kate."

I shall not take up any more time on the " S.ay ward " Tht;
ground on which the claim is biused is necessarily covered by the
jK)ints taken in other cases. I now refer to the case of the "Kate."
Uur statement of this case in contained in the jjrinted argumcut

547

(Mr. Bodwell's Argument on Special Cases.)

of Great Britain at pages 152 and 153. We claim tliiit the
" Kate " was ordered out of the Beliring Sea on the l.'Jth of August,
188!); tliat she immediately changed her course and started for
the Pass, leaving the Sea on tht; 18th of the same month, and
was interrupted in a voyage which would have continued to the
1st October if the United States cruiser had not interfered with
10 the movements of the vessel.

The contention of the United States is that the " Kate " did
not stop scaling hut continued in the Sea for the whole of the
■eaiing period. That makes it necessfiry for me to refer your
Honors to the evidence as to what actually happened.

Mr. Warren : — If you read the contention of the United
States at the bottom of page 4()0, it does not put it that way.

Mr. Bodwell (reads): "This vessel is entitled to recover from

the tJovernment of the United States demurrage, as in tlie ca«o

of detention, from August IMth until the close of the seaUng

20 season ; that is for a period variously estimated at from two to

seven days. "

I understanil your argument to be that the " Kate" stayed in
the Sea un^il the 18th, which is practically as late as she would
have .stayed under any circumstances.

Mr. Warren :--Yes.

Mr. Bodwell: — We claim until the 1st of October. The
I'nited States said she would have stopped .sealing on the 25tli
August.

The Commissioner on the part of the United States: — Is not
;tO t\n\ difference to be solved by a determination of the length of
the ■sealing season ?

Mr. Bodwell : — In one sense that may be considered to be
so: but there are other contentions in this argument. The con-
tention on page 458 is that your Honors should draw an infer-
ence thattlie rea.scm why the " Kate" left on the IStli v.-a:i not on
acci)unt of the warning, but on account of bad weather.

Now byreading the evidence on page 1;178, from line 15and on
pMge I :{S(>,your Honors will notice the.se facts; that the revenuecut-

41) t''''sightecl hertlie llltii of .\ugu8t and that slie was then warned.
Sill' imruediateiy turned her course, t')ok another direction and
ln'M(led for the Pass. At the tinieof the seizure she was at 54.45
latituile and lt).5..S() longitude. The next day was calm, a heavy
si-a from tiie westward and no wind, they could make no progress
ntiil tliey .sealeil. The next day, on the 15th, the wind was
soiitiierly anil it wiis plain they could not make any satisfactory
|ir(igres8 amj tliry p'.it tli'ir hoits out. On the Kith there was a
hoiitlit'rly wi;<d and thick fog, and it eonti)nie(i foggy the whole
iif the day. At line 32, page 1379, the mate says that they were

-,, tlien trying to get tiirough the Pass and that tie'ir latitmle and
liin^^itiide were — l(i.").3() west longitniltMind 5."). 04 latitude. On-
the ITtliatnoon the wind was .south-west the sea rough; they st-t
ii'ifcd main sails and jihand stood on the starboard taek until 5 P.
.M. vvi'iiton tlii^ port taekand close reefedall sails, wind continuin;.j
the siiiiif, strong heavy sea, rain and fog. Tlie pohition was
.")r).Oi, jiititude and ioni^itude 105.20; on the ISth they srt all
■sail, and at 4 P. M. they sighted Ugomak Island ami at 8 P. M.
ehaiiLji'd courst* until Kait of Ugoiiiak Islainl iiearl'g East North
lvi-.t Hve miles, and that wind took them throui'h fe Pa.ss.

The evidence r)f Moss on page 1380, line 00, shows the same
condition of wind and weather and he makes the statement that
lie y could not have got along any faster tliai\ they ilid in the
direction of the Pass. At line 55, on page 1387, he gives the
folio winn evidence : —

li'f.l

, m

1' ,;»

!■ 1

•.' Il

SA»

?-t<*.,/i.

Mr. Bodwell'H Argument on Special Casen.)

" Q. As a matter of fact, what caused you to leave when
" you di<J leave ? A. On account of being afraid of seizure if
" seen again.

" Q. Any oilier reason ? A. No, not that I know of.

" Q. If it had not been for the warninc would vuu not have
" have eone or would you have gone 1 A. We would have stayed
10 " there. We had a lot of provisions and water and everything.

" Q. Was there anything in the state of the weather to
" drive you out of there ? A. No, not then. It woa all right.
" We might gi't a day's blow but we did not mind it. I expected
" lots of Hne weather after that day. "

Now to show that the weather was not such as to indicate
the end sf the sealing, we have the undisputed fnct that from
the llith to the 18th there were at least two days of calm
weather and three days on which the boats were out sealing;
20 yet, there is an attempt in the United States argument to con-
tend that the vessel went out on the 18th by reason of the
stormy condition of the weather.

The Commi.ssioner on the part of the United States : — The
United States case admits that she was entitled to recover which
necessarily means that she went out on account of the warning'

Mr. Bodwell : — Yes, and they also take an inconsistent
position by referring to the condition of the weather, thus :

" The sealing .sen.son in Behring Sea was practically closed
and the damage sustained >)y this vessel very slight."
30 Mr. Warren : — That is in regard to the duration of the
season.

Mr. Bodwell : — I do not see the point of the statement unless

j'our Honors aic asked to draw the inference that the vessel

• left on account of stormy weather. Why, for instance, should

the evidence of Ileppen at page 459 be (juoted unless it is

inteniled to found an argument upon it.

The Commissioner on the part of Her Majesty : — Would
not that be left to the reply ?

Mr. Bodwell :— Well, 1 will leave it.

The Commissioner on the part of the United States: — The
United States states that her total catch in Behring Sea was
740 seals, at page 458 at the top. Do you agree to that?

Mr. Bodwell : — We claim for the skins taken from the time
of t.ie warning until (October. On refering to the tables wo
(ind that it is 700.

On page 45!) of the United States there is a quotation of
the eviiience of Moss, which 1 wish to explain : —
50 " Q. What boat were you on in I88t>? A. The
" ' Favorite.'

" Q. What time did )-ou leave the Sea ? A. About the
" l!)th of August I think.

" Q. What boat were you on in 1887 ? A. I was on the
" ' Kate.'

" Q. What time diil you leave the Behring Sea ? A.
'• Twentieth of August, or a little later ; I don't remember as
" to tt I lay or two.
in ^" What boat were you on in 1888 ? A. The ' Favorite.'

"(^. What day in August ilid you leave the sea that year ?
"A. 1 do not remember what day it was; it was late in
" August."

We know that she left because of the warning ; she left

649

(Mr. BcxIwellH Aifjunu'iit on Special Ciihcs.)

lipcansc nIio saw otlier vouseU being seized ; I refer to page U41
of tlie ReeoVd, linen 1 to 10;

The ConiniisNioneron the part of the IJiiiteil fstateH ; — i Jo you
want to jfo over tlie evidence again t

Mr. Hodwell : — I merely wIhIi to refer to V.a: case of tlio

" Ka»" " and explain tlie evidence <|noted here. With reference

1(1 to the Heanon of IHHH, we know from the evidence of (iaudin

that there wa.san impression coming from Custom HoUHe otticurn

that tliere waH to he Neizures after tlu! 2()th of Angu.it.

Thk " Akikl."

The faetH with reference to tlie "Ariel,', are set nut
in otn* argument at page 140, commencing with line MO
and reading <lown the whole page l.')(). It appears that the

.)() " Arii'l" at tin- time of the .Meizurc was in a pliicc where Heals
were more than ordinarily plentiful. She was warnad, but
apparently did not intend to obey tlw warnini^ ultlwingli her
eoin-se afterwards was always southerly, but on the IHth of
.•\ugustshe spoke a niMuber of scjilers atid from tin- reports thus
rihlaiiied the captain deeidi'il to leave the Sea at once. The entry
in his log being to this etleet : —

" It is (piite clear that many seizures will be made this
.sea.son- perhafiH all the vessels that remained in the Sea."

Wi- have evidence that this schooner was fitted out to remain

;;() until Octobt'r in the Hehring Sea. A definite agreement was
made before leaving the port. We therefoi-e claim for the total
stojjpageof her voyage from the IHth of August until the end of
( >clol)e|- ; and we also claim that during the period from the time
she was warned until she left the Sea, her aealing operations wcM'e
interfered with. Of coiw.se, she was not oft the sealing gniundn.
SheeontinMiie<l taking seals, 'i'bat fact speaks foritself. Mut when
she was interrupted she was in a position where she came upon
an unusnally large ipiantity of seals. She left the good sealing
gro\nids in which she then was.

^(( ( )n the day sliewaa .stM/.ed, notwithstaiuling the warning,

tlie boats went out and took a very large num))er of sealu, and
witnesses say that there was a m<ist remarkable number in
sight.

The claim, of course, is for the interruption of the voyage,
and the stoppage of the sealing for the long pe|-iod that would
have eiapse(l iietween the IHth of A\lgust and the 1st October.
We have only charged till the 1st OctobiT in our claim.

On })age 44S the (juotation from the evidence of Captai
.■,() I'.uckman is nia<le where hi; is asked if he did not lower his boa.
everyday. At page 711 of the Argunu'ut for(!reat liritain we
set out the e.xact number of sealnig days that we had and a
concise statement of the o])ei'ations of the ves.sel during that
period.

The (.Commissioner on the part of the I'liiteil States: — I will
be glad if 3'ou will ex)>lain at the beginning of the next sitting,
why it is that in s(ane cases you make a chai'ge for illegal board-
ing ami in other (Vi.ses the charge is not made.
Mr. Hodwcill : — I will do so.

n
tat

(III

At half-past two o'clock the ConnniHsioners resumed their
scats.

Mr. Bodwcll, continuing : — At the monu'iit of adjournment,
your Honor asked me to explain why we made a charge of

ft 141

'tlfn

-'■f\\

I '

I 1

i(i ' 4i 1

li'r

■nil''

550

(iO

(Mr. B<hIwoI1'h Argunit'iit on Specinl Cases.)

$2,000 for tlie ilL^... boanliii^ Hndsean-) in the case of thi'
" Ariiil," and fliil not niiiKL' it in the c»wo of the "Kato. " The
reii-Hon is that the " Kate " was not Imarded ; the cutter came up
beltinrl her in the iieavy south-east gale, she was spoken and
ordt^red out.

Coniniissioner on the part of tlie United States ; — I supposed
that was it, but I wante(i to l>e sure I understood it.

Mr. Bodwell : — Taltinj; up tlie argument as to the sehwiner
" Ariel " at the point I wa.>i about to aildie.ss myself to when tlio
a<Ij()urnment toek place, at page 4.")2 of the United States Argu-
ment tlittre is a xtateinent that the testimony of C/aptain
Huckman is entitled to no weight: —

"The testimony of C^iptain Huckman is (;ntitled to im
"weight: oTi the Record he has convictud himself of tin; wilful
"intention to deceive as to the voyage of the •' Ariel," and his
20 " claim should be considered as an attempt to nnilct damages
•' from the (lovernment of the United States for the interruption
' of her voyage from the .SOth of July, when in fact she con-
" tinned her huntin<; operations until the ISth day of August.
" and be treated with accordingly. "

An explanation should be made on behalf of Captain Buck-
man. He was first calleil to prove the "Ariel" catch in 1HH9. Your
Honors will remember that we were then proving the catches of
dilferent vessels in order to show what amount of seals could
bi! taken in Belirin:^ St-a that j'car. Tlu'rc was no intention
of e.Kaniining Captain Bueknam in relation to the "ArieP's"
claim for the M/iison of ISSK. 1 bad taken instructions for
C'aptain Bucknam's evidence, and was not in cotu't that morning,
and did not know he was to be called. 'J'lic rrsnlt was that
there was II matter known only to me: and Mr. Peters was not
aware of it.

The log of the vessel and other books were lost, but there
was a private diary of ('aptain Bucknam's, which hud
been in my possession some months That diary was not
in court tiu.t morning because I was not there. W'iien he was
j^iving bis cviilciici; lie was askeii a (lUestion as to the time hi!
left tlie sea, and in a moment of forgetfiilness he gave instead
of tliat, tlie d ite on wliieli In- was warned, which was a difi'erent
dat'' aitogetlier ilie :!Otli cd' July, whereas, as a matter of fact,
lit! dill not leave the sea until tlii' Ihth of August.

Tlie witness is not to be iiiameil for that at all. He hail
,, ;,,t,,t.f;..n ,,f deceiving any one, and in a very few minutes,
when his recollection was refreshed, he admitted with tlu' utmost
fraiiUiiess, that the statement be had previously made iiaining
another date in an allldavit, must have been correct because his
meiiioi'V was fresher when he made the afiidavit than it was
when he gavi; his testimony.

In the afternoon I brought the book over and it was pro
diieed. and what happened is stuteil in the |{ecord. The diary
was then read, and I submit thei'e was no attempt on thepart of
the witness or counsel to mislead the Commissioners.

The ("ommissioners were tolil, when Bueknam was first
called, that he was not to be examined on the voyage of the
"Ariid " exci'pt to ])rove the catch for ISSt), ant] trat he would
be recalled to testify as to the voyage.

If your Honors will reail the whole of his evidence on the
jMiint you will see that the witness was sjieaking frankly,
but there was a failure of recollection as to a
particular date, which was not remarkable considering the

551

(Mr. BoiIwuHh Ar^iuuent on Special CiweB.)

circum.stiuici's under wliidi lie gnvo his i.vidence, having ..o
opportunity to refresli Imh memory.

I will ref(T your HonorH to page 704, lines 20 to (iO ; page
705, lineH .'10 to 40 ; page 70«5, lineH ;10 to 50 ; page 708,
line 20; page U(iH, lines !(> to 00: I think that iH tlio
whole of the evidence relating to this matter. 1 Nhould
10 he Horry indeed to have Captain Hucknamn evidence dis-
t-redited on a matter of this kind, hecauHe the witness woh not
to hiame. If 1 had heen in court, it would not have oi-curred,
iieeaUHe I knew all the facts, and his memory could have heen
refreshed, and he would iiHvo given the correct date when a.sked
the (pieFtion.

With reference to the outfit of the "Ari'd," and the time it was

iiitcndeil she should remain in the Sea, 1 will give your Honors tiie

pages of the Ri'cord where the evidence occuiu 1 read some

20 portioin of it the other day, hut it is convenient to have the

pages noted here again :—

Page I4(i7, line 50; 1487, lines .50-70 : 1484, line (iO; 1485,
line .')(): 1488, line 10.

This evidence will show that there was an agreement he-
tween the captain anil the crew hefore they left Victoria to
extend the voyage to the month of Octoher.

1 1 ^'

At page 455 of the United .States Argument there is a com-
ment on the witness .Smith, .iiid it is sai<l that if he wished to ex-
HO tfiid his voyage, as h<>.said he did, in the case of the " Ariel," he
had jin opportunity of doing .>o when lie was on the " Katherine"
in 18!K), but he left that season on the .Sl.st of August. I have
already r 'ad your Honors the evi<lence, and commented upon the
fact thai the si-ason of IHilO was an unusually stormy' season. 1
suhntit that no inference is to 1)1' drawn from the fact that any
schooner left the .Sea that year at an early date.

Commissioner on part of th<! United States: — How many
skins had the " Ariel" taken hefore she was warnivi :'
•iO Mr. Hodwell : — She took 485 af'er the warning, and shf had
altogether 844, which leaves 251) thai she must have taken hefore
the wai-ning.

TiiK " Ai).\."

! have only a word or two to say to your Honors with refer-
fiicc to the claim of the schooner " Ada."

In the United States .\rgunient it is siid that Captain
Haynor. the master of the " iVlger," testified that he had finished
'lO si'alin;,' t'oi' the sc'HsiinJ aii'l had att ■mpti'd to iea\ .; the Sea the

t;o

of til

.-Vila," l)ecau^^e the sealing

Hon.ir.s' attention to the
" A' la," pai,^' 1214 of the

that he intenile<l to re-
with. Then the evidence

ninjit hi'foi'e the seizure
•sfrtMin was over.

In that comicetion 1 ilr-iw your
ovi leiice of C'aptain (iuiihii of t.lie
Uncord, line :{(), where he states
main if In; li^' I not lu'en iiiierri-n
i|Uiitec| in I'Ur AritniiH'iit at pug"- 125, which shows that at the
vry nioiiii'nt of tin' si-izurr thi- sealiri:; hoats wei'e all out, and
altiiough it was only 8.:{() in the morning they had ta'ten .'KS

M'.-ll.S.

The evidence of Captain Haynor is at pages 1247 and 1248.
Ill rca.ling it I cill vour H'Hinrs' attention to the fact that he
was taken in sight of the "Ada," ahout three miles away: and
another peculiar statement given in his evidence is worthy of

II*

!!'*

56S

(Mr. HotlwclI'M Argiiniciit on S|Mriiil ('hhi'm.)

notiei>; Id'hrvh Ih> IiihIiciI up liin IxMitNaml ti'icil to^jct out of tlic
Ki-ii till' iiliilit liftvii: Our HUjjp'stion \h tluit lliiyuor Iia liislK)atH ami tricil to i;et out
ol'tlic Mu lor I'lar of tin- Vfrysfizinv which iliil take phicf thu
uext Htiy,

10 Wi' subiuil tliat it uaiinot Itc .«tatLMi tliat thi> staliii}; kcuhdu

was over, in vin\v of tlic fact that tiic "Alan" Imats were?
actually ii,ii'i'utiii}{ at tht> tiiiii.', and Captain (iuudiii mivs that
it \va^ a liiii' clay, Captain llnynnr's cvidciict' is nut incunsiHti'iit
witli our Btatchii-nt that the wcatlicr was i^ood fur si'alint,' on
that <ia3', and it \h I'casonaMi- to supposr that it would havit
continut'd so. At any rati', il kccuii to nu- tliat it is an iiiiport-
unt adiiiissioi! fmni CH)ituin llaynor that >'<■ was atlcniptin^ to
yet out of tlu' Sea the ni;,dit lifforr. If there hud iieen no
unusual event to hasten Ids de]>arture he would have waited

'20 until t!i(' ne\tday and had the sunMhine for his voyaj^e

Tlu'ic ii .;;■. th :• .;t(itenien( 1 wish to refer to in the matter
of the " Ada," atid that is at pnj,'es 4<)il and 4l)7 of the Cnited
States Ar;,'Utnent, where they eonciuile fi-oni the fait tliat .Miis>
wan the a^ent of the "Ada" that her wkins would have h^'en
.sold at \'ictoria, and therefore youi" Honors siiould not .illow
the London priee for the .\da'.s skins. I callecj your attention
to tin- I'Nidence the other day, wliieh showed that .Munis
Moss was the «!.,'ent of l^itdn's \; ( Ni., who wei'i' dealiiii,' in tlie

']0 London riiurket. It is admitted that Mos«( was the a^ent of
(iray, ami .^o dray would have heen entitled to wlmtev<>r .Moss
reeeived. and it is clear that Moss would have sold the skins for
the liondon price.

.Mr. LaiisiiiL;: — Where was Litdicw iV Co :*
.Mr. Hodwell : — in San Franeisoo. It caniint Ic denied tlmt
.Moss Would ^'et the hiu'hest priee he eould in order to make
his eoinmi'ision. so I .snlnnit that there is every reason t.o say tliiit
Moss would have ha<l the London priee foi- the " .Ada -■ ' skins,
ami if he did <,'et it. as a iiiMtt''r of law. (iray would lie eiititiiil

-!•() to th.' full henetit of.it.

It is su!,'i,'ested in the .Ar^juiiient of the T'tule<l .States, tluit
the faet"! disrlo-ed after the seizure of the ".Viia ' show that she Wi,s
not provisioiiecl for the voya^'e. which we say sIk; would have
niai. •. In tin' tii.st p'nce, in our .Vn^Mimeut we ^ive a reference
to the CiptainH eviiienc"- where he swears that she ha<l jno-
visioiis for the leii^'th of time we etaiiii for her voyiit;c.

.\t paj^'e 12+ of our .\rj;iiiiient. we refer to the paj.'es of the
Ilecoril, where this (.'vicleiice is to he found. At pai^e I;2I4, line

10. there is a positive stat> niellt to that I'M'ect. At puj,'e 7!l() of tlie
iveeord, line ;{(). it is shown ttat after she was (Seized and taken
to Sitka, the erew on hoard the "Ada" liveil on the piovisions
in the "Ada" until the i.'itli of Septemlier, and tliib, noluil li •
stnmlin^, the fact that there appears to have been
a lari,'e tjuantity of provisions taken awaj- from tie-
vessel hy the L'niteil States otiicers.

In the Ar;.niment of the L^nitod States, pa;;e 404, it is stated
that certain provisions were taken, and your Honors areaskeclto
infer that the list i^iven is a complete statenieiit. Hut ihi'
witneHs was only sjieakinj;; from recollection, and it is not to he
supposed that he reineniherH everythiiif;. Having' rej^ard to the
Caittain's statement, it is certain that a jjood deal more
was taken. We know that, notwithstandinj; what was taken,
they lived on the ship until the 2.jth of Soptcnihcr, and we say

.;(»

(<()

•JO

•M)

4(t

.")(i

(Mr. KotlweH'N Ar^uiiiuiit uii Special L'nm'H.)

tliat xhf wiiN proviNioiii-)] to stay in tliu •Sen iiutil thu I5tli
ScptfinlMT.

ThK " Jl'ANITA."

I wisli iiuw to Hiiy li wo'il with rcfcffMCf Id tin- iliiilii ol' till'
"■liiiiiiitH." 'I'lmt vi'NMcl JH i»'t'irr«'(l U> on |)iijr>' \'.\'A of tin- Uritish
Ar^jnnii'iit, ainl it in n very <'li'iir eiiHi-. It Ih ii t-asc of wiirnin);,
lis voiM" lloMorN know. She wiih provisionnl for n xoyaj^t-,
winc'i wonid luNt until tlu- lOth of S*-pt<ni)MT. At pap'
l.'UI, liiK-M l-'2(), wi' have ilic ovidcncf of Captain Clark, sliow-
in;; that Hrran^t'int'ntM were nia<lf hcforc lie left Victoria to
stay in tlifSt-a until tlif lOtli of ScptfiulM'r. 'I'liiH \h coi'rolM)r-
atril liy Mr. Mall on pa;;f |:{4!I. lincN 25 40, ami in croHH-cxaniin-
ation, pa<;f IM.'il, lint'H ifi 40.

Mr. Warrt-n : -In the arfjunicntH you say tlic 1 otli >( Si'p-
tfinlH-r. un<l now you claim until tlic lOtli of Scptcrnl)cr.

Mr. Hoilwcll : -Yes ; you will sec in tin- cviilfnct' of .Mr. Mall
tliat the lOtli of Si-ptctulx-r is tin- day niciitiontd l)y liini. Tliat
is wliat tlii'V intcndfil if they liad not liticn intcrlVrcd witli, hut
tin- evidence .shows that they could have remained until the 15th,
and we have therefore made the claim up to the middle of the
month, which, inidei- the circinnstanees. I submit, is fair.

At pa<;e 41 (i of tht! I'nited States Ar<;ument, comment is
made on this evidence. They say the testimony is :- -

"That of 'two owners, it is lia.sed \ipon a va|;ue rumor that
"one ves.sel had taken seals in Sejytemher in the year IHKH, and
" it WHS concluded that it mi;;ht be profitable to atten.pt to pro-
•• Ion;; the voya^^e of the 'iluHnitn' until the lOtli of Seplenilx-r."

1 do not know whether my friencLs mean to ar;;ue that wo
could not extend it from the lOth to tin' 15th, but if thesuii^^es-
tion is that we have not i)rove(| that we would have Htayecl until
the lot' .)f Septembi-r, I s\il>mit that the evidence is clear upon
that. What they call a " va^ue rumor" is an actual fact, because
Mr. Mall swears that what he based his decisioa on was Captain
.lacobson's experience the year before, who ilid stay, and who
told Mall that there was ;;ood sealing; there in Se|>teniber.

In speakin;; of Capl 'i .lacob.sons evidence immediately
after, in that connection, tne Cnited States Ar^jument refers to
what he .said at pa^^e 1447. I connnented on that evidence
the other flay, and »r;;ue<l to your Honors that while it is
tru<- he left on the 3rd of Sepeinber, he did so to ;;et water at
rniniak Pass, and he took some ei;;lity seals in the Pass, show-
in;; that seals were plentiful all the way from the.'h'd of Septem-
ber to the 7th. It Meems to nie that if he could ;;et ei;;lity seals
liet Ween till' .'Ird and the 7th of Se])t('mber, the 10th is a ren,son-
aiiie limit to wiiieli this voya;;e nii;;lit have be»'n exten<led.

.\t pa;;i' 417 of the Ar^junient for the I'nited States thei'e is
;i statement that Sl 1 jier skin is an extortionate value. I do
not .see how my friends can use that word, because it is |)roved
that Munsie ;,'ot that price. I am wiliin;.; to admit that it is
the hi;,'licst price tlint any se.il .skins weri' sold for that year,
hut it is an actual price, and cannot be called cxtorionate.

lh::li

II |i

II '.<

They also say that the claim of 2102 .^kins, which wc'h'
have been tnken i!urin;;tlie balance of the season, isoutrng( > ,
tiO or far beyoiid nnything we had a right to expect. 1 do not
think so C'atclie.s fairly in line with that were actu-
al Ij- made, and are reported in the evidence for not nearly
.so long a period of sealing. Take the " Mary Ellen's
catch of 2.S9o. from June 2Hth to AugiJ.st 24th ; the " Favor-

^1^

ft.u

■ i '•

(Mr. HhIwoH'm Ar);iiinoiit on Spcfinl C'hmch.)

iti^'n " c»tcli of 2'-\H, fr.iiii .Fiilv 7tl» to \\n>\: .. '>lh. AHanoUu-.
illuHtratioii t>ik.' M.tk<-r'i cittuii in IHNO of 21.s:) from tliu ( th uf
July to tli(> 2l'4t of Aujju^tt.

Siiruly it is not iinn-iisoniiltlA tosuy tlint tliit " •lunnita " with
lit<r •M|iii|)ini'nt, if slic liaii not tu't-n intiTfertuI with, woiiM havi>
niiKJi' n ciitrh of tliitt s\/a\ Thcri' iH nothing in t)iu H^nrcs
thunim.'ivt'M to Mhock your conHt-ii'iion.

A;;iiin my friioidH ^jrovv rijjhlt'onHly in(Ii;;n(uit over tlic
Huiount of niom-y that thin vchni>I mi^ht hiivi- niuiJc if hUc
iinntfil th)- wholi- year.

At piii^f 417 of th(Mr arj^uMient thfy siiy : —

" Thi' vcssi'i wilt w'lrtli tihout 1?20()(), nnil that mIic could t-Hrn
" over tivc anil oiic-lmif tinn-s her value within twenty or twoi.ty-
" live (layt. ami at the rate of over '?2.'it),()()0 a year, is so itnpoiisioie
" that Ju^tiee will hot permit nf the use of an}' nucIi basis tor
" estimitioi; thi' future earninixs of this vessel."

We ni-ver conteniled that sIm- cnuhl liunt a whole yi>ar, hut
only aliout three months in the y(!ar, and W(> say that other
vessels made Hs lnr;;e catches as wi.' claim for her, and hroH^ht
the skins hiMMi' with them, and there ix no reason to .say
that the " Juanita," with her ei|uipuient, would not liave made
nn eipially 'ar»(e catch. Suppose it is five times the value of
the vessi'i, it only shows the immeiisi^ profits that there were in
Healin'.r ventures. For instance. I call attuntinf ' > thn sum that
Munsie made out of the "Viva " tliat same y The " Path-

finder " also maile a very larj;e profit.

The "Tkii'mi'ii," (1880.)

I n.iw call your Honors attention to the claim of the " Little
Trium|ili," wliich is th" last claim altiiut which I shall makt; any
remarks.

Our arvjument on thiH case is contained in pages 130 to
^'^i of the Hi-itish Argument. In opening upon thi'^ claim,
Couns d for the United St'ites in their printed argument say,
40 thiit iiur |)leiidiugs makx out that tiic " Little Triumph " ahun-
doiie I her int 'iided voyage into the H«diring Sea, whereas the
uvideiiee shows that she went into the Behring Sea. If there is
any iliseri'|)>oiey hetween the statement of claim and the eri-
dence, i)f e()urs>- tliu statement of claim eould he amended. Our
case is that, heiiig in the ,"•' a she was compelled to leave before
her voyage was eoiieliided. The ordinary rule of law is to
Hiiieiid tlie pleadings in Hceonlaiice with the evidence, and that
rule w Mild apply, I presume, to the pDJceilure under this coui-
misfiioii.

f) Till' real claim with reference to the " Little Trir.mph '

is, that having been warned before she entered the .sea, she took
a ditr'reiit poiitiiin fi'om that which sht; intended to
occupy, and that her voyage was entieil at a period anterior to
that which was inteniled. We contend that this would not have
liappeneil if the Indians, having heard the warnings and under-
standing the Kri','lisli language in the first place, had not l)ecome
more and mmv ffij;liteni'd us the si'ason advance<l, and finally
refused to woi'k aiid iii-isteil upon the captain going home to
save the catch of sealskins which thev had made.

(iO

At page l+Oi, line d of the ReconI, the witness Smith, who
was callecl to prove this case, shows that the "Triumph"
woulil have gone through lliumak Pass to about 30 or 40 miles
from the Pribilof IsUnds. That was the original intention.

I ""r'^

8»5
(Mr. UdiIwiII'h Ar^iiinitnt on Special ('ii>tei.)

At pa>(is i;U) nn'l \'M nf tin* HiitiMli Ar;,'uiiifiit, wi- Iiuvd
i|ii<)t('i| tli)*L'vi(l(>ric*> which r<'hit>'s to the wHriiiii;^tliikt wiit <jivfii,
mill alsii at pairc \'\\ we rt'fcr to the plitci' in tlu* il't'oi-il whfiu
it is shown that tin* enpatain of lln; " Littlf Triu'nph," in nnliT
to qnit't till- Imlians atid to imluci' tht-ni to Nt>iy with liini,
proniiMt'il that ht> woiihl go to anothur portion of the Sua uml
lO onilfnvor to hnnt.

Hi' li'ft thr plact! where he was wnrneil and startel alonjj
the const of the Alentian Isjatuls, anil was hlown tliroii;^'!)
tliu (Jninmk I'ass hy a soutli easterly ^ahi ; his eoiirsi* from
tliat tiniM onwnr<l was always westwiinl. The witness
Smith saiil. that whenever any proi^'ress was to lie made from
one point to another the course uus westwurd uniler full canvas.

Ile.-tays that he .saw an Islaii'l, several tim(!s ilnrin^; the voyage,
which the captain tohl him was the Islunil of Four .Mountains,
anil that they came out of the h'our .MoiiniHin I'liss when the}'
•_>() left the sea.

The theory of the irnited Srates ar;{nment is that after
^^ettin-; throiiirh the (Uiimak Pass the vessel went ahont
.')() miles nortli of Hi)j,i;oslort' and linnLed tlnre and came down
through the H'onr Mountain Pass.

1 suhmit, your Honors, that the evidence discloses rather
that h(! went throu;,'l\ the (Jnimak P.iss and then alon<^ the
coast o' the Aeiitian Islands, and hunted out in the direction
of th^ Four Mountain Pass.

1 understand that (he reason why niv learned friend nu^-
;i() 1,'ests that he was about 50 ndles north of Biii,'oslort' is in
consequence of the evidence which Smith „hvo wlicn
he was ttfterwardt called in the case of the "Ariel,"
hut I do not read his evidence in that way. I refer
your Honors to the evid«ni e on that point, and I will
read the p.irt my learned friends rely oo. Ctdlel in the
case (»f the " Ariel," this witness said thit in \HH7 he was near
Hi)f,'()slotf snd ahout oO miles north of Boi^sloH. At p«;^e liHC),
line 11 of the Record, he says: —

" Q. You cruised south east of the Islamls in IHSH, and you
40 cruised in the vicinity' of the Hoeosioif Volcano in ISN? I A.
How near do you call the vicinity ?

"Q Well, ahout oO miles to the northward? A. Oh no,
' \t was farther otJ" than that.

" <.^. How far to the northward ? A. I did not hunt to the
northward of Mo^oslotf", I hunted to the we^twaid in lKf<7.

" y. Did you nut hunt t') the nortliwnrii at all ? A. Wei!,
'noniinfj oiitof the Hehrin^ Seaniid tryio'^' to ^et oil the t;roiinil,
" prohahly the CKptiiin at the tine' would pass B ii^osloti" to the
" nonhwurd."
■")il Thi'.t means that Boi,'oslotf wouM
iiij" theory of his yoya>,'e is correct,
northeast.

" (i. How far to the noithward

he to the n ir hvvard. If
Bo 'osiort' would he to the

do \N th

you pass t A. I did
the nHvi''iitii)n of the

' not see it; I had nothinjj to oo
' vessel at the time.

" Q. A little while atjo you tnl '. us that it was more than
■fifty ndles? A. I came to the unlerstin liri^ that if he was
.'inywhere within si'/ht of Bo'^osloH" I would he Hl;le to see it,
hut I never gat any si<^ht of it.

" (i- Your experience in huntini^ in Behriu'.^ Sea was to the
southeast of the islands, and .somewhere to the northward of
the Aleutian Islamls? A. Ye.s sir "

■V.

(p*

t.f

Now then we will return to hi.s evidence in the " Little

lixHtkr!

556

SJf-

(Mr. Bodwell's Argument on Special Oases.)

Triumph " case, where he gave his recollection as to their course.

At page 1402 on cross-exauiination, line 25, as follows:

" Q. How far north iliil you go from Uniniuk 1'aH.s on
" account of the .storm ? A. Well, in the mor-iing after tlio
" wind calmed down, it had been thick with rain, I just could
" ni'iku out the const line.
10 " Q. The coast of Uniniak Island ? A. The Air utian Islands,
" sir.

" Q. You thought vou were to the west of Unimak Pass ?
" A. Yes.

" Q. Then when you got through Unimak 3'ou changed
" your course and went to the westward '. A. Not that ilay ;
■' that day it happened to calm down, as I recollect now, we saw
" some stttls.

" Q. We were talking about this storm. When this storm

" was blowing you into Behring Sea, after you got throuuli

20 'Unimak Pass did you change your course to go the westwanl f

"A. So far as I can recollect our course wa;f always westerly,

"after we went through the Unimak Pass.

" Q. At about daylight on the i.iorningof the 5th you think
"you were to the westward of Unimak Pass >. A. Yes sir.

On further examination at page 1403, line .'JO. he says:

" Q. And you went out of Four Mountain Puss i. A. Yos.

" Q. And when the boats are out sealing they will go about
"12 miles a <liiy >. A. Yes.
30 " Q. Just tell me how many miles it is from Four Mountain
" Pass to Unimak Pa.''.s ? A. 1 will give it as neur as 1 can, 13.")
" miles.

" Q. And you think your course was alwiys westward?
"A. Always westerly, wind and weather permitting.

" Q. From l^nimak Pass ? A. From Uniniak Pus-;.

" t^. Did you go the northward at any time ? A' Well, if
" we had to do any beating, it was always understood as suon us
" the canoes were in and tliere was any wind, we always workcil
" the vessel with full canvas to the westwiird.
40 '■ Q. Prior to the time you went out of Four Mountain Pass,
"did you ever reacii a point to the westward of Four Mountiiin
" Pass I A Not being a navigator in these days, 1 really
'■ couldn't tell.

' Q. You can tell whether you went to the west c)f Foia-
" Mcaiutuin Puss? A. No. I couldn'i for I never took any n(tiL't'
" .)(' bearings until we went thn'Ugh the Pass, and if I eiKiuired of
"the captain what place this was, he would saj', ' it was the
" Island of Four Mountains.' "

50 Upon that evidence, I supjiose, the T'^nited States argunit nt

is that he could not have got any distance westerly because lir
was hunting every day ; but. yoiu' Honors know that be wotild
not be s'jaling (luring the night, and tliat the vessel was, at times,
beading to the westward under full canvas. It is pert'i'ctly plain
that the vessel could make OOor 70 ndles in a very few hours, and
the distance from Unimuk Pass to Uogoslotl' Volcano is 00 or 70
miles. He could easily get a good deal west of Bogoslotl" witli-
(lut getting north of BogosloH". It is plain fioni hi.s evidence
that the course coming out of the Four Mountain Pass was south

GO east and 1 contend srom all the evidence that the vessel was
westerly of the Four Moinitain Pass, sealed over there, and then
came -jut of the Four Mountain Pass.

Mr. Warren : — How could his courHC always be westerly.
Mr. Bodwell : — Certainly, coming from Unimak to Four

'%.

(Mr. Bodwell's Argnineiit on Special Cases.)

Mouutf ius westerly. He would go south east to go out of the
Four i ouiitaiu Pass.

Mr. Warren : — You said his course was always westerly.
Mr Bodwell : — He does not say it was due west. He says it
was westward. After that he saw the Island of Four Mountains.
Let me read the evi<lenee on tliis point so tiiat tliere may be no
10 mistake: p. 1403, lino .'W : —

" Q. Did. you go northward at auy time ^ A. Well, if we
" hail to do any beating it was always unilerstcod as soon as the
"canoes were in and there was any wiml, we always worked the
" vessel with full canvas to the westward.

" Q. .Prior to the time you went out of Four Mountain Pass,
" did you ever reach a point to the westward of Four Mountain
" Pass / A. Not being a navigator in those days, 1 really
" couldn't tell you.

" Q. You can tell whether you went to the west of Four

20 " Mountain Pass f A. No, 1 couldn't, for I never took any

" notice of bearings until we went through liie Pass, and if 1 en-

" quised of the tlie captain what place tliis was, he would say :

" 'It was the Island of Four Mountains.' "

Mr. Warren: — Do you think that means that he was going
through the Pass i

Mr. bodwell : — Yes, I do.

Mr. Warren : — \\ oil, he refers in another part of his evidence
to seeing Islands in the course of his voyage.

Mr. bodwell : — Yes. I see you are rignt about that. How-
30 ever, I conteuil my theory is correct, viz. : that when they got
througii Unimak Pass tliey cruised along in sight of the Aleutian
Islands, and that tiiey came out of Four Mountain Pass.

At all events it is an undoubted fact that the place they went
to was not the place they intended to go when they started on
their \oyage.

As to why this vessel left the sea, the evidence is clear. I
inerelj refer you to page i;Ji)9 beginning with line 26 ilown to
the em of line 50, where it is shown that the reason for leaving
tiie Sea at the time they did was because the Indians were
40 frigiitened and would not stay any longer. Mr. Byrus, the owner
(?i' the vt.-sel, and Mr. Smith, both testify that it was their in-
tention to make the season as long as the weather would permit.
We ijuote in our written argument, pagetf I40(i line Go, and
also page Ui'M line oO of the Uecord. Smith says there that
they had provisions enough on board to last the crew ^until the
middle or boainning of October.

Mr. Dickinson: — What is the tonnage of this ship (
Mr. Bodwell : — Fifti'en tons. The same as the Mountain
Chief which remained until the 7th September. 1 also refer
50 jour honors as to the length of -the intended voyage, to the evi-
dence at page 1406, line 00.

1 do not think 1 have anything lurther to add with reference
to this claim, your Honors,

The Commissioner on the purt o'" the United States: — Have
you any theory, Mr. Bodwell, as tc wnether July or August is
best for sealing in the Behring Sea I

Mr. bodwell : — From what 1 recollect I should think that
from the ndddle of July through the whole of August ii ab«ut
(10 the same. The earlj" part of July is not so good. About the
10th or ].5th of July the seals begin to come otl the islands.

The Commissioner on the part of the United States: — You
would call the month of August equal to about two of July on
that theory ?

lf=

■1 i- , "

558
(Mr. Bodwell's Argument on Special Case .)

Mr. Bod well: — You could tish for about 31 days in August
with good weather, and thej might have 25 days good ii.shing in
July.

The Commigsioner on the part of the United States : — Does
that close your argu.nent ?

Mr. Bodwell : — Yos, your Honor.

10 At half-past threi; o'clock the Commission rose.

:).■)!>

()PENING ARGUMENT FOR THE UNITED STATES.
Hon. Don M. Dickinson.

The Commissioners under the Convention of Febru-
ary 8, 1896, between the United States of
America and Oreat Britain.

Legislative Council Chambers, Provincial Building,
Halifax, N. S., Sept. 13, 1897.

At 11 o'clock the ('ommissiontrs took theii" seats:

Mr. Dickinson: — May it i)leasetlie High Connnissioners,
1 annount'e tiie course in which tiie arguniunt of the
Tnited States will be pursued, if agreeable to the Court.
We will, without taking up the order of tiie United States
printed argument, o|)en (|uite briefly, in order to clear
away somc! of the driftwooil that seems to have got
111)011 this flood of discussion. My associates will then

30 take up the evidence which has lieen presented to this High
Court, and we siiall close upon tiie Record as presented, by
iipjilying to that evidence and that Record, the argument
as presented in printed form in behalf of our Govern-
iiieiit.

I can open the discussion in behalf of the United States
ill 110 more fitting words than those adopted by one of the
distinguished counsel of Her Majosty. in closing his argu-
ment: " Peace hath her victories no less renowned than
war." The expression of that sentiment is none the less

40 impressive at a time when the nations of the earth areunder
arms, standing, at ready and on guard. Nevertheless,
wliile the civilizations are equipped for war, doubtless
their highest aspirations are for peace, and the hope of
neace is at present through Arbitration.

l^ut we cannot have arbitration at once, as some subli-
mated reformers would have it. Arbitration is upon trial,
and we must have more and mon; successful exiieriments
(if tiiis metliod before the world can hope for its universal
.uloption. I'eace is the desire of the world, but as has

;oliten said in mon^ felicitous woids than mine, ami I re-
member not the words Imt the sentiment— we cannot
|ihi(k peace as a child tears unrijie fruit from a tree.

Wo have had arbitrations and arbitrations. Let us bear iu
mind that the results of some have been set .aside because
I lie arbitrators went beyomJ delimitation of powers com-
mitted to them. Others have been vacated because the ar-
liitrators, in their judgments, have decided contrary to
I lie accepted principles of international law, while others
iiave been accepted as the best thing to be done under the

001 iicumstances. but have left irritation behind.

Vet, after all, the su(X'e.-sful arbitrations, few, as com-
pared with the unsuccessful, have, in the eyes of the
World, held up the balance against tiie many unsuccess-
liil, and the world is still trying it as a method tending
to secure universal peace.

\ 'Mr

1 ■' ■

'I ■ II

1 h. I

560

(Mr. Dickinson's Opening Argnnient.)

'Iho criticism npon the awards tiiat have i)een made"
have been largely npon awards made by arbitrators clios(ii
from among diplomatists rather thfin from tlie jndiciai v;
chosen from 111 lers— sovereigns an<1 presidents. Bnt the
method the world is learning — the method that best suli
serves the interests and the ends songht to be gained- is
to be found in the regrdating oiiginal selection of the pn-
10 sons who an; to pass npon the ()uestions submitted to
them by the nations in dispntation; and ii, may be stated,
as a conclusion from the learning already acquired by ex
perieiice, that the selection most api)roved and most sue
cessful, and to be most successful, nnist be from the juili
ciary — from among men trained, so far as the bent of tin ii
minds is concerned, to impaitiai consideration and juil};
ment.

And I join with my distinguished fi lends in congralii
lating Great Britain and the United States that in tiieir
20choice of a body to weigii. consider and decide the grave
questions involved in this dispute, they have selected a<
arbitrators to ])ass upon these questions fitting representa-
tives of countries— the one that produced a Scott and the
other that produced a Storey.

I say Scott— because it is inconceivable to the American
mind how, willingly, one could pass the Inminous name
of Scott behind a peerage, although he made the name of
Stowell also renowned.

It was Sir William Scott sitting in a jirize court, which
3oadministers International Law, and never mnnif ipal law,
excej)t as a side light; it was Scott who said in the case of
the " Maiia Olsen," a Swedish ship- in a case which in-
volved the sovereign rights of Sweden and the private
rights of Swedish subjects; it was Scott who said (1 do
not (|uote liim literally but in substance):

"I sit lioro to ndiiiiuistor lutcruntioual Law; I do not sit lioro as tlif

reprfsentativo of (iroat Uritiiin, l)ut to ilo justice to Swedou and

to Swedish suliJLH'ts, preoisely as it I wero ii Hwodo sitting in HwimIIhIi

territorv, dealing witli a dispute l)etwoi'n (Ireat Britain and Swodoii."

It was the bench of Storey which settled theqnestioii of
neutral goods, in a belligerent bottom, and on a Hritisli
defense laid liown the principle that neutral goods, British.
in a belligeient linttom. should be handed over to the
owner and were nut pii/e of war.

There are certain (pi(>stions, may it please the Court,
which nations never bav<( consenteii nor ever will consent
to cotnmit to arbitiation, either as ]iiincipal questions, or
matters the decision of which involves any conclusion
Sohanging upon such (piestions. These are questions of
national honor and national dignity.

We are fresh from an attempted negotiation of an Ar-
bitiation Treaty. Whatever may be said of the criticisms
made upon the late attempted Treaty, this can be said of
tlu' negotiations culminating in the treaty: That ihey
carefullv excluded, itid not admit for one moment the
chance not merely th(i cpiestion, but the chance of a
question that any propositions involving the national
honor or the dignity of the Sovereignty of either nation
6oshoiilii go lu't'ore the Tribunal contemplated and i)rovi(UHl
for by that treaty. Tliey excluded it in terms, in the
treat}- adopted tentatively by the diplomatic representa
lives of the governments.

As so proposed — we are now speaking upon Arbitration
in an academic way, having application to other ata-

561

(Mr. Dickinson's Opening Argument.)

(Irinic questions presented by my learned friend, Sir
( luirles Hibbert Tupper— criticisms were mado upon the
tivr.ty.

No treaty for arbitration was ever accepted before that
dealt with future or potential lUiestions. No arbitration
ot any kind by convention was ever adopted beforehand
t(i tit a state of facts in futuro. Why? Because each

lOfoiintry was opposed, and all countries have been opposed
t(i submitting any question of International dispute, the
Hpccial facts of which cannot be definitively stated, so
tiiat the questions applying, and the conclusions for decis-
imi, to be submitted to the Board of Arbitrators, whoever
tlicy might be, could not be carefully deliminated.

And when it was attempted to extend the policy of ar-
hit ration — even applying to special matters, as it did— so
tliat a general code was to be adopted to govern such
ppt'cial cases as they might aiise, the great criticism on

20 both sides of the water was, that this feature might lead
to great embarrassment, and finally to such iriitation
as to make future arbitrations impossible. And the
treaty failed principally on the ground that it could not
lie foreseen how it might apply, and the Nations would
III it be willing to apply general rules to facts not yet born.
But let us see about questions of national dignity. For
illustration take the Geneva Arbitration. The (Ten3va
Treaty was broad enough to cover the whole question in
tei MIS, and the Geneva Treaty came after much labor, and

3oaftei- the defeat, let us remember, of the Johnson Claren-
don Treaty. It came after years of careful negotiation,
and was supposed to be broad enough to cover every In-
ternational question that might be presented, growing
out of the capture and destruction of American ship-
ping by the '" Alabama" and her sister ships.

Hut, as a collateral matter, bear in mind, the counsel
for the United States contended, without specifying dam-
ages, that Great Britain was resi)onsible for di-iving
American shipping from the Seas; that she was respon-

40 sible for the extra cost of the war, and counsel for the
rnited States sought to sustain the claims l)y shewing,
what; What was never attempted in a court of arbitra-
tion before the bad faith of Great Britain.

What followeiH There was before the Arbitrators a
specific arbitration — precisely as there is before your
Honors in this Convention— but on this general conten-
tion, and not on the specific claims, tlu? counsel for the
Tnited States presented authorities tending to show that
(Jieat Britain was responsible, because she had willfully

?odoiu' these things, and the rule of damages adduced was
tliat of vindictiv(> and punitory damages, sometimes also
califd aggravated damages.

What followed? The Counsel for the United States at
(Iriuva did not present this claim as one of the specific
rlaiin«, may it please the Court. They did not proceed to ex-
auiicrate the value of the merchant vessel or of the vvhaling
vrs^ei; or to exaggerate the value of whaling catch on board,
or to claim prospectiv't; catch in the nature of vindictive or
txaugcrated damages; but they said, because all these

'i^Miiings in general have been suffered by the plaintiff, the
people of the United States, to whom has been done a
willful and wanton tort, therefore want these general
ilainages in addition to the specific loss. What was the
icsidt;

, ;! Mi '

r I-

■frr

562

(Mr. Dickiiisou's Opening Argument.)

Great Britain, in that International Court, roplii.|
thus:— The gnvnter question between the Sovereigntit s
has been passed upon; Great Britain has, so far as her sov-
ereign rr <ponsibility is concerned, agreed witli the Unitid
States s J far as its sovereignty is concerned, that (iwM.
Britain shall say that she regrets that the "Alabatna"' saiN d
from the ports of Great Britain, and regrets the loss tliit

10 has accrued. Then as to the International questions liciv,
said the British counsel, this is a tribunal to which is not re-
ferred a *|uestion of i ight or wrong between the sovci .
eigns, i)ut a question of what should be paid for certain
ships (if Great Britain was negligent) which were ilc-
stroyed by the " Alabama." Therefore, notice was .served
on tlie United States, after the assembling of the Boanl
of Arbitrators at Geneva: that although within the letter (if
the treaty --if the attempt to bring on this question of the
good faith of Great Britain, or of its hostile feeling, is pfv-

20sisted in. Great Britain must retire from the arbitratimi.
Then practically by consent, s-o that it should pass into
International law, the counsel for the United States ac
ceded to the position of (ireat Britain, and the Board of
Arbitration laid down the rule, that the questions as to
such damages should be eliminated from the proceediii;;s
and the deliberations of that high tribunal. You hear no
more of the claim of wantonness and insult and hostility,
when they come to consider the question of damages.
Your Honors will find tiiat all these questions, all the aigii-

30juents presented for extravagant, aggravated or punitory
damages, were made at a point antedating this decision.
But may it please your Honors. I will not say that the
American counsel in their presentations of the original
case at (ieneva did not make a coat of wool which niv
learned friends here are endeavoring to put upon us. I
do say as to the position of our counsel at (ieneva: That
the counsel of Her Maysty from their standpoint wore
right when they sail.: the proposition to prcjve tht>se
things is so offensive that we will not reply to it, and that

40 it (as was true) is a proposition never made in an Inter-
national court before. The British counsel weie right,
because the tribunal unanimously so held, and that is
enough for the purpose.

This i)resent case which your Honors are now considering
is passing into the history of arbitration, for we are here
making histor}-. And in this convention referred to your
Honors the (juestion involved is not a mere assessment.
The clause in this treaty creating the Commi.ssion under
which your Honors sit providing that Great Britain can

50 make claims for such persons "in whose behalf (ireat
Britain is entitled to claim cotnpensation from the Unitetl
States " involves the gravest questions of International law
ever submitted to any international tribunal however
high. It is not, as my learned friend the senior couii.sol
for Great I'.iitain arguc:: that we care whether we pay
one dollar or a million dollars, or two million dollais nr
five million dollars that such questions are argued by ns.
The proceedings of this tribunal are passing into tlie iiis-
tory of international jurispiudence, into the libraries of

^)Othe foreign offices of thenatiimsand of the publicists of I he
world; and, representing the United States, may it jilease
your Honors, we have presented these questions elaborately
and exhaustively and conscientiously, in the hope and iic-
lief, that they will be decided right and not wrong.

o*i3

(Mr. Dickinson's Opening; Argument.)

At page '20 of the printed argument of counsel for Great
Britain before you, we find the following:

•' ThonctB in respect of which damagcH are daimod wore equivalent
\o iiu unwarranted iuvaHion of the ten-itory of a friendly ])o\ver in
turn' of peace. They constituted an insult to the Han <>f Great Britain,
ri'|M'ated from time to time, ac-compauied hy the seizure and conflgca-
tioii (if valuable ])roperty, in the face of continued protests, and even
iil'lii' the acts and declarations of the United States Government had
'"),'i\rn an implied assurance to the c(mtrary."

Insult! my Loid; insult! your Honor! Why, it is one
ol tliO glories of the English si)eaking people, a glory in-
jii'iiti'd by my country, that the mother land has never
hccn insulted a second time. " Repeated insult," in the
hiiiguage of Her Majesty's counsel here! Why, when
mice insulted Great Britain's vindication has sounded
ju'onnd the world eitlier in the form of a prompt disavowal
or aiM>logy uii the part of the nation that insulted her; or

:oiii the resounding roar of shotted guns; one or the other;
ivpeated insult! never! And neither country has ever
consented to accept a money indemnity for a wanton in-
sult. Neither country until now, has ever proceeded on
the tlieory that the question of a money indemnity for
wounded national honor or the question of insult or no
insult, could be referred to the decision of a board of arbi-
tration however great its dignity.

Another question that is submitted, and the decision of
which involves the national dignity to a great degree, is

30 this, and it has been stated in the diplomatic history of
liuth countries many times; the self-respect of a civilized
nation can never adnnt that a foreigner— a foreigner un-
naturalized — but domciled within its borders, is in any
ni't'd of the protection of any other jjower. That is a
general proposition. The only protection that will be
p;iven him, or for which reclamation can he made, is
stated as this broad exception— in case the domiciled
toreigneris denied the equal protection of the laws of his
iloniicil and is discriminated against because of his alien-

40;lg(^ We are agreed — the books are full of the decisions,
Mud I will not proceed to cite cases now; but where
the person is domiciled in this country he owes alle-
nicnce to the laws which protect hiu). Great Britain
(ipcus all her courts to the alien domiciled there; and she
would not admit that a citizen of the United States within
lier borders would not have full justice in the courts of
(iioat Britain, and from all the powers of her sovereignty.
That is the attitude that lias been taken by both powers.
We cannot for one moment admit the |iossihility that a

J'lfonMgner cainiot get justice in the United States. What
is the e.xception to the general rule of international law in
its broadest aspect in this respect!' It will be found to bethis,
that the rule that the nation of original citizenship cannot
intervene for the ])rotection of the domiciled alien, until he
lias tiied the courts of justice of the ooiuitry to which he
owes temporary allegience, does not apply to those coun-
Irii's which have no courts of justice. That is the excep-
tion laid down in the text books; laid down everywhere;
that it does not apply to those countries, where a citizen

f'"iiiay be domiciled, where those countries have no system
iiiganized to do justice; and this nation, no niore than
(iivat Britain, iias never admitted, and does not
piujiose to admit now, that any man within its
lionlers, be he citizen or alien, can be deprived
ot his life, liberty or property without due process of law,

T'W^fijijn

1' 'lli^R ti

i
1

1.- V 'vw]4
,- j 1

V.i!:i|f'l

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■ri

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ii:

4 '

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'(/ '

5t;4

(Mr. Dickinson's Opening Argnnu'nt.)

or that he cannot got justice from our (V)urts, or, it' an ap
peal he necessary, from any other hranch of onr sovcr
eignty, the executive ns well as the jmhcial. No self vo-
spectlng nation can Jidmitit, and therefore the whole (pies-
tion turns upon residence or civil domicil. All the niniii
ments surrounding life, liherty. property and ;ill
l)rivate riglits, crystaiized in the fundamental law,

lothe Constitution of the United Stales, applies to ;i
foreigner within our midst equally, and with all tlic
strength of its protection, as to a citizen of the L'nittd
States. We are not prepared, therefore, to admit that we
are within the exception to the rule, and are so uncivilized
that a Biitisli suhjec-t cannot get justice iu our midst. It
is a question of residence and domiciln, not a cpiestion of
" vessels. After my fiiends cited the " Indian Chief"" cnsc.
I was ahle to get hold of the volume, which I was not ahlc
to do when 1 analyzed the case in the printed argument

20of the United States. It is cited in the British argument
as one of the leading cases, may it please your Honors.
and is analyzed impro](erly, so far as one or two insignili-
cant prenuses are concerned, in our hrief. This is not a
war case, although iu time of war, may it please your
Honors. The " Indian Ciiief" was not seized and searchcil
as a neutral or as a helligeient at all; so that the (|uestioii
of Avar had no connection with the case. She was seized hy
Great Britain as a British vessel. It turned out, as finally
held, that her owner was an American who had started on

30 his way hack to his own country, thei'efore domiciled in
America, and therefore s'ne was held to be an American
vessel. But what would have heeu the result had the
American resided in Great Britain? Bear in mind that
the •' Indian Chief" was not in time of war seized as a
neutral vessel or searched as a neutral vessel. The ques-
tion was simply whether she could he taken hy Great
Britain as a British vessel, and |)unished for violating the
law ai)i>lying to British subjects forbidding them to tr.tde
with the enemy. Now, then, here is the statement of Sir

40 William Scott, and I call youi' Honors' attention to tlio
documents— this immaterial (|uestion of documents. He
says: " The vessel sailed in 171*5 and as an American shij),"
I am reading from the decision of Lord Stowell, then Sir
William Scott, "with an American i)ass and all American
documents, but, neveitheless, if the owner really resided
here, such papers could not protect the vessel. If tiio
owner was resident in I'-ngland, and the voyage such as
an Knglish merchant coulil not engage in, an American
residmg here, and carrying on tra<le, could not protect his

5osliii) by putting American documents on board. His
interest nuist stanil or fall, according to the determination
which the courts shall make on the national cliaracter of
such a person."' It was determined in judgment that the
American did not I'eside there, and therefore the nation-
ally of the ship went with the j'esidence and it was an
Atnerican ship. If he resided there, nationalty went with
the residence and it was a British ship, althougli American
documented, even with a pass, tlag — legister— an American
ownership.

Co Anotlu-r vei'y serious question, involving the making of
history and international law, as to wliich the yielding to
the contention of Great Britain here would be a menace
to the convention itself. It may be taken as settled that
a decision of a tribunal of arbitration between the
countries, ouce before had on a genei-al question of

5(15

(Mr. Dickinson's Opening Argument.)

iiitLMnational law is binding on both countries. That
may be called written international law; indeed it has
passed into the text books. In the Geneva case it
wa-^ decided that prospective profits — prospective catch
- cannot be allowed for any purpose and the reason
tor this is given in the decision. Bear in mind that they
sav tliat they cannot be allowed for "any sum;" that is

lotlic language of the final finding, embraced in the award,
to wliicli we look for international law, and they give the
itason given by all the authorities, notably by Dr. Lush-
iiii;ton, which is this— because there is no method of
inrasuring sucii damages which can be accepted by a
court. Indeed, the world had understood that, as between
iialions with reference to questions of damages before
conventions, on examination of damages and adjustment
ot claims, the question of prosi)ective piofit, as applied to
|)ro-;pective catch, was settled. Everybody believed so,

20 hut now my friend says that is not so; that the Geneva
Tribunal actually gave prospective catch as damages. I
am not going into the details now, but only referring
to the matter generally. It is an astonishing find, of
luT Majesty's counsel, that that Tribunal actually did
give something in lieu of prospective catch, and that the
tiiiiling promulgated to the world, that passed into the
liooks, and is written for all nations to see, is not
the law nor the decision. Bear in mind that with
retVreuce to the shi|)s destroyed by the " Alabama," which

30 were whaling, which had whales on board, as shown by
the evidence, whales at their sides, and which were in
the midst of schools of whales (the question of prospect-
ive catch was pre.sented solely as to the whalers)— the evi-
dence was also before and considered by the Tribunal as
here as to what others had caught; the evidence was bafore,
and was considered by the Tribunal that whales were there
in paying (juantities to be caught, and yet it held that
■'wiiere.is prospective eai'uings cannot pro])erly be made
the subject of compensation, inasmuch as they depend in

40tlu'ir nature upon future and uncertain contingencies," as
Dr. Lushington, in substance, had held as strongly as it
could i)e put. Tliere follows the decision, and I am reading
from Vol. 4, " Papers relating to the Treaty of Washing-
ton," i)age .');5. There is no difference in the text or mean-
inn between the English, Krencli or American versions.
The decision is: " The Trii)unal is unanimously of
opinion that there is no ground for awanling to
the United States atu/ sum" (and I underscore
" my " with a good deal of emphasis in view

?0of the argument here on l)ehalf of Her Majesty —
different from the vote taken in the !>th or intli protocols
at'tcr the controversy opened by Chief Justice Cocklmrn
over Baron Staempfli's estimate) — no ground for awarding
to tile United States any sum " by way of indemnity
under this head." Why? Because, as they take pains to
state, (as the rule is in both the United States and Great
IJritain,) " they depend in their nature upon future and
uncertain contingencies " Can it be possible tliat my
learned friends want this tribunal, in view of that deci-

*J3sion, to find that they actually gave prospective catch at
i'"neva? And will this tribunal be willing to go into the
iii-^tory of jurisprudence with an award on this question to
till' effect that that tribunal did not mean what it said, and
til it they did give some sum for prospective profits. I will

^|i

!i>

5(U(

(Mr. Dickinson's Oponing Argument.)

show that they did not when I come to tJio argument and
the analysis of tlie proceedings.

But now, may it please your Honors, in dose connectidii
and in relation to the national questions as apart from
tho.se involving private rights and the status of indiviil
uals, I come to that part of the argument of my Icarnt'd
friend, Sir Charles Hihhert Tupper, where he takes upaiul
lopresenls with singular force a defence of statesmen of tin-
United States again.st the position of the counsel of tln'
United States before this trinunal on Right of Soarcli; he
has taken as his text for a da}', or a day and a half, tiiis.
from the printed argument of the United States ht'foro
your Honors at page 81:

" Tbe poBition of tUn Uuited Staten here, as nlwavH, may ii^nin lie

" ro])cateil." I roiul aw Sir Charlt's rend — " Tlmt nation anHcrtH witlmiil

" qualitication, ami with ('ni]iliaHiH, tlmt where tlio flajj tluatH over u

" Hhi]) in timoof jtcai-o, any other nation invades the deck under it iil

20 " its peril.

" 'Ihe tlag and not the repistry should Ito prima facie evidence ni
" ownersliij). If it Hhould turn out, liowcver, tluit tho Ha)? does nut
" trulv re])resent the aetuai owuerHhiji, there is no ground fur reclu-
•' niation on behalf of the owners who turn ont to be aetuai eitizeus or
" subjects of the nation so iuvadiu); the ship.

Now I am sure that the American Pantheon is at pearo;
there is no confusion or coming down from pedestals there.
From Monroe down to and including Cass, they camKit
gainsay Ihe proposition of the counsel of the United Statrs,

30 because we have in this statement of the two propositions
quoted substantially from them, and from the final coiu In
sionof the controversy upon the wholequestion of the liglit
of search. The fault with my learned friend's argiinunt.
if he will permit me to call it a fault— a fallacy— is, that,
owing to his failiue to get access to American docnmt'iits,
he has not given your Honors the conclusion of the (|iii's
tion between the two goverrmients, or the j>osition taken
by the United States, and acquiesced in and accepted liy
Great Britain. The correspondence did not end when the

40 book of William Beach Lawrence ended, which was ;i com-
pilation of some letters he wrote, pending the discus
sion, to a Khode Island newspaper, as shown in the
preface. The discussion did not end when he had finislied
giving these contributions to the press. Mr. Lawrence's
contribution to the literature had closed in 1S.58, the date
of issue of his book on " Visitation and Search," but the
conclusion of the correspondence and the settlement of the
question occurred later, in l>s.")!>. Now, I am sure I am
much obliged to my learned friend for defending the W(M •

5othies of my country against my ujisapnrehensions of their
positions. Certainly the spirits of our mighty dead never
had a n)ore gallant defender than himself— a knight witli
out fear and without reproach; and nothing I have said,
or can say, can detract, or will detract, from gainsay the
respect I have for the learning, the honor and the great
ability of the distinguished counsel who spoke the words
that iiedid of Miuiroe, Adams, Webster and Cass.

The counsel of the United States take off their hats to
him. They have met him, may it please your Honors, in

60 peaceful tourney at Paris, where he led, and where we
were unseated by the chaige which he so magnificentiv
led.

Now, then, let us see if in fact there is any difference
in the American position. The discussion of the right to
search began early in the century. True, it began when

')«7

(Mr. nickinsoti's ()p»'iiiiig ArKumeiit.)

tli.'iu was a Htate of war l)t'twoen Kiiglaiul and France.
(iieat Britain iiad assi'ited tlio li^lit in tin\t) of war —
wiii'M slie had an acknowh^l^ed right to search a neutral
- Itiit not oidy to scarcli oui' ships on tht> high seas, but
aUi) to taiitf allt'gt'd British snhJLH^ts, who h;id i)i'C'onio also
( itizt'ns of tile I'nited States, from tliese siiips. Tin; feel-
iii;; engendered at tliat time was followed hy the discus-

iQsiiiM for the first time of the right to search. That led to
w.ir. The discussion was again taken up in isis, when
MiHiroe was President — when Mr. Hush was American
Miiiisttr— hnt in time of peace, and the American tJovern-
im'iit took this attitude: -We cannot admit the right to
St an h in time of pejice. The reasons given were these: —
Till' /■/'//// of search in time of war includes the foifeiture
III the ship that resists the right. As fiOrd Stowell said,
• it is a wild conceit ihiit there can he lawful resistance
til the exercise of :i right." so that it is generally acqui-

iQixfd in hy the world and there is no (piestion about it
whatever. 'J'he rigiit to search, admitting the for-
t'litureof the ship that resists the search, is involved.
I'.iit the light to search contended for by (treat Britain in
lime of |)eace was ;i contention which tlie United States
cliailinged then and challenged down to near the hegin-
iiiiig of the American war. The right claimed was to
tiller an American ship and ascertain whether, first, she
was a British ship, second, whether she was a ship that
beliinged to the nationality which had given Great Britain

,qH treaty right to search its vessel.

And so it was discussed hack and forth between the na-
tions down t(. Webster's titne, and then Mr. Webster took
liic identical position, and Mr. Lawrence, in this 1858
wdik. has seen fit to criticise him for the sake of com-
iiii.'iiding CJeneial Cass' position. Strange to say, it was
Wehster wlio instructed Cass in 1.S41 as to the American
pesitiou, and in his letter to Cass and the message Qf
I'lesident Taylor, prepared by Mr. Webster, as Secretary
(if State, took identically the same position that Cass took

^o"! closing the discussion with Great Britain afterwards in
is,"i!i. And Mr. Lawrence broke into the discussion, and
timls fault with Mr. Webster that at the time of the Ash-
1)11 rtun treaty between the countries he did not insist upon
tile position subsequently taken by Cass. Now, was there
a (li>tinctiou? Lord Aberdeen contended for the right in
time of peace. He in.ade a distinction between the visita-
limi and search, but Lord Palmerston, in clear, clean cut
leniis, laid down the proposition that Great Britain had
tlif riglit to search shij)s in times of i)eace, with all that

;otliat implies. Of course, if the light existed, there could
be no remedy if a mistake was made. If the right ex-
isted, taking the analogy from the right as ad-
mitted in time of war, t'.c; ship that resisted even in
limes of peace was forfeited. But the United States
iit'ver took any other position than that if it
were actually an American ship, flying the American
tliig. Great Britain invaded the ship under that flag
ill time of peace at her peril. But if in that case it
s^liould turn out to be a British ship, no damage could be

6oie(overed. If the ship was imjjropeily wearing the
American flag, then the question was settled in favor of
(ii eat Britain's undoubted right to demonstrate that the
sliip was actually a British vessel. If it should turn out,
111 iw ever, that the ship was an American ship, having the
ri^lit to use the flag, then the American contention was

'4'

W^r-

r.tis

(Mr. DickiiiMon's Opi'iiinn .\i>?iiln»>iit.')

ami nl\vay» lias )i*m>ii that tlio (itliccr invailing tli<< slij|i
iiinst lie lii'lil tn lu'. (ih itiitinw tivs|iassfr. and the rcclani.i
tioii imisl lit- lull as against a trcspasHer «/» initio. |,i|
nil' pit'iuisi' ap'iiii that tlu' I'liitiMl Slates never coiitt'iidcl
tiiat simply liecaiise a ship canieil the American lla^ tii.il
any one who tonclietl iier was a tiesjiasser. We did ailinit
that if a ship impropeily can ie<l the American tla^'.ind

loactually was a Mritish ship theie was no recianiatieii
a^^ainst (ireal Ifritain for taking the ship.

Take this ilhistratinn as one made l>y the authnrilie-,
to which 1 am ahoiit to advert. An olTicer of the law has
a civil warrant for the arrest of John Doe. No omi'
will dis|inte the proposition, 1 suppose- I thouj^ht inv
learned friends were ninwa to for a while- that iiinxul
other nations the United States has the rifiht to ti.ke her
own ships on the high seas. The oHicer of tlu* law
to continue the ilhistiation -has a rtipias for John Doc.

20 lie finds a man who does not at the time look like .loliti
Doe hut has taken to himself all the insignia of idcn
lityof Uichard Hoe. The officer sees the insignia of the
identity of Hich.ird Roe hut snspects that this is Jolin
thesam(> (dd John. And the oHicer says, What shall I do
if I take him and he turns out to lu; IJichard K'oo. I am a
tres|)asser and liable to the fullest measuio of damages for
false imprisonment- hecause my warrant does not pro
tect me. Kichard l^oc, is suirounded hy guarantees of
the fundamental law. He cannot he touched without due

30 process of law against him. Kvery Ameri(an who goes to
school learns that early. So I cannot take liicliard h'oe
without vitdating the very fundamental law of private
rights for wlm-li 1 will lie responsible and mulcted in
damages. Ho takes him, however, and the man turns out
to he Kichard l^)e. The otiicer is mulcted in damajies.
But if he turns out to he John Do(> the man mentioned
— ho does not get away, because he had the signs n|
identity of l^ichard Hoe. No //((/xf/.scoryxf.s will put him
back. He is John Doe and the officer has him. That is

40,jn6t the principle which the United States constantly aj)-
plie<l in the whole discussion of tlu; light to search. If
the ship turned out to be a British ship, notwithstanding
tin; ship " John Doe " had the su|)erticial insignia of tlie
"Hichari' Hoe," an American ship, then no redamalidM
could be nu.de against (iroat Britain because sli(> iiad
take;* her mv n ship and the ship "Jtdni Doe "could not
claim oi) Ui*: ground that she was carrying the American
flag— if >.ii; actually turned out to be a British ship -or
becausi' she was caii'ying the iirsignia of the good ship

50 "Hit hard Hoe" with an American flag that the owner of
the "John Doe " should have damages. Now, 1 stated,
and let me I'opeat it, that this is pivcisely the doctrine of
Munroe. Wtdistei-, Adams and Cass, and was finally setlird
as the true doctrine. Wo will carry the high L'onrriris
sioners a little beyorrd the jteriod at which my friend
dosed tire coirespondonco, and then see whether in the
ideirtical language used by the coun.sel for the United
States just (juoted fr-om our argunront which has lietii
lead by my friend, and by me, the Counsel for the United

6oytates has departed an iota from the American positioir.
The Comrrrissionor on the part of the United States: —
Give me the page at which you read the language frdiii
your brief.

Mr. Dickinson:— Page 81 and on the top of page »J.
The answer of the learned counsel on the other side was

(Mr. Dickinson's Opening Argutnont.)

till' n-adinn from Liiwir'nco's visitation find hciuoIi tliiit
till' tla^ is not only i>riiiiii fticic rvidoiicfof nationality hut
i~ riinclnsive. F,a wrcniodid not (jiiito assnim? to say tliat,
lull li*< did <|tiot*> it t'roin Ifantt't'iiillo and Maut*>t°niilo also
Ml ill of till' riglit of search existing in time of war tliut
the flag in tinio of war slionid ho conclnsivt' fvidfni'o of
iiurii'isliip, and ho tit'w in tli»? faces of ail piililicists of

iolii> time, lM>for«' his linio, ami since his time. I have a
limitation from llantefnillu and will show that he apiilied
liJH diiitrine also to a state of war.

Nnw, we will take tirst Mr. VVehster's jjosition, ';g-
cause I want to vindicate Mr. Wehstei- as \ go along, on
llie gmund that I do not think that he has heen siiffi-
rii'Mtly vindicated hy Her Majestj's counsel. He in-
structed Cass, when in Paris in 1S41, and there was an
(■nort hy Cass, no doubt, to defeat the Kiendi treaty
Willi (iieat Britain, which did fail. Cass acted directly

joiuiihr instructions from Wehster. This is Wehster's
liii^ition. I will read fr<im Section ;?27 of ;!rd Wharton's
lnlernalii>nal l-aw Digest, at the hottom of page 142.
\\ (lister was then Secretary of State. I (piote this from
Welister, and as your Honors will see that later on it ap-
peai's in cori'cspondenct? with Cass which finally adjusted
tli( ma»i'.r:—

••'I'lic ntiiioKt li'iiRtli to wliicli tlio I'xt'ri'isc of thiw riKlit (st'iircli) on
llif liit,'li Hi'fts liiiH cvor lii'cii ciirrii'il in runpt'ct to the vchmcIs of luiother
naliciii liiiH Ih'cii to juMtify sciziiiK tlii'iii within the tiTritoriiil jurisilic-
;Otiiin iif tilt' Htiiti' aniiinst wIiohc InwH tlioy otToinl, ami ])iirsuinn tliiMu
ih i'a-<i' "f IliKlit lioyonil thnt limit, arrcHtinn tlit-ni on tlio oct'iin, anil
liiiiif,'in},' tlii'ni in for ailjuilicatiou bofon' the trilmnalH of tliat State.
I'liis, liowi'viT, snjjtJt'Kts tlu> Sniircnii' Court of the United Htatt'H iu
tlir ciisi' licforc (|Uoti'il of till' " ^farianna Flora," lian never lieeu snp-
|i(iseil to draw after it any riglit of visitation or seareli. The |uuty in
siieli ciiHe HeizeH at liiH i)eril. If ho establiHhos the forleiture he is
iiistil'led."

• Tills is not poeuliarly an American doetriue; it has the sanction of
tlie soundest expositors of international law. Upon the ocean in time
(if piare, that is, among nations not in war, all ore entirely eciual."

40 .Now, while Kent, as shown hy riiilliuiore, admitted the
litilit nf visitation or approach as it was called, to ascer-
tain tile national character of a vessel--that it was a ship
of the ii.ition of which it floated the flag- in a suhseipient
discussion of the matter, (Jreat Hritain acceded to the
.\iiieiicaii position, that the use of the term visitation in-
stoail of search was a distinction without a ditl'eience.
lintli amounted to the same thing and finally it was con-
(•(■lied that they resulted in the same thing in the end.
I now take up the contention in the correspondence

;otipon which my friend rests his argument. And tirst I
will lead the letter of General Cass, which stated the posi-
tinii of the United States, the somewhat famous h tter of
April 10. 1.S58. which he did read, and which I read, not
frniii the British Blue Book which my friend cited hut
tiom ,')() British and Foreign State Papers, at page 715.
After discussing the whole question General Cass states: —

" The immunity of their merchant vessels depends upon
" the lights of the United States as one of the independ-
60" cut powers of the world, and not upon the purposes or
" motives of the foreign ofllii ers hy whom it is violated.
" A merchant vessel u|)on the high seas is protected by
" lier national character. He who forcibly enters her,
" does so upon his own responsibility. Undoubtedly, if a
■ I'essel assume a national character to which she is not

., 11

i!.:.

ii\'

' „ ,!i .'i

■l^'l

,.>f'

■

57»i

(Mr. Dick-'-POii's Opening Argument.)

" entitle<1, and is sailing nnder false colors, she cainiol In
" protected by the assvitintion of a nationality to which
" a'i«? has no claim. As the identity of a person must he
" determined t»y the officer bearing a process for his arrcsl.
" and determined at the risk of such officer, so mnst tin-
'" national identity of a vessel be determined at a like liit\
" ard to him, who, doubtiiitj the Jlag she displays, searclus

lo" her toascerl((in her true character. There no donbt nui//
" be circnmstances which would go far to modify the ami-
^^ plaints a nation would hare a right to make for SKch a
" violation of itssorereignty. If the lioarding officer Inul
" Just grounds for susj)icion and deported himself irilli
"propriety in /he performance of his task, doing no in-
" j'f'y, and peaceably retiring when s<disfied of his crmr,
" no nation would make such an act the sutijcct of serioii.'^
" reclamation. It is one thing to do a deed avowedly iUv-
" gal, and excuse it by the attending circnmstances; anil

20 " // is another and (ptite a different thing to claim a right oi'
" action and the right (dso of determining when and hoir
" and to what extent it shall be e.rercised. And this is no
" barren distinction, so far as llic interest of this cnuntrv is
" involved, hut it is closely connected with an objeit (iciu
" to American people— tiie freedom of their citizens u\){>\\
" tile great highway of tiie world. * * *

" Sliould this claim of visitation become a part of the
" law of nations, it would enable a boarding ohicer in :ili
" times iiereafter, during both iience and war, as claimed

30 " and done before tln^ time of the war, forcibly to tiil^c
" the citizens of another power from its own vessel, lor
" the purpose of serving in the {British navy."

That reference to the inipressing of seamen found its
way alltliroiigh the discussion; that was the practical result
of the right to search in time of war and is a »iuestieu
foreign to thei)resent enquiry. Now, this is Ifei- Majeslys
Government in reply upon the distinction 1 have adveitrd
to. 1 refer to the same volume ir)(i liritish For. & SI.
Papers), 7;{M, Earl Malmsbury to Lord Napier:

'^ " Her Majesty'H flovernnicut reooj^uizo ns souutl thoso priuoipli's
of iuteriiatiunul liiw wliicli have bocu liiid down by (IputTiil Cas.s in
lii» note of tlu' lOtli of April to vour LonlHliip, ])rim'ii)lt'S wliicli lie
supports liv till' autliority of Ijoril Stowcll luiil tlu> Duko of ^\'i>llinj,'
tou, uutl ricr MajcHtv'i* (iovoriinioiit ari> alHO &\varo tliat iiotliiut? iu
their treaty of IHi'Z witli the United Htatew superscdeH tliat law."

And here is where the Hritish Minister differs from
former .statesmen of Cireat Britain. I read now the hist
paragraph on page Tlis:

" (Icucrnl CaHH oliservew that 'a niereliant vchhpI upon tln' lii^rli
50 " Heah i» proteeted liy her national eharaoter. Ho who foirilily
" enters her does bo upon his own re»ponHil)ility. Undouhtedly, if
" a veHsel BHBunieK a national character to which who in not cii-
" titled, and ia saili ' under false colors, siie cannot he proti ti'il
" V)y this assumption of the nationality to which she hjis iin
" claim.' "

10'

And so on, (juoling what 1 have heretofore read fmm
General Cass and conchaling as follows:

" Her Majesty's (iovernment agree entirely in this view of the cii»i',
and the iiuestiou therefore l)ecomes one solelv of discretion on tlic
T)© I'lrt of the a<'tirig ollicer. It appears to Her fliajesty's (loveruniciit
that it is one extremely dangerous to entrust and onerous to hear; ami
that an exact definition of what each res])ective state would permit
for verifying nationality, and therehy securing general trade against
piracy, should he agreed \ipon hetweou (ireat liritaiu and the Unitiil
States and clearly umliudied iu their instructions of their naval cimi
manders. "

tor

iSsf

571

(Mr. J)ickiiis(tii\s Opoiiiiig Argument.)

Now then we come down to the resumption of the cor-
i(S|Hiii(len('e between the {rovermnents. At p;i}:;e V4!),
s.uiic vohnni', li'tter Lord Mahiishuiy to Napier, dated
,lulv •_';!, lHr).s, we find as follows:

• 1 also lioiird witli iiloiisuri" that (Iciioriil C'hmh wivh jiropiirpd ttnil
williMH to roci'iviv and coiiHiilt'i' aiiv HUjJKOstioiis on Hie \n\rt of Hor
Maj.'^^tv'H (iovorunioiit wliicli ini(,'lit scciiri) a iJi'opcr voritication of the
lliif ii-'Kuiui'd l)y iiK'rcliant vi'sscls, witlio\it iiitcrniptiiiK comiiu'rco or
wiiumtinp; th<> national HUwi'i'ptiliilitii'H of niaritiino states."

And so the correspondenee wvut on, Cass disclaiming to
h;ivt' an}' iiUthoiily to enttM' upon any treaty hut willing
to restate the position of the United States. Now, Gen-
(>i,il Cass is ftnnislu'd the instructions about to bt! issued
to Coninianders of Hritisli eruisors on the L'd April, IS5!),
sliou ing the attitude of the Mritish (iovtMiiuient. Tiie iu-
sliuctions are at pagf 7s;i, and you will see at page 7H2
tiial they were furnished to (lOiieral Cass by (j reat Brit-
am. This is one of the instiuctions to tlu; Hritish Navy: —

•■."). Inmu'tliiitcly tlmt tlio coIofh arc hoisted and tlnit tli»i merchant
vissil lias m tliis nuinner announced lier nationality tiie forei^jn vessel
of W!ir can no lonjjer pretend to exercise a control over her. At most,
ill ciTtain cases, .she may claim the ri^ht to speak with her, and de-
iiiiuiil answers to ipiestions addressed to her hy ii s])eakinn; trumpet or
otherwise, but without ol)li(j;ing her to alter her course. W/ien, /inir-
fcr'c, ///(' i>n'!<iimi>tiiin i>/ iiiiliiiiKililii ri'sn/liiii/ /rum tlin tolom ii'/iich miiy
li'ira lii'fii xlioini In/ u mertluiiil ri'>isel iiini/ /ii- si:ri()n:i/i/ llinnrn in ttoithi, or
ill' ijiif.itiiiniililf /rani jiosiliri' hifuniiiiliiin, iir frinii iiithaidniis of ii iiiHure
III civiili' 11 lii'/if/' lliiil tlic ri'.s.s'W t/"ft< not lie/oni/ to llie ikiHhii ic/iiinti coliirs she
Im^ iis^uiiii'il, ilii' fiifi'iiiii ri'swl iif irnr iiiui/ huri; recoil rat' to Iho rerificiition
III' lirr imsiitiifd initiiiiiutiti/.

(), .\ hoat may bo detaeliod for this purpose towards the suspected
vessel, aftia- having tirst hailed her to (^ivc notice of the intention.
Tlie verification will consist in an examination of the jiapers, establisL-
iiif,' tlie nationality of the vessel — nothing can Vie claimed beyond tho
t'xliihilion of these documents.

7. 'I'o eminire into the nature of tho cargo, or the commercial ojiera-
tioiis of a vessel, or any other fact in short I/kiii tlntt of tim mitioun/iti/ of
ilif rfusfl IS pnihiliited. Every other search, and every inspection what-
ever is absolutely forbidden. * » *

1(1. In every case it is to be clearly understood that the captain of a
»liip of war wlio determines to board a merchant vessel must do so at
'' liis (iwu risk and peril, and must reinvin responsible for all the couse-
iliieiices which mav result from his own act. * * »

In all cases in wl'ii'h this eui|uiry shall not be justified by obviouB
ri'iisous, -.ir slii',11 ui. have lieon mr.dc in u proper manner a claim may
iirisc for indemnity."

So that, you see, after the correspondence had. been
closed, as my learned friend thiidvs, the rigid, to search be-
in^' denied for all purposes, they still reserved the question
,is lo how to detei tnine ntitionality, and (ireat liiifain ia
instil (ting lier naval orticeis to ])roceed in case of sus-

'i^liicioii anil ascertain wliat nation owns the ship.

Iiiit I iini coining to the identical language of my brief,
inav it please your Honois. That was funnshed !<> (Jen-
eial Cass, ;uid it was also fmiiished to France. On May
IJ, isrilt, tJeiieral Cass, in writing to Lord l^yons, takes this
position for the United States. It is to be regretted that
.Ml. I awn'iice could not have had thecontiinied correspond-
eiuo before he issued his volume. I read now from page
T'.'o of Foreign and State Papers, volume 50, referring to
tlie I'>riti8h draft of instructions, and General Cass says

'"'May 12, KSnit):—

" .\b stated in tho draft furnished by Lord Napier, 'No merchant
vi'>sil navigating the high seas is subject to any foreign jurisdiction.
.•\ \ e.'.Hel of war ' '.uuot ' .erefore visit, detuiu, arrest or seize (except
1111.1. r treaty) un merchant vesHcl not recognized as belonging to her
"VMi uatiou.' And as a necessary conBeipionco from this rule, it is

If!'

,:|

«*'.*

jfl!

T |1'

572

(Mr. Dickinson's Opening Arf^uinent.)

added in tbo Rame draft that ' in every case it is clearly to bo undor-
Htood that the vessel of war which determines to board a mercliuut
vessel must do so at her own risk and peril, and must remain reK))ou-
sible for all the oonseijuences which may result from her own act. '

" These extracts, which fix the responsibility of every Governmoiit
whose officers interrupt the voyage of a merchant vessel upon tliu
ocean, suRgeat very strongly the adoption by each Government of such
instructions to its own officers as will tend to make them appreciiile
this responsibility and lead them to observe great caution in acting
'*-* upon their suspicions against such u vessel. The same extracts sup-
ply a very just limitation, also, in respect to the cases to which the in-
structions can, under any circumstances, apply.

"Leaving out of view the crime of piracy, which, bapjuly, is ikiw
seldom committed, the only instance (except under treaty) in which ii
ship of war may be excused in visiting, detaining, arresting or seizing
any merchant vessel bearing a foreign Hag, /.>: when fiicli re^sel in, ft,,-
goal '1)1(1 sufficient reiixons, leiieretl to f)el(,in/, in /art, to the coitiilri/ oj the
risiling slii/i."

Tlieie, yon see. (ieneijil Ca.ss has given it all away
again. There is, then, a right of seaicli, and seizure if

-°lhe suspicions are valui tliat the vessel that flies a fun-ii;n
flag actuall}' helongs to the seizing nation. Lewi." r
the crime of |)iracy. putting that aside, tiie.e 'n v^;;-
stance then in which a ship of war may l)e i.:,< j-.vJ ii
visiting, detaining, arresting, and seizing an ,• ;iinivii;uit
vessel hearing a foreign flag, when such vessels have suf-
flcieiit reasons for helieving it helongs in fact to the coun-
try of the visiting ship. So it was not settled hy tliecidso
of tht correspondence in ]s,5s. And, some v^ay or ()tli,>r.
I retnend)ered when I wrote that statement in our brief

3°that the seizing ship, when the flag floated over a deck,
seized at her peril, and I put it in my brief as the result of
my information as to the conclnsion upon tlie right of
search. And I remeraheied also that the reservation niadi^
that a cruiser could go upon a ship on probable cause, and
if it turned out, whatever the flag or register, that it was
a ship of tile seizing ct)untry, there could be no reclamation
for the seizure, and the United States nevei' contended for
a moment for any other principle.

Cieneial Cass goes on: —
40

" A slaver cannot be detained l)y a foreigu vessel because it i.s 11
slaver, unless the right of detention in such a case has been coniVrrcil
by the Oovernmeut to wliidi the foreign vessel belongs. Except so
far us it may liave |)arted with it by treaty, every nation has tl'c ex-
clusive care of its own Hag upon the liigli seas.

The responsibility of each (iovernnieiit for its respective oHiccrs .■
thus very mucli limited by the comparatively small nnnil)er of case;,
ill whii'h the detention of a merchant vessel can under any eiivuui-
stances occur."

Again, in the last luiragrapb, page T!U, he says: —

50 •' Tht> liberty of approacli under sueh circiimstauees has been dis-
tinctly artlrnied liy tlie Siipri'iae Court of the United States. lu the
case of the " Mariana Flora" (XI. NVheatou, Ii. I.), the law was hiul
down as follows :

' Merchant ships are in the coustaut habit of apjiroaching eacii (itiicr
on the ocean, eitlier to reliev tlieir own distress, to procure infoimn-
tion, or to ascertain tlie charaeti'r of strangers ; and hitherto tlierc hii-'
never been su)>piised ill such cdnduet any breacii of the customii'
observances, or of the strict(>st |)riiiciples <if the Law of Nations.

' In res])eet of ships of war sailing, as in tlu^ [ircsent case, under the
authority of their (iovernnient, to arrest Jiirate: and other )mblic nf-
fendors, there is no reason why they may not approach any vessels

< 'O di'scrie<l at sea, for the purpose of a .taiuing tluir real chanul'is.
Such a right seeiiis indispensable f<. ' dc fair una •!is<'reet exercise cf
their authority, and the use of it c, inut be just'.v dicnied inilicalivc
iif any design to insult or injure tl use Mieyn] H" h, or to iiiipcilc
them ill tlicir lawful eoninierci-. 'V the otlie • !. aul, 't is as clear that
no vessel is, under the eireunistance.., bouini to lie by or wait the ap-
proach of any other ship. ' "

lOi''

r.ra

(Mr. Dickinson's Opening Argument.)

Tliat was laid down by the Supreme Court. We have
sKii that case distinj^uished l)etween case.s of piracy and
oilu'i- instances in which it may be done. Secretary Cass

gdi'S on:

• Ordinarily, the above observation of any mej'ohant-vessol will very
well i)omt out its national character. There are niinierouH indications
wliuh. to the i)ra('tisod eye of a seaman, furnish conclusive evidence
10 (). .Iiix subject. Should a further examination in any case be thouj^ht
justitiable, it is difHoult to perceive how this is to be accomplished
a^'.iiiist the will of a susi)ected vessel by any peaceful mode. For
sucli a case it is hardly practicable to make regulations in advance.

Tlic I'ules which prevail in time of war to prevent conflicts between
iiiutials and allies, and belligerents, and even between armed vessels
of the same nation, are not properly applicalde to a state of reace; and
even- ise of the kind referred to mav, perhaps, be left most wisely
t(i 111' determined by its own peculiar circumstances, under the general
]ii(ivisious of the law of nations."

Now, tliis having been furnished to Great Britain, Gen-
20ii;il Cass was invited to send a communication to France,
ami \h' did so, lurnishing Great Britain a copy of the com-
munication which is puldished in the same volume. He
wrote to Count Sartiges on January ^otli, isr)!», a letter
wiiiili will he found in the same volume, at page 703, in
which lie says:

"France, like the United States, recognizes no right of search or
visit upon the high seas, except in time of war. France, like the
United States, holds, in the language of your memorandum, that 'an
nrmt'd vessel cannot visit, detain, arrest or seize any but such mer-

,ii(liiiut-vessels as it ascertains to belong to the same nation to which

"^ ilir iirmed vessel itself belongs.' France, like the United States, holds
fiirthor, that while cases may exist of a fraudulent assumption of a
ll;i'-,'. the verification of su3h a case must be made at the peril of the
jiiirty iiirtking it, or, in the words of your memorandum, ' under all
ciriuinstauces it is well understood that the armed vessel that may
(Icteniiiui' to board a foreign merchant-vessel, does so in every instance
lit its own risk and peril, and stands responsible for all the couse-
i|niMici's which may follow the act.'

While thus recognizing the immunity of merchant vessels on the
iH'i'iin, and the grave responsibility which is assumed by a ship of
war when she boards a foreign ship in order to verify its Hag, your
mi'iiHiraiiduin suggests some interesting views in respect to the cau-
tion with which such a verification should be pursued, and such a rc-
s|iiinsibility exercised.

I do not understand that the French Government desires to limit
this respousihility, or to change in any way that rule of international
law liy which in time of peace an honest luerchautmr.u is protected on
tlic ocean from any visit, detention, or search wliatever. Undoubtedly
II sliip of war may sometimes find a foreign merchant vessel so siir-
rnmided by stispicious circumstances as to induce the belief that she
is sailing under false colors; and in sudi a case the ship of war may
tliink it right to adojit some proper measures to verify the s\ispected
Hag. //' N/Kiii iiii/iiirit ils siis/)ici(iiis itri' reiilizrti, no one liiix (iiiii rii/hl Id
i-f,-iiiilfiiii. iint if the suspected vessel turns out to be an honest trader,

' thi'ii' call be no doubt that a trespass has been committed on her
riu'lits, wliich may or may not lie excusable, according to the peculiar
ciniuustauces under which it was committed.

riic burden of proof in es'orv such case must necessarily rest upon
tin- party committing the error, who will be bound to show, not only
thi't his sus]iicions were reasonably excited, but that he exercised due
cuitioii and care in res))ect to their veritication.

Ill rcver.se this rule and throw the bunb'ii of proof U])OU the sus-
pi I'ti'il i>arty, or to hold that a ship of war can, under any circiim-
s'.ani'cs, treat an iniioci i merchantman of a foreign nation as a guilty
vessel, would be attem ed with very dangerous consciiueiices, and is

, Hot. 1 repeat, what I ni.derstand your memorandum to contemi)late.

'^0 If 1 rorrectly understand tlie purpose of your goverunu'nt on this
sniijci't, its only desire is to prevent the rights of merchantnu'u from
l"ing capriciously interfered with by the commanders of ships of war,
aiiil to this end, as far as possible, to substitute the well-considered
insinutions of the government for the hasty conclusions of its naval
"ItiirrH. There can be uo doubt that this jirecaution is eminently de-
siralile, and that every government should take care so to instruct its

vl!' 'mi-

m ifM

Is-

!' ■'

■■/ ' ?'
1

1 : ■ •

^' Mi'
^ Hi

I! ■; i(

•P

f'--

rni

(Mr. Dickinson's Opening Argument.)

naval ooninianders as to preveut, as far as possible, auy improper in
terfereuce at sea with the merchant ships of other nations. Such in-
structions are manifestly necessary, not only with reference to tlii>
general interests of commerce, but also to avoid those claims for re-
dress which are sure to arise, whenever a merchant vessel of mu-
country is improi)erly visited or detained by a public vessel of auothir
country.

lu the general features of these instructions it is natural to 8Upi)OKc
that the commercial nations of the world will be essentially in attrcc-

lOment. Your memorandum, for example, suggests that when a ship of
war ond merchant vessel meet on the high seas, the latter should ikjI
refuse to disjday her flag, and certainly such refusal, in the abseuco
of any satisfactory e.xplanation, would be a susjucious circumstaucc.

Other suspicious circumstances may exist at the same time, whicli
may lead the Bhij) of war to jjursue the mode of veriftcation pointed
out in your memorandum; and if the case is one where any veriticn-
tion ot all is to be jmrsued, the measures for this purpose suggested iu
your memorandum are calculoted, it seems to me, to accomplish the
object with the least possible difficulty. But both France and the
United States agree that these measures, or any similar measures, can
onlv be em])loyed at the risk and peril of the party using them, who

-Ois i)ound to show, in every case of erroneous suspicion and visit,
Bucb extenuating circumstances as will reasonably satisfy the iujured
party.

To determine in advance precisely what circumstances may be re-
garded as a sufficient warrant for doubting the nationality of a mer-
chant vessel, ap]>ears to me quite impossible; and every case may jut-
haps be safely left to be determined by itsidf.

I have thus stated the general views of the President upon the sub-
ject of your memorandum, and I do not make a more detailed rejily,
because I am not quite sui'e whether I have correclty interpreted the
views and wishes of your Government. To agree upon any j)lrtu of
verification which would change the rule of international law, nnd

30 authorize in advance the commission of a tresi)as8, is a very dif-
ferent thing from merely assenting to certain modes of proceeding
aa being reasonable and jirojier iu a given case. The former would
be as like objectionable, I am persuaded, to France and the United
States. The latter would be far less objectionable, and, as I hnve
already said, the precautionary instructions of different nations to
their naval commanders respectively, would not |)robably be very dis-
similar in their general features. "

Now both in his conuiuuiication to Lord Lyons and in
his comnuuiicatiun to France. General Cass ]»roposes. alter
a full discussion and agieenient by tlie Cabinet, to giveiu

"^ structions to the American naval commanders, whidi
were furnished, and we will see what position the
United States then took. These instructions weie given the
commanders at the close of the discussion, and these were
furnished to Great Britain and are here. In the first place,
there is the circular to the merchant vessel, May '2(!. IH,")!*,
page {t71 of the same volume, directing them to show
their colors under all circumstances. Here are the in-
stiuctions to the United States navy furnished Great Brit-
ain as agieed upon, at page !t74 of the same volume, and

' sent by Geneial Cass to Lord Lyons, July IS, 185!*:—

" The Government does not acknowledge the right in any other
nation to visit and detain the vessels of American citizens engaged in
commerce.

TheJliKj which llie re.isel irearn is jiriinii fncie, allhir/h it is not ti amclu-
sire proii/ (>f /iiiliiiihilili/; it is ii mere emblem, imil it loses its true diciritcler
when it is worn hif those who hnve no right to xoenr it."

This is not the action of General Cass alone, hut the
American conclusion upon the whole discussion of this
60 light of search, fought out by diplomats of the two govern
ment;: during a half century or more, and your Honors
see that my learned friend has misconceived the spirit of
the discussion, the object of it, and the position of the
United States. And he can see why the American Val
halla need not be tenantless and why when I cross the

(Mr. Dickinson's Opening Argnnieiit.)

borders to my own country, the spirits of tiie mighty dead
will not meet me svitii reproaches. Tliis reads like some-
tliing that was in my l)rief, although I did not quote it. I
set it down from mj' knowledge of the American position
upo" this question learned as a school-boy, as my friend
le.inied the history of his great country heforeiie went out
int.) the highway of lite. My country never took so ab-

jQSunl a position as that in the assertion of its sovereignty,
it cciuld not put its hand upon any ship owned in the United
States by any man residing within its borders, whether
that shij) was on the higli seas or in its harbors; the
United States never took the position that Great Britain
(•(iiild not take anyvvheie, on the higii seas, or in lier
iiarljors, a ship flying th(! American Hag. but owned by a
|ii rsiin, a civil or political subject owing allegiance to Great
Hiilain, and hving within her borders.
I continue reading from the Instructions to American

20 Naval Commanders:

"Tiic flag which the vewsol wears is prhiiifiicie although it is not a
c'oucliiHivo proof of uatiouality; it is a mere eml)lein, and it loses its
true charaptor when it is worn l>y those wlio have no right to wear it.
.\iiy vessel that displays the American flag elaims to ))0 an American,
aiui may tlierefore be rightfully Ijoanled and examined by an American
cruiser if there be any circumstances attending her to justify a
susjiicion that she is not what she j)rofesses to bo. But this privilege
docs not extend to the cruisers of any other nation. The Uniled Stales
(I'l nut cliiiiii thilt llie tiierclioistiii'i of llf.irjl it) nhuH (jive imiiiHiiili/ to those
II hn liarc. Ill) rif/hls to ireur it. Sucli a pretension would Bubject their
tlii^ to degradation and dishonor, because it would make it a cover for
J pinicy and otlier crimes of similar atrocity; but their oini citizens who
riglitfiilly display it are entitled to absolute immunity and protection.
Yon will therefore at all times be i)rompt to prevent the search or de-
tention of vessels of the United States ou the high seas in the time of
liciicc l)y the armed vessels of any other power.

Sliou'ld a vessel of the United Htates talsly assume the flag of any
otlicr nation it will constitute no protection, i'ou will, however, in
all such cases where, from Information or appearances, yon have just
reason to believe that the flag of any other nation has been falsely as-
sumcil l)y an American vessel, proceed with great care and caution.
If it should be ultimately made to appear that slie is a vessel of the
United States, the case will l)e free from any dilBculty or embarrass-
40mcnt. Hut if, on the other hand, she is in fact a vessel of any other
uiition, tlien you have no right whatever to arrest, detain, board, search
or examine her, or divi'rt her from her course.

Tlic authority to do so depends upon her nationality, whatever ap-
pciirances may be or whatever may be your information of her char-
acter.

You should therefore, in all eases of well grounded suspicion, pro-
ceed with great consideration and caution, in order to guard against
iiiistalic.

You may api)roach the suspected vessel and speak with her, show-
iiif; your own flag. You may recpiest her to display her flag; If she re-
vise 1)1- omit to do so, you may discharge towards her a gun loaded
50 with lilaiik cartridge only. If she still refuse or omit to display her
ciildis, you may discharge a shotted gun, pointing it so as not to hit or
ciiclaiigcr her. If she display the colors of any foreign nation, you ^an
proceed no further, e.raijil ujimi iippurenthj irell f/roum/eil suspicion of
triiiiilulent iissiiiiqilinii offiiiviqii colors hi) her niiil upon i/our cini respousi-

hititl/."

That is a part of the correspondence and final conclusion

agreed to between the governments by instructions to

tlieir navies, and not closed or concluded when Mr. Law-

vtiice contributed his articles to the Rhode Island Atlrer-

(loli^fr or when his book was issued in lsr)S.

.Now I will finish tiiis subject, not by reading a review
ot .Mr. Lawrence's vTritten before the couclusion, but from
till' Imninous notes to VVheaton by my distinguished fel-
low (dimtryman the publicist, Mr. Dana, as to the re-
f^iili, Mr. Lawrence issued a Wheaton in Lsr)5, but Mr.

i«. ■ ■

i'
5

III

\ f Si-f

! ■ i

V }i'

;:|l ■ \i

,rCi'

|l'

.■)((•)

(Mr. Dickinson's Oi)enin{jc Argument.)

Dana lias issued editions of his Wheaton. tunning later
tiian 18tU), l)ut I hold in niv hand the ISOfi eighth edition.
I read from Dana's Wheaton's International Law. pjif^e
185. After referring to the dehate in the British Parlia
ment, to which my learned friend adveited, where it was
concluded hy the statesmen of England that there was no
I'ight to visit, the authoi', in his notes, says:

lO 11 jf ^iie (l(,.l)ato iH correctly roi)orti'(l, there seems to be some con-
fusion l)et\veou the option of a eruiser, at his peril, to take his elmiice
of a vessel turniuf? out to have been liable to he detniued by him, mid
the right of a cniiser to detain the vessel for the i>urpo8e of ])uttiMn
the test. The principle, however, is clear. If a cruiser stops a vessel
in the exeivise oi j)olice power, he takes the chance of her turning out
to be subject to the exercise of that power by him. If she proves tn
be a vessel of his own nation, or of one that has conceded to him tluit
right, he turns out to have been in the exercise of a right nli iniHn;
and neither he nor his nation is bound to make apology or c<>m]ifii-
sation; though the vessel proves innocent of the crime suspected. Hut
if the vessel proves not to be subject to his police i)o\ver, then he turns

20 out to have been a trespasser a/) //(///o, whether tlu> vessel proves in-
nocent or guilty of the crime suHj)ected. He is liable in that case, ucit
for having stopped an innocent vessel, but for having stopped one nut
subject to his ius])ection. The mistake of the cruiser, however uatiinil
or honest, is not a justification. It is only an excuse, addressing itself
to the consideration of the government whose vcssc' le has interforcd
with."

Now it seems that Dr. Philliinoregot the idea, prohalily
wi'itten hefore the coiichisicjii of the correspondence, as
Mr. Lawrence did, that the position of the United States

-Q was, as stated hy my learned friend here. Because tlie

' learned annotator continues:

" Dr. Philliniore (iii. 420-424) defends the distinction, and cites tlic
note to Kent with aj)probation. At the same time he seems to think
the question is, whether a Uritish cruiser may stop or visit a vessel
under an American Hag ; and that tlic United States have denied such
aright (p. 421). But the carrying American flags or papers is a fact
as to .vhich nothing can be predicated all'ecting o right to visit. If
the vessel was American, she was exein))t ; if not, the American (iov-
ernment claims no interest, although she carried its flag. "

'J'here, may it please your Hoiiois, are Wheaton and Dana
40 flying with me in the face of the great stfitesmen ami
lawyers of the United Statt si J)id not Dana know what we
had always contended foreitluM? The author proceeds: —

" If an officer is reciuired by Ins warrant to arrest John Doe, charged
with a crime, and sto])s a man wearing the dress and using the name
of Richard Roe, and compels him to submit to reasonable exiiniinu-
tions of his i)ersou and jiajiers to ascertain, not his guilt or innoceuio,
but whether he is .John Doe — then, if he turns nut to be John Due,
Richard Roe has no cause of complaint ; but, if he proves to he
Richard Roe, the otlicer is a tr(>spasser, tliough acting in good faith.
This analogy uu»y serve to clear n\> the mist that seems to cover the
S'^subject as it has been viewed by scinr- writers."

And. althongh it is not in the context, I might add the
word " Coinmentatt)rs."
Mr. Dana fiirtiier says, reading from the same note:-

" Halleck (Intern. Law, OOT-OO.')) carefully examines the subject,
and declares that no continental writer has recognized the distiuctiuu
between visit and search as rights, in time of peace ; denies the accur-
acy of the reasoning of Dr. I'hillimore ; and suggests that the note to
Kent contradicts tlie text, and rests on the authority of the annotator,
and not of Kent himself. It is needless to say that Mr. Wheat(Ui, in
(3q his dii)lomatic correspondence as well as in his tracts and conunen-
taries, has always denied the distinction in i>rinciple as well us on
authority. Dr.' Woolsey (J 1S)('>1 agrees, that neither visit nor search
cjin be made, as a right,' to ascertain national character ; Viut oft'cis a
suggestion (J 201). that such imiuiry as is necessary to ascertain
nationality might well be granted by nations."

At one o'clock the Connnissioners rose.

(Mr. Dickinson's Opening Argument.)

At half-past two o'clock the Commissioners resumed
tlu'ir seats.
Mr. Dickinson continuing:—

As to the matter read from William Beach Lawrence,
(111 Visitation and Search, I think I have sufficiently veri-
lird my statement, that the book was issued in 1858, be-
foiv the later preliminary correspondence even of 1858
10 could have been published, and of course befoie that of
l^fiii concluding it. 'J'he advertisement of the author is
dated August 25, 1858. It is stated in the author's pre-
tace. that it is a compilation of various articles contributed
liy him ])ending this discussion between the countries, to
n iK'wsi)aper called the Newport Advertiser, during the
intceding six years; and the statement quoted by my
learned friend Sir Charles Hibbert Tupper from Lawrence,
"Tluit the flag of a ship is the sign of its nationality,
lint merely jnima facie hxxi absolutely conclusive to all
20 foreign ships," is quoted from Hautefuille, and is not the
coiulusion of the author Lawrence. To siiow how, on
tilt' (question, Hautefuille stands with the publicists, I call
the attention of the Court to Wheaton sth Edition, sec-
tion 5-J*), page (liio— note, where it is said of Hautefuille:

"In his later edition of Eights of Nationality, he at-
trMipts a distinction between visit and search, and would
routine the right of a belligerent to stopping a vessel and
iiisjiecting the papers presented to him, and would make
these pnjiers conclusive on the (piestion of nationality,
30 ownership, contraband and destination. But tiiis "is
lueifly a suggestion of the learned commentator as to a
possible policy, and has no support of authority, either in
tiie jiractice of nations, or the works of publicists."

So miicli for the statement from Hautefuille. aside from
tiie Conclusive position of the United States, as I have
shown your Honors, in the correspondence and the in-
>t ructions of the United States to her own navy.

y\y learned friend has also referred to the " Le Louis"

case and tlie judgment of Sir Wm. Scott. This case of

40tlie"Le Louis "is the leading case always cited by the

United States in this long discussion against the riglit of

search in time of peace, which is now historical.

it is th.e case referred to by Lord Aberdeen in his com-
iiHuiication of October 18, 1841, wherein he intimates that
tlie decision of Jjord Stowell is no longer recognized as an
aiithoiity in Great Britain. But in the discussion between
tile nations the decision of Lord Stowell (Sir William
Scotti, and the rule runs through all text hooks, contains
tiie .American contention, and is finally acceded to at the
5oe| )se of the discussion by both nations, and now as always,
Sir Wni. Scott is recognized as authority on this (piestion,
as on every other on which he took a position.

It was there decided by Sir William Scott that theie is no
such thing as the right of search in time of peace, and that,
therefore, the French ship, "turning out on investigation to
lie ii\Hfueslio)mbly a French ship," was not liable to forfeit-
iiiv liecanse she resisted the right of seai'ch. The facts were
that the French ship resisted the invasion by the British
I miser, and that a nund)er of men (eleven, t thiidi) were
<'»o killed and wounded. It was contended that the right of
search could not be resisted (the undoubted rule, if the
li.ulil existed), and that the ship should be forfeited
liecaiiso she resisted — thus applying precisely the same
I iile that now and always obtains in time of war, that the
li.ulit of search exists on the part of belligerents, and that

lit

(

%'■ il

I i.

1: 1

i" ' 11 V

' !Ji

II ^

S7S

(Mr. Dickinson's Oi)ening Armament.)

forfeiture will follow if there be any resistance to tliiil
right.

The decision was. that no such right of search exiskd
in peace, and that it having turned out tliat the ship was
unquestionably a French ship, there could be no forfeiture
of tiie ship. iJut the court finally, in tiie last paragrapli.
goes on to say: "This is a case of first instance upon tliat
lo question, and therefore awards no costs or damages or
certificate of probable cause.

The Commissioner on the part of the United States:
What is tlie date of that decision^

Mr. Dickinson: December 1, 1H|7. I call your Honor's
attention to the language of Sir Willian) Scott in drawing
his conclusion tliat there could be no forfeiture, and that
there was a right of resistance in time of peace. He says:

" The ship seized was in appearance and in fact a French
ship, admitted on the jtlea and on tiie argument to be so
20 viKjiiestionably.^''

In tiie opinion of the Court as reported, the word " ua
questionably " is italicized.

" Owned and navigated by Frenchmen; originally indeed
built in America and having been for a short time in
British possession which had ceased."

So that the decision is: that the right of search in time
of peace does not exist. There was no n'ylit to take her,
and theiefore no right of forfeiture for resistance. Tiuit
is the sum and substance of the decision.
30 This was a French shii), admitted by all sides to have
been at the time also in (tpjwa ranee a French shin; tlie
attem|>t was to search her on the ground that she was a
slaver, with no treaty with France permitting (ireat
Britain to search French ships on that ground. You
have in this respect also precisely the ground that you are
met with in this history, in behalf of the United States.
They did not assume to attack her as a British ship; they
did not seize her or attempt to search her because they
claimed she was a British ship in appearance or in manning
40 for as admitted, and not contested, she was unquestion-
ably French. But if tiie ship had tui ned out to have iieen a
Britisli ship owned by British subjects of Her Majesty's do-
minions, lesidents domiciled or naturalized, or native born
in Her Majesty's dominion, owing allegiance to Het
Majesty's laws and sc ereignity, there could be no doubt,
on the prior decisions of Lord Stowell, that whatevei Hag
she flew (and under the admitted settlement between
France, England and the United States on this <iuestioii)
no reclamation could have been made against (ireat
50 Britain by France, she iiaving turned out to have l)eeii
actually Britisli.

Kow a word as to the case of the " Virginius." The
" Virginius '' .sailed with an American register and tiying
the American flag in a time of peace aiso. The belliger-
ency of tiie insurgents in Cuba liad not been recognized.
The existence of a state 0'' war, as now in the present re
hellion, was denied by Spain. The " Virginius" was seized
by Spain while she was carrying the flag and the register
of an American documented ship. In his proclamation,
(3Qor in the first State paper issued by President Grant, he
says:—" It appears that the " Virginius " was an American
ship." He does not say she was an American ship, but
" it appears." Our friends cite the language in their brief
under the head of the "Virginius,'" and the correspond
ence is fully set out there.

570

(Mr. Dickinson's Opening Aignniont )

Sir Charles Hil^bert Tnpper: — I read from the oxccntive
(liK ument.

Mr. Dickinson: -Very well. President Grant says: —
" she left the Port of Ivingston in October last under the
tl.i;,' of the United States, and .she ironhl apiwar to haw
li((il, as against all powers excepting the United States,
the right to fly that flag."

10 S|)ain immediately contended that the " Virginins " was
in tact a S))anish ship. SIk? contended, and it ultimately
appeared that it was true, that she was in fact owned by
a Spanish subject named (,)uesada, who was aiding insur-
rection against the sovereignty of Spain. It was upon this
ciiiitcntion that the United States said: We will have an
investigation of that (piesticm, and for that jinrpose Spain
may employ counsel and appear before the tribunal that
wc will establisii fttr the junpose of the investigation.
My learned friend says that the United States asserted

:otii( doctrine, that she would not jiermit the (juestion to
lie examined in any other court or before any other
aiitlK)rity. than that of the United States. On the one
hand, however, the United States accedeil to the position,
that if you prove that this ship is in fact the property of
(itizens of Spain, there can be no reclamation, nay even
no apology, for the insult to the flag.

Now, instead of taking it before the courts of the United
Statics, sui)pose the two countries bad agreed by con-
vention to refer the qut'stion to an international tribunal

;olike this. Suppose that method of investigation had been
aildpted; and then suppose that Quesada had come before
t iiat tribunal, a convention for the assessment of claims and
turning necessarily on the status of claimants, and
(,Uiesada before such a tribunal had said : Tiiis ship was
under the flag of the United States as a regis-
ti'ied and properly documented ship of the United
States. And suppose C^uesada had gone before the
trii.unal and set uj) the claim for damages— we
will say a claim that the sovereignity of the

40lnitcd States had been violated, and therefore ho was
entitled to recover damages because the ship was sailing
under the flag of the United States—can there be any
doubt as to what the decision would have been ? Can
there be any doubt that the status of the claimant as to
Spain would be considered, or that the status of the real
owner would be considered, under a convention which
provid(>d that to such persons as Spain, or as the United
States have the right to make reclamation for, the com-
mission should award damages?

jo Think of it! Quesada the alleged owner hffore such
a convention claiming that he was a person who had a
light to make reclamation against Spain, under protec-
tion of the United States. Is there any doubt of the re-
suit if in such investigation it turned out, as the fact was,
as it did turn out, that the ship was actually owned by a
subject of Spain? Can there be a doubt that the claimant
would be turned out of court? But on the question of na-
lioual dignity even, the Government of the United States,
tiudugh Secretaiy Fish, at page 75 (Ex. Doc. 30, Session

'^'Ols7;f-4) of these same executive documents to which Sir
Cliarles Tupper has referred— on the national question of
tlir infraction of dignity, said:

"A nation must be the judge and the custodian of its own
honor," and he cannot doubt "that Spain herself, ever
sensitive of the protection of her own honor and ready to

I' i

i "

■■•^■■11

i ■

. ;

nsd

'■ I

(Mr. Dickinson's Opening Argument.)

do justice, would appreciate the iinpossii»ility of tiio rofci
ence of such a (|Ut'stioii, and that until atonement wa-
made to tiie wounded dignity and sovereignty of tl;is gov
ernnient, it could not entertain a proposition of arhitra
tion by reference to other |io\vers." He referred to the
case of the arhilratiun in the Alabama claims, and he said:
" Her Majesty's government had tendered atonement \i>

lothe injured sensibilities of the government and jjcoijIc df
the United States wiiich was accepted b}' I hem assatistac
tory, before any arbitration was assented to." A lii;.:li
authoiity that, that wlien a (piestion of national dignity
or national honor is involved, the (piestion cannot coi-
laterally or directly go to a tribunal of arbitration.
No nation will refer to any other body than its miiiistcis
or the vepres«'ntalives of its own sovereignty a (luestioii dl
the honor and dignity of the sovereignty. The only ()uts
tion reserved in tills case for the decision of its own

20 sovereignty was, as to whether there had been an insult,
and the United States said we will be the judges of that.
A proposition forarbitiation upon that point would not have
been accepted for one moment, and it never has been ac-
cepted for one moment. Then respecting the (luestion dt'
national honor, and as to whether it had been insulted,
the United States made a fair investigation. They found
that the flag of the United States had been iinpropi riv
placed over the deck of that sliiii, and the United Status
stated to Spain, that an apology would not be leciuircd.

30 That ended that. There was no question of money ahdiit
that. And of course the investigation demonstrated be-
yond a shadow of a doubt that the ship was actually
owned by a Spanish subject. Spain was the seiziiit,'
nation, and it necessarily disi)osed of the question df
whether any citizen of the United States, or any one tliat
the Unitf'd States had a right to jirotect, could have any
|iossible claim against Spain for that seizure. It disposed
of that question so that the United States did not ask fdi
arbitration as to wliat Spain siiould pay on an assessnieiit

40 of damages. There wei'e some HO,0<iO psedas paid over to
the Government of the United States, and what was thai
money paid for? Now, may it please your Honors, tlic
corresjiondtnce discloses that tlie (juestion of the seizure
of the " Virginius " had no more to do with the question of
what should be paid in that matter than it would have to
do with a transaction that occurred in the year A. D. 1. in
Egypt. It was entii'ely a different question. There was
no claim ever made for the seizure of the " V^irgiiiius."
Sir Charles Hibbeit TuppHi:-The " Virginius" was le-

50 turned.

Mr. Dickinson:— The truth of it is that the '" Vir
giiiius " was lost.

Sir Charles Hibbeit Tupper:— But she was delivered to
the United States.

Mr. Dickinson:— She was lost before she reached an
American port.

Sir Charles Hibbert Tupper:— She was handed over to
a United States cruiser.

Mr. Dickinson: — Exactly, and was lost. We have never

60 heard yet that the United States, although application was
made, yielded to the contention to demand damages for
any person on account of seizure of the " Virginius." The
reason was that no person suffered .an injury "in whose
behalf the United States was entitled to claim compon
sation from Spain." The language of the present con-

681

(Mr. Dickinson's Opening Argument.)

Million I)eforo yon i that claims are to bo roforred to
tlii> triinuuil " siistiiined by persons in wliose behalf Great
Hiitnin is cntitloil to claim compensation." When the
( iiliaii .Inula -as shown by the correspondence— attempted
t.i;;et Ibe United Stales to make reclamation for Iho al-
I, -111 owner, it was scouted from the diplomatic offices of
till' Tniled States.
10 The Commissioner on the part of the United States:—
l»o yon know where thedomicil of the owner of the " Vir-
>;iiiiiis" was?

Mr. Dickinson: -(^nesada had a domicil in the United
Slates, but he was a Spanish subject. Ho was engaged in
all act — not an act of war— but an act derogatoiy to the
sovereignty of the country that claimed him as an original

mibj'H't.

.\(iw let us see what the M»,(K)0 p.sedas in the " Virginius "
rase wer(! paid for? It should bo said, as your Honors will

20 see, by reference to 3 Wharton Digest, pages (it;^' and 709
ami 71:2, that they took pains that the " V^iiginins "' should
have a certificate from the United States, so that sho had
what was not merely a registration and the flag, but what
\v;is i'(|uivalent to a sea letter or pass during war.

Now, at page -M of the same executive document, to
wliiili my learned friend has referred, wo will commence
to Ml- wjiat the damages paid were paid for. They were
not paid for the ship or for the seizure of the ship. I refer
to coinmunication from Mr. Fish to the Ameiicaii Minister

30 to Spain, of Novetnber 12th, IS73, Executive Document
No. :io, the same document referred to by Sir Charles
Tiiiipt'r, IS78-4, page 21:

•On tlic 7tli the pul)lic journals aunounced tbo execution on tho
Itli (if four porsouK who had 1)0PU captured on tho vesHol, one of
wli.im WHS represented to lie uu Anieriean, wlio in said to have en-
tcrril tlio uiilitary service of the insurrectionists in Cuba, and who
chiiiiii'd to hold a military coniniissiou from the insurrectionary
aiitliorities, and to have been in actual military service on the
ivliilid.

'till' execution, as it is called, of those jKirsons was forced on with
4'J iiiilciciit and barbarous haste, and in defiance of all humanity and re-
t,';iiil to the nsanes of the civilized world.

It WHS i)orpetrated in advance of the kuowledRC of tho capture reach-
iiii; Havana or Madrid, and it would seem to have been tlius precipi-
tati it in cold blood and vindictivoness, to anticipate and prevent tho
iiitii position of auv humane restraints upon the ferocity of the local
aiitlicirities from tlie gov' rnmeut at Madrid or its representative in
Havana.

Tliis is but another instance in the long catalogue of the defiance of
till' liniiie government by those intrusted with authority in C'uba, and
ailils another jjage to the dark history of bloody vengeance and crn«l
ilisii^'ard of the rules of civilized war, and of common humai'.,,
jOwliicii tlie niilitarv and other olMcials in C'uba have but too freqU' a' i ■'
iiiailc jiart of tho liistory of Spain's government and of its colony."

At page 2{\, again, November 13th, 1873, General Sickles
III Mr. Fish:

• M four o'clock this afternoon, the hour appointed yesterday, I
hail an interview with the Minister of State at his oflice. His ex-
cilliiicy received me with tho remark that late news from Cuba had
ili'|irived our conference of the results he had anticipated from it.
Last night a report had been received from the Captain-Oeneral, stat-
(jQ^i'A tliat forty-nine" (not four) "of the prisoners taken in the Vir-
'I'liiiis liad been shot on the 7tli and 8th iust. at Santiago de Cuba.
I'll.' iinler of President Castelar, dispatched on the (ith, had reached
llaviinii on the following day, too late to prevent the executions. He
Miaile this communication to me with profound regret. President
( 'a -.ti'lar had received the intelligence with deep concern," and 80 on
aiiil H(i forth.

•1

I-

".'til?'!

)S2

(Ml' Dickinson's ()|H'ninfi; Aignniont.)

Sir CliaiK's H. Tnppt>i:— Doos it state in tliat di'spatrh .ii
that paj^c what tiie nationahty was of thosu forty niin
prisoners?

Mr. Dickinson: — The despatch jjjoes on:

"1 iiii|nirt'(1 wlictlipr liiH rxci'lli'iicj- i'()\ilil iiiforiii nm how iimny of
tlio vi<'tiiiiH (/•('(■(' Aiin'riran riliims, to wliicli lie rcpliiMl tlint no |iiii'
tii'uliirH Imd ln'cn ivccivtMl, iiii.l it wiih lU'cciHcIv that (picstion that In
,- hud put to thi> Cuptaiu-Uoucrnl in a cnblt< nii'HHago Hout ut two u'cKuk
thit inoruitiK."

The correspondence goes on, may it phvise the Court, .it
great length, and tlietinal result was this; that the I'nitcil
States Minister, inider the instruction-; of Secretary Fij-li.
following, and not preceding, I am sorry to say, the action
of (ireat Hritain, taken as to some passengers on the '• Vir-
ginius,"" dem.Miided of the Spanish Goveiiuneiil. for this
terrihle massacre compensation, and a liheral coinjieiisa
tion, for the survivors of the families, of those who were

20shot to deatii in violation of the miiversal law of civiliza
tion. against the stoiu' wall at Santiago de Ciiha. (Jreat
Britain's demand, of course, could not involve the title of
tlio ship, or the nationality of the ship; hut it was hased on
tliis grouiKl: that these British suhjects, no matter what
the .ship, were entitled the world over to treatment ac
cording to tlu' univei-sal law of Iminanity; entitled fioin
any helligerent to he treated according to the laws of w.u,
and, hecaiise the Hritish snl)j<>cts were shot to death in the
streets of Santiago de C'nha, Spain slincdd pay l"<'ir Cnni

30 lies liheral com|)ensati(in. Tlie United Sta* ollowed
and demanded on the same ground, irrespc of the

nationality of the shij), and without regard t ..ot oidy

hecause Ameiican citizens had heen shot to death, in vio
lation of the laws of war and the laws of humanity, hut
hecause they had heen deprived of trial in accordance
with the treaty or any healing in accordance with e.xistin;:
treaty riglits het ween the L'niti'd States and Spain. So
that the convention or tieaty that was made for that pui
pose had no more to do with the (jnestions of reclamation

40tor, or of right of the nation for the seizure of the ship,
than lias an occurrence that has taken place yesterday
anywhere on >iie face of the earth. The corresponci
eiice is given i.'i full, and the agreement between Spain
and the United b^tates is in Volume Tit! of British and For-
eign State Papers, i>ages 111» ei .sa/.; and the seizure of the
■• Virginius '' doe^ not a]ii)ear to have had an^'thing to do
witli the ledamatJon made. The agreement says:

" In coufidcration of the roaKouH set forth and the declarations niniU'
rprijirocftlly in various cDuferouocs to that ofl'ect had la'twccu liis l'^\-
50 I'C'lloucy Mr. {'aloh Cushiiif?, representative of the United States, and
his Excelleuey 1). Alejandro ClaBtro, Minister of Htate, as also of tlic
notes whieh have passed between them, and desiring at the same time
to ])ut an end, by nieau.i of an equitable and friendly accord to the
reclamations presented by the Ciovernmeut of the United States in
eonse(iuenee of irlidt txviii red at S<viti<ig<> de Cubu in regard to the per-
sons of the ofHcers, crew and passengers of the steamer "Virginius." it
being understood that from these reclamations are to t)e e.xeluded, iu
so far as resi)eetH the ship's comj)any, all individuals indenmitled as
British subjects, and with respect to ptissenyerK, including only (i Amcr-
lain citizens. "

60 The Spanish Government engaged to deliver the ship;
l)ut, of course, the damages paid had nothing to do with
any violation of the "Virginius," but is confined in the
premises strictly, as shown by the article itself, and, in
the light of the correspondence leading up to it, to the
transactions that occurred at Santiago deCuba.

5S»

(Mr. DickiiiHon's Opeiiiiij; Argnini'iit.)

of course, as I liavo said, tlio qtu'slioii of national dij^-
tiity is involved in t\ui niattttr of tlio right of Boarcli. If a
Hiilish vessel Rhoiild ho taken on the high seas, or a vessel
flying the British flag, an<i it should tmn out that she was
lidt a British vessel, liiit American osvned, the agree-
imrit hetween the countries in the conclusion of the
ri^lit of search discussion would not eiiahle the owners —
Q record owners or otherwise- of iin American ship, improj)-
cily documented, as a British ship, hy tlie laws of nations,
JKiving now no regard to the nnuiicipal law, and iniprop
eily Hying the Britisii flag, to make reclamation through
(Itcat Britain. But we have gone a step fuither than
that,— although (Jreat Britain might make a claim as a
matter of national ilignity, that she would not permit the
United States to take that ship; yet the countries would
speedily settle that (piestion of national honor between
themselves and would not refer that (juestion of national

,^, dignity to any tribunal.

Having satisfied themselves on the (piestion of national
dignity, they might, as they have done here, refer the
suhject of private claims (tf citizens, subjects or per.sons,
to use the language of the convention, tor whom Great
jiiilain has a right to claim protection, to a conunission
or hoard of arbitration.

Then, as in all cases, where there lias been a reference
tif claims for reclamation, the reclamation would bo
.iwuded according to the status of the private citizen

,y making the claim. The question of national dignity hav-
ing been settled, the matter for the consideration of the
convention to whom it is referred is, whether this person
who makes claim, and invokes the authority of Great
Britain and its pr()tection because of his loss, is a person
for whom Great Britaisi has a right t(» make reclamation;
and, may it please your Hoiiers, it will be seen, if I have
been at all successful in making my meaning clear, that
the (juestion of national dignity must necos.sarily have been
disposed of priorto and antedates the convention, el.sethere

iLi vvciuld 1)0 no convention; there would be a demand for the
return of the ship as a matter of national dignity. But
(in a (luestion of doubt, there being no insult intended,
tile United States asserting an exclusive jurisdiction over
a piece of territoiy, acknowledged by Great Britain to be
at least under color of right (else it would be an insult
and an invasion of Britisii dignity to have taken the ship,
that being out of the way)— it being conceded necessarily
not to have been seized in bad faith — national dignity
satisfied before we go to arbitration — we then come to

;, I friendly arbitration, and the matter of claims of private
citizens and a conunission on claims is formed.

fan it be seriously contended that Great Britain would
go toaibitration if the act of the United States was wanton
and without color of right? All such questions are waived
liy arl)itration, and by this Convention we claim
no right, say Her Majesty's Government, to make
reclamation for persons not entitled to the protection of
('leat Britain before this Commission on Claims in respect
of their claims, for that, as luider all other conventions, in-
r„) vdlves the status of the person, not the dignity of the gov-
einment. Take for instance the leading case cited by my
friends, the ''Drummond '' case, 2 Knapp. Great Britain
Wits claiming and (lid claim, as the United States followed
ill claiming, that every one native born to the country re-
mains a citizen of that country, and could not surrender

-h

■ f 1

■i|

r).s4

(Mr. Dickinson's OpiMiiii}; Art;iinuMit.)

liisallogienco. Hut in tin' " Knivpjt "ciise, wiiicli was under
a convention wluM't'liy rccl.iinalions were to be made by
Hiitish subjects ii{;ainst i<'ianct>. Drinnniond cluniinf^ to
be a Hiitisli subjects under Hrilisli laws; under the uiiivcr-
■al holding of riiehiw. lu-ing domiciled in France — but a
i-?ritisii suliject no doubt -be went lielore liie connnissidn,
and lie was told by the court -no (|uesti(Ui of national

lo'lignity being involved; no (inestiou that because he was a
Mritish subject he must bavt» damages that being domi-
ciled in Frame, owing obedience to the French laws, not-
withstanding Ihiit be had not surrendered his original
allegi.ince. notwithstanding he was still a Hiitish subject,
lie could not m.ike retlamation ag.iinst France as a British
subject under that convention. It turned on his jiersonal
status and his |>eisonal civil domicile.

The next jxtint is as to citizens of (ireat Britain who
have not smiend'-icil tbeii' original allegiance nor become

2oiiatuiali/.ed in. l)Ut have ac(|uired ,i legal civil donncale in
the I'nited States. A British subje.:t domiciled in the
United States, as we have seen, is under the |irotection of
the fundamental law in all his rights -life, liberty and
properly. For him, his country of original alk'giance can
interpose, if he is di'uied justiic in the courts of the
nation of domicil. lie c.innot aver that he is denied
justice in the courts of the nation unless he brings to
the international triltunal evidence that he has been
.so denied justice by tho court of last resort. Qmntd

^othe United States what is th(> relation and the status
of the domiciled subject of another country nmiatuial-
ized here? The United S(at''s, may it please your Honors,
may make reclamation for him against any other conn
try except the nation of his original allegiance in pro
tecling him in accoidance with American law. Why can
they not jtrotect him as.against his own original allegiance;
Simi)ly because he has not become natur.ilized; he has not
renounced his original allegiance; and he still owes allegi-
ance to that soveitMgn; so that, in the case of a Biit-

40ish subject (lomicili-<l in the I'nited Stales, where the
Biitish subject so domicili'd denies or antagonizes ids
original sovereignty, Ixreat Britain, and suffers for it on
the seas oi' elsewhere, that liritish subject cannot, .under
the pi'otection of the United States, get d;image.« for
the suffering he has incurred while violating his original al-
legiance. If he wjuited togo to thatextent, he) should have
become naturalized here. So that we say as lo American
citizens domiciled in Canada, freedom of naturalization is
jieiinitted them in Canada or in (treat Britain. So far as

50 this case is concerned, they have not surrendered the right
to protection of the Amei'ican law; they have not by
naturaliza' ion suriendered their allegiance to the United
Slates. What is this allegiance; It is a tie; and
both governmenis agree that no citizen of either coun-
try, up to the date of the tr»\'ities of naturalization
and their respective statutes of iMiS and ls7(i, can untie
ins allegiance save by the consent of his own nation. If
he owes allegiance, what are tlu' I'esults to him? The
matter may be iilustiated by the dispute on the San Juan
f)0 boundary. The northwestern boundary of the United
States, San .Inan, was in dispute, precisely as the jiui.sdic-
tion in Bering Siawasin dispute, (heat Britain claimed
exclusiv(> juri.sdiction over it, as did the United
States. There were some conflicts there, hut the
controversy was happily and speedily terminated by

585

(Mr. Dickinson's Opening Argument.)

|lu> coinmon sense of botl'. peopK's. Bnt niipposo an
American citizen, domicilefi in Cieat Rritiiin, owing orig-
inal allegiance still to the United States, nevei having
renounced his allegiance, and ready at any time to claim
protection from the United States, and the United States,
ill return for his allegiance, owing a reciprocal obligation
of prottH'tion to a degree a.« seen ; suppose in that San .Juan

loiiispute the American citizen, domiciled in (ireat F^ritain,
nut witiistanding the assertion of jurisdiction by his own
nation, to whom he owed origir.al allegiance, had said: "T
lak(> sides with Great Mritain: I say that this is Mritish
tcriitory;" s>ip]H)se !)(> had resisted the United States, and
suffered damage, and it afterwards turned out -instead of
lht> way it did — San Juan, by arbitration, had been de-
cided to have been Mritish territory, and then the Amer-
ican citizen, who at the time he took his position was in
direct conflict with the sovereignty to whom he owed

joallegiiuice, had sought reclamation against the United
Slates for injuries sutfered in his denying the sovereignty
ol his country, wo thiidc that no international tribunal
would have awarded that citizen damage, uidess this
ti-im allegiance, and all that it implies, is an i(ll(> and
meaningless one, its results of no conse(|uence, with no
recifirocal obligations for the rights attai^hed to it.

1 shall at a later time, whcMi the evidence shall have
been present(>d, wh(>n the very voluminous Kccord shall
have been gone over, to some extent, in behalf of the

^olnited States, when the facts are somewhat more clearly
before the High Couiinissioners, endeavor to present our
jHisitions, briefly tal^en in the printed argument of the
I'nited States, on the iaw questions, more at length.

We will now proceed to a presentation of the record
evidence.

•

i'l

Commissioners under the Convention of Februarys,

1896, between the United States of America

and Great Britain.

Mr. Lansiiin: — May it please the High Commissioners:
In accordnme with th(> plan of argument ontlined by the
'"siiiioi connsel on lieliulf of the United Slates, I will con-
fine myself to a discussion of the evidenee which was
t^ken before tills High Connnis'^ion at its sessions in
Victoria. 1 appreciate tlio fact that I am dealing with
(!i"l;ills which are from their very nature tedious; and T
sliall therefore, as littlt! as possible, refer to our ])rinted
aiiiinnent In regard to those facts which have l)een fully
(iialt with therein. Hut, at the same time, it must he
borne in mind that a portion of the award wliich will
be given will be an assessment of damages, which
-° necessarily deals witli detail; and it is only by a full
consideration of the (nidence relating to the Items claimed,
iuul to these details, that they can be determined in accord
with principles of strict justice.

1 first propose to discuss the question of an estimated
ciitch, and for the time which I shall occupy upon that
()uestlon 1 have the excuse that of $S.^(»,()(»(i of damages
claimed, with interest, over $400,000 are included in items
for such |)iospective profits.

^'^ I'KOI'OSKD MKTHOD OF COMI'UTINO AN ESTIMATE CaTCH.

1 shall lake up first the method which has been pro-
)iosed by our learned friends and see how it has been
ai)i)iied. Their proposition is to take the catch of and the
(lata relating to the " Mary Ellen " in the year 1S,S6, and
Ml)i)ly a formula derived from them each of the indi-
vidual claims. In discussing the dura .nn of the season,
my learned friend, Mr. Bodwell, stated, as an explana-
tion of the fact that the last "lowering day" if the
-10" Mary Ellen" was the 24th of August, that lie had
tlieii completed her catcii and therefore ceased seal-
ing. We would naturally expect from this state-
ment that in the claims presented here, when
tiip amount of skins secured by the "Mary Ellen"
b;i(l been reached, these vessels would have ceased seal-
ing; and we should also have expected that the claims
lor their estimated catch would have been made upon that
iiMsIs, but they have not been. 1 propose to examin«' what
are claimed for the catches of these vessels in Ber-
>o|ng Sea, including not oidy their estimated catch but also
the skins seized by the United States, or those which the
scalers obtained and brought back to Victoria. The fol-
lowing is the list tompared with the catch of the " Mary
Kllen," which was up to and including the 24th of

.Angnst 2,;W)

Conijileto catch as claimed for the " Aiuia Beck ". - l{,837
" " "Alfred Adams" 2,780

" " "Grace" 8,769

'* "Dolphin" 4,018

C'o " •' "Ada" ._ 2,!»40

" "Pathfinder"... 2,878

" •• "Black Diamond" 8, .')7»;

•' " "Lily" 2,!tO»

" " "Minnie" 3,i>20

•• *' "Triumph" 3,572

,*i

I, fi

^! iii

t*' !

5SH

(Mr. Lansing's Argument.)

The catch of the " Mary Ellen " in 1880 is distinguished
as being the largest catch ever n)ade from 188C to iMtu
vinclusive), by any vessel that entered the Sea. She had tlie
most experienced captain of any vessel that ever cleared
from Victoria— Daniel McLean— an experienced crew and
experienced hunters. These very facts it would seem
are sufficient to show how unreasonable it is to calculate

ID a catch upon the result of the cruise of this vessel, and
especially so, when we are asked to base the duration ul
the season, not on her cruise, but on the cruise of
other vessels in the year 18!)(», when oin* learned friends
contend that we should not consider the catches which
they made. But we will examine the proposed scheme to
show that on otiier giounds it cannot be adopted by your
Honors as a method of computing the estimated catch,
even provided the law allows such damages, whicli we
most emphaticallx' deny.

20 The plan proposed is set out on pages 81 and 82 of
the argument in chief on behalf of Great Britain, and an
example of the application of the method is given in the
case of the " Carolena."

The number of hunting days of the " Mary Ellen " foi
the period from the time when the "Carolena" was
seized, up to and including the 24th August, are com-
puted, and the number of skins taken are divided by the
number of hunting days, and also by the five boats whicli
the "Mary Ellen " had; in that way the average number

30 of skins per boat for each hunting day is obtained. My
learned friends then deduct the number of hunting days
fiom the whole number of days to 24th August, and niul
tiplying that by five they reach the number of non-hunt-
ing days for one man upon the " Mary Ellen." They then
compute the number of hunting days for one man on the
"Carolena," which they calculate as 124 for one boat.
They then calculate the number of non-huntings d;\ys of
the "Carolena," obtaining as a result 5:i They deduct
that from 124 to reach the number of days for one l)oat

4oon the "Carolena" for a given period. Having ol)taine(i
this inimber they multiply the number of days by the
number of skins which one boat on the " Mary Ellen '
took on daily average during that period, which is 14.

In criticising this plan in the United States' argument
at page 247. tlui counsel on behalf of the United States
made this assertion: "The sclieme is complicated by a
"calculation of proltalde hunting days, which makes the
"method more involved without aft'ecting the result."
This statement was in turn criticised Ity niy learned

50 friend, Mr. Bodwidl, in oral argument. I proi)oso to de
Mionstrate to your Honors that our criticism is just. I do
it for the purpo.se of simplifying the method so that it can
l)e more readily examined, and in older that you may fol
low my computation, [ will hand u|) a memorandnni
showing the figures.

In the first place we have tln' "Mary Ellen," 120 day^
iii tile Sea for one Imiiter, which is according to the state-
ment on page S2 of the British argument in chief, and
T) 1.1 days iioii-hunting, leaving tlS.J hunting days with a

Gocafch of 95.S seals. Now we divide the catch by 081, in
order to reach tlio number taken on each hunting day.
Instead of taking the louiid number 14. which is used in
the argument on behalf of {irieal Britain, I have taken
the decimal form in order to get an exact result. It is
claimed for the "Carolena" that the non-sealing days

'^--"Ij

(Mr. Lansing's Argument.)

were H^ths of 514, which is 53.15; the hunting days,
IcKS the number of non-hunting days, equals 70.784.
()r we can reach the same result more simply, thus: Take
llJths of the original hunting days (68^). Having ob-
tained the hunting days for the " Carolena," we multiply
tiie number by the number of skins taken by one boat on
the "Mary Ellen" in one day, and we get 989.0. Now,

ioit we take MJths of the catch of the "Mary Ellen,"
it,j8, we get identically the same result. We have left out
tlie Uinu of hunting days, and we see the omission has
not affected the computation.

I will simply state the formula as it is shown to be. It
is this: The average daily catch for the " Mary Ellen " for
II j^iven period multiplied by the number of boats on the
claimant's vessel and by the number of days claimed,
gives the probable catch of the latter. That is the formula
proposed by Great Britain.

JO Having shown the " lowering days" are of no import-
ance in the calculation, I propose to submit tables to the
High Conmiisaion for the purpose of forming a basis upon
wliich we can intelligently examine the calculations made
in the British argument. I have prepared three tables.
[Mr. Lansing here submitted the following table:]

Table '' A."

Data from Exhibit 27.
(Exhibits, p. 4:i).

T.ABLE Relied upon in thk British Akgumkst, being
THE Average Daily Catch ok a boat on the
"Mary Ellen" from Date to August 2+, 188fl.

Inly I..

2. .

" W..

■• -t..

■■ .')..

■ () .

S..

■• !»..

• 10.

• 11..

• Iti.

• i:{.

• 14-.

• ir>.

•• itt.

•• 17...

•• 18

• 19..

•• -Jit.,

• -n..

■■ -i-i..

■■ 2:5.

• -.^4

• •!:>..

•• 27..

■ ■ -JM

Number of

Cfttcli of ves9«l

Daily average

per boat
from (late to
August 24tli.

(lays from
Aiii;iist 241I1.

from dale to
Aui{iiat 24tli,

5r)

2,222

8.080

.54

2,21(t

8.185

2,202

8.309

f)2

2,199

8-457

2,199

8.(i23

2,199

S.79f.

2,190

S.938

2,190

9.125

2,(»47

8.710

4<!

2,047

.H.900

4.5

2,047

9.097

2,043

9.28«

4;$

1.971

9.167

1,853

S.823

I.S30

8.926

4(1

1,797

S.985

;{9

1,773

9.092

1,741

9.163

l,t!52

8.928

3(i

1,(152

9. 177

l,t')51

9.432

l,(i05

9.441

1,489

9.024

l,4S9

9.306

1.42(1

i>.200

i,;>77

9.180

1,375

9.482

1.375

9.82!

'I i^it

II ll

11:

5S>U

(Mr. Lansing's Argument.)

July 29..

" 80..

•• 31..

Aug. 1..

lo " 2.-

'• 8..

" 4..

" 5--

" «..

" 7..

" 8--

" ».

" 1(»..

" 11.-

20 " 12..

" 13..

" J4 .

" 15..

" If...

'• 17 .

" IS..

" 11)..

" 20..

" 21..

30 " 22..

" 23..

" 24..

Number of

Catch of vessel

(lays from

from date to

August 24111.

August 24tli.

1,341

1,148

1,016

955

817

730

686

67s

li>

675

583

523

441

326

308

257

256

125

Daily Rvciai;i

])or boHi
from dull' i<
August 'j-lih.

9.933
S.83(i
8.13t;
7.95S
7.104
6.63t;
6 532
6.7SO
7.105
7.500
6.879
6.537
5.880
4.657
4.73b
5.133
5.600
6.160
5.711
6.425
7.342
8.533
5.000
6.25(1
4.466
6.70(1
6.00(1

Table of Daily Avekage Catch of the Stern Bo.\t
ON THE "Mary Ellen " for the Month of Arorsi.
1886.

Aug. 1.

" 2.

" 3."

" 4.

" 5.

" 6.

" 7.

" s,

" 9.

" 10.

" 11-

" 12-

" 13.

" 14.

" 15.

" 16.

" 17.

" 18.

" 19-

" 20.

" 21.

" 22.

" 23.

" 24.

Number of

Catch fiom

Daily avt-ra
])er stern bn
froHi i1hI(^ I
August, 2411

days from

date to

August 24tli.

A\igust 24th.

i.9j(;

1.391

1.454

1.42S

1.450

1.52»i

1.5.'-.5

1.647

1.6S7

1.400

.642

.691'

.75(1

.817

.900

.666

.750

.850

1.000

.200

.250

.333

.50(i

1.00(1

591

(Mr. Lansing's Argument.)

The first column of Table " A" contains the date; the
second column shows the number of days from the 24th
August, including the 24th (the last "lowering day "of
th" " Mary Ellen "') and the days are numbered backwards
I'loni the 24th. The catch is derived from Exhibit No. 27
i(i. B.), containing the detailed .statement of the witness
Bragg. The catch is also computed backward. As an
lof.Munple of the api)lication of Table " A," we see that on
tlie first of August the prospective dull}' catch for one boat
on the " Mary Ellen" for the balance of the season was
7.'.i.")>* skins, which is shown in the last column.

The table also includes the stern boat's catch for August,
liul we have no figures with regard to its July catch.

It must be borne in mind that the "Mary Ellen" did
Hill cease sealing on the 24th. That was the last day on
which her boats were lowered, but she remained in the
Sea until the 2!tth of August, and we know her position,
2ofiu' from the chart of Townsend, which is in evidence be-
fore the Commission (the data from which that is drafted
is found at page 52 of Executive Document 137, part 2nd),
we learn that the "Mary Ellen'' was but 53 miles from
l^niniak Pass at the time she last "lowered." She left
till' Sea on the 21»th August.

The Commissioner on the part of the United States:

Where is that verified in the Record?

Mr. Lansing:— It is shown by Kxhibit 27. I call your
attention to page 43 of the Exhibits, and to the account
,oof the hunter Jacobson. You will find there an entry for
August 2itth: "Not hunting. One seal." It shows, from
that, that the "Mary Ellen " was still in the Sea at that
time.

Table " B" is, therefore, prepared by the same method
of calculation, but takes August 29th as a basis instead of
August 24th.

Table " B. "

AvKKAGE Daily Catch of a boat on the "Mary
4° Ellkn" from Date to August 29.

Nunibor of Seals taken bj' Average daily

days. Nuni- vessel from date catoh ])or boat

bercd back. to close of seal- from dale to

wards. in^. close of season.

.July 1 .... (iO 2,225 7.41

2 59 2,213 7.60

3 58 2,205 7.68

4 57 2,202 7.72

5 56 2,202 7.85

;o " fi 55 2,202 8.07

7 54 2,103 8.14

8 53 2,103 8.27

9... 52 2,050 7.88

" 10 51 2,050 8.03

" 11 50 2,050 8.20

" 12 49 2,046 8.35

'• 13 48 1,974 8.22

" 14 47 1,856 7.89

" 15 46 1,833 7.96

6o " 10 45 1,800 8.00

" 17 44 1,776 8.07

" IS 43 1,744 8.11

" 19 42 1,655 7.88

" 20 41 1,655 8.07

" 21 40 1,654 8.2T

■ IP.

mi
ji,-

. ' sii

■ '■ '

;*(i!-?

V li '

'ih

JUi

1.1 ' s

■i

■

\n^ Hi

n.u

•i ,

I ;

i ■ ■

1 !

592

(Mr. Lansing's Argument.)

Number of Seals Inken by
(lays, Num- vessel fiuiii date
bored back- to close uf seal-
wards, ing.

July 22 39 1,608

" 23 38 1,492

" 24 37 1,492

" 25 36 1,429

>o " 26 35 1,380

'* 27 34 1,378

" 28 33 1,378

" 29 32 1,344

" 30 31 1,151

" 31 30 1,019

Aug. 1 29 958

" 2 28 820

3 27 733

" 4 26 689

20 " 5 25 682

" 6 24 678

7 23 678

" 8 22 586

" 9 21 526

" 10 20 444

" 11 19 329

" 12 18 311

" 13... 17 311

" 14 16 311

30 " 15 15 311

" 16 14 260

" 17 .-.- 13 260

" 18 12 260

" 19 11 259

" 20 10 128

" 21 9 128

" 22 8 70

" 23 7 70

" 24 6 33

40 " 25 5 3

" 26 4 2

" 27 3 2

" 28 2 1

" 29 1 1

Average diiily

catch per boni

from date Ui

close of seasuii.

8.24
7.85
8.06
7.93
7.88
8.10
8.35
8.40
7.42
6.79
6.60
6.85
5.42
5.31
5.45
5.65
5.89
5.32
5.00
4.44
3.46
3.45
3.65
3.88
4.14
3.71
4.00
4.33
4.70
2.56
2.93
1.75
2.00
1.10

.12

.10

.13

.10

.20

Table " C " is the average daily catch per boat on the
" Mary Ellen " from the 1st of July to any given date.

Table " C."

AvER.\GE Daily Catch to Date, July and August,

1886,

" Mary Ellen."

Number of

Average diiily

days.

Seals taken

catch per hniil

Numbered

to dote.

from July hi

forward.

to date.

July

2.40

((

2 ....

2.00

((

3 ....

1.53

4 ....

1.(11

.92

6 ....

1.06

t (

7 ....

.91

((

8 ....

176

4.37

593

(Mr. Lansing's Argument.)

Number of

days.
Numbered
forward.

.Iiily 9 9

" 10 10

" 11 11

" 12 12

10 " 13 -. 13

" 14 14

" 15 15

" 16 16

" 17 17

" 18 18

" 19 19

'• 20 20

" 21 21

" 22 2iJ

20 " 23 23

" 24 24

" 25 25

" 26 26

" 27 27

" 28 28

" 29 29

" 30 30

" 31 31

Aug. 1 .-- 32

30 " 2 33

" 3 34

" 4 35

" 5 36

" 6 37

'• 7 38

" 8 39

" 9 40

" 10 41

" 11 42

40 " 12 43

" 13 44

" 14 45

" 15 46

" 10 47

" 17 48

" 18 49

" 19 50

" 20 51

" 21 52

50 " 22 53

" 23 54

" 24 .55

" 25 .56

" 26 o7

" 27 58

" 28 59

" 29 60

Average daily

Seals taken

catch per boat

tu date.

from ,)uly 1st

to date.

176

3.88

176

3.50

179

3.25

261

4.18

869

5.67

899

5.60

426

5.66

449

6.71

481

5.68

670

6.33

870

6.00

871

5.71

«17

5.78

788

6.66

788

6.37

796

6.63

846

6.76

867

6.69

887

6.34

881

6.29

1,074

7.40

1,206

8.08

1,267

8.19

1,405

8.78

1.492

9.05

1,536

9.03

1,543

8.81

1,547

8.50

1,.547

8.36

1,639

8.57

1,699

8.71

1,781

8.90

1,896

9.24

1,914

9.11

1,914

8.90

1,914

8.70

1,914

8.60

1,965

S.54

1,965

8.36

1,965

8.17

1,966

8.02

2.007

8.38

2.097

8.22

2,1.55

8.28

2,1.55

8.11

2.192

8.11

2,222

8.08

2.224

7.94

2,224

7.80

2,225

7.67

2,225

7.64

2,295

7.41

Now, bef jre applying these tables to tue individual
"0 claims, there is another important factor which must
enter into the calculation, and that is relative to the com-
iwrative hunting power of a boat and a canoe. This is
of importance because of the vessels seized by far the
lar^^er number carried Indian hunters, while the "Mary
Elleu " was outfitted with boats. In the claims presented

■ i !

li'-M

S'Kffn-

r. !f„

(Mr. Lansing's Argument.)

one claim is made for a vessel with canoes having white
huntei-s, estimated catch 1)!>4 skins, valued at Sll,95s;
four claims for vessels carrying boats and wliite huntei>,
8,21l> skins, ^1>1,823; and for vessels carrying canoes and
Indians, sixteen claims, aggregating H8,!S28 skins, valued
at $2!t7,<'>tK). It, therefore, shows how important it is in
computing tlu* catch to determine the relative hunting

lo power of a boat and a canoe.

In tlio Hritisli argument at page 79, line 9, the follow-
ing statement is made in reference to this important
factor: "It is shown that boats took about one-tliiid
more than an equal number of canoes." In other words
the liitio is this; a canoe, K, to a boat, 4. But in the oral
argument it apjjcars that it was intended that the ratio
should be as 2 to 15. In order to supi)ort their contentiim
an endeavor was made by my learned friend, Mr. Hod
well, to show that there was little or no difference in tin

20 hunting power of a boat and a canoe, and he slated at
page li 11, lint' 48, of his oral argument, that "it appears
that the Indian canoes were just as good for hunting as
boats, and that under oidinaiy ciiciimslances they ouglit
to have had as large a catch"; and in support of this
statement lie ( ited the vvitiuss Bragg. I will call your
Honors' attention to his testimony at page 2(i5 ot llic
Record, line 9:

" Q. Docs it make a diflcrMJce whether there are two men in a bout,
" and us to whether they nre eanoes or boats? A. Well, it niukes :i
^o " difference /o iihitK hioiiers whether there is two or three men in u
" boat.

" Q. And if there were only two men iu a boat instead of three
" thev would not have as good results, I siippoBe ? A. I do nut
" think they would. No."

And again at line 39:

" Q. Where you had three men in a boat could you capture more ot
" the seals that were actually shot or wounded than when you Imd
■' two men in a boat ? A. Yes."

Then my learned ftiend refers to the witness Byeis, and
40 he is cited to show t'lat canoes can cover as nmch ground
as boats. 1 refer to his evidence also at page 823, line 2s
of the Hecord. He says:

" Q. Arc not wtiiie men considered better thon Indians? A. No,
" sir.

"Q. Njt better hunters? A. No.

" y. They are not more desirable? A. No, I presume they are uot
" as desirable as Indians at the present time."

1 call your Honor's attention to that statement for the
reason that now only spears are allowed to be used in
50 Bering Sea:

"Q. I am speaking of 1886 and 1887? A. Well, I do not know iit
"that time; they were about equal. I think the Indian was just m
" desirable as the white man."

Thus far my learned friend read. Now take the next
()uestion.

" Q. And they occomplished as good results in the canoe, I sup
" 2J0se? A. Yes, tican-diiiy to l/ie (tmouiit the;/ carried."

Now, if your Honors will recollect the evidence from bi;-
fio ginning to end with regard to the catches of sealing ves-
sels, it was that in vessels of equal tonnage those having
white iiunteis would carry five boats while those having
Indians would carry ten canoes. The ratio was two to one,
and I hat is what the witness Byers means when he i-ays
lliat they were about equal "according to the amount

5i»r.

fsfl

(Mr. Lansing's Aiguniont.)

tliey carried," because they had two canoes for overy boat
in vessels of the same size.

The witness LaughUn McLean is also cited to show that
a small boat with two men vv(juld have as good results as
a larger boat witii three men. I will read his evidence at
page 73»>, line S:

" Q. Is it lit) iiilviintaKii to liiivi^ tlirof iiit'u in a Ixmt aH against two
10 ■• men iu a boaty A. You faiinot work a iar({<' boat with two men to
•• any ailvantaRO.

" Q. Will tlircci inon in a boat Ret bettor roHiiltH than two men in a
'• boat? A. I ilon't know; witli a Hinaller boat I think two men would
•■ lip JHHt aK good.

" tj. Do yon know of white huntors n<''"t? ""t two mi'n in a boat?
•• .\. Yes, Hir; I have known Homi' to go.

" Q. When? A. Well, I think it was iu 18HH or IHHit, the 'Molly
•■ /VilaniH,' now the ' E. H. INtarvin,' hail twelve boats, two men in a
" boat."

Now, wi' have the ovideiioo as to that voyage of the
:o" Molly Adams," and we find that she entered the Sea on
.Inly 4th, and stopped sealing on August 2r)th. That is an
average daily catch of 1.75 skins to a boat and needs no
connnent. But this witness was not referring to canoes
at all, he was referring to the comparative hunting power
of different sizes of boats, the larger carrying three men
and the smaller, two men. There is nothing here to
show that he was comparing the himting power of canoes
and boats. His own experience was that the average
daily catch per boat of the " Favourite " in 1887 was 5.52
joskins, while in the next three years when he carried canoes,
the average was 2.08, 2.it6 and 2.{>7 respectively. The ex-
perience, then, of Laughlin McLean was that the sealing
|)Ower of the canoe and boat was as 2 to 1.

Mr. Bodwell: — Where are the facts concerning the
" MoUie Adams "f

My friend requests the data in regard to the " MoUie
Adams." At page 67«, line 45, it appears that she en-
tered the Sea on July 4th, and that she stopped sealing on
the 25th August, page 678.
40 Mr. Peters: — What year is that;

Mr. Lansing:~That is in 1889. That she carried twelve
hunting boats is in the evidence of McLean that I have
already read.

It should be noted also that the witness Gaudin orig-
inally stated that the vessel had on board between fifteen
and sixteen hundred skins, but on cross-examination it
was developed that four hundred of these were taken in
raids on the Pribyloff Islands, and that from the 25th of
Angust until October 4th the vessel was in Bering Sea,
30 and never lowered her boats.

In the argument on behalf of the United States, we
quoted the testimony of two witnesses, Alexander McLean
and Robert McKiel, as to the hunting power of canoes
and boats, and I will call your Honors' attention to that
testimony, which is at page 24!»of the argument on behalf
of the United States. McLean says, that "it will take
inuie than two canoes to compete with a good white hun-
ter"; and Captain McKiel, a witness sworn on behalf of
(iieat Britain, says that he should think the ratio was
'oalKuit six to ten. We have no other witness in the
llecord that gives testimony as to the proportion.

Besides showing the area of water, which a canoe could
ciivor compared with that covered by a boat, my learned
friend endeavored to support his contention by showing that
tile Indians at that time carried guns, and were therefore as

i' i;-

r>)Mt

(Mr. Lansing's Argument.)

well armed as white hunters. In regard to that nssertidii,
I desire to read from the Kecord, at j>age 17«(lt, line Ut. fi
portion of the testimony of t)vven Thomas, wiio is in
terested in a measure in these chiims. He was at thai
time referring to the eruise of tiie " Blaclt Diamond " in
lHSi>. His e.\amination is as follows:

" (j. You (liiln't Huitl lit ull? A. They took away the HpcnrH uinl
10 " tliiuKH.

"Q. Hud yoii ony i^nuH'f A. WoU, tlipy Jtlio IiulinuHJ had gniiN
" but thpy cduhl not Hhoot notliiuKI wo coiildu't tr

UHt thorn with kiiiih
A. No, sir; nothing at all oiilv

30,

" ninrh

" Q. Did tlicy tuko tho «nn» away?
" tho Hin'urM.

"Q. Wan yotir Indian crow u»iiiK till' (/iinH miichy A. Tnoyulw'a\s
" oarriod k'Hih in caHo tho H|H>arH woro taken away.

'• Q. They woro UHiu^ tlio HpoarH all the tiiiu' ? A. Y<'h, Hir.

" Q. Had yon any nioanH of inaking Hpoai'H on board ? A. No.
" Hir; I had not.

" y. Anyway, you didn't Hoal at all V A. No, Hir."

' Again, 1 will read an extract from the examinatimi '
the witne.ss Hansen, which was referred to by niy learned
friend to show the fact that Indians used guns in those
yeai's. Tt is found at pa^t; fil.-i of the Uecord, line ti;i -

" Q. You nay you had Queeu (.Uiarlotte Indians iu the Uohrin^;
" Hoa y A. YoH, sir.

" Q. Is thoro any diiToronoo liotwoou them and the IndiaiiH you
" genorally have V A. Well tho Queen Charlotte Indiana used xuii'-
' ■ altogoth'or at that time. I do not know whether they might \\m-
" spears now.

" Q. ■\Vhirli were the best Indians, the Indians that used s|)eaiH or

the t^ueen ('harlott(> Indians that used guns ? A. I think tliosf
'• who had the spears were the Ix'st."

And further down on the same page he says this:
" i}. This time what Indians had you ? A. Kyoijuot Indians.
" Q. They understood speariuK V A. Yes, sir.

" Q. Did'they use f^uns at all ? A. Well, I think one or two lii-
" diauK had guns.
" Q. As a general rule did they use guns or spears ? A. Hpears.'

It would appear that when the Indians did have t;niis
they were eonsidered poorer huntsmen than those wim

"^^had spears, and, therefore, the proportion of seals taken
by tlu'in would he even less if they were armed with guns.
hut I have another leference with regard to the pio-
portionate hunting power of a boat and a canoe, which is
to the oral argument of the learned senioi' counsel for
(ireat Britain. It is found at page Us of his argiunent.
line Tio, where he savs (and this was after submitting a
computation of the average c;itch of other schooners to
sup|)ort the contention that the '" Mary Kllen " should lie
taken as the typical vessel):

' " I have proved as a faet that every vessel properly eiiuipped in
'• Behring Hea during these years, per txiat and i)er canoe, obtaiui'il
" about an average nuniber of seals ; per boat, they got sonii -
" where between i) and 7, per canoe, they got somewhere about 4 dm-
" ing those times."

Here is the position of the two counsel: one assumes
tlie ratio between them as four to nine, or four to seven,
while the other maintains that they are e<iual. We,
therefore. ass(;rt that from the evidence and from tlic
>tatement of the learned senior counsel, the ratio b'l
f'Ocanoes given iu the argument on behalf of Great Britain
is shown to be entirely too large in any event.

Bearing in mind what the evidence discloses as to sncli
ratio, we will proceed to an examination of the applica
tion in the various claims of the formula for computing'
the prospective catch.

.M»7

(Mr. Lansing'H Arp^iimeiit.)

An estimutiMl catch is claimed for the " Caroleiia " for
r<iiir canoeH and one storn hoat, hunting from Augunt Ist
ti> August 3l8t. The printed argument on behalf of Great
|'.i itain does not state wlietiier the l^lst is included or not,
lint it is presumed to bo sr Calculating on the basis re-
t.i red to, and using the tal)lo for hunters and stern boat
,,| the " Marv Ellen" ^Table " A "), we have l,04« skins;

loiii, if thirty days oidy are included, l,(il2 skins. Exdud-
111}; the stern hoat, the comniil ition for the "Carolena"
is substantially correct vvitluii about four Kkin.s, being
lUMi, That is. the claim is for about four skins more than
tlii> coinputation shows, bearing in mind that it is as-
-iiiikmI that a canoe with two white hunters equals a boat
witii three hunter.".

In the Cease of the "Thornton," the same statement
may he made that it is appro.ximately accurate provided
till' st«'rn boat is excluded, except that it should he l>!>()in-

jostisid of !•!»+.

In the case of the " Onward," we find on the basis of
till' three quarters hunting power of a canoe (for the
•Onwaid" carried canoes), her catcli would have been
l,ii:'iS skins, while the claim is for l,4.')t'>. It would, there-
lore, appear in this case that the two-thirds ratio was ap-
|i|i(il. wiiich would make about 1.4H0 .skins.

In the ca.se of the " Favourite," which had ten canoes
;inil a stern boat, from August 4th to Septendter 1st, less
l'^T skins taken by the vessel after that date, tlie claim is

;o made for s<H) skins. The vessel is alleged to have been
uarnt'd on the 'id of August. If we apply the ratio of
two to three as the hunting power of canoes, comparing
I liom with the boats of the '"Mary Ellen," we find that
the catch would have been 1.21!t skins, and for the stern
Inat, 4(1 skins, a total of l.25)> skins; from which, if we
I'.i'dr.ct 1H7 skins, we get 1,052 skins, a difference of 272
skins with the numbers claimed. It does not seem as if
in that case the "Mary Ellen" could have l)een used as
tilt' typical vessel, or that the formula jn-oposed could have

4i)l)('en here ajjplied. And this is still more api)arent if we
employ the average hunting power claimed in the printed
argument of Great Britain, four to three, for then the
istimated catch, less the 1S7 skins, would he 1,224.

The "Black Diamond." 1H,S<5, carried nine canoes, and
I lie claim is made for 1,4!»1 skins. We find, by calculation
I n the " Mary Ellen " basis, that instead of 1,4!>1 skins, the
1 la ill) should he 1,187 skins or ;?(iO less than that actually
made. The catch of the " Favourite " claimed is !»87 skins.
Her claim commences on the same day, and ends one day

;oMioner than that of the "Black Diamond." There is a
tlilTerence then of one canoe in favor of the " Favourite,"
ami one day in favor of the " Black 13iamond," yet the
(iaiin of the " Black Diamond " is for five hundred skins
more than for the " Favourite." Are we to presume the
same method of computation has heen applied in both
rases?

In the " Say ward " case, we find, by the application of
tiic three fourths rule, as to hunting power, that the catch
would have amounted to 4,207 skins, and the claim is for

'"-'.'.121. There is an excess of l,28r» skins by the computa-
tion employed over the number claimed. Now, what
mt'thod has been used in this case? Certainly not the one
|i'0|iosed.

In the case of the " Anna Beck " a claim is made for
:'.||'M> skins, while on the hunting ratio of four to three it

■#■

■1'

ii;

5!tS

(Mr. Lansing's Argument.)

would amount to 4,199 skins. Here we have about 1,l'imi
more skins according to the formula than the amount
claimed. How can my learned friends explain that difl'n
ence?

In the case of the" Alfred Adams,'' the claim is for l,;il4
skins, and if we calculate on the three-quartei-s rule for a
canoe we have 1,H8S skins, an excess of only 44. It would
loappear, then, that iu the case of the "Alfred Adams'' on
the three-fourths rule and the "Carolena" and the '"On
ward" on the two-thirds rule the proposed method had
been applied and seems to be peculiarly and convenient I v
elastic.

In the case of the " Crrace" we will again apply the nilf
that the hunting power of canoes to boats is as three to
four. The claim made is for ;?,00<> skins, but by using tlic
formula which is proposed in tlie argument on behiilf of
Great Britain, we find the catch figures up to .'»,.524 skins,
20 almost double what is now claimed. A formula to ht>
of value must be one that can be applied in every case.
but the one proposed clearly has not that recommendation
for its adoption. It could not have been applied in tin'
case of the " Grace," or else there is some other factor in
volved which has not been disclosed or suggested, and
which is perhaps purely arbitrary. There seems to be no
other explanation of these variations.

In the claim of the " Dolphin " we have a similar state
of affairs, the excess of the computed number of skins
30 over the number claimed being about the same as in tln'
case of the " (xrace." The claim is for ;{,400 skins, while
a calculation by the formula gives about fi, 504 skins. It
would appear that my learned friends, when they came
to the actual application of this formula, found how un
just and inequitable it was, and that it could not witii
even a show of reasonableness be applied, and they, there
fore, arbitrarily reduced their demands.

I might go through all of these claims, and compare
them, showing similar conditions in nearly every one; an
40 estimated catch, if computed on the formula proposed, in
most cases largely in excess of the amounts claimed,
while none of them correspond with a strict application
of the method suggested; but to do so would be, I con
ceive. an unwarranted imposition on the time of the Com-
missioners, and I have exhibited the erroi-s in enougii
cases to show the inconsistencies of the claims and the
computations

We might, from comparison of the claims made with
the results of these calculations, throw aside the "Mary
50 Ellen " plan as having been substantially abandoned hy
Great Britain as a method of computing the catch, except
for the reassertion of it by the learned Attorney-General.
I shall therefore make a comparison of the catch of the
" Mary Ellen," this so-called " typical vessel," witii three
otiier vessels in 1S8(>, of which we have the full data.
The.se are the "Thornton." the " W. P. Say ward " and
the "Dolphin." I will submit these data in a tabulated
form.

60 [Mr. Lansing submitted the following table:]

i(i!

}m--'f

599

(Mr. Lansing's Argument.)

Table *' D."

Authorities. ~Z>oifp/im. Notes from Warrcm's diary (Rec-
ord, p. 280).

Thornton. Log, Exhibit No. 4Y (G. B.)
(Exhibits, p. 91).

W. P. Sayward. Diary of Andrew Laing,
mate (Kecord, p. 10!)f).

Mary Ellen. Exhibit No. 27 (G. E.) (Ex-
hibits, p. 47).

Daily Catch op Vessels in 1886.

" Dolpliiii." "Mary Ellen." " W. P. Sayward." "Thornton."

June

....

. . - »

• ■ « «

t (

!2(i

- - - *

- - . -

> • • ■

( i

28.

....

t i

....

.Inly

...

....

> * •• •

( (

» « — ■

t i

i i

143

i i

( i

1 1

• i

118

162

f i

107

t (

196

147

( (

101

i i

((

193

184

132

123

t (

186

Aug.

193

152

129

■ •■■•••

i t

((

< .......

. - -

...

((

141

127

- * •

( t

• « ~ ■»

■ « _ w

.--.

...

•«i:.ii

;''i' , i '

I
U

i: ; • I

(100

(Mr. Lfinsing's Ar^;ument.)

" roliihin." " Mmy Ellen.' " W. P. Sajward." "Thornloti.'

Aug. 14

" 15 44 1

"10

" 17

" 18 1

" 19 ... 140

lo " 20 2

" 21 68

" 22

" 23 87 64

" 24 81 12

" 25 2

" 20

" 27 1

" 28

" 29 1

2o " 30

" 31

The data with reference to the "Dolphin" is taken
from the notes of J. D. Warren's diary, which ap-
pears in the Recoid at page 280. Those witli r»'f-
erence to the "Thornton" aie from the log of the
vessel, which is Exhihit 47, G. B., and found at page
91 of the Exhibits. The facts relating to the " Say ward "
are from the note book of Andrew 1-aing, which appears

3oat page 38 of the Exhibits. The " Mary Ellen "' also ap-
pears in this table, and I have already given the
references where those data may be found. I desire
first to call your attention to the comparative catches ou
the same day, of these various vessels. On July 3d
there were three vessels in the Sea, the "Dolphin,"
the " Mary Ellen, "and the " Thornton." The " Dolphin "
took 87 seals, the "Mary Ellen" 3, and the "Thorn-
ton" took one. On July 6th the "Dolphin" took no
seals, the " Mary Ellen " S, the " Say ward " 11, and the

40 " Thornton " 44. On the 8th of July, the " Dolphin " took
53, the "Mary Ellen " 143. the "Say ward "10, and the
"Thornton "47. On the 14th of July the "Dolphin"
took 102, the "Mary Ellen" 23, the "hay ward" 11. and
the "Thornton " took none. There are other compaiisons
whit;h might be made on this same line, but they are so
patent on examination that I will not occupy the time of
the Commission for that jiurpose.

I propose now to conii)aie the catch of the "Thornton,"
which is one of the vessels for which claims are made,

50 w'ith that of the " Mary Ellen " for the period prior to the
seizure of the "Thornton," when there can be no claim
made that her voyage was in any way interfered with.
The "Thornton" was equipped with boats and carried
white hunters, as did the "Mary Ellen." The former
carried four hunting boats and the latter five, and it will
be a just comparison to show whether the conditions are
the same for vessels, even in tlie same year. With regard
to the " Thornton," you will lemembei' that the testimony
is that her hunters were etpial in skill and exi)erience to

60 those of the " Mary Ellen." You will also remember the
fact that the "Thornton" now presents a claim for an
estimated catch based on the catch of the "Mary Ellen."
In order that we may more readily gra.sj) the full mean-
ing of these figures, I have prepaicd them in the f'orni
of a diagram, whicli is marked "No. 0." The average

601

(Mr. Lansing's Argument.)

catch per boat for each day is here shown. I call your
attontion particularly to July 6th, 7th, 8th, 11th, 12th,
14th, 17th and 18th, which show plainly the variations in
tlie catches of the two vessels. At the right hand of the
diagram you will find a smaller one, which shows the
relative catch per boat for these two vessels for three
periods of ten days each during July. You will see that
loduring the first period the "Thornton" exceeded the
" Mary Ellen" in her average catch per boat, she taking
37 and a fraction and the " Mary Ellen" 33. In the next
you will see that the "Mary Ellen" largely exceeds the
" Thornton," and in the third you will see that the ratio is
stil! greater.

The Commissioner on the part of United States: — Will

you read into the notes in the morning the catch of the

" Mary Ellen " before the first of August and after the

first of August, so that we may see what her catch was

20 in July and August?

Mr. Lansing: — I will, your Honor.

At half-past four o'clock the Commissioners rose.

!; 5t

(I I

■J k

OommisBioners under the Convention of February 8.

1896, between the United States of America

and Great Britain.

illH^M:

Legislative Council Chamber, Provincial Building,
Halifax, N. S., September 14, 1897.

At 10.46 A.M., the Commissioners took their seats.

Mr. Lansing: — May it please your Honors,

Just before the Commissioners arose yesterday aftir-
noon, the Commissioner on behalf of the United States re-
quested a statement as to the catch of the " Mary Ellon "
in August, and prior to the first of August. The catdi of
the "Mary Ellen " for the entire season was 2,395 skins.

20 The reference is to the evidence of the witness, Bragg,
page 260, line 45 of the Record. Of this number, 1.(mi3
were taken during the month of August. Reference, page
303, line 50. This would leave for the catch prior to tlu'
first of August, 1,392 skins. I should state in that con-
nection that that include.s the catch of the stern Ixiat.
The request of the learned Commissioner also suggested
to me that we might make a comparison between the aver
age daily catch of the vessels seized in 1886, itnd the catch
of the '• .Mui y Ellen " prior to August first.

30 The Commissioner on the part of the United States:—
Your diagram in relation to the *' Thornton " arid " Maiy
Ellen " Cduld only cover the month of July.

Mr. Lansing: — It only does cover the month of July, for
the reason that there was no interference prior to that
time. There can be no claiin made that the "Tiiornton "'
was in any way interfeied with before her actual seizure.
Now, 1 make this further comparison in accordance witli
the suggestion of j'our Honor: the "Thornton" wase(|uip-
ped witli four boats; she entered the Sea on July 2il, and

40 was seized the evening of August 1st. She had been seal-
ing thirty-one days, and bad takeri 403 skins, wliich would
give a daily average of 3.25 skins for one of her four
hoats during the time the was in the Sea. If we
examine Table "C," which I have already submitted, and
which shows the "Mary Ellen's" catch and the daily
average to date, we will find on August 1st that her daily
average per boat was 8.78. and that for the balance of the
season it was 5.85. We have, therefore, a ratio between
8.78 and 5.85, and the catch of the " Thornton " 3.25, and

50 what she would have done for the balance of the seasen,
and we find that she would have taken a daily average nl
2.166, which makes for her four boats 8. 064 skins per day,
and lor llie thirty days for which claim is made, it would
amount to 260 skins. The argument for Great Britain
claims 994 skins.

Now, we will calculate the " Carolena " in the same
way. She look 684 skins, according to the testimony of
Mr. Munsie, and was equipped with four canoes.
Her daily average per canoe for the period prior to Augu.'^t

60 1st would lie, therefore. 5.343, and that of the " Mary
Ellen" the same as in the case of the " Thornton," 8. 7H;
and we have the latio 8.78 is to 5.85 as 5.343 is to what
the daily average for the balance of the season would
have been lor tine of the "Caiolena's " canoes, wliicli we
tiiiil i.s 3.553, or 14 and a fraction for her four canoes per

603

(Mr. Lansing's Argument.)

(l;\y. and for thirty days claimed as the halance of hersoa-
sdii her catch on this hasis would have amounted to 427
skins, while the claim of (xreat Britain is for 994.

We will next turn to the " Onward." The " Onward "
carried eight canoes manned hy Indians. She firs^t low-
tivd July 12th and was seized August 2d. She had heen
staling twenty two days and had taken 400 skins. I

loslioiild note here that a correction was made by the Senior
CVuiiisel of Her Majesty in the general tables, submitted
witli tiie argument in chief on behalf of Great Britain in
ngaril to the catch cf this vessel, which is now claimed
to be 907 skins in the Sea. This statement that the Bering
Sea catch was 400 sldiis is based on the testimony of Mar-
ketich. Your Honors will remember the witness Marke-
tidi. the Austrian, who acted as Indian interpreter on
board the "Onward," who is practically the only witness
on whom Great Britain relies to prove the sufferings and

2oliai(lships of the masters and mates of the seized vessels
at Sitka. It was he who gave testimony as to the jury
room dimgeon; it was he who spokeof the brutality of the
United States officials. If we are to consider his testimony
at all, we should certainly rely on it in this case where it
is merely a question of figures which offer less inducement
to the imagination tiian personal experiences. The fact
is further substantiated by the evidence of Captain Mc-
Lean that the skins he received from the "Onward " weie
tiiose that had been taken prior to the time when the

30 vessel entered the Sea. We find her daily average then,
for each of her canoes up to the 1st of August, based on
a catch of 400 to be 2.272, and for the " Mary Ellen "
during that time, from July 12th to August 1st, 11.145;
while her average for the balance of the season was the
same as in the other cases, 5.85. Now we have the latio
11.145 is to 5.85 as the daily average of the " Onward " in
July, 2.272, is to her daily average for the balance of the
season, which computed amounts to 1.183, the daily aver-
age for each canoe, or for her eight canoes, 9 skins and a

40 fraction. The balance of the season claimed is 30 daj's,
and on this basis the catch of the " Onward " would have
amounted to 284 skins, while a claim is made for 1,456.

When I closed yesterday afternoon I had just subtnitted
to your Honors Table "D," which represents the daily
cat'ciies of the "Sayward," the "Dolphin," the " Thorn-
ton "and "Mary Ellen," the four vessels for which we
have the hunting data for 1886; and from that table I
have calculated the average number of skins taken per
day by each vessel to date, and I submit that as Table

50'' E," and also with it Diagram No. 1.

y-j

'jil

U\'

( '•;,=:.■*}

! '1!.;-!

Ii->i

i -i

if?fr

IV 1

604

(Mr. Lansing's Argument.)
Table " E."

Average Daily Catch to Date July, 1886.

(From Warrcu'B Diary, Record p. 280.) (Log No. 47 ((•. B.), ExliibiU p. in.)

Dolphin.

Thornton.

No. of

Catch

Average

No. of

Catcli

Avenii,

Days.

Date.

per
Hunter.

Days.

to
Date.

pel
IIuiili.

July 1.

....

, ,

■ • •

" 2.

....

" 3.

7.26

" 4.

8.62

.26

" 6..

2.41

.18

" «..

1.81

2. 36

•' 7.

1 46

8.62

" 8..

140

1.94

136

4.H,1

" 9..

162

1.92

136

4 . 2.-1

" 10..

162

1,72

137

3.8(1

" 11..

205

1.89

149

3 72

" la..

286

1.96

166

3.7,'.

" IS..

S04

2 80

199

4.14

•• 14..

400

3.23

199

8 , H2

" 16..

496

3.17

206

3.67

" 1«..

668

3.29

214

3 . 5ii

" 17..

667

3.03

214

3.611

" 18..

763

3.96

223

3 27

" la..

763

3.74

223

3.011

" 20. .

763

8.63

223

2 . 9:t

" 21..

889

3.68

242

3.02

" 22.

874

8.13

250

2.97

" 23..

987

3.71

261

2.8.")

" 24..

951

3.60

261

2.72

" 26..

964

S.46

261

2.61

" 26..

964

3.31

266

2.,'>6

" 27..

963

8.21

266

2. -16

" 28..

1,008

3.23

268

2.H8

" 29..

1,098

3.38

312

2.7H

" 30..

1,282

3.81

343

3.00

" 31..

1,468

4.21

346

2.88

(Extracts from Diary of Andrew Laing appearing in his deposition, K., p, luU7,

line 66.)

W. p. Sayivard.

July 1.

" 2.

" 8.

" 4.

" 6.

" 7.

" 8.

" 9.

" 10.
50 "11.

" 12.

" 13.

" 14.

" 16.

" 17.

" 18.

" 19

" 20.

•' 21.

" 22.

" 23.
60 " 24.

" 25.

" 26.

" 27.

" 28.

■• 29.

•' 80.

" 81,

No. of
Days.

Catch to
Date.

103

114

116

176

283

430

480

444

646

618

667

688

693

711

801

924

971

Avcrngc
per Hunter.

1.37

.81

1.20

.911

.85

.91

1.00

l.GO

1 68

1.43

2,00

2,94

4.13

3 , 83

3 70

0(1
29

:i2

3.98
3.88
4 17
4.62
4.62

60S

(Mr. Lansing's Argument.)

On Diagram No. 1, the daily boat average of the " Mary
Kllen " is shown as the soUri white line, while that of the
other vessels, the " Say ward," "Dolphin" and "Thorn-
ton," are shown by dotted lines or broken lines; the
imrnber of seals taken on the average each day for
llie number of days of hunting by one boat or one canoe
is shown on the left hand margin. It is scarcely neces-

los.uy to point out the unfairness of taking the "Mary
Kllen " as a typical vessel. We find on the 8th of July
that the boats of the "Thornton" had the higher aver-
ap;e, but from the 8th of July to the time of her seiz-
ure, her daily average constantly decreased, while, on
the other hand, from the 8th of July, or more correctly
from the 11th of July, we find the average of the " Mary
Ellen " was on a constant increase. It is not shown
upon the diagram, but these data are confined to the
month of July, because prior to August 1 there was no

30 interference of any kind with pelagic sealing. There never
has l)een any claim made that these vessels were in fear
of seizure, that there was any knowledge that seizures
would be made, or that they were in any other way in-
terrupted in their venture.

From Table " D " I have made a further computation
to test the same fact in another way. I have taken the
average daily catch each day of these vessels and divided
them into periods of three days, and I submit the result
of that calculation in Table " F," and Diagram No. 2, for

30 the same reason, that the mind can more readily by this
method comprehend the result of these calculations.

tW-

'■'i

t i»

i :

: k\ |i

Table " F."

Table showing the Catches of Vessels in 1886 ifrom
July 1st to August 6th, inclusive, in Periods of
Three Days, and also showing the Daily Average
Per Boat or Canoe kor such Periods.

July

Aug.

■y Ellen.

Thornton.

Total for

Daily average

Total for

Daily average

3 days.

per boat.

3 days.

pir boat.

1-3..-.

1.333

4-6.--.

.333

3.916

7-9.--.

143

9.533

7.416

10-12....

5.066

2.416

13-15....

174

11.600

4.083

16-18....

145

9.666

1.416

19-21..--

3.133

1.581

22-24

141

9.400

.750

25-27

2.133

.416

27-29

227

15.133

4.666

30- Aug. 1

345

23.000

5 583

2-4

140

9.333

5-6....

.600

Mi ' M

606

(Mr. Lansing's Argumont.)
W. P. Sayward.

Dolphin.

Tdtnl for

Daily average

Total for

Daily nvciii;rf

S ilftjs.

per caniiv.

3 (lavB,

per onniic.

July

1-3....

. . .

87t

3.62;")

4-6....

11*

.458

((

7-9....

.760

2. 083

10-12....

1.166

142

3.944

10 *»

13-15....

2.416

259

7.194

16-18....

225

9.375

145

4.027

19-21

115

4.791

2.111

22-24

112

4.666

112

3.111

((

25-27..-.

1.291

.333

27-29....

113

4.708

144

4.000

t (

30-Aug. 1

299

13.475

663

12.861

Aug.

2-4....

133

5.541

2.277

»i

5-6....

93t

7.750

1.805

20 "One daj-.

f Two (lays.

Diagram No. 2 shows the comparison of data for three
vessels, the "Thornton," the "Mary Ellen" and the
"Sayward." The " Mary Ellen " and " Sayward" are
carried through the season to the 24th of August, wliile
the "Thornton," hecause of her seizure, ceases at the
period between the 30th of July and 1st of August. Tlie
" Mary Ellen " is shown by the solid white line. Per-

30 haps this diagram exhibits even more conclusively tliaii
Diagram No. 1 tiie complete unfairness of taking the
" Mary Ellen " for a basis of computing a catch for other
vessels.

Now, I submit, your Honors, that it is demonstrated
from the data we have before us that the " Mary Ellen,"
for the season of 1886, was not a typical vessel; that tlie
variations in the catches from day to day show tiiat the
conditions whicii existed were constantly changing. We
can draw no other conclusion than that the experience

40 of each vessel was different; that the experiences of the
hunters were different; and that they were sealing on
different grounds where the weather conditions were con-
stantly changing.

There are submitted in the argument in chief on belialf
of Great Britain, at pages 75, 76, 77 and 78, tables, which
are supposed to contain the data of catches given before
this High Commission. These tables we conceive to ho
incorrect in many particulars and but partially recite the
evidence. Only one witness is referred to where in many

50 instances there are several upon the same point. I tliere-
fore propose to submit other tables which cover all the
evidence and which refer to all the witnesses. [Mr. Lans-
ing here submitted two printed tables containing the data
lef erred to.]

Of these two tables, one relates to vessels equipped
with canoes and one to vessels equipped with boats. The
first colunni of each table contains the name of the vessel
and the year in which she was sealing; the second the
tonnage; the third colunm the number of canoes or

60 boats which she was carrying; the next, the date of
entering the Sea; the next, the first "lowering day";
the next, the last "lowering day"; then the date of
leaving the Sea; then the catch; and then the division of
the catch and remarks. You will note also that there aio
after the names of the witnesses letters in parentheses.

Vessel snd year.

1880.

AM*

niirr Ellen.
PnlhHnder.

Tiierr«i«...
Thornlon

ranilrrbill

tftnt,

.tilir I. AlBvr

FnvoHrilc.

norv Ellrn.

.nnry Tnrlor.
Pnlhflndrr ...

P(>ai-lo|ii'

Vnndrrbill

INNN.
.4nttir i'. .Yloorf* —

Vim

71..

fatcli.

976.
90(1.

Haniten (e.).3i>2".,
llunseii (('.), 901*>.

2305. Ur*gg(in.),260U.

1706. Miinsle (o.), 110

1760 less ;i(KI. O'l.earv (e.),293i.
•1400. O'l.fnrv (c.),295»'.
•14110. Hvers (li. |i.),:n8".

.| Over 2000
. 403.

liiiiiilssv (li. p.),298«.

Wnrreu (o.),932i»

(iiittoriiisi'U (r.). 1085U.

1348. Slyer <c.). 1727" .

DlviHluii ul' catch and rfiiiarks.

Inclnili's upper coast catch. Hansen, 618**.

Auk., l.iio:i. llraeK (ni.).;i03H.

Aug., less tboHe taken Aug. 1. Ilragg (iii.), 303".

Hut r«w Hciils were taken before July 12. Itver*,

318".

Stemboat used as much as the hunting boats.

Ovor 1800. Kaynnr (!■.), 527«"

1586 (lui hnarili (c'.>. 1117".

Less about 5ii0 mi ciuMt, Kaynor (c), 1117".

1884. I,. Mol.ean (C). 732i« July, 530. I,. McLean (c), 731".

1684. L.McI.ciin (i;.).731". Au«., 1145. L. Mcl.i'an (c). 731H

I LiiHiTlni: ilays : .1 uly, 14 out of 24 dajx. L. Mc-
Lciin. 7:il«.
Lowerini: davs : Au|!., lOoutuf 2aday8. L. Mo-
Lean, 731".

1530. A. McLi'an (<•.), 416".

I 700-730. Mi'Klld (C.I, 32T' . .
Li>.«8 89. McKii'l (!•.). :i29i».
Ovfr700. .McKlil (r.|, :);)1".

-2,200. (I'Lnirv (c). 2I)4»

Xeailv 20(10. 'f 1 a-s (ui.), 1770*.

Over 1900. TliiiniaB (ni.). 1771".
I.is» lliiiu 200(1. ThiMium (m.), 1771i».

1809 caught in sen. Munsie (o.l. 113", 1I3».
045 cauifTitou I'oiixt. Munsifl (<>.). 113". 113>'.

1.250. Jleyer (c), 1728".

1... *700. Kauilnsi' (h.). B24i'i

Nearly 800. llackctt (c), »59«.

1.W8. Baker (c). 72fl«<i .
1539. Ilaker (!■.), 721".

Julv,9ll. Ilaker (c). 721".
Aaii: 628. Baker (c), 721".

i I'

iii

I :'!

I' *1

¥ '

i 1

W^ »#

l!tij.-

if'^:

■

l>\l\ K'I'I, \IIN( ; ic ) si:\i,iN(} \'Kss|.-,l.H Va i\

run-

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l>>iri tit t'Dti-riDtf •m

iVIilili Ml . n.ril. II. iinlifr h. Iiiiiilir illi ili-i k liali.l I. |i lioii |,i,l
l-ir«i l.iMiritiii (Uy, I I liar liiwi'iitiK

Uili

ll.ti lllrn

PmliltNitrr

.(iiirw

M I)-:

J. ILintin .. • «M" liiiiiJTiii ■.•* M.iiiwn ,i.i,:«il".,

5 llr«Bil ini I ;SJ» ,1 ;a ItriifcH nil I ■.•M"' ,

A Mnniilr m 110 ..
(1 l.«rt ii- I «r."
llMriiti |i 1 nil".

Jiiiir tl I) I.fur^ !■■ 1 -.V;

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Aiif 1 ■> Liarv I I 71I111
Jiil> -.11. ll\arK 111.. 777"

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Jnlv ;io. Hinkniini 11- 1, UU**

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l:il(l. llaiki'll ...LUSH". ".'IK"

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I Ann .,Vi7. Hai-ki-tl 11- l.OJi'i.

141 Itm kliAlu 11 .1. 7114' 444 (Bl'liT \tarulnnl. llnrkDain (r

, 7U.S'.

131.10 Ki-r ia.l.n«7"

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■l

Ini-lnili'a Mkliiii fi-iini raiiU. ilimain (li l.678i"
Timk ;i.'''i liMi in ralila llmiitit' 'li.i 877".

Tiaik 41111 In raiil» li llo ili.i <i7lii".

liHik alii'iit KMi 111 mill'' llnnilli' Ih.l. 078".

11.14 Inn liiianli- 1 1 Lvan ii-.i. 797'! jii a|-ler aeUiirii. iil.i'ary Ir.l. 7iW».

m.l llviTK. :t7"

Ikm 7iiO. Illnai-tl 1111 1, 778* .
73. K (-. Itaki-r HI 1, UJO"..

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3mO. llakiTli' 1.71a".

.Iiilv. 1114 (

llakiT 11. 1.719".

Ann .l""* »
l.iirni'at lalrll In Ui-I llakiT ir.i. 7'.>.'i".
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LuiriTinnilaya Ann . 1,'. llaki-r li'.i. 711I".

\nn 11 ILiiki'l «.'*" ...

Aug. an 31. Mi-Kirl 11 I.I173*.

S.'lil.3. Mi-Klilii'.l.lI7'.i

I MIX*..
I17'3«* .

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Si-pI. 14 ManntiiM-li H-.l. HI*)3*V.

Ann ■» Sti-alali-.l, ln71«' Ann 3y ''li'eli' Ic.i. li)7ll'i

Ann 1». 1. .N.Cui 11- i.«l)«»

hi-I'l 13 lliikt-r '

■Ann- '3.1 11 l.i-ary 11- 1,7701

llai kilt

M. Kii'l 1

Kir lani I. «<I7" I uly. 107 llriiii 11, «,M".

i Aug.. 878. Uriin n, I1S4I.

SlfWITli H' I. IWOl*

l-iiln»r 111 1. llW.''i ;

Manni-a'n H-.l, lOtK!*! [ * 301) In S<i|it Mannem-n (I'.l, llHIli'.

.siia'lc H'.l. 107H**

.I11IV.31M. <■. N I'm (1- l.floflti.

Aiijl.1711. ('. N.Oox ii-.i.anffi.
l.oaerinn ila.va, .Inly. 9. C.N. Cos Ic
j LiiwiTiiin ilaya. Aun..8. L'.N.l'iixl

Inlv, 180. Ann, 14'''7: S<>|il..l

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Dill.

m7.

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4.V1.

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«50.

w;i. (- S-('ii\ H- I. nun*

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301.'!. r.akrr I

). 608«i.
c. 1.608".

37n.

I.iiwurilin ilavs. Jnlv. 9;
Aug. 111. Scpt',7.

Jltaknr (1- ),733»

I.MI'O.nPl.KTk.

Aug '38. Oiiniliull ). 877" - 8f pi. 7 iHiinlii' ili.i. B77".

Aun.34. PolijiT III.). lOB'J" Aiin.-35. Fiilgfr ill I 10«'3"

Aug S.'i. A. Mi-l.i'un ir 1. 403".

Ang. 19 Fnlni-r im.i. li*'3" ' Ang -.'4. FiilgiT iinl, 1UI<'."<

Klrat pan S.'pl. MlniT 11. 1. .'^18".,

18011. biiln" nil I. 1083" .

A Ml I.i-an 10. 413» ; (ioildlig 111). 878i'.

larger iinnn Uii' pagr nl tlie Hecoril . Ihiia. Hauaan ir.l. :iol". nirans I'aplalii llanaaii. altnma. page 301, Urn Vl.

I HUM Ml

HlH«lt U

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|liil|ihiii

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:i; nil ."Hm M.iikiiii li 1111,1,71

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IMAGE EVALUATSON
TEST TARGET (MT-3)

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11^41

Hiofographic
_Scienc3s
Corporation

23 WEST MAIN STRUT

WnSTIR.N.Y. MSM

(716) 172-4503

VeMcl unci year.

Ton-
nil ([«■

Xumlier of ratine*.

nATA rn:T.ATi>jG to skaling vessels eg

c. ui'iiotpn raptaiii ; m., inato: i. , ..wiier; h., huiiten d. h., doik hand; b. p., boat pull*
|iat<' <i| cntrrinj; "Pa.

Firxt lowering day.

Last lowe

laaa Rrrk

Black Dinmand Kl.S; 0. Paxton lo.), IT.VIN..

r ] TluimiiK (h.t. I7«t".

■M.X, S. Ol«.n(.-.»,1(UOM JnlyJ. OWn u-.l, 1880"...

j July I. I'uxtoii (v.). I75a«.

Aug. 19. Olsen (c), l(Mi

(arclraa 31.90 4. Toufonl (li.),aT4"

Dclpkia BO-Ii' 12. Warren (i.). 2«0'« ,

FniaiirJM'.

T'.i. 54 10. Mnnn ili i. :i:l,vv

11. A. McLean ((• I, mil'.

1 boat ime<l aanie an raiiiN'B. A. SliL. IIIC.

lirart' 78.87 11. Keppen (nil. 3(lff<* ,

Junel3. Cotafor-l 111 1,374" J„ly ,. CoUfor.1 ,|, ,,.170" Aug. I..el7.ed. Capt. C.

.I..1.V2. Warren (.. I. ■-8.>«.«.M« |.,„ly3. Warren ,o.,. l-Hl- Aug.ll. Warren ,c.,.a

July 6 or 7. Mimit ili.i.;ri.'i"

Jiilv «. A. MrI.eaii (e.l.JIS"

.Iiil.v 4 or 5. lii'|>|ien (in.), ;IU7».

Aug. 19. A. McLean (c.

Oawarii 35.20 8. Marketieli (in.), 71 ..

K or » SjirliiK (o.) iiB;|i«,
8or». Ilarkin (rk.i.SV

W. P. Naiwnril

IXS7.

(4a

lilrli

8!t.V.

59.79 8. I-aiii^ (IH.1,271'

ns. •.•:)

7. I.iinillierc ini.i It-Jj"

Daiiiliri (e.i, IJKI".
1 liiinliiii; Ixiiit

lianirin ir.i, 1213".

Liitiillieri: (ui I. 3'.'5»«.

I.iiiKllieri: ini.i. "87''.

fl. llaiiKeii (e.i, ;)•)•."«

1 liiintinit Uiat. llannen 'O. :I0'J".'

Hfrrd %ilnm« 68. 7."i 10. ily agreement. 1366^'

.Inly (Honi. time inl. Marketi. iKm.i. 71 July 12. Marketi.l .).79 Aug. I. Marketleh (m.)

I , Seized Aug. 2. Marketi

.Inly HI. l.nnillH'rL' mi ). 7H7'« .
•Inly 15. tiaiiilin oi rji:i"'.

I.iiiiillieri; 'III. I :t'J5'i.

July 1 or J. Haniten di. 302" .
•I uly H or it. I.iiL'. 1 :uu>'

JulyO. Laintf (111.1 I(I9«« ' Ang.24. Laing (m.i, lut

July in. Gantliii (r). 1214"'

July 9. Log. |;t6t''

Seized Aug. 25. Lundlx

.S«iz«l Aug. 0. Dep. of 1

' ""•"* '"' n,u:;':;V|-,'"{i:;:..,.-iniii.- "'■"■^- ..Uen„.i..O.,« ;,rn,ie3«. uUe„,..,1041« Ju.y2.«..ee,L 01«.„ ,c

9. (lUeii. loKI'i. I

9 1". Keefe nil.). 1121 •» 112.V«. I

Rlnrk »i....i.„.| »1.57 -. Keppeii. KtHipa Juh (beuinniiiK of,. K. ppen (m.l, i:t83«. . .

""'"'''''' •01" '•<• Warrenc. and o.l. 1137" JulyO. Warnn i. anil o.,. 1144"

Ctriire
K.'llr .

76.87 12. Warren (o), 1137"

1 linnliiig lioHl. Warren (o.i, 1873"".

; Jiil.vO. Warn-n 1. and o.l. 1801» S«lied July 12. Warren

'"'>" Warren (o.) IMKi" July 13. Wnrnn c ,. 1873M Seize.! July 17. Sli«panl

80.00 10 Mo«mr 1. ;):i5«»

1 liiiiilini; lioHt. MoaH n i. :i:i.'i«>.

July ll'-12. .Mii.hu uM.:t3J»».

""""'""'"'"■' ■=»■'*' ■' •■' " e.i 274"..i65« Inly (laMi ilav - of,. Ja.ol.Mui (.•.,, 275' 6W.. ..; ,I„lv (on .lay of .n.. riuK ,). .Jaeob.on (c.)

2i5".

'"'""I'h 1.',.22 4 Smilli (iii.i. 13i»7i'

Wan eil at iiitraiice of iuish. Aiii;. 4. .Smith .\iil'. 5. Sinitli (in i Uo>i"
(III.), i;i»7".

W l'.«iiiHnrd 5!i.7!' 8 ..r H .\ii<l<-.oii ..I. Ii i. 925'" "Julvl. Lain- nn ) Kill.","

». I.aiiii.' im.i I0!l5<>.
»•. Warn-ii lo.i. lirtsM.

*■'*'' "• llan-n i.i.nu" Inly 4. Han-. » .c... •114'

"'"''• "'■"""■"" 81. ,^7 67 Sioitli (h.i. t4Uh» Jolx :il. Sinilli 1 1, i, U8.-,

*"•"*"■ 7«.,'.4 Kl. I. M.L.i.n(.i.7:i2» J„|y H. I.. M. Lean (.•.). 73(8>" .

■•Mniillii

'■"ihtlmlir

. ,'>4 Kl. I. Ml Liaii (II. 7:12"

11 L. Ml Lean If I. 7*7»i.

2 liiiiitiii;: iKial-. L. .Mel.ean (e.i, 747»i.

4(1.21 «. Clarke iiM. 11 lil»» •.lulvlC Clarke i,-.,, 111««». ...

1 biiutint: Ixiat c: men ill). Clarke (e.i. 1 1 19". .Iiil\"l2 Clark, i. i. I343'i

; .inly :t. Laiii); iiii i 1U'.I5"< .

Aug. 25. Smith (m.l, 140(
S«i»MlJulyO. Laing (m.

July lu. L. Mi'l.iaii(c.),748'i ,

Aug. 8. Hansen (e.i, 615>
Aug.27. L. Mt'I.rf)an (v.).

July 13. Clarke

1^13<« Aug. 20. Clarke (e). 111!

'•""iiliiiii i |,i|.| •2(1

B. Jaiol.Hon (.1. fl«:i" Aug. .Ilrnl i.arl ofi JmcLkou (e.), 063" s..pt 3-7 .laeol.iion le |

Aug 1.- .fa,..lm.,ni..i..rfi4* S.-pi; 3. 'jaeobmin (e.),U

e«. 02 8. Hepjien ili.i. I3KI«".

.lilly liieifiiihiiii' iifi. I.'eppiii ill. I. i:i83U .

^"""'I''« 88 Oft 11 Ilakei (.„. 7(12"

1 liiiiitliig iM.at. linker lo.l 702".

(li'l.
H. an II I

Kli.l,

!••*<».

7. Haii.eiiiei.. 615" .Inly 8. lluiiioii hm. B15". . .

Inly 4 11'. Ml Kiel d.i 071'"

00 110 (1 MiKi. I UM B70"

1 limiting lioat. MeKiel (i.), 673**.

.Iiilv 7. Ituker lo I

Aug. 20. Kaker (o.i, 702<

Aug. 13. MeKiel (e.), 671

'r VESSELS ECITJIPPED AVITM CANOES.

<1. h., dork hand; b. p., bont puller; ok., clerk; agt., agent; tal., talllor.

Laat lowering day.

Itate of lenvlng mm.

Catch.

Divliion of catob and ruiuarka.

Aug.l9. OUen(c.),lu4(>« I Aug. 21. Olwn (c), 1040«« I 1128. 01«.i, (c.», l«MtM880»

lUI. UlNeil (c), 1046",

i"*l;;*;''"Jj"""^- '•,""" ' 780or870. Paxtoii«.),1757«'.

AiiK. I«-15. IhomaiKh.). 17",M. 80U-800. Thomas (b.), 1775".

Aug. I,iel7.ed. Capt. ('. A. Abb»'.v,U.S.U.M.,48 ; 884.

MunBie(o.),llS.

Aug.ll. Warrfii(c.».285» Aug. 12. Warren (c.),2:i.-l"

Aug.l9. A.McLfan(c.).415" Aug. 15. Mosn (h.),33S»

{ Ant;. lU. A. Mil.ian (c), I110».

2037. Warren «M. 280'

leiH "09 (upper coaat.) Warren (c). 315".

•2900. MiiRH (h.),335«

2259. A. McLean (r.).418>.
2374. Spring (u.),i31»>>.

Aug. 14 or 15. Kcppen (ni.),307"' '1700. Itopjien (ni.), ,«I7»>.

leitM AMI (ch-arlv from evidence), 309"'.
1785. Warnn «>.l,315'

Aug. I. Marketich (ni.).7l imi una \t i. .i i , , ».

Sfi?edAug.2. MarkHicb(ni.),7i: , MO-500. Marketich (n..), 71.

Aug.24. Uing.ni.,,IU9«" ,59,. L«ing,n,.).

1098'*

Seized Aug. ii. Luudlieri; (m. 1,787'" .

1876 (on board), tiaudin, I2I4"

1870 (IcRg 5 in Hcu). < iaudin, 1214'°.

Aug. (beKiiiningof). Haniteu (c.),302» '1200. Hnnaen (iM. 302'»

.Sel«Hl Aug. 6. Dep. i.f Oyer (C), 1300" i;t

nmion lNiard)|!)eeInr. of Thonipaon (ni.l,
I3H2 (ou board); i;i81«. 13«1«.

! }ii?S!:;:;a!jL"«..f«.c...3«'M364«.

1370 (oil biHird). Tent, of Sliepard, 1826*>.
July 2. iH.Ue.1. 01«-n (c), 1041" 50-00 (In sen), Olsen ,c.), 1062"

"Aug, 15. Uepp<-n (m), i:i83«' •0fl7. Koppeu (ui.),1384«

S..ize<lJul.v 12. Warren (c. and o.), 1144" 618 (on b^wrd). Warren, 1145'« ,

8ei«e.l.Iulyl7. .Sbepar.1, IW 761 (on board). Warren. 1148" .

I Jul.v. 1684 (A. McLean (O.), 416'"), 1644 (Spring
A"^876"( a", McLean (c), 416"), 730 (Spring (o.),

Uoea not afliM't the deduction above given.

Jul.v, 961 (Laing (ni.), .098'*).

Aug., 512 (Laing (m.), 1098").

lA>nering days : July, 10 out of 2«) Laing (m,),

Loweringdaya: Aug., 11 outof 24/ 1098'«.

July, .529 ((iaudin (c), 1214'°).
Auk. 1342 (Gaudin (c), 1214'").
Loweringdaya: July, loout of 17 (Gaudin (c).
Lowering days : Aug., lU out of 26 i 1214"',

Ineludea upjier coaat catch. Hansen (c), 618«*.

Aug. (latter iinrt nf). M<ms (c.),335<» 'IMW. Mosii (o.).3:i5".341*',

•Aug.25. M.WH |i-.),:;4I''. 'niKI. Mo«m (c), KIHO'".

"AuiJ.'JU, Mo»» !•■.), 111811", 17tHI-180O. .Mohs (e.i. i;mi«...

J • 1050. MoSH (0.). 1393'>.

'"••'•I Aug. 14-17, .IiicoliHon («■.), 275'*. 66«'° '700. Jacobson (c,),275'«....

AuK.25, Smith (111), 1400" Aiig.J6. .Smitlum.), 14(11' 426. Smith (m.), 140o««

.Sei«.ilJulvt'. Lniiig (II..), 101i5» ,78. Laiup (m.), 1095»'.

Aug. 8. Hansen (('.1,615"..

Aug. 27. L. Mel^un (c), 73<l«« .

Aug. 20. Clarke (e.), 111»«» .

.. Aug, 15. Hansen (c.),6l6*....

.. Ang.25. Smith (b.), 1485"

.. S<-pt. a. L. McLean (('.). 7:10*.

Hansen ic,),015'*.

18.-M. L. McLean (c), 7.'I2'>.
lliOl, L. McLean (o.),748» .

Lost 1 eanoe almiit June 30.

337 on iHiard. Olsen (c), 1045«, lOfll".

31. Taken in sea. Warren. ISdl*.
323 in oea. Warren. 1873M.

Including iip|)er coaat catch. Mosa (c), 1301«>.

Lowi>ring days: 10 out of 23; all in August.
Smith (m.), 1400*'.

Includes upper coast catch, Hansen, 618**.

July, 604. L. McLean (c),748».

Aug. , 007, 1„ McLean (c), 748»»,

Lowering days: July, 11 out

of 24,

Sept, 3-7. Jiinilison ic), 664»*,.
Sept. 3, Jucobmiii (c), 1447'",

Ang,20, Clarke (c), 1119" Inl7orl018. Clarke (c), 1130'...

...., Sept, 3-7. .lacobson (c), fi«4" "900, ,l«ci>b»i«ii (•■ I, ««3" . ■ ■ • ••

' IWo, nearlv. Jiirolmim (c), WW" .

Aug. 15. Iteppen (b.), i:i83w 8()«.-!KlO. Keppell lb.!, 1:IH3H. .. .^....

*Ailg.l5-18. Tboinim (Ml.). !771»«. 560odd. Tliiimiis im.l, I'^l"*, KiS".

■Aug. 18. Thomas (1.1. ). 1778". |

Aug. 20, Maker (i>.), 702" 1 1802. linker (n.), 702"

Lowering days: Aug, and}''" McLean, 748»
Sept., n outof 34. I

Aug. (middle of). Hansen (r,>, «1S» '800. Hanson (c). 6I5«».

Aug. 13. McKiel (c), e71<* I "Aug. 20. MoKlel <o.», 871'*.

•100, over. Ml Kiel «•), 670"

KtOotld. .McKlel (>:). 871 '»

•no, Iwi 3 ur 4. Ut'Kiel (0,071" ■-■

July, 12.13. Baker (c), 702"

Aug., 5»I9, Baker (0.). 7(I2'»

Low.jring days: .I„,y, „ ,.it of 24, Baker (0.),

Lowering days: Aug,, 6 out of 80. Baker (o.),

Includes up|ieroonst catch.

lioat .1 cauoea, Aug. 13. M.Kiel (c), 673«*.

lll\ ifir;

fimrr ■ •

.1 iil\ TTii'iiniiiiiK I'll. K'-ppi II (111 I, i'M''

iliilv C. Wniriii If. iiihI im. 1144''

.Iiilv t\. Wiiriiii (IP,). ISfti"

Kmr

ao.lll 13. \\ iirivii ir. iinil O.I, 1137"

7fl. 87 12. WHrri>n to.t, IIST"

1 liiiiitiiiK IkiiiI, Wiirn-n (o.), 1873*".

6(i.lKI 10 MoxHiiM, ;a'.'" Inly 10 I'J. Mess uM, lia.-i"-'.

I liiiiitint: IhihI. Mum {v.). 3:i5*'.

Jiilyl*. Wiirivii , aii.l...),18m» SfUfd July 12. Warrc

.1 Illy 111. Wiirr. II 111 1. 1873M Seized July 17. Sliepiii

n.iiiiliiio rhii'f '20.00 ."S. .laoolwuli 10.). 274«'. !!«■>«« Inly (IhhI ilaj - i.li. Jii.oIikoii ((•.),275'.(ie«i ..

Triumph

W . P. Wni » i«r«l

Idt Ir

Bliirk Diamnnil ..

Fiirarilr

Jinniln

l|«iinliiin 4 hirT

.Iiilv (on (lay nl' ■ nicriiiK nen in). Jarobsnn (r.).

l.i.22 4. .•<milli uii.i. UltTi' Wanicil al iiitraiiif of panH. Au(;. 4. Siiillli ' Aiiu'. 5. Siiiitli mm i Itmi"

(iii.l, i:ilt7i".

July 1. l.aiiiu im). IdOTi" ; July :i. Laiiic mi 1. 10!)5'«

51). 711 « iir «. .ViiiliT'Miii (il. li ). D'.'j" .
fi. I.aiiiL' (III. I. lOilS''.
«. Warri'ii (ci.i. li;i!»J.

AiiK.25. Smith (III.), 14

I SeisMHlJiily t». Laiiig (i

"■ llaiiri.ii (..KfiU^' Inly 4. Ilaii-n ((•.1,014* .. .

81.57 « 7. Siiiitli (li.l, 140S'" July :il. Siiiilli (li.i, 148.-i««...

79.54 i:i. 1.. MiL.-aii (i'.).732" Jiilv8. L. Mi Lean (c), 731)*'

11. L. Ml I,«an (.•.).7*7»i.

2 liiiuliiiK lH>at«. 1.. McLean (r. I, 747".

40.21 fl. Clarke i.M. 111<.)«» 'Jiilvlo. Clarki- mm. lin»«'

1 liiiutiii); iMial c; men ill). Clarke (c). lll»". Jnly'l2. Clarki (r.i, i;i43*'.

A lip. K. Ilanneu (r.i, 81

July 10. L. MoLi'au(c.).748» Aug.27. L.McL<iau(c.

6. Jai'olmou d'.). flO;i".

Aug. (lirHi jiiirl nil. Jiiiiilwnu (c.l, fiOa".
.Vuj{. 1. • ilariiliKiiii If. I. (

, «t)4'>'

July 13. Clarki' ic. I. 1343« Aug. 20. Clarke (c), 1

.Sept..'!-". JaooliHon (c.

8e|it.3, Jac'obHoii (<'.),

Pathliatler 8602 8. Kep|*n ili.l, 13Ki" July (lagiiiuiiiu oil. l!ep|iiii (li.

Trinniph.

1 •»•.».

98. Ofi 11. llakcr (.ii .. 7o2" I nh 7. Ilaktr lo i. To.'".

1 liiiutiug boat, itaker (o.l. 702''.

Aug. 20. Ilaker (o.l, 70

Hnii» !•)., 615" Iiilv 8. Hanni'ii (<■.). 615".

UrW

Bralrirr 80. oo 0. McKi.l (o.l. 67(i-* lulv 4-10. MrKiel (i.i. B71i" Aug. 13. MoKicl (c), 6

1 bunting lioat. MrKiel (o.i, 673H

l»»«»9.
Rlnrk Dinmonii...
Faiaiirilp

81.57 10. rhiinian (0). 17B7" July 6. TlinmaK (c.i. 1707" luly 10. Tli<mia> (• .). 1767<» ' July 11. Belted. Tlionia

70.54 11. I. Ml Loan (■■.). 7:il» Inly 14. L.MoLoim

i:) icnrreolingi. L. MiLeaii (0.1.737".
9 (oorreoliiigi. L. McLean (c). 748*'.

Aug. 25. L. McLean (c.

JiiMniiii .

40.21 «. Clark* (c.).lU9»' Julv 2. Clarke (c). 1339» July 10. Clarke (.,, 1343»« July 31, »ei/.e<l. Clarke

July 30. Clarke (c), 134

Kair 60.00 lo or 12. Spring (o.), 1371'» July 24. Keppen (in.), 1377" ..

9 or 10. lioppen (ni.). 1376M.

8. Ueppin ini.i. 1377«». I

8. MonH (o.i.lj95»».

July 20. MoH» 11 .. 1388" Aug. 15. Keppen (m.), 1

I Warned Aug. 13. Kepp

.Viaair 46.31 8. .Magiio»eii (m.). 14S6« June 27. Ja.ol.»oii (c). 663". 1441«» 4 ',"-'• .'-, ,*'?5"'w° ""•

2 hunliug ImatK. Magiiesen (ui.). 1436". June 27. MagiieMn (m.i. 1437'». i j 8.'ized July IB. Magma

" I Jaconmi

Sapphirr 123.00 15. W. Cox (o). 75t*» July4. W. Cox (o.), 756" July 8. W. Cox k .), 7.W .

W. F. Navward 59.79 13. t)lHen (c). 1710"

1890.

Adeir ' 6. Hanson (c). 616"

j 7. HauMMi (c.). 1941».

' July 30.

July 7. (»Uen (c), 710" Aug. 18.

I
I
July 4-9. Uanaeu (c), 616"

\V. Cox (c), 7!
Olseu (c), 710

-*rl«-l 90.85 14. Huckuaui (C), 707'

Bralricr 60.00 12. Keele (c), 1085" 'July IS. Keefe (c), 10K5"

Aug. 25.

Favoarilr 79.54 13. L. Mclean (o.),750" July 16. L. McLean (c.),750" July 18. L. McL.iin (c), 760" ' Aug. 14.

4 more after Aug. 10. L. McLean (c.),750««. i

Keefe (c), loti
L. McLean (c.

Jniiiiilii

40.21 9. Olwu(c.),710" July 12. Olsen (. ,711' Sept.S. OUcn (c.).713"

K«Hiarl«Kfoniierly the Black Dia- 81.00 11. Smith (li), 1486*» July 9. Smith (h.). 1486".

inond.) li. Smith (h.), 1408", I486". 1 hunting iM.at. Smith (b.», I486". \

.^iaair ...
Sapphire.

W. P. Harward.

July (middleof). Jacobaon (o.),e«3* ' 4"*-^i'

I . Aug. 23.

46.31 8. JacohHon (o.),663"

1 hunting boat, •lacubaon (c.),663**.

123.00il7. W.Cox (o.),757» *Julyl2. Goudie (h.),«77» I'J'nlyU. Goiulio (h.),677»» Ang. 15.

1 2 hunting Iwata. W. Cox (c), 757". "July 16. Cox (c i,757»«.

57.79 8. Paine (il.h.), 1725'* * June 29. Paine (d.h.),1725«.

JacobRon (c.),
Jaoobaon (u.).

Cox (o.),787»

Aug. 28. Paine (d.b.),l

•About
KXPLANATOKT NOTE.— The (man exponential flgurea denute the line, the larger one*, the page, of the Record ; i

MUm Loiinl. iiWiM'.",, "iliVvi

1U61».

.... S«'iio<lJiil.v 12. Wiirrcii «'.amli>.),I»4M.

■AiiR.lS. Ki'|.p.n (ni), i:i83«' ' W17. licpiieii (in.), 1384> .

^, .., 018 (on board). Warm.. lUoi. 3,. Taken I,. h«„. War,

SeUe.l.)Hlyl7. Sl.epanl, 1 107" , 7fll(„n board). Warr.n, 1145-

Aug. (Intfr part »f). Mom (o.),a38".
•Aug. 26. Miwii ((•.),;WI«.
• Aug. '20. .Mum (o.), 1;i81I".

. MHOO. Mosi«(c.),3;i5»,34l«>.

I 'niKI. .MOHH (C.j.nitOl".

I 1700-1800. .MoH* «•). i;i!>l«

' MCIO. MoKH (c). 1393i>.

■on (I-.).

Aug. 14-17. .Iacob«on(c.),275'*,66B'<' 700. Jacobson (c.),275™.

Aug.25. S„,iih(m.),1400« Ang.2«. Smith (m.), Uop 420. Smith (m.), 1100"....

Sei.«lJul,vU. Lni..g„„.),I01.5» i ,,g. L„|„g ,„,.), lOOS-.

Aiig.K. Jlanneu ((-.1,6151'.

Au)i. 27. L. McLean (c). 730** . .

Aug. .15. HanR(>n(c.),615'

Ang.2.'i. Smith (h.), 1485«»

Sept. 3. L. MvLean (c), 730* .

M300. Uanaeu (c), 615" .

1834. L. McLean (c.),732i»

ItKll. L. McLean (c.),748» ....

Aug. 2(1. Clarke (c), 111»«' .

Sept. 3-7
Seiit. 3.

. Jaroligon tc), 604".
Jnt'obHon (c), 1447*'.

Aug.20. Clarke (c), 1110«« 1017 or 1018. Clarke (c), 1120'

Sept. 3-7. .lacobson (e.), (MM".

■ 900. .lacobHiiii (e.), 663"

OOti. nearly. Jiiculimin (c), 604" .

Aiig.l,'). Ifeppen (h.), 1383" 8(XI-!KHI. Keppen (h.), 13«3'»

*Aiig.l5-lti. Th<mian (ni.). 1771». 560-O.1.1. Thomas (m.), 1771*

* Aug. 18. ihoums (m.), 1778".

I™, 1778«« .

Aug. 20. Ilaker (o.), 702".

Aug. 13. McKicl (c.), 671*'

Aug. (middle of). Hansen (r.), 615<*.
♦Aug. 20. McKiel (c.), 671'»

1802. liaker (o.), 7021'.

*8i)0. Hanson (o, 015".

«00, over. MiKiel icl. 670»«

6:io<«ld. Mi-Kiel (v.). »:V»

630, leas 3 or 4. MiKiel (c), 071*< .

Julyll.seize<l. Thomas (c.), 1767-, 1779" ' ,3j. Thomas (c), 1767«, 1767«, 1779" 1779»

Aug.-J5. L.MeLean(c.),731> Aug.30. L. McLean (c), 738W 1283. L. McLean (e.), 7311.

•;'{lll^l\''*r'r'i,J''!'^Ll»*''^''^ "Ol- Clarke (c), 1341"

July 30. Clarke (c), 1341«'. , gja (on board). Clarke (c), 1341".

•• i^."8-'5; Heppen (m.). 1378" Aug. 18. Reppcn (m.), 1379"

\\ arned Aug. 13. Keppen (ni.), 1378".

Aut:. 12. Magnesen (m.). 1438"

Seized July 15. Magnesen (m.). 1437".
Jacolisou (c), 1441<*.

■ ■ Aug. 17. Magnesen (m.), 1003>< .
Aug. 17. Jacobson (c-.). 1443'°.

I July 30. W. Cox (c), 756«» Aug. 4. C. N. Coi (m.), 607«.

jAng. 18. Olsen (c), 710«' Aug. 18. Olsen (c), 710»

■ *Aug. 12. Hanaen (c.),616"..

.! 770 odd. Spring (o), 1372'*...
1 771. MosH (c). 1388"
I 730-740. Keppen (m.), 1380«».

418 or 420 bet. seizure. Jacobson, 663» . .
218 liet. seizure. Jiicobson. 6«5<'.
267 bef. seizure. Magnesen, 1437"*.
483 or 485 aft. seizure. Magnesen, 1438".
488 aft. seizure. Jacobaon, 1446'o.

1641. W. Cox (c), 756"

Aug. 25. Keefe (c), 1085«> . . .
Aug. 14. L. McLean (c), 731i.

1812. Olsen (c). 710« ...
1812. Logan (tal.), 714«.

Sept.2. Olsen (c), 713" Sept.2. Olsen (c.),711<....

, Aug. 31. Smith (h.),1488«.

Aug.21. Jacobson (o.),666»' j *Ang.26. Jacobson (c), 1448"...

Aug. 23. Jacobaon (u. 1,1448'".

Ang.15. Coi(c.),767»» I Ang.HorlS. Goudie (h.),677«».

Aug. 15. W. Cox (c), 757".

500-600. Hansen (c), 61*".
431. Report of c, 1876".
765. Hansen (C.I, 1041<3 ....

1130. Bucknam (0.), 706" .
800-900. Keefe (c). 1085«> .
1109. L. McLean (c), 7S0><.

1141. Olsen (c.),710«.
777. Olsen (c), 713".

945. Smith (b.), 148«w

* 1600. Jacobaon (c), 664< .

Aug. 28. Paine (d. h .), 1725'*.

742. Cox (0.), 757". .
709. Cox (c), 757»«.

' Sept. 1. Paine (d. h.), 1725>«.

480-800. Paine (d. h.), 1725".

•About
r CUM, the page, of the Record ; thna, OUen (0.), 1040", meana Capt. Olaeu, witness, page 1040, lino J4.

Ten. 1861».
323 in Kea. Warren, 1873".

Including „p,H,r e„„t „,tch. Mos. (c). i39itt.

Lowering days: 19 out of 23; all In Anim.f
Smith (ni.). Uuo*'. August.

Includes upper coast catcli. Hansen, 618««.

July, 604. L. .McLean (c),748»".
Aug. , 907. L. McLean (0), 748''".
Lowering davs; Julv, 11 out |

of 24. ' r .. T

Lowering days: Aug. and^ *"'^**"

Sept., flout of 34. J

Julv, 1233. Baker (o.), 702'».

Aug.. 5(19. Baker (o.), 702'*.

Lowering davs: July, 11 out of 24. Baker (o.),

7(I2».
Lowering davs: Aug., 6 out of 20. Baker (0.),

702"".

Incladea upper-coust catch.

Lost 3 canoes, Aug. 13. McKiel (c), 671<>.
Lost 3 canoea, Aug. 13. McKiel (c), 673**.

July, 586. L. McLean (c), 731".
Aug., 697. L. McLean (0.), 731'«.
Lowering days: July, 14 out of 18. L. McLean

(c.),731'».
Lowering days : Aug., 18 out of 30. L. McLean

(c.),73r'«.

Stern boat with 3 men in it. Clarke (c), 1119**.

6.10 taken liefore seizure. Moss (c), 1380".
361 transferred to Pathfinder before seizure.
Moss (c), 1389X.

All taken in July. W. Cox (0.), 756<».
tiowering day s : July, 19 out of 28. W. Cox (c.),
75«<'.

Includes upper coast oatob. Hansen (c.), fnd".

Julv. 362. L. McLean (c), 750".

Aug., 747. L. McLean (c), 750'^

Lowering days : July, 9 out of 16. J L. McLean,

Lowering days: Aug., 10 out of 20. ) (c.), 7S0'<.

Catoh unusual. Jacobaon (c), 665<*.

July, 311. Cox(c.),757M.

Aug., 898. Cox (c), 767«».

Loweringdays: July, 13 out of 20. Cox(o.),757««.

Lowering days: Aug., 10 out of 18. Cox (c), 757''.

Ft F

f 1 {'

1 ■ ■

' "/ '

007

(Mr. Lansing's Argument.)

For instance the first vessel in 1880 on the table of vessels
c.'ii lying canoes is the " Anna Beck"; you will flntl the
iiiinibor of her <anoe8. 8, was sworn to by Olsen. The
lettir " c" following the name refers to his position as
ciijitain of the schooner, and you will find that the mean-
ing!; i)f these letters ap|>ears immediately below the title
of file table; after the nam« "Olsen" the reference ia

lofo liis evidence at page l<t4»», line 54, of the Record. As
a fiiither example of the use of tlie table, and to
show the necessity of citing all the evidence, take the
case of the " Blacli Diamond." In 188(5, we have the testi-
ni'iny of her captain, Paxton, that she took "780 or 870"
skins. Paxton, at a later time, states that from this num-
Ix r sliould be deducted 04; and Thomas, who was a hunter
on file vessel, says the catch was "between 800 and 900."
We iiave another instance in the case of the " Minnie," in
l><s!i Von will find first the statement of Jacobsen (to

20 whom reference was made as captain in one of the earlier
(dhniins referring to the "Minnie"), that before seizure
flic vessel took 418 or 420 skins; then again the same wit-
ness testifies that before seizure 218 seals were taken;
tiicu Magnesen. the mate, gives the number before
seizure as 2()7, and after seizure Magnesen says 483 or
4S,"), and Jacobsen, 4S8. These instances show how neces-
sary it is to examine all the evidence in connection with
fhi'se catches, and that the statement of one witness is in-
snflicient, mdess be bases his evidence upon a book or upon

30 some record that he kept at the time that the catch was
made.

I now propose to examine the tables which have been
submitted in the argument for Great Britain, which are,
as 1 have said, between pages 7.5 and 78, and to note what
corrections should he made. In the case of the "Caro-
lena " in 1886, page 75 of the argument, it is stated that
she took 686 skins; the witness Munsie testifies to 684.

Mr. Peters:— 686 are inventoried by the United States
Govi;rnment.

40 Mr. Lansing: —We give both counts in our table, but
you give no credit to Munsie's statement. We find in the
( iise of the " Mary Ellen " that she left the Sea August
•I'.Kh or '?0th, while the date of ending her cruise is given
in the table as August 24th.

The Connnissioner on the part of the United States: —

Yesterday, Mr. Lansing, you gave that same date. Can

vou refer to the Record shewing the circumstances of the

" Mary Ellen" leaving Bering Sea?

Mr. Lansing:— It is found in the Record, page 255, lines

30 ."il and 63. I was asked that same question yesterday, and
1 then referred to Exhibit No. 27, the abstract from the
memoiandmu book of the witness Bragg, which shows
tliatbhe was in the Sea on August 29th; but we have the
oral statement of the witness at the page I have re-
ferred to.

In the case of the "Pathfinder" the British tables
sliow that she took "about 1,400" skins. The statement
in our table is 1,460; and we find, too, that she entered the
Sea .June 6th, and the statement in the British table is

^o'aliout July 1st." Then in the case of the "Theresa," I
tiiid the note "short of provisions"; her sealing ceased
aeiording to the table on the 25th of August, and it is
fair to assume that she was short of provisions, as that date
was substantially the close of the season; to call the atten-
tion of your Honors to the fact was clearly unnecessary.

I ■

i '.

i ,

' <>l|f:*l-

rT-r '•'

V-

•I '

r>(>s

(Mr. Lansing's Argument.)

We find the catcli of the " Adele " given as <.tO(». Tlicio
are two references to her catch hy the witness Hanson, .is
shown by our table, one gives !)"<! and tiie other DOO; hut,
if the Commissioners will examine the testimony of this
witness, at j>age ♦>1,h, line tit! of the Kecord, tluv
will find that m all the testimony he gives in regard to tlic
catches of the " Adele" the U|»|)er Coast catch is inclndcil.
loand the number given by him should not le credited as a
Bering Sea catch alone.

The next vessel is the "Grace," and the British table
states that from " 1,700 to 1.100 " was hercatch in the S.> >.
Now it is very clearly shown by the evidence at page iJmt,
line 10 of the Record, that l.lon was the number she ac-
tually took. Yon will find that fully shown in the tables
I have submitted; in fact all these j)oints are there shown.

The next vessel in the list is the •' Favourite," and tlie

witness referred to is Alexander McLean, but the catcli is

20 from the testimony of Charles Spring, showing cctnchi-

sively that the witness whose name is in the column is nut

reliecl on for every particular.

I also call your attention to the fact that after the dc
tails of the '* Favourite's " experience in Bering Sea, ap
pears a statement in the column entitled "Remarks"
which reads: " Witness called by the LTnited States " I
do not understand why this distinction is made by niv
learned friends between a witness called by the United
States and one called by (ireat Britain. Is it an insiniia-
3otion that all our witnesses gave false testimony^ I could
see that adi.stinction might have been drawn if it bad l)een
said that a man was an interested witness, or one that was
not interested in the results of this Commission. Such a
compaiison would be eminently proper, and I i)ropos(.' to
examine the status of the witnesses who have been called,
to see how many of these are interested and how many are
not interested.

We havi- in 1H8(> on vessels equipped with canoes, the

following men testifying uptm the subject of catch: (Tiie

40 names of witnesses who have no interest in the decision

of this Commission I shall have italicized when this list is

printed.)

Anna Beck Olsen, master of same vessel in 1887

and a claimant.

Black Diamond Paxton, master and a claimant.

Thomas, master of "Black Dia-
mond" m 18S<» when seized.

Dolphin. Moss, master of "Kate" when

CQ warned in 18Ht>.

A. McLean, interested in the seizure

of the "Onward."
Spring, owner and claimant.

Grace Repjjen, mate of "Kate" when

warned in ISHJ).
Warren, alleged owner and claimant
in lH,s7.

Onward . ..Marketirh, mate and claimant.

Spring, owner and claimant.
(3qW. p. Say ward Part owner, mate and claimant.

1887.

Ada... Lundberg, mate and claimant.

Gaudin, master and claimant.

Adele Hansen, claimant as master of

" Wiunifred " in 1892.

0(1!*

(Mr. Lansing's Argument.)

Alliod AdamB Btf agreement and log.

Anna Beck Olson, master and claimant.

Keefe, mate and claimant.
Black Diamond Reppon, mate of "Kate" when

warned in 188!).

Di)li>liin Warren, master and claimant.

Gi a<o Warr en, alleged owner and claimant.

loKato Moss, master of "Kate" when

warned in 1889.
Mountain Chief Jacobson, master of " Minnie " when

■warned in 1880.

Triumph .. Smith, mate of vessel when warned.

\V. P. Say ward Andei-sen, deckhand when vessel was

seized.
Laing, mate when seized, and

claimant.

1888.

Adole - Hanst-n, claimant.

Black Diamond Smith, mate of "Triumph" when

warned in 1889.

Favourite L. McLean, not interested.

Juanita Clark, master of same vessel when

seized in 188!».

Mountain Chief Jacobson, master of " Minnie" when

warned in 1889.

Pathfinder Rejtpen, mate of "Kate" when

warned in 188!».
^ Thontas, master of " Black Dia-

mond "when seized in 1889.

Triumph E. C. Baker, owner and claimant.

1889.

Allele Hansen, claimant.

Beatrice McKeif, nut in te rested.

Black Diamond Thomas, master when vessel was

seized.

Favoinite L. McLean, not interested.

■*°juanita Clarke, master when vessel was

seized.

Kate Spring, ownei' and claimant.

Reppen, mate when vessel was

warned.
Moss, tnaster when vessel was
warned.

Minnie Magnesen, mate when vessel was

seized.
Jacobsen, master when vessel was
' seized.

Sapphire .. W. Coj\ not interested.

W. P. Say ward Olsen. master of "Anna Beck,''

1887, and claimant.

18S)0.

Adnii' Hansen, claimant.

Alii] Bucknani, master of the same ves-
sel when seized in 1889.

Beatrice Keefe, mate of " Anna Beck " when

"° seized in 1889.

Favourite L. McLean, not interested.

Juanita Olsen, master of "Anna Beck" when

seized in 1889.

Katheriue Smith, mate of "Triumph " when

warned in 1887.

II I.

:^i! \\i

jprr'"'

*(IU

(Ml. Liinsin^'s Argument.)

Minnie Jacobson, master of same vcssol

when seized in 1S89.

Sapphire Tr. Cox, not interested,

W. P. Say ward Paine, not interested.

Then we have the following vessels L'quip|)ed with boats
and the witnesses who supphed the data relating to tlit-in:

1886.

Adele Hansen, claimant in " Winnifnd "

case.

Mary Ellen Brcunj, not interested.

Pathfinder Munsio, claimant.

0'L»'ary, master of the same vessel

when seized in 1889.
Byers, hunter on same vessel wlun
seized in 188D.

2oTheresa Ramlase, hunter on "San Jose"

when seized in 1887.

Thornton Dallas, cook on vessel when seized.

Warren, alleged owner and claimant.
Vanderbilt Meyer, not interested.

1887.

Allie I. Alger Raynor, not interested.

Favourite McLean, not interested

Mary Ellen A. McLean, interested in the .seiz

30 ure of the " Onward."

Steele, not interested.
Folger, not interested.

Mary Taylor McKeil, not interested.

Pathfinder. Munsie, claimant.

O'Leary, master of same vessel when

seized in 1889
Byers, hunter on same vessel when

seized in 1880.
Thomas, master of "Black Dia-
40 mond " when seized in 1889.

Penelope Miner, not interested.

Vanderbilt Meyer, not interested.

1888.

Annie C. Moore Ramlase, hunter on "San Jose"

when seized in 1887.
Hachett, not interested.
Viva W. Baker, not interested.

50 1889.

Annie C.Moore Ramlase, hunter on "San Jose"

when seized in 1887.
Hackett, not interested.

Ariel Bucknam, master and part owner of

vessel when warned.

Maggie Mac Ker, not interested.

Bragg, not intere.nted.

Mary Ellen Brown, not interested.

A. McLean, interested in seizure of
60 " Onward."

Mollie Adams ...... Goudie, not interested.

Pathfinder O'Leary, master when vessel was

seized.
Byers, hunter on vessel when seizi'd.
Tliere.sa Bissett, not interested.

oil

(Mr. Lansing's Argument.)

Triumph E. C. Baker, part owner and claim-
nut.
Viva W. Bdkei; not interested.

1S1>(>.

Aiuii<> C. Moore Hackett, not interested.

K. 1^ Marvin McKeil, not iiitere.ifed.

loMfiKf^ii' Mat^ lirown, not interested.

Ker, not interested.

Oo.iii Belle Sieivard, not interested.

I'liiclope Folijer, not interested.

Sen laon ... . . Magueseu. mate of " Minnie " when

seized in 1SH}».

Tlii'K'sa Steele, not interested.

Tiiiiiiipli C. N. Co.r, not interested.

Hnmlase, hunter on "San Jose"
wiien seized in lss7.

-,oVivii ir. linker, not interested.

Wiiltcr L. T;ich O'Leary, master of "Pathfinder"

when seized in 1889.

'Ur

1 f f '

■■ Un

■ , * .'

" '•lOlvf^

¥,■

'( i*

There is this noticahle p<}culiarity ahout the year 1 S90, that
thiMf are more disinterested witnesses in that year than in
,iiiy other, while in 1H!»0 the catch testified to is much smaller
tliiiii in any other year. Now, I submit, that if there is a
distinction to he made it should not be made as to whether
a witness was called by the United States or by Great

3oHiitain, but whether the witness was interested in the re-
sult of his testimony or not. The evidence regarding
catclu's which has been i)roduced by Great Britain isnine-
ttntlis of it by witnesses who are interested; and from
that fact alone these tables should be scrutinized with the
utmost care, for we find that where an interested witness
{;ivf.s testimony twice concerning any catch it is much
l;irt;er in his direct-examination than when he is cross-ex-
aniiiHHl, and the number is substantially reduced in several
instances.

40 In reviewing the tables submitted in the British argu-
ment I had considered the " favourite " in 1886. The next
vessel to which I wish to call your attention is the "On-
waul," and the witness relied on is Marketich; a cor-
rection was made in oral argument changing the catch
fidui 400 to 907. I have referred to the statement of
Marketich that the catch in the Sea was between 400 and
;VMi, which is found at page 71, about line 60 of the
Recoid, and the increase of the figures is therefore un-
WMiranted.

jo Tile next vessel is the " Black Diamond," the last one
on the list for 1H86; the date of sealing is given from July
1st to August 4th, but from the evidence of the witness
Thitnias, which is found at page 1774 of the Record, line
<'>4. you will find that the vessel left the Sea between the
10th and 15th of August.

In the table for 1887 the first vessel is the " Adele,"
which is under the same criticism as the " Adele" in other
years; that is, that the number given for the catch should
Udt ho credited as all taken in Bering Sea. The next is the

60" Mary Taylor." The period given for the commencement
of lior season is June 25, but we find by the testimony of
M( Keil that she entered the Sea on the 24th.

Then we have the statement regarding the "Mary
Ellen " (A. McLean is the witness), and we find that she
left the Sea August 20th or 21st instead of August 19th.

'V ll

\' ■

i'jiA J.

eta

' a*-' ■)

(,Mr. Laiisiug's Arguiiiont )

The '* Favourite" follows, hut no nuinlwr nppoarn in ilio
column of hontH oi- cano*>s. \Vu find on uxnminiii^ tli«
Re<"ord that she carried fivehoats. Her catch isalso j^ivcn
as 1,HK4 while in fact it was l.«iH4— a difference of 200. TIk,
reference to tlie Hve fHiats is Record, pajje 732, line H, ami tn
her catch. Record, page 7^. line «U. and Laughlin M<.;l,t;iii
is testifying there from his sealing hook.

lo The next is Ravnor's testimony in reference to llic
" Allie I. Alger." Thereare no sealing dates given, hut .in
examination of the tallies I have suhmitted shows that
the sealing period of the "Alger" was from July t!||i ,ir
7th to August 24th. and the catch instead of 1.58(1 slmiild
have deducted from it .Vio; the British tahle gives " ."xio in
the Sea." hut it was in fact 50(» on the coast and tliu
Bering Sea catch was l,os«t.

The next vessel is the "Triumph," and we And that lur
sealing period is given fioni August 7lh to August 2,')tli,

2o while as shown hy our tables here, her fiist "lowering"
day was August Mh.

Then wo have the " Bla(;k Diamond," with the ffsti
mony of Reppen, and the statement is made that the catdi
was about l.OdO, hut from Repi)en's statement (Retoid,
1384, line 3), the catch is shown to be 907.

The next is the " V'anderbilt." The sealing dates givin
are from July 4th to the 25th. and then under the coliiiiin
of " Remarks" it appears that she left the Sea onSepttni-
ber 11th. From the statement made by the learned senior

30 counsel on behalf of Great Britain at the tinje when ho
submitted certain calculations on catch it ap|)eared that
all these were based on the (piestion as to when the vessel
entered and left the Sea and not as to the days when she
first and last "lowered." The period of sealing sliouhl
therefore be continued until September 11th.

As to the "Alfred Adams," we find that there was an
agreement that the number of canoes she carried was Kt.
The reference relating to that is found at page IHtiO, line
50 of the Record. Wo also have her fii-st "lowering

4oday," July !>th. Now there have been omitted from tiiis
table for 1S87, of course, I presume, intentionally, because
the data was considered of little value, the " Peneioiie,"
the "Anna Beck," the "Dolphin," the "Grace" and the
"Say ward." These we have inserted in our tables.

In 188!t we find the catch of the" Viva "entered as l.t'.ti.s,
which was corrected to 1,539, at page 721, line 48, of tiie
Record.

Then we have the " Favourite" credited with 13can(u\4;
while she in fact carried 11 canoes and two hunting beats

50 (Record 747, line 51).

The next vessel is the "Annie C. Moore" with a period
of sealing given from July 6th to August I'Hh, although
we find in tiie Record it was stated as from July 2<>lli to
August 22d. Her catch is given as 800. and Hackett says
"nearly 800 " and Ramla.se. "about 700."

The next vessel is the " Triumph," and the table gives
her sealing period from July 7th to August 20th; these are
the first and last "lowering days." The next is the
" Juanita" and there are six boats credited to her. She,

60 in fact, carried six canoes and one boat with three men.
There are left out of these tables for 1888 (and the data
concerning them is as comj)leto for that year as any
other), the "Adele," the " Black Diamond," and the
" Pathfinder." The " Pathfinder" left with 560 skins on
board, as shown by the testimony of Thomas, Reconi
1771, line 66, and 1778, line 65.

(Mr. I.Ansing*s Argument.')

In 1880 wo have the " Mary Ellen " with her period of
8(Mliiin given as from July 5th to August 25th, while in
f.ic t she entert'd the Sea July 3d and left on August 2Hth.
\\r have tlio " Anniti C. Moore" — thti end of her sealing
|it'ii(iil iH given as August l*tth nnd she loft August 22d;
mill t ho " Minnie's" sealing stated as ending on August
121 li, while in fact she left the Sea August 17th.
10 Tlio " Ariel " is next; no reference is made to the canoe
that was picked up hy her and used for sealing; her period
is nivon from Julv 14th to August IHth. She entoro<l the
Sf.i .hily 11th and left August 21st. Then wo have the
'•\iva"; the hogimiing of hor season is given as July
tltli. while in fact it was July 4th.

Tlie dose of the " Favourite's " season in 1KH» is given as

Aii^'iist 2.'>th, while she loft the Soa on August 3uth; her

cntrli is given as 1,305, while in fact it was 1,383; this last

iMiinhor is from the testimony of Laughlin McLean, as he

2os;ilis((|uently corrected it from his sealing hook.

Tli( "Sap|)hire" closed her season, according to the
taWlfs. on July 30th, while the Record shows that she left
on .\ugu8t 4th.

The next vessel is the "Theresa." and there is no date
given for the close of her sealing season, hut at page 776,
line 14. we find that she loft the Sea on September 3d.

'I'lio witness Moss is cited to show the " Kate's" season
was from July 28th to August ICth, while according to
tlif evidence she entered the Soa July 11th and left August
30istli. The " Mollie Adams" is left out of this table for
iss;. She had 12 hunting boats with two men in a boat,
while the full data of her voyage are given. The "Adele "
is a^,^'lin omitted and also the " Black Diamond."

In the 18!»0 table the " Annie C. Moore " is credited
with <;anoes hut we find at page 059, line 46, of the
Ki'cord that she cairied six boats

Then the "Minnie" carried, besides hor eight canoes,
which are in the table, one hunting boat for which no
(led it is given, the reference to the Record is page 663,
40 line <i:{.

Tlie "Maggie Mac," it is said, carried six boats, while
in fact she carried five, as is shown by the evidence of
Brown, one of the hunters on board, page 653, line 50, of
the Record.

Then the " E. B. Marvin," formerly the "Mollie Ad-
ams." loft the Sea on September 2d (Record, page 672,
line 2^), instead of August 30th, as shown in the British
tahlu.

As to the "Juanita," it will be seen that the actual
JOcatch as given at page 713, line 32, of the Record, was 777,
instead of 1,141.

Then we have the "Sapphire" with her hunting period
niven from July 15th to August 15th, while it was from
.Inlv IL'th to August 15th, and the catch instead of being
74'.'' was 70J).

The " Theresa " is credited with a catch of

4.M1 instead of 400; and in the case of the

"Allie I. Alger" we have shown that hor catch

indmlos the Upper Coast catch and there is n jaling

*JO(late };iven.

Tlu! table for 1890 does not include the " Favourite,"
which, with seventeen canoes, made a catch of 1.109, and
we have her full data (Record, p. 750). The " Katherine"
is also omitted. She carried eleven canoes, was in the
Sea from July 9 to August 31, and took 945 skins in the

n.i

«'

■?

;

■ji i)

ill

014

(Mr. I^msing'H Art,;unu>iit.)

Sen. The refer*" nco to tliu " Kutlicriii«>" irt pnno Nhi; ,,f
thu Kecoi'd.

Now, I Huhniit that tli«>8H talilcH cnniiot hvi rt'liod ii|h,ii
an Kiviiig (-(Mivct *lalii in rt'^nrtl to theso v«-8h«(Is. '\\m
numt ncTiiiatt) Htat«>iii«>ntH aroin ii'Kiird to tho yt>ar |o>i;,
nn«l yet out of the v«'khc1s H«>aliii(; that year (thrrr no
fifteen) ronectioiiH hIioiiIiI ho math* in the data of h*>vi'ii df
lothi'Mi. In th«> tattle for Ims" correctionH shmiltl iif iii,i<|i>
for all hut three; whiitt in IshS all hnt ono ar<> im-di tx I.
Afl to IN81«, eorrectiono Hlioiihliio made in all lint tlnvo,
and aH to lhl)o, in all hut «>i^ht. I appreciate that it Ih
tediouH to review these finniew, hut my U'ainod fiicnds
will i'lincede that no ralciilations can he made ntilcHs \\h>
data are accurate.

1 ne.xt call your attention to thu computation jtrcscnt. .]
hy tho senior counsel on lu'lialf of (Jreat Mritaiii. .uiil
which is to ho found on pages {\)i to :sr> of his oral ai^ni
soment.

In the first place I would make the (renerni statenniit
that these culcniations are evidently liasod on the tallies
which I have just heen cousiilerin^ and which are kimi-
roneous that the Unitt>d States conceive that the leaiiicil
counsel's computations should he thrown out hfcausf df
that fact, if for no other reason; hut these errors will
be 8till more apparent if we examine his figures in de
tail.

For instance, in the tso of the " Carolena," we find

30 that she entered tlie <i on tho HUh June, and cdiii-

puting, accordinj; to \ at my learned friend atKriiii'd

was the methoti of calculation employed by him, that is,

from the time of entering

Mr. Peters: I distinctly stated that the time of c!\\n.
lation was from the tir.st of July; we claim that tlwio
was no sealing until then; I did that in practically all tlio
cases.

Mr. Lansing:— Very well, then, I will not criticize tho
"Carolena" figures snice they are based on assumptions.
40 As to tho"Maiy Ellen" tho calculation from the first
July is substantially correct, except that my learned friend
includes only the 24th August, whereas he should calcu-
late until the tiStth August, the day when she left the Sen,
and that would reduce thti daily average to about H skins
per boat. We have no iuforniation as to when the " \V.
P. Sa'-ward " left the Sea, so it is necessary to compute to
her last " lowering day," which is done correctly, I think.
There is also this to he said in regard to these calculations,
that they are in " round numbers," and do not show tlic
50 results exactly, and your Honors can see that a fraction for
a daily catch would amount to a considerable number of
skins in a season.

Then in the case of tho " Pathfinder " we And that in the
division in the first column the result should he 41 instead
of 42, which would make tho final result 8.20 instead of
8.40.

The calculation for the "Theresa" is substantially cor-
rect. I have already spoken of the " Adele," and shown
her catch includes the V pper Coast. The " Grace's " catch
60 is assumed to be 1,7U0, while the testimony of the witn;'ss
lieppen, at page 309, line 15. of the Record, and he is not
contradicted, shows that (iOO of these skins were taken
along the coast on the way up to the Sea. These, there-
fore, should be deducted, which would change the dady
average per cauoe from 4 skins to 2.27. Then the "Fa-

(Mr. iinnsiiij^'H AiKtiriiciit.)

V .Miiti' "<'ntei«'(l tlio S«'ii on July •Uli or "th, vvliicli woiiM
IIP I't'iiMt' tluMlayH ill wliirli sin- Ht'iilfd fmiii :<<,) to 44, and
w iild uivu iiiHli'iid <d' •>. |i> |MT diiy, 4.*!:i.

Ill Imt ciiHi* of tlio " Viindfiltilt," tln>n' w an tTior of

tliii'f diiVK: it Hhoiild Ik* »>I itiHtt-ad of 5^. That would

I li.ui^o her Dkum'h from 5 to 4.4o |K>r day |m>i' boat. In

til" casd of tilt' " Anna Heck " tlu-i*- is alsi> an error of

i,.llii('i> days.

Mr. l'ottr«: -Flow do you nmko that t-rrorJ

Mr. LainiiiK: Wf liavf tin' " Anna Hock " in iHSrt on-
1.1111^; the Ht'a July 'Jnd, and leaving;; tlif Sea Aiif^iist 'ilHt.
Thil is 4N days, instead of 45 as you liave assumed. 1 am
mil taking tlie data from the tahles in tliu British aii^u-
iiii id, hut from those wlueh I have siihmitted and which
Mii'correct, while as 1 have shown the former cannot he
i. lifd upon. Tin; " Onward " ralcnlalinn is Hulmtnntially
nTicct, as the skins have hceii reduci>d in the printed
:, tiilile to 4(»» from !••••> as they appeared in tho typewritten
.(i|iy (»f my learned friend's computations.

The "Thornton " entered the Sea July 2nd, and was
xi/fd August 1st, making thirty one days in.itead of
twenty seven. That correction woiilil (thaiige her Itoat
average from "aitoiit four skins" per day to 3 2.'». Tlio
■' I'.lack Dianionil " entered the Sea July 1st, and left An-
^iii'-t null, a sealing period of 44 days instead of 34 days.
iliat would <hange the result from 2.44 to I.kh per canoe,
ill the case of the " Mountain Chief " there is an error of
; lliii e days; clianging the tigures in that particular makes
theiesult 7.6" instead of H.7S.

Ill tlio case of the " Patldlnder " the catch is given as
•-'.'JIM*, while William Miinsie testified that he received
fhiiii the ves.sel on her return from MeringSea l.SCdi skins.
His evidence is found at page IIH, line 27 of the Record.
I'lii'ii there should he .M days of sealing instead of 50;
these changes would reduce the daily average per boat
from 7. U.I to ('>. The " Adele" includes Ih* Um>er Coast
citch, and should not be considered: The " Aaa" is sub-
4os;;iiitially correct.

The " Mary Taylor " entered the Sea June 21st, and
Itlt the last of July. I have computed it on the basis
tint there was bunting in June for the reason that Mr.
!'< ttrs appears to have included that month in his first
I'.'ilciilation for this vessel, and further because the
" .Mary Ellen," the typical vessel of my learned friends,
toiik seals in June; and the assumption that there is no
>!r;iling in that month is purely arbitrary. This correc-
tmn would reduce the average of the "Mary Taylor"
V fniiii 4.2i», to !i4(i. There is alsoan error of three days in
tlic second coniputation, which purports to leave out
luiie, which would reduce the figures from 5 per day per
l)(>:it to 4.40.

Ill the case of the " Kate" the number of skins is given
as 1,800, while in fact si ■? only took 1,650 The authority
f(ir this change is the testimony at page 13J>3, line 15 of
tilt' Uecord. She entered the Sea July 11th, and left Au
^Mist 25tb— 4t» days instead of 4<»— and we find that in-
stead of 4 skins per canoo the average should be 3.27.
6oAs to the "Mary Ellen" in 1887 there is an error of
two days, making the final result 7.33, instead of 7.88.
Tilt 11, in regard to the " Favourite,'' we (ind she entered
til" Sea July 8th, and left September 5th a period of 60
ilays. She is credited in my learned friend's computation
with 47. The calculation is based on an assumed number

:::tl

H (,

i^^

r>i<i

(Mr. Lansing's Arguinont )

of canoos, wliilo we liave diitct evidence that sheranic ;
five boats. Tliat would give hev instead of 4 per day pn
canoe (! 20 per boat.

Tben follows another coinputatioii for the " Ada." \\ ,
have already had one giviiifj; an average of 5.r»2, while tin >
gives (■>. 42 The first one I stated was snbstantially coi
rect, lint the latter one is entirely in error. It show-
lohowever, that my learned friend has had some ditti(uli\
in agreeing with his own fignres.

Then the next vesspl, the "Trinniph," entered the S( a
Augnst Sth, and loft Angust 2r)th, 21 days instead of Is, ;i^
given in the calcnlation which I am discnssing. Thai
changes the resnlt from t>.7!'t to 5. The " Black Diamond "
entered the Sea July 1st, and left Angnst 15th, 4») diivs
instead of IT) days, as appears in the learned counsil-
compntation. Changing the fignres accordingly, we liavr
a resnlt of 2.62 per day pt-r canoe, instead of S.22.
2o The " Vanderhilt " is credited with r>t> days, while in
fact she was in the Sea nntil September 11th, <)!>days, aiiil
that wonld change her daily boat average from 4.4 to 3 r.
The "Alfred Adams" is given a catch of 1,3S2. We lio
not know whether these skins were taken outside the Sia
or not, but presumably a large number of them were. In
regard to the "Favourite," we find that her Behring Sea
catch, as given finally by Laughlin McLean, was l,i)0l,
and in this computation it is put down at 1,S34. She was
in the Sea from July 8th to September :Ul, making ri>^
3odays, which wonld change the figures from 2.70 to 2 07
The "Annie V. Moore" is substantially correct. In tiic
case of the "Mountain Chief," there is an error of one
day, which would change the result .(•2 and an error of oni^
day in the calculation of the average of the "Triumph"
changes the result .OS.

In the case of the "Juanita" there is an error. She
carried si.\ canoes and one boat, which was used for hunt
iug as much aiithe canoes. That would change her ti^'
ures from 4 per day i)er canoe to 3. 4:5. Krinu this calcii
4olation in Ihsh, there is omitted the " I'athfinder." Slic
carried s canoes, and went into the Sea at the beginnini;
of July, and remained tlure until August loth, 4<! day?,
taking ."itJO skins, which would make her average per
canoe 1.5. The facts relating to her voyage in 18S.s aie
given by Thomas, who was mate on the vessel, at paj^^e
1771, line fit!, and page 177S, line fi<i of the Record.

In ISSlt the "Mary Ellen '' was in the Sea from July 'M
to August 24th, 57 days instead of 51, which would
change her figures from 4 skins pet day per boat to ;J.tl3.
5oTli« " Annie C. Moore" was in the Sea4H days, instead of
41, as in Mr. IVtcrs' computation, and that would change
her figures from 5.M:$ to 4. .50 jicr boat. The " Miniiii "
was in the Sea fiom June 27th to August 17th, 52 (l.iy>
instead of 4:5 <lays, which would change the result fnnu
1.7!» to 1.44 per canoe. In the case of the "Maggie
Mac" the figures are practically correct.

The "Beatrice" was in the Sea 4s days instead of 4ii,
and her catch was fi27 seals instead of (i'M). She carried si.\
canoes and one hunting boat, whicli by the method of com
Coputation used l)y my learned friend should be counted !i> 7
msteadof (>, and that would change the daily average fnun
2.fi2 per canoe to 1.S5. The "Say ward" calculation 1-
apparently correct. The " Viva" was in the Sea 4i» day-
instead of 46 days. Her catch was 2,178 instead of 2,1>".
which would change tlie result from 8 per day per boat tn

in;

(Mr. Lansing's Argument.)

7,;!;; The "Favourite" was iu the Sea from July 14th
to A ij^iist 30th, so tliat her seahng period was 48 instead
of 1 ' tiays, and lier catcli was 1,283 instead of 1,305. She
caind It canoes instead of 11, which would raise the
av.i if;e from 2 72 to 2.88.

Tlir " Sapphire " was in the Sea 32 d.ays, and that would
cli.iii^o lier figures from 4.20 to 3.40. In ttie case of the

10 ", Jiiaiiita," tlie vessel was in tlie Sea 30 days instead of
•)<. and her catch was 601 instead of 620, which would
cliaii;;e the result from 3.14 to 2.8,5.

Till' "Ariel " carried 6 boats and 1 canoe. She was in
tlif Sea 41 days instead of .15, and that would change the
average from 4 per day to 2.85. In the case of the
" Pailitinder," her sealing period was from July 1st to
Aut;i:st 4tli, 35 instead of 28 days, and that would change
hoi I II 'at average from 6 per day to 4.8. It is stated
l)v inv learned friend that the "Theresa's" dates are

:oiiiil ^'ivcn. hut that she took (ioo skins. According to the
wiliiiss Bissett. pnge 774, line 47, and page 776, line 31, of
tlio l.'irord, she carried 6 boats, and was in the Sea from
Jiilv tth to September 3d, 62 days, and her catch w.asO'.O.
Tli.ii liives her a daily average per boat of 1.66. The next
two in this list are substantially correct.

riu' " 1^1 oily Adams" is on)itted from the list of 1889.
Sill' carried 12 small boats, according to the testi-
niiMiy of Laughlin McLean, found at page 736,
lino 17, of the Record, and she ent»'red the

wSta ImIv 4t.h, and "lowered" last on August 25tli, taking
aliiHil 1,100 skins. I find her daily average, per boat, of
tun null ill a boat, to be 1.66, whih' the " Mary Ellen's"
avii.ii;*' ill 18S6 was 8. Now I submit that upon these
tiiiiui's. offered by the senior counsel for Great liritain,
lit 111' icliaiice can be placed as tlieyaie one mass of errors.
liic Commissioner on tlu' part of Her Majesty:— Ac-
r.nlni^' to your figures what was the average of all of
tlii'ni together?
Ml'. Lansing:— I have not figured that, nor do I con-

40;-iiloi that it would be of any value to your Honor, because

tlii-e catches were made at different periods of the sealing

' a-oii, and, tlierefoie, a correct computation cannot be

iiiailf which eliminates the time when seals were taken;

Wll

iter explain this more fully.

I now call your Honor's attention to the Hguies as
lioi'' I nrrected. In the case of boats in issii, we have the
liiilowmg daily averages: 7.2; s.2; 4.4; 3.25; 1 S8 and 7
sliiiis. How clearly im|iossible it is to select one of these
VI- --ijs as typical of them all. And yet my learned friends

jo has r selected one of them, and they have taken the one
Willi the iiighest average. In 188S, we have daily
av.ia.nes of canoes, 2.07; 4.6; 3.33; 3.43 and 1.5. There is
III anie wide variance in that year. There appears to
111 no rule, no measure. In the case of 18.S(>. we have
av 11 am> daily catches for canoes of 1.44; 1.85; 3.33; 2 88;
li.ln; •_'.S5 and 5.55. in the same yeiir the averages for
lioils are 3.66; 3.83; 7.33; 2.85; 4.8;'l. 66 and 1.2.

I -iiliinit that these results show that the variations
are loo great to permit the use of one of them for any

•^^^li I I- of computing a |)iobable catch. For instance, if the
■IV. ia};(' ranged from 7 to !• skins for a boat, there might
I r onie measure by which it could ho computed, Imt here
i-- a laiige. in 18«9. from 1.2 to 7.33. One vessel is six
tiiihs iiKiie successful with her boats than another, also
ei|i i|i|ie(l with bcrits. And it is the same way with

<i''^-

1(11'

■I i,

m^^md

\wr^w:!iWW'

618

(Mr. Lansing's Argunieut.)

canoes; we find one canoe with an average of 1.44iiii(l
another with an average of 5.55.

There is another fact I should call attention to in tliis
connection, and that is that all the figures used for 1 1 if
basis of a computation by my learned friends leave out Hie
data for 1S<»((. They omit all the facts relating to I lie
catch ill that year except one, and that is those relating
10 to the closing of the season. They use them in endeavor
ing to establish the fact that there can be successful S(m1-
ing in Sei)teml)er. We can assunie, they say, that if in
iJSSHi the majority of vessels remained in the Sea until i.iir
in September, that such a thing would have been possible
in other years. When I come to the (juestion of the diiia
tion of the season, I shall refer to the actual figures for
lsi»(>. But I submit thiit it is not fair for my learned
friends to leave out of their computation tlie catcli ut
IMito, for the reason that it is a small one, and enlarge the
20sealing season because the vessels stayed in the Sen ,i
longer time because the catch was small. If they throw ( mi
iS'.Mi in one jiarticular. it should be thrown out altogetlin.

But if tht-y throw out IS'.tO. they have not an iot.i nl
tfStimony upon whicli to stand in their attempt to ext. mi
the si'aling senson beyond the 2r)th of August.

On what ground do they endeavor to strike out llie
ye.u' ISitd^ ()n the ground that it was a bad season. Ami
yet on exarniniiig the Kecoid we find that it was (iiv.it
Mritain thiit first ofi'ered the evidence as to ISitU; i| u,is
3otireat Britain that insisted on the reception of tin- ( vi
denct relatmg to that year; and it was the United St.ilis
that objected. The first witness c;dltd with regaid to
that year was C. N Co.\, and he was (piestioned in liis
direct-examination concerning his catch. Then Hansen
was examined. Then in the case of the " Maggie .Mar,"
tlie United Slites. in cross-examination of the wit
ness Brown, who was sworn on behalf of Great Britain,
drew out the daia with regard to that vessel in 189(1. TIku
the witness Hackett. in his direct examination, wasaski'd
4oas to that year, ami Jacobsonand McKiel, all witiie.ssts on
behalf of (Jreat Britain; and then Bu( knaiu was cross ex
amiiied by the United States as to the catcli of the
"Arid" in is'tit. Then w(> bavi- the British wilmsses,
(Hseiiand W, K. IJaker and Laughlin McLean and Cox,
all asked in their direct-examination as to their catches
in ISIKI. And now having introduced that evidence, my
learned friends end'avor to escape the results.

! submit that they should be bound by these data
for isiKi; that tiiey should not iu)w j>lead that it was
50a poor season, aft 'r having iiuioduced the testimony
them.'^elves. Furthermore, the evidence is not conclusive
that it w.is a bad season. We deny that it was, and
sve submit to your Honors the evidence on which we base
our denial. My learned fiiend, Mr. Bodwell, refers to thi'
testimony of William Cox, vxlio says that it was had
weather m July and August. He was the mxster of the
"Sapjibiie "' in IS'.Mi. and you will find his statement at page
757 of the Kecord, line 51. The witness Brown states tlie
weather was not very good. McKiel also, at page (u'2. line
60 m, when asked what sort of a sea.'^on it was in 18i>0, replied,
'A very poor season, it was stormy, and there was too
much wind to hunt in July and the first part of August "
He added, there was some fine weather afterwards, lie
was then asked: -'•i^. But you did not happen to get the
seals? A. I did not find lluMu."

Tl It'll

IS asked

'sscs on

[iss ex-

of the

iit'ssos,

il (.'..X.

•;itcli('s

ICl', ll|V

619

(Mr. Lansing's Argument.)

We have the testimony of Olsen, a witness relied upon
ill so many instances by Great Britain, who was master of
the " Juanita" in 18i)0. On pa<ie 711, linei), of the Record,
where he was asked this question:

" What sort of wenther lia<l you in 1890? A. Well, July was very
■ ' f{tir; veil, in the liitter end of it. In the hitter en d of A ugnst, in fuel the
■'irhole 0/ August was prettj/fiiir, but the seals were kind of scarce at
"the time."

Wo have theevidenceof Captain 0'Leary,\vho, on cross-
examination, at page 770, line .51, testified:

•' Q. Was there anything nnuMunl about the trip of the ' Walter L.
•• Hich ' that year, 1890, in Uehriug Hea; i/i<i you lower your hoots about
•' /he same (IS you did in other seasons ? A. It iris almiit the same; I did
• not ftud the seals quite so plentiful as thej- had been."

And then on rcdirect-examination he was again ques-
tioned with legaid to this matter (page 773, line 38 of the
Hi'cord):

'• Compare 1890 with 1889 or 1886 or 1887; state if 1890 was a good
" year? A. No, I did not see the seals so plentiful in 1890.

'" Q. How was it so far as the weather was concerned? A. The
•• iri'iither was fair; very good weather."

We have the testimony of Captain Steele at page 1079,
line tl7. speaking of lSi»0:

" Q. And you only got 450 seals? A. That is all.
■• Q. You were not lucky that year? A. I did not get many seals.
•• Q. What was the weather like? A. The weather was fair, pretty good
iieiither. I do not revieinher what it was in July, hut in August it was
pretty good weather."

There is also some fuither testimony upon this point; for
instance, that of the witness Keefe, at page 1085. line 56.
Ho says that in Jnly the weather was had. that they got
most of their seals in August, but the weather was not
fine. But what was his experience as a sealer^ He had
never been in the Sea before, except for two days, when
he was mate of one of the vessels seizi'd in 1887. He had
not sufficient expeiience to judge whether it was good or

40 bad weather for Bering Sea. We have the testimony of
tlie svitness Smith, which is also relied upcm by my learned
friend, and he states that it was rough in July; and the
witness Paine, at page ll'liS, line 37, states that it was
itnd weatiier " off and on." Of course, that is the experi-
ence of every man engaged in sealing, that it is bad "off
and on "; all the evidence goes to show that.

Tile evidence is sufficiently contradictory upon this point
to show one of two things: Either that these witnesses
could not remember what the weather was (and whose

50 memory was at fault) in that year, or else there are zones
of lair weather, where a vessel will experience for the whole
season good sealing weather, and zones of bad weather,
where a vessel will have substantially v.'ind and a rough
sea for the whole season. If the latter is the case, your
Honors in order to estimate the catch will have to find
where the good zones are; and whether or not it is prob-
alile that a vessel would have stayed in those localities for
a given number of days.
I now wish to call attention again to these computa-

fiotioiis made by the learned Attorney-CJeneial, at jmge 32
of his oral argument. And I desire to submit, as I
slated in reply to his lordship, that this computation can-
nut be made at all without taking into consideration also
tlie period in which the sealing was done. For example,
oil that page you will find that the sealing for the

j i

02(1

(Mr. Lansing's Argument.)

"Pathfinder" in 188(5 was from July 1st to August 4th,
while the " Vanderbilt" sealed from July 2d to August
3l8t. The latter was i.i the Sea the entire season, while
the " Pathfinder " only sealed the first part of it, which is,
presumably, the best part, because we find the result of the
computation is that the " Pathfiudci " has a daily aveiage
of 8.2 skins per boat, while the • Vanderbilt" had 4.4. or
loabout one half as many. I have, therefore, taken my
friend's typical vessel, the " Mary Ellen," in 1886, and
compared her daily average with each vessel, from
1886 to 1890, for the same sealing period, and the results
I submit in the following table:

Table "O."

Table Showing the Hunting Power of Each Boat or
Canoe on Sealing Vesseus in the Years 188fi-i8ito,
2 AS Compared with the Hunting Power of a Boat on

THE " Mary Ellen " for the Same Days in 1886.

1886. Boats.

Pathfinder ^

Tlierosa 6

Thiirnton 4

VBnUiTbilt 5

Canoes.

Anna Beck 8

30 Black Diamond 9

Carolcnn 4

Dolphin 12

Favourite 11

(•race II

Onward 9

W. P. Say ward 8

1887. Boats.
Allie I. Alger .... fi

Fuviriirili' 6

Mary Kllen 6

Marv Taylor 5

Ptttlitinder 6

40 Vniiclerbilt ('>

Ada 8

Alfred Adams 10

Black Diiimond .... 8

Kate 11

Mountain Chief ... n

Triuinph 4

1888. Boats.
Annie ('. Moore ... tl
Viva B

Canoes.

Favourite 13

.Iiuinitii 7

50 Moiinlnin Chief .... (1

I'alhlinder 8

Triumph 12

188il. Bouts,

Annie C. Moore. ... ti

Ariel 7

Majfijie Mac 6

Mary Kllen li

Molli<! Adams 12

I'lilhfinder r>

Theresa 6

Triumph 8

Viva fi

(5o Canoes.

Beatrice 7

Favourite

.liuiniln 7

Kale 8

Minnie 10

.Sappliire IB

\V. I'. Say ward 18

Mary Ellen's

Hunters.

Hunter'

! Average.

Hunlin!; Days

Catch.

Average

Same period

in Sea.

per Day,

in 1886.

.lulv 1 Aug. 6.

1,400

7.B6

8.36

.Iune28-Aug. 2.i.

2,000

6.81

8.11

.luly 2-Aug. 1.

403

3.25

8.98

July 2- Aug. 30.

1,34B

4.48

7.34

July 2 Aug. 21.

1,141

2.79

8.36

July 1-Aui{. 13.

716

1.86

8.70

Jidv 1-Ausf. 1.

684

5.61

9.68

Julv 'i-Aug. 12.

2,037

4.04

8.89

July f) Aug. 111.

2,259

4.56

9.21

July 4-.\ug. 15.

1,166

2.46

9.03

July 12-Aug. 1.

July 0-Aug. 24.

1 ,596

3.21

8.79

July B-Aug. 24.

1,186

3 96

8.79

July 8-Sept. B.

1,684

5.61

7.31

July 1 8- Aug, 20.

1 ,530

7. BO

9.49

June2,3-July 31.

700

3 68

8.04

June28-Aug. 17.

1 ,869

6.23

7.98

Julv 4-Sept. 11.

1 ,2,)0

2 97

8.17

Julv IB Aug 24.

1,871

6.70

8.90

July 8-Aug. ti.

941

3.13

10.10

Julv I Aug, LI.

967

2.62

8.64

Julv Il-Aug. 25.

1,6,50

3.26

8.90

July 25- Aug. 17.

700

6.08

10.16

Au^'. 4-Aug. 26.

426

4.63

B.92

Julv 20-Aug. 22.

750

3.78

9.60

July ^-Aug. 27.

1,539

6.03

9.74

Julv 8-Sept. 3.

1,601

2.11

9.65

Julv 10- Aug. 20.

1,017

3.64

9.37

Aug. I-Si'pt. 7.

900

3 . 94

6.96

July l-Aug. 18.

fi60

1.42

8.02

July 7 Aug. 20,

l,80i

8 8S

8.73

July fi-Ang. 22.

1,316

4.66

8.88

July 12 Aug. 21.

814

2.94

9.63

July 4 -.\ug. 2."!.

1,290

4 . 86

8 29

July 3-Aug. 28.

1 ,253

3.66

8.33

July 4-Aug. 2.V

1,100

1.71

8.29

July l-Aug. 4.

904

6.10

8.81

July 4-Sept. 3.

650

1.74

8.32

Julv 4 July 11.

1.12

5.7u

July 4-Aug. 21.

2,178

7.40

8.70

July 4-Aug. 20.

626

1.86

8.60

Julv 11- Aug. 30.

l,i83

2.96

8.62

July 2-July 81.

601

2.86

8.86

July 2ii-Aug. 18.

771

8.32

9.62

June 27 A\ig. 17.

706

1.36

7.82

July 4-Aug, 4,

1,641

3.41

9.60

July 7-Aug. 18.

1,812

8.24

9.00

6-21

(Mr. Lansing's Argument.)

1891'. Canoes. Huntinc; Days
in Sea.

Aniiii' I' Mooro. . . . 6 July S-Aiig. II.

K. K. Miiivin 7 July 4-St'i)t. 2.

Ocean ImIU' « July 9-Supt. 6,

,.1'eni'lti' S July 20-Aug. 81.

'^Sca l.i'in 6 July lO-Sept. 14.

Tliprcsn 6 July 1-Aug. 29.

Triuriipli 6 July 15-Aug. 19.

Viva July 7-8ept. 12.

Walter 1.. Ri'^li 6 July lO-Aug. 25.

Canoes.

Beatrice 12 July IB-Auc 25.

Favourite 13* July 16-Aug. M.

Juanita 9 July 12-Sept. 2.

Kalhcrine 12 July 9- Aug. 31.

Minnie 9 July 15-Aug. 25.

Sapphire 19 July 12-Au^'. 15.

,^^W. P. Savward . . 8 June 29-Sept. I.

Mary Ellen's
Hunters.

Hunter's Average.
Catch. Average Same period
per Day. in 1886.

633

8.01

10.75

918

2 15

7.85

480

1.33

7.94

450

2.09

8.49

718

2.11

7.4b

450

1.25

7.41

633

2.68

9,74

2,150

4.93

7.48

600

2.65

8.71

860

1.72

8.93

1.109

2.73

10.10

777

1.62

7.78

946

1.46

7.75

1,600

4.23

8.72

709

1.06

9.t*6

476

.89

7.26

■11 I!

At the top of tlie table it states that it shows the hunt-
ing power of each boat or canoe on sealing vessels in the
years IS86 and ISyO, as compared with the hunting power
of a boat of the "Mary Ellen " for the same days in 1886.
Now I will call your attention to this diagram (Diagram
No. ;^), which is based on the foregoing table. For
illustration wo will tako the " Thornton." She entered
the Soa, July 2d, and was seized August 1st. The

jonumber of seals taken by the "Mary Ellen" between
tliosp dates divided by five, the number of hunters, and by
31. the number of days, will give the daily average of one
hunter. You will perceive that there are sliown on the
diagiam a white bar and a light blue bar. The white
har to};t'ther with the light blue bar shows the average
daily catch i)er hunter on the " Mai-y Ellen" for the
saiiK' period the "Thornton" hunted, which is about 9.
Then we have the average daily catch per hunter on the
'• Tliointon " for that period, shown by the white line,

40 which is about 3J. The same comparison has been made
for each vessel in 1886, 1887. 1888, 1881) and 18!t0; and the
fif.st tiling I call to your Honors' attention is that the
catch of the " Mary Ellen " for the different periods varies
very considerably. For example, take the sealing period
of the "Onward" in 1886, next to the last vessel in the
CdluniM of canoes, and you will find that the "Mary
Ellcirs " catch for that period was 11^, while we find the
" Mary Ellen's " catch for the period when the " Vander-
bilt '' was sealing is less than TA.

50 Now this, it seems to me, demonstrates very conclu-
sivt'iy that the element of time must enter into all these
cuinputations; that is, that a week during the first of the
season may be twice as favorable for sealing as one during
tlic latter part, or rice versa, and the catches for these
(litfiicnt jxu'iods would vary accordingly.

Hilt if the element of time enters into this computation
there is no basis for a general average, and without a gen-
eral average there can be no estimate of probabilities.
There is another fact to which I desire to call particular

Oo attention, and that is the large excess of the catch of the
" Mary Ellen " over the catch of the other vessels, with
perhaps three exceptions, which are the " Pathfinder" in
18m;, the " Favourite" in 1887 and the " Viva " in 1889.

11 If

^ *.

4 more canoes after August 10,

(i22

Ifl'fS

(Mr. Lansing's Argument.)

In every other case tlie daily average of a " Mary Ellen's "
boat far exceeds that of tlie other vessel.

I have, for the sake of further cotiiparison, rearranf^cd
Table " Ct " in the form of a ratio, so that these catches cnu
all be brought to tlie same basis. Tiiat is, I have taken
the catch of the "Mary Ellen" as l.OOO in every case,
and the other vessels as less than l,(Kto, according to the
ratio shown between the average daily catch of the par
ticular vessel and the average daily catch of the "Maiv
Ellen." I submit this as Table " H."

Table "H."

Ratios between the daily avehaoe catch of an ixdividial

HUNTER ON EACH VESSEL SEALING IN BERING SeA, 1 Ssf, TO
LSitO, AND THE DAILY AVERACJE CATCH OF AN INDIViniAL
HUNTER ON THE " MaRY ElLEN " FOR THE SAME PERIOD IN l^^li.

Explanatory.— The daily average for the "Mary Ellen " will be
the unit, represented by loOO. Tonnage of " Mary Ellen," sd.

ISdfi.

Vesst'lH uaing boats:

Palbfliiilcr

Theresa

'lUor.iiou

Vftnderbiit

Tonnage.

fi6
74
52
9«

18S7.

Vessels using boats:

AUi- I. AlglT

FaTourlte

Mar, Ellrn

Mary Taylor

Patliflnilir

Vanderblli

1BH8.

Vessels using Itoats:

Annio C Moore.

l.J

Viva

»2

18MI
Vessels iihin^ boats:
Annie c Moore.
Aril .

Maggie Mac

Mar.v Ell. II

Mollle Adatns. . .

Patlitlialcr

'1 beresii

Triiimiib

Viva

IH'.lll.
ViBsels iiKiiiij boats;
Annie t'. Moore.

^. ti. .Marvin

Ooean llelit.

Peui'lt |>e

Sea I iuii

Tlifresa

'J'riuinpb

Viva

Walter L. Hieh...

119
91
70
80

110
III!
74
I18
9'.!

iia
iifi

^0
71

9H
'.IJ

Percentaae of
■ Mary Ellen's "
Dally Averuge.

904
839
801
610

449
767
790
457
780
3C3

619

513
SOS
586
480
!MW
618
t(09
196
850

180
373
167
846
9811
167
as I

660
399

1888.

Vessels using eanocs:

Anna lleck

Black Diamond...

Caroleua

I'olpbin

Favourite

Orate

Ouwaril

W. P. Say ward...

1887.
Vefliels using canoca:

Ada

Allred Adams

lila k Diamo. d...

Kate

M UDiaiu Chief..
Triumph

Tonnage.

3'.
89
27
(10
80
77
36
60

69
82
60
20
13

1881.
Vessels uoiiig canoes:

Faviiuriie

Jtiaiiita

Mountain Chief...

Patbfluder

Triumph

1889.
Vessels using canoes:

Beatri, e

Favourite

Jiianlta

Kate

Minnie

Happbire

W. P. Say ward...

1890.
Vessels uping canoes:

Beatrice

Favourite

Juanila

Kalberine

Minnie

Sapphire

W. F. Say ward ...

40
20
66
98

60
NO
40
60
46
123
60

91
80
40
81
46
123
60

Percentage ot
■ Mary Kllen'i"
Daily Average.

321
212
575
2i)7
4»S
272
180
:)85

lilll
309
.06
36i>
598

:e2

■Jls

377

5M
177
:i8l

■.'16
347
342
345
173
368
360

1112
270
20:1
1.H7
485
109
199

Nothing could show better than this table the uncer-
tain results of sealing. Your Honors will see that two
vessels outtittt^d the same and of the same tonnage niadi'
60 very difTereiit catches. The following are a few of the
comparisons which might be made:

In 1SS(; the "Theresa" outfitted the same as the " Van-
derbilt" and of 20 tons less burden, sealing about the same
peiiod as the latter, has a ratio of i-il5J> to the " Vander-
l)ili\" ()l(i. The "Black Diamond." of K2 tons, sealing

ti-.>:s

(Mr. Fiiinsiiig's Argument.)

fiiiin Inly I to Angnst i:!, with !• cuiku's, has a ratio of
•jlj wliilo the " Favoiiiito," of iso tons, with II canoes,
sciiling fioni Jiilj' <i to August I'.t, has' a ratio 4!t5. The
" I'.ivourite" has a claini hofore this Conuiiission for
liciiin conipelled to leavo the sealing grounds, while she
exi vcdod hy one hundred points any other schooner in
Is^'t; with Indian hunters.

10 In l^ST the " AUie 1. Alger "' (7.> tons), with six hoats,
senling from July <• to August "24. ratio 44it, sliould be
(■(iin|p;n«Ml with the " I'athfhider" (<!i'> tons), with six hoats,
selling fidui Jiuio L's to August 17, latio 7s(i. Compare
till' •• H'avoui'ito " (SO tons), with live boats, sealing fiom
.(\il\ >^ to Se|)tembi>r l.'i, having a ratio of 7l''7, with the
•• Viuideibilt. " (!t4 tons), with six boats, sealing from July
4 to Sept(Mnber 1 1, ;'.»'.:',. The " Ada " (tir> tons), with eiglit
ciiniics. sealing from July 15 to August •24. has a I'atio t')4(i,
while the " Kate'" (tin tons), with eleven canoes, sealing

jofioin July 11, to August -li), has only a ratio :^t.l<l.

The "Black Diamond " (s-j tons), with eight canoes, seal-
inn from July I to August ir>, ratio ;'.o(l, may be compared
with the "Pathfinder" dW; t()ns). with eight canoes, seal-
in;:,- in isss from July 1 to August is, ratio 177.

Tile •' Annie C. Moore "' ( 1 1:! tons), with six boats, seal-
ing; ill iMS'.t from July tl to August ;i:i, has a ratio r)l:!,
while the '• Mollie Adams" ( 1 Hi tons), with twelve boats,
sealing July 4 to August li."., has a ratio 'liU).
I think that these comparisons are sufticient to show the

;o\viile variations which necessarily must result in all these
cakulations.

I have taken considerable time in going over these dates,
tallies and calculations, but I have deemed it necessary
liecaiisi' of the extremely large amount claimed for an
estiin;ited catch. These diagrams, comparisons and com-
|)utations are necessary to show how impossible it is, on
any basis whatever, to compute a probable catch from
till' data given, without any reference to the contingen-
cies which enter into the problem except such as are dis-

4(icliiseil by the figures. I submit that the method adopted
hy luy learned friends, that is, to take the " Mary Ellen"
as a typical vessel for all the years for which claims exist,
is unjust and unreasonable in the exUeme. That method
1 piesuiue. and I assume, was the best which could be
proposed by Great Britain. The calculation of general
average is not relied upon by counsel and has only been
nsed hy them to substantiate their claim as to the typical
(har.uter of the " Mary Ellen," and its fairness has been
leassi'i ted by the learned senior counsel for Great Britain.

;o Mr. Hod well, in his discussion of this question, said that
if t lie United States were not satisfied with the method
piojiosed in the aigument in chief on behalf of Great
Britain, they might submit another method. The United
States are not here to suggest any method. The scheme
jiioposed by the British counsel is too ip.eciuitable to
he considered for one moment, and there is no other
,iiietiio<| that can be suggested which will give approxi-
mate certainty. The results of a sealing voyage are too
uncertain and speculative to be the subject of calculation.

hoTiiat is the contention of the United States, and that
I claim these figures show. When your Honors liave
tinii' to examine the computations that I have made you
will tind that in no case du the figures bear out the claim
niaije by Great Britain; and they demonstrate that the
loiitingencies which obtain in sealing are perhaps even

'■ Ik

|:;:li

MTFTT

((24

(Mr. Liinsiii{i's Argument.)

more impossible of determination than they are claiiih i|
to be in tlie printed argument on behalf of tiie rniii,!

Slates.

Tnckhtain Ciiakactkk ok Skal Ulintino.

I now projKwe to discuss the <pieslion of the unceiliin
character of seal hunting, wliicli has been dealt with jn
lothe j)rinted lirief of the United States and wbicli Ims
receivi'd coiisideralile attention froiu the Mritish c()Mn^(■l jn
thcii oral argunient. In opt-ning his discussion ol ilijs
jioition of the I'nited States argument, my learned frii nd.
Air. Hod well, .Slid: " The position assumed by the cimius,!
'• for the United States is inconsistent with tlu" wlidjcdf
" their contention from the ''eginuing of this controvnsy.
■■ If it is a fact that seal hunting is so uncertain: if it is ,|
'• tact that the sealing grounds ai«> unknow n and that tlic
" season is uncertain, how is it that the United Static
20" went to Paris and asked foi' regulations upon the thcdiv
" that that large industry was necessary f.n' the conijuit
"of the inbaliitants of the world generally, and thai it
'■ was in danger of being destroyed by the efforts of the
"■ pelagic .sealers;"

Further on, .Mr. Bodwell goes on to say, thai 'le
'• might with confidence rest on this fact alone as slmwing
" that sealing was profitable, and that the position of the
" United States now is not consistent with their posi-
" tion in lsu2 before the Uaris Tribunal.''
30 My learned friend is in error'. He does not understand
the contention of the United States in JS92 or else he li.is
been nnsinformed as to the fads. The position that \vu
assumed iiefoie the Uaris Tribunal was, that the seaiis
taken weic not so great in iuind)er. but that for every skin
taken two other seals weic destroyed; that is, that out of
every hundred se.als killed hut thirty-three were secured
by the hunters. That was the first assertion of the United
States at Paris.
The next was that of the .seals which were killed at sea
40 ninety per cent, were females, and that these were, from
the i)ecnliar habits of the animals, much more necessary
than an equal number of males to jieipetuate the species.
The I'nited States before the Paris Tribunal said to Great
Hritain: " On the islands we kill only the male seals, while
you are slaughtering ninety per cent, of the females, and
of these female seals seventy-five per cent, are pregnant
or are mothers, which leaving their young 011 the islands
go out to sea in search of food, and the motheis being
killed the young jjerisb from starvation." That was the
50 position of the United States at Paris, and that was the
position which I claim they established by overwhelniing
evidence. On that ba^-is, sui)pose the '' pelagic catch for
one year"' amounted to :!(»,(mio skins— the slaughter woidd
amount to !to,(i(iu seals and hi,(M)U of these would he
females. If the ( (intention of my learned friend, Mr. Hod-
well, is right, that Bering Sea is where the chief sealing
has been (lone, then at least half as many more pui)s were
destroyed as there weic females killed. Theiefoie, in
taking iJo.ooo skii.s, there would have been a slaughter u{
60 over l:2(>,oo(» seals, and lu(i,fKM» would have been females.
That was the position of the United States at Paris, audit
was for that reason that they asked the right in the name
of humanity to protect these animals. In order to sul)
stantiate what 1 have said. 1 refer your Honors to Voliune
2 of the American ivprint, pages \*Ji), V.H) and 210.

»;•>:]

(Mr. Lansing's Argumtnit.)

Hut (lid tho United States go before tiie Paris
Tiiliinial asserting for one moment that the adventnre
(if jielagic sealing was sure and certain? I call your atten-
lidii to the Case of tiie United States, Vol. '2 of the Ameri-
( Mil reprint, at page "JS^. where j-on will find the marginal
iidle *' Pelagic Sealing a Specnlation." I also read from
the same volume, at page ^M."); " Tt is evident that the
iQ ■ people who nndortake this votitureare as varied in liieir
" (MCiipations as the purchasers of lotterj- tickets, and tin-

• <,iine spirit wluch induces persons to risk their money in
" I he lotteries persuaded tliem to take their chances in the
" sealing business."

Niiw. your Honors, that is the position of tho United
St;ilt's lierr to-day. I claim that a man wlio is prevented
Iroin purchasing a lottery ticket, might as well come be-
tore a court of justice and ask to have compensation
a\\;U(led him for such interference measured by the high-
Mist prize of the lottery, as for any one to claim before this
llitiii Commission c(mipensation on the basis of the

• M.ny Fillen's'' catch, which was the largest evei' made
ill lieriiig Sea. That is the position of the United States
here; that was the jiosition of the United States at Paris;
mill llie United States have unquestionably been consist-
ent tliroughout as legards the s|)eculative chara(;ter of
sciil luinting.

Our ue.xt assertion in regard to the uncertain character
(if seal hiuiting, which was criticized by Mr. Hodwell, is,
;nth;it the vessels were small and flat the voyage was haz-
aidiius. After Bering Sea became the resort of the
|ielagic sealers, it is observable that tlie vessels employed
were (if smaller tonnage in the i-arlier years than thoso
used in later ye.ars. This 1 contend wo\dd go to show that
the viiyage was too hazardous for small vessels. But 1
will refer to the actual figures to show the increase
III the tonnage of the vessels. I call your Honors' attention
t(i the table of vessels clearing from Victoria in issd and
I ^^7, made out by Mr. Milne, Collector of the Port of Vic-
j.toiia. wiiich is foimd at page '-V.\ of the E.xhibits.

Tlieie are 41 vessels given in the list. Of these ti.l are
under .">o Ions, s between .'in and 7n tons and SoverTi) tons,
ruder .')»• tons. t> cleared for sealing, t! cleared for coast-
ing and sealing, li for voitstinq.
Hetw(^en ."i(i to 7o tons, Ww s vessels cleared for sealing.
Over In tons. 7 cleared for scaling, 1 for cofisting. Of
these vessels of over 7n tons, 4 were not registered at Vic-
tmia until lss7; all of these cleared for sealing.
(If v(>ssels of 2n tons and under, W cleared for coasting
viaiiil sealing, t! for coasting; and none for sckI/ikj alone.
Of the vessels between 'Jn and .Mt tons. <> cleaivd for
sealing, :> for coasting and .sealing and 7 for coasting.

In the two printed tables relating to catch, which 1 have
Mihniitted. the following is shown:

111 isst'i. there were_/'o»r vessels under r>o tons; of these
three were seized.
Four, between M and 70 tons. None

seized.
Six, over 7<> tons. One warned (?)
'"'In I ^"^7, there were /(>«/• vessels under .'in tons; of these

two are claimants.
Five, between .'iOand 7<> tons; of these

three are claimants.
Seven, over 70 tons; of these one is a
claimant.

hi'

li
. II

■'II li

H3fl

(Mr. Lansing's ArgnnHMit.)

In J8n!^, tlioie wen* luo vessels under ')(• tons.

Our, between Tin ami 7"' tons.
.SV.c, over 7n tons.
In iss!t, there were two vessels under .">n Ions; hull,
cliiimnnfs.
Four between .">(» and To tons; ///,
these are elainiants.
10 V'f)/, over 7<» tons: liro df lliesc

claimants.
In 1H!»(I, there were /»o vessels under ;"><• Ions.

Tuut between ."lO and 7n tons.
Thirtveu over 7(' Ions.
The percentages are as follows:

lS8(i...

1S87

188S.._ ,.

'188i».
1890.

I'lhll'l'

.Ml Inns

Ov,.,

.Ml Ions.

In "11 Inns.

'il 1..I .

L's.r>7

■JS.'u

Ii' m:

:.'.">. 00

;'.i.2:.

r.\ 7.-,

0._J .JO

II.1L>

(Ili.l'.ll

i-'.r.o

•_'">. 00

)■(!> .-.n

II. 7»'.

11.77

7i; 17

I submit that three tilings have been establisiuil liv
these fi'Mires.and they are:

1st. That experience in Kering Sea demonstrated HkiI
vessels of over 7o tons \\ei(> the ones best fitted foi' sf.il
iiig and produced tiie best results. I'd. Thai the latciuv'-s
of the season in isjto can be accounted for because of tin
increased individual tonnage of the vessels. The avna^i'
-Qtinie of leaving the Sea for vessels of that tonnage in 1^:hi
being August :?lst. :5d. 'J'hat there was an evident leml
ency to abandon craft under 5(i tons.

There is another noticeable fact which should be takrn
into consideration, and which bears directly upon tlic
comparative value of an Indian crew and a white crew.
We find that the huge vessels carried b(«its, while thesni;ill
vessels cairied canoes, and consequently in \f<W> the lar<;vi
portion of the fleet was outfitted with boats. The follow
ing figur«'s (also from our (ieneial Tables) will show this:

Ovor Oil no |.ili9 an. I

40 tdllS. lllllIlT

188(1.
Vessels with boats 4

Vessels with canot'S. . 3

1S87.

Vessels with boats <\

Vessels with canoes H

!»

1888.

Vessels with boats

•>

Vessels with canoes

18.S9.

Vessels with boats

Vessels with canoes .

|S<J(I.

Vessels with boats .

Vessels with canoes

t'.'j:

(Mr. Lansing's Argmneiit.)

Kxprossed in pt'i(<«ntiif?eH the cornpanitivo nunibor of
laiK'' ;i'»'l sniall vcsst'ls t'inploycd in tliu different years
appiMi' as follows:

Vi'uncls (PVIT Vi'HHi'ls 60 lon§

60 tonx. Hiid iindiT.

l9»C< ^'i '/o 46%

IssT M% U%

lois-^-^ 75% 26^

IsMi 72% 28%

1^'.MI .. '^'/e m^'/i

Tlic nt^xt statement which received the attention of my
learned friend, Mr. Bodwell. was in reference to tlie dura-
tion of the voyage from Berinj^ Sea to Victoria.

Mr. Bodwell: — 1 found when I came to look .it the notes
th.it tlie statement about the "Ada" vvas not correct.
Of course Captain Gaudin canje down in a steamer. I
have c;orrectea that in the printed copy of my argument.
-° At one o'clock the Commissioners took recess.

At iialfpast two o'clock the Commissioners resumetl
their seats.

Mr. Lansing:— Before jiroceeding with the line of argu-
ment upon which I vvas engaged when the Commissioners
arose, 1 desire to make a correction in our general tables
in regard to the catch of the " Favourite" in lSH(i, which
is given as 2,25lt skins. That is an error, as Mr. Spring
testitied at page IHli) of the Record that the catch in
;o Bering Sea was 2,:$74. His testimony is aa follows, at line
II;

"Q. The total catcli in Behriug 8ea of the 'Favourite' for that
" vciir wouhl be 2,374 ? A. Yes.
■• Q. 2,374 are vour tinurcM of the oatch of the ' Favourite ' iu BehrinK

••Scuiu 1880? "a. Yes."

Tile attention of Capt. McLean was called to the fact
that there was a discrepancy between his figures and
tiinse of Spring, and at page i;{:iO of the Record, line 44,

the following appears in his examination:
40

"Q. There appears to be a disorepancy between Mr. Spring's
" figures and yonrs of some 110 seals. How do yon account for that ?
" A. That was one day's catch in the month of AtiRust that is not en-
'• tercd in this book.' It was a mistake" in copying it from another
" book."

So that it is evident tliat the figures given by Charles
Spring are substantially accurate with regard to the
" Favourite " in that year.

Mr. Peters:— What do you claim to be the right figures
.(^ now '.

Mr. Lansing: "2, ;>74; that number is in your table and
alsii in ours.

Tile Conmiissioner on liie part of Her Majesty:— The
gencial table Iv ■ ';ath figures.

Mr. Ijansing: — Yes, your Lordship, but where 2.2r)!»
skins are in the table, a further examination of the Record
shows that McLean substantially agrees with Spring, be-
cause lie adds ILO to 2,2.V.t, wbicii would make 2.:W.t, and
Ml. Spring's figures are 2,S74, so there is only a difference
f,i,oi' tiv(> skins, and where "2,2.')1»" appears in our table it
slmnld be changed to " 2,a(i!>."

\\ the time the Commission rose I was about to consider
tile statement in the argument on behalf of the United
Stales, at page 178, which is criticised by my learned
fiiend, Mr. Bodwell, as not being correct. It is, that "the
voyaj^e of 1,5(10 miles to Behring Sea usually occupied

= Ji

'•) 1

• \

1 '

I-

y|i..

tl-JS

(Mr. liitiisiii^'s Argiiinciit.)

from 14 to 'JO days." In iliscnssiiig this Hliitt'intMit Mi
Hodwell c'itt'd tliirc iiistiiiict's to bliow the diii,ili>>M
ol tilt' voviip). lit' tiist, rt'lfiiitl to the " Adu," stiitiii;;
that that vi-ssi'l in issT. ictnincil to N'ictoiia in.") cut;
tiavs. anil since niai<in^ that stati'ini'nl hf> has int'oiiin i|
nif that hf has coiiiMti'tl it in the piinli'il cojiv ot Ins mil
.iixnnM'Mt: hnt 1 dfsiro to cdl llio allfntinn of thi'Coin

lo ini>isioni'i's to tlu- lai:t that that stattMni'nt is now adiMittiij
to III' inroiiort. and that Mii' iidViiMiri' jiivrn was to ihr
ti'stiniony of (iaudni, tlu' inastor of the vcssi'l, whe • h,'
stall's that it took him, on llic Alushni nlvmiirr, in n .
tiirtiiiiij lit \'ivh)t lit fmiii Silhi, flvf or six davs; tin- vi -^.1
(Ihf "Ada") was sri/i'd. can ifd to Silka. snli-r(|U(iiilv
sold at I'ort 'I'ownscntl, and sailctl aftorwards out dI Mi,.
|iorl of Scattlf. so that slif ncvci' iftmiicd to N'icloi ia allci
hiM- .seizure.
'I'hc Coinniissioncr on the paitof the rnilcd St.itcs:

JO What is till' approxiniati' distanc,' from Victoria to I ni
niaU Pass;

Mr. Lansing: I think it is ahoiit l..'>no miles, your
Honor

'I'hc ni'.xt rt'ft'rcncc of my learned liiend is to evideuir
relating to the "Onward." An examination shows that,
it is a general statement hy Charles Sjiring that the v^y
ageslionid he made in 12 to 14 days. Tin.' reference is to
Uecord. page .sC.'.t, line :'.r>.
llis third reference is to the tripof the little "Triumph";

.50 and the witness who is giving testimony states that he is
snre that the "Trimni)h " canic' down from the Sea in
"not more tiiaii two weeks " The reference is to KVr
ord. page I4nl, line M. That is a general statement as
to the time, made eight years after the event, hy a
hunter, v ho had heen a sealer for a long time. It is
fair, therefore, to helieve that his rocolleotion was at fault,
as it would appear from this statement that the little
"Triumph," of only 14 tons, made the trip in a consider
ahly shorter time than much larger vessels with greater

40 Sidling cajiacilies. We find that the little "Triumph,"
on her " up" trip, left Victoria on the 2(»th or iMst of May,
and reached the Wea August 4th; that while c/i /o^/e she
took hut r»2 seals, so th.it she could have sealed very
little in that time. The reference to the Record is page
I'.WJ. line .s. Of couise, in that case, it is to he presunieil
tn.it the "Triumph " stopped on the coast and took on
(loiird her Indian hunters, and then she sealed sufficiently
to take TiJ seals. Hnt we find that this same witness, on
whom the learned comisid relii^s for the voyage occupyinf;

50 "about 14 days," states that the ordinary voyage took
" lietween two and three weeks," which is approximately
from 14 to 'jn days. The reference is to the Record, page
I4i»l, line 4t>.

Hut we have the voyages of other vessels hesides tlio
two now relied iii)on hy my learned friend. We have tlu'
l)ig " Triumph, "of I's tons, which took 17 days to return to
Victoria after heiug waruml, according to the evidence
found iit page I4-_>1. line i';{ of the liecord; we liavo
the " W. 1'. Say ward" in iss(t, a <5n-ton vessel

6o"lowoiing" last on August '2-lth (Record, page HH'h,
line 17), and arriving in Victoria on Sept. 13th, ac-
cording to the testimony of J. D. Warren (Record, paj^o
•.<:{H, line :$). That is a period of :>(» days. The "Thcnii-
ton," 22 tons, in ISHfj sailed on her Bering Sea trip May

IsMt,
'liilof

(Ml'. Ltiiisinj^'s AiK'inu'iif.)

L'Tlli, and .iirivcd tln'n> Inly -Jd I refer to the Rnti.sh
;ii;;iiinent, i>aj;e jtiu. linit I so tliat it look Iir. days.

Mr. I'eters: -She slnjtped on the way ii|», taking in lier
|ii. "Visions and eveiythnin else.

Mr. Lansiii^^: ~ It is fair to |)resuine that she did not
-.|iiMd over two sveeks taking on siijiplies, and no time was
>|hiit in K^'ttin^ Indian liiniteis on the coast as she had
1(1 whiles.

I refer to the fa(^t that tht; ".Inanita," 1"' tons, in
si'i/ed iin the :i 1st i if .Inly, reacheil Victoria altont thee
.\ii^;iist tseo British arj;nment, pa^e l;t;i, li'ie -JT. and
|:;i. line .">), that is a period of over I'o days.

Mr. I*et»'rs: -l*'ioni the time she was seized

Mr. Lansinji;: Certainly; yon contund that she left the
Sim iniinediately .ifter w.unint,'. The " Dora Siew.ird," in
is'.i.i, left the Sea Soptendier L''Jnd, aerordiiifi to the testi-
iiiniiy of Mr. Ale.xaiider, and arrivtid at V'ictori.i Oct.
: Il'IIi ( Hi'conl, page 4sl, line I'.oi. Over .'lo days wen.' oe-
iii|iied on her retui'ii voyage. Next, the " Annie C.
.Mcpore," in lsi»o, ji;', tons, left Victoria .Iinie I'ist, and
;irri\ed ;it the Se.i .Inly L'oth (testimony of llackett.
ii'ci (lid. jiage •!.">!». line .Mt). That is a period of 2l» days.
The ■• Kavonrite."" M' tons, in j.s.s'.t, jctt the Sea Angust
'.iilli. ,'ind .irrived at Victoria Sept. L'Ttli. l".> days. From
lii.it, slionid he dedncled 7 days spent at lvyii(|not and
Ikniet liny authority is the vessel's log for 1^S!»), which
iii.ikes :i period of L'2 days. The " Maggie .Mac," in is'.X),
; ill It the pass August :Ust, and arriving at \'ictoria Sept.
I'.tlli. which is -JO days (Memorandum hook of Thomas
II. Mrown, K.xhiliits, page 4t')). Now, I suhmit tiiat the
-l.ileineiit in the printed argument of tht! IJniteil States is
ivrtaiidy fair, and having carefully reviewed the evidence
(111 this point I would chang(> that sateiuent ot " from 14
III •_'(» diiys" so tliat it would read " al)out •-'(» day.s."

The fact next set forth in our argument that " the
jicrils of a Boring Sea cruise were recognized hy insurers
111 an increase of the premium recpiirtHl for vessels clearing
.; I'm .\laskan waters" is not criticised hv our learned
liiciids, as the evidence is conclusive on the point (,see
ii'icord, page 1()!>(», lines IH and tW). It is therefore ovi-
iliiit how iiazardous this voyage was, and how ahsolutely
iircssary it hecamo to use iaiger vessels where they could
li ■ procured.

The next statement, which elicited a criticism from my
learned fiiend is this, that " through some jieculiar in-
-liiict the animal when wounded starts directly to the
wiiiilward" (page I7!> of the argument on hehalf of the
-iriiited States). Perhaps that is an overstatement, and
lilt based entirely on the Kecord. If so, it is the only
;i--.-i( rtion in the argument on hehalf of the United States
uliidi is not supported by evidence. Hut. I cannot see
tli.it it matters whether it is supported hy tn-idence oruot.
Hi whether it was inserted from general knowledge of the
siiliject. Vou nmst hear in luind tliat it is the conlention
'if my learned friends that the difficulty of approaching a
seal is overcome by always approaching it from the lee-
ward. Now, whenau animal is wounded it natinally goes
'Jin the opposite direction from which tiie shot came; there-
li lie, in this case, it would go to the windward. It may
lint he a jieculiar ii stinct, but at least it is the instinct of
-1 If preservation.

.My learned friend coutiuued by discussing the state-
iiii'iit in our brief, that "in the pursuit of a crippled seal.

|i ii

"!!»■*

♦!»(►

(Mr. Lansing's Argument.)

tho advantage which th«^ boat with two ' jHilIeis" haddM i
a canoe with but one is ai)paieut." Now Mint isciitic i-, ,1.
and Mr. Bod well asseited that when acanoe was enipldvid.
both of the Indian hunters used their paddles in tiic pm
suit of a "cripjde." Does my learned friend contend I ..i
anioment that a canoe with Indians, using spears, pur
sues a "cripple" when they have the animal fast to \\\r
loendof a line; Theie was never any contention ii ih..
part of the United States that the Indians i)urs>ied (up
pled seals mdess they used guns; and if the Indians m-( i|
guns, one of them must have contimied tiring, and tliai
would have left hut one to paddle.

But wliat is liere referred to? The canoes of tiie 'Tmi-
olena," with one boat puller and one hunter; and the (hs
advantage they had over a boat with two judlers is v. iv
apparent. I submit that the criticism of my learntii
friend is entirely unwarranted and must have been in.i.l,'
2oiuadvertently. for a moment's consideration would liivc
shown its absurdity.

1 now come to the (jnestion of the superstition of ilic
Indians, and I call your atti'ution to the evidence which is
collected at page 2(tl of the United States argument.

And in connection with that I will also refer to the loj;
of the " Favourite," which was kept by the witness Laugh
lin McLean; I turn to the year ISiKi at J>age 175 of his To;;
(this is the book from which tlie counsel on behallut
Great Britain read th(> other day in arguing this (luestion'.
30 We hnd this entry for the l!»th August: "This day Sic
" gins with strong winds and high sea; spoke scl'oom r
" ' \V'. v. Say ward' with '2-lU seals on board. latitude
"5!t.lu, longitude Ui!». !.") west. Indians refusing to sln|i
" any longer on account of all their Indian food beiii;;
" used up, and also the ' Kate's" Indians is anxious to ^ei
" home."

I call attention to tliat statement regarding tlie
"Kate's" Indians. The ne.xt entry is the '20tb August:
" This day begins foggy, Indians came aft in a body and
40 " want to go liome. Made up (nind to go home."

Mr. Modwell: -Tiu-se statements were not read into the

jyausing: — No; nor were tiiosrf you read the oti

notes.
Mr.

•I.iy.

Mr. Modwell:-
Mr. Lansing:

ness ;md we are

that. Without

liT

And there was nocrosscxaminatioii 011 U'.
-No; Lauglilin McLean was a British wit
the only ones who sliould complain as to
leading, 1 will also call your attentinn l >
the experience that this s.aine captain iiad in isss. whii li
50 is detailed at page si of tin; log. In that year the liidian-
agaiii mutinied and he was compelled to go home. W'l'
have the experience of tliis capt.iin wi»h Indians for Ihni'
ye...s, l.sss, Iss'.t and IS!»u and in two 01 them the voya^ii'
was teiniinated on account of the superstition icmiI

strong charactei' of iiis Indian crew.

In I'egard to the fact that Indian hunters were fearlnl
of sealing in foggy weather, the statement made in the
argument (if the I'nited States (page is(h, is as follow-:
" Another peculiarity of the Indian hunters wa-
60" that they were unwilling to start sealing wlieu tlich
" was fuggy weather." In answer to that assertion. Mi.
Rodwell read from this coll(>ction of logs of the "Favoni
ite " the lollowiiig extracts: at. page 7:5, of the log, on th"
i'Jth August: " Dense fog, light breeze liunpy sea," thil
is the entry at s a. m. At twelve o'clock " canoes loworeil.

681

(Mr. Lansing's ArgumeDt.)

(louse fog at intervals, slight sea and light broe/.e." Now

I -iibniit that it is a fair presumption in that < iso that
till 10 was no fog when the canoes were " lowered;" they
\\( It? doubtless sent out in fair weather, and these banks
ot log only floated by afterwards. At page 84 of the log
tlu 10 is the entry: " 8 a. m. clear sky, smooth sea, canoes
iiihl boats lowered, threatening banks of fou; on the hori-

i^^zi'ii." There was no fog about the vessel when the boats
wrio lowered. At page 77 of the log the following: "5
A. M. boats and canoes lowered, passing fog banks."
Till 10 is no indication of continuous fog suggested here.
.\t |iiige 80, on tho27tli of August, wo find this entry: " This
'• il;ty begins with a calm, smooth sea, hazy sky, boats and
" ( anoos lowered, light air, smooth sen, hazy sky. Noon,
"ihill— light air." No suggestion of fog here. "4 p. M.,
'• rloar bright sky, suusbino, smooth sea." Then comes ,an
oiiiiy that IS relied on: "Heavy banks of fog |)assed dur-

,Q " iiig the watcli which caused us to tire a gun." Hut the
ciiicios had been "lowered" fully eight hotus before the
Inu sottlod down and because they liapponed to be caught
ill il is no groimd for denying that the Indians were un-
willing to go out in a fog

I (losire to call attentio-u to some other entiies in this
joi;. First to page 7o, .^th August, the entry is for 4 p. M:
" Sky cloudy, sea lumpy, iriiid liylit, fog settled down,
caiicR's returning." Beai' in niind that the contention of
my learned friend is, that the only thing which prevents

.q(,iii(ios going out sealing when th(! weather is foggy
is a strong wind. But here is an entry for a light
liiir/o and tlui canoes are returning four hours earlier
tliaii tlii^ usual time. At pagt* 71, this is the entry for
.Aiiuusl ^th, at 4 V. m: "Heavy dense fog settling down,
liijiil breeze and a moderate sea, canoes on boaid."
.Vuaiii at t)age 7!', there is an entry for August •Jl>th,
al l.:'.o p. M., "Dense fog settled down, which caused the
" Imals to make lor the vessel." Then at ti p. m., " Dense
'■ Id.n, //;//'/ (lir, all boats and canoes on board." But there is

„yiii I'liliy for July :ilst, at page (U, to which I particularly
rail Noui' attenti', n, as it bears ilirectly on the question
wlici her white hunters will go out from the vessel when
b i i!is refiise to do so. " This day begins with fair but
ill/" weather, smooth sea and chilly atmosphere; 4 A. M.,
ill ,^i' log, lumpy sea and liiiht breeze: S .\. m., boats and
nil'' canoe lowered, behiij .souie'clid! Joik/// the hnliaii
lii'iilrrs irere Koiiieii'hal tiim'd (ibi)i;( <ioi)i(/ out."' Now, I
Miii'iiit that that is directly in point. (Diu'ing that season
tli< ' l-'avouiite " had two hunting boatsand eleven canoes.)
Ill icajilain states in the entry 1 last read that the two
iHiiiliiig boats, with si.K white men, were lowered, and
111 ii lio persuaded two Indians in one of the canoes to go
I'Ui, Imt the other twenty Indian hunters declined to go
Ih' 11 iM) it was ,sV/y //</// /o;/(y//. I therefore contend from
111! statement and the testimony in the Record that the
i'li-i! ion assumed by the United States in regard to In-
dians being unwilling to leave the vessel when it was
t(i^i;y weather, whelbtu' there was wind or not, is fully
sii !aiiiod by the evidence; and my learned friend's theory,

f^tliil wind is a necessary factor in preventing tht> [ndiaus

I I "ill sealing during a fog, is ingenious but without foun-
(laMiiii in fact.

I imw pass to the general testimony in regard to the
^(Hitii^(>ucie8 obtaining ni sealing; it is collected between
pair 185 and page 208 of the United States brief. In

' T

■^i!::r

' i! ji

H.,'

632

(Mr. Lansing's Argument.)

dealing with that portion of our argument the leaimd
counsel confined his criticisms chiefly to the testimony of
Alexander McLean, and he said : "What advantage lias
'■ McLean over W. Baker, a man who has heen lui;li
'* liner in sealing vessels in every year, who, from iTis
" first voyage, has made most successful catches. ()]•,
" Hackett, a man of large experience. Both these mkiI

lo " were absolutely uninterested. Or C. N. Co.v, or
" O'Leary, or Louis Oisen, who has been out ever since
" 1886, or Jacobson, a very successful man. Do you sud-
" pose thatMcLean knows anything Jacobson cannot idl
" us?'" As there was a good deal of criticism in regani to
this testimony of McLean's, I propose to read what the
otiier witnesses said on the different points and compare
them with what he said.

The first subject that is dealt with in his testimony is
the condition in which the seals are found by the huntiis,

20 and I first read upon that point thn testimony of Captain
Miner, appearing at the top of page 1!»1 of our argiiinont;
also the evidence of C. N. Cox at pa. e :.' '3 [Mr. Lansinj^
here road the extracts. |

Now, the criticism was made \ r.y i .led friend liiat
we stated, in discussing the gt:n^r.,,i saoject, that canoes
circulated about the schooner, whil,. Uonts went in advance
of tlie vessel, and here is Mieir t)\vn witness, C. N. Cox,
giving testimony to the same effect.

I Mr. Lansing here read a paiagraph from the affiilavit

30 of Thomas H. I^rown, at page ti.")2, line 51, of the Rorord.
Mr. Lansing also road tho extracts from the evidonci' of
Captain W. E. Baker and tho witnos-s Gerow, a|)|)oaiinj;
in the argument on behalf of tho United States, at paj^e
205 1. Upon that statement of Gerow's we had a com-
ment from my learned friend, and he endeavored to ex-
plain that the witness was si)eaking of conditions ontsiilo
of Bering Sea, but tho li'ecord shows he was tostifyinj;
as to Boiing Sea alone. Tiien, too, we have my ioaincil
friend's statement, in supporting Captain Wraron as a

40 seal expert, that " it is not j»roLended that seals i;'jic(.nio
" ditforent animals when tiiev enter Bohring .loa. they
" travel and sleep and their life generally is Vi^'. Siuo- in
■'either locality," so even if Gerow is rel'n'iv; > tlio
coast it is apparent that his testimony equa y |>ii'ic to
Bering Sea.

I now desire to read from the direct-ixamina: 11 of
Byers, beginning at line ;U, page (iu^ of the Kecurr;. ,le
was a witno.ss sworn on behalf of Great Britain, and
has boon referred to constantly in their oral arguincnf,

50 and is api)arently relied upon as their chief expert on the
question of sealing. He was a hunter on one of the seized
vessels. I road this testimony to show that ho agivos
fully with Captain Alex. McLean:

" Q. ^Ir. !'vors, vou have alrondy otatecl your oxpr ieuoc an a soul
" hunter, ami I will not go over that. In Hl'iootiufi 's. will you tell
" inc how aro tho majority of thera Hhot, slooping' n .. i'liiuiun? A.
" Sleoi)ing.

" (^. A largi' majority of them or not? A. Yes, ^n . <. -cry larije
" majority of them arc nhot sh cpiug.
f- " Q. In the course of your oxiicriouce, have you shot a largo niim-
" her of Kcals V A. ''or three vears I was a hunter. I have Hlmt a
" large number.

" Q. Is it a fact t.iu. a certain portion of tho Heals killed are lost liy
"Binldng? A. Th' ,r m a eerie-, ■nmher.

" O. Fror> your own exjien ;^i jau you tell uh what projiortiou (if
" seals that are th 't ^\:".^^ liio lost y A. From my own experience, nul

633
(Mr. Lansing's Argument.)

< from the experience of hunters I have had with me, I think about 6
' jicr cent.

■' Q. With regard to sleeping seals ? A. You mean lost or sunk ?

" Q. Yes, sir ? A. Five per cent, of the total amount killed sink.

" (). A greater number are lost when swimming ? A. The greatest
' iiumber lost are lost swimming.

"I). With regard to those asleep, what proportion are lost? A. A
' very small percentage.

" (). About what ? A. Probably two per cent., not more.

" <^). What distance do you shoot them at when asleep? A. From
' ten to fifteen yards.

" (,). Now, there is some question here as to SQals being able to scent
' a UmR way off, is that the case ? A. Yes, sir.

" (,). And is that a practical difficulty, and how do you overcome
' it y A. We overcome it by keeping to the leeward of' them all the
' time.

" (). Is there any difficulty in doing tha^ ? A. Yes, quite a diffi-
' culty.

" (,t. But you overcome it in that way ? A. Oh, yes ; we can over-
' cnnio it.

" (,). Do you fail to get many shots on account of their smelling
' yell ? A. It don't often liappen, except in a sudden change in the
' wmil ; a sudden change of wind may put you out, and we may find
' oiiisi'lves to tlie leeward and still be to the windward with a sudden
' I'liiuigo of the wind.

" (^). That happens in all kinds of hunting ? A. Not only seals but
' every thing else.

" (,». Arc the seals easy to awaken ? A. Well, yes; you have to take
' 11 ^,'i('iit deal of i)recautiou in getting .vt them."

Ill liis cross-examination, at page (i()3, line 14, lie says:

" (,». If you do not take a great deal of procaiu'onthe seals awaken,
' do tli(>y "not ? A. Yes, sir.
" (,). Wliat is the result if they do awaken ? A. Tlie result is they

• i^n away and you do not get a shot at them. In some cases you do
' it vdu are close enough.

• {). So tliat any disturbance which awakens them lessens the chances
' (if vdiir Kctting the seals even if they arc there, does it not ? A. If
' tliey arc awakened the chance is small.

" *y lu order to get a ([uautitv of seals when they are there you

• ttuiit to take the seals asleep, ilo you not ? A. Yes, sir.

" Kedireet examination by Mr. Peters:

" i). With regard to the (juantity of ammunition you require. Sup-
' ]in>e a seal is wounded. Yon often wound a seal ? A. Yes, sir.

"(.,). Anil chase it ? A. Yes, sir.

" (,). l)(ii s that cause the use of much ammunition ? A. Yes, sir.

" (,t. (live US an idea of how much you fire at one seal before you
' get liini V .\. I have known hunters to shoot 25 shots at one seal
' after lie is wounded.

" (^). It is (niite common to tire several shots ? A. It is quite com-
' mull til lire seven or eight shots.

" (}. And to chase them a long distance? A. Yes, sir.

" (,). You do not give them up until you get them? A. No, sir:
' iiiiiiiiuMition is no object at all.

" i). When you come down to a supply of ammunition you must
' iillow for a great number of charges to be used in that way ? A.
' Yi s. sir."

It scem.s that the testimony of this witness is substan-
linlly true, and that it bears out exactly our contention,
and allows the tlitticulty of approaching the seals. If, as
tlii-; witntss states, tiiey very often have to fire seven or
I'i^lil shots, and sometimes as many as twenty-five, to
SCI nil' an animal, it demonstrates how uncertain the hunt-
iiiiiiif sials is, and it further shows how necessary it is to
liavi' j od hunters.

iNou I turn to theevidenceof Captain McLean, on page 185
6oof tlio iIi)itedStatesargumont, which I will read, but which
iiecil Mot go again into the notes. ( Mr. Lansing here read the
extract. I Having read the testimony of these witnesses,
wc >iiliiiiit that they corroborate the testimony of Captain
Ml I ran, and show how uncertain is this occupation of
limiting seals.

i; i

.i|-^

w^-

634

(Mr. Lansing's Argument.)

The next point to which I wish to refer is the weathiM',
and following the same order that I did before, I will fii.st
read the testimony of Captain Raynor upon this point,
which will be found at page 189 of the United States
argument. I also read at page llt2 from the testinionv
of Captain Miner, and the evidence of Mr. Alexander oli
page 194 of the argument. There is also another leferonoe
ID to page l!t5 of our argument. |Mr. Lansing read the
extracts above referred to].

This testimony of Mr. Ale.xander was criticized by mv
friend, Mr. Bodwell. in his oral argument, as follows:

" An example is given at page 182 of the United Stall's
" Argument of the local character of the stormy vveallicr
"by stating the experience of the 'Mary Ellen' and i):o
" 'Sayward.' It is said that the 'Mary Ellen,' used as a
" typical vessel by Great Britain for the purpose of ((hii
" puting the probable catch, was in Behring Sea in Aii-
2o" gust, 1886, 29 days, during which time she bad (ifliin
" days of weather so rough that it was impossible lo
" lower a boat. The ' W. P. Say ward,' there 24 days of
" the same month, had but 11 in which her canoes couM
" be lowered. Now, then, if youi Honors will refer ,j
" the chart showing the position in which the vessels wimg
" captured by the United States revenue cutters, you will
" find that the ' W. P. Say ward ' was seized in almost tlio
" same locality as the ' Dolphin.' "

Then he goes on to show that the " Dolphin " was near
30 the coast of Unaiaska, and therefore had different weather
conditions, because of her pro.ximity to the land. The
United States argument refers to the "Sayward" in
188(5, and the "Sayward" was not seized until 1887, a vimc
later. What has the position of the " \V. P. Saywaid "'
in 1887 to do with the weather she experienced in l^^tif

Mr. Bodwell:— You noted tliat at the time. Where ilo
you say the " Sayward " was in 188tW

Mr. Lansing: I do not say, for I do not know, nonlnes
the Kecoi'd disclose. Your statement was therefore clearly
4oan error, based upon a confusion as to the years 188ti anil
1887.

Now, I will read the evidence of the witness Alexninier
Mcl^ean upon the modifications caused by the woatluji-,
which will be found on page ist) of the argument for the
United States. |Mr. Lansing lead the testimony iv-
fei'red to. ]

I submit that his testimony is substantially the same is
that given by the other witnesses, and that they all tend
to show the uncertain character of sealing.
50 With legard to the condition of the seaLs, I wish to adil
some entries from this log book of the " B^avourite " in
1889, and I turn to page 119: "July 1'). lS8i», (i v. M.
Canoes returned with 11 skins." Your Honors will hear
in mind that the " Favourite" in 1M89 was equipped with
13 canoes. " Keport many about, but not sleeping."

At i)age 121 of the log the following appears:

"July 22, 1 p. M., ciiuot's on lioaril with 12 skins; not sleepini* on
" account of cold wentlior."

"July 23rd, noou, weatber fine, but thick horizon, with little
aq " clouds. Canoes left; several seals soon from distance, but iioue
" sleeping on account of chilly atmosphere. Canoes returned witli 7
" skins; report many about."

" July 2()th, at noon, stowed mainsail and flying jib. Weather lim\
" with light breeze, N. N. W., and smooth sea. Plenty of seals si'in
" from schooner, but not sleeping. 6 p. m., canoes returned with 11
•' seals. Weather ttne, moderate breeze. "

635

(Mr. Lansing's Argument.)

•July 30tb, 4 A. M., canoes left with fine weather and calin. Mid-
■ • (liv. Htill calm, very clear, hoi)e8 of good catch, althongh none seen
■' li'i'U the vessel. 6 p. si., canoes all aboard with catch of 170 seals.
'• \\ cather very fine. Report a great nnniber of seals about, sleep-
" iiiL'."

•• .fuly aist, 4 A. M., weather fine, moderate lireeze from south. 5
■• A M. canoes left ship. Plenty of seals seen, but not sleeping. 12
" o'clock, weather ttne, light I'lreeze, south. Op. m., cauoes return
•' with 10 skins at (J v. m."

"^ On will find that tho position of the vessel was aub-
staiiti;»lly the same for botli July liOlh and l^lst. One day
ITii -cals were taken, and the next day, with good weather,
till canoes took only 1!>. This shows how much depends
uiMiii the condition of the seals, whether tliey are found
;uv;ike or sleei)ing. That liiey had been sleeping on the
■Mi[\] perhaps accounted for the fact that they were
awikc on the I^lst. All these matters enter into the
([(u stion of the uncertain character of seal hunting as
jocdiupared with other industries, such as fishing.

The experience of the hunter as a contingency has
l)ern (juestioned by my learned friend, and I read the
testimony of Captain Raynor, which will be found at
patii' 18» of the United States argument, and also the
tesliniony of William T. Bragg at page 197.

At page 11)8 of our printed brief, we have set out
the testimony of Captain Warren and of Wentworth E.
Bilker, with reference to the value of experienced hunters.
I Mr. Lansing read the extracts referred to. J At page 187
;oof oin' aruument, the testimony of Captain McLean is
set forth, and it shows that the mode of approaching a
seal is only one of the factors which goer, to make up the
experience of a hunter. In addition, the whitesealer must
liave (experience in shooting from an open boat, and shoot-
iiig under various atmospheric conditions. We find him
hunting seals in fog and rain, in light winds and high
winils, and with a strong sea running, when the seal and
tile lioat are both in motion; and he also says that if the
seal is not struck in a vital place the chances are that it
40 will escape. I submit that this evidence of Captain Mc-
Lean is fully borne out by the evidence of witnesses pro-
(liKeil (III helialf of Great Britain as well as those produced
(111 helialf of the United States.

iiic next contingency is the experience of the captain,
whicli also has been criticized by my learned friend, who
decides that it does not in any way affect the catch of
seals. As to the value of an experienced captain, I refer
Vdiu Honors to Haynor's te.stiniouy, page I'.ts, and of
AKxaiider's at page l}»i of our argument, 'i'he witness
vi>|ir,iks there of th(> executive ability reipiired on the
pari of the captain in handling his men, jiarticnlarly so
it lie had an Indian crew; and I ask your Honors to bear
ill iniiid that there are 8i.xteen claims before you for ves
sel> I allying Indians, while there are only four claims for
ve>-('is with white hunters.

1 i.naiii ask you to read the evidence of Bragg and of
( apiain Cox, at page It)!* of our argument, and the evi-
ileie (■ of Captain Alexander McLean at page I8!» a^s to the
advantage of having an exnerienced captain.
'0 A> to the chances of finding seals, I refer your Honors
te I a^e I'.Mi of the United States argument, at the bottom
of I III' page, containing the testimony of Captain Miner,
ain t(i jiage 1}>3, the testimony of the same witness; and
til !■ i>;e l!),5, the testimony of Mr. Alexander. At page 207
(if ciiir aigument appears the testimony of Alexander Rep

fl!

h:|, il

nu-

SWT

<;:;*;

(Mr, Lansiiif^'s Arguinont.)

pen, and the cross-examination of Ca|)tain l.auglilin Mr-
Lean; also tlie testimony of Captain C. N. Cox, at page -Jus
Yonr Honors will bear in mind that Captain Cox is the
witness who stated that tl'i y never found seals in' heids or
larj^e numbers. We have also on the same page tlui ics-
tiniony of Captain VVentworth E. Baker, who refers lo
" kick " in finding seal.i. Now] turn back to the tc-ii

lomony of Captain McLean, at page ISS of our argiMn( nt,

and 1 submit that his testimony is substantially tlu' s ,.

as that of all the other witnesses, as to the nncertaiiitv n\'
seal hunting. The testimony of Captain Warren, at p.igc
20" of our argnmenl. with regard to the weather zmus,
was explained by my learned friend Mr. Bodwell, liv
the statement that the " Dolphin " sealed near thtMn,i-.|.
and that, therefore, she naturally experienced ditfiMi nt
weather. As to that 1 have prepareil a diagram oj ihe
expeiience of different vessels ni Behiing t' ,i in iIr.

2o years issd. JssT and iss'i. That diagram . mws ilic
" liiwt'ring days," and is n)aiked " Diagram No. :>."
Your Honors will see that the large white dt)ts on
the diagram represent the days on which the canoes
or boats were not " lowered," while the circles represent
the days upon which they were sealing. I call your
Honor's attention to the data from the '2d to the loth of
July, lH8t>, as shosvn on the diagram. On the 2d of .Inly
the "Thornton " and the " Mary Ellen " were in the Sea,
and one was hunting and one wr.s not. On the 3d of Jidy

30 there were three ve.ssels in the Sea, two of which were not
sealing, while the "Dolphin" was. On the 4th of .July
there were three vessels in the Sea, and two were not scal-
ing, but the "Thornton" was. On the .^th none of the
vessels were sealing. On the tlth of July there were foui'
vessels in the Sea; three were sealing and one was not.
On the 7th of July there were four vessels in the Sea, one
was .sealing and three weie not. On the 8th of July all
were sealing. On the l>th of July three did not seal and
one was sealing; and on the loth day of July the same

40Conditions existed. I might go through all these ditVer-
ent years and the same state of things would be found,
namely, that vessels in Bering Sea in the same year and
on the same day ex|)erienced entirely different weather.
There are, of course, instances where there is a genera!
condition of fair weather throughout Bering Sea. For
instance, 1 call your Honor's attention to the fact, as
shown on Diagram No. 5, that in 18H<), between the 28tli
of July and the 3d of August, inclusive, there appears to
have been a period of good weather. On the other hand,

50 from the 12th of August to the 22d of August, there
appears to have been an almost universal state of had
weather. In -iotne instances we tind a geueial storm
and in other instances a general condition of fair
weather; but the wh(de trend of the evidence is, that
the weather varies at different localities in the Sea.
With this evidence liefore you can your Honors con
(luile that all the vessels experienced the same condi-
tions of weather^ Yet that is what my learned friends
would have you do, and I call your attention to what is

60 stated in the argument in chief on behalf of Great Britain,
referring to that portion of it entitled " Method for com
puting the estimated catch "-at page 82, line 13— where
it is said, regarding the hunters on the "Carolena" : "If
these four men bad been working in sealing waters dur-
ing the whole of August, the weather and other conditions

(Mr. Lansing's Argument.)

Ik I III/ similar to timt experienced bi/ the ' Marf/ Ellen.' ^'
Niw', in view of Diagram No. 5, vvhicli shows tliat tlie
\vi .ither experienced by tlie vessels varied so nnich in the
same year, that assumption in the British argument is
ti.iiroly unwarranted, and that alone onght to do away
Willi the metiiod of computation proposed by our learned

fli.'IKls.

[0 Tlie evidence fully substantiates what 1 have said,
namely, that Captain McLean is corroborated in every
I'ailiculai' of his testimony as to sealing by the other wit-
iioscs called before this tribnnal who have had sntficient
p\|ierience to make them competent to testify upon the
|ii lilts in regard to which McLean gave evidence. I
[ill tlier assert that from the evidence 1 have read, the
ri'iulnsions leached in our printed argument aie fully
>ii-tained. 1 call your Honois' attention to what is said
at page rioS;

-'■' ■■ Tlie coiitiuf^oncioH wliu'li enter iuto the siieciilation of how ninny

■ -I'iil skins may be secureil during a huutinp; cruise i" Bei-ing Sea,
• which have been presented in detail with the substantiating evi-

•■ deuce, may be brieHy summarized as follows: The gmnlluess of the
•■ vessels enii)loyed; the extraordinary perils of a voyage to and cruise
" 111 Bering Sea; the experience and skill of the master, hunters and
•■ crew; the unreliability of Indian hunters through their ignoi-anco
'■ ami superstition; the frequent inclemency of the weather; theprev-

■ iilcncy of fog and rain; the condition of the animals when hunted,

■ and the uncertainty of finding seals. These contingencies, the
'■ I'uited States claim, are of such a nature as to make impossible any

method of com]>uting an estimated catch which will be just."

!'■

'■ ^ b

»l >\

1^ I

ii|!

At 4.15 p. M. the Commissioners rose.

;rf< ;■

■ I

l^'

Commissioners under the Convention of February 8.

1896, between the United States of America

and Oreat Britain.

Legislative Council Cliainber. Provincial BuiMiim.
Halifax, N. S., September IT), isjit

At lU.;Ui A. M. the Coniniissioiiers took their seats.

No Defined " Skalino Gkounds " in BuHmNct Ska.

Mr. Lansing:— When the Commission rose yesteidiv
afternoon I had finished n)y discussion of the uncert uii
character of seal hunting, and I now propose to t;ike ii|)
another one of the contingencies which is dealt with in omi
argument under the heading, "No Defined 'Senlin-
Grounds ' in Behring Sea."

In the opening part of that portion of our brief a eni:
cism was made on the use of the words "seal fishing" :iiii|

-o " seal fisheries." They have been constantly eniplov I
here and elsewhere through misconception of the methn U
employed in taking seals and through the thouglitii->
adoption of common error. In fishing, is there any nects
sity of finding the fish asleep, or of being careful not \,t
disturb them? Is there any necessity of ajjproacliin:;
them froni the leeward? Is it required of fishermen in
be particularly expert in determining whether the fisli aiv
slumbering or not, or is there any demand for peculi;n
accuiacy of marksmanship with gun or spear? Do tlnv

.50 pick up fish one at a time here and there, or do they taiv'
them in their nets by thousands, andean they follow a
wounded fish and have perhaps twenty opportunities to
secure it? It seems to me that our criticism is entirely
just; that there is no more likeness between seal huntin;;
and fishing than there is between duck shooting ami
fishing. On the other hand, there are a great many
similarities between duck hunting and seal huntini;.
The mark is often very much the same. We have tin'
witness Cotsford. examined by my learned friend, test 11 v

40 ing directly upon this point. He is asked at pnge li^n uf
the Kecord, line tiS:

" Q. Do 1)011 Ihink il niuti'ti/ iin iliffiiiiU lo a/ioot n sp.nl (ixlfeji mi llf "■(/• /•
" ^(.s- lo slioiitu i/idl /{i/iiiij, iril/i II ritii; ; wliich ilo yon tliink would lie \\\i-
" harder? A. 1 lliiiik ahoiil Ihf mimf mi thu wnler, hecmise i/oii li'iv iIk
" ilouhle miiliiiii ; Ihn bin/ isjli/tiii/ ; Ihnboiit in in iiioHon ; but I tliinli thu
" bird "vonld be tlie hardest of the two ; at least, 1 am uot so well m-
" onstomed to shooting birds as I am seals. Therefore I think liirds
" would be the hardest of the two."

Von will see that in nearly every instance of seal hum
5oing we have found that the water is comparatively rough.
and that the mark is uncertain an 1 small, for a seal sleeps
on his back, with only bis nose and hind Hippers appearini;
above the waves. lie is therefor*- in motion on the ronuli
sea; the b(»at is also in motion, and the marksman nui-t
be an accurate and skillf-.d one who can strike such a mark.
And when the animal itself is awake, "traveling," wiiii
only Its h"ad above the waves, the mark is still more ditli-
culc. Seal hunting is nuich like sea-otter Imnting, and.
because the otters resort to certain j)laces having cerl.iin
6oj)eculiar climatic conditions, we do not speak of any |iai-
ticular locality where they can lie found in abuntlainv.
Suppose a vessel was interrupted in sea-otter himlin,:;,
could it be asserted that the probable catch of that vcsmI
could be compntod? It is common knowledge that tln'
industry is a matter of speculation. A vessel may retiiiii

639

(Mr. Lansing's Argument.)

witli two otters, or perhaps seventy-five, each skin worth
from $200 to $800. Of course there is an op|)ortunity to
make enormous profit, hut it is merely a chance whether
till' venture is remunerative. That is the position we
assume in regard to seahng. It is an opportunity and a
cliMUce of i)rotit, hut no certainty.

We also adverted in our printed argument to the fact

lotliat tlieie were no fishing hanks in Bering Sea, and in
answer to this my learned friend referred to- the testi-
mony of Laughlin McLean, the witness cited in so many
instances on helialf of Great Biitain e.rcept ns to thednra-
linii of the season. He is (juoted as saying that there are
•sand hanks" in Bering Sea, hut he does not tell your
Honors where these hanks are to he found; and of the
liundred witnesses produced at Victoria, no other one
s|i(aks of these lianks of sand. I suhmit to you Exhibit
No. 7!S, Great Britain, which is a chart of Bering Sea. I

joask your Honors to examine the locality pointed out by
Mr. Bodwell as peculiarly a sealing ground, and I ask the
Itarned Senior Counsel in reply to point out a single point
in tliat area where the water is less than 300 feet in depth
or where it is usually less than 1,000 feet.

The next assertion made in the oral aj-gument of my
(riend, Mr. Bodwell, was that the position of the United
States to day is opposed to that assumed before the Paris
I'l ihunal, and that the United States before that Tribunal
obtained inserted in the regulations formulated by the ar-

3obitrators a prohibited zone about the Pribylotf Islands. I
snbniit that my learned friend is in error. This is the
second criticism made as to the position of the United
States taken upon the facts presented at Paris. It is the
second time that it has been alleged that the United
States have changed their position; and this second asser-
t ion is as erroneous as I have shown the first to be. There
has been no change. The United States not only opposed
a prohibitive zone from the outset, but it was Great
Britain that pioposed it, and I charge Great Britain before

40 this High Commi.ssion with abandoning that position
wiiich she so strenuously advocated before the Paris Trib-
unal. I refer your Honors to page 258 of the Case of the
United States (found in Volume 2 of the Ai.'orican Re-
piint) where the position assumed is, that any v..>ne which
(lid not include the entire Sea would be valueless; and I
also read the following from the American Commissioners'
repoi t contained in the same volume at page 374. They
say: " Among other plans that have been suggested is the
" establishment of a zone surrounding the Islands outside

rO'oi which pelagic sealing might be allowed, and inside
" of which no sealing vessel should be permitted to go.
"This plan has the advantage of being satisfactory if
' properly executed. If the radius of this protected area
" is great enough to insure the exclusion of pelagic sealers
" trom Behring Sea and the North Pacific Ocean, it would
" lie entirely acceptalde. But when the radius of ten
miles, or thirty miles, or even fifty miles is suggested,
" the impression is strong that such a proposition is not
' intended to be seriously considered."

Now, to show the position of Great Britain on that
|U( stion, I will read from the British Commissioners' re-
101 1, at pape 46, Volume 6, American Reprint.
.Mr. Bodwell: — These are not in evidence.
Mr. Lansing;— I am simply replying to your statement,

(>o

?>l! ■ I

:' '

■t' 'I'
:i ■

(tin

(Mr. Lansing's Argument.)

of which there is no evidence, that wo have changed oi i
position.

Mr. Bodvvell: — If, in rejdy, wei-e 1 from other portinns
of the hooks that are not in evidence, there will not lie
any ohjection?

Mr. Lansing:— If my friend thinks he can substantial!'
his earlier statement by wiy anthority, I am willing th it
10 he should make the attempt, using any book, affidavit,
letter or document he may see fit. I read now from pai i
graph 155:

" In view of the actual condition of seal life as it presentn itself to
" us at the present time, we believe that the requisito degree of ijri-
" tection would bo afforded by the application of the followinir
" specific limitations at shore and at sea: (n.) The maximum uuiiiImt
" of seals to be taken on the Pribyloff Islands to be fixed at 50,0(in.
" (A.) A zone nf protected waters to be establinhetl extending to n distance uf
" twenty nautical miles from the islands."

20 And in accord with these suggestions of the Briti-h
Commissioners we find one of the British arbitrators, Sir
John Thompson, in Aiticle 4 of his draft of regulations
submitting the proposition for a prohibitive zone
These regulations proposed are found in protocol 54, at
page 60, of Volume 1, of the American Reprint. We find
in the same i)rotocol legulations proposed by one of tlio
American arbitrators, and there is no suggestion of a zone
about the Islands. The prohibitive zone was subsequently
adopted, but both of the United States arbitrators votill
30 against it.

From the first the United States have held that there
was no limited area where seals were found in more
abundance than in another, and theiefore no basis for a
prohibitive zone; and the evidence taken by this High Com-
mission has fully substantiated that position. My learned
friend has told you that vessels seldom take seals within
forty or fifty miles of the Islands. Has not the position
of Great Britain changed since the tribunal of Paris' Sliu
asserted there that a prohibitive zone of 20 miles was all
40 the ])rotection needed to preserve seal life, and now .-ilie
says tliat within the prohibitive zone proposed by her
commissioners and arbitrator, there ate few seals to be
found. Tlie United States have been consistent and Great
Britain has not.

I tuin now to the evidence relied upon by Mr. Bodwtdl
in discussing this subject. The migration charts, as we
have sliown in our jtrinted argument, are of no value.
The data from which tiiey were made relate entirely
to the sea^s outside uf Bering Sea, and therefore they
50 cannot be considered by your Honors as any evidence
of a peculiar abundance of seals in any locality in Bering
Sea. Furthermore, it was shown at the time when tiiese
charts were offered in evidence, that the United States
did not use eitlierof them at Paris, but submitted another
chart to the distinguished arbitrators.

Sir C. H. Tu|)per: Which chart does my friend say was
not used at Paris?

Mr. Lansing: Neither of the migration charts were used.
Theie was one specially prepared, and was the only one
<^Oused before that tribunal.

Sir C. H. Tupper. By the United States?

Mr. Lansing: Yes

The sealing chart in the case of the United States sup-
ports our contention here. It shows that the seals are dis-
tributed throughout that portion of the Sea over which

(Mr. Lansing's Argument.)

\v( claim the females wander in search of food. This
(lint has oeen dealt within our printed arf>;nment and
fill I her reference to it is unnecessary, except to call your
att ntion to the fact that the chart is conventional and
tliii the dots representing seals are, of course, much
lai;4i'r than the seals would be if drawn by th« scale, and
fill llier, that where a collection of these dots appear the

losciils were not seen at one time, hut were distributed
aliMig a vessel's course for a day's run.

Sir C. H. Tup|)er: — Would my learned friend object to
niv making a statement so that there will be no confusion
on tlie lecord in regard to the charts. When we refer to
till ISO charts in the United States' Case we are referring to
tlicni as charts forming part of the United Slates' Case
served upon the agent of Great Britain and placed in the
hands of the arbitrators under that tieaty. In making
that statement I have no hesitation in saying that in ad-

20(]ition to that, during a portion of the argument, there
was another chart produced. \'y reason for referring to
these as charts of the United States is because they
fdiined pait of their Case served upon the agent of Great
Hiitain and presented at Paris.

.Mr. Lansing:— Does Great Britain now assert that these
migration charts deal with anything inside Bering Sea?

Sir C. H. Tupper: -I do not want to go into that. I

only refer to a matter of fact. They speak for tliemselves.

Mr. Lansing: — A reference to thedata from which these

30( harts were made show that they only deal with the seals
onlsiih Bering Sea and have nothing to do with the pres-
ent controversy, which is confined to Bering Sea; ar 1 to
use them here can only result in confusion and error.

With reference to the charts showing seizures and
warnings in 188t?, 18H7 and 1881>, I call your attention to
tile fact that Unimak is the most eastern pass of the
Aleutian Islands; that that was the pass through which
Vessels usually entered the Sea when on a seahng
voyage. It was, therefore, natural that the cruisers

40sli(iiil(l seize the schooners between the Pribylotf Islands
ami this pass. You will find another thing when
examining this chart, and that is. that as a rule, thf
later in ihe season the further away from the Aleutiai
Islands the seizures and warnings were made. This
fact may be accounted for on the supposition that the
vessels bad extended their cruises to the west of the Isl-
aiiils. not finding seals elsewhere. Yonr Honors will also
liiar ill mind that the collection of evidence that I sub-
milted yesterday from the list of Collector Milne, shows

50 that the vessels were smaller in ISSCJand 1^7 ' iian in sub-
setiiient yeais, and it was very natural tl.ii > -nail vessels
wmild remain between the Pribylotf and Aleutian Islands,
hi ( aiise they would be then less than 100 miles from land,
and in case of disaster or storm they could run to shelter.
\\ Inn larger vessels were employed they extended their
cruises and covered more sea, showing that these earlier
' ^;r(iiinds" were not considered peculiarly profitable by
the sealers themselves.
In regard to the cliarts, showing the courses of the

•^0 I nited States cruisers, four of which are in evidence, and
winch were presented in the original case of the United
Si.iies, at Paris, you will find that hardly any of them
ciiur the same ground. If there is any locality where
se lis are peculiarly abundant you would naturally expect
til lind the courses of these cruisers over almost the same

i( !•

!' \i

lie

l|i

tl4'J

(Mr. J/onHing's Argmnont.)

coiitiiied area, but it was not ho. An examination of iIr.
charts shows that the ciiiiscrs 0()v*>retl, in nearly ov. ly
case, an entirely (lirt'iM'tMit sea area.

In regard to the Heahnjj; chart in t\w United States Conn.
ter Case, its conventional character should he horni in

mind, nnd tliat where you see a hunch of seals, say 1 i|

more, that tliat re|)n'sents the numht>r seea from the (|( . |<
loof one vessel during its cniise of twenty-four hours. Tiny,
therefore, should he strung along the line of Hio criiiso
rather than brought together in n. (tluster as they nc.
That is evident from the fact that they iire taken tiom
ohservatioMs made in Bering Sea by the cruisers in \^\f2.
The chart showmg the (;ruises of the American iiiv.il
vessels is chart nund)er 4 of the Counter Case. In that eh m
you will observe that the principal cour.se of the vessil- is
from Unalaskatothe Hribyloff Islands, which was natiiiil,
for the naval lieadquarters were at Unalaska, and the iim
20 was made to the I'ribyloff Islands to obtain informal iiii
as to whether sealing vessels had been seen in the localitv.
The conuuanders of th«! vessels, knowing little of vi'.ii
hunting, expected that the schooners would goneiitu tlir
Isla'ids in search of seals. Hut we find from the evidence
before your Honors that that was not the comnion coinse
of a sealer, nor do our learned friends now assert that (he
waters immediately about the Islands were the bfst si ,!|.
ing groun<is.

Su- C. H. Tupper:— (live us the reference to the sliiin
3oment that these vessels ran t" tlie l*ril)ylotf Islands for
certain i)arposes.

Mr. Lansing. — I draw that ision from the evidcme

and well-known facts.

Sir C. H. Tupper:— It is a conclusion only.

Mr. Lansing: — Ves, and a natural one, based on Uiniwl-
cdge conunon to us all.

I now refer to the Tow nsend chart, which is discu^-siii at
page :il4 of our argument; and I call particular attentidu
to the fact that the data for 1SS«) and 1887, platted upon
40 that chart, are derived from the logs of the " Mary Elltii"
and the " Favourite." The " Favourite," which has a claim
before your Honors aird which the learned counsel ikiu
assert left the waters where .seals were abundant a tier
being warned, is used her'e to establish the location of stal-
ing groirrids in August, issd, and she was alleged to liave
beerr warrred at midniglit of the I'd of that month. That
one of tiiese clairrrs is irrrtenable is apparent. In disciissiiiij
this chart in their' printed ai'gnrnent in chief my leaniiii
friend.s stated that it showed that seals vvei'e taken in
joSeptember and they saw fit to italicise the word " S, p
tember." Fr-orrr all the data relating to the years lss:i to
1893 which were collected by Mr. Townsend, there are
but two ihifes that show catches of seals in Septerrrlicr'.
The italics are entirely unwarrarrted and misleading. I'lre
second Townsend's chart is for the year 18t»4, and supports
the claim of the United States as to the extensive area of
.sea over which the seals roam in their food excursidiis.
Now, I assert with confidence that these charts r)eai' out
fully our contention that there was and is no partic lar lo-
locality where seals are to be found in peculiar abu'iciame;
and that they wander from the islands, north, souilr. cast
and west, extending their journeys in search of food to a
distance of 20U miles and more from the Pribylotfs. TIh>
evider)ce for these pr'opositions beside the charts arc vn\-
lected in the United States argument at pages 2J0 and :'-'>.

114:5

(Mr. liniiHing'H ArKiiinuiit.)

1 will not rcfid tlio tostiiiiony, oxcoptiiij; th;it of four wit-
ni'ssos, who aro liirgoly '"lii'd upon by (iioat Britain in this
I iiiitrovcrHy. I will ri'ad first whiit Owon Tliuniiis said of
till' seals in this aroa. wiiich is qnoted at payo 220 of the
L nittid Status ar)<unii>nt:

■•I). How iH it tliiit voiir cntch wiih liinitiMl to iibont 500 HkinH iu
■■ IHHH, ou the ' I'lithtintlfi- • in tiio IMiriiiK H.-u V A. Woll, I could
•• not Htrikf the HoiiJH; I couhl not ni-t unioMj?Mt tlit-ni, I HiippoHo."

This witness was pilot on the " Carolina," in the spring

ol issCt, and was a hunter on the " Black Diamond," in

I'liiing Seii, during the same v»'ar; ho was mate of the

• I'alldindor," in 1SS7; master of the "Pathfinder" iu

I "'SS, and master of the " Black Diamond " in IHS'.t. Cer-

iiinly if the grounds were " well known and easily de-

tiii(d,"as the opposing counsel assert, Thomas, with all his

experience, would have known their location.

I will read also the testimony of 0. N. Cox, (juotod at

2i'|i;int' 221 of our argument:

" Q. How (lid von ftml tho hpiiIh thoro ? A. Hcattorcd about.
" li. Ou oovtuiu grouuilH ? A. I seldom find tlioui on the Name
" uroundH."

That shows very evidently that it is a matter of luck and
s|i('(ulation where tho seals are, and whore they can bo
lound.

1 also read from an affidavit of Captain VV. K. Baker,

uliich he made at Victoria in ls<)2, before the Collector of

.^jt'ustoms, and which he staled before this Commission to

he true. Tho portion relied on is set out at page 222 of our

aigument; he says:

" I have noticiul iiIho that they ftho soalw] ciiaugo thoir grouud
•• (rem time to time; and wliuro you ttud thoiu tliis year you may not
" tliid thom tho uo.'ct. Thiw was vt>ry remarkablo duriun tho voar 18'J0,
" for the Healn wert? all found to tlie easlwdrd of tlie I'ribyoff Islaudf,
" while in the former years they wore all found to the westwai'd."

And now, following that wo have the statement of
(':iptain William Cox, given in evidence before your
40 Honors, and quoted at the same l)age of our brief:

"Q. Where did you fish in 1S90? A. I was all over the Sea.

"Q. Did you (fo to the westward of the islands? A. I did, sir.

" Q. How far east did you n<>V A. About ninety miles.

•'Q. Did you cateh seals there? A. I did not see any."

(And this was right in the locality where Bakor said tho
seals were found that year. )

" Q. In what year. A. In 1890.

" Q. Yen ciiiiyhl none eusl? A. None."

,0 Certainly it is a significant fact that these two witnesses,
liotli .successful sealing captains, testified — one, that all
tlic seals were found iu l^ito to the eastward of the islands
Mild the other that ho found none there— it is a significant
fact, for it shows conclusively that when Baker was east of
the Pribyloflfs the seals were there, and when O'Leary wa»
ill the same locality the seals wore not there. I ask i;hf;
counsel for Great Britain if these are " well defined " seal-
ing grounds.
iUit the conclusions which have been reached by my

6o learned friends in their oral arguments are very ditterenf.
(vom those urged in their printed brief, and now ap])ear
to 1)0 much the sanie 'is those reached by tho United
States from the first. They now claim that the area where
t lie seals were found is between longitude 105° to 173° west,
111(1 latitude 54° to 58° north, while tho United States

ill

li:''ti

i* i<

044

(Mr. Lansing's Argument.')

nssertt'd in tlioir printed argument tluit tho limits oxtendtM]
from l(i5" to 175° west— I inigiit. 1 think, from theevidciK c,
change the last parallel! to 17(5"— and from 58" to T)!*' iioi ih
latitude; and on this point I call your Honor's atteni imi
to chart Xo. 4 in the United States Counter Case, in tlic
Paris Aihitration. and also to the seiding chart in (he
same volume. My learned friend, Mr. Hodwell, v]\-

lodeavored to make cajntal out of the fact that the r):!i(l
parallel was helow Uniniak Pass. It scarcely sei-ms
necessary to point out that west of that Pass the line ciits
across t'le lower extremity of Behring Sea; and there is
ahundant testimony that seals were seen and taken tlieiv.
In regard to the distrihution of the seals in this lai!;t'
area, we have a statement from th(> Iteport of the Britisii
Connnissioners, in whicli they assei ted at page (')4, voUhium;.
of the American Keprint, thato»( orcnKje of oulji tiro seals
to flie .s7/»rt/c link' are found in Behring Sea, in the places

2o wnere they are most abinidant. Now, I submit that if yeiir
Honors were called upon to determine the probable results
of duck shooting wheio ducks were not more plentiful than
two to the square mile, the number would be zero, and yet
there is a chance, but only a chance, that a man might gel
a largo number of ducks in tiiat area, an area of over KHi.odu
square miles.

I also call attention in connection with this qiiestion of
tiie distriitution of seals at sea and their abundance iri
particular localities, to the evidence of J. H. Douglas, tlio

30 United States marine jHlot, which our friends cited in their
printed argument, and which we have commented upon
in our reply. The statement relied upon reads as follows:
"That the seals aie at all times more plentiful I etvv'en
" Unimak Pass and the said islands in a track thirty Miiles
" wide which seems to be their highway to and from the
" islands." Now, my friend Mr. Bodwell disclaims that
that was used for any purpose except for the month of
June.

Mr. Bodwell: — No, I made myself dear. If you read

40 what 1 said my meat ing is clear.

Mr. Jjansing: — I have read what you said, and I have
stated the substance of it. Here is your language (Mi.
Boilwell's argument, page ;iL'2, line 1): " The witness states
" there was a stream of seals i)assing through the Pass
"and going to the Pribylotf Islands, irhc.ii thei/ ii-cir an
" llicir joiinivji to till' isldtidn. All the oral evident'
" demonstrated that, and the charts indicated it as well.
" But ;it that time tlie seals are traveling and our case
" always has been that you cainiot take the seals very

50 "easily when they an- traveling. ( >in' case is that the
" lirineipal hiuiting was done after the si>als had reached
" the islands and scattered in search of food." WIkmi
wiM'e the seals "011 their journt^y to the islands;" Why,
ill Jiiiw; and solids statementof Douglas nni.st have been
used in reftMcnce to that month only. There is no mis
understanding between us. If. as you say, this statenn nt
applies to June, then it has no bearing on this case; but
who for a moment conceives that our learned friends
offered it in evidence believing it to be immaterial to this

60^'ontroversy and without intending to use it to show an
area, where se.Js could be fnmid in abundance by the
hunters? We understood the learned counstd and ap
preciated his oral argument on this point, but I must de-
cline to withdraw my assertion or to modify it.

It seems, then, that our friends ui)on the other side now

'11! ■

646

(Mr. Lansing's Argunient.)

admit that tlie seals aro not tai<en while proceeding from
I'liiniak Pass to the Trihyloff Islands, hut wliile they are
s( it tored ahout over the Sea in search of food, coming from
ami returning !o tlie rookeries on tlie islands.

Your Honors will perceive then that the difference he-
tuct'Mtiieconiention of Gieat Hritain and the United States
at the piesent time is this: (xreat Britain asserts tiiat the

lowaters in Bering Sea frequented hv sealscover an area of
between ninety and one hundred thousand scpiare miles,
winii' the United States assert that the area is one hun-
(Ircil and fifty thousand scpiare miles. I do not conceive
tluit it is material vliidi view the Connnissioners adopt,
tu'cause such a lai'g'> area cannot he said to he a " well de-
fined " sealing ground. The portion of Bering Sea as-
serted hy the United States to he that over which these
food excursions of the seals extend isecpial approximately
ill area to the North Sea. and who would term that entire

.?osea a " fishing ground "? ■

The conclusion reached in our argument at page 227
has been suhstantially admitted hv our learned friends in
tlieir oi'al argument, and I will, therefore, no longer oc-
(iijiv the time of tliis High Commission witii its (liscus-
sidii.

Duration of the Skason.

1 jwopose to call your Honors' attention hriefly to an-
(itlier contingency which nuist enter into any system for

jur(iiii|iiiting an estimated catch, and that is the duration of
tlieseasoK. The United States conceive that ai)proximato
Mceiiiacy can he I'eachedas to this contingency and that the
time when the scaling season in Bermg Sea commenced
and closed can he determined. Tiie suhject is not alone of
luriiliar importance because of its relation to tlu^ (juestion
ef an estimated catch, hut hecaus(>, together with the
time occupied in a return voyage to Victoria from
iieiini,' Sea (whicli I have already discus'sed), it will prac-
tical!) fix the date when the skins seized hv- the United

4oStat(>s would have been placed on th(? Victoria market
had no interference taken place; and, furthei'uiore, in
cases of detention, if any sucli are found, it will deter-
mine, in tlie admeasurement of damages, the time for
wbieii a charter value should be allowed.

1 do not propose to go into a detaili'd examination of
Ihe evidence upon this jioint. or of the criticisms made in
tlie oral arguments of our learned friends;! shall leave
lliat to my associate; but in .i' /ordance with the sug-
j^estidii of one of the ('onunis>-ii>ners, made a few days

■;oapi. I jiropose to confine mv.st it to isss and isito, and see
whai was the (((•//(«/ c,i7»('/-/V,/c .IS to the duration of the
srasmi 111 fbc.s(> two years there were no seizures, and
it eaiiiiot be claimed that the voyagt> of any sealing
s(ii(i(ine!' w;is intiu'fei'cd with. Our learni'd friends have
il.nnied that is'.M) was a had season. I submit that we
liave -^liown tjiat that assertion was an error, or at least
tlial il wascpiestionahle, for W(> have testimony both ways,
liul, it it were true, then, aci-ording to their theory that
a vessel remained in the Sea until a good catch was made,

'^otlie sea.siiii (if IS'.Hi would have been unduly extended, and
tliev raiinot complain of my employing the data for that

Ve.iV

I II iM> prepared a diagram with regard to the duration
el tlie season, to which I now wish to call your Honors'
ilti ntioii. It is marked No. 4. The circles show the Hist

SHii

i ■i'l|l

'I i

!' I*

64<(

Itf

vMr. Lansing's Argument.)

and last " lowering days." A circle, with £, dot in it,
shows that the date of entering or leaving the Sea, and
tiie first or last "lowering days" were the same. The
white line shows the number of days tlie vessel wns m
the Sea. The circles at the bottom of the lines show I lie
first "lowering days," and the circles at the top show the
last "lowering days."

10 In ISS'.t we have marked with a red line the dates of
warnings; and I also wish to call attention to the cnii-e
of the " Molly Adams " during the same year. Your Hon-
ors will remember that the data with regard to that vessel
was given by Goudie; he testified that lier last "Iowlt-
ing day" was August :i;'.rd. but that she remained in the
Sea until October Sth. for tiie purpose of laidingtlie lodk
eiies on tl.e Pribylolf Islands. The vessel was in cijin
mand of tlie notorious "Sol" Jacobs.

From this diagrara (No. 4) we can calculate the avera;;e

20 date of entering the Sea, and we find that in 1S8S it was
July 14th, tliat the average day of leaving the Sea uas
August 2()th, and that the duration of the season uas
forty-four days.

In ISlMt. \vt> find tiie average day of entering the Sea was
July iL'tli, the average day of leaving the Sea was August
•27th. and the duration of the season was forty-seven (lay.s,
For i)otli years, tlie average date of entering the Sen, uas
July i:'.tli; the average date of leavinj.'- tile Sea was August
I'Ttii; and the average duration of tin; sea.son was tnity-

30 five days

( ir we can reach it in anotlier way. In 188H there ui're
10 vessels which iiad a combined sealing season of 4:i4
days, an average per vessel of 43.4 (hiys.

in IsiMi there were 17 vessels with a sealing season of
7t*(l days, an average per vessel of 40.0 days.

In isss and JSi»o there were ^7 vessels with a coniiiincd
.season of l,±2i days, an average per vessel of 4r).;5, wliicii
is the same as the average weoi)lained by the other method
of computation.

40 Now, having determined the average duration of the
season for these two years, let us see wliat period of seal-
ing is claimed by our learned friends for the vessels wliicii
weie seized oi' warned. We find the season claimed for
the " Caiolena ■' in issi; is so days; the " Thornton." til
days; the "Onward," .">l days; the "Favourite," 57 days;
the " Black Diamond," (i;i days. In 18S7 we find the
duration of the season assumed for the compulation of the
estimated catcii to be for the " B'avouiite." 77 days;
"Anna Beck," so days; "Alfred Adams," 54 days;

50 " <'raie," 01 days; " Dolphin," 00 days; " Ada," 0;{ days,
and the " Tiinmpli," 41 d.;ys. 1 should note the fact that
the " Triumph " is f( ui'tlayssimrt of tiie average, while the
"v twenty or thirty days above thi^
former entered the Sea late in the
only 15 tons buithen. In the case of
issii, the claim is made for 70 days;
71 days; tiie " Black Diamond." 72
of the "liily" tliere is nothing to
detetniine how long a season is claimed; the " Minnie,"

C^jSddnys: the " Triumph." !Mi days, which is twice as ioiij;
as the average for the two years 1.S88 and l8!Hi; the
"Ariel," S2 days, and the " Kate," 74 days.

Now a word in reference to the last "lowering days."
First, witii r 'gard to 18,S0, we have the record ot 11
vessel-, 2 of which lemaiiied in the Sea after August 25tli.

others are genertil
average. But the
season and was of
the " Juanita," in
the " I'atlifinder."
days; in the case

(i-17

(Mr. Lansing's Argument.)

and I "lowered." In 1888 we have 10 vessels, and 4 were
in ilie Seaafter August 25th, and all "lowered.'' In 1889,
thr year when warnings ocxurred, there were H vessels in
the Sea, 4 of them remaining until after Augus^t 25th, and
only one "lowering." In 1890, 17 vessels were in the Sea.
and 10 remained until after August 25th and rt " lowered."
Now, take another date, Septeniher 1st. In 1880, no
lovessels remained in the Sea until ihat date, and, of course.
iiono "lowered." In 1887, two remained in the Sea, but
UdiH' " low^ered." In 1888, three remained in the Sea, and
one "lowered." In [8!^y, two remained in the Sea, but
neither " lowered." In Lsyo, seven remained in the Sea,
and we have the record of onl}' three actually " lower-

u:g.'"

Now, what do we find in 188H was the average last
••lowering (lay " for the eight vessels of which we have
the record? (1 take 188^, as I have said, because in that
joveav and 18tt0 there was no interference with the sealers.)
We find the avci'age was August 22d. In 1890, for the
twelve vessels of which we know the last "lowering
(lay," the average was August 2-lth. I merely desire to
call these facts to the attention of your Honors without
ciiniinent, as they determine conclusively the duration of
ti\i' sealing season in Bering Sea, and I challenge my
learned friends to meet the issue scjuarely when closing
their argument.

Value of Vksski.s.

1 now. propo.c;e to deal as liriefly as possible with the
question of the value of the vessels seizetl. Without dis-
tussing till' legal (|uesti()n as to how the value of these
vessels sliduld he determined, 1 shall assume, in discussing
the evideiK^e, that tli(> I'liited States' contention is estah
lisiied, namely, that the measuii' of damages in each of
tlie.se cases of total loss should be the market price at the
poi t ot departure of the ves el in the condition she was at
the time of her seizure. This was the rule maintained by
Y'lhf United States from thefiist, ami it was ilie rule origin-
ally proposed l)y our learned f i ieiids on the other side, but
troiii which tlu'y have now deiiaiteil. The l\'ecord dis-
closes the position which tlun' took during the early ses-
.'^iciiis at Victoria. 1 read from page lo;^;

■• Q. Now, as a matter of fact, were yoii ilesirouH of selling this

• s<li(ioiior, tlic ' Carolcua'? A. No, I was not; I liought the ' PatL-
" tiiuU'i' ' in aildition to the ' Caioleiui.'

" Tlio ('oiniiussioucr ou tbc i)art of tlje United States : — Mr Peters,
" is tliat eviileuoe tjoiug to iicl}) as in tliis ease, or are yoii getting it
" ill for luiotlier ease ?
~" "Mr. Peters :— When we come to get at the value ot these sliips,
'■ it is almost n(eessar,v that we shoulil look at the value of some other
•■ sliii)s liesidos the ouo we are dealing with. One may say tliat the
■ ' Caroleua ' is worth :S4,(KH) and another, iierhaps, ?3,00(l, ami we
" I nil, ]ierhap8, get at her exact value oud see which of them is telling
" tlie truth.

■■ The Coinniissioner on the part of the United States : — If you are

• gouig to show the sales of other vessels, you ought to prove their
'' 'oudition, tonnage, i^e.

" Mr. Peters : — !• am j.-repared to do so.

• The Ciommissioue' on the part of the United States : — Do you
'■ think we should he helped by that '!
'"' "Mr. I'etors : — If you look at the ease made on both sides in this
■' piirtiiMilar matter you will see there is a great divergence of opinion
' !!>' lo wliat these sealing vessels are worth. We wish to refer
" 'let only to the actual schoimers in dispute here, but also to some
" ^ichooiiers which are not in disimte — bolli American schooners and
" English schooners — to see what they are worth.

■ 'I'lie Commissioner ou the part of the United States :— I have had

-f,'i'j

■ ,

>''-'

'k-

'!^l*-(

•, -- 1

&]i

64S

(Mr. Lansing's Argument.)

' a good doftl of experience in that direction, and I never found unv
' advantage to come of it, except of the most general charoctor.

" Mr. Peters : — My experience of getting evidence here is that nn-
' less you sift evidence of a general character very carefully it is nf
' very little value. One man says a schooner is worth ^150 a ton ami
' another savs it is worth S125, and when you come to ask how tlnv

made up that calculation v"u will find they are all different.

" The Commissioner on the part of the l/nited States : — What do
' you propose now ?

" Mr. Peters : -I propose to show that there are ten or fifteen vos-
' Bels, and that those vessels actually cost so much to build. I pio-
' pose to show that l>y the very best evidence.

"The Commissioner on the' part o the United States: — I do not
' know how such evidence would aflfect Judge King, but I do not tliink
' it would affect my mind in the slightest. The ocIikiI sales (ifximilur
' vessels ahmtilhis time would yive some sort of cbie.

" Mr. Peters : — / am going to jirove the iidital sales unillhe actunl «.,</ af
' some vessels. I do not see that I can give any better evidence timu
' that.

" The Commissioner on the part of the United States : — It is vi rv
' difficult to make any comparison, because vessels differ so mucli,
' You have got in this case what this vessel actually cost its owners,
' and you can prove the condition it was in.

" Mr. Peters : — I do not know what evidence may be given on the
' other side, nor do I i>r(ipose to say that we are bound by wlmt a
' man actually paid for the vessel.

" The Commissioner on the part of the United States : — Of comae
' you are not.

" Mr. Peters :— If he made a good bargain there is no reason why he
' should not get the benefit of it. Horn am I show belter the vnlw limn
' hy giving evidence as to what vessels u-ere sold for nl that time?"

^o Commissioner on the part of the United States: — I think
that needs a little qualification, as I rememher it, heciuise
from the outset Great Britain claimed that they were en-
titled to show the cost of vessels at Victoi'ia and else-
where, which struck me at fii-st as a strange proposition;
but after hearing the statement by Mr. Beique, it seemwl
to be a fairly opiMi (jnestion. As I remember, they not
only claimed the riglit to show the s:iles of vessels, hnt
also to get at their value hy showing what they cost.
Perhaps that does not contravene w'-at you are going to

40 say.

Mr. Peters:— Perliaps my learned friend will not object
to my making one remark at this stage. Let it be
thoroughly understood that from the very beginning of
this case we assumed to show the value of vessels by
showing what they actually cost to build at Victoria. AVe
had an immense amonnt of evidence directed simply to
that point. We also, in order to give all the assistance we
could to the Conuiiissioners, attempted to prove sales, and
also attempted to prove what it cost to jiurchase vessels in

50 Nova Scotia, and bring them around. We showed on the
line yonr Honors first mentioned the circumstances at
Victoria were so peculiar; and that was the discussion
that arose between tiie Commissioner of the United States
and myself when we attempted to get the evidence of
cost. That is the very thing that Mr. Lansing is now
reading.

Mr. Dickinson: — The point made by the United States
was that the best evidence of the market value was sales.
The answer made by my learned friend, to which your

(3o Honors acceded, w.is that it was impracticable to give the
best evidence owing to the conditions at Victoria, and
therefore it was competent to give secondary evidence.
evidence of a loss valuable character, the cost of building;.
in order to show value. That was how the evidence came
to be admitted, but that does not interfere with the argu

649

(Mr. Lansing's Argument.)

mcnt that they started out with the original purpose of
giving legitimate evidence of sales.

Ml'. Peteis:— Mr. Lansing, as I understand, makes this
statement that the United States always claimed that the
niaiket value was the proper method of getting at the
valuation of these vessels, and then goes on to say, that
that was what Great Britain originally claimed also. Upon
lotliat point we join issue, and if he thinks that was our
position he has misunderstood us. We have claimed from
the beginning that we were entitled to go into the ques-
tion of the cost of the vessels at Victoria in order to give
you all the facts, so that you might form a judgment upon
tlitiii. They have simpl" misunderstood our position.

Mr. Dickinson: -I think the Record willdisclose we are
ri)iht in our position.

Mr. Lansing:— I will read again what my learned friend
says on page 104 of the Record:

" How can I ahow better the value than by giving evidence as to
wliat vessels were sold for at that time?"

That was the proposition of my learned friend at that
tiniH. He had offered no testimony, ex(;ept the testimony
of William Munsie, as to the value of a single vessel, and
tliat was Munsie's opinion as to the value of the
'•Carolena." How did he follow it up? Did he continue
by proving the cost of building other vessels? Not at all.
In continuing his examination, was William Munsie

30 asked what it cost to build a vessel in the port of
Victoria? No; he was askec] for irbat price he bought the
" l'athfi»der" and tvhat the ''Viva"' cost him on the
nidiket. He was then questioned as to the purchase oftlie
" M(ujheUe\^^ next as to the purchases of the ''Otto" and
till- " Mary Taylor." Is there a suggestion anywhere
thidiigliout this examination, that my learned friends in-
tciulcd to prove the value of vessels by the cost of building
tli( in? The next witness called by Great Biitain was John
G. Cox. a member of the firm of E. B. Marvin & Corn-

40paiiy, who after stating his experience was asked (at page
Ul of the Record) what the schooner "Viva" was sold
for in 181I3. He was then questioned as to the purchase of
tilt' " Annie K. Paint." Was Great Britain attempting or
not to establisli a market value by these sales? The next
witiu'ss was J. J. Robinson, whose examination appears
on page 1.5.5 of the Record. He was asked as to the value
of I ho " Carolena,"

Mr. Bodwell: — On what basis? He says the cost of
building.

50 Mr. Peters:--At page 1.5.5, line 14, he says the cost of
biiilijing vessels j)er ton in Victoria at that time was $1.50
up. Iiuildor's measurement.

Mr. Lansing: — Yes; I was about to call attention to the
fad that this is the first general evidence given by any
niincss as to the costof building. But this may be said
til lir incidental, for did our learned friends proceed on
tlial course? No; they called tlie witness, Henry F. Siewanl,
ami asked him from his knowledge of shipping what the
" ( arolona " was worth, and they proved by him a number

'bnf sales: it was, up to this time, the sales of vessels my
friiiKJs were establishing. Now I contend that to show
tnnikt't value in this way was the original intention of
Cdunso! on behalf of Great Britain. If we examine the
sales proved by them, ^\e shall find them summarized at
pa^c 27.5 of the argument on behalf of the United States,

!, ■ 1.

660

^.1

(Mr. Lansing's Argument.)

and the valnation per ton appears in the tables on pn ■(.
275

You will find that they established several sales in Vic-
toria and as n.iany more of vessels biought from Novit
Scotia. If my learned fi lends had in their minds fidiii
the outset that there were peculiar conditions peitainiiiji,-
to the Victoria market, and that a market value derived

10 from sales was not a fair way to measure the value of tlu^
vessels seized, why ilid they produce this evidence? Why
did they not disclo.se tiie position they now have adoptid;
Here we have the proof of four vessels sold at Victoriji, of
which the average cost per ton was )?}>r). Mr. Muhsk's
valuation of the " Carolena" was si;5!) per ton; and on the
\'Bssels brought from Nova Scotia we have a puiclni.sc
price of $lon per ton. If n)y learned friends from tlietiist
intended to rest their case on the peculiar circumstaiirus
surrounding the market at \'ictoria, and particularly the

20 market for vessels engaged in the sealing industry, whv
did they otl'jr any proof at all regaiding sales? Wiiy wns
it not all expert testimony, liased uiion the witiios"
l<nowledge of the cost of building vessels at Victoiia?

'i'lif United States ))roved a mnnber ol sales of ve-sels
in Victoria in the years from lS,s-2 to ISS!». inclusive, and
|)ai'ticularly in the yeai' 1S8(I. which aie set out at pages
'-'(!(), -JCiT, L'tis and ^ti'.t of tlieir printed argument. My
learned friend, Mr. Hodwtdl, stated that in view ol then
position market value was not the pioper measine dt

30 damages; it was not the i)art of (treat Britain to prove the
incidents of these sales, that wasfor tlie United St.ites todd.
But 1 have shown that my learned friends did olfer pinols
of salt's, and tliey did endeavor by sncb sales to establish
what the market ])rice in Victoria was, and it was th.'ir
duty liidore rt^sortnig to sncb secondary evidence as the
cost of building vess(ds, to have completed the eviihiiie
relating to these various sales disclosed by the t(sli
mony. It was in their power to establish the ciicum
stances in nearly (.'very instance wliere we have not been

4oable to do so. As far as possi[)le we obtained the jjioofs.
but your Honois will (discive that our evidence in I'eiatioa
to tiiese sales rests almost entirely upon the testimony n(
Alexander McLean; and when be ceased bis eomiei:tion
with Charles Spring & Company in l.ssc, it was natunil
lie should iiave little knowledge of sales at Victoria after
that time, as bis residence was (dianged to San Uranci<r(i
We did not consider that we were called upon to alliiiiit
to supplement his t;vi(h'nce by producing hostile witnesses
fui tiiat purpose. Lbe burden resti'd upon my learned

;o friends. !^)Ut is tliis I be only evidence we have l)etnie
ibis Commission tbar niuneious sales took place in tlmse
\eais; No, there is other |)roof, and conclusive pioof. ut
the activity of the market for sealing vessels at Victoria.

\N'e have the ie;;istries of the vessels, whose claims are
liefore you. Mere are the registries of the " Alfii'd
Adams," till' '■ Kavomite.'" tlii' little "Triumph." the
■' VN'anderei ," tlie " Pathfinder," the big "Triumph." the
• Winifred." the "Juanita," the ""Ariel" and the
" Kate." Let ns see from these records if any sales tonk

6o]daceat Victoiia. The liist one is British K.xhibit No. "^i'.
ibe legislry of tb(! " Alfieii Adams." What do we limb
<)n Jamiary -2, l^sd, the executors of William Spring suld
the veNS( I, Cha I lesS] II ing, one of the claimants here, and
one id I lie executors ol William Spring, eonid havcest.ili
lished ail the facts in connection with that sale. It was

v(- =1

«;r>i

(Mr. Laiisintj;'s Argument.)

lint for Mi(? [Jniterl Stutos to rely u])on a witness' produced
on behalf of (iieat Britain, who was unquestionably hostile,
t(i establish the sale, but it was the part of my learned
li icnds to prove all tlie incidents connected with it in order
t(i I'urnish to the Hijijh Uommissioners the information
w liicli they should have to determine the market value of
shilling vessels at Victoria.

10 Here is the registry of the " W. P. Say ward." Exhibit
No. ."iL> ((1. B.) We find on examination that the "Say-
ward " was sold by Andrew Laing to the Scotts on tlie .5th
lA'hiuary. IMSit. That was a sale which could have been
estal)lished by my learned friends, because the evidence
oT Ijaing. who is a claimant, was taken before your Hon-
ors. There was also a sale of the vessel by T. H. Cooper
toOeorge Byrnes on February 7. ISS!). (leorge Byrnes
was a claimant and a witness before this High Commis-
sion, so was Cooper, and the incidents of that sale could

:o jiave been fully established. Then Byrnes sold the schooner
to liUnberg on April 20, 1SS!», and both ])arties to the sale
wcie witnesses before this Commission. A half of the
vessel was again sold on December 18. 18S9. and another
liaif on February 1, ISiMi. There are five sales of that one
vessel.

Now as to the little " Triumph," whose registry is Ex-
liihit No. 128 (G. B.). we find that she was sold by H. W.
Siiepoard to George Byrnes on December ISth, 188*(.
(ieorge Byrnes, as I have said, was a witness before youi'

30 Honors. Byrnes again sold the vessel on November ith,
INSS, to John and Robert Muir.

British Exhibit No. 74 is the registry of the '• Favourite."'
and it has recorded the fact that on January 20th. 1888,
4;i siiares were sold to Laughlin McLean, who was a wit-
ness called on behalf of Great Britain before your Honois.
K.xhibit No. lln (G. B.) is the registry of the "Wini-
fred," and it shows that ;^2 shares were sold by the execu-
tors of Popenberger (of which executors the witness
James D. Warren was one) to Robert Sharpe on Sep-

40teinlier 1.5th, 188:5; also the same executoi's transferred H2
shares to W. H. Dyer, on September J5th, 188;?. These
sales could easily iiave been established by Warren.
Mr. Sliaipe sold his interest on December 24th, 1888,
to K. C'lowe Baker, who was a witness here; and Mr.
Oversold HI shares to John Thompson on June KJth.
ls^4. Mr. Thompson was also a witness before your
Honors. John Thompson conveyed his interest to E.
Crowe Baker on September lid. 1884 (both were wit-
nesses in these pioceedings'i; and E. Crowe Baker sold to

50 McDonald 48 shares on November 14tl), 1884. W. H.
Dyer sold to McDonald It! shares on November I4th, I8.84,
and McDonald conveyed (14 shares on October 14tli,
I Mill.

liiitish Exhibit No. 77, the registry of the "Juanita,"
iliscloses that Richaid Hall. Ji'., and W. S. Goepel bought
the cntii'e vessel on December 12th, 188:5; Hall is a claim-
ant and was a witness before your Honors. 22 shares were
sold by them to Clarke on March :Ust, 1885, and Clarke
was a witness here. Ki shares were sold to Hengelson on

''oJ.iimary nth, 188!». Hi shares were also sold to Hall on
Octolicr :'>nth, I88I). and H! shares were sold to Goepel on
Oitohci' :5()th, 188',), and (>4 shares were sold to John Kins-
inaii on May 7th, 18!tO. All the evidence as to these sales
uiili icfeience to the " Juanita" could have been obtained
hnni Hall.

till.

*ilv:ii'

rtfla

(Mr. Ijonsing's ArKHiuoiit.)

The " Wanderer," wluise rcgiHtry is Exiiihit Nci. KM n;
B.), was sold by John Sahiston to (Jeorge Hoyniour on In
cenihor 3(1, IsstJ. Wo had proof of this sale olHiiiiicd liy
cross examining the witness Sahiston. but it was not nm
part to asi< him what tlie vessel was sold for, noi' wore \vi.
(•om|i('lled by any rnie of proceihne to make liim onr wit
ness foi that purpose. Seymour sold I'^ shares to Hmry

lol'axton on January 4th, l^sT; Paxton is a elainiant and
was sworn before your Honors. Seymour also sold :',:.'
more shares on tlie i;Uh .hnie, lss7. to Captain I'axton,
ami Paxtoii sold '.V2 shares to (,)uadros. All these saUs
could have been established by tlio witness I'axton.

In the registry of the big " 'rriMni|di," Kxhibit ,\o. 1»."> i(;
B.). we find that iM shares weres^old iiy naiiiel McLean tuW.
K. Blacketton December 7th, issT; and lM shares were Mild
by iM( lA'an to Joshua Davies. K. ('. Bak<'r was the all. ir
ncy fur Mcl^can and made the translei- on iH'cember Tiii,

JO ISS7, and tin' sales could have been ; stablished by liiin.
^I shares were sold by Davies to K. I'. Maker on Dfcciidji'r
loth, IS,h7. Tlien !A shares were s(tld by Baker and
Blackctt to James (i.C'ox on Octcdier lltb. iXSit. That
sale was established by the testimony of Alexander Mc
liCni and also by Baker on his cioss-examination. Theie
was another sale of ten shares to Stevenson and Jackson.
by Blackett on DecendtiM' 17th, 1M)0.

Then we have the registiy of the '" Pathfinder," Exlubit
No. !t9 ((>. B. ), which dis(doses that iMunsie and Carne

^,o8fdd eight shares of the vessel to W. K. Baker on Novem-
ber 4th, l.'^ltO. The facts relating to the transfer could
have been proven by Carne or l>y Baker, both witnesses
here. Eight shares of tlie sanu' vessel were sold to A.
E. Moigan NoviMnber 4th, I8!t(i, and that sale could also
have been established by Mr. Curne.

Now, we have reviewed the registries of !> vessels, and
between the years iss;', and is'.to, inclusive, we find a
record of !{<> sales. All the particulars in relation to
these sales could have been furnished by our learned

40 fi lends, and the information would have, I submit, sup-
l)lied your Honois with sufticient data to fix approxi-
matidy the market value at Victoria. But there are 41
vessels mentioned in Milne's list of vessels for Lssti and
KS87, and here ?cc hmr tin' ri'ffistrie.s of only nitie of them
anil tlicse shoii- '.W sa/cs. Was there a market at Vic-
toria? Were theiv any peculiar conditions surrounding
the.se sales? if so, why has not the evidence been pro
duced? Certainly if the proof had l>een submitted and
all the incidents connected with them had been laid befure

50 your Honors a market value would unquestionably have
i)(>en established. And since our learned friends have seen
tit not to sn|)ply this evidence, your Honors have no
alternative br.t to determine that llie sales of which we
bav(! the full details, are the only nu^asure for establishing
the market value, and they must be considered as the
guide to this High Conmiission in passing upon the value
ol the seized vessels.

I'he United States has dealt fidly in its printed argu-
ment with the quest inn of the cost of building, treating it

60 entirely as secondary evidence, and only dealing with it
from that point of view.

1 shall notiepeat what has beensaid in our brief in regard
to the const luction of vessels, but merely call it to yeur
Honors' attention In dealing with that subject the testi-
mony relating to the depreciation in the value of the

»;:.:{

(Mr. LansiiiK's Argumont.)

M --solswtis treated at lengt I); but I desire to call particular
attention to it here, as it must be taken into consideration
ill ilL'termining tin; condition of the vessels when seized,
1(11 your Honors will find that if the sealing- season
iMcnded from the middle of Kehruary upon the coast,
111 the usual time of return to Victoria (from the loth
til llie •JOth of Septemhcr), at least three-fourths of the
losciHOii had expired before the seiziu'es took place, and
till ref ore the (piestion of d«!teiioration is peculiarly ini-
|.i.it;nit in coimectiou with the value of the condemned
\i-M'ls. The evidence relating to that sul),it'ct is reviewed
at |iiige i".t!» of our printed argument.

Vciur Honors rememher the witness Matthew Turner,
tin rxpei'ienced ship-huildei' of Han Francisco, whose in-
l.riity and fitness as an expert even my learned friends
liave been compelled to admit. He testified that with
(Hilinary care, a vessel would depreciate ten percent. ])er
:(. annum. I ask your Honors" caieful consideration of that
-.talcment. because these vessels were constructed of
Muiifilas fir, and not of the wood of which vessi'ls aie built
i.M the Atlantic coast, and therefore the statements of Mr.
Tinner as to deterioration ai'e of more value than a long
, x|j('iience can he on the Atlantic coast. From fir'sl to
I i,-t the testimony is that the Nova Wcotia vessi-ls were
hitter, and that is the reason the Victorians came to Nova
Sidtia to buy vessels.

Mr. Bodwell:— Where do you get the authority in the
;i)rvi(lence for that?

Mr. Lansing:— They weie better, more durable, and of
lirtler workmanship.

Mr. Bodwell: There is no evidence as to that, and Turple
>ays ilirteri'ntly.

Mr. Lansing: C)f course; and so would have Cook and
Warner, and Sleightholme and Watson, and the rest
(if vour journevnieii ship carpenters, had they been
asked.

Captain Anderson, who gave evidence before your

4 lioiiurs, was the owner of eleven vessels, had been for a

lung time engaged in shipping, and was the head of a

111;,'!' ship chandlery establishment :n San Francisco.

Tliisexpeit .stated— and bespoke from a long experience

that the annual depreciation in vessels of that class was
ahimt ten per cent.; adding that there v/as a difference of
M|anion as to the percentage during tlie first year after
liiiilding. But that is immaterial here, as most all of the
iiiiiilenmed vessels were old, excepting those owned by
CiKiper. which had been constructed for' five or si.x years.
;o Captain Anderson stated further that he would consider
liiat a vessel after twenty years, which had been kept in
a seaworthy condition by re))airs or partial rebuilding,
would i)e worth approximately 40 i)er cent, of her original

IMSl.

.Mr. Bodwell If you want the reference as to the last
slateinent I made, t refer you to Turple's evidence, page

.Mr. Lansing: Thank you; I am familiar with it. My
liarned friend, Mr. Bodwell, criticized the statement of ten
'0|i.acent. depreciation, on the ground that at the end of
ti 11 years the vessel would he of no value at all.

The Commissioner on the part of (treat Britain: Ten
|ii'i cent, would be only oft" tlio balance each year.

Mr. Lansing: Certainly, your Honor. A vessel worth
J'I'iiMKt would after the'first year he worth $»,(MiO; and

' I I'l

'i::

M j B WMH I J^ Ml#l»U!»M 3|p*l

tiiH

^'f

30^

(Mr. Laiisiiipi's Argiinieiit.)

hIio wiiiild (le|>r«'ciato !i*!MiO tlie year following, so thai ,ii
the end of ten years yon will tiinl that the vessel wmild
be woi'tli between 3n per cent, and 4(» per cent, of i„r
original valne.

We also have corroborative testimony from a witn.ss
called on iiehalf of (ireat Britain. 1 refer to ('a|.i,nii
Sieward, who was asked by the Commissioner on tiie put
loof tiie United States, what would be the ordinary w.ai
and tear npon a sealing vessel, atui he replied: "Tiu'
ordinary wear an<l tear would be ten per cent." Th,.
Conmiissioner on the part of Her Majesty then asked lnm:
"Do yon deduct ten per cent, for wear and tear on ,1
vessel two years old<" And he replied: " It is the cMstdiii
to allow that on tlie average every year as we go ali)iiu."
The following testimony on this subjeit was given i,v
Captain J. D. Warren who had the management ol lii..
" Cooper vessels ":

~ " J}y till! CouuiiisHiout'i- ou tlu' piirt of tho Uuitril Htntcs:

"Q. Wlmt would it cost to relit this ' Thorutou 'V I tlo uot an

"the outfit; but you say you tliorouglily rotit every autumn; Imw
"much (lid it cost each year to retit — take the ' Tliorntou,' foi- iji-
" stance V A. Well, she would cost, of, I should say

" y. lain si)eakiug simply of tlu! vushcI herself, to make ^ood Iht
" wear and tear ? A. I think she would take fully iSl.iMtO a year, (inc
" year with another; one year she might not take so much and
" another a good deal more.

" Q. ])o you mean the wear and tear would be as much as that y .V
"The runiiinK fjear is a fjood deal, and the sail is a good deal, and

then they have to be thoroughly overhauled and X'epaireil, and if

they ro(iuire any caulking, to get it. and once in a few years liavc
" to put in new chaHing and overhaul them.

" Q. Do you mean a vi'ssel of th<' size of the 'Thornton' weuld
" take that"? A. I think she would take fully that.

" Q. That would represent the wear and tear, would it ? .V. Vts; 1
" think she would take aboiit that. The sealing business is a prcttv
" hard business on these little vessels."

We also have the statement of the witness Mattluw
Turner, that, if it vessel was weakened by being length
ened, s^»e would decrea.se in value from fifteen to fweiitv
cent., and that she would decrease in value ahduf
.'.ame, if being a sailing vessel she was altered hv
putting in steam. .All these witnesses are cited at p.ii;.'
liit'.tof our brief, and the references to the Record are theiv
given.

The conclusions whitih are reached after a full discussiui)
of tiie value of these vessels ari' to be found on page '.Mi\
of the argument on behalf of the I'nited States, and I
submit tliat these conclusions have been fully estiili
lisheil. 1 shall not read them, but will only |)oint oiii

(;othe principal ones. The first conclusion is that in tli«'
yeais Ks.st; and is.sT thert? was an open ami active niarkd
at Victoria for vessels suitable for sealing, and markii
value at that port was shown by a large munber of sali"-
The second conclusion is, that the source of supply lni
ihe Victoria market was San Francisco. Whatever crili-
cism has been made on that |)oint, the gist of all tlh'
testimony is to the ell'ect that San Francisco was the clmi
port for shipping on the Pacific coast, and that the vaiui'
of vessels in Victoria could be determined by the value nt

(',0 ^'•'S'it'l^ 'it San Francisco, adding the customs duty and tiic
cost ()f transportation from San Franci.sco to Virtori;i
I call your Idonors' attention to the testimony regaidiiiu
customs duties, cited at page 2~-2 of our jtrinted brief, aiiil
also to page 2i>i> of Exhibits, line (".;.', where a schedule is
given in the " Oscar and Hattie " case, which corroi)oiatis

40 pel'
the

IIS tlmf V A,
3(1 (It'iil, uikI
aired, iiiul if
\ years liM\r

uton ' Mdiild

? A. Yes; I
18 is a prcllv

tir.r)

(Mr. Liuisiii^'s .Xiguiiu'iit. )

lliiMithcr cvHeiico tliat tlit^ custom.s duties on vessels were
III |iL'i' ceut.

Annthor conclusion vvu roach is: That thocnst of huiid
iiiu shilling vessels in the years ISHO and ISMJ at Victoria
iiiii-t 1)0 conjectu rally hasod on no actual experience, and
e.\(i>ssive of the cost of vessels imported from San Fran-
ciscii or Nova Scotia. We draw the conclusion that those

in will I had Unowledge of sales and transfers of sealing
v(-^i'ls in Victoria duiijig IXM and lss7 are competent to
}fi\r expert testimony as to the value of the vessels in
(|Ui ■'tion, and that the \vitnes.ses who hased their valuation
(III I lie cost of huildiny are not competent. It was the
cDiitcnlion of the United States in their printed argument
wliti) discussing these witnesses, that they werc^ inconi-
priciit to give an o|)inion as to the market value of the
sii/'d vessels; that they were ignorant of the market, and
ill many instances of the vessel in leference to which they

.'owi TO testifying. Our statement in regard to these men
\v;is severely critici/.'.'d hy my learned friend, Mr. Bodwell.
lull we submit they were entirely just; and when we
tt'iiiu'd one a "journeyman " the Record always supported
lis ill employing that word to characterize him.

.\iiothei' conclusion we reached is that the sales of seal-
ing schooneis at the ports of Victoi'ia and San Francisco
arc iiioptM- data for a computation of the market value of
vessels, and that the number of vessels, sales and trans-
fers at the port of San Francisco in 1SS(> and 18S7 are evi-

'lOdciue of the supply which existed for meeting the demand
of the Victoria market.

riicse are the principal conclusions to which I desire to
call to your Honors' attention in regard to the value of
vessels, and which I confidently assert have been estab-
lished by the evidence.

In connection with this testimony which was produced
(111 behalf of Great Biitain, I wish to submit a table
showing the valuation per ton placed upon the vessels in
fjiicslioii by the witnesses produced by the United States

+oan(l liv Great Britain, the valuation placed upon them in
the Hritish argument and by the owners, and also the
valuation per ton shown by sales, mortgages and ap-
|iiaiscinents. The following is the table referred to:

lik

iii

»'Mtl

(Mr. L>iiiaiii>!;'s Ainnnipnt.)
Valuations PKK Ton Pi-ackd Ui'on Skizkk Vksskls in thk 1. im

OK VUTdKIA.

.?o

(' A I.unilbrrK. .

.I.'IIIICH Ouuiliii

II. !■■ sciwaril

llli'liiircl (.'cilllater.

.I..I. dray

A, Mi-I,.'.ii

Slll.H

Ill M<irt^HtJi-fl,
Appriittiils. . ,.

Oaioler*.

,,,lMilllll lUll.lH

"-',1 li,,l,|un.|| 1711 11.1

W Wulker nil. tit

A. Willnoli Uti HI

aUnlU'i I'H

I) Wurner 13H hh-

Itd.lU

.1. SiiiiiH'oii niiim

M. Mir. Sliillli IIIS.'JM

,1. II. Wurreii 14(1 lit

!■ Hj I'illK );IH.I-W

Mil. lit
\\ MullllIP l:iH MH

jo" •'■'-■'""

W. SIrlulitlii.liii

(). W. Cavin

S.Sf«

It. lli'llDI'tt.

A. II Alpxan.lir

c. K. liu.viiiir '

* Lrin tlian.

TOD, *'""»"•'•

(aiMi.4« |ii:i ii;i

'.'711. 4'i l|:i.lM

HJ M7

14'MI4

73.10
49.34-

67 37

73.10

AIMA Bern.

t'MI.OH

l»lt.4ll-
TJU 110

!i7U.4'J

113 m-
I4'MI4

113.1)3

340.14 I 113.03-

149.04

300. 44t

334. ai-

3?ll.4-i

l«.ltll

M0.71t

180 as*

flJ.flO-
09.34

60.01

ns.so

i:i7.«»-

lAS.nOt

106. no-
lU'J I>7t

nao im.e7-
'J'JU 081

17S.81

110.04

71.6iill

(Ihack.

IXiI.WIIM,

0160.10

I'j:ri.ii4

160.111 »l>i>
I0V.UII-1H3 111

iwi.im

'JilHlHH

101. im

300.331

■i iiii-

'illll.lH

3011.06-
3S3.0D

168.10-
Itlt.OO

333.94-
349 69

13;l 34

13H.96

Ai I

II... Ill)

t MiTo ihiin.

no .111

1:17 im

li'l u

lllT.lf.l

M7.31

1111.64

III ll'.l

IK, [f

i Coal In billlil.

1 KxcUiaivn of niacl.iuery.
Willi olllflt.

40 Vi.ii will find tliat the claim now made for the "Tlioni

ton ■' is s?;!*!** |;er Idii, while the claim for the "Giaco"
and '■ Doljihin " is hut ^I'tCi and ^iiSif.!>4 respectively; imth
of the latter vessels were undouhtedly of a higher class
than the former; you will see also that James D. Warren,
the manager of the vessel, valued her at !i<270.42 (ler ton.
If VdU inn down that coluinn you will find all tlie evi
dciue in relation to the valuation now claimed for tliL<
••Thornton" lests u|ion testimony of William Sleijjlit-
lioliiie, who puts her value at ^■">(Mi.44 per ton.

50 TIk! critieisni in Hie printed argument of the United

States on the comiieteuey of Sleightholme to give exjieit
testimony received no attention from my learned friend
ill his exiiaustive study of the competency of these
Mrilir-h experts, yet his npinidu is the only one now relied
u|iiin. Sleight liolnii' stated that his valuation was hased
1)11 his knowledge of the cost of material, and cross-exam
iiialioii hrouglit out the fact that such knowledge was de
lived from pui'chasing the masts for a single vessel. On
>U( han expert (Jreat liritain rests her claim for the value

Cio (it the '• 'riiorntou "I

I also call your attention to the last column, the " Ada,"
where sj^lHT.tti) per ton. practically ^1:58, is claimed. It
.■i|)peais to he hased on the testimony of James Gaudin and
the witness, CoUister, and an examination of the llecord
shews that they were speaking of tiie market value of the

(1.(115-

H'iC.l)

4U B'.l

IIA 911

l:i7 w

l"l 'i<

l;i7 '.hi

l"7,:ii

'".1 0(

«i '.I'.i

IV. 18

lU.DS

(;r,7

(Mr. LniisiiiK'n Ar^iiinoiit.)

V( -sol. Tliomforc, in tliis cast', my le;ii iuhI fiiciiils pro-
|MiM' t(» use iiiarkft value, whilo tlio ii(tiii\l cost of tho
" \ilii," or W'liiit it would cost to leiilacc her with aiiotlict
V. -.st'l built ill Victoria, ar«' trcatt'd as iiiaftciH of littli; iiii
|i(iilauce. What have Imcomc of the special coiiditioiis
sill roiiiidiiij; tl'.e Vii'toiia mark* t? Convciiifiitly i^iioitid.
I .ilso poiut oal I In- tact that tlic valuation placcil upon tl>c
v^-ici l)V licr owner, .Jarue.s J. (iiay, was spiT per ton, or
>! :ii less tlidii /he (Uiiiniiit iioir rliiiiiir<l hi/ (tintl lirildiii,
f llic rc.ssi-l.

Ml. nodwcll; -W licre did you }j;et tlio evidence for thai,
Mr L.'UiHinK^

Ml. Ijansing: — I will give yon the citation. I am com
ill- to the claim of tijo "Ada" iu a moment. Besides
till- sniumary, f only projutso iu discussing the v,iliies of
llic (iilVereiit vessels to call your attention to the "Caro
Iciii." at page ;i((4 of our iiignnieiit, where we say: " ac
•■ cording to the considerations »!.\pressod in the varioiis
' hills of sale to and mortgages from Munsie, the valueof
• llie ' t'arolena ■ at that time was !i«2,(H>(i." Now tliort!
Iia- heen an elaI)orate explanation on tho part «if my
l( allied friends to shew how ^t!(>7 apjiear as the cousidera
tieii in the moitgago given to Bechlel hy Mnnsi(>. and the
-aiiie consideration in the hills of sale fioru Urquhart to
Miiii^ie. There are only two conclusions which it is
jMi^sihle to (Iriw from those facts; one is that that was the
ailiial amount paid for the vossel, and the other, that
William Miuisie was a party to a C()U8|)iracy to ilefraud
Taliick Ilickoy. There is no other plausililo explanation
why tho consideration, ^Wu, appears the same in
tlicse transactions hetweon Muusio and Hechtel and
let ween Muusio and Urquhart. The circumstance of the
ii-c of stitiT, a most unusual amount, iu holh instru-
iiH iits is conclusivo proof that Munsie was a conspirator
Willi Urquhart, or gave false to.stimony hefore this High
(ninmission; and wo assume that Captain Urquhart, now
ill ad and unable to defend himself against this charge.
was not a scoundrel, hut that ho actually sold the vessel
111 William Munsie for *2,(M)(i.

Ill connection with this valuation of tho "Caroleua" 1
nln to tho statement of Alexander McLoan, cited at page
'.II.", (if our argument, in which ho values the vessel at
SI, TIM). To show how all the evidence points to the same
limine, let us allow ^l.')0 per ton for a new vessel; then a
iiiw vessel of the size of the "Carolena " would he worth
si.liio; hut tho "Carolena" was an old vossel, and only
wmth 4u per cent, of her cost; 4(i per cent, of !?4,IH0 is
s|,i'i,")i», practically tho valuation of the vossel given hy
.\K I.eani Also when you add to Raynoi's valuation of
■ !<l,iHiii to Sl.-juu," the customs duties and tho cost of
himging to Victoria, the vess(d would have heen woith
riniii sj, ;!,")() to !|<l,.'')7o in tho latter port. Assuming then
I \aiiiation per ton for a new vessel of !?l."»n, the highest
iii-t price suggested — $12r>, I believe, being tho tiguie now
rliinicd by my learned friends-and taking 4(t|)er cent, of
that (because, according to Captain Anderson, a vossel as
nil! as the "Carolena" would oidy be worth that |)er-
K'litage of li'>r original cost), we find that the testimony of
M< Lean and that of Uaynor is unintentionally corrohor-
iti il by my learned friends.

I now call your attention to the valuation of tho " Thorn
t .11." The criticism which was made by Sir Charles upon
III! statement at the top of page JJiM! of our argument is

11 h

'i I

' 1.

II p

(h
ill.

KmMhil.iJ.-^M<>'>

mt»

(ii)S

(Mr. Lansing's Aigunient.)

literally correct. There is no actual evidence (hut ih.'
vessel iiad a centreboard, but there is evidence tliat --h.'
was originally a sloop (page 8"2!t of tlie Record, li;i..
34), and the citation on page 'MH\ to testimony rogariliH-
the "Onward" was to shew tiiat tiie "Onward"" i i|
formerly lieen a sloop carrying a centrelioard, and it w m<
a fair condnsion, I submit, that, as tlie "Onward,"" ai nn.

JOsideral)ly larger vessel, iiad had a centreboard wlitn a
sloop, the "Thornton," iiad one also, and the coiichi-^iwn
was confirmed from the lines of tlie vessel as shcu'ii !,v
her ineasureinents. On the same page, apjiears a st 11/
nient also criticized by Sir Charles, that the "Thointnii '"
was towed through Unimak Pass, all sails set and uinl. r
full head of steam; the statement is born(> out fully by iIh'
evidence and was made to show the capacity and imY ine
condition of her engine, which my friends claim was w<hi1i
$2. son.

20 Then there was also a (juestion i-iised as to the tt-ii
niony of Captain AVarren, cited at page ;{o7 of our ininii.l
ai'gument. It reads as follows:

" Q. I want you to stdte, as nearly as you can, what the cost of tic, >c
" voHHt'ls was? A. The oost of running them?

" Q. No, the vessels? A. Well, I put the ' Thornton.' I think, ut
" 184,000 — that is the time she had her raaehiuery put into her ami uus
" made a steamer of."

I turn to that part of tlie Uecord which was read Ijv
Sir Charles Hibbert Tupper, page It44. line 40. At Hie
30time be omitted some of the questions and answers Unit
there appear. In connection with what my learind
friend read, the following slioubl be added. (Von will
recollect that these statements appear as a i)ortioii nf
the testimony taken in the suit between Warren aiicj
Boscowitz ) The question was asked Warren in regail
to his former testimony:

" Q. But you find in that eouueetion, do you not, following tlie tfs-
" timouy I lu»ve read to vou, that vou jiroeeeded to give, not the
" mortgages on the other sliips, but t"lieir valuation, I think, in most
40 " of them, perhaps all of them?

" Q, All of them, had you not? A. I gave the eost, I tliiuk, in llir
" most of them, i)erhai)s all of them."

SirC. H. Tni)i)er:— Whatdo you make of that first (pus
tioii you read?— There does not seem to have been any an
swer to it at all.

Mr. Lansing: It should have been icad with tli(> sectuni:
there should have been no beginning (if a new (luestioii.
The examination continues:

" Q. But you say that althojigli this testimony speaks directlv uf

your putting th<> eost of the ' Thornton' down at !ii!4,(K)0, that tisii-
" mony is erroneous? A. Yes, she eost more tiian that.

" Q. Tlie (|uestiou is not what the fact is, hut whether you so ttsli-
" tied. If you say you did not, it puts us to the trouble of iiinviiiK
" that you did. A. 1 dcm't remember of the Btatemeut of putting lnr
" in that way at the eost.

" (.). But you did put in all tlie other vessels of the Heet in llir
" same connection and immediatidy following? A. They arc then'
" about the cost, the otiicrs.

" (.). And your attention was directly called to the question of cn^t
" by your own (luestiou ? A. Ho it appears."

'^ Now I submit that the witness, whatever he may to
tify after that, cannot explain away the necessary nii
elusion which must be reached from an examinitimi i>\'
the testiaiony, and that his valuation there given ol
$4, (»()(». is tlie actual valuation which be intended sliniild
be placed upon the vessel. I have already noted the Iik t

50,

(ir.'.t

^ I

tliiuk, in till

itioii (if iii-t

(Mr. Lansiiifr's Avguiiu'nt.)

thill, ill the iut^nmeiit on lielinlf oi Gieat Britain, the
valiii' clainu'd for the '•Thornton" is !i(7,(H)0, or $1,0()(»
111(11 r than was stated to he her vahie hy James D. War-
ren, iier alleged owner, when testifying hefore this Com-
iwission.

1 only desire to further call your attention to tlie value
of llie "Ada," and to the statement at page 31V of our
lopriiiled argtmient, to which kr. Bodwel! a moment ago
ri'lVnod. In the cross-examination of the witness Gray.
tilt' owner of the vessel, the following appears; 1 read
from page 1,238 of the Kecord, line 37:

" {). The question is, Mr. (Irav, was vour I'stinmto for the "Ada"
'• 87,0(1(1 ? A. Tlmt I could hiirdly toll."

" (,). What is your best jndj;Dinut about it ? Was that your esti-
•■ iiiiitc of the value of the "Ada" presented agaiust the Govern-
'■ iiunit ? A. About »7,<»()(t -«?7,()(l() or »8,(»0(), somethiuf; of that
'• s(irt."

JO .Now the claim presented to your Honors is !?!>,()(((», or
ijl, 11(111 more than the highest figure given by the owner,
wliicli I lliink answers Mr. Bodwell's question as to our
MUliioiity 'or the statement.

With the evidences in regard to value of the other vessels,
and with our ci iticisms upon the witnesses, our printed
ai^iiiiienl deals fully; and nothing has been said by my
learned friends which calls for further discussion of these
.sulijects. I now propose to take up the separate claims
and to deal with them as brietly as possible.

TUK "Thohnton."

The first one 1 propost> to consider is the *' Thornton."
I have caiefully examined the numerous citations which
were put in by the learned counsel. Sir Charles H.Tupper.
and I have no critutism to make. They are ])erfectly satis-
factory to the L'^nited States; Init 1 ''o call attention to
the fact that we have the testimony of Ca|)tain Warren,
at page Itlo of the Kecord, line l."i, that in ISSti the " Dol-
phni" carried an e.xtra snpjdy of provisions for all the
t'^'vcssrls under his management. Now, the "Thornton"
was the smallest of the live, and it is fair to presume
thai slie had a very small complement of provisions on
hoaid. anil therefore any recovery for those provisions
niiisi lie in accord with tlu' inventory as made by the
tinted Stales olticer who made the search.

.Mr. Peters: — We do not happen to he claiming for the
provision ■.

Mr. Lansing:-- It may come to that, Mr. I'eters, as an
. I'-liinated catch cannot be allowed. Then I wish to refer
' Ilia iiiticism made by Sir t'harles li. Tiipper of a state-
nii'iit, at page 3tll of our argument, in j'eference to the
ili'iii "of tiaveling, hotel and other necessary expen.ses in
connection with the said sei/iu-e," for which -sl.ooo is
elaniieil: and 1 turn to the Record, which is cited as .an-
tliiiritv for that statement, page !M7, lint; 4(>, the cross-
eNaiiiiiiiition of James 1). Wari'eu. Here is the evidence:

••(,». Captain, you eharj{<'d iSl,(l(l() tor expenses, triiveliUK, *e., in
■ llic ' Thoruton ' ease? A. I have charged it tliere.
, ••(). Now, when did vou Itegiu to travel in tlie 'Tliornton' I'lise;

■• INSTV A. In the fall (if 18K7.

■'(,». At that time had you also a chiim as to the ' Dolphin "i' A. Yes.
"i,>. And some live other elainisV Y(>ur other shi|)s'.' A. Yes.
"i,». Did you go on business for the other live shiiisV \. Well. 1
' «i Mt on the business of all of them, 1 sup|>ose.

• <,». And you eharge for travi>linn expenses ?lll() in each case? "

■ ' * ■ «

;r#

\\'U

)!()()

(Mr. Lansing's Argument.)

Now, it is very evident that there is an eiroi' in ilu.
Record; that it should be $1,(100 in each case.

Sir C. H. Tapper:--! do not think so. I think you will
find that the original claims were lor $100 in each casr

Mr. Lansing:— In any event, it is in the (piestiun ami
not in the statement of Captain Warren; he answers: 'I
don't just remeniher what it is in the other cases." lie
ID will not state even there that it is $lou.

His cross-examination continues:

" Q. But you wont oil the busiuesH of all tho Heizures of 1HS7 to.
" Kether with that of tho 'Thorntou' in 188ti? A. Yoa.

"Q. Yon ohavfrod tlio ii?l,O0() iu tho 'Thorutou ' oaso?"— [Thcn^ is a
ropotition of the jfl.OOO; oortuiuly lio oould not havo roforrod to Sliid;
thoro is no claim niado iu any case of ??l()(l for travolinf; t ^'^ jscs; tlio
items are all put iu at $tl'M or ^1,000]. — '• You don't uiean to say, do
" you, Captain Warren, that you expended Sl.OUO in travel I'ur tho
•'• Thorntou V A. No, I haven't stated that; I spout Sfl.OOO luid , m-
'• sidorablo time.
2o " Q- You undertook all your claims tofjothor when you \vi>iil tu
'• Ottawa? A. When I went to Ottawa, yes."

But wliatevt'i' the facts are, tiie claim is now l((>l'ore
your Honors in the ]iriiite(l argmnent iu cliicf on IkImH
of (ire;it Hritaiii as ssl.ooo claimed foi' traveling and lioU'l
cx|ieu.ses, and of what value is tlie criticism of my learned
friend that it should he slOd?

Sir 0. H. Tupper:-- Let me ex|)lain in connection with
thiit. 1 called attention to the fact that the argnnient, in
lepeating this part of the evidenc(>, l)y mistake contaiuei!

jOthe tigun; of $1,000 for .sloo; the reason that I did that at
that time was that my recollection was that this should iw
sloo, while it wassl.ood m this case; that Warren wasoiily
clainung $100 iu the otiier cases: and tiiat is my recolh^c-
tion still. Of course, if tl)at lie wrong the criticism would
li(? hypercritical. Nothing I said iu tlie "Thornton" case
meant to suggest that th(^ sl.ood was wrong, except in
that (luestion which you read: "And you charge for
traveling exjieuses sloo in each case? A. I don't just re-
member what it is in the otiier cases." In your argu-

40nieut, if I remend)er rightly, you have it: " A'ld you
charge for traveling expenses $1,000 in each case;"' 1
think that was my point.

Mr. Lansing:— Very \tell, the criticism is of no inipurt-
ance, for he has charged in this case $L00O. He states at
]iag(!!U". line :)2: "(.,). Tiaveling. hotel and otiier iieces-
■■ sary ex|)enses iu connection with the said seizure and
■• claims, sl,ooo, is that a bulk sum that you put iu; A.
"Just a biUk sum." Clearly it was put in for all the
■■ Coopei' vessels "as well as the " Thornton." Why should

5'^MIiis item in the " Thornton " claim have been so iiiucli
larger than iu the others; Did Warren do more in tlie
case of the " Thornton " than in the others; Isthereaiiy
I videnci^ before the CoMUuissioners that the traveling ex-
penses and hotel bills wei-e six or even seven times as
large in the " Tbomlon " claim as in the otiii'r claims; I
submit not, and that when lie speaks of $l,ooo, theSi.iuMi
he made the cliarge for was for all the "Cooper ves-
sels."

Sir C. H. 'I'lippcr:- I think my learned friend's criticif<iii

"' is fair. 1 was dealing witli the evidence as it was put. In
fonnection with that $l,ooo and $100 iu eacii case, I think
that Warren nnist have meant that he wanted to claim
$1,000 for liis woik iu connection with the " Conpei'
I laims," ;is my leaiaied calls them, " Capt. Warren's
Claims." as they weie called generallj'. My criticism

you Weill Ui

tit 1 1

(Mr. Lansing's Aignment.^

iiK rely referred to this mistake of $1, (too for $100 in the
K'((ord. I think the learned counsel's observation of
ijsl.ooo for the whole is right.

Mr. Lansing: — Thenl would ask my learned friend after
that, statement, what will we do with the item for owner's
ox|ionses in the " W. P. Sayward " case, for wiiich 8^00
iiic claimed.
,0 Sir C. H. Tupper:— That is one of the " Warren fleet,"
as we call it.
Mr. Lansing: — Then that should be stricken out '<
Sir C. H. Tupper: — Certainly, my observation covers the
" Warren vessels," and I say the criticism is fair that
§1,000 was meant to cover the expenses for the whole

tli'cl.

.Mr. Lansing:- -And as to all tlie other " Cooper vessels"
e.\cc'pt the "Thornton," it is now stated that the amounts
rliaiiit'd for traveling expenses of the owner should be

vistiitken out. Am I correct?

Sir C. H. Tuppei':— Yes. if the!?!, 000 is allowed.
Ml. Lansing: — We do not admit that any sum can be
alliiwcd for these e.xpenses, whicli might be more or less
acciiiding to the extiavagance or economy of the (^lai'n-
aiil. We do not think they should be allowed in any
I'vciit; i)ut. under any circumstances, the admission of my
Ic.ii lied friend materially reduces the claim.

1 now call your Honors' attention to the claim made in
this case, and in fact in all the other caises of loss in IS.SCi,

wforlheiiet value of the estimated Coast and Beiing Sea
catclics for the year lss7. I have discussed the question
(i| till' iiiip()ssil)ility of computing an estimated catch, but
this claim iiresc'iits newditticulties from the fact that there
air 110 data for such computation. The only evidence be-
Idie your Honois, and that was incidentally brought out,
is ill regard to the Coast catch of fourteen vessels from
issU to issn inclusive, and yet we have the data of the
( atclu's of eighty vessels in these years in Bering Sea. So
lar as the year lss7 is concerned, there are only two ves-

40>^ilsof which we know the catch ujion the Coast, and
iIhtc certainly is nothing in evidence to afford a basis of
1 nitiputation, even if computation was possible.

Thk "Onwakd."

The next claim is that of the " Onward," and though
wf have fully dealt with it in our brief, I wish to call your
attrntion particularly to the statement at page 'M)ti of the
Ciiitcil States argument that, on the 'Utth day of Decem-
hiT, Isst), Charles Sjtring and Alexander McLean entered

r'Mnto an agreement dissolving their partnership. In the
'•ally part of ISSt; C. Spring & Co. owned three vessels —
the •• Favourite," the '* Kate" and the " Onward." In th(>
agreement lor dissolution valuations were placed on tlm
"Favourite" and "Kate," but no valuation upon the
"Onward." As McLean did not desire to continue
l"ii,m'r ill the business Spring purchased his share of the
parliieiship projierty for about >^i,100; but the "Onward '
isiidt iiicluiled in the transfer, which would have been done
hail the owners anticipated her lecovery. Kach partner

'' nlaiiied a half interest m llie vhiiin (lyaiiist the I'liili'il
Shilr.s for tbat vessel. That was the view taken
ill iicci'iuber, iMSt;, by the owners of the vessel, and that
|iii>itioii, we assert, proves conclusively that she was
In ati'il by thetn as a total loss.
There is also a criticism of the assertion made at page

"t H.

inMMMHWffW'*'

(1(12

(Mr. Lansing's Argument.)

8H(i of our argument concerning the canoes on the '•( in
ward,"' and it is alleged hy my learned friends that tin v
can claim for tliese, whether they were owned hy Ch.nlis
Spring and Alexander McLean or hy the Indians. Tin ic
is also a claim for certain amounts paid hy Spring to iln'
Indians for these canoes, which were in the nature of ;in
advance on their wages. My learned friends are tin iv-

lofore claiming for hoth the value of the canoes and for Mic
wages which were paid to the Indians.

Mr. Peteis:— Where are we claiming for thowag(>,if
the Indians?

Mr. Lansing:— They are included in tlie value of the m si-
skins which were taken, as you now present the clainw.
Mr. Peters: — If that is your argument, all riglit.
Mr. Lansing: — Why have we vouchers in the "Ciki
lena'' case for wages if no claim is n)ade for them? ,\lv
friend implies that they do not now claim for wages; Ijiit

20 under any circumstances here is a douhle claim for the ra
noes seized, cneforthe Indians and one for the owners, who
also claim for the price paid for them to the Indians. In
any event there can he no recoveiy for the canoes hf
longing to the Indians; they are not claimants propcilv
hefore this Commission. As to the canoes actually pni
cha.sed 1)V the owners of the vessels, who have a riglit tn
make claims undei' this Convention, the United Statis
admit their liahility. It should also he noted that llif
claimant Spring testifies that the "Onward's" ciuiops

30 were worth /Vo/» vPtT /(> .S.'(V; and tht* claim is made lor
^2S on this testin)ony of an interested party when he gives
a lower figure.

Itegarding tile item, "cost of defence at Sitka, ^rion."
Spring claims that a judgment was recovered against liim.
VVas Alexander McLean a party defendant? Where is
that judgment enteicd; Why was not a transcript of it
hefore this Conuiiission? If there was a judgment, tin 11
your Honors should have had primary evidence of it. Tlu'
mere statement of an action conmienced liy an attorney

40 for his fees, of which onet>f the paities interested hasoiily
a vague knowledge, and as to which he could havo no
actual knowledge unless the judgment was entereij al
Victoria (whicii it was not, for then it would iiave
heen produced), is not such evidence as should receivt' the
considciation of this High Commission.

Mr. Peters:- -We say it was entered in Sitka.
Mr. Lansiny;: — How, then, was service made upon Cliailis
Sjjiing, who, according to his own testimony, was never
in Sitka, oi' within the juri.sdiction of the Alaskan cdiirt

50 after the seizure? Furtliermore, Spring himself says tliat
the servici's were; not worth tiie amount claimed; and it
action has iieen duly hrought against himhy this attorney
for his charges, and Spring has notdefended it, the United
States is iKit lialile for his negligence to put himself npoii
|>roper defence.

.Ml'. Bodwell:- Do you mean that the l)ill was moie than
i* ought to have heen?

Mr. Lansing: — Yes, in that it covered the costs of an a|i
peal to the Sui)ii'me Court of the United States, an<l none

Cio was ever taken; and. further, I assert that the Unitiil
States are not liahle for the charge in any event.

Tmk " W. p. Saywakd."

I uow call your attention to the case of the '' W. P. Say
ivard." In the schedul(> attached t(> that claim we find ;iii

10 wjiiri

[Mv. Liinsing's Argiinient.)

ifciii for iHit skins which were on board the vessel at the
tiiiH' of seizure, for which a chaige is made of 16.50 for
t'iirli skin, which amounts to over $3,00(»; and I wish to
leal tliis poition of our printed argument relating to this
item, wliore the testimony of Capt. Warren is quoted, it
is 111) page 383:

"(,». Wero the seal skins included in the bond yoii gave for the
10" 'Siiyward '? A. Yes.

•i). How many? A. About 440.

• (). The bond was given for the vossol and skins? A. Yes."

SiiOiipt Warri'i), Cooper's agent, had the skins for which
(laiiii is now made, and there also appears immediately
tolldwing that quotation in our printed argument the
order discharging the schooner " Say ward " and her

Tlie Conmiissioner on the part of the United States: —
Tliat is something the counsel ougiit to he able to settle
:oaiiiiing themselves without bothering us to search the
Htciird, whether those skins were returned or not

Sir 0. H. Tupper:— I intended to make that statement,
but must have overlooked it, in the way of correcting a
statriiient of our own in the line the counsel is following.

Mr. Peters: -There was a charge for depreciation in the
valiii of the skins.

Sir C. H. Tupper: — I think I dealt with that; at any
rate [ intended to.

M. . Lan.sing:— T do not think you did.
p .Mr. Dickinson:— They were claimed in the argument.

Sir C. H. Tupper: — I intended to qualify it.

Mr. Lansing: — Substantially the same number of skins
were claimed*

Sir C. H. Tupper:— Yes, I think we will agree about
tliat.

;

ill

.\t one o'clock the Commissioners took recess.

8 more than

At half-past tsvo o'clock the Commissioners resumed
tlieii' s(>ats.

Sir C. H. Tupper:— Perhaps my friend will permit, me
1(1 make a correction in regard to the skins which have
l)i'(ii referred to.

Mr. Lansnig:— Certainly.

Sii ('. H. Tapper:- -We have charged in the claim of the
" \\ ['. Saywaid," at page 111 of the Britisli argument,
line :it). for 4S,') skins on board at the time of the seizure
at si; .'id. In suppoit of the statement that there were
-Qtlial inanv, 1 r(>ferred to tiie Record, page HOC.. That is
iiH t lie utl'i July, 1SS7. The order for the return of 471)
skins is dated Utth April, isss, page 14() of the E.xhibits,
ami iin page 1 147 of the Ueroid it appears that there were
reiiiiiieil 44t) skins in May. 1SS8.

.Ml. Lansing- -Is that an exact statement? It is Captain
Wairen's recollection, and clearly uncertain as to number.

Sii ('. H. Tupper:— Reading at page 1147:

•• {) Were the seal skins included in the bond you gavo for the
" ' Saywaid ' ?" A. Yes.

1,1. About how nianv V A. .\l)out 440."

That is on direct-examiiiation; I do not think he was
cniss-i'xaniined on that — so that from the amount of 485
(hinged in our claim there would be deducted 440, and
l!ie elaiiu would be for 4r» skins taken and not returned.
Till t'^n skins were, however, on board at the time of the

t;(;4

(Mr. Liinsing's Aigumeiit.)

seizure, and the item carried out would be mateiia! Iiiimu
claim for interest on tliat amount from July !•, l!S87, niuil
May 1888. and then there would bo the interest on thi'
value of 45 skins from May. ISH8, down.

Ml'. Lansing: In connection with this statement iiuuli'
by Kir Charles, I wish to refei' to the order of discharge n{'
the vessel, her' skins, arms ;ind annnunition. whicli .ip.
loP^ars at |>age 14t't of the Exhibits; it is as follows:

" Tlie (i\)ove nametl veHHcl and all tier tacklo, aiiparcl, ftiniiturc,
" arms and amniuiiition and <Mivt?o consistinj^ of 47il fur seal skins llmt
" liavc licon received l)v vou in tliis |)ort liavinj^' Ih'cu lionded, ,"

Till- hoiiils vorcri'iJ \1\) skins. That is the i!'M)iher w,.
claim were returned to the claimant's agent: and furtlni,
that they were all tlu- skins seized.

'I'lie next point that 1 desii'e to refer' ti> in cnnriectiuii
with the '■ Say war'd" clainr. is the item for' experi-es in.
cnri'ed iir bondiirg tli(> " S.-ryward." say sl.oon. The ivj-
(leiice to snppor't that chaige, which was refer I'ed to in tlie
oral ai'gument of Sii' Charles H. Trrpper. is fourrd in llie
testimony of Hoscowit/ at p;rges lltTt! arrd i)i77 of the
Kec'oi'd. It I'eads as follows:

" y. Wlien you tioudod the 'Saywai'd," if was iloui^ at Sitka, 1 Ke-
" lievc'? A. Yes.

" Q. Who was witli you':* A. ('ajilain Warrou.

" (}. Had yon k<"i<' wp tl'cro for tliat pui'iiose? A. Yes, Hir.

" (J. W'lien iu Sitka, in countH'tidu witli lioudiuf^that vessel, diilynu
" incur oxjienscs nj) there':' A. Yes, some .vi;!-/// expenses.
) " Q. And iu addition to that von had to put in the bonds? A. I'lit
•• in l)onds for *H,(IOO.

" Q. For which vou wore resjionsible through your bank here '! A.
"Yes."

That is at page I5*7t!. line 2<'..
^i"), the following a|)i)ears:

Then at page Iit77, liriL'

'• Q. When yo'.i went to Sitka, whom did you take with you

('aptain Warren.

" Q. Did you take any other jicrstjus with you ') A. Yes, there were

the captains and sailors and mates to bring the seized schodiicrs

back.

" Q. For all of them'? A. For all of them."

At page 1147, at line :V>, in the direct-examination of J.
D. War ren. we have the following:

" Q. Did you get the ' Sayward '? ' A. I got the ' Say ward ' liiick
" in 1H8H bv bonding her. bv giving bonds.

" Q. To wliat extent do vou renumber? A ^8,000.

" Q. What time in 1HH8'? A. We arranged for it in April, 188H."

The date when the "Say ward'' was released rrniler
bond, according to the ordei' entered and appearing at
50p;it;e 14(i of the Exhibits, was the HHh Apr'il, 188s.

'■ (i>. When did yon actually get the vessel back? A. A little while
" after that. I think we liad her in May. but 1 am not positive.
" Q. ])ii/ i/i'ii I/O ii/) lliiTf. Id ijfl Iter? A. A(i; slic inix in Sudlll''"

Now this charge of ^l,(inir is exjdained by the staterirerit
that Hoscowitz ;\nd Warren took upcaptains and sailors in
order to bring the .schoorrers back, arr<l it appears that the
I'r'der- was entered at that time, yet the '■ Wayward" was
rrot br'oirgbt dowrr by these .sailors and captairrs hut by the
rol'trrted Slates. 1 strbmit that the evidence in legar'd to
the transjrortatiorr of tbt se men to Sitka is utterly woitii-
less, for if it had been don(.' they would have assni'cdly
brought hack the vessel, aird they did rrot. No men ever
were taken to Sitka by Warren and Boscowitz. A I'ui'-
ther fact iir connection with Ibis item is that Boscouitz

(w;r.

; Sitka, 1 I.e.

»ywar<l ' lnn-k

(Mr. Lansing's Argument.)

iidu cliiims to liavo incurred tiie costs of bonding, aud
Hip-^cowitz, under the Convention, is not a claimant befoie
this Commission. The clainj for this expenditure is
111 i(l(^ on behalf of Thomas H. Cooper; and there is not
one line of evidence in this Kecord to sliow he ever in-
clined one dollar of expense in recovering possession of
tlii< vessel.
10 .M l>ago ''WT of our argument, we criticise the claim for
s'.iiHi lost to owner by reason of detention of the " W. P.
S;i,\ ward " in l.SfsT and 1S88, "when if in the owner's pos-
sf!-si(iii she would have been coasting during tiu; months
of .\oviinber, December and January." The references
jjiviii by Sir Charles in oral argument to sup|»ort that
(•i.iiiii are. to the Itecord, ]iage !t()tl, line I'.o, and jiago !t4(),
lit line !'.•. They are both in the examination of J. D.
W .iiicii. In his direct-examination he was asked the fol-
low iiig (piestion at page iuio, lint; I'.O:

-'- ■■ (,». What Heet had j()\i in 1882 ou^ivgod in tliat l)usiucss of coast-
" 111.,' iiuil scnliuf; V "

iltar in mind there is a distinction between "coasting
ami si-aliiig" and "coasting," which is shown by the
-tali'ineiit of Collector Milne (Exhibit No. liT. Great
Mritain).

'■ A. I bad the ' Grace,' the ' Dolphin,' tlic ' Anna Beck,' the ' Hay-

■ ■ ward ' and the ' Tliornton.'

■ (,>. For liow many mouths were they out on a i-niisc in 188'2 ? A.

• I'di- iilxiut four months or a little over it."

Tiiat four months undoubtedly lefer to the spring
baling, for the context shows tliat the counsel was con-
tiiiiiig his examination to that subject.

' I). In 1883 what fleet had you out sealing aud eoastiug V A. I
■ think I had only three sealing aud coasting that year.
■Q. What were these ■? A. The ' Anna Bcek, the ' Thornton,' and

• tlic 'Hay ward.'

■ Q. And iu 1884? A. I had five out again that year. The 'Grace,'
■till' 'Dolphin'' the 'Anna Ueek,' the ' Thornton,' and the 'Sayward.'

• Q. You had the same lot out iu 188.") ? A. Yes.
"^ ' •■(.). In these years they confined their sealing operations to the
■■ const'? A. Yes."

That evidence shows very conclusively that the witness
in speaking of those four months was referring to the
-laliiig oi)erations along the coast aud not to trading or
livighting.

Sir C. II. Tupper:— That is thedirect-exammation, there
was no cross-exanuiuviion.

Mr. Lansing:— No, wedid notquestion that statement as
; I'i the duration of the spring sealing. Now, in Capt.
Warren's redirect examination (page t*4t'>, line lit) we have
ihr follosving:

'■ (^. A (luestiou I omitted to ask you, Mr. Warren, aud that is what

■ iiso you made of these vessels after your coasting sealing? A.

• Some of them I used to do freighting with.

Since Sir Charles in this question stated that he omitted
\i> ask tli<! witness in reference to this matter of coasting,

II is evident that the former answers of Capt. Warren
itlcrto the coast sealing, and therefore shoidd not have
. nil applied in oral argument as they were.

•' (^. In what seasons of the year? A. The fall and winter.

'■ <l Did you use tho 'Thornton' for that purpose ? A. Yes."

Now, upon this reference is based the claim for 8!>00.()o

III less to the owner by reason of detention of the " Say-

I'T

:|i I

,((f'

II;

Otte

(Mr. Jjiuisinn's Argument.)

ward" during tlie months of Novcnibor, Decenihor ;ii.|
January. 1 claim it is entiroly unwarianted, forVV.Mihii
was asKod as to the use of these vessels aftei' tlic cn;i,i
sealing had ended and in the years prior to the entninrc ,,1
Bering Sea by any of these vessels; and there is no t .|.
deuce that any were employed aftei' the HtM-ing S.|
season. We have no evidence of this vessel having duu'

loauy freighting.

Sir C. H. Tupper:— I think there is some evidcn,,.
about the "Dolphin" having carried conl

Mr. Lansing: — You will find that in the testininnv ,,(
Walter Walker.

Now, the next item to which I call your atteiiii.ui
is the one for "Estimated Coast Catch foi- ISHS, less . \
penses." I submit there is no evidence' to substanti iic
that claim; and in the case of the "Say ward' weh.u,.
no evidence as to her coast catcli in lss(!. issTand Is-^j,

20 although she sejiled each ut these years in the spiin-.
We have no evidence what these expenses for 188s wcir.
which it is proposed to deduct. Fiuthermore, it is ne^ i s
sary to assume a prospective catch, and I suppose my
learned friends would estimate it by some method siniil.iV
to the "Mary Ellen" formula; but there has been n.i
method proposed How, then, did the learned couiimI
calculate these profits^ Doubtless, by another scheme ;l■^
satisfactory and as arbitrary as the " Maiy Ellen " one

The "Anna Bkck."

The next claim to which I shall refer is that of ilio
"Anna Beck." The portion of the argument of tlic
United Slates dealing with that claim begins at i»age H^--^
1 simply desire to point out our criticism of the claim
made for stores on boaid the schooner at the time of tln^
seizure, for which the total is niucli too laige. and is
clearly an error in addition. Furthermore, on the theory
of the British counst>l that there should be an allowain e
for an estimated catch, these provisions would have Ix en

40 consumed, and, llierefore, in this case of total loss, it woiiM
appear that our learned friends substantially abandon that
position, and now claim foi- the actual property that was
on board the vessel when she was seized.

Some criticism was made upon our statement at pai^o
:?(Ki of our argument that no lecovery could be ha(l f'l
arms and annnuiiition which were taken from tht> " .Anna
Beck " by the Indians. 1 should add to what is tlitr.'
said that a claim is made for $50(1 for each Indian, ainl
there is no deduction in any case for the arms anl

SOammunition taken otf the vessel by these claiinaiii'-
Certainly my learned friends cannot come hert; and claim
that the owner suffered loss tliiougli the Indians who
were benefited to the same extent and then make a Af-
mand for the Indians also without making any allowanir
for the |>roperty they obtained. These Indians all lie
longed on the west coast of Vancouver Island, and a>
there were trading stations along the coast owned by C'a|ii
Warren, the agent of Thomas H. Cooper, it is fair t 1
|)resume that the most of these guns were returned to tin'

6oowner. Under any circumstances the claim for the In
dians is not properly before this High Commission, as tliiv
are not specified in the present treaty, or in the claim-
as submitted at Paris.

The same criticism might be made regarding the sealing
boat mentioned on pige 31U of the United Stat ■sarguinent.

(W',7

(Mr, Liinsing's Arjjument.)

t()r which $140 is claiiiHul, iis was said of thoarms and ain-
inMiiition, as it also was taken by the Indians. I should
ailil ill that connection tiiat it appears from the tostitnony
thiit the boat and guns were taiton with the consent of
the master, or whoever was in ciiar^eof tlie vessel for the
(luiicr. and was doubtless d me witliout the knowledge
(if the United States ofhcials, and tlierefoi(> without their
locmisent.

Mr. Peters:— If my learntvl friend will allow me, in the
ciisi'Df the "AiHia Meek" he has called attention toonoof the
cliMrjA'es - "loss of stores on board of schooner ' Anna Beck '
wlitii seized, as far as Captain can recollect. 8i*''"." He
stnti s that if we get the estimated catch, we ought not to
j,'('t the supplies wbich would be naturally used up in get-
ting the catch. ( )u icference to pages lot'd and l(i(!2 of
tlir Record 1 find that a |)ortion of the s'.HKi is made Uj) of
supplies and provisions which woidd be used up in the
joiiinrseof getting the estiniateil catch, and to that extent
tlieie should be a deduction, and I will get the exact
iigures and yu'fsent them to tbe Commission.

Mr. Lansing:— The total in the iUwn you have just read
is also wrong; it is ^KKi too nnicli.

Mr. Peters:— If tliat is tbe fact it will have to be cor-
iiicti'd also.

Mr. Liinsing: — 1 might add at this [xiint that these cor-
icctions sliould have been made when tin? claims were
orally discussed by the learned counsel, as they were all
;osct out in our piinted rejtly. I also call the attention of
my l(\'n ned friend to the fact that ^l-io is chaiged for one
i)oat and 81-a for another boat. Tbe fact is the " Anna
Hi'ck" only had on(> boat which the Indians carried away
with them.

There are throughout these schedules attached to each of
the claims, as set out in the argument in chief on behalf of
(beat Hritain, as we have shown in our brief, many items
wliicii demand corrections similar to these, which I have
rifencd to; and I have oidy selected a few to illustrate to
.;ov(iur Honors how these claims and schedules are made up;
and every item, I think, to which I have referred orally,
my leirned friends upon the other side have carefully com-
|)are(l with the K(!Ci>rd. and then corrected their original
claim to meet our ( riticisms.

Mr. I'eteis: — Because you were right.

.Mr. Dickinson:— Tlie same corrections are in our printed
ar},Miineut, and wo claim that all the corrections mentioned
there are right.

Mr. Limsing: — The.se corrections were in our brief, Imt

-wVdur claims were not corrected until we pointed out the

t'rrois orally, although you had the opportunity to do so

when discussing these claims here.

I desire to call attention to another
claim of " Anna Beck," and that is
the catch for the remainder of the

duration of the season claimed for the

item in t ho
the one for
season. The
' Anna Beck"

in that item is from the time she entered the Sea until
St'|iti'inbor 15th. The position now assumed as to the
duration of the season (a new position, as it wasncjt relied
Mipou in the printed argument of Great Britain), that it is
till! intent of the master or owner which is to deternu'ne
how long the vessel would have lemained in the Sea, and
not actual experience, will not bear out the extension of
thu season to that date any more than the general evi-
dihco. 1 read a portion of the testimony of Olsen, the

t'i

««8

•f

(Mr. Lansing's Arguint'iit.)

master of the " Anna Heck '" apjioaring at page 1()4(), line
34, of tlie Ueoord:

" Q. Whiit (lid yon do ftbout tlui middle of Moy? A. I iirocotdcl
" on the uortliorn eoiist and ]i(!hriug Hen.

" Q. Tlie/iiU sfiisiiii? A. Ym, sir.

" Q. And you iiiiide ivrrimmoments to hunt until what timeV A.
" Well, HH louK UN 1 Ihuu^ht tit to stay iu the Uoliring Hea. Tliise
" wore my ordorH. 1 haii '•iioiii/Zi snjiiUii's mi honnl to keep me ilnre
iO •> unlit the lnyiiiuhii/ uf .Se/ilrmher.

" Q. //'"' Imii) were i/iiii inslrinleil lit Ktiij/ Ihere? A. As loinj m /
" thiiiiijhl ri'iisoHiihlH lo ijel skins,

" Q. Did i/uii fit nut i/iinr cessel fur lluit leiiylh of voyitge? A /

"(/!(/."

The intention of tlio Captain is very clearly shown, lie
was to btay in the Sea us lonj; as he tlionght it was reason-
ably certain that he could profitably hunt, but he only
outfitted until September 1st, and yet my learned friends
put in a claim for a cati-ii extending toSeptembtu- ir)ili. 1
20 would also call your attention to his testimony at page
loot), line r).5, of the Record:

" Q. So that you would not be positive that you were outfitted mi-
" til the Ist Heptcmlier? A. I am j)ositive that I was outfitted until
" Ist 8ei)teml)er, when 1 left the west eoast.

" Q. Whv did you not put in sutticieut i)roviHions of all kinds to
" last nntil 1st Heptember? A. I did so. If one thing run short I
" would take another and substitute it for it. It is impossible to tit
" out a vessel with everything that will last equally."

Is there any suggestion here of September 15th, or any-
30 thing to show lie could have remained in the Sea after
Septeml)er 1st even if the weather had permitted?

On page 1041, at line 48, we have his testimony as ful
lows :

" Q. When did you enter the Sea? A. On the '2«th of June.

" Q. When you entered the Sea iu 18H7, how long did you i)r(ipn9o
" to remain? A. Mii inlention inis In teare i»i the last 0/ Aui/nsl, if tlu!
" weather was rough, and if a few days fine I might remain a little
" longer."

Could theie be any statement more conclusive than

40 that? It shows whit the intention of the captain was as

to the voytige; and it is the intention, according to my

learned friends, which is to govern the duration of the

sealing season, and not actual, practical experience.

Sir C. H. Tupper:— If my learned friend will allow me
I should like to give that reference I was looking for in
the case of the "Sayward." It is at page ttTS), line t)2, of
the Record :

'• Q. Did vou see the ' W. 1'. Savward ' built ? A. Yes.
" Q. When ? A. About IHHl or 1882, I think it was 1882.
-Q "Q. Hy whom was she built ? A. A man of the name of Strachiin
■" " Q. In Victoria ? A. Ves, in Laing's sliiji yard.

" Q. Do you know what dead weight she carried? A. She eould
" carry about 111) tons.

'•Q. Did she carry coal for you? A. Yes, wo had a load or two
" after she was built in the spring of 1883."

Mr. Lansing: -Then; is no evidence of her having coasted
in any other year, and she then oidy carried two loads
of freight. Ai)parently tiie witness Walker, who was iu
the coal trade. nev(,'r used the ves.sel at any other time,
because he sjieaks specifically of 1SS8. and states she only
carried one or two loads for him. We must conclude tiiat
he found she was not fitted for freighting, probably be-
cause siie had no auxiliary engine, and tlie coaling was
carried on in the inland waters. Furthermore, that was
befoie Bering Sea bad become a resort for sealers, and
the evidence is sufficient to show that it took considerable

661)

(Mr. LaiiHing's Aigiiinent.)

time to repair and refit a Hailing vessel after her return
fivin that voyage. Besides you vvill bear in mind what it
wiis shown in relation to the "Carolena." 'I'liat it was
lilt essaiy for a vessel engaged in sealing to he pecnliaily
oiitlitted, to have repairs and ehaiiges made, which pro-
vided bins for salt, "kenches" for holding skins, and large
sleeping quarters for rarrying Indian hiinteis. A vessel

lopii |i,ired tor a sealei' was not suitable for freighting, and
t, re is no evidence in this liecoid that after a vessel re-
limied from sealing in Hering Sea. she carried a load of
freijilit. There is not a line of evidence to show that a
siM;;le vessel was so engagiul after her I'ering Sea trip. If
tile "Say ward" was ever so employed would not J. D.
Wiuren have been called on to testify to the fact* And if
he failed to do so, we must conclude that this coasting
by a sealing schooner during the wiiter is a myth.
I desire your Honors to bear in mind that, in consider-

2oiiig these claims, I have only dedt with a tew items by
\v;iy of illustration, but every item in the schedules at-
tiiclied to the British claims is fully discussed in our
printed argument, and the criticisms there made are sup-
ported by numerous references to the Record. Not one of
the schedules are correct and very few of the items are
established by the evidence.

' ■li.r^

II I*

The "Gkack" and thk "Dolphin."

The claims of tli<» "(Jiace" and the "Dolphin" have
been considered together in the printed arguments, and I
shall follow the same course. It appears by the evidence
tiiat the "Grace" when at Sitka, after her seizure in 1887,
was <!iiartered by Cooper's agent, W.uren, to the United
States Marshal for a trip to Ouiial. ska. The reference
given in the margin of oiu' printed reply is to page 116.5 of
tile K'ecoid, at line "25, where the following appears in the
cidss-examination of Warren:

•' (|>. And you received no benefit from tbeHe aliipa, or either of
40"tliciii, except the 'Havward,' since? A. Oh, the crew livod up
" tlicic, I think, until 7t"li Soitteniher, and we chortered the 'Grace'
■' 111 j,'(i to Ounahiska.

'• (). Wlio did ? .\. I did. Tliat wa.s before Hhe was condemned. I
'■ rliiutert'd iier to the United Htates Marshal, and the United States
" Marshal allowed us to take all tlie provisioUM that was left on the
" '(inu'c ' and the 'Dolphin ' to help to fit her to t?o to Ouualaska to
" liriu},' tlie skins.

" (). All the provisiouH that were left at that time ? A. Yes, after
" Us living on them.

" (,». You lot the marshal have her ? A. I chartered her to the
" iimrslml, and sent over there and l)rouKht the seals back.
50 " (,>. l>id you Ro ? A. No, ('aj)taiu Pottit went.

'■ (). I'oriiierly Ca])tain of the ' Grace ■ ? A. Yes,

•• (,). How loag were they gone ? A. I cannot just say. They made
" !i f;iir [lassage.

" (,). Did you take vour own crew ? A. Yes, we sent out our own
" cri'w. The marshal sent one man with them, I think.

" (,). I suppose that this was a kind of free-will olTering from your-
" srlf to the marshal V A. Ho paid me for it.

" (^. How much did y<m get ? A. I got .'i?2,50().

" (,). In cash V A. Mostly. I really expect it was all in cash. I
" kiiiiw I got 5*2,080 in a cheipie.

■ (,i. Was the cheque good ? A. The cheque was good, and I
()Q " think, as near as I can understand it, he paid some other bills.

'■ (). And you threw in the provisicms in this deal V A. He allowed
" lui' to take all the i)r()visi(ins thei-e was there to fit her out.

" (.>. .\nd you fitted her out for this charter ? A. Yes.

" (,). And you put the provisious on Itoard the 'Cirace' yourself ?
" A. Yes, and my men. It there was anything short we had to buy
" tliciii uj) there."

070

(Mr. LaiiHiiin's Arnmueiit.)

And aK'nii J^t |i.i>><' 117!*, lino 2(1, in his rcdirectexnmin
tion wo Imvo tlio tollowiiiK:

" Q. You Mpoko o( 8J,r>(ll) Ihuuk till) chnrtnrtul prii-o? A. Yi'h.
"(J. Is timt S'J.llDildfS'J.WMI'i' A. $'2,rm.

lo,

' Q. An^ yi)U mwc (if tlmt? A. Yt'H.
•' tj. Call Voii tliul that ill vxiir ItooknV A. I do not know, Itiit very
likely it is tliciv.

" i.). Wlic'ii you lire lonkiiiK >i|i the otliiT innti'riiil juHt luiikt' u uoli'
of that? A. I can t<ll just liow I do it'iiii'iiilu'r llial it wan jfj.'iiiii.
Till' iiiarshal paid iiioiicys for iiii' up tlit'ic in conni'rtion witji ilir

111' HH\t>

tititr to fiiui' liuiidi'ril and soiin' odd dolliii's, and 1

" triji aiiiountitiK

" mo a I'lii'ipit' I'oi' the lialaiii'i', sf'i,o;iO, makiiij; !*lJ,'i(HI altoj^ctlii'r.

" t^. How was tliis 5?lll(l niudi' up? Was it in casliV A. I think
•' liki'ly liti paid it in casli. Hiuin'of it was fortlii' crew and souu' of it
•• for littli' liills 111 SitUa.

" llii't'onniiissioni'r on t lie part of Her Majusty. -You wcri' to out lit
" the vi'ssil and p»y the wa^i'^V

" The Witiii'Hs. — Yi'H. and outfit lior. He )mid aliout 8t70ou aci'muit
" of this for nio, aud hi' then >,'uvi> luo a I'lifipio for iJ'J.OilO.

" y. Was aiiT more of till' iirtOd Mpi'ut for outtittiu^ the voBHelV A.
.O ., Well soiiii' of it may have liocii.

" y. Woidd your hooks mIiow that? A. I cannot say without lonk-

"iiK"

" Thi'Coiiiinissioiicron tlio jiart vf Hor Mivji'sty. — You took your pro-
" visioiiH from the othiT vi'sst'ls?

" The Witnt'sw. The marshal aUowcd me to tako any goodH on thi'

it wiiiild apiirai. f lu'ictiirc. Iicsidoitiiy'ii^ VVai'i't-n ir^:.'.!!:'.!!,
Iliat till' Maisli.il iiiitlilti'ii tlii' V('s^;o! fiii- him: ami tliiTi' is
nil siiooi'siiiiii —

Sir (.'. 11. 'rn|)|ii'i: — l'rilia|is tor (•iiiivciiicnci' vuii iiii^ht
CDmimif llic cvidi'MCL' tlu'icat [la^^c 117!t.

Mr. i,aiisiMg:— Ct'ftainlv.

•' Thi' CoiiimisHioni'r on the (lart of Hor Majesty; — 'Then you jjut
'■ your I'harti'icd prii'i'V

"Till' Witness; — 'I ^ot the eliurtered jiriee ludopendeiit of tlmt.'"

Of c()Uist>. if tiiat is I'XpJanatory of aiiytliinj;, I am voiv

.illi

im til re

(1 it,

It would aiipcar, tiu'icion', that licsidc payiiif;' tluTiow.
and iiandiii^ over )?:i,o;«i to Waneii. tlic Marslial als i
allowt'd liim to taivctiic provisions from tlii' otlii-r vessels,
lilt' " Dolpliiii." tile "Anna Ht-ck "" and the " Saywiud ";
yet Miere is no deduition frmn the rlaini inadi! for the I'sti
rnatod eatrh of tliese vi'ss^ls of these provisions wliicli
k'ere nsi'd dnrino the triji of the " (irace" under this

iliartt

er. and there is no siij;-;^('stion liy my lea

irned

tior lias there hoeii lu'fi

elsewhere, that thi?

rieiiils,
Sl' (1811

leceiveil for the nse of that, vessel bv Warren siionld

deducted from tlir elaim of the " Grace

1)1'
seems ex

traordinary that mv learned frir:,ds in their printed aioii
Mniil in chief coultl have ionoi-cl iht? fact of this chatter.
Milt they have .loiii- so. Certainly, it' (treat Britain coidil
estahlish that any sum for an estinitited catch was to he
.illoweil. that amount, 8-\"'5<', should he dedncted from it,
heing eainiiit;s for the very time when, accordiii};' to the
learned counsel, that catch was to have been made. Of
course, this simi, s2,n;^(». does not reiiresent a fair charter
value of the vessel, as there were peculiar circiinistaiices
and an immediate nei'essity, which conipelled the United
f-jfSliites Marshal to pay most lihorally to have the sealskins
at Ounalaska hrouolit to Sitka. Under any circinn.stances.
I lie vessel liavinj.; hecome a total loss, that amount should
have iieen deducted, as Warren, as agent, was receiving;
cliaifei moiK'y for a vessel which was totjilly lost to him,
,iiid wliioli properly iieloiiKed lo the United States,

.071

(Mr. Lansin^'H Aigiiniunt.)

Then too thero is no Hunj^cstioii that thi'so vvaRos, paid to
tli. nvvf of the "dmco" fortiio trip to Omiulaska, should
l)(Ml((hictt'il from tlie claims now mado for the mcmliorsof
till' ciovv. Of coiirso, tho IJiiitwl States do not for a mo-
mint concede that there is any claim that can he allowed
til. crew by this Commission; hiit, at the same time in
|iirsentin}j; such a claim, in all fairness tiieir wa^es

lofoi tlie |)eriod during which they were employed on this
vi^M'l should have heen deducted. The captain, who
li;i(l charge of the " Urace " during this voyage, your
Ijiiiiors will remendier, was Captain Telit, who has a ()er-
sonal claim hertt for hardships, imprisonment, and illegal
arri'st; and the evidence discloses that he was receiving
WM^es from the United States at tii»! very time ho was
sii|i|iosed to have heen imi)risone(l; and he asks !is4.oo0 for
tin iiardships lit! suH'ered in heing allowed to go to Oun-
al,i-ka as captain of the "Grace,'" receiving wages and

.'ofi'i'il while on the voyage— in connnand of tlie very vessel
ill wliicli he sailed from Victoria as master. Furthermore,
ns he did not return to Sitka witii the skins until all the
Dtlier captains and mates had left for home, he never was
routined; nor is there any evidence that he was even
(liliiiied i»y the United States.

Willi reference to ihe guns on the " Dolphin," I think
ilir evidence has heen fully dealt with in our brief at
|iiit;v lUilt, shewing that the Indians owned the gnus used
liy them, and that they did not belong to the vessel, and

^utliat tiiese guns were returned to tlieir owners. I read
fiMiii page n.5i> of the Kecord, line 'Mi:

•riio IndiauH ou the ' Dolphin ' got their giiUH Imok. I ilo not
" kiiDW, Imt I Hni)i>oso tho luiUnnH on the ' (h'ai'i' ' got theirs also.
" Tlirv wore thero at the time, ami I know they were given what they
" 1 liiiined.

■■(). Do yon mean liy ' their guns ' guUH furniHheil them by you?
' A. So, their oifn i/uns. There were unite a number of them seized. "

Tliat shews conclusively that the Indians owned these
^iiiis, for which a claim is now made. Furthermore, the

40i\ idiiice in the case of the '• Dolpliin," at page l(!;{ of the
Kxhiliits, discloses that there were only three rifles and
twenty shot guns libelled, while the British argument
I hiiiiis for " 2() guns, 10 muzzle loading guns and 4 rifles "
Ijiai^o i'2l?, lino IS).

I also desire to call the attention of your Honors to the
iti m tor premiums of insurance, for which our learned
fiii lids claim over ^7(10; it is criticised at page 4ou of our
iiii;uiiient, and that criticism has not been dealt with in
tliiii printed reply or in oral argument by the learned

.;(i ciiiiii.sel on behalf of Great Britain.

Sir C. H. Tupper:— I did not wish to repeat anything
my learned associate has stated in the other cases, so far
as tile general principle is concerned.

Mr. Lansing: — There is no application of a general prin-
tilili' ill this case. In the claim, in which yon referred to
till' insurance, there were no i)olicies in evidence, and
tliiii- cancellation was a conclusion. Here the policies are
ill I'viiience and show on their face that they were can-
celed on August 2d, yet no deduction is made in the

6o Hi it isli argument for return of premiums— the premium
isrharged through to the following March. That is the
ciitirism I make. We made different criticisms in differ-
ent rases, and only one was dealt with, that in regard to
till' ■'Thornton," in which case the policies were not pro-
•liiMMJ, but in those claims in which the policies were put

il'llll.

•

\if

PfFT-

IIT

07L'

(Mr. Lansing's Argument.)

in evidence, my learned fiiends made no comment in tli. ii-
oral argument, and I submit our criticism is entirely jiNt^
that where it states on I lie face of the policy that it was
canceled on such a day, it is prima far if evidence that
the (uvner, or his agent, received the balance of th(> luc-
minm from that time mitil the expiration of the policv
In refeience to the seal skins seized upon the '• Dolpliin "

loand "Grace." which we shewed were resold to Wan vii,
my learned friend, Sir Charles, criticised our statenn nt
that the owner can only righlfidly claim the amount |mm1
for them by his agent, on the ground that the skins had
been damaged by rats, and weie not therefore wortii as
much when lecovered as when seized. At the time, I iv-
inember, I challenged the statement which be made, stating
that I thought it was incorrect, and that the Record shewed
the " Henrietta's" skins 'vere the only ones damaged liy
rats; but 1 find that I was in erior, and T desire to correct

20 my mistake by reading the evidence in the liecoid. Tliu
-forence is to page l!t!t'_', line 4:5, which contains a pail of
lue repoi't of the ap]traisers read into the Kecor<l hy (nie
of Her Majesty's coinisel, which is as follows: " A nuinhfi'
" of sacks had been jiartially tcn'u and rendered useless,
" having been gnawed by rats, and from the same cause
" about a ilozen jx'lts irere fovnd to hove l)eeii (fdnHdjcd.'"
So far as those dozen skins ar(> concerned, I desire to
qualify what I said, but no (nrther; and we aie very
willing to concede liability foi' the full value of these ll*

SOskins. l^ut in th(> case of the other |ielts we consider tiiat
the claimant, if he is entitled to reco\cr at all before this
Commission (which we deny) was only damaged to the
extent of the sums which be |iaid for these skin.s when
they were sold at auction by the United States autiioi'-
ities.

The "Ada."

In regard to the claim of the " Ada," I simply dt^siie to
say in n'lation to the duration of her s(>ason that pi.icti-
40cal experience has shewn (and 1 thiidc 1 demonstrated to
your Honors th>s morning very conclusively what such
experience was) that the close of the season was approxi-
mately tlH> LTjtb of August: and when Captain tiaudin,
who never had heeii sealing before, and lu'ver has liecii
sealing since, attempts to say he intended to stay in the
Sea after that dale, I submit that, even if he had re-
mained, tbei'c is no probability that be would h.ivo
secured a single seal.

There is no discussion hy my learned friends of oiir
50 criticism of the claim made for insunuice premiums in the
"Ada "case; and no disrussion of (jur statement that some
of the canoes and guns were returned. It is fair toas-uiiie
that tlicy ((udd find no answer to our statements, whicii
are sujiported by am|)le evidence.

'J lu' Cfinunissioiier (111 the part of the I'nited States: -
Mr. liansing, if Mr. Cooper w;is the owner of these ves-els
(the " (irace" and " Dolphin"), how can you chaige liiiii
with what Mr. Warren made on these skuis.

Mr. Lansing: — because be entered them all on the JMMiks
(jcof Mr. Cooper.

Sir C. H. Tujtper: — Have you the I'ecord for that?

Mr. Lansing:— You will find that he st.ites they were so
enteri'd.

'i'he Conunissioiier on the part of the United Stale>:—

l>
I)oe^• the reference to the b'ecord here, page llv^L ■-'

IcW

(17;^

(Mr. Lansing's Argument.)

all that? If not, you had better give me the additional
rrlVrences.

Mr. Lansing: -In regard to tl e money received from ilie
M;irslial, I will shew it was crei'ited on the liooks of the
schooner.

Sir C. H. Tupper: — Cooper's?

Ml. Lansing; — Certainly, as Cooper owned the vessel. I
Rishiiuld, perhajjs, say the hooks of the schooners. They
aifcalled " Cooper's hooks " i)y Warren, hnt. perhaps, tliey
li.ive not that title on their covers. They |)rohahiy have
tilt' name of tiie vessel. From tho.se hooks the C'ooper
claims |)resented to vonr Honors are made np.

.Mr. Dickinson: — Presented at Paris, and sworn to as
( I toper's claims.

ThcConnnission".'on the part of the United States: — Vou

ini'd not stop for rc^'.-rence now, it is not necessary to

delay. I suppose the cancellation of the item of insurance

20 is the .same on hoth vessels- that is to .say the "Grace"

ami the " Dolphin "--substantially the same facts?

.Mr. Lansing:— -Yes, substantially the same; there is in
pncli case a claim made for premiums until the expiration
of the policies, when in fact the latter were cancelled soon
alter the seizure. You will find the item for insuiance in
each .schedule fully discussed in our printed biief.

There was one matter I omitted in dealing with the
value of vessels to which 1 desire to refer, and that is in
ivl.ifion to the credibility of ovvntMS of vessels as wit-
;oiies.scs to pntve their value. It met with severe criticism
fioin my learned friend, Mr. Bodwell, and I jno]K)so to
shew that the comments l)y the United States upon the
testimony of these three nu'U, Munsie, Warren and Spring,
as to the value of vessels is entirely justifiable. I refer to
page :.'!I0 of the United States argument, where there ap-
jiea is .in extract from the report of the Committee ap-
piiiiited by tlie Hoard of Trade, relied upon by (ireat Britain
ill the (ieiieva arbitiation, which is (jnoted in the connter-
case iif (ireat Hi'itaiu at page i;?4 (Oeneva Arbitration pa-
40|ie!si, The extract is as follows:

■ It will 1)0 at (Hicc adniitti'd liy thoso wlio an> at all familiar with

■ till' |iiiicti(»' of tlio courts in luaritiino cawcn that it is inipossililo to
■' iiliic c miu'li reliance on the o|iiiiioii or evidence of ship owners or
'■ i.iiTehiints as to the value of |iroi)ertv, which they are seeking to
" icrover. Hhip owners are in the haliit of foundinfj; their estimate

■ not on what wouh' lie tlie niark't [)rice of the vessel at the time of
•' hi T loss, but on the original cost price, and oft(>n take into account

• the anioupts whii'h they have ex)pended at ilitt'erent times without

■ iUiy proper deiluctiou for the wear and tear and danuige which has
'■ Imim sustained."

le reasons set out in that extract I claim that any
. ...:*. ..,^^,,^_ Warren, who claims to

^0 |',,rth
eviili'iice given

by the witnesses, U

be ,111 nwner, Mtinsie and Charles Spring, in relation to
the vessels in which they are interesteil. aial their lesti-
iiimiy as to the valiu> of other vessels slioiild \>o received
with extreme caution.

Ill relation to the crediliility of Warren, 1 tiu'u to page
■jvi; (lithe IJecord, line IJt, where apjiears ;ui extract from
till' lilidavit of Warren on which the claims v.ere made
Uji.il nttaw.a, in ISST, in which In- bases his Bering Sea
'lalrli iipoii Ihe catch of i:! vssels " in and about Beiing
".^ea" lb' stilted in eNplanation of this lliat he was n-
stinctedat ( )ttawa I b'eiord, pagei'ss, lino jo) to make up
till catch for Bering Sea, which he could not possibly do,
" l.ii." he s.iys, "I did not have the figures," ;ind so he
iniile oiit the list in the way he<liil, put ting in the catch

(!74

(Mr. Lansing's Argument.)

for the entire season; but lie kneiu the Bering Sea cat li
of the " Dolphin," the vessel of which he was master, \.t
he puts her catch in his schedule, from which he draws
a general average as a basis for computing an estiinai.il
catch for Bering Sea, at 2,t)(il skins, while the "I1..I.
phin " in fact took but 2,(»;{7 skins in the Sea; lli..
"Giace" is credited with 2,550, while she took on li. r

10 northern trip l)Ut 1,7()5, .icconiing to Warren's own tt'>-ii.
mony; and the " Saj ward " L'.725, while she took luit
l,5i)('). Now, these were facts that Capt. Warren kn. w
at the time he made out his scliediile, and yet lie incindid
the catch of each of these vessels for the whole season ui
his list, from which he attempts to show wiwit a ve^-MJ
would have done in Bering Sea alone. 1 suhniit th;il a
man who wonid do that under oath is a witness ivho-c
statements we have a right to (Question, i)ar ticularly i'|m,|)
values. 'I'lieic is an evident miention to exaggerat. m

20 this prestMitation of claims at Ottawa, ami we have cm 1 y
reason to expect that in giving oral testimony he would
not hesitate to employ the same methods, especially wImiv
he is asked his oi)inion, which it is impossible to prove
false. In regard to that schedule of Warien's, I iiftr
also to page 2M5of Kecord, line t!8, where; his testinionv is
as follows:

" Q. Just tell us how you compiled tliat table? A. I Umk llf •■.ihl,
" of cn'lahi scliifiiefs iti Be/iriiiif iSni/<ir ISSfi, vr^ ••''■ that I kuew tn lii>
" in the Sea, aud those I did not know to bo in !!i' S .\ I left out."

•^° ile knew tliat he was taking the cau^i. for the whuji'
season instead of the catcii in Bering Sea; he knew that
he had endeavored to establisii the Bering Sea catcli from
a general average for tiie entire season, but does lie in-
form your Honors of his methods? No; not until his
counsel suggests an explauation. Sucii methods aiv
enough to thi'ow discredit upon all the testimony given
by James l)(jnglas Wan en.

I now call youi' attention to the evidence of diaries
Spring, at i»age s77 of tlie Kecord, aud read, bt^ginning ;it

'*°Iine 10, the following from his cross-examination:

" (^. You liavf i)ut in a claim heretofore again.st the United Studs
" (Jovcruiiicut. in which you .stateil that the 'Onwai'd ' took 400 ^,luus,
" aud you deducted those 400 skius from an estimated catcli for llic
" seasciu, and claiiaed from the United States (iovernment the lialiiuce.

" The ('omiiiissionerou the part of the United States: — Mr. Warren,
" that evidently is in writinj?. The proper course is to show him Ihe
" claim."

Then his a(fi<lavit, apjiearing at page tin, volume .") nf
the .Ameiiran reprint, was sh two the witness, and liis
Soci'oss-examination continues:

"Now, Mr. 8j)rinp;, you know that the 'Onward' took more tli;in
400 skins in lieriug Sea that year, do you not ? A. Yes, sir."

And yet that affidavit, made in ( )ctobei, 188(1, is swniii
to hy Spring, when he knew that the vessel had taken
more than 4o(i skins; in fact he testifies that be knew she
had secured 1)07. 1 submit it isheieshown that there was
an intentiou ou the part of the witness, when he nmle
that atfidavit, to deceive; and if he intended to deceive
oothen, it is fair to presume tliat he would havt! deceived at
Victoria, if opportiuiity had olfered, and the oppoitmiity
was offered when he testified as to the vj-'-e of vessels.
in estimating the catch of the " Onward " in l^Hii, he ex-
aggerated, and in placing a vale. H[,y>i\ th(! " (";iioleii,i "
and " Onward " 1 charge that he has again exaggeialeil

-„-'3B3k

ti7r>

(Mr. Lansing's Avgiiment.)

I read now from t,lie evidence of Gustav Hansen,

(lii'i'ord, pageSdl, lino r)4):

" Q. Do you romomber a schooner oallod tho ' Winnifreil ? ' A.
'• Y' <, «ir.
" (,). Had you auy interest in iier ? A. I bad.
■•(,). What interest had yon in licr V A. Oue-third."

"Sow, let US tui'n ti) tlio testimoiiy of Spring, at page

1017:,;', of the Record, linc^ (Jo. He was asked: " Did

luil ('apt. Hansen own a part of this vessel who'i she was

sci/rdr" "^vot reeorded "' is his answer, an e\ident at-

trni|it to avoid the tri.th.

■ (,) I asked yon if he owned her ? A. i d,>u'i liiink so.
■•(,>. What do yon mean by not • recorded ' V A. He is not regis -
■ inril as an owner.

■ (). I am not asking von abotit that; illil h' own (fi iiiliTfsl in the
■• ivw,Y.» A. No."

Here is a direct contradiction hy the witness Hansen of
'■^ihr witness Spring.

Sir C. H. Tnpper: — Read tiie next statement, so as to
get the full nKNiiiing of the last.

Mr Lansing: I will, thougli my learned friend will see
that it is also contradicted l)y Hansen.

'• t). Wliat was liis rehition to the vess(d ? A. Something in eon-

■ lu'ctiou with an aj^reenient betw('(^u him and one of the owners ; I
"don't exactly understand the mitnre ot' it; / diil nut halhe.r iiii/self
■■ a-ilh il."

.(, .Xcuv [ will tui'n to tile testimony of Hansen, at line 27,
page S04 of tho Record:

• Q. You did not pay for her (tho " Wiunifred "|, as a matter of
•• t'iu't? " What did you agree' to i)ay for hor? A. I hadn't made any

■ ^ftth'HU'Ut.

■•<,). Wlio ilid ;iofi ijHt hi'f from? .\. Mr. Sjirini/."

Hansen testifies he got the vessel from Spring; and
S|iiiiig says that there iiki// have; been an agreement with
oiii'ot the owners, hut he did not "hotiier ' iiimself ahout it.
Niu\ , one of these two witnesses is giving .also testimony,

41 aiiil I submit that tiu> credil)ility of hoth can ligiitfully lie
iliu'slioned. 'I'liere is a complete contradicticjn l)y Spring
of .1 witness largely relied ii|)oii by (Jreat Britain and
|Kiiliculariy relied upon in the " VVinnifrtnl '" case. If
tiii>t;iv Hansen swore falsely in this matter, what will
vuiir Honors do with his testimony in the "Wiunifred"
case^ If Spring gave false evidence, and there is veiy good
reason tor believing that he did, then I say that his testi-
iiioiiy in regard to tiie value of the.se vessels is unworthy
of any ciei.lence wliatsoever.

;o 'I'iie leslimony of William Munsie, which is stam|)ed
troiii coNcr to cover of this Record with deception and
tal>ily, wdl be fully coiisidei(>d by my associate, Mr.
Waireii, although I am contideiit that your Honors have
already reachccl the conclusion that his statements are
often untrue and always unreliable.

I also leave to my associate the discussion of the value
of M' ilskins, tluMpiestion of intent as a factor in detei'-
iiiiiinig the duration of the sealing sea.son, and the re-
iiiauider of the separate claims, which are before this

" iii^;h Commission.

1 have been dealing with the facts which are in contro-
vi'r.sy, but there is out* fact, perhaps the only one, in con-
lU'ctieii with this tribiiiKil upon which the counsel for
lioili nations are in full accoi'd. We. like our distin-
^ui^luil fiieuds, liave been deeply im[)iessed with the

(iTf)

(Mr. Lansing's Argiuntiit.)

uniform faimi'ss ami consideration wiiicli lias marked tne
conduct of tiiis High Commission from its first session at
Victoria to tlio jiresent time. And in view of the past wo
confldently anticipate tliat the linal award will enilxiily
those jirinciples of justice wiiich liave made famous tho
hencii of both nations, and wliich siiould distinguish tlnir
international tiihunals as well.

lo '^'om' decision is to become a precedent for future com ts
of this natui'e. Your inteipretation of the law, yoiii' de-
termination of the sufticiency and conclusiveness of (ho
evidence for the allowance of such claims as are bei'die
you, will 1)0 hereafter invoked hy the United States or by
lireat Britain.

To-day the claims presented are against the United
States; to-morrow similar claims may he made against llio
Government of Her Majesty. 'I'hese -hums, as now pre-
sented, aggregate over a million and a <piarter of dollars.

20 The niwt may be for fifty times that amount. Tluio
should be then no appeal to the geiiiM'osity of the United
States, no d(>niaiid for liberality, no comparison of the
poverty of tli»> claimants with tlit^ wealth of the Uniled
States. Coiii|)romis(> and conciliatiim ai'ethe instrmnents
of diplomacy, not of justice. The time for such appeals
ceased on the sth day of February, ISitt;, when the treaty
constituting this tribunal was signed.

What we ask, and what we have reason to anticipate,
in view of tlie high judicial character of the members of

30 this Commission, is an award, which will coirectly inter-
pret the law and deal e(pial justice to the claimants and
to the United States, an award to which the future may
tiun with full confidenc<' that it contains not one iota
of compromise nor one tlollar of damages assessed beyond
what the evidence discloses and the law allows.

Such an award will bind still more closely the friendship
which exists between these two great Kuglisli-spcaking
nations and will give a new stimulus to the cause of inter-
national aibitration and per|)etual peace.

40 At four o'clock the Commissioners rose.

Commissioners under the Convention of February 8,

1896, between the United States of

America and Great Britain.

r.egislativo Council Chamber, Provincial Building,
At Halifax, September Hi, 18!>7.

'0 Mr. Wakken'-^ Ahoumknt.

At 1().3(» A. M. the Comniiss-'ionerH took their seats.

Mr. Waircn:— May it please the High Commission: The
learned counsel for (lireat Britain have occupied and forti-
fii'd every legal position which the facts, as they would
cunstiue them, demand, and their ingenuity has at times so
prevailed njjon us that the principles of law which should
rule the questions at issue before the High Court have
20iihnost been concealed.

Learned counsel have brought into the discussion this
contention: The Cnited States intended, when seizing
these ships while hunting in the waters of Bering Sea,
tliat the taking of seals should be prevented, and there-
fore, the speculative, uncertain and contingent profits of
seal hunting sliould be allowed the claimants as damages.

We had understood that the rule of law laid down by
tile courts, which declares that damages sliould not be
measured by uncertain, future profits, was, as announced
30 by that High Ti'ibunal convened at (leiieva, based, not
iipnn the fact that tli<>y are too remote, but on the fact
that the}' are too uncertain to be accepted by a court as a
just measiu'o for estimating damages.

I read from the Award of the Geneva Tribunal:

•■ .\ii(l, wlioroaH prosjiootivo parninRR numot properly 1)0 made the
■ siiliject of comin'usatioii, inasuiueli as tliey ilepeiKl in tiieir nature
■• Mpou future and uncei-tain contingencies, tlie Tril)uual is uuaui-
•• iiiiHisly of opinion tluit tliei'C is uo gro\uid for awarding to the
" I'liiti'd States iiiiii sum V)y way of indemnity under tliis liead."

Counsel have labored unnecessarily, therefore, in seek-
ing out authorities bearing upon theipiestionof intention,
lleie there is no question of the remottMiess of damages,
and the intention of the wrongdoer is impoitant only as
hearing on remoteness, where pimitive ore.xem|)iary dam-
ages are not demanded. The Barof(Jreat Britain ought
not to search beyond the famous casi> of llddlcji v. Iht.rcii-
(lii/r lor authority to establish the e.stent to wliicii a
winngdoer is liable for the damages consequent upon his
tortiiiuis act.

Baron Aldei'son. delivering the opininn ot the Court in
that case, said:

■' We tiiinli tile proper vnlo in such a case as the present is this :
'Wiieretwo jiarties have madi' a contract which one of them has

• lirnkeii, the damages which the other )>arty ought to receive in re-
■' spcct of such lireach ot contract, should he, siu'h ,.■< nniy fairly and
" rcufoualily l>e considered either arising naturally, /.(., acc<u'ding to

• thi' iismil course of things, from such breach of I'ontraet itself, or,
" siii'li ii> may reasoualdv lie sujiposed t<i have liei'ii in the contem-
" plotimi of both jiarties at the time they made the contract, as the

piiilialili' ii'sult of the hreaeli of it. Now. if the special circum-
stiiiii'es under which tilt I'outract was actually made were I'on'.mu-
uicuted liv the plaintiH's to tfcic defendants, and thus known to hoth
IMirtiex. thie damages resiijtiiiuf from the lireiu'h of such a coutraet
■ ■> liicli thri" would rCHHOualdv contemplate, would he the amount of
injury wlueh W4ir,u.i ordinarily follow from a hreaeh of contract
under tliet* spi'ciiul circumstunces ho known ami communicated."

678

(Mr. WaiTon's xXigiiiiieiit.)

And before the decision in that case, the eminent Ficinli
jniist and publicist, i'othier, with wlioso work on ohlj.
gations, pul)lishod last century, the learned counsel, Mi.
Hciqne, will lie familiar, laid down this doctiine; nor was
it original witli that eminent writer, for he cites, if I rc-
niemher corre'.-i,ly, in this work on Obligations, tlie ti\t
of the Pa'idecls, where the principle was declared.

10 In our ov.'M lountry. in ls;!l, the SupremeCourt of Ihe
State of Jiouisiana decided the case of Lobdell vs. Parkn,
by this same principle, and in the State of New York, in
ls;!!». Blaiichard rs. Ely was dt^cided and this |)iin(i|i|('
applied.

So that tliK counsel for the United States do not conte.-^t
t.'ie accuracy of the proposition that a wi'ongdoer is [ire-
sumed to know the natural and ordinary conse(iuences of
bis own wrung a(;t, and is liable theicfor, or that a tort-
feasor is responsible for the natural and ordinary conse-

2o<|nences of his own act and for all of those coiise(|Ui'iiri.vs
which he had reason to believe would follow when lie
committed the tort, but we enquire what relevancy that
principle has to the claims referred to this High ConiiniH
sion.

The argument of the learneil counsel is: When y( r
Honors shall delermine that it was the intention of ' -
FiXecaitive Department of the (iovernment of the ['ini ',
States t(» prevent the taking of seals within the waters ,.,'
Bering Sea by these seized ships, then your minds will

johi' picpiued foi' the ascertainment of /(iris which, beloie
the intention of the I'nited States became ap|)arent, were
too uncertain, speculative and contingent io be (>stimate(l.
By wi)at nietlind. we ask, can the intention of the ti;it-
f(,>asor transmit the powtM' to a 'rribniial todetei'unne with
accniacy or justness ihe facts to serve as a basis for
aw.irding damages^ 'I'he animus of a tort-feasor can
never render pessible the just determination of that which
is impossible of ascertainment.

40 My associate, Mr. I.ansmg, has reviewed with care ami
accanacy the testiuumy in this Record bearing uiion llu-
contingencies modifying the catch of seals and the im
possibility of estimating a future catch. He has lecounti'il
to your Honors the almost insurmountable obstacles ot-
feieil l>y natuie ;ind the dil'liiMilt ies encountered in this
business o( seal hunting, and reviewed the teslinumy
hearing upon the clim^itic eondilions pievailing in lier
ing Sea. .\nd wa have the tc^stimony of the Hjiiglisji
p<:et, Mr. Ki|)ling. concerning this sea of fogs and nusts,

50 for lie has Avritlen these words:

■' Hulf-stciim iilieail by tj;noss iiiul U'lid,

fur the sun is mostly vcileil;
Tlu'iiiiffli fdf^ to fot; l)y luck and lo^;;,

sail vc as IJi'i'inK sailed;
And if till! liKht shall lift avi^lit

to tiivo voiir landfall plair.
North and liy Wist from Zapru Crest,

yo raise the CroH.soH Twain."

The task of elucidating the legal positions of the L'niteil
(K^Slates will devolve upon the learn(-d Senior Counsel I'nr
the United States, at whose feet we sit now and at all
times on questions of law. I, for myself, beg the attention
of the High Coimnissioners, while I recall youi' minds to
the real facts in contioversy, and ask you to breathe, as it
were, tlie atiaosphei'e of the case.

»)7!>

(Ivlr. Warren's Argument*)

Adverting, first of all, to those cases wliich wei-e last
ccin^iilered by the learned Senior Counsel forlJreat Britain,
I rt lor to paragraph five of the Conv(>ntion, uiidei' which
tins High Connnission is convened, which reads as fol-

■■ Anil, whereas, it is clnimoil liy (treat Uritain, tliouRli not admitted

■ In the United States, tliat ])rior to the said award, eertain other

■ ciiiiiuH against the United States aeeriiod in favor of (Jreat Britain on
•iiir.innt of seizures of, or interference witli the followiug named
' Jdilish sailing vessels, to wit: the ' Wanderer,' the ' Winnifred,' the

• ' lliurietta," and the ' Osear and Hattie'; and it is for the mutual in-

• t( list and eonvenienee of botli the high eontraeting ])avtieH that the

• hiil'ility of the United States, if any, and theaiuount of compensation

• 1(1 lir paid, if any, in respect of such claims, and each of them should

• ;il-n he determined under tlie provisions of this convention; all
•cliiiiiis liy (ireat Britain under Article V. of the ruiilua i-i>-i;nli of
' A|iril IH, IHO'J, for the ahst<Mition from fishing of BriMsh sealers dur-

• inn the jx'udency of said arbitration, having been dbtiuitely waived

■ 111 lore the tribunal of arbitation."

I wisii to call your Honors' attention jtarticnlarly to that
p,ir,i.t;rai)h. >.'o (j-,iestion relating to these additional
claims, so-calleii. w;'.s determined by the Paris Tiilmnal,
iiml no wrongful act on the part of any officer of the
r nit I'll States is admitted or any liability confessed.

The " Oscau and Hattik."

1 ((insider, first, the chiim of the owners of the " Oscar
and ilatti<' '" I shall take it for granted, if your Honors
please, that wo all know this Kecord, and when I make a

Wstatcment of fact, if the I'eferences are not given, I court
intci Tupfion by the learned counsel for Great Britain, and
will Mippiirt my statements by the liecord.

The "Oscar and Hattie " was seized in the harbor of
Attiiu Island on theliOth day of August, JS'J2, by the com-
inander of tlie United States cutter " Mohican." The
vessel was towed to Unalaska, and there delivered to
C.iplain Parr, in command of Her Majesty's ship " Mel-
peniene." Ca|)tain Pair ordered her to proceed to Vic-
toria. The ship was deliveied to tbe Collector of Customs

4"ot that i)ort; was eventually libelled in the Kxchequer
t'diiit, l)istri(;t of British Colinnbia, and was condeniiied
ami 1(11 feited. The Kxchequer Court found two things. It
fiiund the " Oscar and Hattie " (fit ill n of acts in violation,
iitit of the )ih)(lits rirciidi of lS'.t-2, but guilty of acts in
vinlation of tlii> Seal Fisheries Act, an act passed by the
I'ai liament of (ireat Biitainiii 1S!»1. It also fdund that
there existed probable taust' for the .sei/.ur(> of tlu! "Oscar
ami Hattie," for without that the first linding would have
111 III inii)(issil)le.

?" All appeal was eventually taken to the Supreme Court
111 the Duminii 11 of Canada, of which your Lordship is so
ilhistiious a meiiilier. and that Court reversed the tinding
orilic IdWer Court on but one biaiicli of its judgment.
The Siipieme Court of the Doiuinioii of Canada found
that there existed y<y7';/((//Wc/c' cause f(ir the seizure of the
\e>srl, but (!"termine(l that there was imt rcd.soiiKhli' canse
till her <'iiii(h iiniatioii.

Tlie vessel ii'id been already .sdid by order of the lower
("lilt. Thesu:a icali.'.ed was i-eluinedto tiie (iwneis, and

'"Ihi rlaiin is in v made against the (ioveiiuneiit (if the
( iiitiil States f( ;• a hiss df si l.Iiti,'). occasioned by the sale
(il I lie scliooiier a. el her cargo for a less sum than she was
.1' iiially worth, i lie United States deny any liability to
th. i.wners of the " Oscar and Hiittie " in any sum what-
(•\ i-i .

080

(Mr. Warren's Argument.)

The ground upon wliicli tlio claim is advanced by I he
counsel for Great liritaiu is that the Supreme ('cut
of Canada held there was not adetpiato cause foiiho
condenuiation of the vessel, and, therefore, the Uiiiinl
States is responsihie for the act of its officer who oi -fi-
nally made the seizure.

This position is taken because of a misconception by :\w
lolearned counsel of the decision of the Supreme Couit nf
the Dominion of Canada. That Court did not decide tli:it
there was not /•('f(.so///>/e cause fov seizure, but did (IcnilL'
this, and this only, that tlieie was not adeiinnte cause lor
the c(>ti(leiiitiat/(»i of the "Oscar and Hattie." And this
position is taken by the learned counsel also, becuis.', I
conceive, of a niisconc-eption of the charge upon wbicji this
vessel was libelled in the Exchequer Couit in Victoii;i.

The counsel for Great Britain proceed in the discussinn

of this case, botli in their written and in their oral ai-ii-

2onieuts, as; though the " Uscar and Hattie" was tried, ccjii-

denuied and forfeited for a violation of the modus vinutU

of lsyL>.

Why, if your Honors please, the Convention of \><y>
was not possessed of any force as to subjects of (I nit
Britain beyond this: It was an agreement on the pan of
Great Britain that that nation would thereafter tnait
sufficient legislation to i)revent its citizens from takinj;
seals within the waters of Bering Sea. In the Uiiiteil
States of America all treaties and conventions constitute
30a part of the laws of the land. Not so in Great Britain.
In that country an act of Parliament was necessary to
prevent its subjects from taking seals in the waters of
Bering Sea, and Parliament enacted legislation known
the Seal Fishery Act, which beca^ne, as it were, a jiarl
the iiioiliis v/rendi.

When a British vessel was seized in Bering Sea she was
not seized for a violation of the modus vivetidi, but for the
violation of the Seal Fishery Act of ISIU.

The third article of the Convention of 18!t2, known as
40 the modus vivvndi, reads as follows:

" Every vessel or person oftomling against this prohilatiim in tlie
'• .laitl waters of Bering Hea, outside of the ordinnry territorial limits
" of the United States, //j'ly he. seUml iiml ddidneil hi/ the naval nr 'ilher
" ihdji commisniniied dlfkers of eitler of the. hi</h conlrndhii/ parlies, hut
" llwy sh'iU be li'intletl over as so'tii as pniclioihle lo the. anlhoritiea cf ihe
" iKilioii to irhich thei/ rei/iedir'-li/ Iielomj, wlio shall alone have jurisilic-
" tiou to try the oH'ense and impose the jienalties for the same. 'I'lic
" witnesses and proofs neeessary to establish the ofl'ense shall alsci lie
" sent with them."

^Q L'uder that aiticle Great Britain gave authority to the
" cruising officers of the United States to make sei/nius
within the waters of licring Sea. not only of sbi])s of the
United States, but it gave them autboiity to seize ves-els
belonging to subjects of Great Britain. To seize vessels
doing what, if your Honors please? Not conunitting aits
in violation of the modus n'nnidi. but in the Sea in viela-
tion of the Seal Fishery Act of ls!»l.

Now the Seal Fishery Act of isiu (Kxhibits, p. -''i:!)
contained this paragra])h:

" [fit ISrithh nhip is foiind within lieririi/ Sea, having on hoanl tin lenf
' fishinii or shooliii'j implements or sealskins or hmlies 0/ seals, it shall iii-'ni
'■ llie iiinier or master 0/ such shi/i to prove that the shiji n'aa not iiseil or <in-
" ployeil in conlravenliou 0/ this act."

My contention is, therefore, that by the modus riii ^nli
of lsit2 Great Britain bad authorized the cruisers ol ilio

as
of

OKI

(Mr. Warren's Argument.)
iiited States to seize a vessel found within the waters of

tlic Bering Sea violating the Seal Fishery Act of iHltl, he-
ciiise the Seal Fishery Act, we have seen, was a vital and
111 ces-sary part of the iiiodns rireiidi and the niotlns pro-
vultnl that the naval officers of either country could seize the
sliips of suhjects of hoth countries; and the Seal Fishery
Art of isyi provided tiiat if a British ship was found within
lotli'' waters of Bering Sea having on hoard fishing or shoot-
ing in)plements or seal skins or hodies of seals, it should
[if on the owner to prove that the ship was not used or
('iii|)loye(1 in contravention of that act.

Was, I ask, the " Oscar and Hattie " within the waters
of ik'ring Sea at the time she was seized, having on hoard
seal skins or the hodies of seals or implements for taking
gt'iilsif IJjton that (piestiou ahtne does this case tiwn, and
I leler your Honors to page 227 of Exhihits, line 11.

" Q. When you were seized in Gotzleb Harbor you liad all vour
"calinK equijimcnt on boaril, hadn't, yon - your gnna, and all the
■• nocoHsary appliances for Healing, on board of the vessel? A. On
'• Imiird theaehooner?

" Q. On board the schooner? A. They were there, sure.

" Q. And you had certain sealskins on board? A. Yes, air. But
•■ tlipy were not caught in the Behring Sea."

Continuing at page 227 of Exhibits, line 22:

" Q. When yon sav fully equipped, captain, what do you mean by
" that exactly? A. Well, fully equipped.

" Q. Let me understand you; you moan you had your guns and
p ■• fishing boats, and that sort of thing, used in sealing? A. Yes, sir;
•■ there on board.

'■ (). They were on that schooner when you were seized? A. Yes,
•' sir.

'• (). And you were equipped, except with provisions? A. I was not
•' ('i|ui))i)ed with provisions.

" ^. Now, is it the north or south side of the Aleutian Islands that is
•• tlic boundarv of the Uehriug Sea? A. I believe now it is the north.

"if. The north side? A. Yes."

It is admitted tiiat Gotzleh Harbor is in the waters of
Hniiig Sea, Attoii Island being the most westerly of the
40 Ali'iitian Group.

Tlicii, if your Honors jdease, the captain of the United
Slalfs cruiser " Moliican," instructed by the iiioihis viremli
of ls',i2 that he could seize, not only the vessels of persons
owino- itllegiance to the country whose flag his Oiuiser,
flew, but that he could seize the schoouers of subjects
of the nation which was the other party to that Conven-
tion, and l)eing instructed to prevent the violation of the
Sell Fishery Act, and finding the "Oscar and Hattie"
uiiliiii the prohibited waters with every indication, as
5°|iiii\i(l('d by the terms of the act, that the vessel was vio-
lating tliat act, seized iier in the performance of iiis duty.

W liat was ids duty after the seizure? Under the terms
of Artiilo HI. of the iiiodits riveiidi, he was compelled to
driiver the vessel over to the authorities of the nation
ali'iic having jurisdiction to try the offense and impose the
jM nalties. Tlie nation having jurisdiction over the "Oscar
aii'l llattio" was Great Britain, because there is no claim
in tills case of American ownership. Did the captain of

60 1

tin " Moliican " perform this duty? The testimony shows
I betook tile vessel into the harbor of Unalaska and
til II' delivered her to Captain Parr, the commander of
II' r Majesty's Naval Forces in those waters, who there-
Mfiii' ordered her to Victoria foi' trial.

I 'ait the learned counsel for dfreat Britain states:— You
iii; lead the act, referring to the Fishery of 18itl. The

♦^|.

088

(Mr. WHrien's Argument.)

words, "it shall lio on tho owner or the master of sik h
ship to prove that his ship was not nsed or employed m
contravention of this net, mean that it was the duty uf
the seizing oflicer, in this ease tiie captain of tlio " y\i)\\\.
can." to act as a coin't on hoard his ship there to try tlm
" Oscar nnil Hattie " and ascertain whether or not she liail
committed acts in violation of the Seal Fishery Act uf

I0 189]. The learned counsel contend it was not his duiv
to turn that vessel over to the authorities alone iiavinn'
jurisdiction to try the offense and impost! the pouiiltic-,,
but his duty was to try and finally determine whetlier m
not the vessel had connnitted acts in violation of the Scil
Fishery Act.

If there was any such discretion as that to he exercised,
who was tlie officer to exercise the discretion? Admittinj;,
for the purpose of |)resenting the argument, that to liavu
been tlie intention of tiieact, and adverting again to Arti'lc;

20 III. of tho mod n,s vi rend/ of 18!tii, wo find that when a
cruiser of tlie United States seized a British vessel willuii
the wateis of Hering Sea. she should be delivt'ied, as soni
as practicable, to tlie authorities of the nation to wliicli
slie bclongf^d. Again we ask. who was to exercise I lie
discretion if there v»as any discretion to lie exerci'^nl;
Was it the seizing offict^-r on hoard the cruiser of the rtiiti(|
States of America, or was it (^aptain i'ari-, commandiii^^
Her Majesty's fleet witiiin the pioliihited waters? 'I'lio
agieeiiient between the two sovcit^igii i)Owers had s.iiii:

30 Vou, Captain of the " Moliican," when you seize a
Britisii sealer, shall deliver her, as soon as piacticablB, to
the autliorities of the nation to which she belongs.

The Supreme Court of the Dominion of (^anada did iiel
put tiiis construction on the Seal Fishery Act of Is'.H.
That Court held that there was fn-ima f<tcie cause for the
.seizKie of the " Oscar an<l llattie," hut not tidetjiiidc evi-
dence for her coiideiinKdtoii. And when that Court ile
cided there was a priiiid fdcie cause for the seizure of the
" O.scar and Hattie " wiiat did the Court mean? This,

40 that the United States cruiser was compelled, hy the
Seal Fishery Act of I8!»l,and the modus rire)idi of Is'J-J,
to seize a vessel within the prohibited waters having on
board seal skins and implements for taking seals, and tliat
the o//((,s rested on tiie owner to ])rove that he was iint
guilty. Prove where? The decision of that Court isdrawii
on the theory that the onus sliould only bo removed hy
trial hefore a court of justice and not by some inrornial
proceedings before the seizing officer of a United Stales
cruiser.

50 I wish to read, for the purpose of convenience, the words
of the judgment of the Supr(;me Court of the Dominion
of Canada, h(dding that there was a [trimii fiicic cause
for the seizure of this vessel (Kxhihits, l)age 2.52, line a.")!.

Keferring to sub-section r> of section 1 — not of tin; madus
I'iivndi of lSlt2— but subsection .I of section I of the Act
of the Parliament of Gieat Britain, the Court .says:

CyO'

" If a liritisli Hlii|) is found witliiu Heriug Sea liiivini; on l)e;i
thoroof lishiiit; or Hliootiuf? iiiipIonientH or seiil skinH, or l)0(lii"<
seals, it kIiuII lie on the owner or Master of s)ioh Hliii) to prove tl
' tho ship waH not used or enn)lo,vod in coutraventiou of this act. "

And the judgment continues (Exhibits, p. 253, line ;ii:

" Suffleieut /))'iwa/i/('i« proof of this was undouhtedly afforded liy
"the fai't that the Hhip wuh found within the boundaricH of pio-
" liiliited waters, with shooting implements and seal skins on lioanl.

«is:!

(Mr. WiiiTi'irs Argiimoiit.)

■• rill' iilUl.-- VMis tluiN i'iikI nil the owiii IH lo ))rovii lliiit tliii sliip liiiil not
•• lifi'ii I'liiplovi'd in killing, takiiif^ or liimtiiiK suhIh or in atti'iii|>tiii«
•' III do HO within Hi'iiii),' Simi."

•■Till' i|iH'«tioii thus Ihmoiiii's imi'clv oiii' of I'vidi'iici'. Iliivi' tln'
" I'liiiliiiuits, liy tlu'ir (H'oiiFm, diH|ilu('i'd //"' /in'oim/ilimi 'iriiiiii/ hi/ /uriy
■• fl' lie Ttlli niili-.<r''->ii)i) lit' Sf.Hiiiii 1 III' tliiiitfl I'rniii Ihi' I'liiiililiniiK umlur ii'liirh
" till' ship wus I'oiuid ill Ki'riiif^ Sea.

■ 'I'hi' Imrdi'ii of proof lii'ini;; t hils oil I III' (•liiiiiiiints, tlir owners of
" till' ship, it «iis for thi'iii to ri'liul tin' statiitorv iiiti'ri'iifi's iirisin^;-
'O'-froiii tliii I'irriinistaiici's. uiid if thi\v Imvi' fiiihil in doiiif; this, tlif
" slii|) wus propi'riy rondciiiiii'd."

Is llii'i'(^ iiiiytliiii}^' ill Miat dciMsiuii wliicli say.s that, Lluuc
was not roasoiialilc and pnihalilu (lauso for tlit^ sciziiro nl'
till' " Oscar ami ilattic;"" Is there aiiytliiiig in tliat laii-
i^iiani' which iiiliiiiatcs that tlic o«/(.s of provin^^ that im
act had hccii cniniiiil ted in cuiitraAi'iitioii of llic .Act id'
IMM coidd he K'innvcd at a iirariny; hcl'ort' the soi/iii^'
olliccr liinisoif, acliii.i;- as a court f Tlu' decision .says tliat
,,,tlii' mnis was tiiiis cast on tln^ owikh's to prove. 'I'o prove
wheiv^ To prove in a court ol' justice and in a Hritish
romt. which idone iiad jurisdiction to try tiie oiyeiisc and
iinpiise the pelialt ies.

There \vas no irregularity coniinitled in connection with
tlie seizure of this vessel. There was notiiinj^ done by
any ajA'cnt ot tlie I'nited States in violation ot' any Con-
vention or Act. The sei/iiifi; otticer of the I'nifed States
acted ill good faith; and to prove and siip|)ort tlie
contention that he (hd, 1 recall to your Honor.s' minds
;otliis fact, that th(; Excheipier Coui't of the Dotnin-
ioti of Canada, haviiio' all the testimony hefore it. having
the li»;netit of an examination of witne.sses by (!o\iiisel.
ik'ciiled e.\a(;tly what the seizing officer of the rnited
States decided, that there was rcdsoiidh/i' and probable
caiist> for the seizure of th(i "Oscar and Hattie," and went
beyonil and over what the .seizing olticer of the Uitited
States decided, and determined, that there was mli'tjiititc
cMiise for iier coiK/ciiinnl/oii.

Isfliere any force in the argument of the British counsel.

,1, tliat the liiited States seizing offiiier acted without iea,son-

alile cause, when a British court not only atfiriued his

art. hut went further and coiidemneii anil forfeited the

vessel for the coimuission of acts in violation of the law.

.\ British court did that, with every word of te.'stimony
iieloie it that the seizing officer had. indeed the seizing
otlicer had only the luisworn statements of prejudiced and
|iartial witnesses.

TliiMc is one other question to wiiicli 1 wish to allude
ill the case of the "Oscar and Hattie." It was raised by
;(, the Coniinissioner on the part of the United States by a
(|iiestion addressed to the learned senior counsel for (Ireat
Hiitaiii. when he was discussing this case in his oral
afKunieiit.

When the captain of the " Mohican '" delivered that
vi'ssel to Captain Farr in tiie Harbor of L'nalaska, within
tivr days after her seizure, or abt)ut September .'ith. can
tlie rnitod States be held resiionsible for the act of the
Ooiiimanderof Her Maje.sty's Heet in the waters of Bering
Sen, who ordered her to Victoria for trial; The captain
mV'! the •• ^bihican " took the "Oscar and Hattie." her
fill ire crew and cargo and delivered all to the captain of
tile " .Melpomene,"' Her Majesty's vessel.

il" I he seizing officers were to act as a court to ascertain
whither or not there was reasonable cause for the seizure
"f tills vessel, why did not th<> naval officer representing

M ji

r *

ivi

^\^

^v<

IMAGE EVALUATION
TEST TARGET (MT-3)

1.0 ^lii 1^

1.1

IL25 HI 1.4

IH^I

1.6

Sdaices
Corporation

23 WIST MAIN STRUT

WUSTH.N.Y. MSIO

(716)«72-4S03

(iS4

(Mr. Warren's Argument.)

Great Britain tieterniine that the "OKcarand Hatlie" wis
not jjniltv of any act in violation of the Act of I'arlianicnt
uf 1891? '

The learned conu-^el seem to appreciate the force i>|
this argnment, for Itefore it is made they i-ndeavoi |i,
avoid it hy this observation: All thetestnnony was no! In
tore Ca))tain Pari' at Unalaska, and all the testimony w.ik
I,) not before the Con rt in British (.'ulnnihia. Now, wliai, is
tiiis assertion based npon? Two letters; one written liv
Captain Joinison to Commander Kvans- (Captain .lolin
son wiis the commander of the " Mohican " and theo(1i( ci
who seized tht> "Osiarand llattie '")— (»n the :?lst <l;iy ol
Angnst, which was the day after the s"iziire, in whicii In
reports that one gronnd for tho seiznrc was. " having uu
board L'T*! skins and a complete s(>aling onttit in viohilimi
ot the nioiln.s liroidi"

Wonid that letter have benelitled Captain I'arr in del. i
.'() mining whet her or not the "Oscar and llattie" wasj;iiiliy
of acts in violation of the Seal Kisbery Act of IM'I;
Snrely not. That letter only set out the fact that llir
"Oscar and Haltie"had on board s»>ai skins and a sealinj;
onlfit. Did not Captain I'arrofthe "Melpomene'' know
that the "Oscar and llattie" had on boa kI these seal skiii>
and a sealing onttit? 1 have allnded to the testimony i Kx
liibits, p. L'^'J. commencing line Mi, wbicli says, thai the
"Oscar and Hattie," having her entire cargo on boaid.
having on board every article on her when seized, was il(
;()livere(l to Captain I'arr.

Mr. Peters:— WonId yon mind showing me in what |i.irl
cif our brief we have inserted what von have jnst now
stated?

Mr. Warren: -You took that position in the oral aigu-
ment; yon said: '"'J'here is now additional evidence wliiili
ronchisively shows that the seizing odicer at the time lie
seized the vessel did not really believe-

Mr. I'eters:— That is not the |»oinl. My learned frieiiil

says that we took the point in our brief that Captain Tan

40^hould have decided this matter, and that he diti not have

this «'vidence before him. That point is not mentioned in

oiu' brii'f.

Mr. Warren: -1 say, that in addition to that, my leaiiud
friend took the position that this evidence was \\u\ lieloic
the couits of British Cohn)d)ia.

Mr. I'eters:— 1 took that ground in my oral argnment.
Von said 1 took it in my biief. I took the point in niv
oral argnment that this eviden("e was not before Captain
Tari". You sai<l 1 (ook that )ioint befoi'e the snggesimn
;, was made. 1 never took that point in my brief, and wlial
I di<l say in the oral argnment was said in answer to a
-nggesfion from the Conunissioiu'r.

Mr. Wairen:— The ( onnsel foi' (ireat Britain did niaki'
Ibis statement in their brief, at page IT*': "'These letter.-
which were not before the Canadian courts, nrove the
fact that the schooner was si'ized not foi' a bi'ea< h ot
the modus, but for two charges of contravention of llie
Uevemie laws of the United States, neither of which li mI
any foundation whatever in law or fact, and upon a
((lebarge not of having broken the teirns of the niiiilns
lint «)f having a nundter of seal skins, &c., on board. wlii< li
is no breach thereof."

1 have read the cause of the seiznie of the ve.s.sel fnin
the letter of Captain J(»hnson, which was because ahe had
seal skins and iniplements for the taking of seals on hoard

*•»:,

Hattie" w.is
' I'arliaiiicni

the foicp ul
t'lidoavor to
f was not lie
utiniony wub
ow. wliai. is

writtfii l)y
il'taiii Jiiliii
1(1 tlKMil1i( i-i

:nst iliiy ut
ill which he
" having on
ill violation

'air in dclri
" was jiiiiltv
\v\ ol I mm";
let tliat III.'
iiid a scaling
u'lU' '' know
'sc s('alskill^
linioiiv I Kx
vs. tli'al the

on hoard,
iz«'d, was (If

in what pail
ve just now

(' oral ai^ii
dciu't* wliicli
the tiiiio ill'

irnt'd frii>ii(l
'aptaiii i'air
lid not have
ncntioiicd ill

. my loai iit'd
IS not hct'oif

1 ar^niiK'iit.
|K)iiii in iiiy
ore ('a|ilaiii

snujicslioii
id', and wlial
aiiswor to a

n did inaki'
'h«'S(' U'tlii.-'
s, nrovi' tilt'
a Itrt'ai ii «it
ntioii ot IIk-
f whicii had
iiid npoii a
the iiii'dii'i
Hiard. wliirli

(Mr. W'arren";i Argument.)

williin thu prohihitcd waters; and I liave sh«>wn the niis-
riiiut'ption of tho conns*'] wlu-n stating tliat there was no
violation of tlie (//o///(.v. The vessel was seized tor a vio-
lalioii of the Seal Kisliery Act. not of th»' Hindus.

riii' othei- letter relied upon is a letter dated Septemhor

loth, and a copy of whicli is found on page I7<» of the

aiuiinient of Oreat liiitain in chicd". This letter was writ-

,tcii hy Commander Kvaiis to the Secretary of the Navy,

nil! is as follows:

" l>iiriiiK till' liittrr |iiirt ol' Aii^iinI. I liml sent I lie ' Miiliii'iiu' to the

■ M.iiiifyof Atfoii ImIiiuiI tn a|>|iri')ii-iiil iiiiil riipturi' iiiiy Hi'iilcrN from
' till' KiisHiiiii Hiilf. wlio iiii|;lit lir fouiiil in that vicinity. I foiti't'il tliat
■ -I'liii' of lliti Mi'liooni'i's lifter vviiti'rinn i»t Attmi, would, in t-iisc of f»<)o(l
• wcatlirr, stop for « fnvv iliiys' sciiliii^ in KiM'iiiK Mi'x. wliii'li I ili'tor-
" iiiiiii'il HJionlil not III' clonr. iiiiil at tlio Hiimi' tiino I wiNlii'il ItritiHli

" M'liiMincrs to niiiliM'stiinil tliat tlicv coniil no Ion){i'r iniiki' a con-
\, Miriicr of AiiKirii'iiii ports ili<>)riiily for nn'ryinj? on tlirir sralinK

■ .i|i('i'atioii. On my arrival lirri' (Unalaskii) * ~ I fimiiil tin?

■ ■ Osriii' anil tlattir' in port, liaviiif; t»'rn I'liptiircil at tiol/.lt'li Hiir-
' Ixir. a Hiiiall watering port on the Islaml of Attoii, 'ly tin' ' Moliicaii.'

■ oil Scptcmlii'i' 1st. ami si'iit Iiiti' in rliai'frc of an ollicor ami priz<>

■ rn«. Wln'ii raptiir)'<1 she liail on Imaril 27ti fur si'al xkiiis, takfii on
' till' riiiist of .Japan, ami a full Hcalin^ onttit."

\\ hat fact does that letter contain whi(h was not he-
loir ('a|dain I'arr. Her Majesty's represeiitalive in the
llailiiir of I'nalaska? Thecoinisel for (Jreat Britain says,
I iiiii'iiander Kvans states that the sealskins were not
lak II ill Hering Sea hiit tin the coast of .japan. I ap|)re-
litiid that your Honors will consider the sourci- of Coin-
iiiander Kvans' iiiforniatioii, and that yon will determine
till' source of that information to have heeii what was
lound hy the seizing oHicer on hoard the "Oscar and
llatlif." Kroin no other source did he (d)tain any infor-
mal khi. and was not the same source of information open
to till' captain of the "Melpomene." for did ho not have
hi his possession when he or<lercd that schooner to Biitish
I'lpjimihia for trial, the same schooner, the same cargo,
till' same papers that the captain of the " Midiican " had
when he seized her in (lotzleh Harhor^ Is it of any iin-
jioitaiice that the report of Commander Evans was not
ill lore Captain I'arr when all the facts whicli served as a
lia-is for the report wt'ie hefore that olficerf Is it of any
iiiipoitaiice that the report of Commander Kvans of the
• 'I uiktown" was not hefore the trial Court when all the
tads were hefore the Court; I apprehend not. if your
llii'.iiiis please.

What next< Captain I'arr received the schoont-r prior
III the loth day of Septemher.

I lie Commissioner on the part of the I'nited States:— Do
von know the precise day on which she wjis delivered to
i 'iptain I'arr;

Sir Waireii: The vessel arrived in the lliirhor of
I iiaiaskrton the.'itliof Septemher (.Kxhihits, p. l'lM. line
-II 111 :m. and K.xhihits, |i. •2-2-2, line :'.7) The captain of
ilio "Oscar and Hattie" testifying i Kxhihits 'Ji':'., lino 14)
St, ill - that the Comniander of the " Voiktown " told him
tli.it ii|inn arriving at Cnalaska he should wait until Her
M ijisty's ship ■• Melpomene" arrived.

■ ()■ Willi, in aliout Ion iiayn yon wurc .I'llcri'd liy (taptain I'arr of
' till' ' Mi'tponii'iii' ' to proiici'il to Victoria ? \. Yes. Mir."

It your Honor please, that is the neaivst we Ciin de-
li i mine the date from this Record. On the ftth of Se»)-
I' 'iilier the schooner arrived at Tnalaska anri the " Mv i-

I'lStl

(Mr. Warnii's Aif^miiciit.)

))on))'iie" Wiis iiiil ill tlw li.iilxir. ('i)iniii;'iiil(i- Kvmii .;
tlic " Yiiikluwii ■■ okIciciI llio •'Oscar aiitl lliittic ' i,,
await I lie arrival of Hit- '• Mt'lpoiiicntv" Tlio " M»'l|niiii(.|i, '
arrived williiii ti-ii (la\>- allt-r the .Mil ol' Si'|it»'iiil)ci, 1„
cause file laplaiii stairs tlial in alitnit ten il.iys he u,i~
ortlercd liy Capt.iiii I'air of the " Me!|iniiieiie" (o |m<i(m,|
to Virtdiia. It' llieie iii aiivlliiiig iimre eeitaiii in i|,.
loKeoin! [ will advise your liniior later.

Tlie {"(iiimiissioiiei- oil tin- pait dl' the I'liited Slat. -
I tlesire to ask yi.ii. Mr. Warren, whether there i> ,i:,\
tiling in the K'eeord to show that tlie iiislrnetioiis ;^iveii liv
the Navy |)e|iartllielil to the olliceis of the lliifed Sljl,-.
vessels in the heriiij; Sia. were (■oiiiniiiiii'ated to tli.
UritiNh (ioveiiinieiit.

.Ml. Warren: - 1 helieve tliev were eomiiniiiicated, Imt
I will answer lli.it i|uestiou this .itieriiooii. your lloiioi-.

[At a later time diiriiiji the iiroj^iess of the irj;iiiii> m
2oof tli(! Senior Counsel the eorrespoudeiiee liansiiiilnn-
the instruttions to the Uritish (iovei iinienl was read Innii
tlie "FoniKU h'elation of the IJuited States" for iht' ye.u
isjti. This eoirespondeiice diseluses that Secretary Itl.tiin
advised (ireat liritain as to|low.«:

" 111 ivply, 1 lijivcthi' lioiior to inform voii tliiit lliiK ( iiixi'iuni m
" ilot'.s nut tliiiik it ni'ci'SNiuv to nioilifv tlir iustriictions (»ivni to t||.
•■ Nuviil otlictT.s of till' I'niti'd Stiitt'». If ii vchki'I is foiiiiil in liciin-
■- .Sell with II Hcjilin^ outlit. tlic onlv silfr i-oiirsi' to take ix to c'niii|ii I
'■ lirr to Inivr llnti Sen. unit tliiK I'liu only ln' rtleclivi'ly iloiie liv takiii;;
, •• luT out undiT coiivov. 'I'/iis l/if lliiitt'il Sliilrs f;//l(r;.s- iirf iliri;-l,;l i,,
J •• (A) mill III liirii kih/i lirilisli rexsi'ls (ipit In Ihr liritish Xurul njlin r .ii
■■ I'linliisliii. //■ III' ili'msfs III Inkr llif ri'SiiiiiisHiilili/ iif rfleiishi't sncli ■-. --
" sels, llien it o A/> rii/lil In iln sii."

( I'ajif f>4u. Koieioii IJ.'Iatioii of the I'liited States. Is'.M.

] think that I have shown that the seizing otticei. \vli'<
was the oHicial of the I'liited States, delivered to t'a|itaiii
Parr all the evidence a.s rciiuired l»y .Vrticle ill. of tin-
4oM<)ilii.s ]'/rriiih' of jsji'j. which provides:

'• Tilt' witni'MNi's uiiil proofs mi'i'ssiiry to rstiililixli tlie oHins
iiIho lie sent witli tlii'in."

>\m\\

He took the proofs that were in his possession hei.iij-..'
he took tlu' sclioonur, the entire caij;o, the entire <ie\\.
every iniplenieiit for the taking of seal skins which wa*
on hoard that ves.sel. every article oii ho.ird, and ileliveiiil
tlieni to Captain Pair.

Now, I ask, can a siihject of (ireat Kritain come lieldo
50 this high Court and obtain damap's from the rniteil
States because his vessel was ordered by a Hritish otlidr
to a British court, was tried by a Hritisli court. coiideiiintil
by a British court, forfeited by a British court, all ot
which resulted to liis damaged The [iroposition of ijir
learned counsel for Cireat Britain is that he can.

The United States severed its connection absoliiii|\
with the " Uscar and Hattie" on the day that Cnin
luandei Kvans of the " Yorktown " di'livered her in 111-
harbor of I'nalaska to Captain Parr of the Koyal Navy
U) Why, if this was a private Iiti)j;ation and this proposition
of the British counsel was stated, it would not be arjiiml
as long as it has been here. Here are two agents, oiielli''
agent of the I'nited States, the other the agent of (livai
Britain. The agent of the United States .seizes the ve>,sil
for ii violation of British law, and seizes her as ho w.i-

iillcliMi , >lmll

Ill-
Fi-
ll '•

t»87

(Mr. Warren's Argument.)

inicte'l by the uiotlns vivemli of 1S)»2, and the Seal

lieiy Act, a necessary part of the iiioiliia, takeM her on

iiyago of six days, and thereafter, as soon as possible.

:i vol's her to the agent of (Jreat Britain. From that
(i;i\ the United Slates Tias novi^rseen tiiat vessd. From that
(1,1 \ no court of tile United States lias sought to condemn
li\ its judgment the " Oscar and llattie." From that day
10 111' ii'presentativK of the United States has done any act
ill connection witli tlie s(;h()oner "Oscar and Hattie,"
liiit :\ citizen of (treat Britain seeks !? 11, < too damages from
till' United States.

Wlien first taking up the consideration of tins claim, I
Mliiiied to the fact that by the r>tli paragraph of the Con-
V( 111 ion under wiiich this Commission is convened, the
(iiitt'd States admit no iiabihty whatever in comiection
w iili the * Oscar and Hattie," and also stated that no fact
h;i I liccn iletermiiied by the Triitunal at Paris in connec-
.'0 1 hill witl) the seizure of this vessel.

Now, when the facts are all before this High Coumiis-
siiiii. the United States deny any liability whatever to the
owners of this ves.sel.

Cuniniissioner on the part of the United States: — lam
;iii\ious to know al)out these instructions for this reason;
Til.' British act evidently tlirows upon a vessel situate as
tins vessel was the duty of |)roving .soyHcH'Ae/r that she
w.is not sealing in Bering Sea or iiad no intention of seal-
iiii; tliere. The instrnctions fi(tm the Navy Departnipnt
^oto the Commander of the United States fleet in Bering
S. .1 eviileiitly interpreted this Act as meaning that it was
to lie proven in comt. and tl)e instructions without (piali-
tiratiou directed the officer to seize a vessel fonnd in
lii ring Sea with bunting implements or seals or skins on
Imi.ikI of her. It gives biin no option whatever, and if be
iljil not seize her he would act at his own peril, no matter
\vli;it liis personal belief was. If be did not seize her, and
il ^lie was afterward round sealing in the Sea, of course
lie would be sul)joct to a court martial. The British in-
4,i>iiiictioi)s, as found in the court record, do not contain
tiic particular instructions given by the United States
N.iw Department to their officers in Bering Sea.

Mr. Dickinson: The British Act sets forth the same
tiling.

The Commissioner on the part of the United States:—
V'lii claim so, but it is not there in terms. What I want
I" know is whetiier the instrnctions were communicated
I'liher to tlu' officer in tlie Bering Sea or to the British
(luveriinient. They clearly proceed on the byitotbesis
;otii,it it Captain KiVans. altbongli he believed that this ves-
>' I hail hot liecn sealing in Bering Sea. had discharged
li'i . he would have done so at iiis own peril.

\lr \Varn>n:--He could not resort to ;niy method of
jiiilicial einpiiry iit sea.

The Commissioner on the part of the United States:—
111 it was evideully the construction put upon the Act by
ill' .Navy Department of the United States. I desire to
Kn w is that in the Kecord. The Supreme Court of
( inula pursues the inatler at page 'J.jii of the exhibits
'o till I her than the extracts in the case from either side
sli.w. The juilgmeiit goes on to say:

Till' l)nr(l(>n of proof Iipiiik t.liUH on the clainiantH, tlic owncrR of
'till' uliip, it WB8 for thorn to roltnt the Htatntor- infpri'nc(>« ariHing
' fi iiii till' circuiuHtaufcH, anil if they have failed in doing this thn
•■ -hip wan properly coudeinnod."

i I

i'-i
1(1

♦IhS

(Mr. Warren's Argument.)

It <l(M's not say wlicn' tliey are to r»'l»ut. \V« liav. ,i
great many fishery anil game statutes of all kimls \vlii< h
re(|iiire the seizing ottieer to seize where there are cert lin
suspicious < ircumstances, and to siihmit the matter t' a
court of justice. Just what this statute means is nut it
forth, altiiough I may have mv own idea ahout it.

Mr. Peters: -1 hope your llonors will not take it ; r
I o granted that we admit the construction put on the Ki.;
lish statute, or that we admit that the Knglish staluie
contains anything hke the positive insiructions that i m
the American Act. VVe contend tiiat the Knglish statu'r
does not contaia the instructions, and we do not wish to
he understood as adopting that constnu tion of it.

Mr. Warren: — ! call your Honor's attention to a pa ii
graph in the wiitten argument of the United States . n
this case, at page 47i»:

" Tlie Captain of tlip I'nitod Ktnten rcvonue cutter 'Moliiciin'
■■ flndiuK tlio '(War nud Hattio' wit!:iu the watorH from wliicli hlic uas
" exfluded l)v the Conveutiou, having on Imard int|ileiu<MitH fortiikuii;
" senlH, wliied coiiHtituted n-aHonalile eauHe for Heiztiro an |>rovi(|i'<l m
" the iuNtructionH iHHued t>v tlicHocrctary of theNavv, and l>y tlio. ;il
" P'ishery Act of 18!U, and liuviuK on board alAo Itodica of Heain, u ln.l,
" placed on tlie owner of the ship the ouuh of proving that tlie gliip uas
" not UHed in contravention of the imxliis, an provided in tlio Seal I'i^li-
" ery Act of 18i(l, neized the Hchoouer ou the 3(Hh of AuRugt."

And at page 4H1, aie these words:

30 " Tlie United HtatcH contend that the captain of tho revenui' cntii r
" ' Mohican ' had reaHonaMe cauKc for Hcizing tho ' OHcar and Hiitln '
" The construction placed upon tho inoihis eipunli of \H\Y2hy l»>tli<iuv.
" ernmentH, oh contained iu the Fixhery Act of IH'.H, and in the iusti iir-
•' tions of tho (Jovernmcnt of the United Htutosto her cutters iu IJciiii),'
•' Sea. was a reattonaMc and, moreover, the controlling couBtructidii."

There is one matter that might Ih' made clear liere. It
is apparent to the minds of all of ns. perhaps, that the Sr.il
Fishery .Act of IsiM was passed in accordance with tiiu
iiiixhis rirciidi (A' 1S!M, ami that the modus rircmli i){ h:":.'
40 was l)ut a contihii.ation of the iiuithis viieudi of l^!t|, .ind
that the Seal Fishery Act of Ih'.M construed and hecainca
part (if the iiindiis of 1S|»2 hecause it construetl and Ix'ciiiiu)
a part of the modus of iv.M.

Mr. Peteis: There is no douht of that.

C'onnnissioncr on the part of the United States: — Is tin iv
any sp<'ciH<' i)rovision in the modus rirendi of l!Sy:i. tliMt
yo!! desire to refer to, Mr. Warrenif

Mr. Warren:— Idid refer, if your Honor please, toArtirlr
111. of the i//ef//(.s f/(t')/f// of lv.12, found on |)age •_'•',( 1 df
50 the K.xhihits.

1 call your Honor's attention to this position o( tin.'
(ounsel for the United States. We contend that liy llic
terms of Arli( le HI. of the modus rheiidi of Imil', In
which I have just leferred, the cruisers of the liiilni
States weie autliorized toseize Hiitish ves.sels for violaliiij:,
not the modus lininfi, but the Scjii Fishery Act of j^'.•l.
Therefore, it is unnecessary to look beyond that convni-
tion and beyond the Se.al Fishery Ait of fs'.tl.

Tlui Coinniissioner on the part of Great Kritain:- In
6oCaiia(la or in Kiigland, that is the only act it couM be m
violation of. With you a treaty is part of your law. Imt
with ns it is not. an<l there had to be an Act of I'ailii
ment.

Mr. Warren: -That is exactly our |)osition.

The Conmiissioiier on the part of the United States -

««(»

ill iccordanct' with IIih iiKi'^'i'iiifiit betwci'ii tlu' (Jovt'in-
III. lit lit' (iivat Britain aiiu the (loveinmont of the ITnited

(Mr. Warren'H Argument.)

Till' ilifficiilty is that thero is nothing; in tho act which
ill |iiisi>H a ponalty for \K'iu^i in the Kea with seal skins.
Mr Warren:— The Act of IHltl which was an act passed
(lance with the au;reonicnt be
(Jreat Britain anu the Govern
SI lies, said that if a .schooner was foinid within tho limits
i<\ Hcring Sea, having on hoard seal skins or implementa

10 ti < taking seals, t! r onus of proving that she was not
<( ininiling acts in violation nf the Act t)f IM'.M. should lie
on tlie owner of the vessel. I submit to your Honors that
>lf niU!-t be seized, because the schooner could not shew
ii' I innocence without that, or without api>eaiing for trial.
Tlie Commissioner on the part of the I'nited States;—
Till' mere fact that she is in the Bering Sea does not, so
1,11 :is I can make out, create an ot!Vnse, and this Article
III relates .simply to an olTeiuling vessel.
\1 1 . Wan en : But it said that the United States cruisers

;o^ll"llid have authority to seize Biitish vessels.

Tlie C'onnuissioner on the part of the United States:—
dUiiiding vessels.
Ml. Warren:— Offending vessels of either nation.
The Commissionei- on the part of the United States:—
Till' instruction to the navy conunandeis proceed upon the
piiiiciple that the phnce in which a vessel was to prove her
iiiiiiiceiice was in a Briiish court.

Mr. Warren: -Exactly. The h/«m//(.s r/rc»(f// did provide
lliit the cruisers of the United States should have au-

3otliniiiy to seize any vessel offending, and that, the cruisers
(il llie United States should have authority to seize British
vi-M Is otTending. As the learned Commissioner for (Jreat
lliii.iiii has stated, they could not otfend against a treaty
111 roiivention in (treat Britain, and therefore the Parlia-
iiii lit of (Jreat Britain passed an act kn<twn as the Seal
I'l-ln-ry Act of ISIM, which enabled the United States
( inix'is to seize any Biitish vessel oflfending against that
.'Kt. Therefore the cruisers of the Unite«l States were
;iiilli<irized to seize a vessel which was violating the Seal

40l:sln'iy Act of ISiM Thus far we ai call agreed. Now, the
Si III Kishery Act of ls!t| ])rovided that " if a British ship is
tniiiid within Bering Sea having on boiird thereof fishing
ni -iJUHitiiig implements or seal skins or bodies of seals,
it -hall lie on the owner or master of such ship to jiiovo
til it the ship was not (jccupied or employed in contraven-
li 11 nf this Act." That language cannot mean anything
iiiili>s the vessel was to be seized. The owner or master
(iiiilil not rebut the presumption until the ship was seiztnl.
Tin refoie the seizing officer had to tike the vessel. Here

>Oiiiii views diverge. The cotuisel for (Jreat Britain con-
ti Mil that the captain of the seizing ship sIk uld have de-
t< iiniiieil whether or not that boat had violated the Seal
Ii Iniv .\ct of ixi'l. We claim th-it the officer was corn-
In ll<i| by tlu' modus rirvmli of isjt^ to dejivi'r tiie ship
iivi In the authorities of the nation alone having juiis-
ili' Hull to try her, iiiid if there was a discretion to be e.\-
(•i. 1-1 il iiy anybody, it was to be exercised by the anthor-
iii "if (Jreat Britain .•md not by the seizing officer of the
li.iifd States. The authorities of the United States did

feii'ii uider this vessel to Victoria for trial, and liiul no con-
II' liiiii with tho disjiosition of the vessel after she was
til vired to Captain I'arr in the F' rbor of Unalaska.

I 111' Commi.ssioner on the part of the United States: —
It (Ills to me whether the naval officer was not bound
til ize her, no matter what his belief was.

(■r

ttuo

-I-

(Mr. Warren's Argument.)

Mr. Warren:— Certainly, your Honor, and he had to di'
liver her under the modus vireudi.

Mr. Dickinson: — We .ind the instructions were com-
niunicatcd. your Honor, nnd later on we will read tlii>
correspondence.

The Commissioufr on the p'lrt «)f the Tnitod States; -
If the instructions were communicated, and not ohjcctiil
!<- lo, that is an important element in this connection.

The Commissioner on the part of Her Majesty: i
understand. Mr. Warren, your argument is that hy the
law of the coimtry of the vessel, it was legal to seize In r,
acting hoiHi fide, of course, under the existence of cert.iiii
facts which were, hy the law of that country, n)ade /i/////((
facie of the wrong (loing.

Mr. Warren:— Exactly, your Honor.

The Commissioner on the part of Her Majesty: — Hij; lit
or wrong, that is your position;
20 Ml. Warren: -That is our position, and in connection
with that, the authority to so seize was derived from tlif
»iOf/».s Vivendi, which provided that Tniteil Statis
cruisers could seize British ships and the law of the
coimtry of the vessel wfis a necessary part of the modus

The " WiNNIFKED."

I will take up the consideratitm of the claim ot ilif
owners of the " Wimiifred," discussed at page 4s4 of mir
argument, and leferred to this High Commission. iiikIii'

30 the toinis of paragraph ."> of the Convention. The L'liilid
States, as shown when I was considering the rase ot tln'
" Oscar and Hattie." admit no liahility with reference to
these additional claims, and no question of fact u.is
determined l»y the Paris Trihunal in connection therewith
The '■ Winnifred" was seized July :i'», Isuii. in Bcrinj;
Sea, l)V the authorities of the United States, for violalinii
of the'Seal Fishery Act of ISJU.

One (piestion of douht should he removed at the outset;
leferent'e to the testimony of Captain Coulson, Heciiid.

40 page lots, line 'ja, discloses that the " Wiimifred " was
seized for an actual violation of the pvohihition agmn^t
sealing in the waters of iJering Sea in 1S!»2. At the tiiiic
of her tirst seizure I v Captain Coulson he was not in pii<
session of tlit; facts which, at a later period, led the
authorities of the Ciuled States to lihel this vessel tm a
violation of the revenn > laws of the United States.

1 refer to this liecause, in oral argument, Mr. Meii|iic
contended that the seiz'iig officer of the United Sialcs
knew at the time the " Winnifred" was seized that >\u-

5^ had committed acts in violation of the revenue laws of thu
United States, and, as he expressed it, the United St.itos
took advantage of its right of seizurt^ under the ini'ilns
vireudi of isi'ii. and thereafter tried and condeniii'd
this vessel for a violation of her own revenue laws.
The apparent inference from that contention is that tlu'
United States otlicer. having knowledge of the fact tii;it
till' '•Winnifred" had violated the revemie laws of tlu'
United States, under color of his right hy the terms of
the modus vivvndi of ls!tL>. seized this vessel and theif-

^'Oafti'r |)iociired a consent from Her Majesty's represeiita
five in those waters to release the vessel from trial I'oi a
violation of the SenI Fisheries Act, and had her lihellid
for violation of the revenue laws of the United States.

The information of tiie violation of the revenue laws hy
♦ lie " Winnifred " was communicated to Captain Coulson,

til.

Ill >

III-

«lt>l

(Mr. Warren's Argument.)

>*>i/,inK officer, by Captain HoopHr, who was in coni-
1(1 of the fleet of the Unitetl States in Bering Sea, and
letter is foniul at Record, pa>(e l.'ils, line 1:

'( >|>tAin W. <'. ('otTijHtiN,

" U. H. K. M., ooiiiiimndinK Ituvciiiie Bteamor 'KuRh.'

•Sir

' I'iio followiuK imtiiotl UritiHli H«a1iuK HcliooiiprH rocoi^'cd rarf(0 from
' iiii'l triiUHfcrr<>(l carKo to thf HritiMh Htouiiior ' Coiinitlau,' witliiu the
' hniitH iif tiu> ('ollcctiou DiHtrict of AluHkn, nii tlu* IKtIi iuMtaut, con-
" ti.irv to law and aro Hiilijvct to Hoi'/iirc: ' Hrcuila,' ' Uiiiliriua,' 'HfM

1,1.11.' * » • 'Wiuuifml.' » • •

■' Very ro»|n>ctfiilIv,

" ('. L. H(M>PER,

"Cai.tuiii V. H. H. M."

\i line IS of the Record, page LMH:

■ (). Now, ('apiaiu, w)\o was tho Hoiiior olHcer of the UDitoil States

■ l!i vcinu" Marino Ht'ct? A. ('a|)taiu Hoopi-r.

, •(). Yon took Hoiiiu Htatuiiu-iitH of tlic t-aptain and crew of the

• ■ Wiiinifred,' did ,vou iiotV A. Yi'h, «ir.

■*f. Hud you then tho Captain Hoopor U'ttor in y<mr poHHCRsion?

■ A Yt'H, I had tho Hooper hsttor in my posMosHJon thou.

■i}. Hud iiOH U in your itmn'sxiuu III tke timn o/i>eitur*T A. ,.Vo."

This faft. then, is conchided i»y the Record. The seiz-
iiiu iitHct'r did not have in his possession information of
ilir violation of the revenue laws of the United States hy
the '■ Winiiifred " at the time lie first seized her.

Mr. Heif|ne: — I do not think you will find in my argu-
jQiiHiit that I said anything to the contrary.

Mr. Warren. —After Iwing seized, the " Winnifred "
w.is taken to I'nalaska and, on the 27th day of July, Coni-
iii.iiiilcr Kvans of the United States Navy and Captain
I'm (if the Royal Navy met in confeivnce with Captain
('(iiilMtii. the seizing officer. That is estahlished at page
l."il.">(»f the Record, where will tie found a letter of the
sci/iii^ officer addressed to the Secretary of the Treasury.
"On .Inly 27th, Connnander Evans, U. S. N.. and Cap-
tain .\. 11. CluiM' Parr, R. N., conunanding Her Majesty's
^, iiivallorce in HeiiiigSea, met hy appointment on hoard
ilic ■ Rush.' and after a full discussion of the matter, it
irii.s (iiiri'ed on l/w fxiif of ('djitaiii I'arr that liis (foreni-
iiiriil iraiild iraire the riijlit (tf ciistodf/ of tlw svizai vessel
liiilil she iKuUteeti hied bji the United States Courts for
liiilidioii of the ('. S. Hevenae Ldies. prorided that in.
(IS, of fa it II re to coiirirt her on those rhaii/es, the vessel,
1(11 III rijo, onljits, d'c. and master and vreiv iiere to Ite
I'll ,ird over to Iter Majestf/'s the Qneen of EmjlainVs reji-
!■ -ii iiliilives at I'ictoria, li. ('., for tritd on the rharije of
■.^.| iiihition," and so ftirth.

i'lie facts are. then, that the "Winnifred" was unde-
in.iliiy, and hy the admis>i(in of hercaittain in this record,
^'•iliii^i; in till' waters of Bering Sea at the time she was
^1 i/('(i. in violation of the Seal Fishery Act of iH'.ti. There
I- MO ilis|iute about that. The seizing officer so .states and

• .i|ilain Hansen so testifies, and. if the testimony is de-
>iii il, I will read it. If not, I will he content with mak
in:; lilt' statement. This conference was held at Unalaska.
TImI Unalaska is within the jiuisdiction of the United

(K)M it( s this High Cotninission will take judicial notice. At
lliii conference Captain Uarr agreed as follows: I read
fi Ml Record, page 1.51.">. line :{(>: " .\fler a full discussion
el I lie matter, // ivas aijreed on the part of Ca/ttain I'nrr
ll'"l liis Government n-onld iraive the riyht of cnshnlif
I'J 'III' seized vessel until she had been tried tty the United

V ■

i'At'J

(Mr. VViiiTen't* Ainmiiciit.)

Sl(ih:s Cniirls fur ritiliilioii nf thv U. S. Iteveuiw l,ii, v,
prnvidvil that hi rtisi' of I'diline tit rnnrict her," and ,,
fortli. the vt'ssci would 1m> (IflivcrtMl ov»>i' to (iH^anlli i
iti«>s (if (!i<>at hritaiii to lie tiit'd for a violation of tho ^ i|
Kishnv Act.

('a|itain I'air, tht'ii, wlio was tlu* i-«*|>ri's*>iitativ*.> of 11. i
Maj«»ty's M«'t'» in tin* watt'is of Hi'iin^ Sea, rons«'ntci|
loatul ns to this tlit>ro is no dispnte, as that wiilenco is tKit
contradirtcd in tho Hcconl Ity any witness that llii.
" Winnifri'd " shonld l»'tri»'(l for a violation of tlu' Uivcii'ic
TiHWs of tho I'liitcd Statt's.
Tli(> claim is niailf on lirhalf of tho nwn(M's that

lllL-

I'nitoil States (tovoinniont is liahlo for tho loss tn ili
ownois for tho roason that tho vossol was not triod umlir
thf tt'inis of tho Soal Fishory Act, hnt on anothor cliai-, ■,
nanioly. that of violating tlio Hovonuo I,iiws of th,.
United Statos.

20 Tho Unitod Statos on its part donios any liahiliiv
whatovfi- to tho owiiors of this vi'ssol. I havo icad tiic
agi<'*>in,'nt of Captain Parr, connnandor of Hor Majoslv's
naval forcos in Boring Soa, whoroin lu' consontod tli;it
the rights of iho British (Jovorninont shonld ho Wiiivul.
This wo contend is tinal and conclnsivo, for tho na-n
tiiat tho connnandor of Hor Majesty's floot had antlmniv
to ropiosont his govornniont and toniako whatovcr a^iiic
nu'nt ho choso to niako. Tho law npplicahlo to tho I.k i>
of tliis caso will ho discnsod and hronglit to tho attonliMn

30of vour Honors hv tho sonior connsol for tlio I'niinl
Statos.

Tho vossol was roloasod by Captain Parr, was forin.illv
ro seized within tho jnrisdiction of tho l')iitod States, and
that is liie point on which this caso tnrns. Tlio vc- -i>l
was roloasod l»y Captain I'arr, and was seized within ili

piri!

diet

lonii

aters of the United States, and of (his

tlioro is no ((no.stion.

Mr. I'oters: -Will you show us the evidence on I lie
point of tho release?
40 The Coniniissioner on tho jiart of the Unit«Hl States:
That she ever wont into the custody of Captain Pan is
the ipiostion they raise, Mr. Warren.

Mr. Warren: H' yoin- Honor i)leas«'. 1 will considi 1.
fiist. the testimony I iiitonilod to road, ostahlishing mv
cnntonticin that the vessel was roseizod within the ttr
ritoivof tho United States. At IJocord, page LM;"), line I":

" .V«'tiu(? undiT iuHt met ions rocoivi'tl from Coinuiiinili^r Evans.

" V. H. N., I have tlioi-oforo iiindc foriuni Hoiznroof the ' Winifred ' ami

'• iirrowtt'il lit'r iiiUHtt>r. (J. M. (>. HiinHcu. itnd orow, for violation of (In'

50 " V. S. Ucvt-nuo LawH as aliovc citt'il, and as soon as the iu'ci'>.-;irv

•' pajH'rs can lie jirocnrcd, sho will lie di'livorod into the (■nHto(l\ uf

" Ijit'ut. Conuiiandrr TaiiiH-r, I'. H, X., ooniniandiii); IT. S. >Sti'a r

'• ' .Xlhatross.' for didivcrv into tin' haudsof thi- U. S. DiHtrit^tAttoni'.v
'• at Sitkn. Very rfHiicctfiiliy."

And at Record, page l.'ill. line 44. we find this bs
linmny :

'• B.v iliroction of Coniniandcr Evans, the vcskoI was formnli.t .li'-
•• oiarod seized for violation of the revenue laws.

"if. That is what dav ? A. That is the date of the coDforouce, thr
Co- ;»7thof July."

Tho vessel, then, was seized in the harbor of Uiialask 1.
whi(!li is within tho jurisdictional waters of the liiii' d
Stato-i, for a violation of tho revenue laws of the Uiiiiil
States.

nee on the

608

(Mr. VV'aiivn's Aigunient.)

Now, 1 n|)|M(>li(>ii(l tlu» (|uostion of (ho Henior counsel for.
(icit Britain, is this: \» there teHtiniony in the Uecord
111 it cstuhUshes the fuct thi't the " VVinnifred " wiih lurtii-,
iiiiv iind iihyisinilly deUveretl to Cnptuin I'arr of Her Mu-
j( iv's Navy in uccordaiK^e with tho terms of the modus,
I, I iidi it{ IHlt'i} In reply, 1 ask this qnestion: Is there
aiiv testimony in the Uecord to eslahhsli the fact tlint she
u i~ not so delivered? When we have llie p<»sitive testi-
iiy that slie was formerly reseized in the hnrhor of
;iiaska, «loes the presumption not arise that lln'se off]-

III

CI I Is (if the United States seized the " VVinnifred "for a vio-
l;iiiipiiof the revenue laws of the United States after s!ie
li.il heeu tend«'re(l to Captain Parr, in accordance with
til iHitdits rivviiili of IM1»2 and refused hy him. She was
t( iiilt'n'd, I will say further, to v..aptain I'arr of the Koyal
N ivy. in accordan«re with the ihimIiis riveiidi of 1H)»2, he-
(Miise, otherwise. Captain I'arr would have had no hiisi-

iQii'^'* in connection with this vessel, and would not have
Imm 11 on the deck of the " Yorktown" in conference with
tin otticers of the (Jovernment of the United States.
(',i|itiiin Parr was there, and the vessel was tendered to
linii, or, otherwise, he could not have ^iven his consent
till her release, whi(;h consent is in the Record.

NnW, I ask, iKtcause the words are not in the record
Ihii "1, Captain Coulsen, seixing olHcer, today towed
till' ' Winnifred' alongside of some place that Captain Parr
dill ited." hav(« we failetl to prove that she was ever ten-

;oili'i<il to Great Hritain) I say again unless she was teu-
(I. i( i| to (ireat Hritain, why was Captain Parr on the deck
(if the " Yorktown " in conference with Conunandor
Kv.iiis an<1 Captain Coulson? And if she was not tendered
ill ;ii lordance with the terms of the iiiodiis viri'iidi of
h'.'L', how could Ca|itain Parr release her and waive his
I i^lil tor trial under the terms of the modus rirendi/ Are
MMM Honors to presume that the language is void uf
iiK iiiiiig when Captain Cuulsou writes, in his connnuui-
(aliciii to the Honorahl<> Secretary of the Treasury at

4o\\ i-liington, that it was agreed on the part of Capiain
I'.iir that his Government would waive the right of cus-
tiilv (if the seized vessel until she had heen tried? And
.11 • von to conclude that Captain Parr was doing a vain
tliini;. that he was agreeing to something that he had
Ml Ml heen asked to agree to, that he was tendering to the
aiiiliMiitit's of the United States a vessel that had never
li'i'ii tendered to him? And when Captain Conlson testi-
tji ~ that he formally seized that vessel within the juris-
ili' iiiiial waters of the United States for a violation of the

joii^'imc laws of the United States, is that testimony to he
taki II as void of meaning? .And are we to helieve that
Cap! liii Coulson seized a vessel that he had no necessity to
st'i/i\ for, according to the contention of our learned
fri'iids, the " VVinnifred " remained in the possession of
till' rnited States authorities? 1 do not think there can he
iiin si-iioiis dispute ahout the (acts in this case. No other
int. iiiice can he drawn from the tttstimony.

I VIS asked to refer to the testimony showing that Cap-
tin : I'arr had possession of this vessel. 1 rejdy that we

601I11 lit r('(|nire such testimony; that we have ah.solute
kii wlcdge that the vessel was tendered to Captain Parr
111 1,1 1 ISO ho tendered her hack; that she was ilelivered to
C.i lain Parr, hecause he waived his right of sending her
t(i ituria for trial; that she was in possession of (treat
Hii: Mil. hecause she was leseized in the jurisdictional

1 ■ 'T"

7" TT't"

)■ 'i

:' ■• l:.«.

*(!»4

(Mr. Wiinvn's Argiiiii<>iit.)

wntiTfl of tlio lliiit«'(l Htiites l»y th«' aiithoritieH «»f ||,.
Uiiitod States iiftor tlio waivur t)f cuHtotly was ina<h' I \
('ai)tain Parr.

Thf ComnuHsioiu'r «ii the part of Her Majesty; TIm
expression " waived the riKlit of custody," if strictly in
terpreted. would hardly support the notion that there wis
cuHtody in fact, woidd it, do yon think? I moan, if on.

lo looks at it narrowly?

Mr. Warren: -If yonr Honor please, in reply to tji ,
sn«;gestion. 1 would sny tliis: It is in evidence that tin
vessel was tendered to the British authorities. Siii< .'
when did it l)e(rome a principle of law that the tender m|
personal property, and the refusal by the person who Ii;ii|
the rijrlit to its custody, is not wpiivjilent toa physical dr.
liveryf This vessel was tendered to Captain I'arr; hen
fused it; ho waived his right to have the veH.sol delivcitil
to a British comt for trial on the charye of a vicdation ui

2othe Seal Fishery Act of isui. Would it sifrnify anytlim-
more if we found witnin the covers of tliis Uecord tli.'
testimony to piove tliat Captain Tarr had a line on tlir
" Wimiitred " and had her idongside some dock? Since
when, I ask again, was it estaltlished that ,1 tender of per
sonal property, and a refusal hy the person entitled to its
custody, is not in I'vcrv respect, in a <'o\n"t of justice,
e<|uivalent to the physical possession hy the per ■ n
whom the lender was madef
There is in our hrief another ground <if iK'fonse. dm

30 learned frienl. Mr. Beique, read from page 154 of our
argument, these words:

" Till- iutcrnaliiiuul i|ueMtiou iif jnriHilictidii Iit'iiiK *>ut uf tlic wuv,
" iMHiK- is tiiki'u witli the |iiiNitiiiu of tli<> liritiHJi couuhcI tliat tlir i'nm-
•• iiiiHHiouci'H uuilcr tilt- |irf8t>ut Couveution t'liu r(>vim>tlietiii<liiiK of ilic
■■ Ctinrt t)f AliiHkiiDU ituv jnriiti('ii!i|tiOHtitiii. Nointcrnatinnnl court lun
" revisi! the jn<U^iiifiit of the court of aiintion uuIuhh thitt jmlKiiii'iit li.-
•' hy tlie court of liiHt rcHort in its judicial «yHtciu. This ruh- iHcstnli.
" liHhed UN onu of iiiiiverHal application, to whicli there can be no < x-
•• ceptiou, unU'HH an appeal wan prevented."

40 The learned counsel, after reading that, admitted |li;it |i>
he the law if the vessel had been seized within the juris
diction of the I'liited States. That is his statement in onil
argmnent. I shall not discuss that |)rinciple of law. lnil
content myself hy rejiding the position of the rnil.il
States, asset out in the argument, and I only read it lor
thepmposeof replying to the argtniient of the learned
counsel for (rreat Hritam. The tact is that the rc.s.sW nuis
sciu'd iiilhiii llii'jiiiis<liiiii)ii 0/ ///c L'liitcd Staffs, nwA I
have reail the testimony.

50 Mr. Bei»iiu': My po.«ition was.it seized within the terri
tory of the United States for the violation of nnnii( iptl
law in the United States.

Mr. Warren:— My reply was e.xactly to that content mii.
that she was seized in the harbor of Unalaska for a vjuhi-
tion of the revenue laws of the United States; and 1 rr.id
at page l.'il.") of the Uecord, as follows:

•' Acting under instructions received from Conmiandtr
Kvans. U. S. N., I have therefore made formal seizin lut
r)othe ' Wimiifred' and arres^ted her master, t». M. 0. Han-
sen and crew, for violation of tho U. S. Ke venue La w.^. ;is
aliovtt cited, and as soon as tho necessary papers can In'
j)rocm('d she will bo delivered into tlio custody of Lieut.
Conunander Tar.nei-, U. S. N., conimanding the U S.
Steamer * Albatross ' for delivery into tho hands of the l'.

(tO.'i

(Mr. Warren's Argument.)

S DiHtrict Attorney at Sitka," as aln>v«) cittfl. 'I'lmt was
\Mii-ii ('aptain ChuIhcmi \v;ih in tlin li.irhiii'of rnalaskii.

Mr. Btti(|U«: But you st>i/t'(l heron tli<> lii^li s«>as, mid
lii'iiKlit litM l>y forco within the jinistHction of tho Tnittnl

SI iti'H.

Mr. \Van«'n: -SciztMl h«'ron th<> lii^h seas lor a violation
(il ihi' iiinilus riinuh'. Milt she wiis m'i/ftl for a violation
II.: llif Uevcnut' Laws of the riiitrtj Statt-s, within the
jiii isilictioiial w'iiti'isof tin- L'nitcd Statc-^, ami at tlx- tri.il
III I owners could havt> laiM'd tlif (|iii-stion of jiirisilirtion
,iiiil taken an a|i|)eiil to thi> Sii|)r<Mne Court of tin* I'nitfd
.*^i,ites. liut wliat did tin- owners do afh r this vessel wan
M i/eii and taken toSitka^ They entered tlieii'a|)|)earan('e
i'l I hat case and pi ve testimony, and did not r.tise tiie(|ues-

II III of jui isdiclion. And what more did they do^ Th*>y
;iliiilei| Ity thedecision of the (Nairf at Sitka. .\ii appeal to
till Supieme Court of the I'liited Slates, which is Hie lii>;hest

.•iiniiirl ill our coinitry. w,is no* perfected.

I'lie learned I iiiinsel. .Mr. I iipie, admits the correctness

III the propositiiiii thiit no in' inafional court can revise
till' jiid|;nient of a court of a uatioii unless that jiidKineiit
lir liy the court of l.isf -isoit in its judiciil system. The
coiiiisel for tlie I'liitt '' fates, iherefiie. say, with refei-
iiH e to this claim .idvanced liv th.' owners of the " Win-
.iilii'd," that the hoat was s"M/,e(l within the juiisihction
(if the I'liitcd States for viol.Mioii of tile revenue laws,
wa-^ convicted after a rr^iil:ii' trial: and, no appeal having

;(iliiiii taken, it is not open to this llinh Court to revise the
jinll^nieiit of the Distiict Coiiif for the heiietit of the
iiwiiersof this vessel, riierefore, the Lniled States deny
;iiiv liaiiility whatever to the owners of the " Winiiifred."
Moreover the vessel was at the time of her seizure in
till' liij^li seas jictnally t.ikiii^ seals contrary to the laws of
liiilli countries. It would he aj^iinst piihlic policy for her
III recover damages resultiufjf from a seizure made for the
|iiii|iose of enforcinj; the laws of the I'liited States and
i^ieal liritain and to recover daiiia<;es for the interrnptioii

41 1 111 a voyage admitted to have heeii iiiideitakeii contrary
til the law of the country of the vessel.

dfi

The " Waxdkkeh."

I now come to the consideration of the claim of tiio
iiwiieis of the '■ Wanderer." No ipiestion of fact was de-
li iiniiiedhy the I'aiis Tiihunal in connection with this
1 1 Hill. Tliis High Cominissioii is to consider this claim,
iiiil 'pendent ly of all other tiihtinals.
;ii III the schedule in the liritish argiimeiil in chief, the

I I inn is made for ^!S, 447 for tin- prospective or estimated
1 .ill II the schooner would have secured if not interfered
uilli. The I'liited States contend that there was 110 iii-
ii'ilerence, in fact; and deny any liaiiility whatever to
t 111' owiieis

A^aiii I -ay that unless I am asked to give reference to
till' Kccord, 1 will state the facts, helieving that they are

III the minds of all of us, and I ask the learned counsel for
till at Ihitain, at any Mnio to interrupt with a reqr.est

i«)lli.il the asseition or statement of fact he suhstantiated hy
a ii'lereiice to the testimony.

The " Wanderer" was never outfitted for a voy.ige in
I' I iiig Sea.

Mr. Heiqiie:- We deny that. We prefer that the evi-
li' iice lie cited.

ti',)*;

{Uv. WaiTt'ii's Ai-giinuMit.)
Mr. Warren: — Hontrd, pa^i' ir>;!«t, liin'Td:

" In 188i>, von wort-, 1 Iwliovf, on the ' WHi'.ileror,' won> von u t v
-A. \Vh.

" Q. As luiiBtor nutl owuor of f li«' vt>HH«'l ? A. Pnrt owntT, vck
" Q. Anil iiiiiNt'T of tlio v«'HM«>l y I)jil von oiittit th«> vi'KHol'for lllo
" oouHt autl lt)>liriuK H<'n? A. Yen, |)iirtly.

" if. Whiit do von nifiin l)v prti'tlv? A. Well, what I uionu ih lli.i I
" tliil not take ii full Btoi'k o^ itroviniouH with nio; I took inuui>,v iil. an
'O •• to linv proviMionH."

Mr. Hodwt'll: — And \\v honght tliein aftiMwardrt.

Mr. Warrt'n: — Yon aro in t-rror; liti novcr lumglit mu.
dollar's worth of provisions aftorwards bccaust' In; wis
not, on tl)at voya^(^ within one tlionsand inil«>s of ilio
placo whero ho said ho intondod to pnrt-liaso provisimis
(Record, pago lit'M, lino iiiS):

" Q. WhiTC I'oulil you Hi>cure ndditioual prpvisiouH? A. I had ;;nt
" proviHiouH at Uu^or Island, at Yakiitat, Hitka.
20 " Q. M IhinlaHka? A. I could got tlifui at UnalaHka l)ut I was i\<<\

likoly to go to rualnHka.

" Q. ProvisioUH could UHtially be got at that plaoo? A. Oh, yi's '

What fads thon do we find in connection with IIik
claims This vessel never «.nttitted for a voy;ige in Hcrinj;
Sen. hut the captain testilies that he had four or five Imim.
dred dollars with which to bnj- provisions, and that lie
sealed along the coast of Vancouver Island. On the SMli or
loth of May, ISS'). the Indian hunteis nuitinied, and the
captain aliandoned the pro|)osed voyage to Hering Sea aiul

-^° returned to Victoria and never went to Hering 80a mi a
luniling voyage.

Interfered withi If your Honors please, there is not ,1
line of testimony tending to show that any officer of a
Unitt'd States crni.ser ever saw the " Wanderer." evii
knew that the '■ Wanderer" was in existence, ever saw
the ca|»tain of the "Wanderer" or any niendter of tlic
crew of the " Wamlerer," or that any otlicer or agent n(
the United States ever saw any hunter on hoard tlir
" Wander*'!.'' l>o the learned counsel tpiestion that/

40 What occurred on the loth of May, issj*^ The cipt
says ( h'ecoid. page IMl, line lai. and because of tin

ini

(juest of the learned counsel 1 inti-nd to lead thistestiinmiv
and n<>t<lepenii upon nienioiy, for we conceive this claim
to he entirely fictitious, entirely sinnilated. without fonnda
tinn in fact and without any basis whatever:

•' {.). How far dill you fjo V A. Went us fur as CaiM' Si-ott.

•' Q. You did not rcai'li Hclirinn Sea V .\. No, I did not.

" Q. Whv y .\. Till' IiidiauH went liai-k ou nii'.

"tj. Wlii-rcy A. (HrCapfHcott "

Iv'cferriiig to the maps, you will discover that Cape Scoti
is one Iboiisand miles from Hering Sea. It isat the iinrili
ein e.xtremily of \'ancouv«>r Island. That is where tlii-<
boat went. She was never on this voyage, according tn llic
feslimonv of the captain, anv nearer to Hering Sea than
Cape Sciitt.

Hefoic consideiing the testimony of the captain, pernut
me to say th.it although he endeavoicd to cre.ite tlie
impression and establish the belief that this vessel was
6odeprived of her season's earnings, the facts were devi I
oped by the Cnited States counsel that the ' oat ic
tin-iu'd to Victnii.i after the loth of May, made a chaitti,
went to Shnmigan islands at the entrance to Hering Sea,
brought hack a cargo of seal skins and received her (ny
for the services. The captain was sdent on all t

697

(Mr. Wari'en'rt Aigunioiit.)

N,it a woi'il of MuB diai'ter until tln^ Unite<l Staies coiiii-
8t I had leaiiu'd from the witness, Captiiin Rucknain, that
til • •' Wanderer" was at Shnnii^an Islands after the lolh
(il May, and had foreetl from the witness. William Mini-
Si., .ifter a vigorons cross examination, the fait that the
" W.iiiderer " had lu'en chartered for thepnrposeof hring-
iiL; l)aci< seal skins from the vessels which discharged
lolli'ir cargoes before entering tlu) Beiing Sea. No amount
is ivdited for the money received from that charter in the
si lii'dide attached to thisc'aini. Since wht'n could a vessel
01 I |»eison sue for loss of tinje or interruption to husinesB
wiiliout K'ving credit for the money earned during the
tiiiH' which it is allej^ed was lost?

I proceed now to the reading; of testimony at page 1537,
liiH' lt>:

•■ I,). You (lid not reiioli BolirtuK Sfa ? A. No, I diil not.
•■ (,). Wliv y A. Tilt" IniliiinH went hiu-k ou me.
20 •<,» Where V A. Off Cape Hoott."

\\ allied 'oy oflicers of the United StatesI Why did ho
III. I i;(i to Hering Sea< The Indians refused to proceed.
Ami lii'tause the Indiiins on hoard the "Wanderer" re-
fii-Mii to make the trip, the United States (4overnnioiit is
tip lit' mulctetl in damajjes to the extent of ^18,000.

I he alisurility of this claim is so appsrent that it almost
shiH-ks the sensiltilities to discuss it.

■' !,». Wliiit \vnn the occuHion of tlioir K*>''>K hi^ck ou you? A. They
;o " liiMiil from nnotlier vesnel tliiit the AmerieuuH were threatening to
•• iiiaki' seizureB ami they refuned to go. "

Miici' when was it established ;is a principle of law that
a |Misun coiiM leceivedamai^esfi-om another because some
lliinl person circulated some diapliaiious rumor about the
>iivi Is that the second pi'ison intended to commit some
ai I ,it;ainsl tin- inU'iests or property of the tiist person?

I- 1 here within the ctivers of this Wecord ttstimoiiy that
an iilliii'i' of some revenue cuttt>r, in the service of the
liiilid Stiites. instructed some uncivilized Indians (m
lin aicl smnc otlier schdoiier off the cnast of \^incouv»M' Is-
laii'l to lell some more uncivili/ed Indians ou Itoard the
" W .nideit'i " that the United States (iovernnient was to
Ml iLi' seizures in the waters of lierint; Sea?

■ (,» tliid you engiigeil them to go to thi- IteliringSoii? A. Yew, sir.

■ (,». Wliiit rcuHon did tliey tlieu iiHHJgu to you for refuHJng to go?
■' .\ .Ml tlii'v wanted to know wiik wlu'thcr 1 was a rich man or a poor
' iiiMii, if I liad lots of iiione,, to pay them if I got si>i/.eil. I told

■ ih.iii lui; they then refused to go."

;i Miice when was it established as a principle of law that
a Hi III, tinancially miabh' to carry (»n his business, could
iiiiki' ,1 tlaim ag.iiiist a ptvcinnieni because bis operatives
(I'lised to work on the grounds that he was poor^ lie
lliat if he hatl been a rich niiin and by rich Captain
I'.iNioii means that it he badccinmaiiiled sulticient money
In .liable him to cany on the opeiations of Iiis schooner —
III. liiilians would have continued on the voyage to liering

■ ','. Do you know whether any of them had Iteen in Itehring Sea
• 1'. I.'i-e? A. Yes.

" i,> (111 hoard what vessel? A. I don't know whether it was the

■ Viiim Hcrk ' or the Mlraee. '
' <,> llciw do you eome to know that? A. In talking to the

' II: llllllH.

' 1,1 Was tliere any refereneo nuide liy tliom to the faet of tlieir liav-

■ III. Iicen in lleliriuK Sea Iteforti and after lieing seized ? A. Yes, th«'y

II. 1. 1 K

^av

^-^,1

"lin

098

(Mr. Warren's Argiiineiit )

" said tkev had suffered great hardHhi)iH and would not go again si-
" less I would guarantee tlicii pay for what skiuH they might Ij. .i>
" when the vessel got seized."

Thi^< is tlic tt'stinioiiy to which our loanioil frionds \\\\\
refer in reply, and I wish to impress upon your Hon is
the meaning ot it. It is found at line ;W at page l.":;7;
"Unless 1 would guarantee their pay." Is tl)e Uiin.il

10 States responsihle for the fact that Captain I'axton wn niil
not guarantee the pay of those Indians?

The Trihunal of Arbitration convened at Paris Ininul
tliat seizures had actually heen made of certain sciilni;;
schooners in the wafers of Bering Sea, and that winn-
ings had actually heen given to certain other hcIumpih is
within the waters of Bering Sea, and these cases ui ic
refeiied to this High Commission for the pinposf of li i\-
ing the damages, if any, determined. This is not <inf if
tho^e ca.ses. The claim of this vessel was not before iln'

20 Paris Tribunal. I have no doubt that when the AuiIms
sador who negotiated this treaty mi behalf of (ireat Brit lin.
re(|uested that the claim of the " Wanderer" be reliiinl
to this High Connnission. he acted vvith the belief tliai
the evideiKc would establish that some actual imtj
tication bad been given by some officer in the set \ ue
of the I' iiited States Goveiiiment to the person in dni
mand of this vcss-el. The testimony is before this Ciiu-
missinn, and there is not one word to establish iliit
any warning was ever given by any officer ot ihe

30 United States or any person in authority, to ihc
captain or other oOicer in charge of this voyage oliho
sciiooner "Wanderer." The Andtassador was evideiiily
lai)oriiig nndei- a misapprehension when he urged ih.ii
this claim be incorporated in the schedule of claiins to Im'
attached to the Convention, and he was basing bis lull f
upon the word of the captain of this schooner. Tliei;i|i
tain of this schooner, who. if your Honors please, di lili-
erately took the witness st.ind at Victoria and tesiiti.d
iet;aiding the voyage of the " Wanderer " and did imt

40i>ven mention her charter to go to the Shiunigan lsl,iiuj>;
not a line in his testimony regaiding it. What br-iile
this df) we know of the captain of this vessel. I'.i.xtnn
is the same Paxtoii who sailed the "Black Diamond" in
1S80. The claim of the " Black Diamond " for issc, is uiic
of those claims which rtsis upon a very flimsy fouMiinlinn
intact. It is objected to bv the coimsel for tbel'iiiinl
Stales, as not propei ly befor(> this Commission. Iml in
fact, what i^ the claim for the " Black Diamond"; The
captain testifies that in ISsCi, on the 1st of .Jidy, .hh'

SOmonth before any seizures were ever niade by thi' I niiril
Stales, he was told, not by any officer on board one of
the cutter.- of the Uinted States but by the Deputy Tnl
lertor of Customs at the harbor of Unalaska, that llnie
were to be sei/uics. ;md he makes a claim foi tli.it
There is no evidence in the Kecord that the Deput\ i"!
lector of Customs ;it Unalaska was ever informed tli at ilif
I'nited States had decided to make seizures in ISHd, And
what is the bistoiy of the movements of the " Hlu k
Diamond"^ She remained in Bermg Sea until the l"tli

'^'Oor irith day of AiKjiifil, :n)d if the counsel wish testinionv

to substantiate that fact, 1 will icfer to it. She reinai I

in Beiiiig Sea until the Kith or 1.5th of August, and
this is the other claim of this man Paxton, upon wimse
testimony the claim of the " Wanderer" rests.

We have had the records of the State Departnieni at

(Mr. Waiien's Argunitiut.)

\\ isliinntoii searchfd for the correspondence disclosing
til- nature of tlie claim whicli was i)roposed to he referred
till his Conimisisioii, and there is not a paper in tlie records
ot I lie Department referring to it. The (Jovernment of
tl)r United Stales was never informed of the nature of
till-; claim, and. now heing inloimed, deny all liability
wli.itever.
10 I cuntinne reading from Captain Paxton's testimony at
|i;iu;f ir>;57, line lo;

■if. You say tbat waH Home time iu Mny ; do you romomber what

■ liiiic in Mnv it was tliey went l>ack ou you? A. Alnjiit tbo 9tli or

• I Jtli. somi'tliiuK like that.

■(,». What (lid you clo ttuMi? A. Went Imck to Viotorin.
■■<). They alisolutely i-i'fuseil to go to Belirinn 8ea? A. Alwolutely

• r.'lilHt'd to «<>. yes.

■■{). Were you aide to proeure auotlier crew to ^o to Uehrinj? Sea

• iliiriuR that season witli a vessel? A. X«; liy that time all the

• cicws were pieked ui) that intended to go, I guess."

Can the owners of a vessel recovei'for loss of time with-
(lUi estalilishiiig that they atlempfed to have their vessel
('iii|il()ye(l (lining the time alleged to li.ivo been lost?
Tiiiic is no principle of law more firmly est ihlishetl than
llii-. Mefore a person can recovei- for loss of services nn-
(Ici a (diitiact, lie llln^t establish that he has songht em-
|iliiyiiient elsewhere. I)i<l this captain attempt to obtain
aimtlier (iH'w after Ibis crew mutinied and refused to go
tu jiering Seaf I will conlimie leading i<> show what ex-
, citioiis be made to jun-sne his voyage into Bering Sea:

•Q. How many wliiti' men liad you on the vessel ? A. Myself and
.iiidtlwr man."'

Tiial bears on this qnestion that these were uncivilized
liidiaiis who brought the rumor back and afterward
iiiiiiiiiied. The captain and mate never came in contact
w 1 li any person who told them that the (iovernmeiit of
tlir liiited State was intending to make seizures in Her-
iiiu Sea. That is not di.-'piiled. It is simply the act of
tin -!■ uncivilizeil Indians that serves as the basis for this
I laiiii. 1 desire to repeat, that the captain and mate never
liiMiil from any one iieside the Indians, that the L'nited
Sl.iies (iovernmeiit was intending to seize sealers in 13er-
muSea in l^sit i KitoiiI, 1.''>44, line lisi:

••(,». ('ajitain I'axton liimself did not want to turn around heeauso

■ lie was afraid of seizure ? .V Cuptaiu I'axtou, I taney, wanted to go

• lo tlie liehriug Sea if lie could get his Indians to go.

■i). -Viid it was lu'caiise the Indians did not wish to go with him

■ tliat lie could not go V .V. Yes, that was the reason that he could
■' lli>l go."

Icalllbe attention of the High t'ommissioneis to the
tait tlial when the learned counsel wish to establish in
\Miii minds the belief that tln' United States acted some-
what hastily and maliciously in this matter of !uakmg
s(i/.iiies. they urge the fact that the United States Uovern-
111' lit never gave any notice whatever, but, on the con-
ii iiy, allowed these schooners lo deiiart from Victoria
wilhoiit any inf' i'm.".iion that seizures would be made,
take on Indian hunters on the west coast nf \'ancouver
ulsiiiid. partially complete their season and then were
u;iiiloiiiy and willfully .seized by the authorities of the
I iiiied States. Hut here is a captain who sails bis vessel
al'iig the shore of Vancouver Island, and his Indians go
<>i<i III a hunting boat and find out all about the conteni-
I'l iii'd seizures. Was it so well known on the coast of

It^i

'it

■ '

h I

70(1

5fprTi

(Mr. Warren's Argument.)

Vancouver Island in May. ISSJt. that seizures would he
made, that those Indians <ould go out in a hunting ho, r,
return and tell the captnin that there were to he seizui s
in Bering Sea? The fact will be .ememhered that in i »
year IshH no seizures had hcen Uiade in Bering Sea ;i I
the (lovernineiit of the United States had announced tlii
no seizures would he made,
lo What attempt did the captain make to secure anotlii
crow; (Record, l.">;{7, line ."»"):

" Q. You HaiJ that von had about 8400 or 9500 in cash on board? \
" Yos.

" Q. To l)uy nilditional proviHionH? A. Yes.

" Q. Wliere fouhl vou procure the aiUlitional provisions? A. I 1. i,l
" got provisions at tfuger Island, at Yakutat, Sitka."

When I replied to Mr. Bodwell's intimation that the
captain did purchase provisions afterward, I stated tli.it
he was never within one thousand miles of the place ho
intended to purchase. There is proof of it. He intendii]
to purchase at Sitka.

" Q. At Unalaska? A. I couhl get tliem at Unalaska but I was not
" likely to go to Unalaska."

Here the witness disclosed his unfairness by seekiufj Id
establish the belief that l)e feared seizine. "I could ^;i t
them at Unalaska but 1 was not likely to go to In
alaska."

He had, at the time ho decided to buy provisions ;ii
^ SitUa, no inforniatioii that seizures would be ina()(' in
B<'riiig Sea. for he claims the Indians told him in .May
But, he says, that he was not likely to go to Unaiasliii.
The United Stales had issued no orders to make seiziiics
prior to that time, the lOth of May, issi«, and, in the
previous year, l^ss, there had been no seizures and vessels
had entered the harbor of Unalaska and departed witiiout
being interfered with. The " Mountain Chief" went inio
Unimak Pass and took water on Unimak Island in Sep
tember, isss (Record. 1447, line 5t!).

Again, at page l."):W, line ♦m:

" Q. Did you stop anywhere else along the west coast to get a onw
" of Indians? A. No.
" Q. Did you go into t'layoquot? A. No.
" y. Did you Ko ill Kvoijuot? A. No.

" Q. Did you go into iJiircIay Hound? A. No, I came right back.
" y. Did you go to Ks|)cranza Inlet? A. No.
'• Q. Did you go down to Ciipe Flattery? A. No.
" Q. Did not go any where? A. No, I came right ho
'• Q. Did not ask for any Indians? A. No, I knew I couliin't petniiv
" Q How did vou know? A. 15eca\iso I knew at tliat time all llic
50 " luilians were picked up that intended to go to liehring Sea."

If your Honors jdease, that cannot be true. It caniidt
be tiue, becau-^e these occurrences took place earlier than
the Indians started for Bering Sea. We have not, in this
entire record, as I now recollect, a reference to a voyage
for Bering Sea which (itmnienced as early as May io|h.
(Record, 1 :.:{'.♦, line .54):

" Q. You took the last Indians that wanted to go to Behring Sea.
" did you not ? A. I don't know. I never tried to get anv more In-
60 " diuns out of there. Half of the Indians would not go to behriug Si a
" in those days.

" Q. A great many of them did, though ? A. Only about half uf
" them ; half of them used to stop home.

" Q. Did the ' Black Diamond ' have Indian hunters in 188!) ? A.
" Yes.

" Q. In BehringSea ? A. Yes.

701

l)ut I was IK it

(Mr. Warren's ArRument.)

■ Q. WherR did nhe get them ? A. She got them from Cl»yoqnot
•• >ound, I think.

i). How manv Indians did she take from Clayoquot Hound ? A.
•• I don't know; do von mean in 1889 ?
Q. Yt'H ? A. I don't know.
' Q, About how many Indians wonhl she take ordinarily ? A. I
•■ ippoHo that an ordinary crew would be from ten to twelve canoes,
'• ii'cording to how many she could get.

Q. How many Indians are there at Clayoquot Hound ? A. I never
'0 ■ ,-, muted them; I don't know.

■ (}. Have you no idea ? A. I suppose between two hundred and
" t)iror hundred in ('layoquot Hound altogether. Yes, I guess there is

• ;ili(mt six hundred."'

This claimant never tried to secure another crew to re-
pl.ico tho crew that had niiitinied, hnt, instead of that,
jH'CfCflcd to Victoria and carried ont the terms of a char-
t( I, which, I (ronceive. was agreed npon, though dated a
fi w days later, l)efore he ever turned around at Cape Scott.
}]<■ .I'Tcpted that en)|)lo.ymcnt and hrouglit liack thousands
III -< al sUins from Shuniigan Islands to V^ictoria for other

OW 1101 s.

I lie ('oinmissioner on the part of the United States: —
Till' British argument says that the proclamation was
is-^iifd in March.

Mr. Warren:— I correctly stated the position of the
United States. I used the word " instructions."

Till' OominiHsioner on the part of the United States: —
Villi do not intend hy that to cover the proclamation?

Mr. Warren:— No, your Honor.
•^° rill' Commissioner on the part of the United States:—
Ml Peters, I notice that on page 181 of your argument,
liiii' -21, tiiere is a curious expression — " coasl in Behring
Sra."

Mr. Peters: — Yes, that is clerical error; it should be
"•iiastand Behring Sea."

.\t one o'clock tlie Commissioners took recess.

liiia

.,,11 ii

,M' \i

is'' ■:■■

to got a crtw

At half-past two o'clock the Commissioners resumed
■♦°tlirir seats.

Mr. Warren:— When the Connnissioners arose for the
i.Mi-s I was reading from the Recoid, page 1.5-10, relative
fd till' I'fforts of the captain to procure another crew to
t.ikf the place of the Indians who mutinied. I continue
rt'Miliiig, at line 10.

• 1,1. Did vou look for hunters in Victoria when you got back? A.

■ I .li.l uot.'

5Q ^<>ln• Honors will remember that the loth of May was
the ilate that the vessel turned about off Cape Scott, and
piiici ('(ling down the west coast of Vancouver Island, dis-
c'li ii.ucd the hunters, and sailed directly to Victoria, with-
oni calling at Clayoquot, or Kyoijuot, or Barclay Sound,
(11 i^pcranza Inlet, or Cape Flattery, for the purpose of
oil tilling Indians, arriving at Victoria some five or six
(1,1 \ - alter the 10th of May. So that the " Wanderer" was
ii. ilic harbor of Victoria aliout the Ifith or 17th of May,
mil here we have the captain's testimony that he did not

(jQlii.k (or hunters in Victoria after his return. I read from
1ml;(' l.j-10, beginning at line 10:

' <,». Did you look for hunters in Victoria when you got back? /
" I iliil uot.

• I,). You got here the 9tL of May? A. There was no hunters

" ):nt.

~t)-2

(Mr. Warren's Argument.)

" Q. If you dill not look for anv, how tlo yon know ? A. I kii' 'i-
" becntim' other HchoouerH had qnite a job then running after huutcis.

" Q. But you did not look for any ? A. No.

" Q. Did not uiiike any imiuirieH ? A. No.

" Q. Did you try to got ony from San FrnnciBCo ? A. No, I ,li,i
" not.

" Q. From Heattle V A. I didn't have money onongh."

The ittli of May stated in tlie que.stioii I l)ave just k hI
'°is an error, for he says he turned aliout on tlie *Mh or Iniii
of May. We come here to the same ground lliat tlie In
dians liased their refusal to proceed to Bering Sl;i ujidii,
Captain I'axton did not liave money enough to ()|m r
ate his l)usintss. Is this court to determine that tlic
United States sliould award damagts to tlie»)\vners of this
vessel liecause the (aptain did not have money enoujili in
assure the Indians that he would pay them for seivjds
actually performed, or because Captain I'axton did nut
have moiie\ » nough to hire other hunters to go int(» Hciin^'
^°Sea on his vessel?

Un cross-examination, this witness, at page 153t*, line
26, testifies:

" Q. You say tliose IndianK threatened you about the '.(th or 1 lit 1]
'• of May V A. Yes, Hoiuethiug like tliat.
" Q. And they were afraid they would u^f get their pay ? A. V. «,

• sir.

" Q. For the skinn they aetually took ? A. Yes, that is if (he
•• vessel was seized, aiul I don't thiuk tliey woulil either.

" (). You wouhl liave owed tlieiii that, would vou not ? A. I ddii't
,„ " know who would have owed it to them, uie or the United States (inv-
■ "ernment; tlint was the trouble with the Indians.

" Q. When tliey alluded to the ' .\uiia IJeck ' and ' (trace, ' did tliey
" tell you they had not been paid for what they did on those vessels ?

• A. So, I don't think they did; they said they were used very liml ut
'• Sitka; had to paddle iu their cauoes aluuist all the way to Viitdiiii,
■' the most of them. Some of them got drowned on their way Ikpiih' to
•• Vietoria. They did not want to lose their time.

"(j. They asked you if you were a rich man or a jxior mau V A.
" Yes.

" Q. If vou had been a rich num thev would have gone? \
"Yes."

'^° Captain Paxton intended hy the words, " a rich man. "
a man who was ahle to i arry on the operations of seal
himting.

Bearing on that, there cmiw s to my mind the testiiiionv
of witness McKicl. who ti'stitied that one year he had
trouble with his Indians. In'causc he was a strangei' un
the coast of Vancouver Island, and the Indians did not
kMt)W whether they would receive their i»ay or not. in
the case of Captain McKiel, theie bad been no warninf;
.or intei reieiice. Ho was merely givnig the testimony nn
^ another jioiiit. and this fact was incidentally devel(i|"il
(Record, 07<», line <!7i:

"Q. What crew did you have Itesides the ludiann ? A. Five
" iTapanese, tlie mate, a white man and myself.

"Q. How was it you had such a small crew then "i? A. The sohoouer
'• was strange on the coast and the Indians were afraid.

"Q. Afraid of what ? Did they not know the owner '? A. They cliJ
'• not know the owner and they were afraid about their pay."

These Indians on board of McKiel's vessel were afraid
6othey would not get their pay. It was a common ocim-
renco there. The Indians wished to know wlio their em-
ployer was when they juoceeded to Boring Sea, ami
whether they would receive tlieii' pfiy when they returned

The Commissioner on the part of Her Majesty:— With
regard to not getting a crew elsewliere, if it is assumed

\. No, I ,lul

708

(Mr. Warren's Argument.)

foi the purpose of argument that a wrong was done,
riiiuht it not le an answer to the claim tliat he ought
to hive recoupefl to prevent the natural consequences of
till' wrong, for him to say that he had not the means to
Jill vont the natural consetjuences from following? That
is III say, does it nut come right back to the question
wlirther there was a wrong done?

10 Ml'. Warren: - I am addressing myself to the point that
is ii: your Honor's mind. That is, admitting that the
Imliiins mutinied and went back, was it incumbent on the
ciipiuin of the vessel to make inquiries and efforts to ob-
tain another crew of Indians?

lie went to Victoria, and was thtMe about the Iftth of
Miiy. earlier in the year than vessels sailed for Bering Sea,
ami Ik' made no inqniries whatever for the purpose of
fimling acrew. Now, the fact that he did not have any
niniit y would not have prevented him from making in-

joqini it'S for a crew which might have consented to g ) on a
••|;iv" notwithstanding his financial condition. The
•..inic rule applies to which I alluded this morning. Take
ill" case of a person suing for a breach of contract, which
provides that he should receive a stipulated sum f or ser-
viics to be performed during a certain period and who has
Ixcii wrongfully discharged by the other paity to the con-
Inirt. He sues, and will any court permit him to recover
for the entire time which the contract had to run
unless he shows to the court that be has honestly

^oeiulcavored to secuie employment elsewhere and
has been unable to do so? There is no dispute about that
liiiiig the law in that class of cases. Now, here was a
vt's-~el, with a crew of Indians aboaid. and, admitting for
till' sake of presenting the argument, that these Indians
lu'ard along the coast of Vancouver Island from some
otlier Indians that seizuies were threatened— the only
basis for this claim is, that the Indians mutinied, and,
tliei ('fore, if the captain coultl have procured other Indians
to take their place, there would be no claim — was it not

4oiiit iiinbent upon him to use every reasonable endeavor to
obtain another crewjl Was it not the duty of the captain
to inquire at places where he knew Indians were to be
toniid? He testifies that there were as many as six hundred
Indians at Clayoquot Sound. It is a well known fact that
tluM' Indians on the west coast of Vancouver Island ex-
'\<\ih\ l)V sealing, and here is a captain who sails his vessel
by every settlement without stopping even to make in-
i|iii ill's. In.stead, he proceeds to Victoria and abandons
;ill ctlorts to obtain another crew. When at Victoria he

;()is within sixty miles of Seattle. Does he go there and in-
i|ulrt> for hunters? No, if your Honors please, he says
111' (lid not have money enough. Did not have money
iiiiiiit;ii to make itujuiries?

fiQ

10 mate of this vessel was August Bjerre. He was the
iiiilv other witness who gave testimony concerning the
III! iiir»;iices upon which this claim is based. His testi-
iiiiiiiy is found in the liecord, conuneucing at page 1541.
1 iv 1(1 at line 4U:

<,» Did yon continue to go to Behring Soft ? A. No, sir; we had

■ t" turn liiiok.

'■(,>. Wliy ? A. Bocftuso the Indians refused to go.
• 1,1. Wliou did the Indians refuse to go ? A. Home time in May, I

■ ilnii't oxaetlv rememl)er the date.

"i>- And wliero ? A. Somi;whero off Cape Scott.

\m(i

704

(Mr. Warren's Argument.)

" Q. Will you say what wan the ocoaHion of their refnRinK to i t,,
*' BehriDK 8«a ? A. The IndiauH wore Hcared to go ; they were H' ,:,.j
" o( Heiziire. Home of them, I believe, had lM>en Heized iK-fon- .iikI
"they had been talkiuR with other Indians while they wen^ . tnv
" from the veRsel out huntiuK, and they were Roared of the v<>k!<. i>,:.
" iug Heiiied, and, as they knew that Captain Paxton had nothing i.ui
" the veHsel, they were afraid that they would get no pay if thcv ^rro
"Heized."

'° Is tlieio any statcnu'iit in that testimony upon whi. ;i i,,
base a demand for ditmagt's from the United States; In
dinns, nncivili/ed Indians, out in their canoes, tall iii<r
with other Indians! They did not liear tliese Indian^ ^uy
that the President of tlie United States liad issued a iki
clamation dechiring that tliere were to he seizines; Inn
they were afraid of seizures, and they did not want ti. -n.
Why did tliey not want to gof iJecause they were iiliaiil
tiiat Captain Paxton, the owner of the vessel, would not
he able to pay them theii- wages.

~° Your Honors are familiar with the cases that jiihh'
before the Tribunal of Arbitration at Geneva, and similar
cases that subsequently arose before the Court of CI linis
established by the United States for thodistributioudl ilic
moneys awarded by the Geneva Tribunal. There w. le
many cases of this nature presented, and every one nf
them was luled out and absolutely disallowed. The
nature of those cases was this: The owners nf
merchant vessels made claims based on the I'ai t
that their ves.sels were on the high seas |)uisnint,'

^° their voyages, when the cai»tains heard that the "Ala
bama "--one of the cruisers that escaped from an En^Hi-,li

f)ort and destroyed the commerce of the United Static—
leard that the '" Alabama" was in the vicinity, and jnit
into port and thereby lost the resullsof the voyage. Tiicsu
cases are identical in principle with this case, and tv.iy
one was disallowed in toto.

In the luesent case, the " Wanderer " was off the \vi>t
coast of Vancouver Island, and it is claimed, not thy
captain, lint the Indian hunters, heard there were tn hu
'^^ seizures by the United States cruisers, and, theretnic,
the hunters refused to proceed, and the owners demand
ifl^.ouo.

I wish to read again from the mate's testimony, i mi-
tinuing on page IMl, line W\:

"Q. Had you any converRation with anv of the ludiauH ou that nc-
" oaHiouV A. Well, the ludiauH woiild tefl lue their trouhle as wili iis
" tell it to ('a]>tiiin I'axtou, and I liHtened to what took place IicIhiiu
" Captain I'lixtou and the ludianw.

"Q. Was that the reaHou that they aHHi^ned for refusiux to j,'o to
50 " Beliriug Hea? A. Yes, wir; that is the reason.

" Q. Will you nay the purport of what vou understand fri)iii tlio
" IndiauH on that oeoasiou when they refused to go to Uehring iSiaV .\.
"There was a whole lot of talk on several occasions; it did not all
" happen at oucc.

" Q. Now, off Cape Seott, on the occasion in question, what w.i^tlu-
" conversation? A. Well, they were scared, as some of them hml I'len
" seized before. The;/ irere scured Id f/o into Beliring Sen witli ('■tiUiin
" Pit.xtim: llieii k»i-xr thai hn /mil nothing hut his rensel, and tlicv wore
" scared that if the vessel was seized and he lost her, they wouM get
" no pay for the season's work."

C^ Were they afraid to proceed into Bering Sea on accciun
of seizures? No, tiiey refused to go to Bering Sea with
Captain Paxton because they weie afraid they would not
receive their pay.

"Q. I believe that you did state that they bad underston.l that
" other seizures were going to be made that year?"

7(»ft

(Mr. Warren's Argument.)

Tlial is a question put by the counsel on direct-exami-
ii.ition to avoid the runchision heing drawn that the mu-
ti ly of the Indians was based on fear of Captain Paxton's
financial responsibihty. The witness liad not previously
8t ited that hut here answered, " Yes."

Then the question was put:

■Q. WaH there any other reason aHsiKDcd (or their refusing to go to
"^ ■ liehring Sea? A. rio, sir; not that I know of.''

The witness does not refer to that last reason but to the
fii-t reason he had given for the Indians not going to

Piling Hea.

Tlie captain had testified before this witness was called,
hid left the stand and Victoria, and was never there
aj^aiii, as far as tins Record discloses, or that we ever as
ctitained. He had said not a word about the charter of
20\]\< vessel to go to ShniniKan Islands, and it was not until
Ciplain Bucknani testitied that we knew of the charter.
I refer your Honors to page 1477. line 5, of the Record:

•■(). Ytm say yoii trans-Bhippud some skins before you went into
• Miliriug Sea? A. I did.

••y. IJy the schooner ' V/'anderer? ' A. I did.

" Q. In that the schooner that had a claim iu here? A. The same.

•'Q. Captain Paxton's boat? A. Captain Taston's boat.

• • Q. And was at Sand Point after the itth of Mav, was he? A. I don't
" ii'Uiember that Puxtou was there. A man by tLc name of Keefe bad
' clmi'no of the vessel.

•• Q. The vessel was there any way? A. The vessel was there.

• {). After the 9th of May, 1H89, was she? A. Yes; I think we trans-
-liil)l)ed in July.

■ C). Will you give me the date when you trans-shipped? A. lean

■ t;rt ueiir the day, within a dav or two.

■ i.}. Let us have it? A. (Ueferring to book.) I should say we

• tiiins-Hliipped Julv itth.

■ (,». How many skins did you put aboard the • Wanderer'? A. 283

■ I lii'lieve it was.

• Q. What did you pay |)er skin for bringing them down? A.

■ S.imewliere in the neighborhood of 20 or 30 eents I think.

■ (,). When did yo-j make the arrangement and where, for trans-

• -liiii|)iiig your skiuit to the 'Wanderer '? A. I think it was arranged

■ ill Victoria, I am not sure."

■'i

lli-i

timonv. dni-

.'fusiug to j.'ii to

inderstoo.l that

Till' fact that the mate aftci ward testified (Record. 1542,
luir .">:5), that the " Wanderer " made a trip to the Shumi-
gan Islands is unimjiortant, although the testimony was
givi'ii on direct-examination. For the counsel for the
Liiitcd States had developed the fact, by this examination
III Captain Bucknam, that the "Wanderer" was at
Slimni^an Islands, and not until this fact was disclosed did
rO;iii\ witness for the claimants give testimony regarding
tlir Irip.

\Vt' put in evidence the date of the clearances of the
" Wanderer,'' and I state from memory that those dates
i)i~riiise that the '' Wanderer" left Victoria on the 23d of
M ly for Slnmiigan Islands. I will verify that date by re-
ftiiuig to the Record — at page l!H»o of the Record, line 8,
tlii^ evidence is set out:

•'o.

Ill the case of the 'Wanderer,' Claim Ni'. '2r), we desire to offer a
"'ititied copy of some of the dates of the i'utries and clearances of
till' 'Wanderer,' for the year JSS'J, and particularly two entries.
sill' outered at the Port of Victoria on the 15th of May from the
I'ai'itic Coast, and cleared on the 15th of May for the west coast,
1111,1 cleared later, on the 23d day of May, for the North Pacific
I I'lnn and Behring Sea, and entered this port on the 23d day of July
li'iiii the North Paciflc Ocean."

\ i.

(Mr. Wan en's Ai'KUinciit.)

Therefore she cleared for the West CooHt on the Ifttli
May, and Shuinigan Ishinds on the 23d of May uh Htali
Here JH a vessel, whose captain and owner says nitein
to go on a voyage to Bering Sea, which turns about,
Cape Scott, on the loth of May, proceeds directly u
Victoria as rapitlly as it was |H)ssil)le for her to make tlie
tiip— 1 state that because of the distance from Cape Sci it

lo to Victoria and of the tonnage of this little vessel - ;iii|
cleared on the same day she arrived at Victoria for i In-
Coast. Why did not the captain stay at Victoria a t. w
days and obtain another crew to go to Bering Sea? Wliit
beside did she do? Slit; cleareil lat»'r on, on the 2Hd of M;i\ ,
for the North Tacilic' Ocean and Bering Sea. On the L''.ii
of May what else occurred with reference to this vt s^, |;
We have in evidence the contract or charter-party Ijl'-
tween the captain i.f the "Wanderer" and parties who
bad contracted for this ship to make a voyage to Sbuniij;,ui

20 Islands near the entrance to Uniniak Pass, for the pui imj^u
of bringing back the seal skins that the vessels desiiiiij; to
enter Bering Sea had taken along the upper coast. Tlmt
charter-party is printed at Record, ISJW, line ."il, ami is
dated the 2:<(l of May. I do not desire to read it uiiKss
my learned friends re(|uest it. The chaiter is this: tint
the " Wanderei," with tliis same captain, should |)r(!(i'M|
to Sbumigan Islands and bring back the skins to \ iclmii.
Tiie parties to that contract were H. Haxton, who u,is
the raptain and the witness; Joseph Quadros, (\>\,

30 Adams, Carne, Munsie, Marvin, (Jrant, Walsh and liitlut
& Company, all names that are familiar to us who \vi iv
at Victoria. They wt-re among the largest niercbanlr, in
Victoria, and they chartered tlie "Wanderer" to ^o to
Sbumigan Islands to bring back a valuable cargo of skins
to Victoria. The captaiii, in testifying, luifortuiiatrly
neglected to mention this voyage.

Now, I believe, if your Honors please, that that charier-
party was agreed upon before the lUtb day of May, and I
believe, further, that the " Wanderer " never intended to

40go into Bering Sea, and I support that statement with
such reliable authority as the assertion of the leaiiuil
British Counsel, Mr. Bod well, in oral argument, when he
said that the " Wanderer" was built to coast along \'aii-
couver Island and was too small and not suitable to enter
Bering Sea. That statement was niade before Ibis lli^h
Commission by Mr. Bodwell in Halifax, when criticising
the testimony of one of the witnesses (oral argument nf
Mr. Bodwell, p. 330, line 4!t|.
The testimony of Captain Pa.xton furnishes the sole

50 basis foi' this claim against the United States, and I ;isk
your consideration of the testimony of Captain Pa.xtun
I call your Honors' attention to this fact again, that
Captain Paxton took the witness' stand in Victoria and
testified in regard to these occurrences on the westtiu
coast of Vancouver Island, then left the city of Victoiia
without saying a w'ord about this charter-party, and it
was not until such a time had elap.sed that page l.'>;3;i of
this Record was printed, that the United States was
allowed, after many difficult attempts, to examine a

6c copy of this charter-party. Is the testimony of
that man, who, we believe, advances a claim he-
fore this High Commission that is entirely fictitious,
to be taken as a basis for awarding damages? He was the
only witness, and that this case depends upon Captain
Paxton's testimony, I say advisedly, because his mate,

707

(Mr. WaiTt'ii's Aigiiinoiit.)

r>jcrrt\ did not siipport liis tcHtimony. Hicrn! did not
-\:\\i- anything iihont tlu> Indians iindoi-stantlingthatotliur
M'i/.iiivs \vt>r(> to l)<> nwid«> initil a Icadinu (picstion was put
III liiin, wlii'li is to lit; t'onnd Humrd 1542, lino :<:

■■(). I lM<li<'vt> tliiit yim did Htiitc whiit tli<>y hud iiudorMtond that
' otliur Heiziiri^H wcrv K*>i"K tu liu iiiad<> that year? A. YeH, Hir."

10 ll« liad ti!stiti«d (Hfcord, p.igc l.">4l, line ♦(7):

•• TlioT wrrc Hcart'd to j^o into Xi'liriiiK Sra witli Citptain I'nxtou;

tlii-y knew tliut )u' hiiil iiutliiii^ liiit liix vi-hni'I, uikI tli(>y wt-ru HcarotI

" tliut if tho vi'HHcl waH Hcizod und lii' lowt hor, tlioy would ^ot uu pay

• for tho hoiihou'h work."

Tilt' U'liiiu'd ('oiiiinissioiuT I'ur tin- I'liitcd Staffs this
iiioi ning alliKhxl t<> the fact that tic counsel of (ireat
Untain di>pt>iidt>d iijioii the proclanialioii of the L'nitud
States to servo as a hasis for this claini. Wo claim that
^jllic proclaniiition has notliiiig to do wit h this ca.se. The
liidiaiis did not cl.iiin to have lieeii advised hy the |>iocia-
tiialion of the I'lesident of tlie I'liilvd Stall's of seizures,
uveii if we helieve that they based their refusal on tli • fact
tliat theie were to he sei/mes. Wt- lielieve tliey rofusod
to continue on tiie voyage hecause they were douhtful of
Cilitain I'axton's tliiiincial respoiisihility. if they refused
at all. And we are lirmly of the ln-iief that Captain I'ax-
toii never contemplated a voyage into Hering Sea.

The only reference to the prochiination is at liecord, page

" I'srrEi) Sr.\TKH ok Amkrica,
" Dki'ahtment or State.
■' To nil whom tlii'Hc prpsontH bIiiiII roiiK!. ffrci'tiuj;:
" I I'l'i'tify iliut II jirochiiiiiitioii, of wliii-h the iiniioxcil in a true copy,

■ was iHsneil hy the rri'Hidciit of the I'liitvd Slates, iu the year 18HU,
' and that a |)roelaiuatioii of similar (iiirport was isHiied hv him iu

cacli of the followiuK years. ♦" *'♦: l^*'''". l^M and 1H!I2.

•• III testimony whereof, I, ,lohu W. Foster, Secretary of State of the

• I'uited States, have hi'reniito sul)serilied my name and eaused the

• Heal of the Department of Slate to lie atlixed.
'• Done at the City of WashiuK'tou, this :jl(th day of July. A. D. 1892,

• mid of the Independenee of the United .States of Amerioo, the one

■ hundred and seventeenth. "

5^'

(k).

This is a cortiticat ; of the fact that a proclamation was
i-sued. Then on this same page Mr. Beiipio read in this
(iiiniMuiiication:

" TuEAstnv Dei'autment,
" OrricE or the Secuetahv,

•' Washinoton. D. C, May 23, 1880.
" Captain J,. (J. Shei-aicd, Commanding Hovenue Steamer " Rush,' San
•• Franeiseo, ('alifornia:
•• Sin: "The President having designated the Hevenne Steamer
'Hush,' under your command, to cruise in the waters of Ueliriu^ Sea,
for tlie jirotection of the seal lisheries, and the interests of the
' (iovernment of the Seal Islands, and the sea otter hnntinj? grounds,
mill llie enforcement of the pi'ovisions of law. you are directed to
' liiive San Francisco with your comnnind at the earliest date prae-
licalile for the waters named, )iroceedinfj; l>y wav of UnfJta and
' MelcDvskie, to Uualaska, at which place yon will take on board
such supplies of coal as may lie necessary from that in store
lii'liiiij,'int? to the lU'venne Cutter Service.

" From tlnalaska you will proceed into liehrin^, "^ea, the waters of
wliii'h you dilifjently ernise, and arrest all persons and seize all ves-
sels found to he, or to have lieen enKa.i;ed in any violation of tho
laws of the United States therein, proeeoding to Uualaska when
necessary.

" Von will remain with your command in the waters named as late
ill the season as you may deem proper to carry out the instructions
"f the Department.
•You will receive from the owners of such vessels as may have

71 1"'

(Mr. Waiit'ii's .\i>;tiiin'iit.)

" Mikili-il for lli-riiiK Himi. cm nniliiiK <'r ntlirr liiiiitiiiK voya»{i<H, (>|ii u |,t.
" t)'i'H iif I'i'i'iill iiililri'NNi'il III llii' ('ii|itiiiiiH iif III!' Niiiiif, wliii'li li'iti rn
" will III' ili'livi'i'c'il if Hiii'li vrsMi I', lire fiilirn in with iiinl iirr foiiiiil \i,,\
" t>> liiiM' i'i>iiiiiiilti'(l luiv vidliiticiii of till' liiWN iif llii' I'liili'ij Stall '.

" lli'iruitli lire tniliiiiiitti'il lliil'l,\ I'lijiirH iif tlic I'rrsidi'iit'N |ii'cirlii-
" iiiJitiKii iif Miii'c'li 21, IMN',1. for iliNtiiliiiiion to iiurticH ult't'clt'il tlii'nl.v.
" lit* fiir iiM iiiiiv III' |inirlinilili'.

•• l''iir viiiir ^'iiiiliMMi' ill |ircitrrtiii),' tin' iiilcrrMtH of tin' UuviMiiiin'iit
" (111 thin rnii>'r, Miiir iiltiiiliiui is iiivitcil tii llir H|Hi'iiil iiistnn t iunK
lO .. |,f ,.yi.|, ,;„(,. Iiii'i'witli.

■' Yiill will Uil\ IHi' till' i|r|iait llli'llt liV trli');ni|>ll nf till' ilittr iif li'iiv-

" iiiK Hull FniiiiiHrii mill nf vmii' iit inn ti> tliiit |ioi't.

" lti"«|ii'rt fullv MilUN.

•• \V. WiNl.llM.

•■ Hi'i'ii'tiii'\ "

Tlu'-;t' Ui'K- till' liist illslllicliulis issilnl In tllc (1,1,1
11l;lll(lcls III' illlV <lltli'l:« I'l till' I'llili'il St iti s In sci/c ;iiiy
vc--('l ill I'.ciiii;; Sci jii the yc-ir {•">'.•. iinl IIh' linlnnw

llllllillii'il oil till' /"//((>/' .1/(1//, I IHislllilc. lll.'rilllsc (HI till'
20 .',;,/ ,,/ Mil/l tile dIIucIS Will' lll>til|(|i(| Id lll.lUi' tllc'si'
St'i/llll'S.

'I'lit' ('oiiiiiiis-,iiiiii'i (III till' piiit 1)1' till' riiitcil Slate.-: —
Al svliiil pait (if till' lii't'diii is tlit> inochiiiKitiony

Mr. Waiii'ii: Tlic iiidcliiiiiiitioii is .lol iii cvitlcinc
Till- (iiilv rclcu'Mcc III it is this cfrtiliiMtc oj' Mr. Fd.-ici,
tiiiit tllc |iiiii l.iiiiatioii U'ls is'^iii'il.

rill" ( 'iiiiiiiiis>iniii I (III llic jiatt III' Ihc I'liili'i! Slates: —

1 wisll Ciillllsel W.e , lillil it tiilivclilclll Id elltil tile |ii(if-

]aiii:ili'>ii (III tile I 'ltd.
,iO Ml. W.irrcii: -I |ii'(ii'laiiiati(iii is in Vuliinu

21'in, Aiiiei lean liejii iiit of llie
Tfiltiiiuil. ami reads as follows;

I'k

)i'ee,llliy;s ol

|ia-e
I'aiis

■ A l'i':iitiiiniiliiiii.

• llv the I'ri'siilciit .,f the rilitcil Stiitcs.

■ riic fiilliiwiii^' jirnvisidiis (if till' laws ef tlir United Stiitcs a'(
•• luTiliv luilili'licil fertile iiiferiiKiliiiii (if all I'lini'criii'il;

•• Section l'.i."i(i l{('\isi(l Sliiliitcs. Cliiiptci' :i, title 'JII, ciiiicts tliat-

•• No pi'i'soii sliiill Uill any oti' r, miiiU. niiiiteii. salile, or fur seal

•■or other fiir-lieaiiii^' iiniinal. vitliintlie limits of Alaska tciiitoiv.

" or 111 the waters thereof ; and every iierson >;iiilty thereof shall, fi.r

4° •• I'aeh olVeliee, !"• tilled not less than ■JIIO dolhirs. nor more than I,IKI(I

" (((dial's, or iiii|>risiini'i| not more than si\ months, or Imtli; and nil

'• vessels, their tackle. a|iiiar('l, fiirnil lire, and ciir^'o, found eiiniif,'c(l in

'• viidation of this section shall lie forfeited; Imt the Secretary of tlic

" Treasiuy shall have jiower to autlmri/.e the killing of any Micli

'■ niinU. niarteii, salile, or other fiir-liearin^,' animal, excejit fur seals,

under such re^'ulations as he may |irescrilie, and it shall lie the duly

■' of the Secretary to prevent the killing of any fur seal, and to pni-

•• \ ide fill' the execution of the provisions of this section until it is

" otherwise provided li\- law, nor mIiiiII he uriint any siiecial jirivilc^'cs

• under this section.

•• Section ;! of the Act entitled ' \n \ct to )irovid(( for the Jirolcc-
50"ti()nof the Salmon J'isherics oi Ahisk'i,' approved the '.id Marcli,
•• I.SS'J, provides that

•■ Section I'.t.'iti of the Hevisr d Statutes oi the I'llitcd States U
" liercliv (le(dared to include and iijiplv to all the doniinioii of the
•• I'llitcd Slates in the waters ot Hehrinj^'s Sea, and it shall lie the duty
•' of the President at a timely season in eiudi year to issue his I'nichi-
" iiintiou, and cause the same to he pulilishcd for one niontli at least
" in one U('wspa))er iif any such there lie) iiuldished at eueli I'liitcd
•• States port of entry on the I'acilic Coast, warnint; all persons apiiust
" enteriiif; such waters for the purpose of violalinj.; the jirovisioiis ul
" said nectiou, and he shall also cause one or more of the vessels of
" the United States to dilif^eiitly cruise said waters, and arrest all per-
f)0 " sons aud seize all vessels found to be or to have lieen ouganed iu au>
" violation of the laws of the United States therein.

•• Now, therefore, I, Benjamin Harrison, President of the United
'• States, iiursuaut to the above recited Statutes, hereby warn all pcr-
'• sous against eiiteriun the waters of Hehriii^'H H(!a withiu the domain
'•of the United States for the jiuriiose of viohitiun the jirovisious of
" said yection I'JSO Uevised Statutes, and I hereby proulaim that nil

70i>

•H, ll|lttl !• t

liii'li li'l> is

■!■ fllllllll !, t

.■.I SIhI, ,
iiI'h pi'ii. Ill-

ll'll lIl.T, l,\.

Ildvpriiiihiil
inslnic ii..iis

lull' of ||M\.

IIXIM,

the riiiii
si'izi' II in
r Ihiliili^

ISC (III till'
aUl' lllr-..

Slutc.-:--

t'S idi'iii !•
I-. Kii.-lcr.

Sl.it.'s:-

ic ."i, |i,i:^('
til' r,iii>

» Htnti's ii-i
niiftrt tliat-

111- fur !-rlll

I tciritdrv.
f slmll, fiir
tliiin l.iilHl
th; luiil mII

llffllpMi Ih

tiiry iif till'
luiv >nrh
t fur m;iIn

>!• till' (llltV

mill to |iio-
iiiitil It is
)irivili'j,'i's

tlic in-ntl'l'-
li.l Mlll'ril.

1 Stiiti's IS
iiiiiii 1)1' tlie
lie tlu'iluly
is ri'iM'la-
tli lit li'itst
licli I'liitril
sons apiiust
I'ovisions III

II! Vi'SSI'ls uf

rt'Ht all iirr-
ah'oil ill iiuv

the Uuiti'd
iiru all iirr-
tlio (loniain
'ovisiiiu.s uf
im tbut all

(Mr. Warit'ii's Ai'Kumoiit.)

■ ' III rxiiiiN roiiMil III III' or ti> hiivc liiTii i'ii){it^iiil ill aiiv vinliktioii of the
" iiiwrt (if till' I'liiti'il Hliili'H ill Hiiiil >Mkti>rN will Im ikrri>Nt<'il iiiiil iiuniHhiiil
•• 11^ aliiivc iii'iiviili'il, mill tliiit nil vi'mhi'Ih mh riii|iliivi'il, llicir tiu'klo,
•• H{'|iuri'l, furiiitiii'i' mul rar^'ni'M, will lii' Nci/.i'il mul /nrfi'itt'il.

Ill ti'sliiiinny ulii'i'i'iif, I liiivi' lii'rrniili) Hi't my Iminl uud ouusoil
•' I III' Mi'ul nf I hi' Ciiiti'il Stiiti'H til III' IIIm'iI.

' li.iiiiat IliK City of WaKliiimtiiii, tliiit 'JInI iliiy of Miircli, IHHO.
" iiiiil uf lilt' liiilii|ii'iiil<'n( f lilt' lUiiti'il Hlul<>M tlK'Hllt'...

" (Hixlliul) HkNJ. IfAltltlHt.N.

10 i\, the I'roniiU'iit.

" itSiglU'll) JaHRhO. lil.AINK,

" Sfi'i'itiu'v of Hfiito."

Mr I'i'tcrs:— I slmiilil tliiiik that was warning ciuniKh.
Ml. Warrt'n: Tin' Icaiiirfl siiiinr t'duiiscl lor (ir»'ftt
Hi'iliiin Minni'sls Unit lli.'il was warning ciiniinli. Was it.
if VI mr iJollKls please? Is it |ius>.iMe that the I'llited StiltOB
f'jill hi' les|M>llKihle t'nr (laill.'llies In the owners o( every
vessel thai ever had an iiiteiitioii of piiii;:; into the MoriiiK
Sci. hecaiise the President issued a |ii'oelaiiiat ion that t hoy
' >|iiiuid not hniil seal within those waters? If the United
Stales is jialtie. under such eirciiinsl.'tnce.s all the sealiiifj
ilt'ci of \'ietoria would have presented elaiins and uiued
tlniii against the (Joveininent of tht» Uniti'd States, he-
eanse every }eai' from Iss? down to is'.d, with theexcep-
timi of the year Isss, the I'rcsidenI of the liiited Status
issued a pioclamatioii a^iiinst htintiiij; seals in the waters
of I'.eiiii}; Sea. And if that piocjaniation alono would
st'ivi' as a hasis for daina;;es, w liat heroines of the piiiiciple
,Qiif law eslahiished hy the (ieiieva Trilainal and adojtted
^ liv llie Coiiil of Claims, that dainap's so indirectly and
ri'iiinlely the result of the wrongful act could not he al-
lowed.

Fiiiin the schedule attached to this claim in the ai'gu-
iiK'iil in chief on hehalf of (iioat Britain, I read this:

" I,r(.'al iiiiil othi'i' i'N|it'iiHrH #250 W

" 'I'iiiir mill I'Xpt'iiMi's iif owner '200 00

" F.Htiiiiiiti'il riiti'li of Ncliooiii'i' if not iiiti'i'fcrod with (fl
■ liiiiitiiit; ciitiot's ami our ciiiiiu' hhi'iI uh a stern boat,
• ^'iiliuK the whole Heusou of ISh'J iu IteliriuK Keu),
40 • l,i;77 skins at Sill 1H,447 00

" 81H,H'.»7 00 "

Till re is not a word of testimony in the Uecord to sup-
|Miit the items for expenses.

Till' argnmeiit on hehalf of Great Britain nowhere
rt'fi'is to the charter of this vessel to go to Shiimagiii
Islands, We contend that the rule of law in cases of
[laitial loss, which are similar to this case, if there is any
join-t 1 laim, is, that a vesst-l is not entitled to uncertain,
s|ienilative, contingent profits the I'stimation of which no
niiiiil is capable of, hut that her compensation is hased
ii|iiiii the charter v ilue for the time during which the
owiHi was tleprivee of lier use. 1 presume that that
ciruier. and tlui ligures st't out therein, woulil not read
favdi.'ihly heside this claim for $ls,Tt7. 'I he juxtaposi-
tiiiii, if your Honors please, would he unfortunate. This
littli liiiat. that, according to our learned friend, was never

biiill til go into Bering Sea

6o Ml Hodwell: - 1 hope my friend does not moan to say
thai I said the "Wanderer" was not intended to go into
Biiiiig Sea in the year in (piestion.

Ml. Warren: -Not at all, I do not misinterpret you.

Ml . Rddwell:— I meant to say that the vessel was not
'if till' class usually used in sealing in Beiing Sea.

710

(Mr. WancMi's Ai>;iii!U'nt )

Mr. VVanen: — I was basing thisainiimoiitou tliat sl.iii..
mont, tliat liis idea of what tlio " Waiuloivr "' was Ihi,.,
for substaiitiati'd my belief that tlie " Waiuleivr " iiivcr
intoiidod to go into Bering Sea in ISSit.

Tliere is one nnfoitunate omission in that paiaj;r,i|i|i,
1 read from tbt* Hritis!. Argument on |)ago ls;{, i.l;iiive
to the jnospeetive catch, and tliat is a fact wliii h js
io|)roniinenlly set ont in tlie sciuuhde attached to every ntli,!-
claim of a similar kind. It is the fact of how lon^ a
period the voyage of this " Wandeier" was to covir
Coniisel advance the proposition that yonr Honors iniir.t
take tlu' intention of the proposed voyage, because thoy
urge there is no other basis of arriving at the proli.ilili.
duration of a staling voyage. If that be true, wliy luit
insert in the claim of the •' Wandeier" the date givtn hy
the captain as the time he expected to terminat(> iiis vny.
age in Heriiig Sea? Why leave it out in tiiis case and uiit
20 in any other case? I read from the Kecord, page ITi!!^,
line 1(1, a «|uestion addressed to Captain Taxton:

"For wlint U'upth iif time Imtl you intonilcd to ri>iiiiun in Iti'liriiit;
•• Son y .\. Oh. 1 fxpcfti'il fo It'iivo iibout till' ljr>tli An(?ust."

That is wliy, if yo\u' Honors please, this date is iioi in-
serted in tlu' schedule. Here is a captain, who. wroiii; nn
everything t-lse. chances to hi* tight on the duration oi'tlio
sealing season, but his testimony in that regard is nol iv
ferred to in tb.e argunn'iit.
30 Mr. I'eters:- That was calculated for.

Mr. Warren:- Wt' asked thecinestion how long it w.is
calculated fur the other day, atid gave otu' learned friends
a chance to give us the information duiing this argument
in Ilalifa.N, but the reply was that it was calculated for
the whole season.

Mr. Hodwell: That is the way it is stated in the claini.

Mr. Wall tn:— The whole season, if your Honors phaso;
do the counsel now admit our contention that thesnisoii
ends between the 2ntli and 2r>th of August?
40 Mr. Hodwt'll: That is not the meaning at all.

Mr. Warren: -Then the claim with reference to the
"Wanderer" should be revised.

Mr. Hodwell:— To the '-'Mb of Atigust, no doubt.

The Commissioner on tlu> part of the United Slates:-
Hoes any one reineiidier bow many skins she toidv up to
the time when siie tuiiie<i about for home?

Mr. Warren:— She was sealing on the coast when she
turned around to go home, ami we madt' no iiKjuiry what
ever about the coast catch. She abandoned, witlioul any
Soapparent reason, the upper coast voyage.

In closing this case of the " Wanderer," 1 desire to (all
your attention ag.iin to the character of Captain Paxlon's
test inioiiy and thetact that his mat(Mlo(>s not support liini.
and to his unfortunate, intentional and fraudulent (mils
sioii (d' all rel'eifuce to the charter-party; also to the dales
found a! I'age litoo of the Kecord, showing that this vessel
was engaged in the business of coasting along tlu' sliereof
X'ancouvrr Island; that she entered the harbor of Vieteria
the lath day id' May, cleared on the same day for the west
Cioeoasl ol \'ancouver Island, returned and cleait'd on Iho
'Jltd day of May for Shuiuigan Islands. There is iidlliiii},'
111 till' testimony that would warrant the belief thai the
captain of the " Wanderer " ever had in his mind or ever
conceived the idea that this vessel, which, prior to that time
had never bi'cn in Bering Sea, should make a voyage llniv.

711

(Mr. Wiinvn's Aigiimont.)

I he Oomniissioiior on the part of tlie United States: —
l)(i.s tlio caso sliow liow much of tho seal in{<; season on
til, coast leniaiiKMl?

Mr. Wanen:— I think, if your Honor plcise. tliat wo
(•(Mild citotlie tcsliinonv showing the prohahlo chnation of
til. loircr '•oast season.

riie Oonnnissioner on the part of tlit> United States: —
loPi i< the ease show whetlier any of tliat season remained,
aiwl wliy tlie Indi.ms weic not willing to tinish tlie eoast
i\ni,li<

Mr. Warren:— Nothing, ifyoMr Honor plea.se, about that.
Till' lael is. in eonnei [ion with that, that the loici'i- roatit
s(;i<iMi was over. The eaidain landed the Indians on the
wi-l coiist of Nanconvcr Island, ;iiid went .ahoiil his con-
li'iiipiated Imsiness. We ean show fioni this Uecord that
IJK -Mason on tlu' we-t eoast of N'ancouver Island was over
(in I he loth day of May.
JO The Commissioner on the part of the United States: — A
v('i\ lew vessels entered Bering Sea according to this table
,.| Mr. IVters' until about the 1st i^f .Inly.

Ml. Warren: -'I'hey iis(> the intervening time between
ihr (lose of the lowi'r coast season, in sealing on the Fair-
\ve;ilher grounds and on the upper coast, that is above
Cipe Scott.

'['he t'ommissioiier on the part of the United States:- Is
ih'i that a part of th(< coast catch?

Ml. Warren: riu> Fairwealher ground catch is called
a'tlic iijipcr coast catch.

The (\)mmissioner on the part of the United States:— 1
1111,111 .ictiially outside of HeringSeaf

M I . I'elers: —That is only taken on the way up to Bering

Se.l.

Ml. Warren; If your Honor please, the "Mary Ellen,"
111 the year IS.sc, took about 1,. ')<•(> o! I,()0n skins on the
Kill weather giduiids; the "Dolphin" took 7(M». and we
(.111 show by the Jvecor<l, that other large catches have
lieeii made on those gromuls. I heg to suggest here,

40 why, if the Indians were afraid to go into Bering
Se;i, didn't. Captain Pa.xton take them on to the Fair-
weal Ikm' grounds, and hunt during the month of Jiineaud
llii' rest of May. for that matter^ There is no «'Xplaiiation
cil the fact that the »/)/>cr c«(«.s7 sealing was al)andoned,
;is suggested by tin; Commissioner for the United States.
The only e.\|)lanalion is that the captain returned to Vic-
Un la to make the trip to Shiimigan Islands, and ui>ver con-
Iciiiplateii sealing except otf the west, coast of Vancouver
l-laiid.

Ml Tlie Commissioner on the part of the United States: — I
ilo not tiiid any vessels entered tlu> passes until the last of
•hiiic.

Ml Peters:— There wei'(< in IS.sc,. Th(> "Caroleua"
wi-- Mipposed to have entered on the PUh of .liine.

The Commissioner on the part of llt>r Majesty: - I <lo not
tliiiik lliey could very usefully go in.

Ml. Warren:— The claim lias bi-en made by the learned
sriiiiir eoimsel that the season in Ht>riiig Se;i coiiiinenc(>s
piMiiiijilly about the tith or 7th of .Inly, and that would

ivi|i:i\e permitttHl the "Wanderer" to se.il iieaily two
iiiHiiths on the upper coast.

riie Commissioner on the part of the United States: —
Tib point is, that tlu> Indians were not willing to go into
HeiiiigSea; and why did they uoi complete the upper
cna^l catch, ft)r which they had tlu' balance of M.ay

If,

I' !.

7J2

(Ml-. Warren's Argument.)

and all of June, which they could have done withir
danger?

Mr. Peters:— Because you had to hire the Indians f
the whole tiip.

Mr. Warren:— There is nothing in the testimony on tl,

fioint, and is it now suggested by the learned counsel tli
hese Indians, who refused to proceed to Beiing Sea li
ID cause they feared seizure, would have engaged to son
other captain to hunt seals in Bering Sea?

Mr. Dickinson:— Perhaps the Indians misunder.stood tl
proclamation and thought that they were forbidden
seal at all, may it i)lease your Honors.

The Commissioner on the part of the United States;
What I meant to say was, that no catch was piohibiti
by the proclamation of the President of the United Stat
outside of Bering Sea. Now, the improbability of t
story, to my mind, and to which I wish to call the atti
action of counsel, is, that if those Indians were prohibit
from going into Bering Sea. they were not prohil)it
from sealing di)vvn to the last of June on the coast; In
yon say that they had finished their catch, so they we
home.

Mr. Warren: — The words "coast catch " do not propci
include the Fairweather grounds; that is the tipper cm
catch, and for that reason I misunderstood your Honci
question. I do contend that they could have proceed
on the upper coast voyage, and would have unless t
30(aptain had intended to return to Victoiia.

'I'he Commissioner on the part of the United States:
had in mind the coast as distinguished from Bering Sen,

The Interest of Citizens ok the United States in
Certain Claims.

Leaving the consideration of these special claims, I
come to the discussion of the interests of citizens "f
the United States of America in the several vessels and
cargoes whose owners present claims before this Hijj;li
40 Commission. I shall confine myself to the facts establish
ing which of these vessels and ventures were owiitil
wholly or in part by citizens of the United States df
America. Having made clear so far as I am able tliat
fealure of the cjuestion of ownership, the law applicable to
the facts will be hereafter discussed.

Article 3 of the Claims Convention provides in its
second pai'agrai)h:

"They" (the OoinnnssiouorH) "shall be iiuthorizctl to hear nnil
' exftuiiue, on oath or aflirmatiou, which each of said Commissiouers is
horebv eiui)o\v('red to adiiiinistcr or receive, every queHtion of ffict
not found by the tribunal of arbitration, and to receive all Buitiil'li'
authentic testimony concerning the Kanie; and the Government of tin-
' United Htatos shall have the right to raise the (luestiou of its liabihty

■ before the (Vimniissiouers in any case where it shall be proved tliiit

■ the vessel was whollv or in part the actual property of a citizen of
' the United States." '

IIS

.■.1
It.
nt

■Iv
's7
r"s
"A
W

The claims in which the U:nted States assert that citi-
zens of the United States of America are interested are srt
out at page bO of the United States argument, and an :
Co Tile Coojier claims: "Grace," "Dolphin," " Anna Heck "
and "Sayward." The Alexander Frank claims, and tlioii',
if your Honors please, I wish to make a correction. We
have stated on that page these claims to lie the "Alfivd
Adams," the " Black Diamond," seized July 11, 1889, and
the " Lily." There is an omission which f request your

713

ne withdiit

Indians f":

ony on tliit
•ounsel tli.it
ing Sea l.
ed to 801110

rlerstood tlifi
oibidden tn

Bd States;
i piohibitoil
nited States
ility of tliis
11 the attcii-
B prohibiti (1
b proliihit'il
i coast; liut.
o they went

not properlv
tipper cDiisI
our Honors
e proceed' (1
3 unless the

'd States:- 1
ering Sea.

States in

al claims, I

citizens of
vessels and
e this lliL^li
t8 establish-
wei-e owni'il
States of
in able that
applicable to

v'ides in its

il to licar nnil
inmiasioucis i:i
uestion of fnit
ive nil HuitiiMi'
oruiiieut of tlic
uof it,H lialiilitv
1)0 proved Hint
of a citizen of

rt that I'iti-
ested ai'e sit
nt, and iur;
Anna Heck '
s, and there,
ection. \\ ''
^he "Alfiv.l
11, 1881), and
ecjuest your

(Mr. Warren's Argument.)

Honors to insert— the "Black Diamond" of 1886, claim
>".!. 5. The Daniel McLean claim: One-third interest in
tlie"Big Triumph." The Alexander McLean claims:
One-half ""f the schooner "Onward" and of the schooner
" Favourite.''

The counsel for Great Britain admit that Alexander
Fi.ink was equally interested in the venture of the " Black

loPi iMiond " in the year 18S6, and of the "Alfred Adams"
in the year 1887, while the United States' counsel claim
tliat Alexander Frank was interested in the bottom of the
'• I'.lack Diamond " in the year 1880, and was a half owner
of I he " Alfred Adams" at the time she was seized, and
the owner of the entire bottoms of the "Lily" and the
" lilack Diamond" in the year 1889.

I'otnisel for Great Britain also admit that Alexander Mc-
LiMO was owner of one half the " Onward " when she was
seized, and owner of one half the " Favourite" at the time

20 of the alleged warning. That fact is conclusively
est altlished by the testimony of both McLean and Charles
Spi iiiK' ft'id hy the agreement dissolving the partnership
wliic h is in evidence, which although not printed in the
Exhibits, isin the possession of the Secretary of this Com-
mission and is referred to in the Exhibits as not printed by
tlie consent of counsel. That dissolution of partnership
est itdishes— if I may be allowed to state the contents of
th.' paper— this fact; that at the time of tlie dissolution of
tile partnership — in December, 1886 —Alexander McLean

joand Charles Spring each retained a half interest in the
claims of the "Onward" and "Favourite" against the
(iiivernment of the United States of America.

The Commissioner on tha part of the United States: —
Did he so testify?

Mr. Warren:— And he so testified. And Charles Spring,
his partner, so testified; that is admitted on all sides.

With reference to Andrew J. Berhtel, Counsel for Great
Britain admit that he was equally interested with William
Muiisie in the venture of the " Pathfinder " in 1889.

40 With reference to the Alexander Frank claims, the
Cdunsol for Great Britain have admitted in their printed
armiment that he was equally interested in the voyage of
the "Black Diamond" in 1S8»), which statement I now
undeistand that the learned senior counsel wishes to
withdraw.
.Mr. Peters: — We make no such admission.
Mr. Warren:— Your brief admits that in terms. 1 will
read it. The admission is found in the argument for Great
Britain, page 47, line 23, where these words occur:

50 ■■ ill tho case of tbe 'Black Diamond No. 5' and tlie 'Alfred
" Ailiuiis,' the title was in a Uritish subject, but the vcHsels were oper-
" iiiiit for the benefit of a trading firm at Victoria, comjjosed of the

• I'WMcr and one Alexander Frank, who was a native Imrn citizen of the

• I'liited States."

Mr. Peters:— All I can say is that the statement is not
(.(il icct with legard to 1886. Without making any positive
or deliberate statement on this point, I only wish to say
uow that if your Honors will remember that claim of the
" I'.laek Diamond " in ISSO was a separate claim, and when
Ooit i^ jiiit there " Black Diamond No. 5," it is referring to
til' wrong one. That number is wrong, and that is all
till! IS wrong. There were two " Black Diamond" cases,
ou' No. 6 and another No. 15. Without making a positive
sta!i'iii(?nt on that point now, I say at the present time I
am inclined to think that that statement should not have

'> I

¥h 1;

.l[^P

■i'ri

A
«1 («'

|i i'

714

(Mr. Warren's Aiguniciit.)

been put in that way. The extract read by Mr. Waii' n
is from my argi.nient. but I am strongly inclined to tliink
that the evi(]en>"e which I have in my hand shows th it
that is not the .-orrect statement. We do not mean io
make that admission.

Mr. Dickinson: — You mean that the number should Im>
changed?

lo Mr. Peters:— No; it niight l)e correct with re{;ard to tin;
"Alfred Adams," but with regard to the "Black Dia-
mond " that admission should not lie made, because 1li.>
boat did not belong to that tirni at all at that time, and
they did not accjuire their property in it until Januai v.
1887.

Tilt' Connnissioner on the part of tiie United States; -
You had better look at it carefully and make any conn
tion that is necessary.
Mr. Peters:— I will do so.

20 Mr. Warren: — The rea.son that 1 quoted it with sik li
great confidence is that it is found in their argument in
chief, and we accepted the admission in our argununt in
reply to Cireat Biitain, and in their argument in reply no
answer was made.

Mr. I'eters:— It is simply one of those matters that in a
case of tiiis length nnght slip in.

TMr. Warren. 1 sliail state tiien with reference to Ah x
antler Frank, the ct)unsel for Ciieat Hiitain atlmitled tlmt
he was et|Ually iiiterestetl in the venture of the "Black

3oDiamontl "" in issti. That admission we will consider later.
The counsel for (ireat Britain admitteil and do now atiinit
that he w.is etjually interested in the voyage of the " .\l
fretl Adams" in 1887. That admission is found at i>agf 47
of the argument, line i'8, wliicli is the same paragrapli I
reati in toiinection with the "Black Diamond," claim Nd.
5. So that the dirt'erent;e between the Counsel for llt'v
Majesty and the Coimsel for the United States as to Ihc
"Alfred Adams" is this: The ('t)unsel for the Unileil
States claim that Alexander Frank not only was intertshil

4oiii the venture of the "Alfred Adams" in 1887, l)ut that
he was part owner of the bottom t)f the ship. With nter
ence to Alexaniler Frank's connection witii the " Lily
and " Blat k Diajuoiitl " in the year 1881t, the claim is made
before this High C'tmimi-ssion in the name of Morris Moss.
The Counsel for the Unitetl States contentl that Alexander
Frank t)\Mied the eiitiie liottoin of the " Black Dianitind"
in I88!t, when she was seizetl, and that he owned the en
tire bottom t)f the " Lily " when she was seized, and tlii>
we claim we have abunilaiitly establisheil by the evideiuv

fio The Ct)mniissit)iier on the pait of the United Stat* >; —
As to the " Palblintler," are ytm cttming to that vt >sii
again? Ytm made a reference to 188it, hut not to l81»o.

Mr. Warieii:— As to the " Pathfinder," claim No. Jl,
the Counsel for (ireat Biitain admit that at the time of
hei' seizurt; in Is'.to. in the iiarbor of Neah Bay, within tlie
tenitfii'y of Washington, the interest, whatever it inij;iit
have been in 1^8!i, t)f Andrew J. Bechtel, remained itienti
tally the same, and tiie admission was made in conned loii
with tilt? " Pathtintler" in l88!t that Bechtel was etpially

fiQ into nested in the venture of the ship; therefore, the Coun-
sel for (ireat Biitain admit that he was equally interosUd
in the venture of the " Pathfinder " in 1890.

We contentl that Bechtel was a part owner of the
" Pathfinder " in 1889, and therefore, was part owner in
1890.

715

(Mr. Warren's Argument.)

I have thus clearly drawn the issues between the Coun-
sel for the United States and he Counsel for Great Britain
oil the questions of fact as to whether or not certain
cit;..('U8 of the United States v.ere interested in these ships
aiii! claims.

h'iferring to the Cooper (.laims, the testimony shows
till e claims are presented by Cooper. The question be-
10 coi Ill's a legal one and there is no question ot fact to be
deli rinined or discussed. Thomas H. Cooper resided in
Siiii Francisco and was a civil citizen of the United States
of America at the time lie acquired the title to the vessels,
at I lie time they vvere registered and at the time of the
sti/'iies. He was a domiciled foreigner, having resided in
tlif Ignited States continually during a period of about
iViity years prior to February, 1896, when the present con-
vi'iiiion was signed, and his status will be considered as a
question of law.
:o .Andrew J. Beciitel, who wasi a part owner of the
•'(arolena" and "Pathfinder," and admitted hj the
((Uiiisel for Great Britain to be equally interested in the
viiitiiie of the " Pathfinder," is a native born citizen of
tiic L'nited States of America; upon that question there
can lie no dispute. We have in this Record the affidavit of
.\li. Bochtel himself, in which he states he was born in the
State of Ohio, in the United States of America.

Alexander McLean, who was an owner of one-half of
the ■' Onward " and " Favourite," in 1886, became a natural-
poized citizen of the United States of America in the City of
Bosion in 1882. As to that there can be no dispute. His
|)a|icis are in evidence.

])aniel McLean became a naturalized citizen of the
I'liitctl States of America on the 1st of December, 1882.
On the Kith of Octobei-, 188(5, he look out papers and be-
ranii^ a citizen of Great Britain. On the 7th day of Sep-
tcinlicr, 1892, he made an affidavit in the City of San
Francisco, in which he stated that he was a naturalized
.Vtnt rican citizen and that he resided in San Francisco
401 Record 1821, line 50).

.Alexander Frank, who was a part owner of the '' Black
Dianioud" in 1886, and who according to the admission
made in the brief of Great Britain, was interested in the
veiitiirt' of the " Black Diamond" in that year, and in the
venture of the "Alfred Adams " in 1887, and who, accord-
int; to the contention of the United States, was the owner
lit the "Black Diamond" and "Lily" at the time of

tlieir seizure in 18Sl>

The Commissioner on the part of the United States: —
foTlie " Lily " is the same as the " Alfred Adam?.."

Mr. Warren:— The " Lily " is the same as the "Alfred
.Adams" with the name changed, but there is this differ-
eiire: that at the time the "Alfred Adams" was seized,
Jacob Ciutman was alive, and at the time tlie " Lily " was
sei/,.(i Jacob Gutnian had departed tbislifo, and Alexander
Flank was the owner of the entire vesse!.

1 was about to state that Alexti'idev Frank was a native
lioiii ( itizen of the United States of America, and that is
not disjiuted in this Record. He never took out papers
')jfi(iiii (ireat Britain or took an oath of allegiance to Great
Biit;iiii. He never made an oath of any kind for any pur-
pose stating that he owed allegiance to ivr.} sovereignty
iitlii I than that of the United States of America. That
fact 1^ beyond controversy on the face of this Record. That
he WIS a native born citizen of the United States is ad-

t' M

[\ ,

rifl

(Mr. Warren's Argument.)

nnitted in some jtart of the British argument to whicli I
cannot at this moment refer.

Mr. Peters: —Til ere is no dispute that he was a iiaiivo
born citizen of the United States.

Mr. Wr.rren:— He testified at Record, page 1994, line ll:
"Q. You are an American citizen, Mr. Frank? A. T .in
sir. " That puts at rest the question of his citizenshi])

The claim advanced by the United States with refeniice
to these men, who, in the course of my argniiiMiit
to-morrow, I shall endeavor to demonstrate were intci'.
ested in these ships, is this: that being citizens of ihe
United States of Americn, and interested in the bottom of
these ships and in the ventures, they can receive no (l.iin-
ages whatever before this High Commission, notuiih-
standing the fact that your Honors should find tliisc

^° United States citizens to iiavo been domiciled within llio
territory and jurisdiction of Great Britain at the time of
the seizures and warnings. No citizen of the Unittd
States of America car receive an award from this Ili;,rii
Court for damages resulting from a conflict between him
and the exercise of autiiorily by the sovereign powoi' of
his country of original allegiance.

The con' ition of the counsel for Great Britain -in
order that the question of where these American citiziMis
were domiciled at the time of the seizures may be clearly

3° before your Honors -is that these United States citizcnss,
granting they were inte?e.sted in the bottoms of these
ships, were domiciled within the jurisdiction of Great Bri-
tain at the time the several seizures and warnings wi ro
made, and therefore that nation is entitled to present a
claim and recover damages foi' them.

As to the residence of Thomas H. Cooper, there is no
disp'te. He testified— Kecord, lH;i7, lines V2 to C)!!— that
he went to California in is.n!), since which time ho liaa
continuously resided in that State, with no intention of le-

4° moving bis residence or of returning to his country of
original allegiance.

The residence of Alexander Frank, since 1889, is be-
yond dispute. He testified — Record, 2000, line 18:

" Q. Did you dean them up iu 1889, the next year ? A. Yes, witLiu
•' a very nhort time.

" Q. And since that time voi; have resided in San Francisco ? A. I
" have resided at San FranoiHco."

Whatever the controversy may be as to bis domicile
50 prior to 1S89, that testiinouN' establishes the fact that
since 1X89 he has resided continuously within the juiisilic-
diction of the United States of America.

Alexander McLean has resided in the City of San Fran-
cisco ever since 1889 — Record, 1073, line 5.5:

" Q. Have yon been in Han Francisco lately ? A. I left San I'liin-
" Cisco about six weeks ago.

" Q. How long were you there ? A. 1 have been away from tbcre u
" good deal ; I have been there since 1889."

60 Our learned fritMid Mr. Beique, at page 121 of his mal
argum<Mit, referring to Alexander McLean, says: "More-
over, there is no evidence in the Record which show.s the
ac(piisition of domicile other than his domicile of orij;in."
If your Honors please, tlio domicile of origin was
Nova Scotia, and the learned counsel is in error when

of Han Fiaa-

717

(Mr. Warren's Argument.)

Ill says that there is no evidence to show that
Alexander McLean established any other domicile,
li.canse here is the testimony I have just read
fi(irn the Record, showing that he has lived in San Fran-
ci-^co ever since tiie year lS8i>, and there is additional
tc-timony concerning his residence in the United States
of America prior thereto, for he took out naturalization
,o|i,i|u'rs in the City of Boston in the year 1882. At page
l(i7r)of the Record, line 38, he testified that he resided in
Histon in the year that he took out his papers, and that
lie had resided tliere piioi- to that time, and resided there
aiier the year 1SH2.

Ill the deposition found in the American Reprint of the
I'jiiis proceedings, Vol. 3, page 436, he states in answer to
tills question:

•• (}. What is your name, age, residence "

Mr. Beique: — That is not in tlie Record, is it?

Ml' Warren: -lam reading from the American Reprint,
Vol. 3, page 43tt. It was read into the Record at page 462
—not read into the Record, bul. used for the purposes of
ciiiss examination of this witness by our learned friend.

•' <^. What is your name, age, residence and occupation ?" He re-
•• plies:

• My name is Alexander McLean; age, 32; residence, San Francisco;
" oi'cniiatiou, mast(>r mariner."

•'Q. Are you an American citizen ? A. lam."

The date of that deposition is February. 1892. It was a
(lo|i(>sitioii taken for the purposes of the Paris Tribunal in
till' year 1S02, as shown on page 445 of Vol. 3 of the
Ainoiiran Reprint, on which page is found a certificate of
the .Notary Public that the " Depositions of the foregoing
wiliit'sst's were taken on the 3d day of February, 1802,
at Ills office in the City of San Francisco."

Daniel McLean, !t was contended in the oral argument
of till' learned senior counsel for (ireat Britain, was not
(Idiuiiiled in the United States in I8i)2, and was not an
'*°Aiiieiican citizen in 1H!)2.

Mr. Peters:~l made no such contentions as to 1892.

Mr. Warren:— Daniel McLean made an affldavit, found
at pajie 1S21 of the Record, line 50, which affidavit was
iiiaile ill the City of San P'rancisco on the 7th day of Sep-
teiiilicr, 1.S92 (line 38, page 1821):

■' l)i>|)()sition of Daniel McLcau, 8ealer (master). State of California,
" City and County of Sau Francisco, ss. : Daniel McLean, being duly
■ sworn, deposes and says : —

■ I urn 42 vears of age and am master mariner by profession."

riiero is a sub-head which [ take to have been inserted
In tlie person taking the testimony which reads: "Occu-
pai idii -experience."

Tlie deposition then continues: " I reside at San Fran-
cisfii and am a naturalized American <-itizen." "I am,"
iiiii " was," as contended by the learned counsel — "a
naturalized American citizen."

i'lie learned counsel, I remember, .stated in reply to the
(|ii<tion by the Commissioner on the part of the United
6oSt,ites, that that referred to tlie fact that Daniel McLean
had atone time taken out papers in the United States, but
iicLilected to mention the fact that he subsequently had
taken out British papers. The afiidavit reads " I am '' a
natiii ilized American citizen and " reside " in the City of
San Francisco. With reference to Daniel McLean, there

TT"

:; 1 1

i^iMli,

■^- 1!'

718

(Mr. Warren's Argument.)

is not a line of testimony in the Record that he t'\
changed his domicile from the year 1892, including t
entire period from 18l>2, to the convening of the Conim
sion at Victoria. He has since heeu sailing out of the pi
of San Francisco continually.

There is no testimony in the Record that Daniel McLc;
ever was domiciled at Victoria. His brother. Capta
ID Alexander McLean testified — Record, 1071, line 65— tli
Daniel McLean lived in Boston prior to 1882. The fa
that Captain Alexander McLean is here referring
Daniel McLean, is established by the Record, 1074, line .'i
The only testimony in the Record showing the resident.
of Daniel McLean in ]8S!», is Record, 421, line 44:

" Q. Now, wore you out of the country or away from the coast wli^n
'• the 'Triumph ' was soUl? A. Yea, sir.
"Q. Where were youy A. I was in Han rranciaco.
" Q. The ' Triumph,' as you understood it, was sold up here? A.
Yes, sir.

"Q. You said your lirother was in South America, did you uniy
A. He was in San Francisco at that time. "

1--

111

■1
10

The ••Triumph" was sold October 11, 1889 (Record.
1431, line ♦iO).

Daniel McLean made an affidavit relative to the wai n-
ing of the •'Triumph " in 1889, and in that affidavit did
not state that he was a resident of Victoria (Record, 141^,
line 10).

Andrew ,). Bechtel testified (Record, im, line 1), that liu
30 had resided in Victoria for twenty-three years; but this
testimony is contradicted by his own affidavit. Exhibit
No. 4. U. S. Claim No. 1, Exhibits, page 49, in which lie
stated " I am a citizen of the United States; that my j)n's-
ent usual place of residence or abode is Auburn, in the
County of Placer and State of California."

This affidavit was dated the 9th day of February, is'.m,
although the date printed in the Exhibit is February n.
1896. The correction was consented to (Record, p. 577,
line 58).
40 This affidavit must be taken a*i conclusive evideuce
against Bechiel.

In the morning I shall consider first the question of the
ownership of Andrew J. Bechtel in the claim of the " Car-
oleua " seized in the year 1886.

The Commissioner on the part of the United States:- It
is understood that we sit from half-past ten o'clock to
morrow morning until half-past one o'clock.

At half-past four o'clock the Commissioners rose.

Commissioners under the Convention of February 8,

1896, between the United States of

America and Great Britain.

the coast when

^e evideuce

Tjegislative Council Chamber, Provincial Buildings,
At Halifax. N. S., Sept. 17th, 1807.

At 10.30 o'clock A. M. the Commissioners took their seats:

Tilt' Commissioner on tiie part of the United States:—
Tin CoinmissioniMs are of the opinion that it is suflficient
tli;ii the protocols for the sittings at Halifax, until fiu'ther
dilution, be signed by the Secretary only, except those
f.ii tiie first sitting and the last sitting.'and direct that
till- he entered on the piotocol.

Ml. Bodweli:--! beg to hand to your Honors the charts,
I ivfcrence to which I made the other day, and which
cliaits show the sealing grounds. I have given a copy to
iiiv learned friends on the other side.

Till' Conunissioner on the part of the United States:—
I .Mil nuuh obliged to ycm, Mr. Bodweli, for the con-
V( iiitnt manner in which these charts are arranged.

Ml. Warren: — If your Honors please, I had estalilished
lit lure closing last evening, that every American citizen
wild is claimed l»y the United States to have been an owner
(ir ii;ut owner of the bottom of any of these ships or the
.^i^M nture of any of these ships, was beyond any controversy
iloniiciled within the territoiy of the United States in the
veal ISSlt, with the exce|)tion of Andrew J. Bechtel, and
the loutradiction in his testimony was brought to the at-
tcniion ot tlie High Couiinissiouers; and it was alsoes' b-
li^ll^(l that from the year 18Kit until the time of the sign-
ini; (if the convention in February, ISjttt, they were
(luiniciied within the jurisdiction of the United States of
Aiiii'iica.

The Commissiuner on the part of tiie United States: —
•*>^\Va> Andrew J. Bechtel domiciled in the Uniteil States?

Ml. Warren:—! made that exception with regard to
liet litel. Andrew J. Bechtel testified tiiat he had resided
ill \iitoria, but his attidavit in which he stated that his
n-ual |»lace of ivsidence was in the State of California,
u.i- also Itrought to your Honor's attention.

Ml. Warren: Article 1 of the Convention of February,
hiMi. (irovides:

• riic liigli I'outnu'ting jMirties ngroe tlint all olnims ou account of
lii'ssustiiiiioil l)y jxTsoiis iu whose bohalfdreiit IJritaiu is entitled

■' t»' »
•■ 1.1 1

■■uili
•• nit
■■«ll.
■■thr

■in I

liiu couiiii'usatiou from tho Uniteil States, aiitl arising by virtue
111' treaty aforesaiil, the awant and findings of the said tribunal of

tiation.'as also the additional claims sj)eeitied in thooth paragraph
he i)reumble hereto, shall be referred to two commissioners, one of
1111 sliall be appointed bv Her iiritanuic Majesty, and the other by

['resident of the Uuitcil States, and each of whom shall be learned
aw."

• /v ciitilh'd to claim comi)ensation," if your Honors
|i|ia-i', and that is all 1 desire to say witli reference to the
loii-tiuction and interpretation of that clause of the Con-
'«V(iiiioii. I only insert it here for the purpo.se of having
it 111 tore the minds of your Honors, at the same time and
jilai' ill tiie oral argument with the testimony establish-
iim I he fact that every American citizen, witii the e.xcep-
limi nf Andrew J. Bechtel, who, it is claimed, is iuter-
1^1' 1 ill any way whatever in the claims before this con-

72(»

(Mr. Warren's Argument.)

vention, was l)i>yon(l any controversy (lt)inic;ile(l wji'
tlie territory and jurisdiction of the United St;iti'>-
America at tlu> time of and for a consiileralde nuiiili."
years prior to the time of the sij;ning of this Coiiveiin
under which your Honors sit.

The testimony hearing on the residence of theciti/ns

ipof the United States who are interested in the cl.iniis
hefoie this High Commission is compiled at jtagea lti:i tn
17t) inchisive in our |>rinted arginnent. The testini.ny
there collectetJ t-stahhshes tliat Thomas H. (.'oopci li nl
resided in tlie city of San Francisco evttr since the \r;ii
18oSt with no intention of changing hisdomicile. Tin tis
timony as to tlie domicile of Andrew J. Heclitel at the
time of the seizine of tiie ** C'ai-oleiia " in 1 -iSO and ot the
seizineof the '* Patlitlnder" in issit and ISito is conti.nlic.
tory. He testified that he had resided in Victoria coniin

2QUously for twenty-three years (Hecord, H.'i), l)ut swoiv in
the atHdavit dated Februaiy !•. isito (Kxhil)its, p. rti.
that his usual place of residence oi ahode was Auhiu n. in
the State of California.

To the citations of testimony made with reference In liio
residence of Andrew J. tJechtel sliould be adiied tlnM-
liecord 14S. lines ♦! to 17; Kecord 1.")<!S. line 20; lieconl ll'.i,
Hue 1; Kecord li't!. line :io; Kecoid 1-27. line 17.

The testimony t'stahlishes the residence of Alexaiilii
McLean to have been in Victoria at the time of the sei/uiv of

,Q the "Onward"' m l.sstl, and the vvarningof the "Favoui iti;"
but the testimony does not establish that he was peinn
uently domiciled at Victorin. for he ti'stified (Record ^:l|,
line ti;^) that although he resided in Victoria a portiun of
the time between l.ss4 and Is.h!», that he was back .iiul
forward betsveen Victori. I and San Francisco. Tlie diily
evidence that est-ibbshes a legal domicile is evideiuc of
|)ermanent residence, with no intention of returning' tn
the country of allegiance, and this testimony doe.s imt
e.-tablish a legal donncile in Victoria. The testiuidiiy

,Q relating to the residence of Alexander McLean is cjin-
piled in our aiguinent, page 1 (■4, andtotiie citations llnii'
found sliould be added these: Kecord s!»s, line 45; Kxliihit
No. 5, Claim No. :!, p. 7ti of Exhibits; Kecord 4(h», lim. i;
Kecord 4-JS. line 1; Record 42!», line 07; Kecord 404, liinL'T;
Kecord lit;". I. line T)'.*.

The only testimony in the rec(jrd relating to the doinicil
of Daniel McLt;an establishes his domicile at San Kiiii-
Cisco in the year iss'.t, the time of the waiiiing <if tlit^
"Triuniph," of which be was the owner of oiie-tliinl.

-QThis tf^stimony is found at Kecord 421, line 4S. which

' sliould be lead in connef'tion with Kecord 14:il, line iin.
'I'luse references to the record should be added to the lef-
eivnces found on page 17:? of the ]trinted argument n| the
United States (Hecord, lo71, line t;."); Kecord, 1074, liiir Cii;
Kecoid, 1'.».">1, line .")!»; Kecoid, I41S, line lo; Kecord, l','."i7,
lino ;!.">; Record, tlS'.i, line 22).

The testimony relating to the re.sideiice of Alexamler
Frank in the years lss« and lf^S7. and ISMt, is all roii-
taiiied in the attidavits found at pages 2o7 to 214 inclii>ive

6o''f Kxbibits. and the testimony of Frank at Jiecord, li''.':^,
from that to 2(tnl. inclusive. There is no evidenc(.' that ho
had a legal domicil in the City of Victoria in any of these
years. A commercial domicile is not sufficient.

The counsel for Great Hritaiu nowhere cites any Ir^li-
mony establishing that Frank was domiciled at Vict.iija
at the time of the various .seizures.

721

(Mr. Warren's Arguinont.)

Ri'fore eiitcriiijj; upon tlio discussion of the quostion of
t.H t iiH to whether Andrmv J. Mechtel owniul ono-lialf of
til.' "Carolona" and " Pathfindur," I desire to ref»'r to
11 i'.;e li'ti of tiie oral arj^unieiit at Halifax, made hy tho
ti lined counsel, Mr. Hei()ue. He contended "under the
j;i itish Munic^ipal law, British subjects only are «>ntit!ed
tiown British registered vessels, and any contravention

lOi'i'iMiites ipso J'neto as a forfeiture of the vessel to Her
>l,ijesty." The learned counsel then road the sections of
till' statute upon which he liased this arsufuent. This
o< Uentioii lias not heen fortified hyhiin hy any authority
liiause no authority could he found to sustain such u
iniiiciple. The Municipal statute of (ireat Britain reipiires
n .iiDR'lAi- proceedifKj and ttrdvr of forj'i'ifure The argu-
iiiriit itself is erroneous. If, they say, .\ndre\v J Bechtel
(iwiied the " C'aroicna " at the time she was legistered, or
(l^^ iieil a pait of her, then //kso foito she liecame the prop-

201 ity of the Cirovernment of (ireat Britain and when she
WIS si'ized in l-SSti hy the authorities of tlie United States
vvilliin the waters of the Berin<j Sea, the property of Au-
(livw J. Bechtel was not seized, for the "•Oarolena" was
t lull the property of the Government of (ireat Britain.
Is the (xovernment of (Jreat Britain here advaniiing a
(hiiiii in its own behalf, for the value of the " Carolena "
aiici the profits of her venture, or a claim in behalf of An-
(livw J. Bechtel who did not own the vessel, according to
the contention of the learned counsel, at the time she was

joscizt'd? Can the Government of Great Britain he heard to
advance at one and the same time the contention that
.Andrew J. Bechtel. Alexander McLean, Daniel Mtd.ean
and Alexander Frank did not own the bottoms of these
si lips because they had been forfeited, when the vessels
were registered, to the Government of Great Britain, and
a claim in beiialf of these very individuals for damages
sustained by reason of the seizur<'8? We say that such an
ai'^ument is absurd. The Government of Cheat Britain is
iidt before this High Counnission as a claimant for the

40 value of the "Caiolena " or for the value of any other
sliip. no matter what its name. The article of the Con-
viiitioii which I have read provides:

■' Thnt the High CoutructiiiR parties agree tlmt all claims on ac-
•■ ciniiit of iujury sustaiued hi/ persons hi irhnse Iwlinlf Great lli-i/iiin is en-
" tilli-d to cliiim compeniui/ion from the Uuileil Sinks sliiill ha yferri'i/ to two
" Oiiitmissioners. "

Is tbeie any reference there to the claim of the Gov-
ti iniieiit of Great Britain which now contends under these

;oi''',^i-^tiy acts to have owned these vessels by virtue of the
foilViture dating back to the time of the false registra-
tion; Is there any reference there to tlu' right of thoGov-
t'lniiit'iit of Great Britain to claim compensation from the
I'liit'^d Juiies foi' damages arising from the seizure of these
vessels?

(ireat Biiiain either has to take one i)0siti()n or the
cilliiT. If she makes a claim before this Gonunission in
till' name of these citizens then has she waived her right
el tdifeiture. If she has forfeited the ship and then pre-

Co'-'iitetl a claim in the name of these citizens before this
llii;li Commission, then that nation is estopped from deny-
ing; that the claimant owned the vessels. The two posi-
til Ills are antagonistic. The Government of Great Britain
I iniKit advance a claim in the name of private individuals
fur damages sustained by reason of the seizure of ships,

(. ,.

■It-.

•n \\ I

7*J-

(Mr. Warren's ArRument.)

aii(] at the Hanic tiriu> prost'iit th** arKnnn'nt by U>arii |
counsol that tlicHo sanio iiulividualHclid not own IIiohIiji ,
bpcanso tlu'V had boon foif«'it»>d to th«» OovtM'nniciit .f
Great Britain by virtne of a falHc registration.

OWSKUSmi" OK THE " C'akoi.kna."

•o I shall first conHider the (|nefltion of facias to whetli r
William Munsie alone owned th<* " Carolona " at the tiiu"
she was seized in issti. or whether she was the , )int iinij
equal i)roi)erty of William Mnnsie and Andrew J. Hecht' I,
a citizen of the I'nited States of America.

J shall not weary yourllonorsby reading in detail llu'
testimony of lhe.se witnesses, for, as I have said hereto-
fore, 1 presume we all know this Record and particularly
that we know the testimony referring to the relations ix-
isting between Andrew J. Ik'chtel and VVilliam MiniMi'.
20Liiless, therefore, the evidence is called for, I shall ii<>i
read, but will content myself with the as.sertion that tlir
Record discloses the facts which I shall now disciiss At
the recpiest of the learned counsel, however, I will read at
any time the evidence to substantiattMiny statement of fii.t
made.

Mr. Bodweil:— If my learned friend would mention tin'
|)a^e of the evidence upon which he relies for his stale
ments, we could then look it up.

Mr. Warren: -I shall then, liecans(> of that rec^uest, real
30 the Record. At page 87, line ♦!, William Munsie testideil
in answer to the (piestion;

■ ' Q. Who woH the owner of licr wben you commonoed to buy lier V
"A. I liolieve Donald Uniulmrt. "

1 now refer to ]tage 1022 of the Record, where the test!
mony of I'atiick Ilickey is found. Your Honors will le
member the extreme dithculty that the connsel for the
United States bad in obtaining the attendance of the wit-
ness Patrick Hickey You will remenit)er tiiat alter

'^^searcbing, as appears by the Record during a petiod of
two weeks, and aftei' having had a subpuiua in llio
hands of a iei)resentative of the United States duriii.t,^
that time, we disco veied that Patrick Hickey was
shutting himself up in his own home m tlio
City of Victoria, and denying access thereto to
any person whatsoever. Hut, haviug obtained his appear-
ance, what did be testify to^ l^atrick Hickey came there,
a pel son without any interest whatevt>r in the deterniina
tiou of the niatteis before this High Commission, not ile

5°siring to come l)ocause be was a citizen of Victoria, aihl
presumably acquainted and perhaps connected in a busi-
ness way with William Munsie; but, having come, tolil
the truth and testilied at line .W, Record 1U22:

" Q. Wi>r<! you 11 joint imrchaser with Mr. UrquUart? A. liuvcsicJ
" money with ('a))tain Unjuhart.

" Q. In th(' purchusf of the Bhij)? A. In the purchaHe of the 8l,i|i.

"(J. About what year was that? A. That waH iu 1884.

" (J. To what extent did vou furnish money in the imrchase of thu
■• ship? A. 85(K).
60 " (J. And what was the total cost of the shii)? A. I was giveu to
" \iU(lerKtand that it was i?l,00().

" Q. You furnished half of the purchase price as yon under.stn.iil
" it? A. Yes, sir.

" Q. You wore at that time, I think, an American citizen? A. I win.

" (j. Did that have anything to do with why you did not take the
" interest in your own name? A. It did.

I to buv her V

72:j
(Mr. Wairon's Argument.)

" i). Thnt WAR thn miRon, was it not? A. That wdk tlin renfinn.
' if. Ami voii pnnthitmtd Ikt jointly with Mr. Ur(|uiiitrt, who wi. a
■ lintiHh Hudjt'ot? A. Y«m, Mir.

C/, llow lon^ dill yon nml Mr. lTri|uhiirt ooiitinuo to own tin

• ... Iiooiicr iinil o|n'riit(> hi-rV A. I liolicvo wn inirchiiH(>(l tho vohhoI iii
' till' Nprinx of tKH4, iind in tho winter of 1HH4 itiid iNHfi. I think it
' wiiM in thtt luiinth of .hinuiiry, ('ii|itiiin ITninliart Hold tho vohhoI.

■ (/. I'rior to tho Hiil«> of the vi^mhcI, did yon innko Homo rupiiirH?
' \ Vt'N, I think [ liiUKt honed her.

■ (,). What did that cost the coiKH-rny A. Well, Hir, I don't ronol-

• I, it tim t'xact anionnt, bnt I l)i'li«vi> it van abont <flKH) for longthun-

• illj,' till) V(>HH»d.

■ Q. And after the rcpairH on tho vohhpI hal been made, iuolnding
' I he original foHt of thi' vuhhoI, what did si"" '-'..nt youV A. Well, 1

' .Inll't rUl'ollpot thl^ PXIIOt COHt.

■ (f. About? A. Wi'll, tli(( Bnm iH ontirolv bovond Miv rocollection.
(). WaH it about #2,(MMiy A. W<i||, Hir, It would be uaturolly over

■ Q. When hIio wok sold, what was Hho Hold for? A. I couldn't
!■ II you.

" (^.' You were adviHed by Mr. Urquhart? A. Ygh. sir."

And (•(iiitiiiuini; iit Record 1023, line 50:

• (). Now, yon got Homi' of tho proceodH when tho vohhoI wan sold,
•• ilid you not? A. I don't know that 1 did, Hir.

•■ q'. WoU, wbh tho sale aocountod to you? A. The salo was mad o
'■ hv ('a|ilain Urquhart.

•■(.). Who to? A. I underHtood to Mr. Munsie.

" (.). Now, do you remonibcr what Mr. Urquhart told you he had

• received for the solioouor? A. I do.

" Q. What was it— Reoord 1024, lino 3. A. Captain Urquhart ren-
•' ili'reil mo a statement.
}0 ■• c^. Have you got tho Htatemont? A. No; there was no writing at

■ nil, lie rendered me :?1,00(>.

" Q. For your half? A. Ah he told mo it waH for tho half.

■ (). S/iilf'tl to you Hint he Hold it /or $2,000 and iioiir liiil/ was $1,000?

■ A. lie so xtdled.

■ (.). And lliiil ivds the Kale to Mr. Munsif? A. So far nx I can under-
■■ si' I lid ; as I undemtood it at thf. time."

Now, then, whon William Miinsie pnrdiasod that ves-
sel, tilt' " Caiolena," C'ai>tain Uiquhart was not the only
owiH'f of her. Patrick Hickey, a citizen of the United
4oStal('s of America, at that time was owner of one-half, he-
(■iiiisc he states that in the month of January, ]SS5, Cap-
tiiiii Urquhart sold that boat and on the g.'ith of January,
js^.i. the tiist bill of sale from Captain Urquhart to Will-
iam Munsie was executed, as apjiears by the l)ill of sale
u iiich is an exhibit. What does Patrick Hickey testify
thcv sold that vessel for? He says he realized for his half
Hh'sihii of fJ.OOO.

Till n again to page 87 of the Record, line 82, I read from
the evidence of William Munsie:

•" 'M^. When you werebuyingthe one-third and Matthewson, another

• iPMc-third from Captain Urquhart, was there an v vahiatiou put on the

■ vessel at that time? A. Yes, Hir; about 83,800."

Three thousand eight hundred dollars, if your Honors
|il(';i'<el And Patrick Hickey, the owner of one-half the
vi'.vmI, beyond any doubt, testified he received $1,000 for
hi.s half. But the learnetl senior counsel for Great Britain
suggests— I hope the learned senior counsel did not sug-
pesi it, but that the idea originated in the brain of Wi'ii;\m
'^<i. Munsie— that Captain Urquhart was engaged in a swind-
ling operation to defraud his partner, Patrick Hickey, and
for that reasuii the peculiar amounts to which I will call
yiMii Honors' attention were inserted in the hills of saleex-
<( 111 I'd by Captain Urquhart for the transfer of the vessel
to William Munsie and Matthewson.

724

(Mr. Waiien's Argument.)

Do your Honors see tlie fallacy, if I may use that tci m,
of that suggestion? On the 4th day of Fehruary, is^,, jf
I remember tJie date correctly, Cantain Unjuhart sifii,. il
the last hill of sale, and parted witli his entn-e intercM in
this vessel. Admitting that the figures were first nsod 'nv
the purpo.se of misleading Patrick Hickey as to the (. n
sideration obtained by Captain Urquhart frou) the s.iK of

lo the vessel, I beg to suggest why were those figures insii it i]
in the mortgages that were executed to Andrew J. Htli
tel? Were they inserted for tlie jnnpose of dt'ceiving
Hickey into believing that the vessel was sold for the Mim
of ^2,i)00? Captain Urciuhait had parted with his titli to
the ship, and did Captain Urquhart have any object wliii-
ever that would induce him to ])revail upon Willi nn
Munsie to continue to use these figures in mortgage- in
which Captain Urquhart and Hickey had no interest wlmt-
soever? The argument of the learned counsel for (I iv, it

20 Britain is so fallacious upon its face that it is not woiijiv
further consideration.

If we are to blacken the name and reputation of ;inv
man, let us tiu-n to the living rather than to thodtni.
Captain Urquhart has departed this life, enjoying, wc
trust, and for aught we know, we believe, the contidcnci'
of his fellow citizens in Victoria. William Munsie is liv
ing, and is convicted upon the face of this record of givni^^
false testimony. If, 1 repeat, we are to blacken tlie npn
tation of any man, let us choose William Munsie Vwiw^,

30 rather than Captain Urquhart, dead.

The first bill of sale from Captain Urquhart to Williain
Munsie \vas dated January 21, 1885, and the :ill of >,il('
from Urquhart to Matthewson. who was a
brother-in-law of Munsie's, was dated tiie same day. K;n h
bill of sale conveyed 21 shares, or one-third of the vessel.
Captain Urquhait transferred the remaining onelhinl
which stood in his name to William Munsie, on the llli
day of February of the same year, and Matthewson trans.
ferred to .Munsie the one- third which he bad jnuchased tioni

40 Uniuhart on the I'.tth day of June of the same year.

Then we see that on the 4th day of Febiuary, iss;"), \\ il
liani Munsie owiied two-thirds of tlie"Carolena." What diii
he do on that date? He executed to Andrew J. Bechtil a
moitgage covering, riot bis entire interest in that ship. Imt
covering exactly one-half of his interest, which would lie at
that tinieone-tliirdof thesbip. What was thoconsideiatu 11
expressed in the mortgage? ^M7, if your Honors plea-c.
What was the consideiation expi'essed in the bill of sale
from Cajttain Uripibart to William Munsie? ^(WIT, if vnur

50 Ibiiiors please. Exactly the same amount. .stitiT niulii-
plied by ;i is !?2,(iol, or we will say .sl\(I(I(I. i'atri k lliclu'V
testitie'd that that vessel was sold" for ^2,00(1, liut Williaiii
jluiisi(i swore she was jjurcliased f(,.' ^;!,.S()0. On the laro
of tliest' |»apers, whose testimony is to lie belit" 1 Throw-
ing aside the papi'rsand acknowledging, for tln^ ...Keofiin'-
senling the argument, that the consideration expressed in
the paper is not always the bono Jidc consideration, let us
consid<'rwbat motive Patrick Hickey had for testifying I hat
he received sl,(i(io for one half of the vessel. He had 110
^'O motive whatever, for \hi has no interest in any claim lie-
fore this High Commission. On the other iiand, Willi nn
Munsie had two motives for testifying that he paid si:'..-!"'
for the ship. Tlie first of these was that he was seeking
to covei' up a transaction between himself and Andreu .1.
Hechtel, a citizen of the United States of America, so 'liat

725

(M,v. Warren's Argument.)

V ur Honors would he induced to believe that Andrew J.
'[^iclitel was not a half owner of the "Carolena." and he
li 111 the additional motive of desiring to increase tiie value
111 tlie ship for which lie is clainiinf!;. If William Munsie's
ti--timony is false when he swore that lie paid !?3,80O for
tiiat vessel, and it is false hricause Patrick Hickey testified

t!i:it he only received ^I.OOO

10 Mr. Bodwell: — Of course I cannot control the argument
(il my learned friend, hut I would suggest to him that it
is line tiling to argue that a man isgiviiig false testimony,
,ii!ii another thing to assert that it is false. I would sug-
yr-.\ that there is away to conduct this argument without
ii-ing offensive terms.

Mr. Warren: —If your Honor.^ please, we cannot discuss
tliis transaction in delicate terms. William Munsie, I shall
.sjii.w your Honors, is not to he credited, and I shall sub-
si iiit late thiit statement by reference to the testimony
2ofiiimd within the covers of this Record.

Mr. Bodwell:-- If you will say in your opinion, I will be
sadsfied.

Mr. Warren:— If your Honors please, unless I read from
wune paper, I am always stating my opinion.

Mr. Roilwell: -Then put it in that way.

Mr. Dickinson:— Unless corrected, the theory of the iin-
tnitli of some of the testimony of William Munsie may be
St .lied.

The Commissioner on the part of Great Britain:-— I think
30((iinisel cannot be I'estrainen by us.

Mr. Bodwell: — I was merely making a suggestion to my
learned friends.

The Coimuissioner on the pait of the United States: —
Counsel cannot he restrained unless he goes outside of the
li'i'iiiid, and I do not see tliat Mr. Warren has done that.

Mr. Waiien:— If your H(mors please, I believe I recog-
ni/f my duties before this High Commission, and I appro-
CI ii(\ ;)nd am not insensible of the fact, that this High Com-
mission does not desire to bear assertions that are not
4"loun(le(l upon the testimony found within the Record. I,
iiiivvcver, tai-'e it for gianted that so long as the American
(I'unsel confine! themselves to the interpretation and con-
si iiiclinn (U' the facts found within the Record, they will be
li-li'iicd t.). We have, if your Honors jilease, such emi-
i^iit authority as Lord Stowell to sustain our right to
sjnak in this way of this class of witnesses. 1 read from
liiii eminent jurist's opinion in the case of the "Odin,"
ir|'iiilt'(l in 1 Christopher Robinson, [)ag(! 2i)'^■.

•■ It is wild conceit tlmt any cinirt of juHticc is l)i>iut(l l)y more swear-
• • iiitr: it is the Hwoariug credibly that is to conclude its judf?ment.

■ riKiuc.stiouftl)ly a court of iidiiiiriilty will proceed with all reiinisito

■ . nitiiin in deteriuiuiug a^ivinBt regular papers ronularly Mupi)ortod;
" I'Ut if the popers say one thing and the facts of the case another, the
" Court uiustexercisoaHoberjudffment and determine according to the

• loiiimon rules of evidence to which the proponderouco is due."

! am discussing what the papers in this case show and
whal the testimony of William Munsie shows, com-
jiiivd with vvh;\t the facts developed by the testimony
(if uninterested witnesses disclose. I am endeavoring to
6oiiii|iicss upon your Honors that we do not believe that
\\ illiaiti Munsie was swearing credibly when he testified
a- 111' did.

' said, may it please your Honors, that the mortgage to
1<| litel, dated the -ith of February, 1885, expressed the

:('ilt - it;,, ^

72(i

■■ )

(Mr. Warren's Argument.)

same consideration that the bill of sale from Captmu
Urquhart contained, namely, $667. William Miinsie un-
dertook to explain away the inference that would natm
ally be drawn from tbat fact, at Record, page 81), line i ;.
I am quoting from this testimony more in detail becan-,(j
of the request of my learned friend Mr. Bodvvell, and I ilo
not desire to go outside of tliis Record for material to vnn-
iQvict tbis witness of giving false testimony. At Ketdnl.
page 89, line 41}, Munsie testified under cross examinatiin:

" Q. What I want to get at is this: The consideration in that iiioit-
" gage is stated at §067; was 8667 the amount you actually borrnw.il
" or was it more V A. I borrowed about S50().

" Q. There seems to be the same amount stated in all these dm u-
" ments. For some reason or another it was put in here at J^OfiT, l.iit
" that was not the real transaction ? A. I think the amount was juit
" in to cover interest. I would not bo positive, but that is about I lie
" recollection 1 have of it."

20 Examine the moitgage, your Honors, and by its own
teims it does not bear interest. Th" ii^ierest clause in tiu^e
mortgages is erased, actually st .ick.'n i d! , and yet Williaiu
Munsie swears 8167 of the i^'.'t'j" w,; ^erted to covor in
terest.

Now. that fact is wortby of tv(!isi(*eration. The peiiili-
arity of tbese mortgages in tbat respect was first olis^eivcd
by tbe Conuiiissionei for the United States, I believe.
Tbat moitgage did not bear interest. Wby? Becaus^e we
contend it was not considered a mortgage, but was given

30 for tbe jairpose of securing tbe half interest of Andrew ,J.
Becbtel, and to serve as some indication tbat be liad.
rights m tbat vessel as against William Munsie, who wa.-j
registered as sole owner.

Our learned friend Mr. Beique suggehted tbat tbe mere
fact tliat tbese mortgages were recorded, is conclusive evj.
deuce tbat tbey were notbing l)ut mortgages. Why,
tbat fact alone is one of the tbings wbich induces nie ii)
tbiiik tbat Andrew J. Becbtel was partowner. If Andrew
J. Becbtel bad witbbeld these n)ortgages from recoid, lie

40 would liave notbing on record to show as against AVi'liani
Minisie tbat be bad any rights whatever in tiie "Laid
lena," and if tbey bad been witbbeld from tli.' rtx \l and
tbe ()uestioii of ownership ever arose, tb-^ i'luii! would
naturally inquire why they were kep* oft" t.'ie •" .i!i!. In
cases of fraud where ibattel nioitgaget, are irivo: ed, !» is
a rule of law. 1 think everywheie, and ceit>>nlv m > ,i;\
jurisdictions, that where mortgages are kept olt tlio
record, it is sfime indii'ation of fraud, and is absolute fraud
under some circumstances against innocent parties.

50 This mortgage was for tbe sum of .^667. William
Munsie had paid to Captain L'rquhart 5^1,:$;U for bis Iwo-
thirds intei'ost in tbat boat up to that date. One bait' of
sl,;!;i4 is sCitiT. Therefore, when William Munsie ga^e a
niorlgai-'' for ^'tiCu on one-third of that si'ip, not on tlu'
two thirds which he held, but on the on; bird, he gavea
iiiortgage covering oiiehalf of bis int-r- ,, fo; exactly
mie hall of the ainouiit vvhich bis iiiteies ]• d cost limi,
according to the bill of sale, and accordi.";' so the lesti
nioiiy of Patrick Ilickey.

*''o What other 'icts do we llnd? On the ll>th day of June
of this same \ -, v, \xs^>, .'Junsit' i»urcbased from Mattliew-
soii tin.' one-tl r-l interest iii the "Carolena," which the
latter b.nl acirnred fro' ''.iptain Urquhart and I'atiirk
llirkey.
Now, if tluie peculiar considerations, as suggested by

>*',

727

(Mr. Warren's Argument.)

tlic learned counsel for Great Britain, were inserted in
thisp bills of sale for the purpose of deceiving Hickey, I
nsk the learned senior counsel to infoim us when he re-
pliis why the sum of $667 was inserted in the bill of sale
fxrciited by Matthewson, conveying his one-third interest
t(i William Munsie. Was Matthewson interested in con-
liiiuing this fraud for the purpose of deluding Patrick

10 111' key? Patrick Hickey and Captain Urquhart had no
iiKUV to do with that vessel on the IDth of June, 1885, than
I have to day. They had parted with their interests.
Will your Honors be influenced by the argument that
Mniisie, who bought this vessel from Urquhart and
Hickey — admitting that he consented to the inser-
limi in the bills of sale frcin Urquhart of a ficti-
tious amount for the purpose of defrauding Hickey — was
XI -reatly interested in that gioss fraud that he would
vdluiitarily continue to insert these fictitious considera-

2otiiiiis in all instruments conveying or affecting the title
for the purpose of deceiving Hickey after Hickey and
Iriiuhart, the parties to the original transaction, had
parted with their entire interest in the vessel? I think

lint.

It we are to be convinced by argumcMit that William
Munsie would so lend his off(nls for the purpose of de-
trauding Hickey, we might more readily believe that he
is now endeavoring by false testimony to conceal the in-
terest of Andrew J. Bechtel in the •• Carolena."

;o Tcople do not act so consistently and gratuitously for
till' purpose of maintaining a fraud in the interest of
other i)ersons. When a fraud is sought to be i)erpetrated,
ill some way or other, it will be exposed; and if a fraud
had been here attempted against Patrick Hickey, at this
time, it would have been brought to light right here when
Matthewson sold to Munsie, for a dilferent amount would
have been inserted. Did Unjuhart or Hickey have any
iii;lit whatever to dictate how much Munsie should pay
and Matthewson receive, or Urquhart have any interest

40 whatever in causing a fictitious amount to be inserted in
thr conveyance from Matthewson to Munsie? I think not.
Tiie use of the same consideration in the bill of sale
from Matthewson to Munsie abundantly and conclusively
establishes that amount as the real value of one-third of
the "Carolena." If William Munsie testified falsely re-
jiaiding the consideration inserted in that bill of sale when
he said it was not the real consideration, he swore falsely
111 ( cpiinection with the consideration expressed in each of
the other conveyances, and the mortgages, and his testi-

yinioiiy should be stricken from tht* Hecord, and the con-
trary of the proposition for which he contended found by
your Honors.

Munsie acquired on the llHh day of June, 1886, the re-
iiiainiiig one-third of the" Carolena." On that date ho was
registered as the sole owner, if your Honors please, of the
entile ship, that is, beheld the paper title to 6-t shares.
What (lid he do on the l!>th day of June when he held, as
tl • papeis show, title to the entire vessel? He did exe-
cn'e on the 4th day of February, when ho owned two-

iioliiads (tf the vessel for which he liad paid !i(l,;{IU, a inort-
f,'a,i;e covering one-third to Andrew J. Bechtel for ^6f)7 as
slated in the instrument. On this day in June, iss.'), he
e.\( 1 iited another mortgage to Andrew J. Hechtel, and for
Imiw much? He canceled the mortgage for ^6(>7 and
si^ii'd another mortgage for the sum of what! one half of

ikj

H t;

^ww

728

(Mr. Warren's Argument.)
I?3,8()0 or $l,!tOO? No. If your Honors please, he exec u:

a mortgage whicli recited by its own terms that it wa-- ;.if
the sum of !?1,0(M), and what did that mortgage cdv. ij
Not the entire ship, but one-half, or 82 shares. Pecn iir
transactions, these, that in every instrument tl. le
should be expressed this consideration wliich aj;i
with Hickey's testimony and disagrees with Mniisi.

10 that in the mortgages to Andrew J. Bechtel not only '
same consideration sliould be expressed, but exai
one half of the interest that William Munsie had
the date each of the mortgages was in turn exocin
shonld be covered. I reiterate that these were pecul
transactions, justifying us in drawing the conclusion ihit
these mortgages were nothing more than receipts sliuu
ing the interest of Andrew J. Bechtel in that ship .ml
conelnsively establishing that he was an owner of (iiii>
half of the bottom of the " Carolena."

2o Tliis last mortgage for l{>l,0(tO by its terms, does not l'i;u
interest; the interest clause is erased. What beside th n is
stricken outi! That mortgage does not become due at ;> ,
time; there is no date stated in the mortgage when it .ail
be foreclosed; no time s])ecified when Bechtt'l shoul'; li.ive
the right to take that ship unless tlie money w.is pnid.
What else was left out of that mortgage? The powci of
sale clause is avoided by the date being omitted. Is that
an indication that the instrument was a mortgage?

William Munsie swore that in the first mortgage ^ilf,;

30 of the |!(lt)7 was inserted to cover interest, although when
examining the mortgage we discovered that it did not licar
interest. At the time of the execution of this soidiid
mortgage the sum of ^i,()0o was borrowed accordiiij; to
the testimony of Munsie (llecord, p. S!>, line 50). VViiy. I
ask, was not the same amount inserted in this secmid
mortgage to cover interest? Tlie mortgage itself was I'di
the sum of ^l,On(» and the amount borrowed accordin;; to
the testimony of the witness was ^l.nttO, therefore no simi
was inserted to cover interest, and by the terms ot the

40 mortgage itself it did not bear interest. This fact is almost
conclusive against the contention of the witness that tluse
documents were hotia Jhlc mortgages; but let us refer to
the testimony of Munsie and Bechtel explaining wiiy tiie
interest clause was erased. Munsie testified, Record, page
90, Hue 7:

" Q. Wfts that the usual aiiiouul cliarpoil at that time ou loan-; of
"that iloacriiitiouV A. Yoh, that was a fair rate of interest iii those
" dovs. "

Bechtel testified, Hecord, l.")2. line \iO:

" Q. Mr. Bechtel, whv was that mortgage expressotl to he witlMUit
" interest? A. The mortgage for SI, (MM)?

"Q. Yes, sir. A. Well, the rate of interest Mr. Munsio thi.iit;lit
" was a littlo high and he did not like to have his business exiin'-tcl."

But our friends may say tliat William Munsie in onici
to register this ship swore— William Munsie swore that
he was the Ixiiia fide owner of the entire shares. It is a
wild conceit, I repeat from Lord Stowell, that im re
swearing influences the judgment of any court, it is
6oHwearing credibly, upon which a court bases its judginnit.

Some receipts were produced— some of William Mini-
sie'srecei|»ts— showing that be had paid interest to Bechtel
on this mortgage. Your Honors will remember tlmse
receipts, and if yon will take the trouble to

7i!lt

,'> *

lli

(Mr. Warren's Argutneiit.)

n i I'osh your recollection by examining them, they
wll present all the argument that is necesssary. I hold
tl.iin in my hand. Tliey extend over a period of five
vi.irs. Every one looks just like every other one; not
ii litference in the pen used. They are numbered from
I lo 1^ consecutively, extending over a period of five
v us; tiie same printed blank used for all. although they
(•'vor a period of five years, during which time this man
I',! I htel evidently kept one receipt book for no other pur-
lii.-e than giving receipts to William Munsie when inter-
t^i was paid. Did any couit of justice in the world ever
hi ar of twelve receipts being signed, one each six months
fill ring a period of five years, in the same writing, with the
iiaiiie colored ink, the same pen, and ail bearing on their
fail', every physical indication of being exactly the same
ai;v< Does the learned counsel for Uieat Britain suggest
that we make use of mild and refined term:; in speaking
^iich transactions as these?

Tlie pfl'ort of William Munsie was to explain away these
figures in order to increase the value of his ship and con-
cial the irterest of Andrew J. Hechtel. He was one of
till' tirst witnesses examined. His testimony lomniences
at iiage !>(! of the Record. He attempted to do whatif To
osiablish that Andrew J. Bechtel was not interested in the
'• C'arolena," and that these bills of sale and mortgages
w I re irregular and not to be considered. Why did he re-
i|iiist the counsel to allow him to do that? The burden of
,QliiiK)f, if your Honors please, was asserted by the senior
■^ ((Minsel for Great Britain to be on the United States to
otablish United States ownership, and that order of proof
was maintained in every other claim. But Munsie en-
deavored at the opening of his case to show that these pa-
piis were irregular and did not mean anything.

Thi' reason for this attempt on the part of Munsie is ap

|i II flit. As early as issit, the claim was advanced on be-

iiall (if the United States as set out in V(il. 3 of the Amer-

i(aii Reprint, page 4!t7, tliat the '"Carolena" was partly

.Qiiwiit'il by Bechtel. 1 read:

•• Tlie 'Clnrolcna,' tliough uudor the British flan, was ownod une-Lalf
• liv au American uamod Bochtol, who furuirthod also tho money for
"tlio outtit. Bot'htel was also interested in the British sehoonerB
■ • Maiy Taylor,' ' Pathfinder ' and 'Viva.' "

■\

■ 1'
■,i'X-

to lie witliniit

Was Andrew J. Bechtel interested in the " Mary
Taylor." "Pathfinder" and " V'^iva," your Honors? This
rrinid coiulusivt'ly establishes that be was. and it is fid-
inilli'd by the counsel for (iivat Britain that he was inter-

;ot-iid ill the venture of every one of those ships. Was he
al-ii interested in the " Carolena," the only one of the four
vessels, the value of which is claimed from the United
Slates?

This letter or report from which I read was written in
the ( ity of Victoria by T. T. VV'illiams, in October, LSSD,
fei it "hears date " Victoria, B. C, October 1st, 18S!>," as
show II at page riUi") of that same volume.

William Munsie then was notified that the United States
\vi le |iroparing to establish that Bechtel was owner of one-

(jolialldf the " Caiolena," and he therefore rever.se(i the order
ol |iroof followed, I reiterate, from that day until page 2<i02
of this Record was pMinted, and sought to establish that a
titi/eiiof the Uiiited States was not interested in the
"Caioloiia," when, according to the contention of the
counsel for Great Britain it was the duty of the counsel

730

(Mr. Warren's Argument.)

for the United States to establish the contrary of thai
proposition.

The Commissioner on the part of the United States:
Do you refer in tiie printed argument to the fact that
Beclitel was interested in the venture?

Mr. Warren: — As to the otiier vessels it is admitted. We
have no proof that he was interested in the venture apart
10 from the ship itself. We contend that he owned one -half
of the ship, and was equally interested in the venture.

The Conunissioner on the part of the United State.s: —
I understand yuu to say Mr. Bechtel advanced the nioiuy
to fit out the " Carolena?"

Mr. Warren: -I read that from a book if your Hoik us
please.

The Commissioner on the part of the United States: -
Is there any pioof in the Kecord that Beolitel ever tuuk
any control of the " Carolena?"
20 Mr. Warren:— I will come to that, if your Honor please,
in a few moments.

I was discussing these receipts which extend over a
period of five years which were produced by Mr. Muiisie.
I have shown that the same blanks were used; tliat
they were wiitten wit'' the same ink and the same
pen. What did Mr. Mi.isie testify about some of tlu'?e
receipts; that some of tiiem were duplicates and were re-
ceived from Mr. Bechtel recently. 1 quote from his testi-
mony: " When I was gathering up my papers I asked Mr.
30 Bechtel to give me a copy of the receipts" (Record, page
90, line 14).

Mr. Bechtel unfortunately for Mr. Munsie was after-
ward a witness. What did lie say about those duplicate
receipts. I read from his testimony (Record, l.'ij, line 1 1):

" Q. Ho came and asked you for those duplicate receipts, diiln't
" he, since he began to makeup his claims here ? A. He has nover siiid
•' any thing to me about those."

Refined terms to be used in talking about Mr. Munsie
40 and Mr. Bechtel I William Munsie swore in order to ex-
plain away their physical appearance that some of those
receipts were dui)licates. Andrew J. Bechtel was not
present when William Munsie was testifying, and betook
the stand and testified that he never talked with Mr.
Munsie about those receipts; and when a'^ked (Reconl,
151) to select the duplicates, although all the receipts hear
his signature, he was unable to do so, and confessed tliat
he could not detect any difference between the originals
and the duplicates, although some of the receipts \vt)iikl
50 be, at the time he was testifying, eleven years old.

The Comi lissioner on the part of the United States: -
Was that question followed out, Mr. Wairen?

Mi'. Warren:- Yes. your Honors, I am about to read
the testimony (Record, 151):

" Q. Ho came and asked you for those duplicate receipts, didn't lio,
" since he l)ef{Rn to make up his claims here V A. He has never suiil
" anything to me about those.

" y. About giving duplicate receipts when he had lost some '? .\.
" Oh, this was a long while ago. He told me that he had lost our or
61^ " two receipts."

WMiat kind of testimony is that? Would Lord Stowell
say that was swearing credibly, if your Honors please,
when the two owners of this vessel, as the United Stales
claim, take the witness stand, each in turn, and positively

oiir Hoik 118

3ut to IV.'ul

731

(Mr. Warren's Argument.)

(uiitradict each other about a matter so important as the
M :,Milarity of these receipts?

riie Commissioner on the part of the United States:— I
liiouglit away from Victoria very distinct impressions
alioiit the testimony of Mi". Munsie, but I do not see your
[mint here as yet. The questions had a little uncertain
sdniid. He avoided answering, or did not answer them
lodin'ctly, but the last question does not seem to me quite
1(1 support tbe proposition that they contradicted each
(it her. It may he there somewhere, but it does not seem
t(i me to quite warrant that proposition.

Mr. Warren: -I will continue reading. He commences
hi> testimony at the top of page U>{ in regard to these re-
tcipts as follows:

■'<). Are thoso original receipts, all of tbem"?"

Now, if your Honors please, those bear the signatures of
:o Andrew J. Bechtel. His answer is, " I should think so."

■'Q. Were you ever called upon to give dnp.icates? A. I believe

■ Mr. Munnie at one time asked me to give a receipt, that be had lost
• Olio or two; mislaid them or Homething; I would not say what ones

•• tlicy were,"

and then he gave the testimony I have read; that it was a
long time ago.

The Commissioner on the part of the United States: —
Was that question followed upi
30 -Mr. Warren: — "Q. You cannot distinguish them now,"
is the next question.

•' A. No, I could not.

■'{). Do you keep a stub to these receipts? A. There was a stub,
•• liiit where it is 1 conld not say, it is so long now; it is almost ten
•• years.

' Q. He came and asked you for those duplicate receipts, didn't

■ lie. since he begun to make up his claims here? A. He has never
" Miiil anything to me about those.

■' Q. About giving duplicate receipts when he had lost some? "

40 Then the witness apparently commences to think about
this tiling for he replies:

" Oh, this was a long while ago; he told me that he had lost one or

■ two receipts.

■■(). About when? A. It must have been five years; at least four

■ yi'iirs ago."

Mr. Warren: — Why did he say that? Because he had
said he could not produce the blank book containing these
Idrins. The counsel for the United States had questioned
50 Mr. Bechtel about the fact that these receipts were nuin-
liind fioni I to 12 consecutively, and Mr. Bechtel, if he
;:.iv(' duplicate receipts to Mr. Mufisie at the time Mr.
M I msie gathered up his papers, could have produced more
blanks like those, but Bechtel had sworn that be could
nnt produce the blanks. Therefore, he had to swear it
wa-^ four or tive years ago that he gave Munsie any re-
(X!|its, if he did give him any.

.\i)\v. the testimony of William Munsie, which I read
tnmi page !Kt, line 14, is tbis: " When I was gathering up
Cioniy papers I asked Mr. Bechtel to give me a copy of tbe re-
oi|its," and it may be uncertain at what time Mr. Munsie
gathered up his papers, but if your Honors will inspect
the ntl)er vouchers which are in the possession of the Sec-
1(1 II V you will tind that tbe vouchers were gathered up
wiihiii tbe past year.

fi.

!t i

.H'l ii

j, h ■

782

(Mr. Warren's Arguniont.)

Mr. liodwell:-- Do you say tliat they were not sent n
with the original claims^

Mr. Warren:— I fay that they were not all, and 1 k-
tlie Secretary to produce the vouchers, and I will dem li-
st rate the fact that they were not.

Mr. Bod well:— That he did not send on vouchers uih
the original claims?
lo Mr. Warren:— Is tliat what I stated? I said tlh ^o
vouchers.

Mr. Bodwelh— Are those the receipts on the mortRiiu";

Mr. Warren:— I am not now talkniK ahout the receipts
on the mortgages. I am discussing what William Mun-ic
meant when he said, " when I was gathering up mv
papers." There is no douht concerning what I am t ill<
ing ahout, if your Honoi-s pleas-e. Did William Miui-^ic
send those receipts on the mortgage to Ottawa to show he
had paid interest to Andrew J. Beclitel when the stuic
2oment at Ottawa did not mention Andrew J. BeclihH
The learned counsel apparently wishes me to state tliat
these receipts went on to Ottawa when William Miiii>i(>
swore at Ottawa that Bechtel had nothing to do witli ilie
claim. These are the papers I am now^ talking ahoiit.il
your Honors please, and I ask you to look at tluH'
vouchers, known as Exhihit No. 10 G. B. Claim No. 1. ami
determine when they could have heen gathered up liy
their appearance (exhihiting vouchers to Commissiomisi.
Those vouchers were rearranged for presentation witliiii
30 three months of the time we arrived at Victoria, for sniuc
of tliem are duplicates, as testified hy Munsie, and ail aiv
backed with new paper and endorsed anew.

The Commissioner on the pait of the United Htatcs:-
Did lie say that he referred to these vouchers? I did imt
so understand his testnnouy.

Mr. Warren: — He says, "when he gathered up lii<
papers," and that means papers relating to this claim.

The Commissioner (m the part of the United States:—
Those words aie very indefinite.
40 Mr. Warren:— If this case depended upon this ti sti-
mony, if it please your Honor, they would be vet y in
definite, hut when we have not only this testimony Imt
other testimony to which I have already referred, uid
other to which I shall refer, wliich is more definite, we aic
justified in disclosing this contradiction.

The question to i)e settled is that expressed bj' th(> C'lun
missioner for the United States, whether William Miiii-ii'
referred to these pajiers or not I admit that. If he diil
not, if y(»ur Honois jdease, what jiapers did he refer to!
50 Those are the only papers that Munsie brought before this
High Court at the time he was testifying. They were the
only papers he had any occasion to refer to in the ( a-e,
because they were the only ]>apers which have any ron-
nectiou with the claim of the " Carolena." I stated that
this was not the (^ily testimony upon which this cl.iim
depends. It is very iinniaterial, |)erhaps, but 1 have ( on-
sidered the i)apers themselves, the mortgages, the bill> et
sale and the peculiar amoinits that are set out in tlieiii,
and now come, as I said I would come, to other false tt^ti
Tio mony of the witness William Munsie.

The learned counsel for Great Britain criticises a state-
ment found in our argument at |>age ;{!1", which read> as
follows:

" Tlip presentation of tliiH cliiiin (the 'Carolena') in the arfruiiniit
" on behalf of Oreat Britain, radicnlly differs from the claim iis in-

•;w

(Mr. Warren's Argument.)

-I'nted by tbe testimony of tlie claiinantH nt Victoria. Tho evidence
'IVered relatiug to the uoBt of Hupplyiu^ MnnaieV trading Htation,
tho coat of equi]>])ing a Healing vpskcI for u liiiuting voyage on the
' west coast of Vancouver Island, before the departure of the shij)
■ fur the voyage to Bering Sea, and the vouchers placed in evidence,
i^rgregating about 8(>,0()0, which, according to the claimants, re])re-
• I'lited the cost of outfitting this small schooner of 28 tons for a
■ ciiliug voyage in liering Sea of two months, received no considera-
tion in the British argument."

The learned counsel said that William Munsie never
( liinied that this money was spent for a scaling voyapeof
two months in Bering Sea, but that the vouchers on their
fill disclosed the fact that some of the goods were pur-
cli.i.-^ed in February.

Till' counsel departed from the original claim when he
stated that William Munsie did not claim that the goods
\v. re bought for a trip to Bering Sea. The fact is that.
Munsie did claim they were purchased for a trip to Ber-
20 ill- Sea. At Record, page 135, he testified regarding this
|iiiicliase:

■ Q. Were they put on board of her to trade? A. No, thev were
•• nut.

•■ Q. What wore they put on board of her for? A. To go down niul
" I'l-iiciii'e //i"' crew o/ IiKlians, come hack here Id fl/ oiil/or liering Sen, mip-
" I'lien enoiif/h, prodisinim/nr the crew und the Inilittiis.

" (). You don't know what trading they did? A. I do not.

•• (). Never was reported to you? A. I don't remember.

" Q. Any sealing done on that trip? A. I believe she bought from
'• the Indians."

Hought from the Indians! Any sealing done on that
tiipl if your Honors please? We have the testimony of
till' witne.-is Serault that the " Carolena " went to the west
c.iiist of Vancouver Island, took on board six or eight
laiiiies, hunted up and down the west coast of Vancouver
Island, took seals, landed them on the shore, went out
au till, took more .seals and regularly hunted on the west
tvist of Vancouver Island in tbe month of February and
ilnl not return to Victoria until May. Did Munsie forget
.qIImI fact, if your Honors please? That was the first time
111' \\ as ever interested in a sealing voyage.

I ivlei' to tlie testimony of Serault because I have stated
that I intended to confine myself entirely to the con;ilera-
tinii i)f the testimony (Record, page 042, lii j 12).

" (). l)u which trip of the ' Carolena ' did he come to Victoria ? A.
'• I tliiiik it was when thevipiit sealing on the coast, as near as I recol-

••I.Tt."

■ (,)uit .sealing on the coast," if your Honors pleasel
\\ litu; In the spring. As I said in my argument yester-
■' (lav in connection with tbe "WandiMer" claim, spring
scaling, or what is called spring sealing, as distinguished
fmiii tiu! catch on the way to Beiing Sea, ended about the
tiiiM' tile "Caroleiia" came back to Victoria (, Record, (i45,

lillr 41 I.

"I,). Were there some other Indians? A. Yes, sir.
■' i,>. They went up there first and before the canoes were put on
" I'laiil, and went sealing in the spring, in I'ebruarv, on tho coast?
•• .\. V.'s.

. How manv Indians did thev take on that trip? A. I don't
6o--Li,.iw.

• I). Did you see any Indians? A. Oh, certainly.
>). They wont oi>. board the ' Carolena '? A. Certainly.
\>. 'iliey wont off on the trij)? A. Yes."

I lie counsel for tho United States went into this niatter
Willi great particularity. What for? Because William

Ih'

H' ■- I

i!,,

M' M

784

(Mr. VVairt-n's Argumi'iJl.)

Munsie. if your Honors please, had denied tliatthu "Caio.
leiia" sealed on the coast in February, and it is on the lis.
tiniony of William Munsie that the counsel for (iii it
Britain rely, to prove that Andrt ' J. Bechtel, an Americm
citizen, was not interested in the "C'arolena."

Mr. Bodweil:— What is the page of the Record win i>.
Munsie says they did not do sealing^
lo Mr. Warren:- Page 1:^.5, line 4.5. t continue to read ti id
Serault's testimony (Record, ti4.5, line 4!»):

" Q. And tliey weut up the coast Hoaliug? A. Yoh.

" Q. And they eauie Imck? A. Yes.

" Q. Anil they stopped where? A. Stoitped at their place— tlnir
•' houie.

" Q. How many Indians went on that trip — the first trip — whin 1 lny
" went sealing ou the ooastV A. That 1 don't Itnow. 1 tliink it was
" six or eight eanoes the ' Carolena ' earried.

" I). They earried six or eight eanoes on their first trij)? A. I il.ai't
" remember how many she took.
-_ " Q. Hut they took eauoes on their first trip in the spring? A. ^ os.

" Q. And did tliey take Indians to man them? A. Certainly.

" Q. And how were the Indians armed? A. Thoy had guns iunl
" spears.

•' Q. How many Indians to a canoe? A. Two.

" Q. And they stot>ped on the way back and lelt the Indians ulV
•' with the excep'tion of Indian Jinimv? A. They run in and out all tln'
" time."

Again, at pageWti, line 1(»:

■' Q. Did the other Indians come to Victoria? A. Well, when (licv
" stopped sealing otf the coast thev came ashore.''
30

Ran in and out all the time on the west coast of \ an
couver Island sealing, using up the provisions which tlu'se
laboriously honest vouchei's and the testimony of Williarii
Munsie reiiresented, went on board for a voyage of two
months in Bering Sea.

I have lead Munsie's testimony where he stated that llie
" Carolena" went up to the west coast of Vancouver Island
for the purpose of procuring a cresv of Indians, and bring-
ing them back to N'ictoria to niake ready for the voyage
40 to Bering Hea. Is there any difference between the testi-
mony of William Munsie and John Serault here* Is tliis
the kind of testimony that Lord Stowell would say is cred-
ible testimony, such testimony as a court bases its judj,'-
meiit upon? William Munsie says he s«?nt the boat u|p to
the west coast of Vancouver Island to bring his Indian.s
back to Victoiia so he could .send them to Beiing Hea, and
he made a claim at the time the testunony was given fur
the value of the supplies consumed.

Mr. bodweil: — Munsie iu the same place says that lliu
50 " Carole I ;a"'^

Ml. Waneu: -I am perfectly well aware of what xMi.
Munsie says. 1 read his testimony.

Before taking up the consideration of the testimony uf
Andrew J. Bechtel I wish to state that my attention lias
been called by the counsel for Great Britain to the testi-
mony of Munsie. 1 ask your Honors to consider this
testimony, at Record, page 13"), concerning these supplies:

" Q. Were they put on board of her to trade? A. No, they were
not."

Again he says:

" Q. Any sealing done on that trip?
the Indians."

A. I believe she bought fioiii

Now, counsel suggests that when he so testified lie
meant that she bought skins from the Indians with these

735

(Mr. Warron'a Argnmont.)

previsions. But he had just stilted that the supplies were
lUii k at on for the purpose of trade.

What more did he do? He jtroduced Owen Thomas as
a witness, after tiie cross examination of Charles Spring
(H' ((.rd, 242) had disclosed that tl»e " Carolena " had hinded
supplies at the trading station on the west coast of V^an-
L'diiver Island, and Thomas testified (Record, 2r>7, line 32)
loiis Idllows:

■ Q. Wliot ilid you go there for? A. For u crew of Indians for Belir-
■' iii^' Sen.
" {). Did you get the IndianH? A. No, Hir.
•■(,). Did you take Home Bajii)li«8 down thereV A. Yes.

■ (,). What were you going to do with the HUppheH? A. Qoing to
• ficd the ludianH.

" (,). To keep the IndianH? A. Yes, sir.

• (,). Was it your intention to laud the supplies? A. Yes, sir.

■• {.). After you found out that the ludiaus wouldn't come, what did

■ vcpu do with the supplies? A. Took them ahoard.

'■■(.}. Did you or did you not leave any Hiip))lies there? A. No.
-'^ ■(.). You got no Indians? A. No Indians; the v would not go.

•• (), How long were you at this place? A. Quite a long time there.
■'(,). What were you doing there all the time? A. The vessel laid

■ llii'if and wo tried to coax them to go.
■•(,». And you failed? A. Failed, yes.

" (,). And then you went wliere? A. To Victoria.

• Q. Direct? A. Direct, sir.

■ (). Stop at no other place? A. No, sir."

This witness, Owen Tliomas, was actually brought into
Com thy William Munsie, who went to the hospital where

jOtlic witness was ill and himself brought him to the Court.
His testimony is conclusively established to be false, for
Suianlt testified that the "Carolena" did se^l on the
((last in 188(1, hut William Munsie produces this witness
fill the purpose of establishing the fact that the vessel did
not limit seals.

The attempt of Munsie was to compel the United States
to pay for every dollar's worth of |>rovisions and to re-
pla( f in his hands every dollar be had paid out on the
^rouiul that it was for the voyage of the " Carolena "

40iii isst; in Bering Sea. That was the leason why he
put in all of these vouchers because, if your Honors
liliasc, if that was not his idea, why were the v jch-
ers placed in evidenced Why did Munsie testify .s to
what was put on board tliis vessel in February un-
less the United States was to be asked to pay for the
aiiic (iiit expended? This man wilfully- I say it advisedly
- attempted to mulct the United States in damages for
^upplies which he alleged were used on the voyage which
was interrupted by officers of the United States Oovern-

y^mciit, hut which were actually used 'n^ Li;e west coast of
Vancouver Island, during which tiM" Mie vessel sealed
ami traded on that coast and earned money which Wil-
liam Munsie received.

The attempt of the counsel for the United States was,
in ciiiss-examining Munsie— and your Honors will roinem-
licr it distinctly — to establish that a large portion of these
t;oiHis and supplies that were put on board these vessels
were used for the purpose of supplying his trading station
on t lie west coast of Vancouver Island and for the pur-
pus.'s of sealing in the spring, but William Munsie denied
iliit, and it was not until the counsel for the United
Slates developed the fact beyond any doubt that Munsie
was attempting to deceive this High Commission that the
t;iiis concerning the sealing voyage on the west coast
wciv disclosed.

lM-1

III

786

(Ml'. Warren's Ai^miu'iit.)

The CoinniissioiiiT on tlio part of the Uiiiti'd States |
tliink I nskod yon, and jHTliapH yon anssvcivd, hnt I do .t
i'(nn»>inlier catchinji thMansvv»>r, ni snbstanco, wlietlit'itli iv
was any evidcnci' Hhowing that Mt'clitol took contml ..f
this vessel, except in regard to some (Jispnted facts of i he
case. Is tliere any evidence in the case that any of ilie
snpidies for the "Caroleiia" at Viclocia were pnrcha-.il
10 by BediteU

Mr. VVairen: -1 am jnst now coming to the connec i, u
of Anchow J. Bechtel with tlie " t'aiolena." 1 was ali' m
to say that Bechtel was called at, u witness by the conn .1
for (ireat Britain and testified on directexaminali' ii,
page 147, line (l.'i:

"Q. Auil you wori' ou board of hor before bIio Hiiih>il V A. Yes, -n "

This testimony refers to the last trip of the " Caroleii i,"
for jnst before, and on the same page of the Record, iho
20 witness had said that Captain Ogilvie went away in l^-^ii,
and never retnrned. Hedidieturn from the coast tup.
And the next ipiestion at the bottom of page 147 disdnvrs
that the iiujuiry was concerning this last trip for the wit
ness was asked about the provisions aboard when --Ih'
sailed.

He was cross examined at l)age l;");}, line 150:

" (.}. Whou you wout on the Hliip, ilid you k<> below? A. No, I iliil
" not."

30 That was when the " Caroiena" was lying in tiie bailor
at Victoria. Continuing, t witness said:

" Q. Didn't Ro below? A. ] 1 1 did go in the onbin.

" Q. Didn't go below ontc una(?t> deck — below deekK to

" see what tiipy Imd on l>o»rd? A. Not in the hold where they Kipt
" their Hni)i)lies.

" i). What did you go there for? To say good-by to Ciiiitain
" Ogilvie? A. Yes, sir.

" (.). Ever l)een on her before? A. Oh, yes; I hod been on hci
" severnl times.

" Q. ,Tust wout on to visit the cajitaiu? A. Yes, to see the caj'tiin.
40" th'il is, ill."

I call your Honcns' attention to the testimony of
witness John Cotsford, Kecord, HTT), line 2:

" Q. Whom did you tell this to? A Mr. Hechtel.
" (). Was Mr. Beehtel at that trading j)ost that spring? A. Ho loft
" here on the schooner with us and went down."

Be< litel, vvlio said he went on board to say good-by to
the captain, sailed in this .-chooner for three days to tiie
west coast of Vancouver Island when the schooner left tor
5" the voyage to Bering Sea.

" Q. On what schooner? A. The 'Caroiena.'

And the counsel for the L'nited States was hero greally
surprised and put these questions:

" i). Mr. .Tohii A. Bechtel or Andrew Bechtel, otherwise called? .\.
" Andrew ]{echtel.

" Q. He started ou the sealing voyage? A. He loft here on the
" 'Caroiena.' and went to Clayoiiuot with us.

" Q. You knew him ]>retty well, did you? A. Yes, sii- I knew liiiii
00 " j„.f.ttv well; I had been acquainted with him a year oi' two bcfiTo
"that."^

" Q- Was he carried off ou the 'Caroleno' by mistoke or agniust
" his will? A. I tliink not.

" Q. Ho did not say good-bv to Captain Ogilvie before he cairitd
" him away, did he'/ You didn't hear anything about his cominfr I'li
" board to say good-by? A. No."

(Mr. VVunoii's Argumt'nt.)

I <iill your Honors' attention to tht; testimony of James
Mi liner. <i lirother-iii law of Mcclitel (Itcconl (!3I, line 49):

(). It h«« been ntutiul tlmt Mr. Ut'rlitdl was on lionrd nt tho time
'■ -lio went up; iH that f«)rroot? A. Yeg, he wout up with ub."

I refer to tlie tostiinoiiy of David HiiHHeli, page 589,
liiM' iS5;

'" ■ 1^. On that trip upon the ' CnroU^ua,' tUil you iitop anywhere? A.
'■ W 1' Htiiiipeil at Clayi)(|Ui)t,

" (). VVuH John A. Hei-htol on board when you loft hero and Btoppod
'• iliorfy A. Yos, sir."

standinft alone we have the teatiniony of John Andrew
Ht I litel, this United States citizen, testifyiiij? he vveut on
tic 11(1 that schooner to say good-by to the captain.
(»| posed to him is the testimony of three disinterested
wiMiesses who say that he not only went on hoard the
vt'-scl, hut sailed for three days and was landed at Clayo-

^'^t)!!"! on this very voyage to Bering Sea. Anything aiispi-
( lulls about the testiniuny of Mnnsie and Hecbtel? I ask
i- I lure any reason why your Honors should l)elieve either
(il llies(« witnesses in tlus face of that testimony? I eon-
tciiil ilijit the testimony of both these witnes.ses regarding
til' II iiiteiest in the "Carolena" shouhl he stricken from
tliN Kecord and totally disregarded.

I read from 1 Christonher Robinson, t)age 255, whtn-e
1,111(1 Stowell connneiit('(i upon a case, the facts of which
;iii ;iliiiost identical ui h the facts concerning which John

-■' A. I'.echtel was here It stifying, and I ask your Honors to
fi'.isidei' tiie conclusions to which Lord Stowell came in
ri'K'id to testimony of this character.

Mr. Hals was tho captain of the ship and a man named
Kiniiiie was on board the boat, and the question l)efore
111! (iiiirt involved the status of Ellniore. Lord Stowell
cdiiiineiiting on the rule/o/.sHS in itiio, falsns in onniilms,
saiil;

■ Now, to apply this test Mr. Hals (to whoso projudieo I am unwill-
il|^' til strain auythiuK) says iu positive tornis, ' that tlioro were seven
I'ii^sciij^erH on lioard tliis vessel; their names were John Klmore, John

■ I'.wiiifr, f XV,) ehildreu of a Mr. Eude of Bengal, a child of a Captain
•■ I'iiwi's, a black servant belonpfiug to tho same ehildreu and a black

■ >" rviuit belonging to the second mate; that the said John Elmore is an
" lii'^liiimn, formerly master of tho ship, and at times assisted the de-

■ ]"'iH'iit in the navigation of her.' "

l"liii A. Hecbtel says that he was not on board that boat.
T'li A hilt i-easoii^ For tlu' purpose of removing the pre-
siiiii|ili(iM or belief fronj your Honors' minds, created by
tln' .iiiiiearaiice of the- papiMs that were in the case and
.W||ir testimony, that he and Munsie owned this ship. He
\vi-hi(l to deny that h(! was ever on board tho "Carolena"'
<>i rvei had aiiythiiig to do with it, so he said: •* Yes, I
\vi 111 nil board to say good-by to the captain. My statno
w;is imt tliat of an owner; 1 did not go out on the voyi.<.;e.
I "as a friend of Captain Ogilvie and I went there to say
gi'"il liy to him."

Ni'w, what did Lord Stowell say about that kind of tes-
iiH'iiv;

CiO "Niiw, it does happen that Mr. Elmore himself is exomincd; and
" lii^t. what does he say witli respect to the i)asseugersy He says
" tiuiT wfi-,' four jiassongers ou board; Mr. Ewiug, an American, iiud
" iliiii' cliildren, whoso uaiues he meutious. According, then, to this
" :i. .uiiiit, there were ouly four j)asseugcrs, of whom he docs not at
" 'ill number himself as one. He is asked iu another interrogatory,
" ill what capacity he belonged to the ship, he answers; ' That he was

l<'l

1 i

73.S
(,Mr. Wanen's Argument.)

" sea pilot or navigator, and that he was engaged to go iu that cli m.
" actor upon tbis voyage.' He liaH not thought it ueceaaary to hioiiiimh
" upon what terms. But he says this official oharaoter diil liclou^; (,,
" him; he was an olHoer on board the ship and so api)oiuted liy Mr,
•' Keating. Now, if this be the case, I ask, is it a true represeutiil':..]!
" or a false one which Hals has knowingly given of this matter? I i,is
" question must be determined by what every man must underNtaiul
" Hals meant to convey re8])ecting the situation and character of | ;|.
" more. If he meant to convey this impression, that Klnmre \v;i a

10 " i)assenger and a passenger only, who occasionally lent a liaiul 1) m
" mere inclination, is not that a gross falsiticatiou on the part of IImN.
" who Vieing the master of the vessel could by no possibility be inno-
" rant Jhat Elmore was on board this vessel as a hired ofticeron iicnu-
" tract with their common owner? Ttikiug it in l/iis riiu; / finiK,/ i.ii
" think t/iiil it iriiiitil lieii iiiokI idiiKitiiriil slrniii nf ilmrilii, sue// (w musl ■lo
" riijlence Iu <nni iiiiin'n iiii(lir^tiin(liii</ <,/• his niinci ill/, nut Ic jii mnn.ni, l,,ii
" Hills /'iiK must i/rossli/ iirtruririilcil iu his lejiii'Sfiitdtiim 1/ this n,,,: . ,-.
" And, ihei'i'/urf, ii-hultn r his i/tninil vhannltr muj/ I'O, uhaiit ii-hiili '■■,,/
" Diitci iis hiire luitt iiiiiih', that must lie e.rtrm'li'il frinn other mulfriuls, in ,,.
" /oiinti elsrirhrrf ; Init/riin irhul is/onjiil hiii; Iain uihIit llir nrrrssin, >.f
" )ii,ldi>i(i him II ivilniss iitliflii unicorlliif of nil cri'ilil In this miisi' .- .i,,./ /

20 " "'".V rrntiiri' to sirikv his mntv out of Ihf list of iritnessvsfn- Ihr nu;..,
" reiison."

These three witnesses conclusively eslalilish that Andrew
J. Beclitel swoiv falsely wlien he testified that he weni dii
hoard the "Carolena" to say K*><''Jl'y to the cfiptiim.
The wiine.^s inidouhtedly thought tliat if lie said tlial lio
was aboard vessel on that voyage, the cdnclnsioii Wduld
he drawn hy your Honors that he was a part owner ot Ww
"Caiolena,'" and he therefoie desired to appear in no way
connected with the voyage.
30 J^eaving that testimony, we have his testimony at pai^e
145, line 14, of this Record, and I call your Honors' nttcn-
tioii to that, testimony because here again iMnnsit iiiid
Bechtel absolutely contradict each other:

" Q. How long have you V)een engaged in the sealing business
" about how long ? A. I cannot say exactly as to a month, over tiiri't-
" years.

" Q. About three years, you mean V A. About three vearN—Inngir.

" Q. What was your business before that ? A. Hotel busintss."

,Q And just helow is the following testimony:

" Q. Prior to 1880, I id you anything to do with the sealing Imsi-
" ness ? A. No, sir.

" Q. Had you anything to do with Hhipi)ing ? A. No, sir.

" Q. Did you know anything about ships up to that time ? A. -No.
•' sir.

" Q. Had you owned any ship before then? A. No, sir.

" Q. Had you any share or intcri st iu any ships of any kind 11)1 to
" that time ? A. Not any.

" Q. And. in fact, had you iu 188<i any interest iu any ship ? \.
•' Not anv.

" i}. Or iu 18H7 ? A. No, sir.
50 " y. Or in 1888, as a matter of fact ? A. No, sir.

"(J. Or in 188!)? A. No, sir.

" Q. And I believe I might also say 1890 ? A. No, sir ; not in 181'ti '

That testimony must he read in connection with tiie
(juestion:

" Q. How long luive you been engaged in the sealing bu.siiicis,
'■ about how long ? A. I cannot say exactly as to a month— over tliric
" years."

The testimony of Bechtol, page 14S, lino 1, should al.>o
^>obereadin conneition with this testimony, for theio iiu
clearly shi.vvs that he was intending to establish the bdii'f
that lie did not enter the sealing business until ISitO;

" Q. You did not outer tho smilin;/ husiuess until 1890? A. 1 think
" it was in 1890 I bought a vessel in Han Francisco.

" Q. I'oii hull no interest in thv senliui/ htisiness before? A. No, sir."

73!)

(Mr. Warren's Argument..)

William Miinsie took the witnpsjs stand again in the
•• I'athtinder " case, and testirted, Record, page 156-1,

• Q. In 1889, vou say, Mr. Bechtel h'vd no interest in the ' Path-
• limler'? A. ISoi iu the vesBcl.

• Q. Wlir.t (lid ho have an interest iu? A
•i). He oiittitted forthe HealiuR voyage?

■ ■^t iu my ;>ro»iieetive profits of that year.

• Q. Jii /hf aedlhii/ biiniiieKX ? A. Vph.
■• (). Did lie ;iutiit the vessel? A. No; I outfitted her.

■Q. Ho coutn?)uted for it? A. No; 1 oiittitted the vessel.
" t^. He liitd been inlercsleil in the aeiilinr/ biminess before iril/i i/ou ?

r->."

He had an interest

A. No; ho had au iuter-

sealing husi-

|!(H litelintoit stud in tliost'.iiingbnsiiu'ss before 1889, when
h. positively swore in tlie testimony that 1 liave just read
tl, it lie had no connection with the sealing business
|iiiiir to three yeau', from the date that he was testifying!
,.\iiy contradiction between these two witnesses, upon
uhii-^e testimony their claims for amounts of some$:i7,()00
;iiiil s;i4,(ioo depend?

Then he proiveded to say that Hechlel had an interest
ill liie sealing voyage of the " f'athtinder " in 1S87, liSSH
;iihI ISS'.t. Bechtel denies that he had any connection
wli.itever with it. A period of over a month had elai)sed
hil ween the time tiiat Mechtel had given his testimony
:iii(l Muiisie testified, and before I close my argument con-
II rninji these two men I will demonstrate the fact that
iillcr Mimsie bad left the stand in the "Carolena" case he
(Mine to the conclusion that he would not testify before
III!-- High t'ommi.ssion tiiat Bi'chtel was not interested in
llic • I'athtinder " for the reason that the bills of sale ai\d
iiinitgages in the case of th<> " Pathfinder" were identical
in (Very ii'spect as regards the considerations expressed in
till in and the shares which tht»y cover with tho"Caro-
iiii.i ■■ papers. He decided that be woidd admit that
l!i I htel was interi'sted in the voyage of the " I'athtinder,"
JKcMise the counsel for (Jreat Britain contended that by
ivi-^on of the clause in the convention under which we are
pi. needing, the United States was estdpped from proving
aii\ thing but that a citizen of the l'nit(?d States was a |)art
uuiKT of the bottom of one of these ships, and because
tlh' counsel for (Jreat Britain contended that it made no
ilillVicnce whether or not a citizen of the L'nited States
ui- inlerested in a venture of a sealing schooner, for the

t s of tluf treaty itself said tiiat it was only open for the

I iiilcd States tiisbow that one (tf its citizcMis was iiiler-
I -till ,is owner in whole or in part of any of these shij)s.
;o Tlic ( 'oinmissioiier on tin- jiart of the l'nited States: —
V'lii nnan to say that tin' ■ ma<le that contention in Vic-
i"ii;i in the hearing of Mr Minisio.

Ml. Warren: -At Victwiia.

Mr. I'eters— I would like to have the Record cited.

Till' C'oinniissioner on the part of the United Slates:— I
il'. nut remember it, so I would like to have the Record.
h iiii-lit be in the pleadings.

Mr. I'l'ters: It is in the ph^idings.

Tlic ( ommissioner on the part of the Uiiitcd States: —
iioHi!; as bearing on the testimony of Mr. Miinsie, it must
iif -liown that it was niade openly at Victoria.

\li-, Bodwcll:— These were our ple;idings bet'oi(< the cas(^
"I I'lic "Carolena" was begun and W(i never changed oiu"
t;i" md.

Mr. W^arren:— 1 made no as.sertioii that llu' counsel

7-10

(Mr. Warren's Argument.)
changed their grounfl. I assert tliat Mr. Munsie knew

lis ;

the position assumed by counsel.

The Commissioner on the i)art of the United States _
Your proposition was that after Munsie found out lliat
they made that contention, he changed his testimony.

Mr. Warren: Not clianged his testimony but adojud
a different course in the " Patlifinder " claim. The |i -j.
lotion is taken in the pleadings. Munsie has been showi: to
havo given false testimony and a man who was once w il-
ling to give false testimony without good reasons foi' pii>.
senting the truth, or something like it, would continue' in
the way he liad first intended. When there is a suddi n
shifting by a witness from a j)osition that is proven lo
have been false, to a position which, althougli not tnit , is
sufticient of an admission to apparently weaken ihc
strength of the position of tiie counsel appearing again-t
bin), that change is to be accounted for by something i Im'
20 than the dictate > of that man's conscience. When 1 ((unc
to the case of the "Pathfinder" I do not intend todwill
upon the relations of Hechtel and Munsie, tiierefore dl
the transaction will be considered and discussed in the
"Carolena " case.

Now, in reply to the suggestion of +he Commissiuiu'i
for the ijnited States, that in order to have a binding tnice
upon William Munsie, we should show that the counsel
took this position to which I have alluded on the faee of

the Record

30 The Commissioner on the part of the United States: [
understand that they agree to it.

Mr. Warren:— I now refer to another rea.son wliy Mini
sie clianged his position when be came lo the case ot the
■* Pathfinder." At Record, ln4, line 44, this witness, when
testifying in the " Carolena" case, was, on his direct e.\-.
amination, asked concerning an immaterial (luestioii- im-
material as to the "Carolena" — as to how much he jiaiil
f(»r the "Pathfinder" and answered that be paid alidiii
!i<4..")n(i for her in Halifax. .After that the counsel for (he
40 United States look up in a very forcible manner the ck^s
examination of Munsie regarding these bills of sale :iiid
mortgages which be has produced with reference to the
"Carolena," and the discovery was made that thes(> mkmi-
gages and bills of sale; ex|»ressed a consideration wliicli. if
the true consideration, made the testimony of Willi.iin
Munsie absolutely tal-e

The counsel for the United States also asked foi Ilie
register and the niortgnges in the case of the " Patli
finder" before .Munsie took the stand in the case of tiic
50 •• Pathlinder." and these moitgages relating to the trans-
fVi' of title of the " Pa'litinder '' contained a convini in,:;'
argmnent on their fac.- that they weieof the samenatiuv
as the mortgages i'! the case of the "Carolena," iieiauM'
Munsi(> bad testified in the first part of this Recoid thai !iu
paid %;4. "(00 for the "Pathfinder." and the mortgage ici
Andrew ,1. Mecbtel. produced at the re(|Uest of counsel fm
the I'nited States, disclosed that it was for the sum nf
^l.inT. A very Olid figure lo be inserted in a moitga^i'
when the moitgage is given for money borrowtul. .\ \riy
60 odd Sinn of money to be borrowed b}' one man from m
other.

What does four times sf, fo7 makei! ^'4,4^s, and Miin-iu
testified that he paid about S4,r.no for the " Pathfinder '

Referring to bis testimony given at a later time, Keniil,

isie knew of

«1 Stat(v -
iid out 11. at
Uiinoiiy.
but adojii-d
I. TheiM.i-
■en shown to
as oiicf w il-
=«oiis for |iio-
c'ontinui' in
) is a sudden
is provt'ii to

I not true, is
weaken llu>
ring ajiaiiivi
nethin^- ilso
I'iieii 1 cduie
end to (hvi'll
lieivfoii" all
Lissod in I he

ininiissioiiff
indiii"; foict'
the counsel

II the faiv (if

d States; -I

n why Mini-
' case of t he
itness, when
is direct ix -
Iestion--illl■
nicli he paid
paid ahout
nsel for the
r tlie ('loss-
:tf sale and
•ence to the
these luiii t-
)U which, if
)f William

vcd for the
lie •'Path-
case of till'

o tlie trans-

cniivincin^'

anie nalnn'

a," hecausc

cord that ii«

lorl^Mj^e to

' counstd for

tlie snin of

a niortna^^e

'd. A Very

n from an-

and Mine-i(3
thtinder '
mo, Kecnid,

741

(Mr. Warren's Argument.)

l.M ">, line U. we ascertain the actual amount paid for the
•• I atlitinder" at Halifax:

•Q. Anil she cost you at Nova Scotia otitfttted and ready for sea,
•• the amount you have stated ond which we have in proof elsewhere,
"t 1.428? A. Yes, sir.

We discover from the mortgages produced at our re-
loquest that Bechtel had a mortgage not on the whole ship
hut on Hi shares, or one fourth of the ship for exactly one-
fdiirth of the amount which Mnnsie says he paid for that
ship, and that Myre N. Bechtel had a mortgage on 16
sillies for exactly one-fourth of the amount which Muii-
sie had paid for the " Pathfinder."

W hat kind of transactions are these, that when Mnnsie

nil utgages to Bechtel he should always execute a mort-

ga:;!'. not covering his entire interest, but such a proportion

of the siiip as the sun) of money expressed in the mortgage

jpti' I'e the loan, beats to the true value and co.stof the ship?

Mnnsie had testified early in the "Carolena" case that
hi |iaiii about S-4,5(»0 for the "Pathfinder" and he was
therefore unwilling to attempt to convince your Honors
hv his testimony that Bechtel had no interest in the
••I'athtinder."

Sii that we find a reason for William Munsie taking a
dill'eicnt jjosition in the case of the *' Pathfinder," and he
was supported by the assertion of the coinisel for Great
Britain, that it was immaterial whether or not a citizen of
-otlie I'liited States was interested in the venture of a ship,
fill they claimed the clause or paragraph of the Convention
of Fehruary 8, 189t), excluded the United States from pre-
seiitini!; any evidence of ownership except that a citizen of
the I'liited States was part owner of the bottom of the ship.
.Ml Mnnsie thought he was saving the "Carolena" claim
and not sacrificing the "Pathfinder"; that be was mak-
iii}: his testimony a])peai' more reasonalde to the minds of
your Honors, and at ' ■• same time not abandoning his
claim to one dollar.

I shall take up briefiy the conli nlioii of the learned
iiiiiiisel for (ireat Britain, that 1 1, e clause of the tre;ity
limits the Ignited States tt) estal)lishiiig that cii i I'lis of
the I'liited States are the owners of tlu' bottoms of the
Hhips. hut for the piuixiseof this argument, it is siiHicieiit
to show to your Honors that William Mnnsie bad a reason
fill hidieving that was the inteiprt'tation whii li would be
nivi 11 by your Honors to this chiuse of the ' onveiition
under which you sit.

;o Tlie Counsel for (ireat Britain admit that Andrew J.
I!i 1 liii I was interested in the veiitiireof the " Patbfiinler"
ill l^-^'.i. We accept the admission. But we go fuiiher,
and We assert tliat he was a part owner of the ' Path-
tindii."' We claim tiiat Andrew .J. Bechtel eau be
awaidei! no sum of money whatever by this High Cou)-
iiii— loll I'nr the seizure of the " Patbfimh'r," provided ho
wa- ii|ually interesteil in the venture with William Mun-
sie, and that lit; was is admitted.
1 will call your Honois" attention to the clausi^ of the

6otiiaiv wiiicii contains the words that the counsel depend
ii|ii ii. It is found ill the last paragraph of Article ;J, and
is a- follows;

Thry shall lu> authorized to hear and examine, etc., every ques-
'■ It'll iif fiii't uot found liv the triliunal of arliitration, and to receive
" 111! Miitalile authentic testimony ci)nccrniii« the same; and the Gov-

ill.

rj: 'tr

742

(Mr. Warren's Argument.)

" ernment of the Uuited Stateu sliall have the ri^ht to raise the i|;,.'h.
" tion of its liability Viefore the Commissioners in any case wlui jt
" shall be proved tiiat the vessel was wholly or in part the aci ml
" property of a citizen of the United States."

Tliat is the clause which the learned counsel say | o
vents the United States fron) advancing succet^sfuliy ihy
claim that a citizen of the United States who was iiii,|-

lOested only in the ventuie of one of the seized or waiinil
schooners, cannot recover. That is hnt one clause of ilu;
Convention, and if the construction placed upon that el;! use
by the counsel for Great Bri'^ain is correct, this result wmild
follow. If it slundd he demonstrated that Andrew ,1.
Bechtel was equally interested in the venture ot In.
" Pathfinder " at the time of her seizure and he esi ih.
lished tliat he was a citizen of the United States, niiiivo
born, that be had never put his foot upon British soil, ih it,
he had continued to reside from the day of his birth until

20 the time the vessel was seized within the jurisdictiun ,,f
the country to which he owed allegiance, then the ((nin
sel for (ireat Britain would urge tliat Great Britain wuuld
be entitled to claim and recover for that United St.iics
citizen who was never even domiciled within the bonlirs
or juiisdiction of (ir»'at Britain. Can they advann' ;iny
such claim as that iiefore this Commission? Articli^ l
reads:

" The Higli ooiitractinfj: jiartios uKrec that all olaima on nc'oiuil i4' in-
"jiirien Kiifil'iiiifil ht/ pernoiis hi ii I„, .-<■•. b-hulf Oreiit Ih-ilaiii /.< enlillnl lo
30 " dinin c'impi'iiaiiliiiti from llie Unitfil Stiitea, iiiid arising by virtuiM.l' llm
" treaty aforesaid, the award and the findinKs of the said Trilniinil of
•■ Arbitratiou. as also the additional claims specified in the tiftli pain-
" graph of the preamble hereto, shall be referred to two Connuis.sinu-
" ers, etc."

Does that mean that a citizen of tbe Uniti'd Stutcs nf
.America who never set his foot within the jurisdiclion dt
(ireat Britam, if it be demonstrated, that Ik,' was intir
e.sted in one of these claims, can lie represented by (iriMt
Britain and recovei' damages before this High Conuuis>i(iii?

40 If Andiew .). Bechtel was never domiciled within the ler
ritory of (Jreat Britain, would counsel for Great Britain still
claim that Ibey could recover for him? .And. if it u.is
established that any citizen of the United States domiciled
in the United States, w;is inteiested in the venture of tlic
" Carolena "or tbe " Patbfinih'r'" or tbe " Favourite,'") (mid
your Honors award that United States citizen any sum
whatever for damages? Tbe logical answer of tbe learm d
counsel for (ireat Britain would be that you could. But im
such content ion can be found in their printed argument

50 Advt rtiiig again to tbe suggestion of tbe Conunissimirr
for tbe United States that 1 should show what connect mti
Andrew ,1, i?e(litel bad with tbe "Carolena." I icfer in
tbe testimony of .loiin Cotsford, on i):ige :i7;}of the Henml,

line «:>. lie
this vovage.

was a liimter on hoard the "Carolena,
and be gives tbe following testimony:

" ()■ How were vou emjiloyed and jirevailcd on to go ? A. liy Nicl
•' Shields' iiersuiisKiii 1 at last eouscutcd to go.

•' (). .And In whdiii did you state that you would go? A. Tn Mr
■' Muusir iiud 1(1 Mr. IJi'ihtel.
f „ " i). 1 '1(1 thcv both come to your shop together to emjiloy you '
' Mr. l'i't(rs:-N(>w, I really think tliat is a little— —
" Mr. DicUiiiKdii; — I am going to make this e.\amiuutiou unless I xm

" stoplicd.

"(,). Willi was present when yon finally agreed to go, and when ymi
'■ were cmpl(iyi'(l lo go V A. Mr. Munsie and Mr. IJechtel.
" *.). At your shop V A. At the sho|) where I was working.
' (^. Did they come together '> K. Yes, sir.

7+:^

(Mr. Warren's Argument.)

•■ Q. What time was this ? A. 1 could not say whether it was in the
'■ imviioon or the afteruooii.

■g. What mouth ? A. The mouth of Mav.

■ g. 188(5? A. Yes, sir."

Tliat is tlio same voyage upon vvliioh t!ie " Carolena ''
w IS seizeil. On cross-examination of tills witness at page
:^.i, line 17, he said:

10 ■ Q. You started out l)y sayiug that you wore hired. Who were you

• liii'il liy first V A. lu the tirst j>laee, Ned Shields spoke to me aud

• I hell Mr. MuDsie si)oke to me, aud then Mr. Muusie and Mr. Beeh-
•• 1(1 came together.

■ (ji. What did Shields say ? A. He wanted nw to go sealing in the

■■ Sril.

• g. Did you eouseut ? A. Not at first.

■ (^). Whom did you see next ? A. Mr. Mnnsie was next.

■ i). AVhere '? A. lu IJoliiusou's Maeksmith shop.

• i}. Was he aloue V A. He was alone the lirst time.

■ g. What took ))laee lietweeu you and Muusie? A. He wanted

■ iiic to go on the sehoimer.

20 • (,). Did you eonseut ? .\. No, sir; not then.

•■(,). Did you refuse V A. I did not refuse outright, but I said I

■ .III! not earo about going or something to that efleet, but after a
■■ while I consented to go.

g. Did you eousei>t at that interview ? A. No, sir.

■ g. Did you go away stating to him that \m\ would go or that you

■ would not go ? A. I do not think I agreed either way.

• g. You left it o|)eu ? A. Yes.

■ g. Who did you meet next ? A. They both came in the shop and

■ 1 suppose I might have met Ned Shields in the meantime.

• g. And the next time Mr. Muusie and Mr. Beehtel eame together,

• von sav V A. They came together when I agreed to go.
;0 " g. rtad you known Mr. Beehtel before ? A. Yes, sir.

■ g. Intimately? A. Not intimately.

■ g. Were voti friendly with him ? A. I was on speaking terms

• with him. 'riie nuin had always treated me well, and I did not see

■ why I shoiild not be friendly disposed to him.

■ t). Did you know Mr. Muusie better than you knew Mr. Becbtel ?

■ A. No, sir.

■ g. They eame together at the same time ? A. Yes, sir.

•' g. And Mr. Munsie begun to talk about that voyage ? A. I think

■ he WHS the lirst one to speak; they came together and asked me in

■ n^fiiird to going sealing.

• (). You think Mr. Munsie sjiokc first — and what did he ask you ?
Ill •■ A. He asked me if I was going on the 'Oarolena ' sealing.

■ Q. What did you say V A. 1 cannot tell you word for word, but
'■ it was something or other about going sealing on the ' Carolena.'

■ g. Did he ask yon to go on the 'Carolena?' A. Yes.
■g. Did you eonsent V .\. I agreed to go then.

■ {). Did Beehtel try to persuade you to go ? A. They lioth per-

■ ^uaileil me to go; they spoke to me about going,
g. .\nd then yon eonsenteil, and you say Beehtel went down the

st coast with you ? .\. Yes, sir.'

A^ain, John C'otsfonl, testified, and
:<, line I'd:

1 read from i)age

■•(,), Well, who engaged in the purchase of canoes at Clavoquot?
A. Mr. Ilechtel did the most of it.

'■(,), Yon had about the best canoe in the lot, didn't you? A. I
hiul the largest, and I su|)pose considered a little the best.

■(,>. How niueh did it cost? A. Eleven dollars, I believe, that is
wiuit 1 undt>rstood the |irice that was paid for her.

• t^. .Viid you had some talk with Beehtel; he did not want to buj'
liir liiciius(> she cost so niucliV A. Somebody objected to the price;
111- tlumght a smaller one would do, but I i)referred it."

Tht're is Beehtel at Clayotiuot after this ship liad started
,1111 hi r voyage, before the coinpU'tion of which she was
- i/t'(l. purcliasing canoes for the Indian luniters.

.\;.;ain, at page :{Ss. line -J;"), Colsford, (»n cross-examina-

ihni. says:

■ •(•. Have you any recollection at all as to tho price? A. There
■ wc re a few words between Beehtel and I about my canoe costing

744

(Mr. Warren's Argiiineiit.)

" more than the others, and he aaked me why I did not get as cht.M|> a
" one as the others."

At page 147 of the Record, line 30. we have a refenn .e
to the connection of Andrew J. Bechtel with this chiiii,
which is of a most convincing nature. Mr. Btrli;,'!
testified:

lO "Q- Wlj" 1'"* *l'^ flaiiu in for Mr. Ogilvie? A. It was througli uif
" that the claim was put in."

Ogilvi? was the captain of the "Carolena" on this
voyage and Andrew J. Bechtel made out his claim. .\, .
cording to his story he was appointed administratdi if
Ogilvie's estate for the purpose of collecting whatever miih
m;iy be coming to Captain Ogilvie. Now, the leariM d
counsel may say: " Why, Bechtel was a friend of Capt, mi
Ogilvie and that is the reason he put in Captain Ogih it "st
claim." That is what Andrew J. Bechtel swears; l.iit
mere swearing, I repeat, does not conclude the judgiii' nt
of the Court. It is credible testin)ony upon whicli judg-
ments of courts of justice are based.

The counsel for the United States believe, as they b.ivo
urged in their printed argument, in more than one plno-,
that Andrew J. Bechtel was owner of half the " Caroli'ii,! "
in lS8t), wlien she was seized, and we accept the adniissi.;ii
of the counsel for Great Britain tliat lie was equally in
terested in the venture of the "Pathfinder" in IHSli, inid
,Q contend that that fact alone prevents this High Coimnis
sion from awarding him any sum whatever for daiuips
arising by reason of the seizure of the "Pathfinder" in
1881t. but assert that he was an owner of pait of tiio
" Pathfinder."

I have little more to say than I have already said in cnii-
nection with the claim of the '' Pathfinder" for 1SS9, hut
desire to read from page ;{5;i of our printed argUMtciit
these words:

" He also stated that Hechtel niMiuired an iutcroHt in the voutuii' of
" the ' Pnthtiuder ' in the year 1H8C. Tliis is u positive denial nf tlio
" statement (if Andrew ,T. Ueehtel that he was not interested in t ho
" sealing Inisiness until about tliree years j)rior to the time that he was
" testifying, whieli would bo 1«92 or 1893."

Willian\ Munsio testified early in the Record that tlie
cost of the " i'atlifinder" was ai)out s4,r)(i0.

On direct-e.xamination in the case of the " Pathfinder."
lie testified that the actual cost was exactly four tinns
$I,lu7, or ^4.42>!. Record, page 15»ir), line 15:

. " Q. And she eost you at Nova Seotia outfitted and ready for sea
■* " the aiiiouut von havi' stated, and which we liave in proof elsewhoii',
" iif4,42SV A. "Yes."

Is more conclusive proof than this desired? Bef'on> tlir
"Pathfinder" arrived at Victoria, when William Mnnsir.
going directly Jicross the continent, reached Victoria, lie
executed a mortgage to Bechtel for $1.1(»7 on si.xtren
shares. Can there he any more < onchisive evidence than
that, I n-<ki Is it not indeed proof that these two vessnis,
" Cai'olena " and " Pathfinder," were the joint projiertv
Coi)f these two men?

I do not overlook the testi nony in the Record to which
the learned counsel for Oreat Britain leferred in hisniil
argument, where it is disclosed that the brother, Myre \.
Bechtel, held a mortgage on sixteen shares of the " Path-
finder" for the suinof sl,lo7. The amounts were exactly

get as cilia I . n

as throuRli me

745

(Mr. Warren's Argumen*^^.)

til same in both instruments, and the shares covered
id, iitically the same.

When Miinsie attempted to explain away the inference
tc ill' drawn from the considerations expressed in tiie bills
ol sale and mortgages, conveying the " Carolena," he
St. tod that although the atnount inserted in the mortgage
\\:i~ stltiT, that hut ^r)0(> was actually borrowed. So in
lotliis case, when it is disclosed that the mortgages are for
till siun of $1,107 each, or exactly one-fourth of the cost
tlh ship, Munsie testifies that he borrowed but $2,000,
til it is, two sunjs of $1,000 each. Record, page 1566, line

ih-i

d that till'

• Q. Dill you borrow 81,000, as you said, from A. J. Bechtel, or
'• ,li<l you borrow 81,107 '! A. I l)orroweil 81,000 from each of them.

'■ Q. Hut you piit in a mortgage for the full value? A. For the
" full value.

'• (,). Aud you put in the mortgage to Myre N. Bechtel the full value
"III his shares ? A. Yes, the full value.
^0 ■■ (). Aud vou put in — into both their names together— the full
" \ ;i 1 lit' of half the ship in the exact figures ? A. In the exact figures. "

111 the "Carolena" case Munsie testified that $167 of
thr ■r^tit)' was inserted to cover interest, and although the
^('ii'iT was exactly one-third of the price paid for the ship,
aci Hiding to the testimony of Hickey, the witness thought
ills story would be plausible for the reason that no note
\v;is given with that loan, according to his former testi-
nil my, and the mortgage by its terms did not bear in-
3oti'i>'st.

How, I ask, will the counsel reconcile the statements in
cdiiiuM'tion with the "Pathfinder?" Munsie states that
lu' borrowed $l,oOO from each of the Bechtels, although
iu' ^Mvu a mortgage to each for the sum of $1,107. This
iSl. lot is exactly one-fouith of $4, -128. the cost of the vessel.
Was, 1 ask, the $107 inserted to cover interest because
tlit'ic was no note given, and because the mortgage did
nut hear interest? liefer to the Record, at page 1566, line

-^*-' " Q. The mortgages were drawn without interest ? A. The promis-
■• soiy note bore interest.

• (,i. You say that the promissory note bore interest ? A. Yes.

•• (,». Hut the mortgages themselves had carefully erased the pro-
" vision for interest had they not, aud underlined the words: ' With-
■' (Hit iuterest ' ? A. Because the jiromissory note bore interest.

'• (,> And you put that in aud erased the provision for interest? A.

" Yes,"

Till' i)romissory note was never introduced iu evidence,
nor was any promissory note ever claimed to have been
-oliv iifchtel to Munsie introduced in evidence.

\\ luMi there was a note given, why insert in the mort-
pi-r tile sum of $107 to cover interest? The attempt
(if I liis witness to explain away these transactions by such
t('i-!iiiioiiy is too apparently weak.

That in every mortgage there should be added to the
anioiiiit, which Munsie claimed was borrowed, exactly
enough as interest .so that when added to the principal
siiMi the correct amount paid for the proportion of the
siiiji lovoied by the mortgage should be produced, is a
6ofari wiiicli is ai)solutely inexplainable on any other theory
tlii!i that these mortgages were receipts given to Bechtel
as 'MiJt'Mce of his interest in the vessels.

Tiu' fact that a brother of Andrew J. Becljtel took one
(if I lie receipts showing Bechtel's title, antl that by some
Mnuis or other, fair or false, atid presumably false, these

I '

M-

r4«

(Mr. Warren's Argument.)

witnesses have invented some plan of showing on pa'ti-
that a sum of money was paid to the estate of MyioN.
Bechtel is not wortliy of serious consideration.

Andiew J. Bechtel did have an interest in one fomili
of the vessel on the face of the records; he did have, n
cording to Munsie's statement, an interest in one-hnlt ..f
the venture of the " Pathfinder," and Munsie makes no

10 mention of Myre N. Bechters interest in the venture. Imt
only of the mortgage to Myre N. Bechtel, and that is uliv
I say that testiniony is not worthy of serious considcia-
tion. for it is immaterial in whose nauK! these mort};,i-.s
were, as long as Minisie testified that Andrew J. Beelihl
was the man who had a one-half interest in the vent me
of the ship.

We do not care what the mortgages stated, because we
have obtained some knowledge of what Munsie aiui
Bechtel can make mortgages say.

20 [ refer, however, to theKecord, at page 1585, line ()(»:

" Q. Was M. N. B<\litel interewted with A. J. Boolitel in the sial-
" ing buHiness, or was it A. J. Bechtel's private matter? A. \ J.
" Bechtel's private matter."

Again at Record, page 1575, line 38:

" Q. Did you from time to time pay interest on the mortgagcH ilmt
" were on that vessel? A. Yes.

" Q. To whom did yoii pay them? A. I paid them to A. J. Beolitel,
" Q. Did he act for his lirother as well as himself. A. I holiove

-,Q " that he acted for his brother as well as himself, and the interest wus

■* " indorsed on the promissory note."

Again at page 1583, line 27:

" Q. When did you destroy that note? A. I think that it was can-

" celled — when the mortgage was cancelled I think I destroyed it. I

" never keep a note after it is cancelled.
" Q. And a similar note ran to M. N. Bechtel? A. No, it wus ii

" joint note for 3:.?,0()0, §1,{)1)0 each. It was a note to them jointly, to

" A. J. Bechtel and Myre Bechtel from myself.
" Q. But while you took a joint note — you gave a note to tlium
jointly, but you gave separate mortgages? A. Oave separate mort-
gages.
" Q. Was there any reason why it was not referred to in the uunt-

" gages? A. I don't know as there was.
" Q. Then the semi-annual interest payment which you paid on the

" note would be semi-annual interest pavment on ii?2,0()0? A On

" §2,000.
" Q. Which you would pay to A. J. Bechtel for both? A. Ves, /,<<

" (lone Iht hnniiianH/o)- lii>; liri>lli<r.\"

!Same testimony was introduced as to the payiniiil uf
the mortgage debt to M. N. Bechtel, and I a^k Vdur
50 Honors ttt consider the testimony at page 1585 of Kecoid,
line ('>;3:

" Q. Then his interest in the profits of the sealing business, as ymi
•' testiiied at a former session, was with A. J. Bechtel? A. Wlmlly
" with A. J. Beehtel, witli the exception of one year, IH'.IO, tlie vc<sol
" made a trip which profited him, Mr. Beclitel desiring to help his
" brother's children, divided his profits with tliem.

" Q. Did you have anything to do with that? A. Nothing whatever
" exeei)t by'the instructions from A. J. Bechtel to pay money over to
" Mr. Eaynes for that estate.

"Q. In IS'.tO? A. 18it0; that is all.
f>0 "Q. And if you gave a check of §1,000— you did give cheeks to
" Havnes, which vou charged to A. J. Bechtel, did you not? \ In
" IHil'o?

" Q. 1H90, the year just mentioned, is the one in which A. ,T. licch-
" tel gave some of the jjrotits to the estate on account of the cliililn uV
" You did give checks on that account to Hayncs? A. Yes, 1 lielieve
" it was to the estate.

40.

r47

iiortgagCH tlmt

) in the iiunt-

(Mr. Warren's Argument.)

' Q. You gave it to Haynes? A. I don't remember now how the

• ■ .lit'cks were drawn; I have forgotten.

• (}. Such checks ns you gave to Haynen to that account, from A. J.

• ' Ki'chtcrB profits, you charged to A. J. Bechtel, did you not, in your
" ari'ount of the sealing buHinuss with Bechtel? A. \Voll, I had no
" ii.'cuuut with him.

' ' Q. But such as you had, did you take out of Beohtul's share? A.
•• \i'm; took it out of Bechtel's share."

10 Alter this testimony was given, the attempt was made
tci -liow that one of these checks was given in satisfaction
(il tlie My re N. Bechtel moitgage. Record, page 1590,

\\w .'i.'i:

■■(,). There is an entrv here ' By cash from William Munsic, account
•■ • >cliooucr ' Pathfinder,' «1,()00?' A. Yes, sir.

•■{^. That is the whole entry? A. Yes, sir.

■■Q. And that entry is exactly the same as when you received the
•' liiiok, of course? A. Oh, yes, sir."

,\ik1 again at Record, page 1597, line 27, this matter
-°iv;is considered:

•i). The first entry is, ' 1890, November 8th. To cash received.
" ■ From William Munsie, schooner ' Pathfinder ' 81,000.' This is the
•• account put in by the Administration, I believe? A. Yes, sir."

.Anil at line 45 of the same page of the Record is this
ti'>liinony:

'{). That account also contains the item '$.3,484, by order of A. J.

•'Itcchtel.' What is that? A. That was from Mr. Bechtel to the

" diildren. The property was not bringing them in much, and so Mr.

^0 ' liccbtel said that he would, in consideration of the three children

" iillow tLeni half of his profits.

•' Q. lu what? A. In the schooner ' Pathfinder.' Half of the prof-
" its that he received from the schooner 'Pathfinder' for the year
" IS'.lO was to go to the children for their benefit.

" (^>. And, therefore, by his order it was paid to the estate? A. Yes,
" sir.

" (.}. Was that paid before you took the estate over? A. Yes, that
■• WHS paid to Mr. Haynes."

And at page 1599 of Record, line S, this check was again

considered:

• (). Mr. Munsie did give a check for a 81,000, and that is entered
" on Iho estate accounts as ' Check from William Munsie on account
•■ of tlio schooner ' Pathfinder '? A. Wm, sir.

■• i). Do you know to whose order fliat oheck ran. Have you got
" the check anywhere? A. No, sir; I htve not."

(In the same page of the Record, line 37, is this testi-

inimy:

" (.). It appears from the account that the three principal items
• crclitcHl were there; 81,000, 83,484.63, and the 8250 from real estate?
'■ .\. Yes, it appears that way."

"V- And both of the large amounts were Mr. Munsie's checks? A.
"Yes, sir."

»»•!

Il is (iierefore apparent that this $l,00fi was paid from
tlir |ii(>tits of the schooner " Pathfinder " in the year 1890.
Till' checL on its face says: "On account of the schooner
' I'atlitiiider,' " and the entry in the account says; " Check
"trmn William Munsie, on account of the schooner
• r.itiitinder.'"

Tlicro is no reference lo the money being paid in satis-
fy f;ut ion of a mortgage, no ^rmount was paid for interest,
and tli(?ro is the testimony of Munsie that in the year 1890
A. .). Bechtel gave to the children of Myre N. Bechtel one-
liall of his profits in the s^chooner " Pathfinder."

Tliore is nothing inconsistent with the contention of the
oiunsol for the United States here. The claim is that

- !N

).'r 1 ■
'■'(■ ", -, '■

»( ■. > '!

748

(Mr. VVant'ii's Aigumt'iit.)

Beolifel was half owiht and (.ertaiiily was oiilitkil to
chocks coveiiiip; tlx' inoHtH

I proceed to read fioiii paj^e Hfj;} of our printed ,11-11.
ment:

"The 8UI11 of tlu> two iiiortKiiK'-'* (iplifai'iuKou tho rogiHttTH, iih j,'p. . h
" to the BiH'htfl.s, would lie ii^'2,'J14, or ime-hulf the value of the ' I'.iili-
"'tinder.' These (icculiiir proportiouH existed in the ease ol ilu'

10 " ' Caroleuft,' although Mr. Muusie there eudeavored to establiMli ilmt
" he had paid mouev in addition to the consideration expressed in tin.
" bills of sale, in order to avoid the neoossary eonelusion that Mr. hi,!
" was an e(iual owner. But I'atriek Hiekey, who swore that Imt >J,-
" 000 was paid for the vessel when Munsie purchased her, eoutrailiricil
" him, and proved eouclusively that the mortgage to Beehtel ou il,,,
" ' Caroleua ' was one-half its value.

"The details of the eross-examination of Munsie relative tu tin.
" trausaetion with Beehtel eoueerniug the ' Pathfinder,' and whicl are
" found in his cross-examination. Record, pages 15()3 to 15ti!t, estaMisb
" the conviction that liechtel was a half owner of the ' Pathiimlcr. us
" ho was a half owner of the 'Caroleua.'

20 " In the argument on behalf of (treat Britain it is adniiitcil ilmt
"Beehtel was eiiually interested in the venture of the ' I'atlit'iinlir'
" in 188i>. The mortgages which are in evidence, executed by Munsie
" & Came to JJechtel, have the same peculiar characteristics as the
" mortgages executed on the 'Carolena. ' They do not bear int(>n'st.
" the interest clauses being erased.

" Andrew J. Beehtel testified that he was not interested in any ship
" in the sealing business nutil about three vears before the tiinr \w
" was testifying. This was before Munsie had decided, in order to
" attemi>t to save the 'Carolena ' claim, to acknowledge that lieclitel
" was interested in the venture of the ' Pathtinder ' in the year IHHO,
" and to give the history of their dealings in the years 1886,1887, 1888
Q " and 1889.

J " The only conclusion which can be drawn from the testimony nnd
" from the exhibits found in the Record in connection with these two
" claims is that Andrew .7. Beehtel was a half owner of the '('nrolinu'
" at the time of her seizure and a half owner of the ' Pathfinder ' nt
" the time of her seizure.

" The imiiression created by these witnesses at Victoria was tliiit
" these mortgages, as said by one of the High Commissioners, wore
" ' whitewash mortgages ' and that impression was never removed, aud
" a reading of the Record does not now remove it."

Your Honofs will remeniher that the claim of the
40" Pathfinder" is entirely for the value of the seal skins
actually taken, an<l for the use of the vessel hetween the
time she was seized in Berinjj Sea, and the close of the
sealing season. Although the "Pathfinder" was sni/i'd,
she did not proceed to Sitka as instructed, but sailcil to
Victoria, and there is no claim heforc; this Higli Commis-
sion for the vahu! of the hottom of the ship.

Andrew J. Beehtel was a half owner of the skins liiat
were seized, and was entitled to a half interest in wli.it-
ever the vessel would have earned during the time tliat
joelapsed between the date that she actually left theSeaaiui
the ordinary and natural termination of the sealing voyage
in Bering Sea.

OWNEHSHIP " PaTHKINDEU " ClAISI NUMBER 21.

With reference to the claim of the " Pathfinder " for the
year 1890, which is claim No. 21, it may be convenient to
have at this place the admission made on behalf of (inat
Britain that at the time of the last seizure the interest of
60 Andrew J. Beehtel remained unchanged from the lime
the vessel was seized in issit, at which time he was :i lialf
owner of the venture, acconiing to the adn)ission nl tlie
counsel for Great Britain.

Tiiat admission is not in the argument for Great Britain,
but is found in the Record, at page 1811, line 20.

741»

s t'lititlid In
lintod ai-ii-

(Mr. Warren's Argument.)

The counsel for Great Biitain had made a statement
wliich is found at the top of the page, as follows:

" The relatioDB betwoou Mr. Beclitel aud Mr. Mnnsio were tbo name
"111 IHOO an they were in 1889, in reupeot to the ' PatLHndor,' and bor
" ontcb."

At line 19, the same page of the Record, the counsel for
the United States replied:

" Taking tbe statement of our learned friend aa to the interests of
" Jk'ohtel being unchanged, whatever they wore, in tbo ' Pathfinder,'
•' and in tbe venture, as already in; wo have nothing further to add,
" except to call the Court's attention," etc.

Here is an admission in open court by the Senior Coun-
sol for Great Britain, which vvas accepted by the Senior
(Viuiisel for the United States, that the relations of these
parties, whatever they were in 1889, remained unchanged
up to and including tne time of the seizure of the "Path
^° finder " in Neah Bay, in 1890.

At half-past one o'clock p.m. the Commissioners rose.

ctoria wan that
iiissioners, wire
er removi'd, uud

1 i

' ■ ■' I

GommiBsioners under the Convention of February h.

1896, between the United States of

America and Great Britain.

lo Legislative Council Chanibor, Provincial Builtiiii^.

At Halifax, N. S., September 18, ISHT.
At 10.30 A. M. the Commissioners took tlieir seats.
Mr. Warren:— May your Honors please,

I desire briefly to state the facts which establish beyoiiil
any controversy that Andrew J. Bochtel was a hiili
owner of the " Carolena " and the " Pathfinder."

William Munsio has testified that in l8H(i Andrew .1.
Bechtel was equally interested with him in the " I'ath.
^° finder," so that they had a business connection in the seiii-
ing business.

The testimony of Andrew J. Bechtt i > llecord, page '.V.H.
line ;{8), discloses that they were engaged together in tin*
sealing business:

" Q. Dill you n'Kitttcr Mr. Miin8ic iis tlio maunKiu^ owner '/ A. I
" boliovo so; Mr. MuuHio whh tli<> iiinuagiuK owuer; that is to huv, Im
" nianagod the vchhi'1 for me (lurioK uiy abseuoo.

"Q. Wan Mr. Muiisio the mauagiug owner? A. He managed t lie
' vessel when I was away."

This testimony does not refer to the ''Carolena," l)iit in
cited only as showing the relations between the partiis
at a later time.

Andrew J Bechtel denied what was admitted by Mini
sie that he bad an interest in the ' ^■^\' .aider." Will
iam Munsie came to the City of Halifax, purchased tln>
" Patlifinder " for ^4,428; journeyed across the continent
to Victoria while the ** Pathfinder " was sailing around
Cai)e Horn, and what did he do^ Before that vessel
40 •■t'ii*'l't'd Victoria he executed a ninitgago to Andrew J.
Bechtel. For how nnich< ^1.107, covering sixteen
shares, or exactly one (juarter of the ship, for a consider
atioii of exactly one-fourth of the amount that Munsie
had paid for the vessel in Halifax. Munsie also executed
to Myre N. Bechtel a mortgage for the same consideration
and covering sixteen other shares of the ship.

Now, if your Honors please, if those were mortgages,
why was tiiat consideration expressed? That was not the
sum that Munsie claims he borrowed, and there is 110
50 other explanation for the inseition of the sum of SI, In;
in each of the moi tgages, except the fact that that was
the real cost of ii)v proportion of the ship covei'ed by eaeii
of the mortgages.

When William Munsie arrived at Victoria, he received
from Andrew J. Bechtel, who used in one mortgage bis
brother's name, the sum of ^2,214, or exactly one-half of
the amount that be had paid for the ship in Halifax.

Why, if those woie mortgages, did Munsie mortgage :t
ship to Bechtel which had never been in the Port of Vie
6otoria? Mortgage a ship which was on its way around
Cape Horn to the Bechtels for exactly one-half of the
money which he had paid out in the City of Halifax?

Because, I contend, if your Honors please, that he re-
ceived that money from Andrew J. Bechtel to reimbuise
him for what he had paid for Bechtel's benefit.

T51

(Mr. Wum-n'H Ai>;mnt'nt.)

llii'si' Hkuivs ront'spoiid rxtictly, lliat is, in tli»> propor-
tiiiii-^ l\w considerations t'xpivsscd in the inoitjiaps suh-
tiiiii to tlio actual cost of tlic siiarcs of tlic ship covered l)y
the niortK''<W'''^. with the Holies expressed in and the iniin-
iici of shares coveted liy tiie nioityaK''s on the "Caio-
Ifii.i."

Willi, ni MuMsie niortgatted exactly one-half of the iii-
lotriest lie pi>ssessed in the "C'ai'oiena" to Andrew ,).
Heciitel for exactly one-iialf of theanioinit of money, ac-
rdiiliiiK to the testimony of Patrick llickey. that was |)aid
III Captain I icpdiart and Patrick llickey for that vessel.
He siiys in explanation of the first moilnaj.',e that, he oidy
Imrrowed !i<."iOo insti'ad of s^titiT, ami tiiat the >^H\' was in-
siiled to cover interest.

1 hron^ht fo your llonois' attention the fact that the
inort^ajie did not hi'ar intei'est, and that when tin- next
iiiorlnaKe was executed for sl.noo, that is, for half tho
20 Millie of the ship after Miuisie hail acipiired the entiro
interest, liiat niortt;a^(! did not hear interest, and did not
ill liide any amount to cover inleiest.

The latest mortgan'e was for sl,(MMt. and nothing was
iiiM'ited to cover interest, and the sl.onu was exiictly one-
lulf of the amount that Munsie had paid, according to the
testimony of llickey, for the vessel.

I'lie other mortgage was for ijstldT, and Munsie claimed
that i^HiT was inserted to cover interest hecausi; he desired
to avoid the conclusion that would necessarily he drawn
^ofiom the fact that this mortgage was for >?tl»17, exactly
eiie half of !?1,:'.:!1, which Mi'. Munsie had paid to rnpihart
and llickey at the time that this first morfgagt; was exe-
cuted, for he had tlien acipiired two-thirds of the ship, and
tud-tliirds of sl'imio is sj,:!;;-!.

The Commissioner on the part of the l^iuted States: —
"1)1(1 he say how much was advan(!ed on the second
nmrtgager'

Ml. Waireii: -" He said !?l,uu(i."

The Coiumis-^idUei on the part of tiie United States: —
4-'"('aii yoLi give me the reference to that^

.Ml. Wain'U, at |)age sx, approxiniately line aO;

" (,). Dill vdu Ki'ttlc tliiit inoi'tRiiKiMij) in tlii' followiiif; Jnni^? (That
" is iilVii'iiij; t(i tlic .IrliCi" luoi'tgaKi'. i A. WTuui I timinlit Miitlu'soii out
•• ill .Iniii', I lioiTowt'il S011U' iiuiri' iiiiiiu'y, n\iii't>lli'il tliiit iimrtnaiic' auil
• Kiivi' one for Si, ()(•(». I t)orr<i\voil tliiil from Mr. IJocliti'l."

It he hoi rowed it!i,noo from Mr. Bechtel and the mort-
,L;;i,i;e ilid not hear interest, why did he not insert sf>me-
ihing to cover interest? He thought that story of .slt!7
;ol'eiiig inserted in the first mortgage would he plausihle,
lierause the interest clause was stiickeii out, and the infer-
riuo would lie that Mechtel desired somtdhing to securi? to
liini the payment of interest; hut here is a similar transac-
inm, and no amount was inserted to cover interest, al-
ili'iiigh they l)()th testified that no note was given.

1 I

1 refer to the testimony. Record, laSS, line ;{'.•:

■'(,). How imii'liiliil lie imyV A. In 18H7 liis projiortionof tlio i)rofitH
■' ami curnintiH was iilioiit iS2,5(tO. 'I'/ml n-ns Irfi i„ //,,■ fmiil. Ho
'"J" iiiiiil'' alxiut !#5liO.

"K^. iHil you I'lmic to any ai-i-ountuijj;':' A. Well, yi's, lint lio iliiln't
'■ lalii' any money out.

•■(,(. Ill this ari'iiuutiiif; what was ('liavjjcil aKainst tho fund for your
•■ joint ai'oount to asoortiiiu tlie protttsV A. 'I'hi! rnnuiu){ ox2>ouso» ot
■' llio vi'ssol for tho yoar.

•Q. luchuliuK onttit iiutl wages? A. Evorythiug. "

<;>:;

(Mr. Wanen's Arguiiiont.)

Unless, I ask, Bochtel was a half owner of the " Paih
finder," why did lie leave the profits which he made in lii,.
bnsiness? If, as Munsie testified, he had only pnrcli,i-i ,1
an interest in the profits, why, when the profits had l)i en
made, did he not ri'ceivo his share? The fact tliat tlic
money was left and a joint fund created conclusively is
tablishes that there was a partnership existing; hetwii n

lothese two men, for on no other theory can the fact tii it
Bechtel allowed his earnmgs to remain in the bnsiiitss
be accounted for.

These facts and the apparent contradictions disclosnl
between the testimony of B(>chtel and Munsie, and the
false testimony jjiven by each, fiiiidy establish the fact
that Andrew J. Bechtel, a citizen of the Tnited States of
America, was an owner of one half of the "Carolena"
and the "Pathfinder," and that he is the owner ot one
half of these claims.

Ownership of tmk "Bl.vck Diamond," issd.

I will ne.xt take up the consideration of the interest of
Ale.xander Frank, in the claim known as the " Hla( k
Diamond," for the year 18S6, which is discussed, 'u'^in-
niuK at i)ap;e '.\~ii of our printed argunusnt. During my
oral argument I road the admission found in the British
Argument at i)age 47, line )i'\:

■iQ " III the cn.ie f/ tite ' Bliick l)iiimoii<l No. -T anil the 'Alfred Ail^nns,'
" l/ie title iriis in ii Ilritiah siihject, hut the ress'-ls irere ojiei-uled fur the /imetil
" of u triiiiiiifi firii) lit Victoria, composeil of the oinier iiiiil one Alcrdudci-
" Fratil; trim ii-fis n mitire Imrn citizen of the United States."

After! read that admission made in the argument of the
counsel for (Jreat Uiitain, the learned senior counsel an isr
and said that he desirtvl to make some correction there as
that was a mistake, and he based his assertion on tills
fact, that the itartnershi)) lietvveen (iutman and Frank did
not commence until January, 1SS7.

40 Mr. Peters: — It is necessary to find out lirst whether I
ever made such a statement. I certaiidy never did;
nothing like it; that the partnership began at a ceitain
date. 1 was referring to the transfer of the shij) to (iut-
man. I was jiot referring to thei:' partnersiiii), and was
not thinking of it.

Mr. Wairon: — If your Honois |)lease, the United Slates
in their reply to that admission on the ]>art of (ii'eat Brit-
ain said, at page ;!"!• of tin- argument: " Tlu* Record diir'-
closes that Alexander Frank and .lacol) (Iutman. de-

SOoased, were e(pial partners, which, taken with the adniis
sion made on behalf of (ire; t Hrit.iin, conclusively proves
that Alexander Frank is a half owner of this cbum."

1 propose to show whenever .lacob (iutman had an iir
terest in any of these vessels, Alexander Fr'ank was also
inteii>sti'd: ;ind the Record does uot disclose any testimony
oi' any intimation that the partnership of (iutman ami
Frank beg;in on the first day of .lanuary, js.sy, |)nt cleaily
sliows that (he parlnersliiit relation existt.'d early in Ism;.
I rest it tipon this ground solely: If that vessel was opcr

^oateil for the benefit of that firm, as stated in the argument,
on behalf of (ireat Biit.ain, then .-Mexander Fi'ank was in-
teri'sted as an owner; if, at the time of the seizure of tlic
" HIack Diamond "she was not operated for the benelit
of tliat lirm. tiieii the United States do not claim thai
Alexander Frank was interested. Tht> contention of the

753

[ho "P;ill|.

nade in tln'

purcliii-iMl

s liad li' 111

3t tllflt th,'

hisivoly cs
It; l)PtucTii
in fact lirit
lie biisiiiiss

IS disclosed
ie. and Um
!h the t';l(t
d Statrsol'
' Carolt'iia "
nor ot" one

ISStl.

interest nf
lie "HIack
ssod, !ic;;iii-
Dnring my
tiie British

l/red Ail'ims,'
id for till! Iifiiefil
one Alexander

ment of \\w

)nnse! ai'isc

on there as

m on tiiis

Frank did

whether I
never did;
a certain
ip to (!ut-
), and was

lited Slates
(Jreat Hrit
\ecord (lis-
linan. de
the adniis
•eiy i)r(ives
aim."
Kid an in
was also
testimony
it man ami
)nt cieailv
y in Is^-ti.
was o|ier
art;ninenl
nlv was in-
'.ni'e of the
he henelil
laini thai
ion ot the

(Mr. Warren's Argument.)

T'nited States is hasod solely on this ground that, wlien
the |)artner.ship of (Intmnn and Frank owned any vessel,
wiiatevei' its name may have been. Aiex.ander Frank
owned one-lialf of the interest owned hy the firm; and
thi' United States, therefore, accepted the admission,
ni.ide advisedly and delilierately hy all of *]w coimsel for
diva' Britain, that the " Black Diamond "was operated

lofoi the henetlt of a trading firm "i V'ict(n-ia, composed of
one .lacol) Gutman and one Alexander Frank, wlio was a
( ili/."n of the United States of America.

K'eferring to the Record f(n' the purp(we of ascei'taining
wiieii the partnership of (hitman and Frank did coni-
nience. I cite page ISilo, line4!>. Witness Theodore Fill bbe
w IS t(>stifying as to the piii'chase of skins in the year
jsMi. and he said, in answer to this (piestion: "What
boal were tliey oft' of^ A. (iiiliiKtii (t)iii Frank I boiiijlit
Ihriii <;/"," and gives the date, Sfpleiiihcr l-'>lli, ISSd.

20 1 refer your Honors to the liecor<l, page IKU. line 'jt>,
w here the witness J. D. Warren testifies as follows:

■•(^». Did (iutiimii iV Frank Imvo a station up tlicro in aililitiou to
•• Minis ? A. No, they rcntoil tlic Htatiou that year t'nini nir.

■ {). 'I'liiw ('(lutuius H coiTi'ct Htatcnifnt of what ".as fiiruishoil tho
•• • jielpliin ' at Clayociuot on lliat trii) '! A. Yes, ul) wiiat I got from
•■ tlii'iii thi'i'o.

•i). Von kept iu your hautlwritiufj itiMu liy item y A. Yes.
■• {). Were ( rutnian & .Frank interestoil in scalint^ ? A. I think so.
•O. \Miat voHsi'l hail tlioy in 1887? A. I think they ha.l tho
■ ■ Alfnd .\ilanis " at tliat time.
Xy) ■■ (,). Was that the Hrst voar tl\ov had a storehouse at Olayoquot ?
■ •■ A. Yes.

•• (). .\iul they rented it from you V A. Yes, they got it from me or
" friiin Unscowitz, but I think I did it in ISSO "

The lestiinony found at page 111* of the ]{ecord, line ."52,
shows that the schooner "Active" was sold in the year
Issi'i to Gutman & t'ompany, who were necess.arily doing
hii-inessat that time.

••(,). .\nd you say that the ' .Vctive.' from the information vou had
■ .li riveil in yovu' business, was sold iu 18Ktl V A. In 188(5 or tlie latter
40 •• |iart iif I880, I am not sure wliie'i."

Til.' register of the " Alfred Adams," Fxhihits, page l!»s,
line l."i, discloses that a mortgage, dateil FehriKiri/ Htli,
issi;, was executed by Jacob (hitman to Alexander
Frank, and that the mortgage was ivcorded on the l!»th
(lay of Fehruary. issC).

The evidenct' of these transactions clearly estiihlishesthat
(inlman .and Frank were engaged in liusiness in the early
liarl of the year issti. and the "Black Di.imond" is not

joalle^cd to have been wai'iied until the lirst d.iy of July,
|s>>ii. We have, therefore. coniJusively established th.it if
Jacob ( hitman lia'l any intt>rest in the " Black Diamond ''
ill llie ye.n- jssti, it Was the int'rest which he held as a
iiieiiiliei' of th(> linn of (hitman i^v: Frank, and I will later
roiisjih.|' the testimony clearly demonstrating tli.it .lacob
(liilinaii was interested in the " Black Diamond" in the
year jssti.

I now refer to Kxhibits, l':ige l'(»7, where the allidavit of
.\le.\aiider Frank is printed; and from this, if your Honors

^o|)le,ise, ii is as dear as any fact found wiihin the covt'is
eliliis b'ecord that .Mexandei Fr.ink and .lacob (hitman,
wlniiever they commenced business, were e(|iially iiiter-
I'sleil ill till' ships they operated, l-'rank says, "That the
siiiij e-tate of the said Jacob (liitinan " consists ot certain
'Iiiiil;'^, iiieiitioning them, and be continues:

•lM'l-(:

754

(Mr. Warren's Argument.)

" 32/64 \one-half of IIip s/iip\ of mid in n certain shi]) Monr/itii/ In ///^
" Mill firm nf (lulinan «fc Frank, but tchich soil/ Idsl menlioneil n/ii/i /,< ,;<i.
" isterfii (it the sniil Port of Viiioriii in the timne if the sniil Jacob (liitni'm,
" and is registered under the name of the ' liluck Diamond. ' "

Is there anytliing doubtful about that, if your Hoimis
please? This is at page 207, line 22, of the Exhibits, ;inil
IS not cited in our brief,
lo I do not desire to be misunderstood about the cont-i:
tion on the part of the United States as to the ovvnerslii|)
of the "Black Diamond,"' because, in the cases of I ho
" Black Diamond " and '" Lily " for the year lS8i>, our ai-
gument is based upon the fact tlu.t Jacob Gutman .iikI
Alexander Frank were in partnership and were i'(|nal
owners of the ' ' Black Diamond " and the '" ^ ily " at niic
time, and oui' argument in the case of lik; " AUnd
Adams" in the year 1887 is based on the same infoiiiia-
tion, therefore -
20 The C'onmiissioner on the part of the United States;—]
understand that so far counsel agree.

Mr. Peters:- We do not agree that Frank owned anvdf
these vessels in 188i); we distinctly proved that he did ii"t;
nor do we admit anything of the kind in any one of rlii-
years.

Mr. Dickinson:— I think we really miderstand tln'ir pD-
sition, your Honor

Mr-. Warren: - You admit the " .-Mfred Adams." in
1887;
30 Mr. ret.'rs:-Not at all.

Mr. Warren: — It is in their brief, if your Honors please.

The Connnissioner on the part of tlie United States: -
I misunderstooil the counsel, merely; proceed, Mi'. War-
ren.

Mr. Warren: — f hope I have made my position cl(>ar, if
your Honors please. 1 do not want to imj)eril our' ;u<;ii.
merit in the case of the "Black Diamond" and the
" Lily " in 18.sit by endeavoring to go beyond wiiat I lie-
lieve to be the absolute tacts to establish that Frank was
^o'"terested in Ibis "Black Diamond" in issn. 1 sav
frankly that, if this pai'trrei'sbip was not in exislcirce lii
July, isstl, and this vessel was not operated for the lienc
tit of this ])arlrrersbip at the time of her' alleged wairriiij;.
the Unite(l Slates do rrot assert that .Vlexaiider Frank, a
citizen of tli" United States of .Vmerica, biis any irrteivst
whatever- in the claim: birt, iirrtil the contrary of that tait
is established. 1 do claim that what I read fi-oni the L'cc
ord establishes tli.it (iutmari and Frank were in luisimss
in .July of the year- Issi;, and that the " Black Diarriornl "
-Q was owned by Alexander- l<'rank, .la(-ob (lutman and ('a[i-
tain Paxton. who simply held a nraster's interest.

I desire to refer your I louois to cei tain (itations, \v Imli
iire not in oiir briet. in (-oniiection wilii this claim: l'a;;i'
2n7 of F.xhiliits. line .^o, arrotber- allidavit of .Ale.xandci-
Frank is lorrrid. and m that allidavit, at the to[) of |iai;i'
2ns, he slates I bat the estate of Jacob (iutmaii coirsi-ls ot
one-b.ilf interest in the property of such par-tirerslii|i:
and attached is a schedule setting out byn.imethe " IlLnk
Diamond." i also refer to page 21o of the F.xlribils. at
r,otlre top of the page, where is I'ourrd the irrvenlory m-
.SI I led rile ;iniie,\e(l lo lire allid.ivit of .Xlexainler- Frank, ic-
terring to " oirehalf part or- slrar-e of and in the following
moneys, pr-operties. effects and cr-edits; our .siliintiwr, ri'ijls^
IciTil <il the /loii iij I 'ichirin in I lie iKtiiie of .hicoh (liilinuu,
<l<'Vi'(isiil, (tiiil kikIciIIic ikiiiii; o/ Hit' ' lihu'k DkiiiihikI."

755

t^nmrw^^m

beloti(jitt<i til llw
meil skill is rcq-
Jiicnb (liilmnn.

•our Hoik lis
xliibits, and

the coiit"ii-
o osvn('islii|)
;'asi's of I lie
1SS!», our ar-
jutinau and
wore i'(|nal
' ily " at (iiu>
„io " Allivd
me iufonna-

id States:— I

(WiH'il any itf
t lu' ilid iKit;
y out' of tlu'

;uh1 tlndr po-

Adauis." in

miors please.
ted States;-
•d. Mr. War-

itiou clear, if

ril (lur ai>;ii-

d " and Ihe

i uliat 1 lie-

t Frank was

isst;. 1 say

t xistellee in

for tile bene

4t'(l warnin},',

(let l''raid<, a

auv ihterrst

of' that fact
roni the \Ux-
e in husiiiiss
U Diaintind "
lan ami ('a|i-
rest.
ilidiis, u hiili

e-laiin: Taj^f
f Alexallilrr

lop 'S |iai;i'
III ('(insists ol'

paitiierslii|i:
ethe •• illaik

Kxliil)il>, al
iiiveiitiiiy or
er Frank, iv-
tlie fcdlowint;
lin<iin'i\ ri'ijis-

tctill (I'lllliniK,

l)i<niiuii(l.'"

(Mr. Warren's Argument.)

Alexander Frank was the only man in partnership with
Jai oh Gutnian, and, if the partnership owned the
8(1 II loner, Frank was interested. 1 have read from page
2(i7 of the Exhibits where he uses the fraction "32/64,"
and swore that the other part belonged to him.

I also read from page 211 of the Exhibits, line 3, "that
in the month of February, in the present year, the said
loJaiol) Gutman sailed from the port of Victoria, British
C'dliimbia, aforesaid, in one of oui' said schooners, knoivn
()// Ihe name of 'Black Diamond,' bound for Clayoquob
Sound aforesaid."

In the face of all this, if it please your Honors, is it con-
clusively established that Jacob Gutman owned these
vessels, and that Alexander Frank, a citizen of the United
States of America, did not own them when he swore that
he did?

He never denied making the affidavits, but, on the con-
2otrai V, admitted the execution and signing of every one of
tlieiii wlien he was examined as a witness.

1 also refer to page 212 of Exhibits, line 52: "In the
matter of the estate of Jacob Gutman, deceased, intestate,
the following is a list of the assets of the firm of Gutman
& Frank and in which the above named deceased owned
one-half interest: Schooner ' Black Diamond,' ^1,000."

At page 213 of Exhibits, line 55, are these words: " That
the v:.!ues of the following property, schooner ' Black
Jlidinond' $l,oOO,"' ami then follows the values of other
30 property.

This is an affidavit, not of Alexander Frank, but of
Moritz (Jutman, the administrator of the estate of his
ill other, Jacob Gutman; and in that affidavit Moritz Gut-
man .says, at line 41. page 213: " That the said Jacob Gut-
" mail at the time of his decease was a partner in the firm
" of Crutnian & Frank of the City of Victoria, aforesaid,
" merchants and Indian traders, and that tlie only estate,
" property and effects of the said Jacob Gutman in the
" I'lovince of British Columbia consists of a moiety half
40" part share of interest in the assets of the said firm of
"(iiitman & Frank, and that the said estate of Jacob
•' (iufnian, deceased, is liable to a moiety of the liabilities

• of the said partnership firm of Gutman & Frank; that
" the account hereunto annexed, marked 'A,' is a true
" account of tlie assets and liabilities of the said partner-
" ship firm o*^^ the said Gutman »& Frank; that the value
" of the following property, schooner 'Black Diamond'
" >f'l,f/"(>," and so forth.

These alhdavits of Alexander Frank and Moritz Gut-
jo man relate to the condition of the title in February, 1H87,
and, therefore, all reference to the interest of Captain
l'a,\to:i is omitted, for he had parted with his interest in
Dicemberor November, 1880 (Record, p. 17<ll, line 10).

•'i}. Uei'einber or Novemlier, 1886, tbeu wuh it? A. Yi;h, I think

HO."

The vessel was held in July, 188(), by these persons and

in these proportions: Jacob Criitman and Alexandi>r Frank,

,M slnires; Ca|)tain Paxton, 13 shares. Therefore Alex-

^oaiider Frank was tiie owner of oneiialf of fourtiftlis of

the vessel or two-fifths.

The claim is made that (Sutman was not interested in
l^^il and that it was not until January, iss7, that he had
any title, althoujjh Captain I'axtoii testified that he sold
to (iutman in November or December, 1880. But the

750

(Mr. Warren's Argument.)

registry shows that Paxton did not transfer to Gutnui, ,
tlie counsel will say, until January Id, 1.sh8, for tlie bill i
sale transferring his interest is dated January lo, 1S8m.

This discloses the value of the register. Jacob Uufiinni
ifos lirotviied betireeu Febrnnry and April, ISdi'. Ex-
hibits, page 211, line 8, and page 212. line 41, show tlu'
date.

Was Captain Paxton dealing with a dead man? The
10 registry is no evidence at all of those transactions, for tin;
transactions were not recorded until the time came in
18S8. when Alexander Fiank wished to clear up the tilii',
as lie was then the sole owner of the property, bavin;;
purchased from the estate of Jacob Gutman the inten >t
of Jacob Gutman.

Does that indicate that Jacob Gutman alone owned the

"Black Diamond 'V " Register," the counsel says! We

care not what the register says about wlio owns tiic-i'

vessels. Registers obtained from the port of Victoria ,is

20evidence are not worth the pajier they are written on.

We have it on this Record, if your Honors please, that -n
reliable a gentleman as Theodore Luhbeowned an inteic-t
in the " Mary Ellen" and "Favourite" and "Onward" win n
he was a citizen of flie United States of America, and tiiat
these vessels were registered in the name of so estinnbic a
gentleman as William Spring, who necessarily made (laili
that he was the sole owner of the bottom of the ship. W r
have it on this Record that Patrick Hickey was a citi/i n
of the United States and that he owned half of the bottom
30of the " Carolena " and that she was registered in tlir
name of Doiiahl Urquhart, a British subject, who neces-
saiily swore that he was the sole owner. We have it mi
this Record that Alexander McLean, a citizen of the
United States, was the owner of half the bottom of the
" Onwanl " and " Favourite," and Charles Spriug,a Briti>li
subject, made oath before the Paris Tribunal that he was
the sole owner.

Mr. Bodwell:— What part of the evidence do you refer
to as to Lubbe's owiiershi|i? Was not Lubbe's son the n'l;
4oistei'ed owners

Mr. Warieii:— Lubbe's son was never registered as (Ik;
owner.

The Commissioner on the part of the United States:- It
oiilv conu's as an incidental fact.

Mr. Dickinson: "The counsel foi- Great Britain have
taken a large amount of time to show that the register is
conclusive.

The Comnn'ssioner on the part of the United States:- -
The counsel must judge for themselves and must foUdW
50 their own course.

.Mr. Warren:— I have said enough to establish this ai^ni
ment: That that law of Cheat Britain or tht* law continu-
ing tb(! registry of ships was a dead letter in the port dt
Victoiiii in ihos(> years -that men who were interested lu
tlu; sealing business paid no attention to the fact tli:it
they were reiiiiired to make an oath stating that tln'v
wt'ie the sc^le owners when they ivgistered a ship. Tin lu
is no doubt about the fact that some of these men Uinw
that they were making a false oath, and S()me of thiin
60 who were as reputable, from the facts that we have out-
side this Record, as Theodore Lubbe and Charles Spriii^',
wfre willing that tiiis kind of oath should be tiiken lir
the piM'pose of allowing citizens of tho United States to In;

757

(Mr. Warren's Argument.)

iiiiorested in the sealing business out of the port of Vic-
t.iiia.

l?efore closing with the " Black Diamond No. 5," I will
It liM' to our brief, page ii7!>, where the United States ac-
cept the admission of Great Brit.ain that the vessel was
(i|n'iatod for the benefit of the trading firm of Gutman
jiii'i Frank, and, therefore, the counsel for the United
loSiiti's say at the time this action is alleged to have ac-
riiu'd. Alexander Frank was interested as an owner.

Tilt' Commissioner on the part of the United States: —
])n the counsel agree as to the time when the partnership
ol (iutman & Frank was formed.

Ml'. Warren: "I have stated all that the Record d\s-
i-l..s,.s.

Mr. Peters: — We nevei' attached any importance to that
(liif. I made the statement the other day that the vessel
WIS not acquired by any one of the firm until 1S87, and
20tlirK>fore that they could not have any interest in iSHti. The
•■ lilack Diamond," in ISSH did not belong to either Gut-
ni.iu i-Sc Frank, or either of the firm, and all this argu-
niriit about ownership has nothing to do with the case.

Mr. Warren:— Do I understand that the counsel for
(livat Britain says that neither Gutman nor Frank were
inh rested ill the "Black Diamond" in lASiM

Mr. Peters: — That is correct.

Mr. VVarren:— I will demonstrate that the onli/ witness
irlin Icstijied hi this case coiicerniiKj tlie oiniersliip swore
lotliiil (Jittiiiaii ivds interested ill tlie " Blucic Diamond" in
ism; to flie e.ctent of four-fiftlis.

1 ivad the testimony of Henry Paxton at page 1759,
lini' <1l', of the Record:

■Q. You spoke of Mr. Oulmnii nn the indiitiffinj owner? A. Yes.
■•(,). Who else were you thinking of as owner? A. I am the other
•• owni'v.

• (,). Of the ' Black Diamond '? A. Yes.
••(,). At that time? A. At that time.
■■i). You <md Mr. Gutmnii owneil her? A. Yes."

■^^' K (liei(> ni)w any doubt about the Record on that prop
ii>ili(iii, that the only witness who testified in connec-
t it 111 with these facts swore tliat Jacob Gutman was a
part Dwiier of the " Black Diamond " at the time she was
«i"i/.('(l; The captain, accurding to the register, only held
a title to thirteen shares in that boat, ami (Hitman &
Frank owned the remaining four-fifths.

Tlif United States do nut depend ujion those registries.
1 liavc alluded to the fact that the law controlling the reg-
i-iiy of ships at Victuria was in those years a dead letter;

5*-' that subjects of the United States and Great Biitain were
willing to make false oaths, and tlid make false oaths, for
tlh' purpose of having vessels registered in the name of
liiilish subjects that were partly owned by citizens of the
riiiti'tl States.

Tlif hill of sale is not in evidence and it is never left to
th. ivgistry to prove owiicrsliip. Within the covers of
thi- K'ecoid there is not contained any reference to a bill
111 - lU', and the registry alone, which 1 have in my hand,
(uiiiains a reference to a bill of sale to Jacob Gutman.

*^'^.\iiil wiiat does that register show/ The first reference to
.lai (ill (iutman on the fac(i of the registry of the " Blnck
lii.iiiitdid" is this; Number of transaction, 24, Joseph
(.iiiiilros; number of shares. 51; date of registry, Novem-
h> I s. IS5JH, JO A. M.; bill of sale dated — -"' VVl'ieii^ Prior
ti. iNS(i< No, if your Honors please, "Bill of sale dated

1'
. I.

758

T&iVi^iSU^-

(Mr. Warren's Argument.)

3d of January, 1887; name, residence and occupation df
the transferee, Jacob Gutman, of Victoria, B. C, nur-
chant."

Captain Paxton testified that on July 1st. 188«, Ja(ul>
Gutman owned an interest in this vessel, and we know-
that whatever interest Gutman had belonged to Gutni;iii
& Frank. The bill of sale is not in evidence. The k -

loistry is set out at page 3"«)of the Exhibits, and the stai. -
ments which I have referred to are found on i>age ;',7i(
at line 35. J call your Honors' attention to the dale
of the recording of tliis bill of sale, the record nf
vvliich I have read. It is "November ^'th, IS.ss, in
A. M ," and the reason that I call your attention to 1 1 lat
date is this: That on that same date was recordcil a
fraudulent bill of sale to Morris Moss, covering the " Blai k
Diamond" and the "Lily." Of that fraudulent bill uf
sale to Morris Moss I will speak later; but this fad.

2o which comes to my mind as I talk, shows that there was
an attempt to conceal from hegiuning to end the owik r-
ship and interest of Frank, the American, in this " Bla( k
Diamond."

Captain Paxton swore that in ISSti— July Ist—Jacol)
Gntnian owMied ;")1 shares, although Gutman had no Mil
of sale on record until November loth, 1888.

The Commissioner on the part of the United States: -
Now. Mr. Warren, iiow can you expect the Coiuiuis-
sioners to be intluenced by a statement made ten years

3oafter n tiansaction, as to whether Gutman or Fiauk. or
even both of them, owned that vessel as against the
written record of a different date?

Mr. Warren: -Captain Paxton, who testified, was the
joint ownei' at the time. And if the testimony of a man
who is a joint owner is not better evidence than the
registry, ot the ownership, then I do not know the vahii'
of evidence. The liili of sale is not produced. I will sluiw
yoiu' Honors that the attempt to conceal the interest of
F'rank is honeycombed with fraud.

40 The Coinmissicmer on the part of the United States:—
We are looking now at one transaction. We cannot prove
that that is fraudulent by proving that others are fiaiulu-
lent.

Mr. Wairen:— I rt'fer again to the evidence of Pa.xtoii
at ])age ITalt, line ;?',». fi'om which I read in order to show
that this man Paxton was concealing the inteiest of I'"rank
at that time:

" Q. How did yon Imjjpen to tell Mr. Frank anything about it? A.

" Mr. Frank was a man in business ashore here with Mr. (hitman in tlic

CQ " Ruu store, and all the business of the vessel was done iu that stuio.

'• i). What was the name of that business — iinder what name wan it
"done? A. The (^un store?

" Q. Whatever you may call it? A. I do not know what it \vun;
'• they had two or three stores."

Two or three stores^ Two or three trading stores on
the west coast ot Vancouver Island. Of what use wire
trading stores on the west coast of the island without
vessels to reacii them fioni the Port of Victoria? Tlicie
is no railioad from Vancouver to tho west coast of the
(3q island:

" Q. Under what name was the businesB conducted? A. I suiiimsi'
'• it was (iutnuin and Frank.

" Q. Mr. Frank was interested in the purchase of seal skins, wum ho
'• not? A. I don't know.

" (i). Did you not know that? A. No.

" Q. Did you not know that ho purchased seal skins? A. I Aou't
" know; I am sure.

76l»

(Mr. VVai Ten's Aiguinoiit.)

•■ Q. You do not know wlipthor lio over Hold any or not? A. No.

• (}. When did yon hoo Mr. rriiuk liiHt? A. ImiwMr. Frank luHt in
•' lS!tl.

• • Q. Did you not seo liim when ho waH up here, witbin three niouths?
■ A. No, I have only liccn horo thri'c W(>i'kw niyKi'lf.

■ (). You spoke of Mr. (intnmn iis the nianiij^ing owner ? A. Yes.
■•(.). Who else woro you thinking of as owner? A. I am the other

• iiwuer.
■■{.}. Of the 'Ulaek Diamond' ? \. W'h.
10 ■ t,). At tliat time? A. .\t that time.

■ (.). Yon and Mr. tiiitnian owned lu'r V A. Yen.

■ I). Wliom did you buy your interest in the ' Ulack Diamond ' of?
■ :\. A num named t^nadros, or soniethi^ig.

• Q. Where did ho live ? A. Ho lived up north.''

• (jliiadros oi' somcthiiifil " Tliis man Paxton knew
(jiiiadios as lie knew Ills own liiotlier.

• {). Where did you l)uy the lioat? .\. In Victoria.

■ (,». .\t whnt time ? A. It was the latter part of 18H5 or the early
■■ |,art of IHKt;.
:o •■ i). How ninpli of her did you l>ny ? .\. Thirteen shares. "

I'nrn to the document, wliicdi I read and it .shows that
|:', -hares were transferred by l)ill of sale, dated /fifh of
JiiiiiKir/i. /.sw;, to Henry I'axton. The witness continued":

• I,). When' does this man live, or where diil he live at that time ?
• A. .\t that time he lived here.

• (,). 'I'lie nmn from whom you lionnht V .\. Yes.
••(,). Wliere is he living now ? X. I'p north.

• i). Where is ' up ncu'th,' what town ? A. Close to Alert Bay.
" t^. What is his Hrst name ? A. Joe."

" (,)nadros or somelliin^' I '"
iiaiue is, he answeis " Joi'.""

And asked what his first

■ Q. ])i<l you pay any cash for your shares that you bought ? A.
I'ait cash ; well, the same as easli all through.

■' t^. WliiiiiliitMr. GhIiiiiiii hill/ lii^ l>(irl ii/' l/iti ' Bliiik Dinmonil?' A.
•' >'.!»(»■ (/(((/.< "//'■'■, / tliiiih\ III' lir/iire — J lliiiik I lioii;/!il mi/ part fimt. Quad-

■ iiis owed me eousideralde mouey and he gave me these shares to rep-

■ resent the mouey."

Some days after i'axton took iiis title Jmniarij 16, 1886.
' Not oidy did (,)na(hds tiansfer to tiutm.in before 1886
and liefoie that hdl of sale to which I nderi'ed, was re-
(Midid, hut I'a.xton Inmself transferred to (intman as T
will show by his osvn testimony, prior to the recoidinji of
aiiv hill of sale on the ref;istry to Jacob (iutinan. The
wiiiu'.'^s continued:

■ (,». What did yon jiay for these shares? A.
piiiil aliont t'r>ll() altogether.

• (,». Fiv(> hundred dollars for one-third of it?
shares. One-tilth of it."

I don't remember; 1
A. No. for thirteen

•"II '

V what it was;

ns? A. I deu't

riieii he j;oes on to sonietliiiig immaterial and proceeds
at line .">!•:

" (). Dill Mr. (iiiliitiiii hill/ Iiis sliiiri' frotit /he Siime miin of irhich i/oii
•■ ''nicihl i/oiirs'.' A. Till' Slim' iiiii'i-"

Thei'e is tlH> hill of sale which I read— Jacob Gutnian
licu^ht from (,)na(lrosand that l>ill of sale was not executed
mill not recorded luitil November 8, IS8S. And was re-
(didcd then because on the loth day of November, 1888,
''otlic register of the same "Black Diamond" contains a
siatcment that tlie hill of sale to Morris Moss from the
isjati'of Jacob (iutman. }i;iveii to Moss as a trustee, was
ncorded of this same "Black Diamond," and the title of
the i'st;ite of Jacob (Jntman could not be perfected until a
hill (if sale from Joseph Quadros was put on record. That

\ . .

7t»(i

(Mr. Wiinen's Aigiiinfiitj

is why it was necessary to record it then. Continuing it
line «>0:

"Q. Did that man own tlio entire boat? A. That man owned tin
" boat, yes.

"Q. Ami (/id Mr. Qittimin bin/ all the oilier nhiires? A. Vim; so I ' ■
" lieve.

"Q. Did vou know what Mr. Outniau paid for his shares? A I
haven't any idea.
10 " Q. Did , vou have any idea tlien? A, N...

" Q. Never knew? A. Never knew.

Then I will show where ho sold tc "iutman himself,
lino 'A of the Record, page 17(>1:

" Q. To whom did vou sell? A. I sold to Outman.

"Q. Then you sold to Outman in the last part of 1880 or the fn'-t
" part of 1887? A. No; I think it was in November, 1887, I solii In
" Outman, or December.

" Q. The last part of 1887? A. 1886.

"Q. You just said 1887? A. No, I didn't.
20 " Q. December ov Noremher, 18H(l,the)i, ii'im il? A. Yes, I think.-: .

In Novemher, 1S8U, thnt he sold to Gntman! And (!ui
man's title is recorded NoveniixM', tHS8. Now, I ask. ,iiv
we to be conclnded hy snch documents as tliese rosistcis
in the face of such testimony as I have read;

The testimony of Cai)tain Paxton, Record, page IT'iJ,

line 1.5, finally puts at rest thequestionas to whether or not

Jacob Outman was interested in the " Black Diamond "

in July, isst!. Paxton was one of the owners, and gave

3° this testimony:

" Q. Have any sealing book? A. No; I had one, but I hiivon't
" it now.

"Q. WhaC did you do with it? A. I r/are it to Ike mannying owner.

" Q. Whenilid i/oii seeitbisiy A. Jii I'SSO.

" Q. ^^'heu i/ifl i/oii < isle for it lust? A. I never asked for it.

" Q. Who has the papers that lielonRod to Mr. Outman? A. Tliut I
" don't know.

"Q. Wiioni did you consult with about this claim? A. Nobody.

"Q. Yoii lire part owner of the vessel, were at that time ? A. I was
" part owner; yes, sir.
40 " Q' Who represents Mr. Outman ? A. Since his death ?

" Q. Yes. A. I don't know.

" Q. yoii hiin^a't miiile 11111/ effort to Jim I the papers? A. No, I onhi
" ini/itireil iif his brother, ami his brother said he did not knoio anything
" about the jiaiifrs.

" Q. Hare i/ou made ani/ <illempl to find the chart or this prodamaiion.
■' as i/oii call it ? A. .^'o.

" Q. Hare i/nn iminired for it ? A. Old;/ a f/eneriil iniptiry to fiiol if
" Mr. (itilinaii's brother kin'ir nni/tliiiii/ about it.

' Q. Is (lutmau's brother here in the city ? A. Y'es, sir. "

Jacob (lut man's brother was on the witness' stand, aini
50 he (lid not s-tale tliat tlie estate of Jacob (iutman had no
interest in the claim of the " Black Diamond " for tlio
year ISStl, and th<>re is no testimony in the Record any-
where that contradicts the testimony of Captain Paxton,
who states that he was a joint owner with Jacob (fnt-
man.

Is it possible that the entries in the register of a ship,
when shown not to contain a correct histoiy of the trant.
actions, because at the d.'ite tluit the bill of sale purports
to have been executed by Captain Paxton, transferring
6ohi-< interest Jo Jacob tUitman, Jacob tintman was d«'aii,
aie entitled to greater weight than the testimony of onu
of the owners who positively swears not only that Jacub
Gutmaii was interested in the boat, hut that shortly pri>ir
to the time that he was testifying'', he had consulted tlio
executor of the estate of Jacob Gutman for the purpe-e

^p*^

es, I think XII.

3ut I biuen't

ying oteiier.

(Mr. Warren's Argument.)
ui securing cDrtain papers which were desired as jiroof in

tilt' CilSO <

Wliy should Captain Vaxton consult with Moritz Chit-
Villi) alxiiit the do ha of the "Black Diamond" uhless tht
I -hde of Jacob Outmaii had some interest therein f

The correspondence between SwJuhan Pauncefote and

^. ( retary Gresham relative to the clain-s that were being

loalviinced l)y Great Britain, contains this reference to tlie

• r.lack Diamond" of I88ti.
Sir Juhan writes:

• Additional claim Hubmitted by MasttT Henry Paxton for dam-
' a^on alleged to have been siiHtained by reason of the above veRscl
■• Imviug lu'en ordered out of Bering Sea by the United Stotes aiithor-
•• ities; entimated patch, 1,000 at 87.50— price of HcalskinH in Victoria
.. „i IHHti— 557,500.

• This claim wa» gent in too late for insertion. In view of the
" irn({th of time oomi)laiued of, Her Majesty caused inquiry to be
•• iiinde. The reason given was at the time of the seizure of the vessel,

20 •• the owners, who were three iu number [Paxton had a Co})taiu'B in-
" tiiest of thirteen shares] were doubtful as to how far an appeal for
" iiilress to the United States Government could bo asserted. In the

• following year one of the owners was lost at sea [that was Outnian,
" ;is shown by the evidence], aud another left the country [that was
" l"niuk|, aud it was only after imblicatiou of the award that the
" siirririiif] iHirliiei; after consultation with his solicitor, and upon in-
" furniation that he had a good claim for compensatiou^that the
•• claim was then drawn up and presented at once."

Tlie owners, therefore, were not Paxton and some nn-
knnwii party, but were Paxton, Uutman and Frank. The
J'^'du iier wlio left tiio country was a man named Alexander
I'Viink, and my friends were right in stating the position
(if (inat Britain in their printed iugument, as Great
[iritiiin understood it, that Frank was interested in the
■• l'.l;i(k Diamond" in the year ISSti.

A hill of sale is only prima facie evidence, hut no evi-
(1( luc at all is an entry made in a registry. We have the
ti -I inioiiy of the joint owner here that makes th(* asser-
tiiiii nil the part of the learned senior counsel for Great
Hiilaiii an error, when he savs that Jacob (iutman had no
'*°titl.' in the " Black Diamond" in IHSrt.

Now, Captain Paxton says that the firm of Gutman and
Frank were trading at the time and Jacol) Gutman was
iiiliit'sted in that vessel, and Frank says at page iin7 of
tlir Kxliibits that later Gutman owned j^ths of that ship
and that lie owned the other 82 shares.

.\ii(l adverting to another fact, Theodore Lubbe testi-
(nil, at page 18!>0 of the Record, that he bought Bering
Si' 1 skins from Gutman and Frank in the year IS^C, on
Si |ii('iiiher tilth. What vessel did Gutman and Frank
' liivi' ill Bering 8ea in I88t) except the " Black Diamond?"
^\ ill tlie leaiiied counsel for Great Britain answer that
i|Lii ->tioii from the Kecoid?

Ilf

TlIK Ow.VKHSIlIt' OF THK " Al-KUIOD AdAMS."

I 1 nine now to tht consideiation of Alexander Frank's
iii'rii'st in the vessel known as the " Alfred Adams."
Fnuii page 47 of the British Argument in Chief, 1 read:

6o.,

Ill the case of the 'Black Diamond,' No. 5, and the 'Alfred
A.liims,' the title was in a British subject, but the vessels were
" I'l'oriited for the benefit of a trading rtrm at Victoria, composed of
" I hi' owner and one Alexander Frank, who was a native born citizen
"I'f the United States."

I lii'ie is an admission on the part of Great Britain that
Al' xander Frank was equally interested in the " Alfred

h?:

7«2

(Mr. VVjirivn's Aigumont.)

Adams'" in Uh> yoai- Ihs7. Tlio cl.iim of tlie " Aid ,|
Adams" for tliiH year, 1h>7, is for tli(> sum of ^i!(t,74('(, m.

....1 '..!■ I oui' I .,1.;.... 1 ;. L-

Adams lor iniH yeai', i-^^*, is lor iii(> sum oi ipi:t', (4(i, m
cliiding tlio vaUn> of 1,8H(> wal skins, and is a cast? of p r
tiai loss. 'I'iiu owni'i's liavc no claim Ihmo for Mic hnticn
of the shi|i. .lacol) Uulman and Alfxandcr ]''riUik. ;i
native bom riti/.cn of llic United States, wore tH|ually m
tcn'stod in tli<< vcntniv of tlio " Alfred Adams," tliercidir.
Alexander l^'rank owns one lialf of these seal skins, ,iiii|
seeks an award for one half tlieir value.

Ale.xandi'r Frank was equally interested with ]iis|i;iii
nor in theeariiinj;s of tliat ship, ami the claim liefore llii-:
Hif;h Commission is for tiie earnin^is t)nly.

It is needless to say more with refen-nce to this cljiim.
I yesterday alluded to the* argument of the counsel |,ii
(ii'eat Britain that tiio United Sfalts is precluded hy il,,.
clause of the treaty, which says that the United Staiis
have a right to prove the factot pait ownership or owmr-

jo'^hiji in entirety in citizens of the United States, in these
ships, from proving anything beyond That, and icferred lo
another article of the treaty i)roviding that (iicat {{rii.im
can recover oidy for persons for whom she is entitUd to
I'ecover; and (ireat Britain is not entitled to recover fm a
citi/en of the Uiuted States of Ameiica.

The ownership of the bottom of the ■"Alfred Adam-"
becomes important when considered in connection uiih
the claim lor the " I'.lack Diamond " in ISSH, and thedanns
for the "" Black liianiond "and " I.ily " arising out of lliiir

-os^i'izure in the year Jssit. The owneishiiiof Frank isdeiiiinl
in iill these claims, and if we have esliiblished that lie iIhI
own a part of the "Black Diamond" in b'^sti and sli.iJI
prove that he owned a jiarl of the "Alfred Adams'" in
lss7, then his testimony in tlie claims for iMSlifor " Hlark
Diamond " and " Lily " will not be entitled to ciedeiu c

What testimony is this admission of the counsel fortioai
Britain that Frank was e(|ually interested in the vcninrr
only based upon? There is not a line in the Record to base
il upon, if your lloiiois jdease. The only evidence in this

^oKecord is what 1 shall read you; at Jiage iil4. Fxhibiis,
line It*, is the affidavit id' Mori is Giitman, wjiu was llu-
only witness sworn in thecaseof the "' Alfred Adams," No
^, at Victoria, he says:

••Tlmt till' said firm of liutnmu .V Frank liavo a claim against the
•■ (idvcnmicnt of tin' I'niti'd States of .Vnu'rica for the annmnt of
" ??'2((,4:il!, such claim 1 icing for the seizure of a certain schooner known
'• by the name of the ' Alfred .Vdams ," and owned'" — not that .Mexuii-
•• der Frank is interested onlv in the venttn-e. Imt — "ocv/ci/ /-i/ i/ip Mii'l
"tirm of (inliiiiiii i(! Fnink, mul nf ci'iidiu Sfiilskiiis hctiiiniiiiti In lli"
'• .<iii(/J!r)ii, and that jiroceedings commenced are now being iirosecntcd
50 '■ for the recovery of these damages."

That is this claim; the amount stated there is >;2o,4;'H,
and the amount claimed in the British argument is
?^:^(»,74(i. D' any one (d' the learned counsel will call alien
tion to any evidence concerning the ownership :if ilio
"" Alfred A(lains "" (Jiilside what 1 have read and shall leail.
it will be something that has escaped our notice.

And what else is there in this Record to show that

Alexander Frank owned the "Alfred Adams"? Tlie.-c

^,Q facts which I now shall advert to briefly, and which aiv

not cited in our i)rinted argument. In Exhibits, pagei'i'T.

line tiiS, is found an atlidavit of Alexander Frank:

"That the said Jacol) Giitman was at the time of his deceiisc 11
" partner with me in the busines.s carried on by us at the Citv ,if
■' Victoria, as merchants and Indian traders, and that the esta e of tlif

7(1H

(Mr. Warren's Argutiu'iit.)

■• <iu(l Jacob Gutiimn couBiBts of oui>-hnlf intorcBt iu tho property of
■ <nu\ iiortnersbip."

Attiiclied to that tiftidavit is a Hcliodiilo setting ont the
ii.itine of tlie proiu'ity of tlin (ItMcascd Jacol) (hitman.
^nlll• Honors will ii'collect tiiat these* affidavits vv(M'o
iiiiuic by Alo.xandor Frank for tlu' imrposo of hcin^? Hied
in llie Prol)ato Court, or wiiat wo would call tlit! I'rohate

I'^Mi'iirt. of British Coluniiiia, in connection with tiic estate
(il .hicoh (hitman, deceased, This particular afliduvit

fr which I read is dated 2d Octohor. IHSH, and was

iiul made ft)r the purpose of protecting; the rights of
;\lixaiuler Fr.ink. this I'nited States citizen, hut was
iii:icle for tlie pnr[)oseof inforniinga court of justice of the
truth regaiding the estate of 'lis deceased i)artner.

That schedule which is ai i.iched to that, attidavit. con-
tains a reference to the British schooner '" Lily." What is
tiic Hiitish schooner '" Mly "i What was the name of the

-'"-Miiiiisli schooner " Ldy " hefore she was known as the
" Lily "t I refer yoni' Honors to the I'cgistiy of tiie '' AI-
friil .Vdams," which is piinted on page 1!»7 of Kxhihits; at
the liottom of that page I read this:

•■ rioviHioiial oertiHcatc from nritinh CouhuI iit SiinFraiiciMcd, United

• Siiilfs of .Viiierieiv. Jaimarv 17, 1K8'2, name clnniKed to ' F,ily ' liy

• niiicr-in-Council, dated 'J,M\x Marcli, IHHH, nudor Heotion ^14!t of tlio
■• lirilish IjUwh."

The name of the " Alfred Adams" was changed to the

',o"Lily"" on March •2'>, IHss. Alexaiidi'r Frank swears,

O(toi)er 2, isss, that Jacohthif man owned one-half of the

• i.ily."' and necessarily that lie himself owned the other
halt, because he was the only artner of Jacob (hitman,
ami the partnership owned the entire schooner.

On page 'Jos of E.vhibits. line 4S. there appears among
the assets of the estate of .Jacob (hitman, deceased, one-
liaU of which assets Jacob (hitman owned, , id one-half
of which Ale.xanrler Frank owned:

'Claim aKftin«t tlio U. H. Govornmeut ir seizure 'Alfred AdamB.' "

Is there any doubt about who owned this schooner when
.MiNaiuli'r Frank swears that he owned one-half of the
siliiioner and one half the claim now being i)ressed?

(Ill paue L'o;i of tli«' F.xbibits. line 4(i, Ale.xaiKh-i' Frank
sniais that the schedule is a true statement of the assets:

■ 1, Alexander Frank, of tho City of Vietoria, in the Province of

■ lliitisti Colnmliia, Merchant, hereliy make oath and say as follows:

• 1. Tliat I am the aliove mentioned .Administrator of the Estate

■ iii'.il itVccts of .Tacol) (Sutnutn, deceased,

I 'J. I'lmt the Inveidory or Schedule hereunto annexed and marked

■ witli tlic letter ' A ' is a true and perfect Inventory of the Estate and

■ I'lli'cis of the said .Tacoh Outmaii, deceased, and tlnit the same is ex-

■ liiliitcd liy me as such in accordance witii the order of the H<moral)le

■ (11. .liistice Crease, one of the tTud)j;eH of the above court, ai)poiutiufj

■ iiic the administrator ilnriinle mhuire dUile of the above estate."

lliie is Alexander Frank swearing that he owns this
inn now under consideration, and we are discussing the

ipositioii whether he owns it or not.
The learned counsel, 1 dare say, in his re[)ly will say
at .Mexander Frank had on record a mortgage on the
.MliVil .\(lams." (haul that he did. for it is a fact. If
in Ihiiiors please, we have some evidence of what kind

iiiciitgages were drawn up in the City of Victoria iu
is (lass of cases; but to place beyond discussion the ques-
i!i of what kind of a moitgage this mortgage of Alex-

el;
I'l

(-o'li
\ I

ol
til
ti<

llfl

>V1

■■:■ 1

Tti4

(Mr. WiiirtMrs Aigniiu'iit )

jindor Finiik's \v;is, I call your Hoiwus' nttcntioii (o tlu'
sclu'diiic (111 piip' 'JUS ot the Kxliiltils, which siiows ii,,t
only the iis-Ht'ts uC .lacoli (iiitmjiirs estate, hut tlio lialiili
tics. If the estate of .la(M>l) (iiituiaii owed Ale.xaiidri
Frank hecause of this iiioi Inane, vhy diil not Aiexand. r
Frank put (hat indehtediiess into the liahdities of ihi.
estate of Jacol) (iutman. deceased^ There is no ineiitidii

lothere of the indelitedness of .lacolt (iiitiiian to Alexamlt i
Frank. Would this man who was making theallidavii
fdiget th.it .laioli (intnuin owed him mI.lThi^ No. Hiis
man Frank knew that was a fictitious mortnane. and
he knew that lie wonld he unking a false oath if he in
eluded the deht in the statement of the liahilitles of jn^
decea^icd paitnei'.

Turn to page I'ln of the K.vhihits, hue s. to the artidavii
signed by Alexander Frank, dated April 'Mi, Isss, iml
swoiii to hy hitn on that day. That attidavit contains

20 this statement :

" The Invkntouy of Hchekclk in tiik Annexki> Apfipavit of .\i.i;\

" ANDKll Flt.VNK Hl'.FKHRKK TO.

" Oiu'-lmlf |iiirt or Hliiirc of iiud in tlic following moneyH, iiroportiis,
" ctli'cts and ci'i'ilitH.

" (hie Kcliiiiiiior riijislcri'il til llf I'm I nf Vicloriii in Ihv mime uf Jumli
" (iuliiiiiii, till! i/eri'iiiii'i/, mill iiinlur llie iiinne </ llie ' lilmk Diiinioml.'"

Wiiy. " i(>gistered in the name of Jacoh (Jutmaii." if lii>
owned it< Why did not Frank say " owned hy Jacnb
3o{iutman"; Because he had sworn in another attiilavit
that lie ownetl 15J shares of that vessel.

" One half part or share of," etc.:

" One other schnnner ii/no rer/ixlerei/ nl Ihe Purl 0/ Vivtnviii in l/ie mime
" nf Ihe siiiil Jiiciih (liilinnii, anil iini/iT llif mime 0/ ' Lily,' itiii//,,niifiii/
'• oilleil l/ie ' Al/iril Allium'.'"

Further in the same attidavit, line 157:

" (Maim a^aiust tlic Uuitoil States (ioveruincnt for the vnlno of tliir-

" tt'on liunilri'd ami t'if;htv-Hix soal skiua ami for (laniaK''K for tlu'

40 " Hei/urc by till" staid (iovoriiincnt of tlio schooner ' Alfred A.luiiis '

'• and for the detention of tho said skins and eertaiu guns and aniiui-

" uition.'

Turn now to the British argument, page lis. whvw
they claim on iielialf of the owners of the "Alfivd
Adams" for l.;!s<'. seal skins .s!»,0(il). ('an there he any
doulit ahoiit the identity of these claims, if your Honors
pleased The claim was not at that time foi' the value of
the seal skins alone, hut for the seizure of the schoniier

50" Alfred Adams. '^ Who owned the claim? Alexander
Frank swore there that Jacoh (iutman. his partnei-. owned
ouehalf ot it, and who liesidi's .Jacob Gutman's paitiici,
Alexiiiidei- Frank, could own the other lialf^ And that
claim is made not for one half of the venture, not for one
half the value of the seal skins alone, but for on(!-halfof
the damages for the seizure of the .schooner " Alfrcii
Adams."

At page I'l:.' of the Exhibits, line hs, is found a reCci-
eiice to the sc lioouer " Lily." as being one-half owned liy

60 Jacob (Jutman.

On pageiilHof the Kxhibits, line a?, is a reference as
follows:

" That the values of the following property, schooner 'Hlack Dm-
" moiid.' fifteen hnndr<!d (?JI,50()J dollars, .vc7(H0He/- ' Lili/,' Ji/leen lom-
"7/-e</(Sl,r.OO) iloll.irx."

AVIT OF Al.KX-

VH, i>r()i)i'itii'.s,

Ttir)

(Mr. WaireiiH Argunu'iit.)

I'liis is froni the aHidivit <if Moiitz (hitman. Morilz
(iiitiiiaii Minjports lh«^ utlidiivit of Alt'xiiinh'r Frank and
\v. ,iit' imiuninn wlit'thtT Altixander Frank owntMl a liaU' of
tlii-i schooner! liut 1 will not wtuiiy thi'l'oiiit by reailin^
fintn tliis K'fon'nct'.

( •nt' otlitT citation, and tlio last 1 wish to ndVr to, is
p;i-.' '2\i of the Fxliihits. Uno 1!>. This is tim affidavit of
10 Mmil/ tiiitnian, dated iN'ovcinhcr i>, IHss. He says:

• Tliat- till' s'lidtlriii {>/ (hiliHiin unil Fruiik liiivo a claim aK'iinst tlio
" (iiiviTiiinciit of the Ihiiti'd Htutos of Aiiii>rii'a for tlif amount of
" twctity thotiHantl four liuuilroil uuil tliirty-tlircti iIoIIui'h (ii?iJ0,4ii;i),
" fucli vl'iiiii hitiiiij far llii' :<eUi(re nf <i ci'rl'iiii Kchiiinmr knaini In/ th" iiume
" (if /he ' Al/tvil Adiiiiin ' •mil innied hi/ the. miiil flnii of lliilmiiii iiwl Frnnk,
" luiil of I'oi'tain Hcal Hkiiis licloiiKiiiK to the Haiil firm, aiul that pro-
" I'coiliiiKH have Ixm'u (■oinmi'iiccil and arc now bciu^ proHtioutod for
" the recovery of Huch damancH."

1 leave tho claim of the " Alfied Adams" with this
2ost,itetnent, that even Alexandei' Fiank, when he ^ave his
testimony at Victoria, did not testify that he did not own
the '• Alfred Adams." I wish to icficsh yoiif llonois'
recollection with i'P}i;afd to the testimony of the witness
Fiank. The witness was endeavotiii}^ to escaiu; th(^ con-
clusion that yonr Ilonois would reach that he U'as in
tcrested ill these schooners, and. therefore, he set up an
alisiird contention which I will consi<ler later. At page
U'its, line 4o, he testified as follows:

"(,). It in stated in the inventory that Jacob Outmau owned one-
30 •• Imlf of tho Hcbooncr ' Hhi(!k Diamond '? A. Yes.

" I). Anil Hint Jiicob (tiitmiin uinieil iiiie-hiit/'i/ilin ' Al/reil Ailnms ' and
•• Ihiil i/iiii owned the other h(i[f? A. Tliiil h when f did.

" That is iilien J did," r(;^'errh^g to tho time he made
these affidavits.

Are we compt'lled to still serionsly argiio the question of
wiii'ther Alexander Frank, the United States' citizen,
owned one half of the " Alfred Adams " at the time of
her seizure, after presenting to yonr Honors such con-
(hisive proof of the truth of our contention that he did, as
■* tills ti'stiinony of Moritz (Jutmau and these affidavits of
Alexander Frank himself?

'ference as

TllK OWNKKSIIIP OK THK " BLAC'K DIAMOND " AND THE

" Lily " in thk yeak 18S!).

I now come to the consideration of Alexander Frank's

coiiiicition witli the "Black Oiamond" and "Lily" in

IsMt. At page 4:i4 of the Arfj;unient, filed on behalf of

the Liiited States, these claims are considered, and this

' statement made:

'•'I'lii' United States assert tliut Ali-xandcr Frank, a citizen of the
" riiiti'd States of America, and a resident of the City of San Francisco,
" was the owner of the " Ulack Diamond " and tlio "Lily " at the time
" of their seizure, and that no damages can be awarded him by this
" Hii;li CommisHion."

Tiicsf claims I will consider at one and the same time.
Till' lacts that demonstrate that Alexander Frank owned
thr entire bottom of the " Black Diamond " in f SSt). at the
6osaiiii' time establish that be owned the entire bottom of
thi' " Lily." 1 rested the arf:;unient in the " Black Dia-
iiinnil ■■ riaim in lS8ti, solely upon the testimony which
csl.ililisbes that Jacob (TUtnian was interested in the
" blarU Diamond " in isstl, and Alexander Frank and
Jamb (iutnian were in partnership in IMSO, and if, as ad-

■fit]

(Mr. Warren's Argument.)

niitted in the Britisli argument, that srliooner wat< o|m i
ated for a trading tirm, then Alexander Frank was a part
owner of the " Black Diamond" in is.sti.

But we ast;ert that Alexander Frank owns the f*////.'
claim for the '• Black Diamond" and " Lily " arising (nit
of the acts of the authorities of the United States Govern
nient in the year issy. We assert that Alexander Frank
lOowned the liottom of hoth of these shi])s at tli(! tiini' nf
tlieir seizure. The counsel for(ireat Britain, at page \^in\
of the ivecord, line ;U, was asked:

"Mr. Dic'kinsou:— I woukl liko to ask tlio counspl for Grout Hritiiiu
" who tliov L'liiim to 1)0 tlic owiiorof tlii' ' Illiii'k Dinniond ' in tlir olaim
" now iionding before the ('oniuiissiouV

'• Mr. I'fttMs:— So funis we nro eoncerued, we tiud tliis vessel at (lie
" time of her seizure reijinleretl in llif mime nf Miirrh Moss, and we claim
•' for her »7(ijcci/' may lie entitled to her; ire mv cluimiiii/ mi lic/ml/ at'
" Gifiil Jlritiiiii, inn/ we hnro prituflhal the vessel wasreijislereil in the ii<nne
' ' iif Morris Moss. "
20

Turn to the Kecoid, |)age ISlTi. line 44, and we find the
ffidavit of Morris Moss, originally made and pi-esented tn
the Dominion Government of Canada. What docs Iib
say^

•' I, Morris Moss, of the City of Viotoria, iu the Provinee of liriti^li
" Coluniliia, Dominion of Canada, fur dealer and shi|) owner, do sol
•' ei'.inlv anil sineernly declare as follows;
•• 1. "l am a 15ritish sjibject hy hirth."

-Q 1 wish t(i (all your Honors' attention to that statement
in the lirst in.^tance. 1 ask your Honors to turn to din'
other athdavit in the entire schedule, from 1 to t!o, in
elusive, which contains any statement similar to that, ,1
statenieiil that any British suhject who was a registend
owm-r of any vessel vvt.s '( Ihitisit snhject hi/ birth. \\\w
was that statement thouglit to l)e necessary?

" 1 am a British .subject l)y birtli and the '/. ' / rer/islerei/ oicner of the
•' .schooner ' Lili/,' "

,Q TUK ■■ DI'LV iCt/i.stcrKl OWNKU," .NOT THK OWNKK.

Alexandei' Frank was the only witness examined in
these two claim>, and he was called hy telegram from S,ni
Francisco, svheie he resides, and gave his testimony on I lie
last day of oiir se;-sion at \'ictoiia. The testimony nf
this witiies.-^ IS hiief, and a careful reading theicof ni
connection with the Fxhihits relating to this claim, will,
we helieve, satisfy tlie High ronanissioners that he wa^;
the owner of these vessels at the time of tiie seizure, ,iiiil
that he is the person whom counsel for (treat Bril.iiii
i^ohad ill mind when he stated; " We c/ii/in fur Iter iflim ri r
111(11/ In- riilil/cil to ln'f. ll'c lire fill i in i 111/ Oil liclidlf uf
(I'li'iil Ihitiiiii, iiiiil ire liine /Udoj /lull tlir rc.s.sc/ ini.s mj
istcrril ill till' 11(11111' of Morris .l/o.s,s."

'i'lie only evidence against the affidavit of Alexjuuler
Fi;ink hetore this High Commission is the so c;illed evi-
(It lice fi.imd in the legisteis. and if uc ;ire to call sm h
regist<Ms ;is tlii'se evidence of facts, then lhei'(> nuiy he ;t
.scintilla of evidence to siijiport the claim of Morris Moss.

Commissioner on the pait of the United St;ites;— l>ois
<''o not Alexander Frank swear squjirely that Moss was tiic
owner?

Mr. Warren: 1 say he was the only witness, and the
ohlv e\ idejice outside of l''rank"s testimony is the register.
I mleiid to considei' Alexiinder Frank, hut putting Iniii
oii'.-ide iif 1 his case, the oiilv evidence found within tlie

7()7

(Mr. Wanen's Argumont.)

(I .vers of the Record to support the claiin that Morris
Mii>s was the owner is found in the registers.

No oath of Moss tiiat he vas the owner of these vessels
IS lii'for(> tlie Oonrt. If tlieie was an oatli made, and filed
Willi tlie Kegister of tiie I'ort of Victin'ia, it is not
liili.ie this High Coniniission. Tlie k'arneil (•onnsel for
Hi rat Britain, Mr. Heiqne, stated in his oral argument

lolliat the hills of sale e.xeented liy the exeeutois of Jacob
(liilnian to Morris Moss, were ni evidence. That state-
iiH lit is an error. The Hecoid does not include the hills
(il >alc fiom the (>.\ecutors of the estate of .Jacob Gntman
til Morris Moss. They are not printed as Kxhibits, and
the learned counsel was mistaken in supposing I bat thciv
\vt re printed among the Kxhibits. The statement on the
|i,ige of the Exi>ibits to which he did refer is the printed
(■(i|iy (if the register of the "• Black Diamond," and of the
ntlii'i' register, tliat of the '" Lily." No bill of sale is before

:oviiiii Ikinors, only memoiandnm entrits made in registi'rs
of the ships. No doubt about that fact.

In reference! to this registry wiiich it is contended is
Mime evidence of title, let nie read to your flonors the
ii|iiiii(in of liord Stowell, in the case of the " Odin," re-
|iii:te(l in 1 Cluistophei' Kobinson, commencing at page
.'4'.i, and reading from page -J."):.'. Lord Stowell bere says:

■ Nut oiilv flu' bill of sale,"

Here was a bill of sale, not the registi'y only.

• Not oiilv the bill of sale, l)nt tliore are other papers whiph bavo a
" ii'tiuliir appearance ; so that it th(> court prouounces against the
• ilaiiii. it must ))ronounce that these papers, several iu uuiul)er, ai'o
■ nil re fabrieatious utterly void of truth."

t'.fl tUt'lti'l' (>/' tJlt^

Liird stowell puts the proposition s(juarely before hinj-
sell iiiid says, that if he declares against ibis claim he
would declare these iiajjers "mere fabrications utterly
void of truth."

• 'I'lie first observation luiule ou the part of the captors is, thatin-oi^
4<^' •■ auv supposition the juiiiers would berefjiihir ; and it is true ; '.'or the

■ viTv intention of the fraud is uf it be a friiud) todeceive bv the regu-

■ liinlv of the papers ; it is the necessary a])paratuM and niaeliiuei-y of

■ Midi a case — and, tliereforc. it is by uo means eneut^h to say, 'Our

■ |iapirs are all iu order.' What, it is asked, do you liold jiapers for

■ iiotliin^j '?"

Lord Stowell there puts a (juestion to himself, and he
|iul< another:

• .\re we to have a new law of nations in which it is to lie held that

■ rci,'ii];ir documents are of no avail? Certainly not such papers, duly
'•■ vcritied and suiiportcd, are strouf; /)/■(///<(/.(■ (c evidenci' in all cases;

" uiiil, if unopposed, are conclusive evideix'e; luit if there are circuui-
" stiiiicrs and facts ap|>eariu)4: ui llie ease leadinji justly to tlie coiudu-

■ sioii, that those papers, though foniiul in themselves, and though
• fMiiiiiilly supported by oath "

May it please yoiu' Honors, llmiKjIi /nniid/li/ sKjipor/nl
li/l iinlli in this case which Lord Stowell was cou-^idering —
II I r.iiiiially Miiiporteil by oath in this present case, be-
ein-e the oath of Morris Moss is not belore tins High Com-
niis~iiiii to support the entrit's in th( se registries.

l.oid Stowell continues:

lire iievertlieleBs falne, it would be ridiculous to say that the Court
" i^ liound l)y them. It 's a wild I'onccit that any court of justice is
■■ lioiiiid by mere sweariiu; it is the .sinvov/e/ (■(•('(///•/// that istoconeludu

■ ilsjiidgment. rnquestionably aCourt of .Admirally will proccedwith
■ nil ii'i|iiisite caution in di'tcrmining iigaiiist regular piipeis. regularly

B "'Vl

rrts

(Mr. Warren's Argument.)

" BUpportod ; hut if Ihe. piipevs sni/ one thi.iij a ml the facts nf the t'nse <(»«///, ,-,
^' the Cdiirl must e.iyvcise (I solier JKi/r/meiil, (im/ </elermiiie (icconliiit/ In Ihe
" cummoii rules of eviiletice to ii'hivh Ihe prepnnderotice is due."

Ijord Stowell hi aiiMuirity in tliis WMjrld whercviM' ((unts
of justice arc; to be found, and iio declares that tiie Uiiit.'il
States of Aiiieiic.'i, before this lliy;li (\)ininission, shall imt
be concluded by any statenu'iits in the rej^istries of ihi'^e
8hii)s. uidess the facts of the case establisli that those cu
tries are collect, and further says, that if the facts of ihe
case establish the contrary, that it is the duty of the Cdiut
to weigh the evidence and lo conclude its judgment on llic
side for which there is a picponderance of evidence.

I read from "(ireenleaf on Kvidence," at Section 1:14,
Volume ]. fifteenth <'ciition. This autlior wlio is autln r-
ity in the courts of both great nations, in considering
documents of tills very iiaturt', in fact, considcing the
weiglit to he given a ship's register, says:

" Tlie 'regislrii of u shi/>' is iidt of the untiii'c of tlic i)nlilir or
" official rofiistcvH now muter cousiileratioii, tlic entry not liein^; ef
" any tninsaetion of whieli tlie public ofticer who makes the entrv ia
" conusant. Nor is it a(lo<'\iinent reiinired liy the hiw of nations, ,is < x-
" pressiv(> of tlie slii|i's national cliaracter. The TJcf^istry .Vets iiri' con-
" sidereil as institutions i)urely local and municipal for i)Mrpiisi'^ nf
" i>ul)lic i)()licy. The ren'ister. therefore, is not of it.-iclf eviileiicc of
" property, e.rcejit sofurcis it is emijirmeil hi/ soiin: (iii.rilidiy circniiislnini-, "

There is language tiiat is preci-e "here is language
30 that fits this case, as we say. is on .ill fc'tu's with this case
that we ,ire now considering:

" Exce|)t so far as it is articnunl hy some auxiliary circunistaiu'o,
'■ showiuK that it was inaili' liy the authority or assent of the person
" named in it, and who is sought to lie charged as owner."

Is there anything before this High Commission to siili-
st.'Uitiate the entry in that registry; is tiiere any oatli of
the owner, or the claimed owner Morris Moss, before rhis
High Commission; There is not one weird of testinidiiv
40to bi' found in this h'ecord to establish the regulaiitv of
thosi' entries.

I say further, if your Honors please, advisedly and with
due consideration. I say. that th(>re is not one word in ihe
Hecord to establish Morris Moss' owneiship of these vcs
sels. other than the words of Alexander Frank, and I do
not forget the testimony to which niir learned friends will
no doubt refer when I iiiakf; tluit assertion: that is the
testimony of Owen Thomas.

Owen Thomas was the captain of this ship, .nid, on di-
Street examiiKition, in reply to a leading (juestioii. he said
that Morris ^foss was the owner of Ihe vessel Tiiat les
timonv. yiiiir Honors, was given on diiect-examination;
on cniss examin.itidii he gave this .testimony, h'eciud,
page ITsI, line I't:

" (^. Yon do not testify that Mr. Morris Moss was the owner V A.
" No, I (In not. All I hiiitir is tlc(i la- ir.is III'' in mlh'O shipped in-."

That dis]iose^ of the only bit of testimony in this Ivecnid
''Oth.'it did not fall from the lips of Alexander Frank.

The Commissioner on the jiart of the I'nited States:-
Jt might not entirely dispose of it. \' ■ Warren. Vmi
mean tn say that is all there is.

Mr. Warren: -That cross-': .cair.ination disposes of the
witness.

769

lliKCnxeiinnihrr^
(iccnrtliii'i I,) ilig
■.e."

I't'vt'r cDiiits
ttlie UiiiliMl
:in, sliall luit,
■ies f)l' these
at those (Ml
t'act.s (if tlie
il' tlu'Cmiit
;iiii'iit (111 ilit>

IcIlCt'.

Section 4!I4,

o is autiii r-

considcriiig

sidc'inj^ (lie

till- pulilii' or

-■ not ll.MMH (if

Li'M tilt? onti'v is
imtidiis, as fx-
'v Acts lire Cdii-
ir iiiii|Mist>s of
elf cviclciicc of

is iaii^iiafie
it'll t-iiis casn

('ll'CUHistllUOO,

t (if tlic |iiTH(in

■^loil to .-llli-

any oath of

hcforc rhis

f ti'stiiuony

ej^ulaiity (if

lly and witli
word in tlie

f tllCSO VCS-

ii<, and I do
friends will
that is the

. and, on di-
ion, lie said
. Tliat tcs-
xaiiiin.itiiiii;
|v. lu'Cdni,

he (iwii(»i' V A,
fil III-."

1 this K'(>( md

laiiiv.

ed States: -

ii'en. You

luses of (lie

(Mr. Wan en's Argument.)

Tiie Commissioner on the pait of the United States: —
I do not think so. He says tliat Morris Moss sliippecl
him, and tlie effect of that is another matter.

Mr. Warren:-- He says, "All 1 know ahoiit it is that
Moiris Moss ship[)e(l me."

The Connnissioner on the part of Great Britain:— It
niifiht Ix' a eircnmstance to he taken in coinieetion with
10 (it her matters.

The Commissioner on the jiart of the lTnite(l States: —
It does not seem to disjiose of it in the sweeping way you
have stated, Mr. Warren.

Mr. Warren: — Wh(>n I st y that disposes of it, I was ex-
pressin,!;; my opinion, if your Ffoiiors jilease, and I may
liave ^one slightly beyond what I was justified in stating
unless I went further and informed yoer Honors of what
was in toy mind when I made that statement. Owen
Thomas says:

'■ All I know iiliont it is that he is the miiu '.lint 8hip|)e(l me."

1 will cite testimony for your Honors from this Record,
(li'.( losing that Moriis Moss was a man (Engaged in the
business of managing ships for other owners in the Citj'
of Victoria. 1 will cite the liecoid to pidve that Morris
Moss shipped masteis of other vessels that he did not
own. That fact is beyond doubt, and there comes to my
mind now the case of the "Ada "in lss7. Moiris Moss
?liipii(>d the crew of the schooner " Ada," and she was not

30(iwiied i)y iiim. In the year ]SS7, and for a nund)er of
years thereafter, Morris AIoss was doing this kind of Inisi-
ncss. and as I do not desiie to state the testimony from
memory. 1 will inscMt in the notes the evidence bearing
uiioii tliat.

In addition to what T have said in refeience to th.e fact
that Morris Moss was an agent repiesenting other owners
(if schooners. I (l(>sir(> to call your Honors' attenti(jn to
wiio th.is Owen Thomas is and \hat we know of him.
Owen Thomas is the man wii om William Munsie

-+^Mirougbt, when lie was an invalid, fcom the liospifal to the
(■(lint room, ti) give testimony concerning the voyage
of tii(> "Cai'oleua" on the coast of Vancouver Island
in the spring of the yeai' issti. What did William
Munsie jiroduce this witness for? He actually
produced him hims(df, hecaust! the testimony shows
thiit Mimsie went to the hospital and brought
Thomas from there to the court room. The witness
was pro(hiced and testified that tin* " Carolena " did
no trading on the coast in the spring of ls8ti, and for the

3"pnipose of establishing that tlu^se supplies .put on board
the "Carolena" were solely for a voyage to I'ering Sea.

I read fidtn the testimony of the witness Thomas, itec-
iii'd, page 'Jiu, line l'H:

•• Q. Mr. Thonms, vdu live in Victoiiii? \. Yes.
" Q, And (1(1 Villi rcincinbcr the sclKHHicr ' Ciirdlcna'y A. I do, .sir.
" t^ In IHHti wcrevdu (111 till' schooner ' Ciivoli'nii '? A. Yt>s, Hir.
" (.}. Ah n pilot or something of tliiit sort? A. Yes, sir.
" Q. Where did you ^o on lierV A. Went to New C'hatelet (Espe-
" ruuza Inloti Home time aliont the middle of Fehniarv,"

This was the voyage of 1>>^<>.

" (,). What did yon no tlii're for? A. For ii crew of Indians for

Hi'lirini.; Sen.

" l^. Did yon ^et the liidians? A. No, sir.

"I). Did yiiu tidve Home supiilieH down there? A. Yes.

Ill'

77(»

(Mr. Warren's Argument.)

" Q. What were you going to do with tlio Hupplies? A. Goiug t.i
" feed the ludiiiiiH

" Q. To koi'i) the ludinus? A. Yos, sir.

" (J. Whs it jour iiitt'utiou to laud the supiilios? A. Yes.

" Q. After you fouud out that the ludinus wouldu't eome, wlnit ili.l
" you do with the supplies? A. Took them ahoai'd."

10 a

He testilied that lie landed the supplies and took theiu
hoard again. There is a witness wlio contradicts him
bsohiti'ly on that point, hut 1 will pass that:

" Q. Did you or did you not leiiv(! any supplies there? A. Xo.

" Q. You got no Indiiius? A. No ludians, they wouldn't go.

•' Q. How long were you at this jihiee? A. (^uite u long time tlicn'

" tji. What were you doing there all the time? A. The vessels liii,|

there and we tried to eoax them to go.

" (). And you failed? A. Failed, yus.

■• y. And then vuu .veut where? A. Vietiiria.

" Q. Direet? .\. Direct, sir.

'• Q. Stopped at no other phiee? A. No, sir."

Consider the te.stiniony at pap(^ M'2 of the Record. liiH-
•2, il >i>iii' Honors please, of Michael Serault:

'• (). On whieh trip of the 'Carolena ' did he come to Victoria? A. 1
think it was when tliev ipiit sealing on the coast, as near as f retcil-
lect."

.Michael Serault testified, a witness pioiluced hy thissiino
William .Mnnsie, that the " ('aioleiia " sealed on the coa-t
ill Fcliruary, ls>t'i. i will take it for granted that your
30 Honors renieinher the testimony of this man Serault. 1
read yesterday where he specifically said tliat they were
sealnig on the coast, but at Record, page <)4.5, line 41. lie
said as folio ws:

'• (). They went up there tirst and before the canoes were put mi
"hoard, and went sealing in the spring, in February, on the coast y
•■ A. Yes."

Owen Thomas isahsoliiteiy contiadicted on the most ma-
terial matter, as to whether or not a great (jnaiitity of
40provisions were put on the "Carolena" for u.se in Bering
Sea, oi- tor use on the west coast ot N'ancouver Island in
trading. >r in sealing -alisolutely convicted of giving false
testimony.

Tile Commissioner on the part of the United States:-
W'liat IS vonr ntcreiice, Mr. Warn 11, to the legistry of
tlie " Lily"";

Mr. Warren:- i'ago 1!»7 of the exhibits.

The Commissioner on the part of the Unite'. States:—
Who put il into the case^
50 Mr. Warren;- It is put into the case as Exhibit No. sii,
claim No. mjii the part of ( irt'at Britain.

The Commissioner on the part of the United States;—
Did you refer tothe registry of the "Black Diamond"?

Mr. Warren:- It is printed at jiage liTit of the exhibits.

.Mr. BeKpie; Thr register of the "Lily"' is continiR'ii
from p ige l'.»7 to page ;iS4.

Mr. Warren; 'i'hat is an error, Mr. Bei(pie. The r-'gis-
try IS not continued at page :!s4. On page ;is4 is prinlid
a copy of a papci' taki'ti from the "Lily" when sire was
'^o seized in Bering Sea.

Sii' diaries llibhert Tupper:- Can you give tiKMefereiuo
III llie Record with regard to Morris Moss shipping the
crew of tlrt^ " Ada"<

.Ml. War'r'en:- Record, page l-':i4, line lo; liecord. page
Il':'..">. line !.">; Recoril, page ['XV2, due i!;<.

■■■I

771

(Mr. VVaiTcirs Argument,)

Sir Charles Hibbeit Tupper;— I asked if you could give
nil' \hv reference to iiis shipping the crew. Page 123-t
(|(H's not do it.

Mr. Warren:— If your Honors, please, I would prefer to
give the entire testimony this atteinoon.

The C'oininissioiier on tiie I'.irt of the United States: I
uiiiild like you to tell nie. Mr. Warren, whether there is
knUiv fvidenci^ that tlie mortgages, or what you say were
iiihirmal mortgages on tjie-^e vessels iield by Frank, were
ovci' (lischaiged until atter the scizurr-s, and wh'ther or
not there is any evident e ihat these inoitgages were dis-
|ioM'.| of m connection with the alleged sale (»f Morris
Mos^.

Mr. Wari'en: lean answer your Honor's (|uestion now.
i'licn' was a inortgagi' on hut one of the hoats, namely,
thi' '• liily." 'Ihcre was no mortgage on tlu^ "Black
hiainond" to .Alexander Fi'ank. The mortgagt' on the
.M'l.ily" to Ale.vander Frank l)ore <iate Fehruarx' t'>, ISSO,
l)riiig the mortgage on the " A If led Adams," recorded
K( lirnary li», l^^sc, Fxhii)its. iiage l!ts. line 4."); and that
iiiiiitgage, which was not included in the estate of Jacob
(iiilman. as one of the liabilities, was not dis'harged of
ividid at the time Moriis Moss took that title, and was
ncMM discharged of record, until tiie itth day of February,
l-'.M. when vve find this (F.\hil)its, p. l!t!», line H(»):

• liisi'liarfji? of J[oi'tp;iijii' • A ' for !B1,250, mroipt tlntud intb Novem-
■ 111 r. ISS'.l. and oi'dcr in council aiitlioriziug discliurgo of Mortgage
30 •■ ' .\,' till' iiriKiuul liaviug Imu'u lost."

1 had intended to refer to that later in my argument iu
( (iniitiction with tin sc; claims, l)ut I put it in here be
<-,iiise of the iiuiuiiy of the learned Conmiissioner for
the L'liited States. I desire to call your Honors'
iittciition to the fact that the receipt is dated the ISifb day
(if November, 1?>S'.t. What brsides occurred on the i'.tth <lay
111' November, l.ssi'? On that day Morris .Moss parted with
his jiaper title, and to vvhom^ To Victor Jacohson. In

4 till' month of -Xovember, 1S.S!», what els(! happened^ Alex
under Frank went to the City of San Francisco to reside
iH'iinaneiitly, and never put his foot on British soil after
tli.it day, with the iiitention of remaining there. That is
wJKit happened in the mouth of Noveinijei-. issit. 1 said
the month of .\ovt'ml)er, Issit, but 1 will reaii tiii' Record
l.ttrr to show that it was in the fall of iss'.t, and as I
(Id iiol desire to static a fact which is not foinid in the
IJniird. ] will withdraw the use of the word " Novem-
lii T." Therefore this fictitious mortgage which was never

^iijncliided ill tlie liabilities of -lacoh (iutman's estate, the
oiiomai of which the order in I'oniicil says was lost, re-
ih.iined on recoid. while Morris .Moss iield that title as
(■i|nilaiile trustee -as trustee for Alexander Frank -and
wiis never discharged until Morris Moss parted with his
|i:i|ier title at the time that Alexander Frank sold his
iKiiliiig stations on the west coast of Vancouver Island,
;iiiil jell the City of Victoria, as far as busiiu'ss was con-
ii'ined, and for every purpose whatever, to reside in thi>
I'll', of San Fi.incisco.

I w;i> reading, if your Honors please, from Creenleaf on
Kv ideiice, and 1 ((Jiitiniie:

■ TW rf i;istr\ . tlu'vi'tmie. is not of itsplf oviilcm-o of |iro|)i'rty, pxpei)t
" Ml {m.t as It i> 'oiitirnied liv somt' iiaxiliarv ('irciiniHtiincc showinj,; tliat
■ It was mailr tiv tlii' uutllorit^ or assHnt of the owner nanu'il in it.

(Mr. WarnMi's AigmiKnt. )

" iind who is sought ti) he churned us owui'V. Without siu'li (-(111111 i.
" illj; l>roof the rn/i.iler /kik lieni liehl mil li> lie evfii primii fuch' eriii n,-^
" (i> c)mr<ie a iiersoii as inniT, niiil oven with such proof it is not ('dii-
■' olusivo ovidt>uci' ml ownorshlp; for mi ei/iiiltih/H litlt; in oni> ))«■!>.( in
•' umv w(>ll consist with tlio (locumeutary title at the Custom Hoinc
" in another."

No l;iMj;iiis«' wiittcn by any man, \vlu'tlit>r lie lie so
lociiiiiit'iit a^ urccnlcaf or not, cimld 1)0 iiuirt' apjilicalilf to
the ci.'cnnistanct's wo are now consideriiiy,'.

'• Without such oonnei'tiug jiroof tlie renistrv lias lieen held nol lo
•• be even iinnin fiirif eviilence to ehurf^e a iiersoii as owner; iiiiil cmh
•• with siicii jiroof, i( is not eouelusive evidence of ownershij); for llic
•• eiiuitalilc title in one person mitilit well consist with the doeuimii-
'• tarv title at the I'ustoni House with another."

" W'liere the iiuestion of ownersliip is nier(dy incidental " -(iricnl. ,if
continues, and I call your Honors' attention to this laiiKnau. .
" where the i|iiestioii of ownership is merely iucidtuital, the rej;ist.r
" alone lias heeu deemed suHicient prii'i'i facif evidence, Imt id /(inn- nf
2Q " the pfrxiin cldiiiiiiif/ an oinirr. il is no I'riileiice at nil, l>eh>g imlliini/ """'f
'' lliim liisowii <led'ir.ili(i)i."

If your Honor.'^ ploa^^o, what roniains of thi.s rooistr\ ;is
ovidence for tlio roniisol who claim for Morris Moss^

At ono o'clock the Conuuissioneis took I'occss.

-^ At half-past two o'clock the Coninii.ssioners rosiinic(|
^ their scats.

Mr. Warren: I think, if youi' Honors please, that I
have ostalilished those facts; that the testimony of Ow.n
Thomas alone, ontsido the testimony of .Moxandor Traiik,
snpports in any way the onti'ios in the ship's I'ogister, ami
his testimony is di.-posod of, tiist, hy his own cross-e.xami
nation, ;ind secondly, by the jiroof that ho has f;iven faNo
testimony in another cast*; that, on Iheanthority of (irccii
leaf, the shijt's rejiistor is no ovidtMice at all for Mori is
40 Moss, foi' (irconleaf says, "lint in favor of the person
" claiming as owik r it is no evidence .at all, heing iiotliiii;.;
" moioiiian his own declanition "; and that Lord Stowdl
has decided that if the ship's jiapors say one thing and the
snrronnding circmnstances disclose a very ditVerent state
of facts, it is the dnty of the Court to decide in accord.ince
with till' prepoiidei.ince ;uid weight of the evidence.
Having disposed then of the testimony of ( )wen Thomas,

is 110
Morris Moss, upon wli.il
Solely ii]poii the testimony

iiid having ostahlished that the icgister

if wo have

fvidonce to siipjioit the claim ol

50 testimony does this claim roslf
of Alexander Frank.

A St rangf' tact it is that no wiliioss covdd ho prodnc id
except Aloxander Fr.ink, who would testify th.it Mom-
Mos'^ hail any mtoicst in those vessels. The executor of
the estate of .i.acoli ( iiitman was a witness and teslitiid
tiiat Ale.x.andor Frank coiitimiod the hnsiness foriiiorly
conducted hy his lirot iiei , .l.acoh (intman and .Me.xandcr
Frank 1 Record . p. K'.ti,"*, lini' lioi. Not, one of all tlio
persons ill Victoria who were intorosted in sealing, and

f)(jWho wore coiiveis.int with the interoslsof the various pci
sons in the schooiiois iis(>d in t he se.aliiig hnsiness, tostilied
that Moriis Moss had ;iiiy connection whatexcr with the

'• Black Diaii 1 "' and the " Lily " in tlu. year lss!t.

Mefore I t.ake up the discussion of the weight to ho given
Alexaiiiler Frank's testimony, 1 wish to call your Honors

Hlich COUUl il-
it is uot <'ou.

.11 Olio ptTM.U

■r 111' he so
|iplical)le lo

■n liolil rioi 1,1
ner; iiuil i\r„
'VMhip; I',, I- tin,

tllf lloCUIIM'll.
1 "— Wl-Cl'lllrilf

« lanniiHt;-! ,
1, the rct,Mst.'r
/nit ill /(in 11- I,/
g iiiilliini/ iiinfe

rojiistrv as
Moss?

;s.

■rs rcsiiiiifd

easo, tlial 1
ly of Ow.ii
luh'i'lMaiik,
I'j^istcr. ami
iiss-cxaiiii
givoii lalsc

of (IlCl'll-

for Mollis
lie pi'i'.soii

nj: iiotliiiii;

ird Stowi'll
iiK '111(1 till'
■rent stato

iii'conlanct'

U'C.

Ml Thomas,
• tcr is no
poll what
t('stiiiion\

|ii(»(lii('i'(l
iiat Morns

Nrciltur (if

id tcstiticil
fdiiiici ly
Alexander

(f all the
■aliii^, and
aiioiis per
is, test died
M- with the

I ss!t.

to 1)0 ^;i von
iir llonois'

(Mr. Wanen's Argiiniont.)

aitcidioii to Olio fact. I have hero cei'titied copies of the
ship's papers taken off tlu> "Black Diamond " and the
" Lily " when they were sei/.(>d; and what name is in tiie
certificates of iefj;istiy< The name of Morris Moss? No,
,Iacoh Oiitman. U there is any douht ahoiit that, T will
K ad it. if not. 1 will refer to it simply. Tliev are Kx-
lilMts, No. 20, li. S., Claim No. K'. and Exliihi't No. 11:5,

lodnat Britain, Claim No. 1."); and ;iiiiong those papers,
(Ml lied hy this captain, Owen Thomas, and taken olf of
tliost" vessels when they were seized in the year ]H8i», was
fdiiiid a certificate of rej^istiy. stating that Jacob Gntiiian
was the owner of thost> vessels.

The CommissioiKM' on the part of the United States:—
What is the date of that cfMtificatt^ of registry, Mr. VVar-
rciif There is one attached to the pr(.<!eedings at Sitka
and printed in llie t>.\hil)its; tliat is the "Lily."

Mr. Warren: -They are both in evidence, if yonr Honor

20 please, lint only one is printed; th(> other is in docn-
ineiitary form in the hands of the Secretary. One of
these registri<s, that for the "Lily," Ixvirs date, so far as
the ownership is concerned, the I'tith day of April, ISSS;
lint I call yonr Honors' attention to this fact that no certi-
ti(atcof registry was ever shown to have been issued to
M(ii lis Moss, and on this certificate is contained a niemo-
iMiidiim as follows:

•• I li('rol)y cortifv that Joliii Riley lifts lioen aiipointod master of the
" uitliiii iiftineil sclioouer, Custom House, Vietoria, H. V.\ fileil Septem-

10-- I.r-JOIIi, 188!)."

.\ii(l on the other jiapers taken olf the "Black Dia-
iiKind " is this:

• Hi'iiiy Hmith is this day appoiuted master of the within named
" silimmer; (ieorge Euo, Surveyor. Owen Tliomivs has this dav been
••M|i|Miinted miister, Februiirii V'tli, 1SS9, A. R. Milne, Collei'tor."

The Commissioner on the part of the United States: —
WlitMi does Mr. Fi;ink claim to have scdd to Morris Moss?
40 Mr. Warren:- -NovtMiiber lo, issS; after her certificate
(if registry, so fai' as the ownership is concerned, beais
(late. I only ndVr to these papers in jiassing. for the pur-
pose of showing that no other certificates of registry ever
were issued, and that entries /icii/'/^;/ (/(*/c /.s'a'.'>, concern-
iiij; the apiiointmenl (d' her master, were made on tlie.se
papers.

'I'iie Commissioner on the part <>f the I'liited States: —
I snppos(> that til change of masters was rtvpiired to be
"11(1(11 sed oil the ceititicati's ol registry on the enrollment;
ji-dint 1 do not know what the law is in (ireat Britain in
(•eiinectiiiii with taking out new registiMs on change of
iivviii'iship

Ml. Warren:— If yonr Ibniois please, hefure we finish
(iiir side of the case, the IJegisliy .Acts of (ireat Britain
will he called lo your Honors' atteiiti.ni and made jihiiii.

Tlie ( uiimissioiier oo the part td' the I'liited States: —
l'\ iiiir I w a vessel reliiining to a home |)ort would be
ii(|iiired ; 1 surreider ,1 cerlilicale, and take out a new
eiie. but tb V do irit always comply with it.
'* Ml. Warivu: -I merely adverted to lli(>s(> facts for
uhal they wi e worth ,iiid ,ilso for (he |iurpose of going
'■eiiicu hat lie\ nil tiiesi papers .iiid shdwing aiidlher aiul
an additional fail, that in the testimony given by Captain
Slii|i;ird at Sitka, at the time the skins from these vessels
wi le condemned- because the skins were taken to Sitka

(\]r. Warren's Argiitnoiit.)

and tlu'ic lilu'llcd, condenined and lorfoitcd to th«; Unit, d
States -lie said:

" Wlu'u tilt' Hohoonor ' Lilv ' wnn tlrst Hinlitod," &o., " on liourd iiic

" vt'Hscl foniul frcsli seal Hkiim mid lilood on di'i'k. '\'\w hcIum i-

" 'Ijilv' WHS lit" (mill tliis ri'liitrH to tlic conti'iitioii Li'i'c) '•(i^.7."l
" tou», WUN owiit'il liy Frmik- '(ml (liitiiHiu of Vii'toriii," t'ti'.

,p VVheit! did Captain Siiciiard asi't'itain tliat (Jut man ami
Fiank owned this vi'ssi'l; lie was doubtless iitiawaiv nf
tile death ot Jaeol) (intinan between tlie yeai's l.s<7 .hhI
ISSH; bnt in llie veai- issT lie say,-, in liis lestinioiiv. m
cuiineetioii with the " Hlark Diamond '':

" Tlic vi'Nsi'l mill outfit wciv owiKul liy tracoli Ontiiiaii ami .\lrxiiiiili>r
" Frank of N'ii'toiiii, J{. V. Mr. [''rank uifornit'il inc, in 1HS7, tljul lir
" waN a citi/cn of tlii' Ihiiti'il ^Statt's."

'That language doi's not fi;o to the Uei'iiel of the
^ issue. I niiderstaiid. It is not that Alexander Frank
t(d(l him that he owned these vessels; hut. it it is not lair
to pi'eMime that when Alexainlef Frank told him thai he
was an Aineiicaii citizen they were talking ahoiit his in
teresis in these vessels, then we cannot go I'ar with pic-
snmptions, Hut we do not have to rely on ( apl.nii
Shepard to show that in JSsT Alexander l<'rank did own
thesis vessels, hccanse 1 have demonstrated that he did
own halt of the "■ Alfred Adams" in l^ST, and was in-
leiested in the " Hlai'k Diamond" in Issti; there is no
^ dotiht in my mind ahoiit that, although Frank denied ||i;it
-^ he ever was interested in these schooners. The fad. that
these jiajieis were aboard, and that new papers were iie\ir
taken out by Morns Moss, tends to show lliat in reality
tlieie was no sale to Morris Moss.

1 wish to consider the testimony of Alexander F-'raiik as
brietly as ]iossibK', and not weary the t'onrt with a re.id
ing ot his artidavits, but simply cite them and read biiillv
from his testimony,
lo Th(i testinioiiv conimenccs ill the Record at jiage \W.\,
lineal:

" Q. You wi'ii' a paitncr witli Jaroli (iutniaii lioforii liis iti'atli uiul
•• up to tliat tinu' '! .\. Yi's, sir.

" Q You arc awarr tliat tlic ' Ulack Dianioml ' ami the ' Lilv ' woro
"sold to Morns Moss on the lOtli Novrniln'r, IHHH ? A. l"do nut
•■ know the date, lull 1 know that tlii'v were sold.

••(). Aiiliroxiniatelv tliat V .\. Sonicw lirri' aliout that tiuic.

"(j. You know of tlii'ir having lii'rn sold to Morris Moss ? A. Yos,
" sir.

" C^. Will vou sav if tho salo to Morris Moss was a gonuini- salo ur
.o"notV"

That (piestion 'vas not answered. 'J'heii the U'aiiicd
counsel put this (|iiestioii to the witness:

'• (). 'I'lii' only fai't I want to elicit is wliother you were iiiteri'Klid
" ill till' imicliase as niiidc hy Mr. Morris Mohh of the two vessels in
" iiuestioii? A. I was not."

lieaiing upon that statement I will road from the cross-
txaminatioii of this witness (iiecord, page l!tt>l», line (io);

('. " (i). i'dii !,ire'ir l/iiit Morris Miis.'i iitnin l/iiti claim iif Ihe 'Lili/' wiainst
•' llip Uiiilcil Sliili'K Giirrriimenl? A. IIV//, im; I iritl not xwrar llinl,

" i). W'i/I i/oii yirrar thai Min-rin Mosa iiiriin Ihe ' lildck DitiiiKimr li'iiiit
" iii/tiiiix/ III!' Uiiilfd •Sliilrs? A. y mill mil niitnir In il."

I'heii wb;it does this witness say:
" Morris JIoss is dead, vou will recollect."

775

li'l.; ' :i,

(Mr. Warren's Argument.)

his (li'iitli iiiul

\V;is that \]w n\ison wliy, if your Honors ploaso, he
\vi lid not Hwcar tliat Morris Moss owned llieso clainia
;iu liiist the (iovernmont of tlie Uiiit«!d States? The re-
in iik shows the ciiaracter of this man. Tlie ne.xt qnes-

ti.'ii is:

■I). Di> i/i'i( sweur Ihnl the eslole <>!' itori-is M'^ss (hits mc/i the eluiiii of the
'•• I :iil' tuidhisl the I'liltiil States':' A. I tcili iii}l sir,,ir tn it.

1,1, Ihi ijuii sieiiir th'it (lie eslile of Man-is Mi'ss mniiil the etiiiiti uf the ' liUivIc
I n/i'i/id' aii'tiimt the I'liitc:! Stales? A. / leitt imt sireur tit il."

Xowhi'ic within the covers of this Record does .Alexan-
il( ' I'VaiiU swear that he w;is not interested in tiie venture
1,1 ihose hoats in tlie year jss!*. or tlijit he (lo(\s not own
ill. ,.' claims a;;ainst tlie( iovernnient of tlu^ I'nited Stales.

Why did not ^h)ritz (inlman testify that th(> estate of
J;i,.il) liutinan sold the schooners to Ahiri'is Moss? He
si-iicd the alle^;ed hill of sale, lie petit ioned the I'rohate
liivi-inn of the (.'ourt for authority to sell to Alexander
-'•^jMniik and certainly could have lestitied that Morris Moss
w.is tiie real |inrchaser, if such was the fact.

Thf direct-e.xainination of Ale.xander Frank, on page
I'.i'.i;'.. line r)S, is as follows:

• (,». ttiiil yon Htnrtcd tlic new liuHiiii'SK in Hun FriiiiciHco V A. I liad
• ;i iKUhii'i' ill IHS'I tlic 1st .liiiiniiry F tliinU, ISHi) „f IS'.Kt. 1 do not
•■ Know tin" rliitc exiu'tly ; it wuh nut ii new Inisini'ss l)nt iiu old estub-
" li-.|iiMl liusineas."

Alter the 1st Jamiary, ISsit, he says afiain it was 1880,
joimt |s',Mil Ale.xander l-'rank then continued to own these
ti;nlin;; stations on the west coast of X'ancouver Island
iiiilil llie h'all of issif, and Morris Moss held the title to
tliise ships until the sth day of Novemher, 1SS!», when
tjifv were hoth sold and transferred, and then, and then
only, was a receipt given for the mortgage on the " Lily,"
wliicli mortgage the ( (rder-in-Council sul)se(juently shows
cdiild not he prodnceil. 'I'he cross e.xamination was taken
lip at Ifecord, page liiJtt;, line tis. Alexander Frank testi-
licd as follows;

" (,). Did V(ni, lit the time von took tlio property in accordance with

• this bill o'f sale, dated Htli Kovombor, 1888 "—

ilhal is not the hill of salc> to Morris Moss, which is not
in evidence, hut a hill of sale to Ale.xander Frank, convey-
iiij;, as I will show, these very schooners, and which is in

eviiii'iice) —

" iinil cxi'i'utt'd on tlio Otii day of NovonilH'v, which Ih Exhiliit No. 127,
" (i I!., take all tlu> assets of tho estate of Jai'ol) Gutnmn, and as-

• Muiic all the lial)ilities, exet^it the ehiim of tho ' .Vlfri'd Adams,'
' dill' half of it V A. The tinn was inscdvf'nt at the time.

' (.,) I'liat iloes not answer tlie iiuestion. A. The ox])lanatiou that

• I uKUl'.'il to nive "

■' I'hc Commissioner on the part of the United States:— That can be

• l^iMU afterwaids. The (inestion is very simple.
'The Witness: — Well, I assumed all the assets and all the liabil-

' itii's."

■ Cross-examination by I\[r. Warren coutiuned:
'■<,>. You did at one time own a half interi'st in the 'Lily,' and

' (bii own at one time a half interest in the 'Black Diamond,' did
' v.iii not? A. 7 iliil mil i)ir7t litem; I claimed to own an interest :n

' thrill.

■ (,). By that you mean that you were not the roRistored owu(>r? A.
' 1 claiiiied to own an interest in them to protect my interest when I

• foMiid that the firm was iusolveut. There was nobody to dispute
■ luv iit,'lit in them.

• (,» Were they partnership property at the time you and Jacob
' (liiliium were in partnership? A. I was in iiartnershij) with him."

;o'

«!•'

77t'.

(Mr. Wivrron's Aigumeiit.)

Look at tlio answor of this witness to tlit'se questions,
lllusivo, evasive. xVgaiii tliequostion is i)ressed:

" Q. / ii»keil i/nii if llieif wcru juirliier.iliip pro/terlt/ when >/nu wen' o,
" pdytiifrnliip iril/i Jiical) (Jxlman? A. Thei/ were mil."

" They wtMo not." I have road at least five artidavits
j^mado by this man in wliich he swears that thcij Kwri' fun I
iiersliip property, and of tliat fact there is no sortof ddiilil.
These affidavits arc found in the Exliihitsconinu;ncin{< finm
page 207 and continuing to page 214, inchisivo. I siiali imt
read them ail again because I have road from them whi 11
discussing the " Black Diamond '" for issti and the " AU'ivil
Adams," hut will simply cite the references made to tin so
two vessels in those allidavits. Page 207, Kxhibit 1, lino
22, I will read:

"Thnt the Raid pHtatc of the Haid Jacob Outman oonHistH of (iniir
20 " alia) a Hritisb Hliip r('Kinterc(l iu tho uaiue of the Hiiiil Jacob (hitiniui
" at the Port of Victoria, BritiHli Colmubia, aforcHuid, nuch »\\'\\i biiut;
" reniwtoreil as the 'Alfred Adams,' and thirty-two sixty-fourtlis<i{ ainl
" in a certain whip heloni/iny lo the S'lii/ Jirm nf ' Uiilniim mid Frank-,' Init
" which Haid hist mentioned ship is registered at the said Pdit .if
" Victoria in the name of the said Jacol) Outmau.and ia registcn d
" under the name of the ' Black Diamond.' "

Never owned these ships! And here on the 31st ef

Janviary, 188S, he swore to an affidavit in which he spcci-

cally and emphatically said that one-half of the vessel,

30 the "Black Diamond," belonged to hiniaud the other half

belonged to Jacob Gutman.

At page 207, line (>3, is this statement:

"That the said Jacob Gutman was at the time of his decease »
" partner with me in a business carried on by us at the City of Vic-
" toria ax merchants and Indian traders, and that the estate of the said
" Jacob Gutman consists of one-half interest in the property of hiuL
" partnership. That the account hereunto annexed, marked' A,' w it
" true account of the assets and liabilities of the estate of the said Jacdli
" Gutman, deceased. That the account hereunto annexed, marked • If,'
" is a true account of cash received and payments made Viy me from the
40 " 4th day of October, 1H87, up to ami until the present date, ou the ac-
" count of the said partnership tirm, and that such account shows tlir
" dealing of the said tirm and with the said partnership jiroperty duviii^'
' ' and between the said dates.

" (Sgd.) Alex. Fkank.

" In the matter of the estate of Jacob Gutman, deceased. '
" lowing is a list of assets of the estate of the deceased. The 1
"is entitled to one-half interest iu the following i)roperties:
" Schooner ' lilavk BiamonJ,' IJrilin/i Schooner ' Lilj/.' "

The fc.l-

ilcceaseil

Brih.<fi

50 At page 209, line 42 of Exhibits, he swears that tlio
schedule is correct. On l)ago 210 of Exhibits is (he
schedule sotting out by name both the " Black Din
mond" and the "Lily," and alluding to the "Lily" ii.s
being formerly called the " Alfred Adams," and at Hue 47
is a reference to the claim of the " Alfred Adams " agaiusl
the (iovernmeiit of the I'nited States.

And in another attidavit, at page 2lo of Exhibits, coin
mencing at lino 50, reading from lino tlli, Frank sweai.s
that " III I lie course of our saiil Imsiness our Jinn pos-

■60 " .sc.s.sr'/ ////■('(' .s(7/(>o/(('/'.s," and at page 211 of Exiiiliits,
line 8, he says: " In the mouth of Eebruary in the piv-^-
"■entyear" (that year is 1887, the allidavit being swcjia
t(j on the 1st November, 1887)--" said (jutman sailed in
'' one of uur saiil schooners hioini iis the ^ Black l>io-
" 'mond.'"

n i/oit wer, n,

777

(Mr. Warren's Argument.)

At pnge 212, Kxhibitfl, coinmencinc nt lino 51, is found
a M'luHiiile called " A," stating tliat tho following is a list
(ii ships of the firm of Outnian lSc Frank in wiiicli the
ai lovo named deceased owned one-half interest:

" Schooner 'Black Diamond' Jfl.SOO 00

"HoLooner 'Lily' 1,500 00."

'0 At Exhibits, page 2 IS, line 3;?, is found tiie affidavit of
Miiiitz (jrutman, who swears thai Out man and Frank
iiniKut till' " lilacli- DiamoniV and " fjily," and owned
till' claim of tho "Alfred Adams" against the Govern-
iiiiiit of the United States. And when I say that ho
f^wdie that (lUtman and Frank owned them, I use his ox-
a' ! language as regards the " Alfred Adams," and when
I -ay that he swort; that they owned tiie " liily and
•' lilack Diamond," his language u|)on which tho assertion
i- hased is, that the estate of (iutman, of tho firm of C«ut-

-0 III 111 &, Frank, is entitled to one-half interest; therefore
Frank, tho only partner of (rutman, was owner of one-
lialf.

Now, we come to the actual bona Jide sale made by
judicial authority — by the sanction of the Probate Court
till the Province of British Columbia — of these very
sclmoners to Alexander Frank. And when was tho order
piit( red ordering and confirming that sale? On the Uth

3i',|ay (if November, IHSS, which was exactly /oHr daysafter
Mdiiis Moss recoi'ded, if he ever recorded, a bill of sale.

i'liat bill of sale to Alexander Frank and the order of the
I'diiit are not printed in the exhibits, but they are in the
Ktciird, and I call your Honor's attention to the Record
wlicio they are found.

'i'lie Commissioner on the part of the United States: — I
undiistand the state of the case is that Mr. Frank
a iiiiits that he bought these vessels and claims that he
sdM to Morris Moss.

40 Ml'. Warren:— He denies that ho ever owned them, de-
iiii's that he sold them to Morris Moss, denies that he ever
liatl title to them. I have read to your Honors tho testi-
iiKiny where he denies that he ever owned them, and he
lu'vir changed it. If the fact was that Frank acknowl-
e(l;.,'('(l tliat he and Gutmau owned these boats and that
thuy were transferred to Moss, that would be a very dif-
fcii lit and a more dilTicul tease of manufactured testimony
tddcal with, but that is not the fact. The fact is that he
suoie at Victoria that he and Jacob Gutman never owned

501I1C sliips, and he was examined as to these affidavits
only on cross-examination. That is tiie fact. He
saiii that the estate of Jacob Gutman sold these ships
to \hirris Moss. I say that the estate of Jacob Gutman
siild the interest of Jacob Gutman to Alexander Frank by
Old. r of the Probate Court, and that the equitable title is
ill .Mt'.xander Frank, who afterward had the vessels regis-
tcivd in tho name of Morris Moss because he was a
LJli/i'ii of the United States, and could not register tiiem
iiiiiiM'lf. And the entry in the registry, which states tliat

''lotin' lull of sale to Morris Moss was recorded, recites that
thai iiill of sale was recorded on the loth day of Novem-
liii iss.s— the same date in both registries, the 10th of
.XHM'iiiher, 18SS.

1 1 your Honors please, I trust that I will make myself
clc Illy understood about these transactions, and that it

IMAGE EVALUATION
TEST TARGET (MT-3)

'^s^ ^^

1.0 ^Ui |i£

■tt lU 12.2

I!? 144 ■"
Lo 12.0

I.I

Sciences
Corporation

33 WfST MAIN STRUT

WItSTH.N.Y. I4SM

(716)«73-4S03

f^^

;^i^

<i^

IIS

(Mr. Warren's Argument.)

will not be believed that Alexander Frank swore that lie
owned the schooners at one time or that he had trans-
ferred them oi sold them to Morris Moss. He swore tliut
he never owned them, ond the affidavits only, put to liim
on cross-examination, contain the statements that lu> dul
own them.
The Commissioner on the pait of the United Statis: I
loremember Frank's testimony quite distinctly; it is alxiui
the only testimony I do renu'mber. His testimt)iiy in
substance was this: he played fast and loose on the poinl
that tlu'so vessels were in such condition that he cdiild
claim them or not, and after the death of Mr. (iutiii.ui,
findinji; that the (iini was insolvent and tliiit it was iii'( ■■;
sary to claim these vessels in order to |.i'(itect iiiiiiM If
against the liabilities of the liiu), he claimed them. Niw,
here is the pith; here is where tiiis question turns (Ueciml,
I'.t'.tO. lint' »;o):

"I toll you wt> uevor iiwnod thoni joiutiv, It was after his ilnitli
" wht'u I cliiiiiu'd tlii'in, liitviuff foniid out lie was loHt, to iirotcct luv
" inti'i'fst.

"Q. When did you ndonse the cliiiin of the 'Lily' and ' lilark
" Diuiuoud '? A. Wlieu thoy wero Hold."

That is to say, he claims that after Gutman died tin.'
title vested in him and that he sold tiiein in order to wiinl
ui» affairs. That is his position. So that by his own ad
mission, unless he sold these vessels /<o»(//fV/e after (iiit
man died, be was, as I remember his testimony, theowmi
^ of the whole of them in lf>s)>.

Mr. Warren: — He swore emphatically that bo ncv.i
owned them.

The Conunissioner on the part of the United States:
I know that lie swore. But, assuming that ho did own
them, be adn)its that be claimed them after Gutman iliwi
and that he sold them as surviving partner, I suppose.

My recollection is that in his testimony somewheie lio
states that he sold out this jwoperty in order to liquidate
the affairs of tlie concern. Ho sold various kinds of proj)-
'^ erty from time to time.

Mr. Warren: — He first swears:

" Q. You aud tlutmau uover owned the ' Lily ' and the ' Black Diii-
" moud '? A. Ho l)ought them.

" y. Now, aiiHwer the quoHtiou, did you or did you not? A. I IdM
" you we never owned them jointly.

"Q. Thut is, before Outman'H* death? A. It was ofter Outiiiaii's
" death when I claimed them.

" Q. When did you rcIeiiHO (not i/mir lille) i/oiir cluiin on the ' X.iU '
" and the ' Ulack Diamond V A. When they "were sold."
50

I did not ;usk him, '' When did you release i/oiir titti'"
because be bad sworn (hat he never had <t iUle.

Now, let us jterceivo clearly the absmdity and falsity nf
his position. Does a man have to claim to oivn bis df
ceased jtartnei's property in order to satisfy the debts ol
thetirm; Since when was it established that as to pail
nership property after death the property of the deceased
partner was not lial)le for partnership dei)ts? Hesaid that
he had to claim tiie.se schooners in order to protect bis in-
6oterest. This is a tictiti»»us reason — a reason absobittly
void of meaning — this pretence that one jiartner is coin
i)elled to claim tiie property of another partner, and i'H
rorc d to make false affidavits in order that the survivinjj
partner may be able to subject the deceased partner's i-s-
tate to the payment of debts of the partnersliip. Every

and ' Hla< k

77)»

(Mr. Warrfn's Ar(;unient.)

(liillar's worth of Gutnian's property was liahlo and Frank
w IS compelled to take m«) steps whatever, and ahove all,
w IS not compelled to swear falsely.

The Conunisvioner on the part of the United Statbs:— I
tlhPiinlit you had pass«>d by iss" and iHHti and that you
\\i r«! now disciissui}; the position of matters in IIS«}»<

Mr. Warren:— I wish t<t call attention to the fact that
lulu' never stated tliat he sold imt these vessels; 1 remember
viiy distinctly the impression his testimony made on my
mind. I reff'r to his positive statement th<'re- that he
111 \ CI owned the vessels -for the purpose of showing com-
|i|ctely its falsity.

I"iu' Commissioner on the part of the United States: -Is
tlii'it' tMiougb in this record to enaltle the Commissioners
III (ivercome that |tositive statement; It st-ems to mo that,
S'l far as I am concerned, this is the »)«estiou. Of course
hi-; manner of answcrinj^ any question has its weij;ht.
20 Mr. Warren:— I was endeavoring to demonstrate first,
lli.it be swore that be never owned the ships jointly with
(iiilman, and then to show that be was contradicted abso-
hili'iy l)y bis own atlidavits made years before.

Tlie Commissioner on the part of tlie United States:
Tli.it loucliCK his general credildlity but does not touch
tliis point

Mr. Warien:-That injpeaches him absolutely. He
says "it was after his death when I claimed them."
Claii.it'd them for what; I do not mean to n'peat that
H)|>'>int again, that that did not mean anything.

The Commissioner on the part of the United States: —
Tlic Commissioners understand that.

Ml. Warren:- 1 do not wish to repeat that one partner
I- not comi»elled to claim a deceased partner's property so
llial Id- can pay th(> debts of the firn), and that the estate
nt trie deceaseil is liable for the partner.sbip debts.

Now, be says that be never owned the boats; he says
tiial be claimed them and that is shown to be without
iiiiaiiiiig, a mere pretence and evasion. What next; They
4i,liavi' a registry which 1 have shown is no evidence at all
111 Morris Moss, according to the standard author on evi-
(liiitf, but they have it.

'I'lu' Commissioner on the part of the United States:—
Till' register simply shows that there was a bill of ^ale to
Muris Moss. There is no dispute about that; there is no
il "iilil that he did g(» through the form of sale.

Mr. Warren: -There is no donbl that this registry
sImiws tliat there was a bill of sale filed. Beyond that I do
iiiil know.
;u Mr. DickinstMi:— The register is no evidence of title.

The Commissioner on the part of the United States: —
That lias been settled.

Mr. Warren:— With regard to whether bills of sale
^M'lc tiled, 1 do not want to make any charges against
any otlicer of either government, but I would say that
iht ic emanated from the same officer the statement that
I'laiik owne(l these boats in l8Nt), from that same office
that recorded (he bill of sale. Hecoid, page lwt7, line 40 (\o.

What next? The registry shows that on the l(»th of
di .NMVt'ii'.ber, 18MS, a bi'il of sale from the estate of Jacob
(iiilman to Morris Moss was filed. On the Hth day of
N'M'mJK'r what occtnredf Morilz Ciutman, who was the
a liiiiiiis.fiator of his brother's estate, signed a jn'tition—
lalltil a petition in our practice— to the Supreme Court of
I'llisb Columl)ia, in Probate, entitled " Petition ni le

: 'jiiiii

P'W

^ '''HfiOl

iifi

1)4

78(t

(Mr. Warren's Argument.)

Estate Jacob tiutninn. Deceased." This connnences it

Fage 2i;J of the E.\hihits, an<I what does that \r tition asl<(
call particular attention to this petition.
(Mr. Warren here read the petition referred to is
signed l»y Moritz (ititninn.)

In that petition, parugr^iph )t is as follows:

IQ " Thai I hiive receireil iin offer from Alexmuler Frank, Hip purlmi ,f
" Mff fiiiil Jiivoh (hilinnn, (li'cemieiK iii the »iii'l Hrm of ' Oulmiin tC FriV'k'
"for the iinrchimf of the hilfresl of the miiil Jacob (fiitmnn, di-censeil, in ilm
" (li^i-lg of lhi> itiiiii ftm (<'"ft>|itiuK tliorcont tho Hiiid I'laiin of 32li, I i.i
" HKuiuHt the United Htiiti'M aiithoritioH), tlio ooimidoratiuu oflV'rril in
" tlin Hiiid Aloxaniler Frnuk for Hiidi ])uroliaH<> Ixnii); tlie asHuiiiiili.ii
" by tlio Hnid Alt'xaudor Frauk of all the liabiliti)<H of tlu> Haid tirm

This is dated the !Mh day of November, 1H8H, and is . nc
day before the bill of sale as they claim was dated, traiis-
ferrinj; tiie boats to Morris Moss; one day before that liill
of sale to Morris Moss was tiled.

Noir, the sclioniier.s " Lilif" and '" Hfnck Diaiiiomr'
irere actiKiHi/ solil ami transfer red to Alexander Fntnlc,
who iiev»«r transfeired them to Moriis Moss, coiiseciiiently
Morris Moss never held any title, bnt simply took a papiT
title from the t'state that had already sold to AlexaiidiT
Frank, and used it for the purpose of having tlie boats
registered.

Paragraph 7 refers to the account; that is the 8chediik>,
which contains by name the "Black Diamond" and the
" Lily," and shows an e.K(;ess of liabilities over the a^^scts,
^ to the amount of !t!H!t!>..^)7; that schedule is printed on pa^^cs
'il'i and 213 of Exhibits, and if your Honors will di'diict
the liabihties from the assets you will see that the balance
is |s!»!>.r»7; the figures are not brought out on the Heconl.
In that schedule is set out the following:

"Schooner ' Black Diamowl' »/,.7W« 00

"Schooner ' Lily' 1,500 00

Total 93,000 00

40 These figures aie alisolutely necessary in that schedule
to produce the t)alance of !tsH!>!>.57. I wish your Honors to
see that that is true— that these figures are absolutely nec-
essary to give that balance of ^S!t!i.r)7, and that \\hrn
Moritz (iutmau afterward states that he desires to sell iiul
transfer the proptM'ty to Alexander Frank be states that,
" .s'((7/ (tnaccDiiid s/inirstin e.rces.soffhe lialiilitie.sorcr tin:
assets of an anionid of ^S!»!t.,'"»7." showing cunclusivily
that be petitioned the Court to sell these two schooners to
Frank.

?o And did be transfer themil 1 trill read to i/oitr IIdihiis
the hilt of .safe that he actnalli/ sit/ned transferritiij tlusc
tiro ressils. That petition thai 1 have read, dated tin' 'Mli
of .\<»v<Mubei'. isss. was Hied in the Probate Court on ilic
14th of Novcndter, and on tl:e 14tli day of Novcinbfi ilic
Supreme Court of the Province of British Columbia niiule
the order set out at Record, page Is.V.t, line ad. I liive
stated that this aftidavit was tiled on the 14th day of No-
vember; mv |»i(iof of that is Uecord, page IKa!*, line 1^!,
where I stated to the comt that we desired tobavrit

'^'noted that it was filed on that day. The order allowing
the sale is as follows;

" lu tho Hii]iroiiie Cmirt of BritiHli ('olunibia, iu Probate.
" In tilt' matter of tlio OHtate of .lacott (Intnian, dui-tMiHod.
" Upon lu-urinK an a|i|)lifatiou on l>fbalf of Moritz Outman, tin ud-
•' miniHtrator of the eHtate of .Iacol> Outniau, defeased, and upon i' ml-

781

(Mr. Wan en's Argument.)

■' in^ the affidavit of tho Haid Moritz Outniun, fllud licruin ou the 14tk
•■ ilay »)f November, 1888, / ilo oriirr that the sniil Morilz tlulmiin, the miid
' niliiiiiiistnilor, lie iit lilierti/ Iti fell, contei/, iinMyn (tint otheririne umiure to

• AlexiiHiliT Friiiik iif the Citji i>f Vicliiriii in the I'roriiae of Urilinh
•■ ('iiliimhid, nil the rmil miil pi-rxmntl cnlntK iind effrv'K iif the iihore iiaiiieil

• .Iftcob Outman, deccaHcil, of the Province o'l UritiHli Columliia, ex-
" ('cptin); thereout the intereHt of the Haid Jacob (lutmau in u certain
" I'laiiu made Iit the Arm of Outman & Frank, of the Hai<l Cit,v of
' X'ictoria, mercliantM and Indian traders, uKaiust tho Oovernnien't of

10 ■ t lit' United States of America, for the Bum of 920,433 for the seizure of
" II certain xehooner and seal skins seized bv the said Oovemment. That
" ill consideration of the conveyance assignnient or other assuranee to
" )>e made under this order, the said Alexander Frank do assume and
" |iiiy all the debts audliubilitieH of the said Arm of Outman k Frank
" '.vliich debts and liabilities are |iarticularly set out iu the exhibit
" marked ' A ' annexed to the said affidavit of the said Moritz Outman,
" and therein appear to amount to the sum of 818,222.8(), and tliat the
" said Alexander Frank do enter into security to Iho amount of
" SIH.222.80 to indemnify the estate and ef fects of the said Jacob
" Outman, deceased, from the pa^fuient of any of the debts and liabil-
" ities of the mid iirm, such security to tie to the satisfaction of and
20 •■ iii)proved by the KeKistrar of this Court.

'•bated th'is fourteenth day of November, 1888.

"(SRd.) ' Heniiv p. Pellew ('iieahe, J.,

" One of the Majestv's Judges for the Supreme Court

" of British Columbia."

All the effects of Jacob Gutman, iiicliKling the " Black
Diaiiiond" and "Lily," estimated at the sum of if 1,. WO
paili, to be conveyed to Alexander Frank! Alexander
Fiaiik offering to buy all the assets of the estate and the
Cniirt ordering a sale to him and he swearing that Morris
30 Moss bought the schooners, which constituted a part of
tilt' estate!

It would be too great a strain of charity to believe this
witness, whose story is supported by no disinterested |>er-

SIHl

What schedule is that mentioned in that ordnr, if your
MtiiiDrs please* It is the schedule printed (m pages 'iia
tmii 2i;{ of the Exhibits, containing by name the schooners
•niack Diamond "and ' I.ily."

Total liabilities, $l,S,222.St), says th" order of the Court!
4oTinii to the statement of the liabilities on page 213 of the
Kxhibits. and your Honors will find tiiat the liabilities are
stiitf.l to be8rH,i»J2.S((.

What next f A bill of sale convey iixj flie schtumirs to
A/i'.iaiidcr Frank, Itcdiiini ilntc Xon'iiilx'r H, ISSH. is oc-
hiiilli/ t'.recnted before the date that these registers show
tliat Morris Moss had any title whatever, and if, as I con-
ctivc we can, we establish that Frank owned these
scliooners by virtue of a conveyance from the executor of
tilt' I'state oif Jacob (intman before Morris Moss took his
jopapcf title even from the estate of Jacoi) (Jutman and that
ill' never received any title from Alexander Frank, who,
altir the Hth day of November, L^ss, owiual these two
silidoiiers, then what will be the conclusion of your
lidiiors? That hill of sale conveying to Alexander Krank
is luiMid at page :<!»!» of the Exhibits. It is a bill of sale
si^'ii.tl liy Moritz (intman. N*iw, that antedates Morris
Moss' registered title, and I propose to show that by the
liiiMs of that bill of sale, thesf two vessels were transferred
to .Alexander Frank.

tH.1

Ami, wlu'niiH, it Iiuh liieii ii^riid IhIwicd tlii' piirtirH to tbiHe preHcnts
t'"tt the sittil Morilz fiitliuittt sliiilt tissiijH, tfniitl find I'iinrey tin'o nut! tn llie use of
^'.i s.iiil Altniiiiler Frank nil iiml siminldv Ihr i>r<ii»'rlii of ihe miiil imrhifisliii) stl
fill in tlir livxl .svhetlnlr lifrelo (or llir ('iiiiNiili-nitiiiiiH hrri'lii iiKiilidiittl; and,
'' Whi^i'cHN, it Ih fHtiiiiiiti'il lliiit till' liiiliilitii'H iif tlii> wml purluerHliip ixcti'd
II.' iihKils tlierciif by the siiiii of ei<//i( liiuxlrnl (inil nini li/-ninf Jollurii iinil t'tftfl-
>••!■?, c(ii(.'((*.V.'*.V.5/)," Ac,

,!:i

-A2

(Mr. Warren's Argument.)

That halance of |WM».57, as 1 tUMiionstated to yn n-
Honors a moment ago. is only possible when the valm f
the " Black Diamond " and the " Lily" is included in tio
assets. That halance can he obtained in no otijcr w .v
than by putting in as ))art of the assets of that estate ili.-
value of these very schooners now in (piestion.

I refer, in order t«) have these matters together, to the
lo Exhibits at the to}> of page 21:1 where that halance ti t
ap|>ears. and ask your Honoi"s to see that the value of liio
two schooners appears among the assets.

The bill of sale then recites:

"And, whorcaH, i' from tlip aHsetR hh aforcRaid tliere ho (Ipdiut. d
" the Httid roal t'Htntt-, aud from the Huid liabilitieH the Haid ninrtriu'i'
" or luortKaKOH the liai)ilitiim of tlio naid pnrtucrHlii]) exceed tlui iivs.ta
" thereof liy the huui of throe thousand six hundred and niuetv-uiuv
" dollars aud fifty-8e%-en ecutH."

Excluding what? Not these ships, but excluding rn-
tain real estate; and certain mortgages, and necessarily
including these ships. I coutiiuie reading:

"Now, tliis Imli'Utnre Witiic»seth, tlmt in consiilonitiDn of tlic preiiiisn .nl
" iu coiisiilci'Rtion <f tlic cum imiitH licrtiliKfIrr coiitniucilby tlicwiid Ali Xiui it r
" Friiiik, liiN rxci'iilxi'M. nduiinUti'iilorB or nssi^OK to be iicrfdriiKil. 'I'h- ^ i ;./
" Mmilz liiiliniin iIkHi heiilii/ (/run/, iivvii/ii <iii(/ nmreii iiiifodiid In Ihe nne iif tif - m./
" .Utxiiuihy Flunk, liis hriis, rxmilorn, nilmiiiiHliiilnis iiiiil nsHiiiiis nil Ihe ►,,,..
" tiiihl, lillf mill inlfi;.\l ii/liini Ihe sniil Morili Oiilmnii, im the iKliniiihlrnl'ir fi Hit
" tstnte null efl'er .1 ui' Ihe sniil •Inrnh iIuIiikiii in ami In alldml simjtildr Ihe ;Ti.;.nri/
" ill the riyst Hi'hi'll'ite hti'etii I'lnitiiiiiiil nt irhal unluye siiirer.*'

30 That schedule attached refers to these schooners. Tin sc
tigures slated there cdustitutn the balance Iwtween tlie
assets and liabilities, and can imly be obtained when tla-
ships are placed in the schedule of asset.s aud thesclu'dulo
attached to the conveyance itself shows, aside from this
balance estal)lishing the fact, that the 'Black Dianioiul"
and " Lily " were included in the sale

Commissioner on the part of Her Majesty: — There r- a
dift'erence in the amounts of the schedule of liabilitirs
Tlicy are larger by sl.'nu in the schedule attached to that

40 conveyance than in the other one you l)efore alluded to.
Mr. Warren: -I can e.xjdain that, your Honor. But he-
fore taking up the (piestion of the tigures

Conunissionci' on the part of Her Maje.sty: — Yon mcd
not take it up now; perhaps it is not worth while.

Mr. Warren:— It nmy be saiil tliat the schedule attached
to the bill of sale does not mention the " Lily " ami liie
"Black Diamond." 1 say, if vour Honors please, tiiat
the schedule attached to that bill of sale does mentiitn ilu'
■■Lily" and the " Bhick Diamond," aud I ask ymir

50 Honors to read the schedule at the top of page 4oi of
Exhibits. Your Honors will see that although the iiaiins
do !iot appear, the tigures there used to state the balaiH e
set out in the bill of sale in |)aragraph 2, namely, ^sw ,i7.
could not have been obtained unle.sa the value of tlif
schooners was included in the schedule of assets.

Let me further show your Honors conclusively that
they are contiiined in that schedule and were transferr> il.
Kiist, let me call your Honors' attention to the reaM'ii
why the names are not used. Because an American citi

6ozen could not register these vessels in his own name, ami
when a bill of i-ale was made transferring these buais,
they did not specify them by name, hut concealed tlie
kind of property that was being transferred, under this
language: '* All other pmpvrtij (ttul clinses in action of ihe
said firm, estimated at $,i,iHt(/" (Exhibits, 401).

rs8

(Mr. Warren's ArgumMit.)

rum to tho oriKiiial schpfliik' and we see that there is
II' t nil item appearing in the tli'st sohiMhile flied as an in-
V( iitory of the estate of Jacoli Gutman, left out of this
Hi lit>(hile attached to the <-onvevanfe ti» F'rank. except
tlir '• HIack Diamond " and the " Lily," ♦!,. 500 each: total,
ii'.doo. Shall we discuss the <|neHtioii of whether or not
tliit schedule includes the "Lily" and the "Black
lol'i.iiiiond "? I claim that there is conclusive evidence of
till' attempt of these neii to cover up tlieir dealings. We
h ivt< read this schediile time and tinu> a^ain, and the same
luhiiiceisuscd. In that first schedule, which is the source
c.| liie schedule attached to this conveyance to Alexander
j'l.ink. are found two item-*, the " f-ifi/,' St/iHO, the
" lllitck DiaiiKtiid," !*i.r»oo." In this last form of the sched-
ule they are included in thes«' words: "All other firoiK'ilj/
mill choses in nctiou of tliv utiiil /inn, eslnnated at
s.:niHlJlO.'"

:o Transferred to Alexander Frank, Novemher sth, IHSS?
W hat then did Alexander Frank do< He procured Morris
.\|ii>s to a( t as trustee, and had Moritz Uutmui transfer
ill.' title on paper t(» Morris Moss, a British subject.
Moiitz Uutmaii had no title to transfer on the loth day of
.NOveruher. ISSS, because jirior to that he had transferred
It to Alexander Frank. Moritz Ctutman had no authority
t(i transfer to Morris Moss because the sale wouhl be void
wjiliout the consent of the Probate Court, and the Probate
Court Imd authorized the transfer to Alexander Frank, an

;o .American citizen.

I want to show this l)eyond any doubt. The only
ai^iumeut that can be made is that Alexander Frank took
tlirse boats by this bill of sale before he sold tho boats to
Mollis Moss. If your Houois please, why all of this man-
Miivering for such a transaction as that< If Alexander
I r;iiik wanted the estate of Jacob (lutninn, of which he
\v;i< in absolute control, to convey these ships to .Morris
Mii><5, a British subject, wln> could hold the ships, why go
into the Probate Court and obtain an order confirming a

40tr;iiisfer to Alexander Frank, an American citizen, who
(• iiild not hold thenW Why, it Alexander Frank did not
piiicliase these ships, and if Alexandir Frank did not want
tiiise ships, were they ever transferred to him! Would
iiliavebeena dilticult matter I <> insert in these petitions
imi in the.'ie orders the name, Morris Moss, instead of the
uiiiie. Alexander Frank, as the |)urcliaser of these
-I liouiiers? The.se transactions, unless we believe that
iiaiik bought these boats, are absolutely without re.ason.
It Morris Moss bought these bt»ats, why did not Moritz

' (iiitnian say he had an offer from Morris Mo.ss t\)r their
imivliase? And if Morris Mo.ss had filed a bill of sale
oil tlie loth of November, ISHS, which was .1 bona
fill: hill of sale, why, on the 14th day of November, 1S8S,
iliil the Probate Court autliorize and ci>nHrm a transfer of
tln'se sbi|)s to Alexander Franks I repeat that the trans-
;ii lion is absolutely void of meaning if considered in that
li^:lit.

And of what force are these entries in these registers,

111 uing date November 10, isss. when we have absolute

'«|>iouf tli.at Alexander Frank took the,se schooueis by virtue

of ,1 bill of sale dated yoreiiilier SIh, ISSS, and never

[Miti'd with his title.

iliere is no law of Great Britain ireventing Alexander
I'l Ilk from owning these vessels. The only law is that
li' hall not register them. They were his property and

7.S4

• ■■•.■■ I'*-

I '*

(Mr. Wuri'en's Arguiix-nt.)

h« wua oiilitled tu liold tlieiii iiiiiU>i- tliu laws of (ir. it
Hi'itiiiii, and was tMititlcd to poHHosHJoii of tliu vusshIh.

What beside, if your Honors phsaHo. ht-arK on this t|ii. >.
tiont Alexander Frank r« inainud in the City of Virtitij.)
until the fall of IHHi», and i assert that he carried on ilu*
business previously contlncled by (iutniauiS: Frank on tlio
west coast of Vancouver Island with these vessels, and
lothat fact is proven beyond the shadow of a doidtt by the
testimony in this liecord. I refer your Honors to the \\ -
tiniony of Morit/ (intnian, at page \W!>, line \i'A:

" Q. About Ootolwr, 1888, you were a|>|>oinU<d i»h executor ? A I
" waH.

" Q. At the time of hiH ileath, your lirotlier waH in imrtuerHhip unii
" Alexauiler Frank ? A. Yen.

" y Ami I liftifre lh<U Atexitniltr Fnink cimliiiueil the husinrxf nf il,.-
'■firm? A. Ihili.l."

" y. What ttecanic of your brotlier'H liookH or the booko of the Hrin V
"A. / le/i Victuriii tome limf in ISHS. tinil AleMimler Fniiik cimliH'ii-i.i
20 ■' the huHinetn ami of coume kei>l th« liuok-K. "

Continued what business? CondnctitiK the trading st.i
tions on the west coast of Vancouver Island. WithiPiit
any ships I askf

What nioief Alexander Frank made use of one of I lie
vessels and went to the trading stations himself in js^it.
I refer to the testimony of Captain Owen Thomas, page
1780 of the Hecord, line L'4:

" Q. Had (JulimiH «C Frank a trailing tialion im the nonsi in IS8!).' A
3° ' ' Mr. Frank liail one.

"Q. Where? A. At Clayoquot.

" Q. Where else ilitl lie have one ? A. Ho had one on Queen C'liur-
" lotte iHland for a lilaek cod tiHliinK Htatitiu.

" i). Did he have any other trading Htation on the west coast tlian
" the one at (.!layoquot ? A. Not that I know of.

" y. Did vou Btop at (Uayoquot on the way down? A. Ych, Hir,
" and landed the IndiauH t''ere.

" Q. Did you take the proviHionn into tlie trading Rtores? A. Vrs.
" I n^ve them Home htuff there. He asked if I could let him huvr
" Home, and I told him I would lot hiin have Home.

" Q. The man in charge of Mr. FraDLx trailiu^ Htoro anked you fur
40 •• Honie provinious? A. Yoh, nir."

This captain who is convicted of giving false testimony
in another case puts language on the Hecord here whicii is
not as conclusive as a reliabh witness could have made it,
but is conclusive eiiougl' toi our pui poses:

"Q. Did lie pay yon for thi'i a? A. No, ho Kavo moarecoipt for tlii>
'• amount."

A receipt to do whatf To give to Alexander Frank oi
50 the person repre.scnting Alexander Frank, when the boat
got l)a(k to Victttria.

"Q. Vou gave him a connideralilo amouiit, did you not? A. I fur-
" get now liow much it waH.

" {.). 'I'he paperH that you liad on board the vomhoI at the time tiiat
" you wore seized, hIiow that Mr. Frank wan one of the ownern of tlic
" * liliu'k Diamond'? A. That \» more thou I can tell you.

" (^. You do not know about tliat? A. No, nir; 1 do not.

"(J. Did you know what kind of papers you had on board of the
" ■ black Diamimd "/ A. No, Hir; I do not. 1 did not look at tkeiii."

60 What next; Page 17H1 of the Hecord, line 3.5:

"Q. What did von do with the remainder of them? A. I left tlii'iu
" on board, and tlien I made atri]) to Queen Charlotte Islands two ur
" three weeks afterwards.

"Q. You went up to Mr. Frank's Hnhiug ntation on Queen C'harlolii'
" IslandH? A. Yes, sir."

786

icwtor ? A I

'tDerHhip wiiii

SutineM iif ill.'

18 o( tlip tiriii y
■(ink cimtinunl

oil*? of tlu'
i\f ill Inyt.
ninas, page

III 1S80:' A

Quoon C'liar-

i8t coast tlian

A. YcH, HJr.

res? A. Yf9.
lot him liiivi>

»Hke(l voii for

(Mr. VVarivii's AiguiiiHnt.)

MfXiiiKh'i' Frank contimiiiiK this hii.sinossaf ti'rNovoiiibor
^ l^*^H, until tlif fall of IHHU, an<l tlicrte ships th<Miis*>lvu8
I iiininn to his tradinu station aft^r they had come from
|; ling S»«a. and yot Alexander Frank did not own them!
I- : ink, with his title to the schooners from the estate of
,1 (ill (tiitman, owning them hecansethey were necessary
t> till' trading stations, and Morris Muss only having a
10 li I it ions title given hy the estate after the execution of a
(..iiveyaiice to Alexander Frank and never having any
(.imcction with the lioats, engaged in liusiness for Alex-
ai; It-r Fiaiik constantly, and Fiank not owning these ves-

Ciiiitinning reading from Record, page ITHl, line 4(i:

' i). And you utilized tlio iirnviHioiiH that romaiued on lioard the
" llluok Diamond' (or the imrpoKe of that trip to the Queen ('har-
" loite InlandN? A, Yen, xir; there were a lot of odds and cndn got
•■ fri'sh, of eonrse.

■■*.). I uuderHtand that. What load did you tiring linck from the

(^iii'en CharlottO'lHlandH? A. Blaek cod.

Hldck cod! Turn to the testimony on page 1780, line 28
wlitie the witness is asked:

•■ Q. Where elHe did he have one (trading Htation)? A. He had one
" on Queen ('harlotte Island for a lilwk- coii flohing Htation."

Reading, again from Record, page 1781, line 40:

30 " Q. For Mr. Frank? A. For Mr. Frank, and some for Mr. Baker,
■ i think.

" Q. What load did you take up to Queen Charlotte's Islands? A.
'■ Wc took some lumber.

" Q. To be used for what nurpose? A. Lundberg was going to build
'■ n Imuse for himself. He ua<l stayed close to Mr. Frank's."

I said that Frank himself was on hoard this vessel in
tlii> year, and I will show that he was. On p.ige 1781,
liin' "o, this witness, Owen Thomas, was asked:

■■*). Was Mr. Frank in Victoria at that time? A. Yes, sir.
•Q. I)it' you know him? A. Oh, I knew the man; yes, sir.
"Q. Did you see him in the year 1889? A. Yes, I saw him.
"Q. Dili i/oii nee him on hmird the ' Uitick Dimiionil'? A. Fen; he
' niiiir iliiwii on her — oh liiiiiril of hfr.
" Q. Was it liefore vou went to the Bt>hring Sea that he was on board

■ till' ' Hlaek Dianiont\ '? A. When wo came to the West Coast.

• • Q. lt7i«H i/oii ireni to llw Dehriiig Sen you took Mr. Fniiik to /lis trmling
' si'itiiiii nil the Wi'Kt Const f A. Yes, sir; thnt irns in Fehntiiri/.
••i). It would Iw more eorreet to say that when you went out on

■ ynnr spring trip you took Mr. Frank up? A. Yes, sir.

•■»/ You left Mr. Frank ot Clayoquot in February or Mareh? A.
• Sciinewhere about there."

i i

...iv

,. I left them
lands two ur

?en Chorlotti'

Now, that is the spring, and if the learned senior coiin-
sc! will lememher. it is not the spring that Morris Moss
pii his title, hut the next spring, the spring of t,he year

•■ l^. When )ie.tt did i/oh see Mr, Frank on bonril the 'If luck Dinnwnd'f
•■ A //.' iriis (iroiind the store most of the time. I irns sniiiiir/ out of Cluyof/uot

" llrl' >pl ini).

'•(). You mean bv that that you would seal in good weather, and
f "tlwii in bad weather you would run into Clayoijuot, where your
^' In. liiius lived? A. Yes, sir.

•■ i). .\iiil irheii i/oH Clime into Gliiyoqiiol, yon would see Mr. Frank there?
'■ A //'■ iriis there most of the time, and he iras iiieiiy unite a while, Ino."

W .IS he there taking care of Morris Moss" hoatsf We
tak ■ it not. Ho was there operating his trading stations

786

(Mr. WniTi'h'rt Ai(;iiiiiont.)

niu) Hiipt'iiiitoiidinij; thu moveiiieiitti uf his vvsselu. \V!j i
next?

" Q. Hnt yon did ncfl liini at timeit wlien you wi-nt into ('layoi|ii. -
" A. Yon, Mir.

" Q. Did you l(>avu your HkiiiH nt ('liiy<H|ii<it? A. I wbh told to|n, .,.
'• them tlifft) l>«)for« I wont to tin- Hi-ii.

" (j. And you loft nil of tliti HkiiiH yon ^ot on your KprinK trip tin i '
._ " A. All of tlicni; ycH, nir.

"if. You luft tlu'iii at Clnyo(|u<>t Hound, nt Frank'H tradiuK Htiili>>. '
" A. Yi'H, Hir; that wuh my ord«rH from Mr. Mohm to Icnve tlifm tiuT'

Tlii.s honest witness then aJteiiiptecl to hay that tin ,
were his orch'rs Ironi Mos-i. This captain, who is cnn.
victetl ot swearinj; lalsely. once in a while (o help out tin*
man Fraiii{, maizes sonic reference to Morris Moss. \\\\\
take his ian^nage exactly as it is, where did he leave |||,>
.seal skinsf At Alexander Frank's trading station, aiiWI
a.ssert from the memory of the occasion of the takinj; nt
20 this testimony, hecanse I renieniher it so clearly, that im
m»'diately after that this witness was convicted of an iji
patent attempt to sliield Frank, he tried to help out
Alexander Fr.iiik, and he was in the midst of dii)icnlii< >
at once Record. paK*' ITM', line .'iJt:

"Q. Did you tukc your HkinHnll in, or wouhl yon land tlirni iim vmi
" Kot tluMu? A. I would land what I hud wlu-n I wont in, ovory tiimv

" Q. Did Villi Hiilt tht'iii on hoard, or woro tliov Haltod iiHhort'y \
" I Niiltod ovt'i'viino luyHolf, on hoard tlio vchhoI, and then 1 Hiilti-d
'• tlioni on shoro iiiy»olf.

" Q. They had hcoii Hultod at Clayoijuot Hound, at Mr. Frank's trml.

iuK HtatiouV A. Yen. Hir.

" Q. Do you know who took theui down to Victoria? A. TImt is

moro than 1 can tell you; thoy woro tboro when I left."

30.

Wlio took them down t(» Victoria? This man went lo
Bering Sea with the schonner, and Alexander Fraidv, ulio
was at the trading station, took the skins hack to Vii'torJ;i
and sold them. '1 hen he says that wliich is important ;is
hearing on tlie ahsnrdity of Frank's retaining the tradin-
station and not ki'i'ping the schcjoners, page 17hH:

'• t^. Von Sill/ thill i/iiii liiiik Mr. Frank to Cliiifo</uot in Fehrwirii.' \.
" )'(".«. sir; III' ireiil i/inni with Uf.

" y. Wrri: tlfve mii/ sleiimrrs in Ihime <iai/» riiniiinij /rum i'icliirin In
" Ctdi/dijiiiiK' A. Ad, sir.

" Q. Anvhiu/i/ irliii li'iil til 1/0 In CliiiioifuiU from Victoria hnii to i/n In/
"sriii'inii'i/ A. I'l'S, sir.

"Q. Ihi i/ou kiiiiir irliiil biisiiitss .Mr. Frniik hml nl Cliii/oi/iiot in IHH'.f/
'"A. / snji/iosr hi' irrnl In tnnk n/li'r his stnrr, unit In snt 11 mini hr hml .//./■
*' .7"'i/ " shiitl III' snnmlhimj fur n rnnl niine.'^

Think of Aie.xander Frank owning trading stations <iii

50 the west coast of Vancouver I.sland and not havinj; a

schooner to reach them; No «)tlier man ever owned ,1

trading stiition on the wist coast of Vancouver IhIhihI

unless lie had a schooner or schooners.

.James 1). Wan en was one that owned schooners ami
trading stations. William Munsieand Charles Hpriii^ ami
Alexaiidei' McLean are the others; they owned tradiiij^
stations and they owned schooners. The witness tried to
explain in nMlirect-examination that he had left skiiis.it
stations l)efore that, in order to remove the presuinptinii
60 that he had left them there hecanse they were the |»ni|)
ei'ty of Frank, and w hat difliculty did he get into;

it was discovered that every time he ever left any seal
skins there that they helonged to tlie man that owned tlic
trading station, and that is a fact supported by the testi-
mony found, connnencing at page 17m4 of theliecord, luic

r*^;

'•If, I

(Mr. Warren's ArKumcnt.)

I'p, where we show tliut the HkiiiH left there wen* the pi-op-
Illy of Wnrren and that Wurreii owned the tradinK
vi ition, and that thJH captain waH Healing on Wnrren^
\ ssel.

I have referred to «)ther teHtiniony tliut eHt-il>nHheH the
t H't that'Alexander Frank continiUMl the trading ntatinns
Miiil the partnership linsineHs after Xovenil»er. |smh. That
i,,tr-tiinony wnH given Ity Morit/ (intnian, where he said
I lull Alexander Frank continued tli«> imsineKH and kept
till' hookH. ICecord, page i:{«l'i, line 2)':

■Q. At the tiiiii* of Iiih il<>nth your lirothi'r wah in |inrtnor8liip witli

Ali'xnuilor Frank? A. Yoh.
i). And I tii>liov<> that Aldxnndor Frank coutinuint th« IniHintiM uf

lilt' nrmV A. He tliil.

•Q. \V lull litriimi' 1/ i/oiir linithfr'* honks nr lli» iMHtkn It/ Ihf Jirmf A. /
•• /.y? Vuiiiriii Home liiiii' in lUtiS ami Uexiiiiilfr Fnink conliimtil the
•■ hiisiitess tinil i>/ ciiiivst kf/il llif Inioks."

Alexander Frank continued the hnsuiess nf the flrni
iiirr isss! VViiy couuHel claim that Moss continued the
l>ii>iness.

Wf also have Alexander Frank's own testimony that
III' omtiinied the liusiness, and this captiiin's testunony
null erning the empl«)yment of the scluxniers in connec-
li >M with the trading stations.

Alexander Frank made no arrangements toivard wind-
in;; up the husinesH of Oiitman &. Frank until during the
vr.ii' lxHi». Frank himself was the active niemher of the
til III, and the schedule of as.sets and liahilities, tiled in
''the I'rohate Division of the Court discloses, page 208
lit KxhihitB. line W.\, that S. H. Fiank & Company
lit San F'i'ancisco were practically the owneis of the husi-
ness of Ctutman and Frank, hecause they were creditors to
the extent of ?(10.r)Si».3i. The death of Jacoh IJutmau did
111 it interfere witli the husiness, which was conducted hy
b'iMiik after the death of (iulman in April, issT, until the
full of 1HS{(, during all of which time he employed and
u^ed these schooners, which were necessary to the o|)era-
tiiiM of the husiness on the west coast of Vancouver
hiaiids.

I Mil' learned friend, Mr. Beique, suggests that the affi-
(hvits which are in evidence, and which cstiihlish heyond
iciiitioversy that Alexander Frank swore falsely, are not
to he received as evidence, hecause this is not Alexander
I'l, ink's case, hut is the case of (Jreat Britain, as the
ruiiiisel for (Jreat Britain claim. Since when was it de-
terinint>d that if a witne.ss takes the stand and testifies,
that the statements made in his affidavits, put in on cross-
-I, examination, made concerning the same suhject- matter,
^ aiv not to he taken as admissions? The rule (tf evidence is
that they are admissions, and that is the way the affi-
davits were used. I am aware that the affidavits were in
lietore Alexander Frank was on the stand, hut I also re-
iiHiiiher that Alexander Frank was cross-examined on
eviiyone of them after they were in, and admitted the
exi iiition of them all.

What explanation did Alexander Frank make for
li.iviiig signed these affidavits* His explanation illustrates
f^lhe iharacter of the man. He was asked at page 1!M»0,
liii.' :'.(»:

"(,). Did you make that affidavit? A. I do not know anvthing
alinni it further than my ottomey — I did whatever he saw fit, and
wintti'vi'r saw fit for me to sign, 1 signed.

" <,>. Wliother it was true or not? A. I 8U)>|)OHed he would look
nut t.i see that I swore to the truth."

II H '

(Mr. Wuitoh'h ArKinntMit. )

That would ixTliapH Hutiiui plausiltio to hoiiiu coiirlH, \,\\\
whi'tlii'i- or not a vvitiH>ss Ih to liu lH>li«>ve(l when Iih t<>Mi
HoH that hu nia(li< six or Huvcn alTidavitH, all of tlii m
reiterating tli(> saint' Htateincnt, without kiiowin}{ wliii
ho waH tioin^, or what he wan Hwearin^ to, does not i '
(|uire discuHsion hefore this TrihunnI And, that his .ii.
tornoys did not invi'iit (he idea that heowned this " M!,i. |<
lo Diamond," and this " Lily," and tiiis " Alfred Adams," i>
heyond qnestion.

At pa^e ll>!)!», line I, this witnes-t admits himself lli ii
he niiide a false oath:

" y. Pill fiiiii mri'iir In III" Cniirl llinl J^icnh (hiliiinii nwitnl hiilf ot' ilir
" »/»//) irhen i/mi kneif thai hf nwiiml it nil? A. Thiil is whit I iliil. "

That hears, if yonr Honors please, upon the siij^gi'stioii
of the (Commissioner on tiie part of the IJniteil Static,
ma<le sometime since, that this man admitted that lie
20()\vned these schooners, and, here it is shown that lie
nt'ver did admit that, hut positively swore he never owmd
them, and he swears a^ain here:

'Q. /)/■</ //"" Hirxiir In lh» Cimrl Ihul Jucoli Uuliinin iiienml liiil/ 1/ ilir
" »hii> trlirn y'"' kiiein that hi- oinieil il (ill? A. Tliiil in irhiil I iliil.

He dem'es ahsolntely that he ever owned the hoats and
.admits making a false oath. This man admits makin;; ,i
false oath and we are seriously discussing whether or lot
he is now to he helieved? Fafsiin in uuo fatsiis in mini,-

^^hiis. Where were all the sealers of Victoria th;it nonr nf
them could he found to testify that Morris \i,i , owned
these schooners? No one hut Alexander Frank, the only
person interested, would perjure himself.

The estate of Morris Moss contains no reference to tlicsi'
claims (Kecord. page -.'Ool, line 45), and no one represent-
ing his estate w;is at Victoria.

Ale.xander Frank absolutely denied that he ever owned
the " Black Diamond " or that he evei' owned the " Alfieil
Adams" or any parr of either. This testimony is concln-

'^^sively estahlishe<l to have heen false because his own afli
davit, page 'Jo7, line 2<!, contains the following statement:

" Aud tliirty-two Hixty-fourtliH of aud in a oertain Bbip l)«loDKi»K to
" tli<> Huid firm of (liitmau tV Frank, wliicli Haid laHt muntioncd Hliip iH
" roKiHtiTod lit Maid I'ort of Victoria in tlie namtt of Huid Jacol> Outnmu,
" aud iH roKiHtorcd under tlu> uaniu of tliu ' Black Diamond. '"

And the atlidavit of Moiitz (Sutman, Exhibits, pageiMi,
line 1!», contains this statement:

50 " That tlif! Hniil tirni of Oiitnian & Frank liavo a claim agaiiixt tlie
'■ (lovcrnnii'nt of tho United States of America for tlie iimontit of
" ^'2ii,43:i, Hiu'h claim Ix'iiiK for the Hci/.ure of a certain Hclioouer kiiewii
" l)y the name of the ' Alfred AihiXHH,' (iml owiinl hi/ snid Jlriii nf (Inhiiia
" i(' Fi-iiiiky and of certain HealskinH belonKinK to tlie Haid firm, ami
" that proceedinnH have been commenced and are now being i>r<ise-
" cuted for tlie recovery of Buch damagen."

And the letter of Sir Julian Pauncefote. heretofon? set
out, shows conchisively that Alexander Frank was intei-
ested in the '" Black Diamond" in the year IH8«, and that
f>o he was the surviving partner and presented the claim to
the (Joveinment of the I'nited States or to Her Majestvs
(iovcrmncnt for the purpose of being presented to I ho
(iovernment of the United States. If Krank's testimony
is false regarding his interest in these vessels, why slmnld
we credit him with telling the truth regarding his interest

789

(Mr. Wjiirt'ii's ArKtimi>nt.)
BiHck Diuinoiid" and thu " Lily

in the yi-iir

ih lilt!

If I hnd time I thinit I « onid show oxn(;tly what Franlt
|i;wt'(l his HlatorncntH on and why ho thonj^ht \m conid
hiiti'iy testify that he novcrownod lialfof th»'Me schoonerH.
All attenipt was made to have him admit that lie had
^;v <iin in one of tlieHe ulTidavits that he owned half these
10 lii I II Miners, and the witness evaded the qnestion l>y saying:
' I (lid not swear I (twned half, I swore that Jacolt Unt-
• iii.in's estate owned half."

r.iif he was the only partner that Jacoh Ontinan had and
till firm of (iiitnian& Frank owned the vessels, 1 beg to
n^l<, who owned the other half if Alexander Frank did
:ii't?

I am not talking about snhjerts of Great Britain now,
niid 1 have no hesitation in saying that this (.laiinant ali-
sdliitfly swore falsely. He admitted in these attidavits
2ovvln II his interest was not involved, that he owned half of
tlii-i' srhooners. and we claim tiiat his testimony is not
iiiiw to be received as evideiv ' ,it all. With his testimony
(lilt of the case, the registiy iM)t being a jniiiia J'avie
(videpce of ownership, the claim on behalf of Morris Moss
iiiiist fall.

Hearing upon the weigl.' to bo fiiven the ""uct that Mor-
ris Moss held the title t ...ese scliooners, I wish to refer,
iiiii'lly, to the teslinu)ny of the witne.ss Theodore Lubbe
ili'rcoVd. page «iH(i. line 55):

^*^ " Q. And knuT/iuK of hi»r arriNai, did yon write a letter atiunt it at
•'that time? A. Well, on Octo)H>r 11, 1888, I ttdenraidied to New
" Viirlt in cypher: ' 'Han Diego' arrived with 000 AlsHkan HvalH.' "

I continue reading from page «!>1, lino 47:

•• Q. Do yon know Morris Mohs of Victoria ? A. Yes.

" Q. Is lie interested in the sealing buniness as you are in any way ?
•• :\. I do not know.

" (^. He is a Kood citizen here is ho ? A. I do not know anything
" iilmnt him.

•• if. I think he was agent for Lielie's & Conipanv of San Francisco ?
40 ••A. Y.'H.

" i./. You know Mr. Moss, we do not. Would it ohungo your mind
" at all if Mr. Moss were to say that on that 1883 voyage the 'San
•• Dii'Ko. caught 2,200 skins ? A. J < fun' I 'urewlial J/«ss'«/i//», Mr. Dick-

" imnil.

( III ledirectexamination by the Senior Counsel for Great
Brittiin. this witness (Uecoid, page <)!»3, line 35), testifies

;is luljows:

" (/. You were nsked questions as to Morris Moss, and as to whether

" if 111' Hrtid there were two thousand skins taken by the ' San Diego '

50" ill IHH3, you would change your mind, and you said no. What has

" lii'comc of Mr. Morris Moss ? A. / ito nul lik'^ lo nni/ <iiii/thiiig nhout

" liini. The tiion is ileml iiair."

Ml. Lublio had testified that the "San Hiego" had ItOO
stil skins in jsss, and T read from the aHidavit of Morris
Mii~s ( Uecord, page Mt4i>, line 45):

•In ISSil, the American schooner 'San Diego,' of San Francisco,
•• i>iiti>i'od tlic Hi- A and after taking about '2,200 seal skins, brought
" llicm to Victori,; and sold them."

6o .\lc.\;inder Frank owned these ships in the year 188!)
ami (ii»erate<l them on the west coast of Vancouver Island
incdiinection with his trading station, which he owned
iimil the fall of that year, and the United Slates deny all
li;iliilitv whatever in the claims of the " Black Diamond"
Mild the "l.ily " in the year 188y.

I ■

! i

« 1'-

790

(Mr. Warren's Argument.)

I have taken up and considered in turn each ofjtl.>
cases in which a citizen of the United States is claini< I
to have heen interested, and concluding that brnnch ' i
my argument, I wish to state briefly wliat we contend wm
have established:

That Andrew J. Bechtel was the owner of one-half thr
'" Carolena " at the time of her seizure.
ID That Andrew J. Bechtel was not only the owner of h.iU
the venture of the ' Pathfinder" in )!S8!>, as admitted Iv
Gieat Britain, but was owner of half that schooner.

That, as admitted, Alexander McLean was the own. i
of half the "Onward'" and the " Favorite" at the tinif m(
the seizure of the "Onward" and the warning of Ihc
" Favoiirite."

That, as admitted, Daniel McLean was tlie owner of
one third of the "Big Triumph" at the time of lui
warning.
20 That Alexander Frank was the owner of one half tin-
interest held in the name of Jacob (Tutman in the " Mlarl;
Diamond " in the year 1.S80, when she was seized, beoaii-t'
we have clearly pIiowm tliat the firm of Outrnan & Frank
was in existence early in the year lSH(i, and the " Bl.nk
Diamond " claim, if any exists in fact, arises from aru
conunitted in July, 18Hr>.

That Alexan<ler Frank was the owner of one halt' Ilk'
bottom of the " Alfred Adams" in 188". It is admittid
that he was e(|iiaily interested in the venture, and tlic
30 claim l»efore \our Honors is entirely one foi loss of sn
vice and loss of pro|)erty, exclusive of the bottom of the
ship.

That Alexander Frank was the sole owner of the " Hlaik
Diamond "' and the " Lily " in 188i» when they were seized.

Of the "Cooper" claims I have not spoken. Thev aro
the " Grace," " Dolphin," "Anna Beck" and the "Say
ward" -and the consideration of these claims will in'
taken up by the senior counsel for the United States.

V'.vLUE OK Seal Skins.

I pass now, if your Honors please, to the value of the
seal skins in the various years. The contention of I In-
United States is, that tlie price to be awarded for the seal
skins actually seized and confiscated is the price ruling; ni
the t'ity of Victoria at the time when the cargo wouUI. in
the ordinary course of events, have l)een placed ujton that
market. No rule of law is more firmly established than
-othat which declares, that the value of the cargo is deti'i
mined by the market price ruling at the port of depart niv

There an- but two exceptions to this rule. If binding'
contracts are proven to have been in existence between thi>
owner of the cargo and the purchaser at the market dI
ultimate delivery, and the vessel is proven to have artn
ally started upon the voyage of delivery, the price ruling
at the port of delivery is sometimes allowed; and if it he
estaldislied that there is no market at the port of depart
ure, the Court will look elsewhere for evidence of the
f,o value of the cargo.

Vour Honors are familiar with the law to be here ap
plied, and there is no object in discussing it. In tlie-c
cases not only are no contracts in evidence for sales else
where than in Victoria, but the voyage of delivery was
not even begun.

7ftl

^■.

lit' tfstiCicd at Record, page 1893, line lO, concerning
tile iiKirlx-et ralue of skins in Victoria in isstl, and that is
tlic iiiily testimony in this entire Record concerning tlio
mill kit value of seal skins in the year issti, and that testi-

niniiv is:

riic liigUoHt I know of ^-as 87, and the lowoHt W.50. "

■if ;

one- half tli

(Mr. Wanen's Argument.)

()p|iosed to this contention of the United States, the
( I'linsel for (treat Britain advance the proposition, that the
III II ket price prevailing in London should he taken as a
lusis for determining the value of the seal skins. Con-
tints are not claimed to have heen made; and counsel for
(iicit Britain rely on an attempt to prov»' the intention,
ih iwoclannsout of the entire numher of claims, (o stil
(111 the London mark«-t at puhlic auction, and ask your
II. 'iiors to infer that all the owners of seixed caigoes in-
t. inled to sell in London at puhlic auction.

Here again are we dealing in uncertainties, and specu-
laiitiiis and c«)ntingencit's. Your Honors are luged to
iiM I'jtt as the measure of the value of the cargoes, the
iiinket price ruling in the Oily of London, where the
sales are conducted at puhlic auction, and to determine
till price, not haseil upon any proof of the sums realized
at |iiil)lic .luction, but upon the testinumy of one witness

20 ill I lie year IHH't concerning one sale in the City of London,
wliicli sale was later than the regular auction sales in that
(ii\ The other evidence relating ti> the prices ohtained
at the sales in London is as to the year \SH7, and that also
relates to a sale by one man of one small cargo of skins at
piililic auction. There is iioirfieie irilliiii the curerti of this
liiinnf Hill/ erideiice wtdiwed on tie.htilf of tlrtul liritain
nhiliir to the market value of seal skins in the City of
1,11, idon at any time whatsoever.
Cases involving the value of the cargo, where there

;oliave l)een collisions at sea, your Honors are both familiar
with. The books are full of them, and I will therefore
only consider the testimony.

The United States sought to establish the market value
of seal skins in the Port of Victoria in the years isSfi, 1887
and 18f>!t, and produced for that purpo,se the witness,
Tlu'ddoio Luhlns whose competency and reliability remain
iiiH|iiestioned by either side to this controversy. He
was accepted as a fair and competent witness by both
parties.

40 At pugw 18SH> of the Record, line 57, this witness testi-
ticil concerning a s;ile on the market at Victoria in the
year 1S8»>, and said that he was a part owner of the
" Mary Kllen;" that he sold the " Mary Ellen's " sRins on
tlif market at Victoria for ^((.."iu. These were Bering Sea
seal skins:

' Mary Ellon ' Hkius that
did yoti not ? A.

•■y. Yim were agent for the mile of tlie
'■ oeiisim iu 1886 V A. I owned in her.

"Q Yi)u had charge of the bale of her catch,
•■ Yi's.
) •(,» Did you Hell them ? A. Yoh.

••{}. To whom? A. They were sold to the Alaska Commercial
" C'liminiuv B repreHeutatives at Victoria.

••(}. What price did they realize ? A. 80.60."

Till re is no question about that. That is the only testi-
inniiv of the market value of seal skins iu Victoria in the
vcai !>st!, and counsel aiv not far apart as to the price in

793

(Mr. Warren's Argument.)

that year. $7 is claimed, and we contend that the ckiiiji-
ants should have the market vahie, so that the cont. n
tions as to the price for tiiat year is easily disposed ot.

Market Value in 1887.

The only witnesses who gave testimony concerning ihc
^o market value in 1887 were Theodore Lubhe, Captain VV;ir.
ren and Richard Hall, and they all testified to )|55.50.

The testimony of the witness Lubhe is found at Recoi.l,
page 1882, line 17. Ho says:

" These were bought from C. Spring & Co. July 9, 17 BultuU fur
" seals at *5.25 each, 889.25. October 10th, l,02-'i salleU geids at $r:(,
" aich. «7,312.50."

The counsel for Great Britain, on oral argument, ciiii-
2oCised the statement with reference to this which is ni.ido
in the argument of the United States, and says these \vt re
not Bering Sea skins. 1 shall read to your Honors tin-
testimony that establishetl that they were Bering Sea
skins. At line 21, page 1882 of the Record:

" Q. From whom did you buy these skins? A. The sdiuuntrr
''•Kate.'"

At line 29:

'* Q. When you made your statement as to the average price pniil in
30 " that year you did not include the purchase of pups? A. 1 Liivf
" given you in many instances the purchase of pups. Fur instiude in
"the Behring Smi, the schooner " luile' did not coiitdin any grey piijis In
" speak of; the may have contained a/eir, but in the other the pups are in-
" eluded."

Therefore, that is a purchase of Bering Sea skins in tlie
year 1887 for ^-1.50 on the Victoria market.

The Commissioner on the part of the United States: -
What are the lespective positions of counsel for both coun-
tries with regard to the price that year?
40 Mr. Warren:— The counsel for Great Britain doniaiul
ise.SOaskin. The United States are willing to pay for skins
actuallv seized $5.50, and believe that was the niailvi't
value tnat yeai' in Victoria. Here I have cited a purciia>e
of Bering Sea skins for if4. .'')(».

At Record, page 189(», line 25, the witness Lubbe testi-
fied, in reply to this cpiestion:

" Q. In 1887 vou bought very few Behring Sea skins? A. I think I
" only bought the ' Kate's' lot of l,fi26.
" Q. That was all the Behring Sea skins you bought that yoar? A.
50 "Yes."

1 contend that the criticism of counsel for Great Hrilaiii
that these skins were not Bering Sea skins was inaijo
through erior. 1 have read tlu* tt'stinxiny of tiie wilm-s
himself that these were Bering Sea skins, and that llicv
contained no urey pups to s|»eak of.

At Recoid, page IKbH, line 27, Lul)be testified:

"Q. In the year 1887 who, liesides yourself, were purchasiti).' seal
" skins in Victoria? A. .J. Uhlniaii, of New York, bought tlif •I'lilli-
f)0 ' flndor ' collection, 2,377 skins, at ^■^'. Of course, I nni taking this tinm
•' a letter I wrote at the time to New York. Amongst those 2,377 lliiii,'
" nmy have been 10 or 15 grey pups, which would change my tit;iiit's
" slightly, hut iroiild nut innount to anything. I bought the ' I'i'Iii'Ih|ii' '
"collection of 1,500 ai $.'t.~iO. Liebos & Company and the HikImii's
" Hay Company and others bought some of the skins that year, muk-
" ing' a total, according to these flgures, of 10,200 in Behring Hen."

7!):$

V.^'

'Ill

(Mr. Warren's Argument.)

In tlie British argument in chief, at ()age 85, line 2, the
Bi.itement is made that part of Munsie'a catch was the
gpiing catch, and consequently less valuable than the
Filing Sea skins. In that statement the learned counsel
f<ii' Great Britain are mistaken. I just read from the Kec-
(iid where the evidence of that sale is set out, and it was
Miiiisie's schooner, the " Pathfinder's" collection of 2,337
lo.skins, and the witness Lubbe wrote in his book:

"Making • total, according to these flguren, of 10,200 in liehring

Se'>."

From Record, page 1884, line 5, I read:

"Q. What were the prices— (that is the year 1887). A. The 'Path-
tinder' 85.50, the ' Penelo]|)e' and the 'ThereMa' 85.25; I think they

■' lire subject to a very slight increase on account of a few gray pups; it

" would not amount to any wore than 5c. per skin.

"Q. Doe* the nmounl which you now reml, $-'i.2-'i and $-'i.-'>0 per skin
20 '■ ,,(ch — 1» thit the price of the skins of these severnl schooners? A. Vet,

" sir.
" Q. And all these skins were Behring Sen skins, or northern coastf

•• A. Yes, sir; Behring Sen skins."

The sclioiiiier

skins ill tlic

ed Statt's:—
)r both couii-

Lubbe tcsti-

V A. I think I
that yearV A.

rreat Hiil;iiii

,s was made

the widit'ss

nd that llnv

^'our HoMors will see that there can be no dispute about
that yuestion of whether or not this witness was testify-
ing concerning Bering Sea seal skins.

"Q. Could you give us the date of that last purchase? A. October
' /;///. 18S7; that refers to the ' Penelope,' the ' Pathfinder ' and the
30 " 'Theresa.' "

The Commissioner on the part of the United States:-- Is
tliat the year in which the skins sold for lower at the
cliisc of the season than in the early part?

Mf Warren: — You aie cori-ect in that, your Honor.
Till' variation, however, in 1887, was very slight; and I
will show, before I close, exactly the prices at all times,
and rite the testimony bearing on the market value of
skins.
40 .\t Record, page 1932, line ia, referring to the year 1887,
Tiit'Otloie Lubbe testified as follows:

'•Q. Who else? A. Uhltnan was here, went away and came back
" )ii'r(>, and bought three lots, and went away again. He bought
" wliilo here the ' Pathfinder's ' and • Theresa's ' for various parties.
" Uhlman appeared to have enough. Davis conld have bought a lot at

That is a quotation from liubbe's book and it is quoted

in his hook. It was an entry made at the time. There are

Sotuii instances of sales: one at 'h'l-OO, and the other at |<5;

and tlieie were intermediate sales at $5.2.") and *5.50. Our

iiiiili'iition is that the market price is ^5.50.

Tills witness was e.\ainine(l as to the Victoria market
imrcs prevailing in the year 1887, throughout the entire
viMi, and gave his testimony at Record, page 1933,
iinr :U:

' Q. In 1887 iBoiUd 9-'i. 50 be a good, /air average? A.
",■ i/es, sir."

I shoidd think

TIlis citation was in our printed argument, and was
cntirizcd by the counsel for Gieat Britain, because they
s;iy Lubbe was not then referring to Bering Sea skins,
Itnt I will show your Honors that he was referring to
iKiihing else.

•

794

(Mr. Warren's Argument.)
At Record, page 1884, line 10, he says:

"Q. Does the amount which yon now read, 95- 2ft and $5.60 <>^'t
" skin each, is that the price of the skins of these several schooneV.i?
" A. Yes, sir.

"Q. And all thest skins were Behring Sen skins or nor IherfC coast? A.
" Yes, sir; Behring Sea skins."

,o There the witness does refer to Bering Sea skins di
rectly, and gives the price and afterwards gives the gtn-
eral market pri(;e based upon his former testimony of a
particular transaction. That, if your Honors please, con
eludes the testimony of the witness regarding the average
price in the year 1887.

At half past four o'clock the Commissioners rose.

Commissioners under the Convention of February 8,

1896, between thn United States of

America and Great Britain.

Legislative Council Chaiuber, Provincial Building,
At Halifax, September 20, 18!>7.

At 10.30 the Conimissionei-s took their seats.

Mr. Warren:— If the High Coinniissioners please, I will
IHiiitH'd with the discussion of the value of seal skins. I
Ii;i(l concluded the consideration of the testimony of Theo-
-o<li,it' Lubbe in legard to the market price in 1887 in Vic-
tdi ill. Captain Warren gave testimony as to the value in
1>>7, at Record, 1872. line 11.

' ' Q. What was tho ruling market price of Hkins in Victoria in the
■ vfur 1887, in tho fall? A. Well, an near as I can remember, it was

■' ■ihiiiil $5. SO, what the buyers icere pai/iiiy here."

At Record. 1873, line 33, he repeats the testimony. I re-
ft r to the following citations from Volume i of the
American Reprint of the Proceedings at Paris, page 146,
■'^■sidi- page 12, page 155. These citations are not in our
limited argument. Page 1»>0, pages h\i, 170, 174 and 177,
at which places affidavits of these owners are found, and
till' statement concerning the value of seal skins is Hint the
market value of skins in the t/ettr /-SST in Victoria was
f T. :". There was no other witness except these two wit-
ii(s>t's, Lubbe and Warren, who testified as to the market
vnliK' of skins in Victoria in 1887.

II |i

Makket Value in lsHi».

I proceed to the testimony bearing on the value of the
skins in the year 1880. The counsel for Great Britain in
(Hal argument stated that we ha<l made the assertion in
oiii printed argument, that the year 1888 not being
(liivctly involved in this controvei'sy, the testimony relat-
ing to the value of skins would not be discussed. It is
tint' we made that statement and we believe that is the
fa( t. Mr. Bodwell then |)rocee(ied to treat of tho value in
.^tlif year 1888 as bearing upon the fact that in that year
sknis were siiipped to London. That is the only com-
nil lit ho made. I will refer to that later.

i'lieodore Lubbe and Richard Hall are the only wit-
ness's who testified regarding the value of skins in 1880.
Waiivii was not in business in 18s<» in Victoria and testi-
tifil tliat he was not able to give the market value of these
skins. Theodore Lubbe testified at Record, 103»i, line 10:

■ Q. You have been asked to say whether a certain swiii would be a
" f.iir average of the northwest coast latch is Ijampsou classiAcd them
('o" ill IHH',1, and you also say that that is not a fair way to get an aver-
" \n:<' price for Uehring Sea skius. Cmi i/oii qiee us the tivernf/e price/or
•' Hfi'i-hiii Sea tkiim/or the year 1889? A. You mean a sum in London
" uimI litTeV

" (j>. Take it both ways, if you can, or if you canuot, give us either
■'niir way or the other? A. The price here w<ia $7.75 uiui $7.60 in

,, ;ss'.';."

IM;

Wf '

"!•»•)

(Mr. WaiTfii's Art^iiiiuMit.)

1 call your Honors' attention to the ciitkisnj of <.\\,>
counsel for Ort-at Hritain, that in our brief wo had i a
stated that Luhhe was talking of tlie coast catch autl i,..t
of tho Bering Sea catch. When the counsel made (liit
statement he, through error, did not reter to the tt-ii-
uiony cited in our argument in support of the statenicni.
This is the testimony and it relates to Jien'iit/ Sea .shi„s

lOo/j///.

This is the market value of skins in the City of Victoi i i,
from tile witness Mr. Lulthe, for the year 1S8!», it rel.ii.s
solely and only to Beriiiy Sea skins. At Record. Imi:;,
line -2S:

" Q. If vou can answer this ^ouoral <innstiou it will do just ns wc ||.
" Will you toll tlio CommiHsiouers the liirjliest tinfket price o(l'ere.il f.,-
" iie/;ri;;7 "S'''! skiuH in the year IHSit, at Vii'toriii? A. $7.(10.'

" Q. Will vou tt'll tho lowest price for the sumo year ? A. I tlnnl;
" tlu'v weronll »7.(!(l.

" y. All (ihoiit $1.(10? A. Yes.

" Q. Autl that is for the skius as thov ran, including gray pups, juhi
" like the Loudon sales ? A. Yes, sir.''

That means giay pups taken in Bering Sen, not lliu
coast catch jit all, and there is a very small proj)ortioii in
the Bering Sea catch, and they are included just as tin y
are included in the London sales. Record, 1S!>4, Hiu' In:

" Q. Mr. Bod well asked you a (juestiou if *hat was practically the
'• lowest i>rice then — I do not know whether you answered that 01' imt,
" IHflO ? A. I don't think there wore many skins sold hero in IHH'.i.

" Q. I asked vou to give the highest jirice, and you said 97. W V .\
* Yes.

" Q. 117// you txrn to i/oiir book unitfiml a higher offer than $7.lin nr
" ^7. 7.5 .' A. There in no higher offer. "

Record, 1431, line 24, the testimony of K. Crowe Baker,
not cited in our argument, shows an actual sale of seal
skins in the year iss'.t, taken by the "Triumph," ono of
the boats now claiming !?11 in the same year:

•' Q, Will you look and see if I read correctly the account sales ymi
produce, 'With H Liebes & ('(-..'San Krauci'sco, October 1, IHHlt.'ue.
count of sales of furs received from schooner 'Triumph,' 271 Ke'ihlius
III $(!.2't, SI, •!(•:». 7"), and 51 seal jmps at «l.r)(t, »7.'>.50; total 81,77(l.'.>5.
(Signed) H. Liebes A- Co. (Behrijg Hea)? A. Yes."

The Commissioner on the |)art of the United States:—
Was not that under contract?

Mr. Warre'i; That was under Ins contract.

The Connnissioner on the |»art of tlie United States:—
We have got that fact; it is fully explained in your priiiloil
aigument.
50 Mr. Warien: -This is m actual s:ile.

The Commissioner on the part of the United States: -it
is part performance of the contiact?

.Mr. Warren: —Ve-^. i»art performance, " .Ol .«eal pup.s nt
$1..")0," showing that pups were not included in tlie prid'.
The words " Bering Sea" are written on that memoraniltim
and appear in \\w Record.

In tiie atlid.ivits in Volume 4 of the Proceedings at \';\\\<,

pages isl, l!»|, 1!)4, lit" and rid'), these owners claim tlio

timrh't vithii' hi Virlorid in 1SS!» to Imvc been ^M, '/'Ai sc

f- irere the oriijiniil cJiii ins filed willi tlie Dominion (ionm-

inent made ilirectlij after the cause 0/ action aro.sy.

Record, ll»:il, line 28: " In l.ssi» the average selling price
t»f skins in Victoria was ^7. •>.">."

The Counnissioiicr on the part of the United States: Is
that ^)ortion of Volume 4, referred to in the Record?

ro;

gray pnpH, just

t/i(in $7. fill III

ed states:—

I States:- It

(Mr. Wairen's Ai'Kiiin<u)t.)

Mr. Wai ren:- These paiticular portions wem read ioto
tli>' Hecord by counsel at Victoria.

I liave considered the testinioiiy adduced by Counsel
f.ir the United States bearing upon the value of skins in
Victoria in 1886, 1887 and 188<.>. I call your Honors' at-
t. iition to this fact that the greater portion of the seal
Skins actually seized in l!«87 were of the coast catch. I
ion id from Record, 1872, at line MK to substantiate that—
fiirn the testimony of Janies D. Warren:

" Q. And the skinfi seized from vonr ImatH in BohringHea in 18H7 wore
" 111 most allot them the coant catch — the northern coast catch? A.
■ Vi'», what I Bold waH the Hpring cateh of them veBHels.

•• Q. The skins that were actually taken from the 'Dolphin,'
" ' (irace' and ' Anna lieck' in liehriug Hea were the northern coast
•■ cutch, were they not, Imcaiise you had not had time for hunting in
" llchring Sea? A. A good part of them would l)e the catch on the
•• way np."

:o I refer to the testimony of Theodore Lubbe. as to the
value ()f these skins. Record, 1882. line 48. This te.sti-
iiiiiiiy of the witness Lublie beai-s directly upon this; prop-
(i^ition that I am now discnssinj!;:

• Q. Will you tell us how many skins yon purehoscd at Victoria in
'• tlie year 1^0, and what was the average price ]»aid ? A. 10,75)7 seal
•' skins in salt, average price, 84 891, 882,'211.(i4.

" Q. And in the year 1888, how many skins did you purchase?
•' (live us the total number and the average price? A. 3,8U5 skins,
■ seals in salt, 84. 3S average.

• (,». And in ttie year 1889 ? A. 50fi skins in salt for 82,900.
3^^ •■ i). That is an average of 85.74 per skin ? A. I have not averaged
" tliciii. YcH, that is an average price of 85.74 per skin."

Tlidse were my Hguies put to the witness and I find
tliat 1 w.is incorrect. The witness adopted my figures;
till' statement should be that it was an average of $.5 90.

The Commissioner on the part of the United States: —
Wliat page is that of the argument?

Ml. Wairen: I think it is not in the argument. I am

^;i\ iiig this testimony as bearing upon the statement that

40 1 made that the skins actually seized oil the .schooners

were skins taken on the way up. And I cite also Record,

r.ij'.t. line 20, bearing on this contention.

We believe, therefore, that the market prices pievail-
iii;; in Victoria in ISSC, 1S87 and 18S!). at the outside,
w. re: In 1880, between ^O..")0 and ^7; in lss7, ^.^j.no, and
l>v.t. S7.20 to if!7.7r).

(Ill behalf of (Jreat Britain, what testimony was offered
to -.upport th<> contentitin that the London price should
piiivailf For IS80, no testimony was offered as to the
jopiiies prevailing in the f^ondon market.

Counsel now cites Victor Jacobson's testimony as bear-
ing on the pi ict; for the year IS87 — Record, page 270, line
;U liiit be neglected to read from the same page at line
41. This witness was not e.xainined as to the market
vahio of skins in Victoria, but only as to an individual
sale (or bis own account; and be was on the witness
st;iii(i long before the tpiestion of the value of seal skins
\v,is under consideration. Your Honors will r<^call that
tail tioiu the mere page of the Rtcord- 27(5 -for the value
(lool seal skins was not tak(>n up for serious considetutiou
iiiiiil about pageissoof the Record. He was not cross-
e.xaiiiiiied relative to this testimony, and it iras not
lifil/nioiii/ tis to the 111(11 Ixct rutin'.

The learned counsel referred to the testimony of William
Muusie, page 111 of the Record, line 1, and reail tht; testi-

Ih'i

. ' »

►

;i»s

(Mr. Warren's Argnineiit.)

nioiiy there found as evidence of the vaUie of seal skin.-^ t
Victoria.

" Q. Did yon (liBpofle of thoBe Real Hkin§ that year, and at wl it
" pri(.-e ? A. Yes, I Hold tbeiii for 97 per shin as they ran.

" Q. Did you aell them in the suninier or in the fall of IHHO V A (
" sold them on the arrival of the ' Pathtindor ' that same year."

lo Referring to the date of that sale, which was not ci;. 1
but is in the Record at page 110, line 35, and following,
your Honors will see that the " Pathfinder " in that vi .^r
left the Sea on the 4th of August, and proceeded innni ili-
ately to Victoria, according to the testimony of Capt.im
O'Leary. Page ^1)2, line 4H of the Record, shows thai iIh'
last " lowering day " was August 4tli, and that she left I lie
Sea August C, IHHJi. This was not testimony as to llio
market value of sealskins in the fall of 18H«, hut tesii
mony of a particular transaction, one sale by Munsic in

20 1*580, and was given before the question of the valuf nf
seal skins arose, and the witness was not cross-exaniiin il
regarding it.

This testimony was erroneously cited by Mr. Bodwell tn
show the market value of seal skins in 18.H7— to show llmt
they were worth ^7. 1 have read your Honors the testiindiiv
which shows that this was the year IHHC>, and that com!
sel was in error in citing it as bearing on the value in Is^T.
William Mun.sie did not give this testimony in relation lo
the year 18S7, but in relation to the "Pathfinder," wliji li

30 It'ft the sea August »>, 18S(!, and arrived in Victoria vi 1 y
soon thereafter. This witness was cross examined as to
the price or seal skins in 1SS7 in Victoria, at page ilH of
the Record, line 5»!:

" Q. Now, leaving out the amount of seals you got in 1887, cnn vou
" tell me the price of seal skins in 1887? A. A/ioiil $(i.

" y. Where did you sell your seal skins that year, and to whom ilul
" you sell them? A. Isold 2,320 to Jos. UUman, of New York, or to lii»
" agent here."

I call your attention to that, he sold them to Jost|)ii
4t> UUman for s^d. But the witness is directly contradicted
here by Theodore Lnbbe, at page 1884, line 4, where In-
stated :

" Q. What were the prices? A. The ' Pcil/ifiHtler ' $.7.50."

That is in the same year, and bo read from a book, while

Murisie did not. That disposes of Munsie's testimony

which was cited for the price of skins in 1887 to show tiiat

skins were worth ^7.

Mr. Bodwell:— Was not the witness Lubbe reading tnnii

50 a letter?

Mr. Warren: He read from letters or a book. I think
he read from tissue paper copies of letters, telegrams, &c.,
but he swore that they were written at the time they imr-
ported to be.

Mr. Bodwell: That was information as to another mans
business, for he did not buy them. It was information
that he had about what UUman was doing, and of comso
was only hearsay, whereas Munsie was testifying about
bis own business.
"° Mr. Warren: — These skins were Bering Sea skins, as is
shown by the testimony immediately following on i)age
1884 of the Record, line 10:

"Q. Does the amount which you now read, 85.25 and 95.60 per xk in
" each— isthot the price of the skins of these several schooners? .\.
" Yes, sir.

■

"j'1

•5

I' '

7!t!»

(Mr. Warren's ArgiuiK'Ht. )

■■(/. And all tlicHe HkinH wt-ro Hehrini? Hon HkiuH, or nortUorn ooast?
•■ A. K'-d, sir; IMiriiii) Shu skins."

lie j.^ivos th«' (liite of the salt' of them.

Tli(> <;oiiiisel for (Jreat Britain read from the ar^n-
tn 'lit of the United States, page :it!o, where this state-
iiii'iit is made:

• In the arKumrnt on behalf of Circat Tiritain, CliarloH H)iriuK i«
•■ clti'il at having Hold Iuh Hkiiis that year for 87. If CharlcH S|>riuK
•• Mild any Hkiiin tliat year at !f7, it was imich earlier in the year
" tliiiii the earno of nkins from any of the vesselK wei/ed would have
'• li.iu landed in Vietoria."

Tliat is one of tlie few statements made in oui argn-
nii'iit without a citation, and it tiierefore misled our
ItMiiu'il friends, who did not sean;li for tin; testimony. I
will iiho the citation wliicli w;is omitted from the margin
win re the statement is inatle in (»nr aignment. It is page
•°h:i (.f tlie Kecord, line :<.">.

Mr. Bodwell: — I read that evidence in my aignment.

Mr. Warren: — You read a part of it.

"Q. In the early part of the season what time did you sell for 97^
■■ A. To the middle of September, I think."

.i,i^

» 1887, can vou

The witness Spring is mistaken about the facts. He
states at line 2(1. same page, that he sold the catch of the
•• Favourite" at $7 in IShT, and he then proceeds:

■Q. Did vou sell any at a less priee than 87 in 1887 ? A. Yes, I
•' .lid.

■•{). For what price ? A. For 85.

"Q. That was the spring? catch ? X. That was later on in the same
• veiir. Late in the season, a considerable time after all the schooners
•' liad arrived in, quite a few skins had arrived here, and mine bein^,' the
•' last, of course everybody had been supplied."

til to Joseph
contradicted
4, where he

book, while
5 testimony
;o show that

other man's
iiiformatiuri
id of course
Fying about

skins, as is
ag on page

85.50 per skin
cbooners? .\.

■',0

Now. if your Honors please, let us see if this is so, tiiat
they arrived late in the season. The witness Spring testi-
titMJ that he sold for ^5 in issT. Those seal skins were
iitccssarily from the " B^avourite," which Cliarles Spring
owned in 1SS7, for. on page lss2, line 17, it is disclosed he
sold the "Kate's" skins to some one else, not to Morris
Moss, hut to Theodore Lubbe in 1HS7, and therefore these
wtiv the skins from the "Favourite," as the "Onward"'
had been seized in 18S(>, and Spring had only tlie three
sclnioners. Now, the "Favourite" left the Sea August
•J'lth (Record, page 7Hn, line .'»(>), according to the testi-
tuduy of Laughlan McLean, the captain. So that it would
ajipear that this sale of ?(;') was the sale of skins from a
-I lidDuer that terminated her sealing season about the time
that counsel for the United States contend the sealing
season ordinarily closed. This witness says tiie schooner
arrived later than all the others. We have the log of the
"Favourite" before this High Commission to tell what
time she arrived, and she came dii-ectly to Victoria.

Dtarmg upon this decline in price in ls>7, I read from
till! Record, page 1934, line 21:

(X)

Did it considerably decline? A. Yes

Commencing when, 1887V A. Commencing about October,

• (,».

IHS?

• (). When the Behring Sea catch had been made? A. Yes, sir.

• (). What was the decline? .\. Oh, 15 i)er cent. I thinlc it was,
iiliiiiit 15 per cent. ; seals fell oflfin 1887 and the early part of 1888 on
iiciiuiit of the tariff, but they improved in the fall of 1888 and through
ISNilaud 18iM)."

il:

SflO

(Mr. Wairon's Argument.)

Consider the t«'stiinonv of William Miinsie. wlioisciii. ,1
"Till) piont'er sliii»|K'r of skins to London." n-gaidiii^ lin.
sale at Victoria or the "Pathfinder's" skins in 1>^7 it
^:> .")H ( Ht'cord. 1SS4. line 4». Does that tend to estahli,!,
that the liOndon |>ri(:e should he awarded*

Mr. Bodwell says that Joseph Boscowitz sold skin- m
London in l^'ST. and therefore all these (■laiinants slioulij
lohe allowed the London jirices hecause of this one sale

Mr. Hodwfll:— I do not accept tiiat as a statement nt inv
argument.

Mr. Warren: — I say that this is the only sale prnvin m
fiondon in iss; by any man from the City of Victoii;i, iinl
if the London price is to he awarded, this testimony nnii-i
he the hasis.

K.xamine the testimony in tin- Kerord at |>ap' |s7l. liiii'
:'). and proceedinn on that p.'i^e. an<l what does it siuiw;
That s<>.:{(i was the Inghest price that the witness W'.imn
20 claimed he received.

'■y. What (lid tliov uet von lioro after |mviiiK uU oxpenscV A
•'S(i.:«)."

Then, at lin«! 4s, ho says that there shonld he ahoiit Il'.I
cents deducted from that to give the net; and. in aiiotln 1
jtlace, he states there would he more to take off for p.u k
mg and storing the skins in Victoria if he had not lifcii
l)rovided with his own place. That is the only testimony
to support this demand for st;.r)0 in London, and docs it
30 support it?

I stated that this was the only sale in London in I^^T;
1 was referring to BviiiKj Sat skins. The only other tos-
tiniony in the Hecord, and I say it advisedly, of any ^alo
in London in issT. is the testimony of Jacobson. wliidi
was a sale in the sjjring. In that connection 1 read fidin
the testimony. Record, page lss4, line til:

"Q. lu tbo year 1887, you told us that JoHcph Boscowitz was tin'
" only person you knew of who sent skins to London directV .\. Yes,
" sir.
40 "Q. Ho WHS the onlv person vou knew of here in Victoria wlio did
•• that? A. Yes, sir."'

The witness Captain Warren, who gave this testinKniy
ct)nccrning the sale in London, was not testifying in re-
gard to tin' market vulni' in London, but confined his tts
tiniony entirely to the returns of one sniall sale. Joscpli
boscowitz was a dealer in fur skins in the City of VictorlM,
and before I leave this question of the value of skins, i
will show that William Munsie, the other ship|)er to L<iii
rQdon. was also dealing in seal skins, buying them in Victoiia
and reselling them on the I^ondon market.

The counsel for the United States, wlien this question
first aiost) as to the uutrket rafne of seal skins, ol)jectt'(i tn
testimony of this nature, which was confined to a siiKjk
tidiisdct/on. This objection is on the Kenord at pa^e
lst;L>, line<i.s, and is:

" Mr, Dickinson: — Permit me to object to the testimony of a siu),'li'
" sale l>y a single owner in the City of Loudon.

" Mr. Peters :— 1 will ask the (general (luestion as to what they realized
'• in the City of London?

•'Mr. Dickinson: — We object to itasau incompetent method of |)niv-
" ing the value in Victoria, and as not competent evidence of the Luu-

don market oven."

The learned counsel for Great Britain says that aftir
tile year 1888, and in the year isss, all sealers and owners

ictorin wIki ilicl

801

(Mr. Warion's Arguinunt.)

of sfaliii); scliooiiers would nocossiirily havo shipixMl tlieir
-kins to Loiiiloi), ami lie read from oiio placMf in Tln'odoro
I, iiltlw's testimony where lie madn a f^cnoral statenit'nt. I
will supplement the residing of that testimonv with the
,1 (inate statements given hy Theodore Luhheo^ tiio facts.
I nad from page IMi, hoginning at line 2<):

••(J. In the year 1H8H, who, brnide yourm-lf, waH |inri-lMkHiii(< HkiuH
10 ■ ill Vu'toriay A. Tliut ih prrtty liunl to Huil out. I think then! were

• vi'i-y fnw Hkiu8 sold Lure tbat year. They were all Hhippcd by the

•■ iiWUl'M."

I road, if your Honors please, a statmunt from the same
witness, at page IHS.'), liue 17:

' Q. YdU iiioiilionrd the nami* of Williiiiii MniiHii- who did tliiit, und
■ I want to know now, if you havo u niciiioninduni of unv oni' t'lm' who

• ,li(l that in IHHHV A. I'thouKht you ha<l got thiongh with IfWM. Mr.
•■ MuuHi>> was the piunuer Hhijiper."

20 We iiave seen that Munsie sold skins in Victoiia in IHS".
Tlii'iefore if he was the pioneer shipper, he was the only
sliijiper in l.ss.»<, or the tirst shipper, and the iiecord dis-
cliises only one other small sale, and I will give llie cita-
tion. It is jiage 1KH."», line HO, where the testimony refers
to the shipment to Ullman & Company, and of tlie skins
(it the " Juanita" in I.sh.h, prohahly to Lampson. That is
tlic oidy other te.stimony in this entire Record concerning
the sliipment of skins to London in IW.S.s.
At page l!S8«» of the Record, line 45, Luhho testifieil:

•■(,). Xow, Mr. Luld)o, referring to your hnokH there, will you tell
•' till' ClominisKiouers the namen of any other parties than Munsie \
" Companv who sent skins to London, on their own aecouut, in the year
'■ lHH<r> A. I cannot tell you."

Referring to the Record, page 18<!7. line 1, the testimony
of William Munsie, we find him stating:

• i}. In 1H87, wore you not the only one, exeejit Captain Warren,
" wliii shipped skins? A. I did not ship any in 1H87.
■• Q. Did you know of a single otherowner of seal skins who shi))ped
40 •• to tile Loudon market the catch of 18Hr>, or the cateh of 1HH7V A. I
" (111 not. lioscowitz probably shipped, but I do not know.

" Q. And for the catch of 18S',>? A. Cai)tain ^Vnrren is, jirobably,
■' the imly one outside of the Hudson Hay t'oini>any ; if he did ; I do not
'■ know whether he did or not. I cannot answer."

Captain Warren did not ship in 1889 for he was not in
iiusiness.

Tliere is the testimony of William Munsie himself as to
the shipment of skins to London in the last year in con-
troversy here. There are some small amounts claimed
5° for the value of seal skins in 18i)2, but they are not im-
portant.

Referring to this last year, we have Boscowitz, The
Hudson Bay Company, and Munsie, all dealers in fur seals.
That the Hudson Bay Company was dealing in skins, of
course, does not need to be estal)lished. Joseph Boscowitz
was a dealer as established by the Record, and that Will-
iam Mimsie was, I will now proceed to establish. Record,
page l.'JoO, line 55:

(x) " Q. You said a moment ago that you had no memoi'y of how many
" Were lirought down, but you remember thiit? A. I don't remember
" huw many she brought; I know I hoiighl Nixon'a skins I/kiI i/enr.

"(,>. How' much did you pay for them? A. I don't remember.

" i). (!an you remember the amount i)er skin? A. No, I don't re-
" mi'iuber the amount per skin that I paid for them.

" i). Nor the number of skins? A. No.

::»

Y<«H,

"O.

thr

(Mr. VVniicn'H Arniitnt'iit.)

Ami linvf nolliiiiK to nIiowV A. Tlic nci'iinnt Nnlon will ibow
AiToiiiit of ' Allii' I. AJKiT 'y A. 1 tliitik mi>.
Ari> tlit'V M<>)>uriit<'tl? A. I tliiiik hu.

Till' HiiiiKt lii'iMiiiiit Hitltm to wliit'li villi liiivu jiiHt riiffrruil? \
I think tlii'v art' tlii' i>riKiiiiki iti'i'imiit hhIi'h.
Winilil it Htiiiw tluMiiiiiilii'r of tlir ' Arii'l'H ' iikiiiH No|iariiti' fi' m
llii'i'H? A. No. I liiiil tintliiiix til ilii witli tlii> 'Arii'l'H.'
"U. I iloii't want till' lii'i'iilliit NulrH of vniir IiOliiliui iii(i'iit of tin.
" ' Allii' I .VIkit.' I wuiit what v(iu puiil? .\. I tlim't ri'iiicmlii'r ul,;,t
'"" I [mill.

" <^. 'I'lirii till' ni'i'oiint HitlrH froni your Loiiiloii itKi'iit would n.ii
" hImiw wliitt volt |iiiiil Nixon for tin' ' .Mlin I. Al^i'r'H' HkiiiH, u.iii.l
"it? A. No," it wouiil not mIiow.

" Q. .Villi wi'i-i' till' ' .Xrii'l'i*' BkiliH '.Ml'i? A. Hovi-n't tho ri'innii,!
" iili'ii wlmt Ihi'v wrri'.

"if. Von liiiv'.'n't till- ri'iiioti'Nt iili'ii within 50(1, Imvi' yon? \. N,, |
" liiivi' not. I linil nothiiiM to ilo with tliu hninllinK of thi'iii.

"I). |)iil the ' .Vrii'l ' hi'iuI iIowii HkiiiM on tlio ' Wiiinlrrcr '? A |
'■ ilon't I'vi'u know tliiit tlio ' Arirl ' Hi'iit Hkiun on tin- ' Wiimlcrrr. '

" Q. .Villi yi't you liouKlit Nixou'M HkinH? A. Tho Nixon HkiiiN un,.
" not tlir nkiiiM of till' ■ .Vrii'l. '
20 >'(f, 1 niriint till' • Allir I. .VIkit'; that Ih my miNtitki-; tlir ' Allir I
•' Al^rr. ' WiiH till' iiinoiint of tho ' Allio I. AlK<'r'» Hkiim that wee,.
" ItrouKht ilown on tho ' Wiiiuli'ri'r ' WVi'f A. 1 ilon't ri'mcnilii'i' Imw
" iiiiiny hIh' ilid liavi', or wlii'thcr even it waw thai yi'iir or not.

"{). You don't ri'nirmlirr whcthor tin? HkinwIioUKht from Nixon »iro
" till- rati'li of tho ' Allii' I. .Vlnt'l',' or wlii'thiT that waH tin* vnir \\w
" ' Wunilpri'r ' lirouKht down tho Mkinn yon lionKht? A. I ilon't i,..
•• nii'mluT. In l8!Ht tho 'MiKchii-f went \i\>; it may havo boon ilmt
" yi'ar.

'" (^. What did you rofor to your ai'i'ount salon for? Did tlioy n"t ^m
"to London iu tho Hnm'' kit with tlii) ' I'athflndor's ' NkiuH uiiil tlic
'•'Viva'n'? A. Them int HaloH for Movoral yoarH aro thoro.
30 " Q. Do not thoaoi'i waloH of tho ' Allio I. Al«or'H ' tikinM touliic'li

" you havo roferrod 11 lU'o tho Hamn aooouut HaloH an tho nkiiis u(
"tho 'Viva 'and ' ratlumdor,' your own Hhijm'; A. It would hv Ww
" Hanio itooount HaluH; tho namo aooouut naloH will hIiow tho hiiIi' "I' lur
" HkiUH.

"i.). Did you, at tho time yon Nhippod tho HkiuH from tin I'litli.
•' ttuilor ' and • Viva' to Loudon for sale, Mini) nkiuH from the ' Alliu
" I. .Vl^or' that you liouKlit from Nixon? A. Vch.
" if. .Vnd that waH in iHHit, wnK itnot? A. I am not Huro of tho your."

It wa.s lss!». lH'cau8L'tl)at was the yenitlie "WaiKlcni"
went to ShiiMia^in I.slands That is ronchisively »sl,il)
4oli!sliO(l, hi'causo it was at the time the " Wanderer" was
chartered.

Tlierefore. on the testimony of these men, and tlii'se
men alone, who were dealing in seal skins, do counsel sii'k
to claim tlie London market for others who were not (Iciii-
ers in seal skins but who sold them on the Victoria mar-
kot.

Captain Warren is cited hy the learned cotmsel as tlioiif;!)
he testified that he intended to sell his skins on theLomloii
market. Captain Warren ^ave no such testimony. His
50 testimony was confined to one }';M;t, and that was to one
sale in London, and he nevei testified that he intendoil to
sell on the London market, and such testimony from him
cannot be found within th< covers of this Record.

Mr. Bodwell:— Did not I read Captain Warren's testi-
mony? You have an unfortunate way of stating my
arj^ument that I do not a}j;ree to at all.

Mr. Warren: — I did not know that I quoted your arjiu-
ment.

Mr. Bodwell: — No, but you said that we based our claim
60 on that one sale testified to by Captain Warren.

Mr. Warren:— That was the only sale that Captain War-
ren testified to. It is claimed in their brief.

Now, I read from the affidavit of Captain Warren. \'ol-
nme IV. of the American Reprint of the Proceedings at
Paris, page Itlo, regarding his intention. What did he

nli'N will nIii

it nifi-rrod y \

80»

(Mr. NVjiiit'irH AiniiiiH'iit. )

H(iv in IHH7, tlu' HjiiiH' year, (•(iiircriiiii^j; wliicli he j;!ivt' tint
ti'stiiiiony of tlio oniv Halt> in honilon^ I iriul nnra-
Ki.i|.li 14: '

" 'I'lii' |>ric« |M'r will Hkiii rliiirKcii in Kx. ' A,' iiutiu'ly, 5 ilol. Whv per
" hkiii for tli« Hi'ul NkiiiH on liounl tli<' ' Uriici' ' wIu'm Mci/iul iiiitl tukcii
" nut lit I lillllisku, iras t/m imnkil juiin ul Virlitiiii "I tlii'clusii 1/ tin: srul-
■■ inij si'iiniDi of 1HH7 ii'/ifii llir ciilrli uf Ih' ' th'ure ' fiif llint neniitin, in lln'

.ni'iiiiirii aiiimr of rrtiih, iroii/il loirf I'rfii /ilnieil on tlin murkvt."

I ieii*l from |>:iK«> t)>( of IId; sanit* volninuof tliu (iociuva-
inii of I aptain VVarn-n:

" And till' jirii't' per Hkin cliiirKril Tor tlii' nnti HkinH tiiki'n from the
■■ ' Aiiliii Hi'ck ' wlii'li Nt'i/ril IS llo' iii'iikii jii Iff Iter skin runt ul iil i'lr-
'• Inrio ii/oirs'iiil lit Ifitt cloHf if llif nmsitii (■/' ISSt, irlifii, in lliH orilinuri/
• (iiiiin- of frmlf:, flif ciihh of l/m ' Anmi lirvk' wmilil Imvt' \hh'U Jiliicmt
■' Mil >./((/ timrki't."

(I « I

uro of tliovcar. "

ill

Ml. Hodwfll:- My aininncnt as to Captain Waiicn wuh
tlii-~: 'i'liat lit' was a pai tnor with Hoscowitx, an<i as a niat-
1(1 .if law, would Ih' t'ntitU'd to what. ljos(;owit/ j;ot out of
ihf -all'.

Mr. Waiit'n:— If they will conflno it to tlic skins of
(',i|it.iiii Wancn. and not liaso tlwir claim for tliu value of
ntlit'i >kins upon that, my argument will he without mean-
ing:, lint that is not the fact. The fact is the c(»uiiselclaim
liie l.iiiidon in'ice for all skins and the only tesliiiiony with
it'jiard to that is the testimony to which I am referring?.
If the contention is that William Munsio should have the
1,(111 loll price, and every other sealer tho Victoria price, the
1 (intention and statement of tho learned counsel would
Imve some meaning, hut the argument in chief fordreat
Hiiliiin demands the London price for every claimant he-
Inic this Commission.

Iliave |iassed the year J.s.sT. having considered all the
t> -limoiiy in the Hei'ord as to the market valiu! in that
vcir.

I'l.i the year 1SM». the counsel for Gicat Hrilain claim
s|| ,1 skin, and that is hased on the testimony of a singk*
witness, William .Munsie. ^vho purchased seal skins in tho
Vi( tdiia market for sale in liondoii. I read from the testi-
iiiuiiy of William Munsie, at page If^OH, line .'iU;

" (,). .Vnd vim Imvc miidc u calcnliition lu'ro wliowinK wlmt tliev pohI
• |Mi- ^kin; ("m tlic Hrst lot, S7"i skiuH, .^7.S»'21 ; is tliiit riKht? A. .s7..'>in.

•• <). Now, tlicn, kindly look at tho next Hi'hooui'r; you liiive thuHum«

licrc. "Hold 'i,2'2(') sonlxkiuH, cx-Mchoonor 'Viva,' Ih that another of
■ till' same Hchoonrr's catch? A. It i« tho same schooner'.^ catch for
■' tlic same year; that in for lielinn^ Soa.

"(.). TfU'mc how much that netted?

* * * a i^ * * *

• Direct-examination l)y Mr. Peters continued:

■ (). Will you Kive me the net of thafr A. 811. (MlJ.

'■(). (live me the date of the nales in Loudon? .\. i::]th dav of

Niivcmlicr, IHHJt.

• (,». Both thcHo account Hales are sales in 188!>? A. 1H80.

■•{}. And they both, apparently, took place on the same date? A.

Tlif same date."

.\iiclioa sales on the same date netting such ditl'oient

|ii i( cs. Are those sales to he tho hasis for determining the

(„)i'\ciMge market value? 1 am aware that one of these was

;i (lillVrent catch than the other. I will continue reading:

■ (}. One was the spring catch, yoii take it, and the other? A. The
■ HciiiiuK Hea catch.
••{). The smaller numl)er being the Behriug Sea catch? A. Yes,

H0+

(Mr. VVaneu's Argument.)

"Q. Have you got another iiccount Hales here for tbe game viiir,
" 1889, for a sale taking plaoo at the name time, of the schoonir
" ' Marv Taylor"? A. Yew, wir.

"Q. XV'ill you tell nie how many HkinsV A. ■16/ skins; uet, l^N.K.i

" The Commissioner ou the part of the United Htates: — Have yon fjot
•' the dates of the sales?

"Mr. Peters:— The preeise date of the sales is marked Octiilur
" 30th. t«8!t.

" The Witness:— They are all dated the 30th day of October, imw.
lO " Direct-examination by Mr. Peters cimtinued:

" Q. Did you sell any of the ' Mary Taylor's ' catch earlier iu that
"season? A. Yes, in .Inly; the 4th day of July. There were .V.s/
" skins sold at net $8. -77. "

That is his testimony regarding sales in London, but
there is nothing there to sliow the market price in
London.

Commissioner on the part of the Uiiiteil States:— Ymi
do not contend that lie got more than the maiket ]>riif.
do yoii^
^° Mr. Wairen:— We have testimony here in the Reconl
of wliat the market price was.

Commissioner on the part of the United States: — If you
have evidence that estahlishes the fact that he got a i)iice
above the market ]>rice, I slioiild like to see it.

Mr. Warren: — We have positive evidence, or more posi-
tive evidence than that of Mnnsio's, which I will read to
your Honors. Page 1!);U of the llecord:

" Q. So that a man in Victoria with a cargo of suited seal skins
■ must look to London for his market ? A. They are constantly sliift-
'ing."

Now, I will read the testimony of this witness Luhhe.
as to the market valne of seal skins in London in 18M9,
page IDHt), line Id:

" Q. Yoti have been asked to say whether a certain sum would be a
" fair average of the northwest coast catch as Lampson classified tliem
" in 1889, and yon also say that tliat is not a fair way to get an avernfjc
" price forBeliring Sea skins. Can you give us the average j)rice for
" Behriug Hea skins for the year 1889 ? A. Y'on im>an a sum iu Loudmi
" and here ?

" Q. Take it both v/ays, if you can, or if you cannot, give ns either
" one way or the other ? A. Tlie jjrice liere was <57.7.5 and .'«7.(i() in
" 1889. Til e price in Loniion, I s/iaulil think, iroulil riinqe hflirefii $11. Id
'^ mill 9!>.5I); the net results to shippers exporting skins would !«■
" between S9.40 and S9..5(), the average results."

Commissioner on the part of the United States:- -Tiiat
is the average for the season.

Mr. Warren: — That I am going to show is the average
for the fall. His testimony as to another sale in London.
5oat$7.7»i. in ISSIt (at page iiCSS, line Hl'), refers to a i»ar
ticnlar sale, and not to the market, hut is of as nuich
value as William Munsie's testimony of a sale at ^11. I
am referring directly to the market now, and at line .M of
the Record, page 1938, the following appears:

" Q. The average price of the Hehriug Sea catch that you gave, Iiow
"did you arrive at the average which you gave for 1889? A. In l/n'
" iiiiliinin, October 3IHh, 1889, t/iere were tiro sules in Liimlini, oiif of
" l-'i,()00 skins for C. M. Liiinpsnn & Compiini/, nreriKjing 'l'> sliilliiif/i :
" iind, on the siime dm/, CuherwelL Brooks tfc Gompnny sold, I think,
" 10,4111), iind the nrenige wns 4 ( shillini/s and 6 pence.
'>0 "Q. You nuide the average j)ri('o from these two sales? A. Yes;
" they were the two loading sules in that year."

There is positive testimony of the sales of Culverwell.
Brooks & Coni|)any, and C. M. Ijanipson, in the London
market in the fall of that year, issjt, given by the onlye.x-

H05

e in the Record

.1 States:- -That

(Mr. Warren's Argument.)

|M it on the stand, ami I)y the only witness who testitied
as to the 'market value in London.

.At Record, page l!»H!>, line 8(». the witness mtikes the
<i}-('ia(je net at Victor hi %9.-i0. There is in this Record
positive testimony substantiating the testimony of the
witness Tlieodore Lubbe, as to the sales made in London
liy Lan)pson & Company in that year.
10 .\t page 5t(2, Volume :i, American Reprint, it is stated:

"Thiit in the your lH8i), ;10,5()3 sonl HkiuH were sold in London, the
• iivora^e price jjcr wkin l)eing 3it HhiMingH, 5 d., which ix upproximulelt/
" mO.-JT per Kkiit,"

Tlie testimony adduced on behalf of the United States
shows the market juice prevailing in Victoria in the year
l>sit to be $7.00. At page 1S!»8 of the Record, line 2H, the
witne.ss Tlieodore Lubbe says that the average price in
Viitona was " ^7. tin "; and at Record, page 1894, line 24,

:otli(' same witness .says that the highest offer was " $7.(10 "
for skins in Victoria in that year. No other shipper to
London, outside of Munsie, Boscowitz. and regular dealers
like the Hudson Bay Company. No witness testified.
Willi the one exception of Mr. Richard Hall, that lie even
intended to ship skins to London in 1889; and a claim is
made for the London price, based upon the record of a
siii^Me sale given by one witness, William Munsie, who
was a purchaser of seal skins.
The counsel for Great Britain seem to lecognize that

30 unless binding contracts were shown to have existed be-
tween the owners of a caigo and the purchasei's of seal
skins in Loiidcm, the ordinary rule which declares that the
price prevailing at the port of departure would govern,
would be here applied, for they now advance the conten-
tion that all the sealers iiiteniled to place their catch of
skins upon the London market.

The witness Warien is most strongly relied upon to
support this contention. We believe, if your Honors
please, that the Court, in considering a claim of this

40 nature, will inquire into the history of this intention,
and investigate as to when it first arose. I have read
from James D. Warren's own affidavit, where he stated
that in the ordinary course of events the seal skins
of the " Anna Beck" tvonld be placed on the Victoria
market : and that the market price prevailing in 1887
was $.').. 5(1. Nowhere in this Record is there any tes-
timony that he intended to sell in London in 188!»— and
moreover, he was not in business in 188!>. I will cite the
Koiord to show that Warren was not in business in 1889.

50 Record, page 1872, line 15:

" Q. Now you were in buBinefls in 1889, of course, iu Victoria? A.
" I dou't think I was in the Healing buHinesH at all.

" Q. Were you acquainted with the market value of seal skins in the
" miirket of Victoria in 1889 ? A. 1 don't remember."

H ■ f

He gave no testimony regarding his intention in 1889,
and he had no skins for the value of which he makes a
claim in that year.
The learned counsel for Great Britain stated, in order to
fofiirtlier establish this doctrine ot intention to sell in Lon-
don, that the catch of the ''Lily" and the "Black Dia-
mond " would have been placed on the London market,
h(( ause Morris Moss, who, according to the registry, was
till' owner of these vessels at the time of seizure, was the
aj^int for Liebes «Sc Company, of San Francisco, and conse-

800

.1 -Mi

'i i

(Mr. Wanvii's Ar^imu'nt.^

qiUMitly would liavo ri'fi'ivfd I lie Loiuloii |)iir<> Cor tin-
lafcli madi' l>v his vt'sscls. I rcfir your Honors to th,.
Ki'c'ord. |)aj;t> issti, liiioM, to ascertain what Morris M..-,
was doiiij;;. Tlu'odoro Liihl)(> was uiuU'r oxaiuiiiatioii, and
the followiiifj; appt-ars there:

" t^. Mr. liulilio, I tliiiik ynu snv tlmt tlio m'i\\ Hkin ImycrH wimu' \>n\
" int; ill Vii'toi'iii; tlioy wi'io Imviut; to ri'Hi'll on tlio London iimikit.
lO" woro tlu'V not '! A. IIV//, mil eiilirfli/. Far iiisttiiicf, Ihr Lielu-^, .nrl
" till' I'lilmmis hiiiiiilil for iii:i)iii/iiiiiiri)ii/ /iiiriii'Hf^.

" Q- I'll' rrsi wouKl lio sent on ti) Linnloii to In' rcHolil ? .A. Yt'.'*, ^ii "

Lii'hos iSc (.'oiiipaiiy, rcpreseiiti'd l>y Morris Moss, wt ir
not huyiii^ to rosell on the London inarket. .Xfcoriliii^
to the only t'vid(>nci' in tht> Keiord. they were hnyiii;; loi
inanut'actiirintj; purposes, and were spciMlically nicnlinii. ,|
by the only witness i-et'errinu; to them, as purchasers nt
skills which would not he sohl on the liomlon market.
jQ This sauu; man, Morris Moss, made an allidavit (nn
tained in Volume 4, .Vmeriean Kepruit, page JUT, whtivin
he saitl:

" 'I'lu' viiliu' of tlic sciil HJiins tiikiMi from llu' ' Fjily,' un set oiil in
"Biiitl stati'inciit, wiiH. on or iilumt the t\rst iliiy of (Vtolicr (wlnn in
" duo courNO till' .«;/</ n.'ififl inntlti Inirc iletirered her skins ,il \'ici,,i i.i
" ii/'arrsiiiih, IrlS.OO jirr s/tiii."

So that there is not a eontraet in evideui'e hetwecn aiiv
sealer and a London piirchasi'r. noi' is theieany evidence,
, otitside of that of Uiehaid Hall, that the intention was to
■''^ sell their skins on the London market even in the ycai
18^!•. When 1 make that statement. 1 exelude W'iliiain
Munsie and the Hudson May Company, who were pin
chasers and dealers in seal skins.

In eonsideriu};- whether or not the London priee slinuld
prevail, the nature ot the London market should he talvtn
into eonsiil. latioii. These sales in London were at piililic
auction ( U'ccord. page ilMt*. liiu' ;>7; Volume;}, AmciKan
IJe|Mint, page. ">.">!). .\t these auction sales the catch ul
one vessi'l w.isotlen sold at a nmch higher ligure than llic
'*°catch of another vessel. 1 read troin Wecord, page |s7e,
line !■_'. where William Munsie himselt is testil'ying:

" Q. You wiTi' aski'il an to tlic diH'crcnci' liotwi'i'ii tlii' prins of
'■ Hkins, Ih'Iwi'i'H one vi'sscl and anotln'r. Do not otlicr ai'i'ouiil miIi"-
'■ hIiow ditleroiit prices for diU'crent vcsscUV \. Yew, sir.

" i). Can yon givi' any reason wliy that is so? A. No. 1 can't, luit
" it is a tiling that doi's occur and we don't know wliy it is.

" C^. .\s a matter of fact how ilo tliese sales take |daee'^ A. liy iiiic
" tioii.

" i). .\nd they are put up in ditVerent lots and sold at aiiclioii'.' A
" Y'es, sir; to tin' hinhest luilder.
5'^ " {.). .Viid you have to aliidi' liy the result'/ .\. Y'es, Hi r.

" I). .\s a iiialtir of fact, as i-egards sales in the spring of JHHlt. yen
" ({ot more inoiiev for these skins, iiiori' than vou did for the skins
•• of the- Viva"':' 'a. I di.l. "

Hearing upon this din'erencc that exists hetwecn the
sail' of the i-.itcli of one schooner and tlie sale of the skills
caught hy anollier, I rcler to the Ivecoi'' page l>iss, line
ti;i. where Thciidore iaililie is testifying:

"If. What class of skins were they '/ \. (Dast skins.
' " Q. What iiuality were Ihey ; were thev ^ood or had quality'.' A
" The skins were delh'ienl in Idiildier, and they were thin pelted on iic
" count ot lieiiin delh'ient in hlul)lier.

" (.). What is the eU'eet of tliesi- two thing's on the value of the skin':'
"A. On .July lith, I speak of the 'Viva' and ' I'athHnder.' and 1 m'c
" that the total numlier of skins was '.i.lOO. The 'Viva' ami ' i'ulli-
" fluder' employed white huiters, and eoiiseipu'iitly. the skins hiive

Hi (7

(Mr. Wan en's Argument.)

hoHvy lilublMT uu)I look w»<ll. The 'Mary Tn.vlor ' and the '8»p-

" |ihire' ennilovixl ludiaii hnutcrH, ami the 'nkiuii appear thiu iMu-anHe

they have little blii1i1>er iu them. I have ' Hpeant ' iii braoketH. The

,liferencf in pricn often .ihillhiijt is prohnhh/ iiccounlnl for hy the fuel
■■ Ihnt the ichita hnntem nseil i/iina ami the Imlinn hunters u»fd speto'S."

Is testimony of this kind tu establish the market price
1,1 he given for sealskins, of any service to your Honors^
10 I lliiiik n<)t.

In concluding on the (inestiun of the value of seal skins,

I have this to say. The enormous catch claimed hv these

M hooners in the years in controversy, when placed upon

the inarkt't, would have so depr«<ssed the price of skins

that it is doubtful if half tlie price riding at the close of

iiiiji season's hunting would have been lealized (liecord,

|ugo l'X,M\, line t!4; page VXU\, line S!M. These last n^fer-

(IK cs are to the testimony of Theodore Lubbe. At page

Ht;!;{, line (!4 of the Record, he testified:

•• i). I HiippoNe II larKc oikti'h iitftH'ts tht> vahio of HkiuH in tlu> market?

• A. Oh, yi>«.

• t;. Materially? .\. Y<'h.

.Mso at Uecord, page \'XW, line ;<!•;

•• Q. The priee iH not altogether roKulatml by the amount of the

• iiitrhy A. It iH to a larf(e extent.

It is a mitter of common knowK'dge, of course, that the
, siijiply atfects the market ; anil that a larger supply and a
' less (li'iiiand decreases the price.

1 < ' ''

1 ■

Uul

TiiK So-(Ai,i,Ki) "Waumng" Cr^AIMS.

at and ion'-' A

That class of claims, known as the " warning chiims,"
nc|iiire .'•ome consideiation. They are iiimierou!^ grossly
t\tiiilioii.it.c and largely fiaiidiiU'ut.

The Paris Tribunal found, as a matter of fait, tliat cer-

^l;mi vessels were seized while carrying on hunting opera-

''"lions ill the Hering Sea, ami that the masters of certain

nihil vessels were warned against continuing tli(>ir hunt-

jiil; oiierations, under penalty of forfeiture.

I'he proposition that solely becaii.se of tlie.se warnings,
the owner or owners have a valid claim against the (iovern-
nniit of the ITnited States for damages, reipiires no consid-
er, it ion. The burden of establishing a legal claim rests
iipoii the claimant, notwithstanding the fact that the
w:iiiiiiig is admitted; he must show that the warning was
. |Oh(yed, and that by reason thereof his voyage was inter-
iii|itiMl and loss resulted.

Tile only possible claim that could be advanceil, uidess
the warning was obeyt'd, would be for the item called in
the s( liednle to the separate claims in the Argument in
Chief of tiieat Britain, " Illegal hoarding and Search-
ing (if vessel, $•_', 0(1(1." Concerning claims of this nature,
l.oid Malmsbiiry, writing to Lord Napier, Juno 11, l.sftS,
s.iid:

" i'li('r«> no doubt may lie cireuniHtanceK which would go far to
(v " iiKKJify the eomplainlH a nation would have th(> right to make furHurh
■ viiiliitiim of itw Movenugnty. I/Ihe olflfer htul Jiut (/roiiml/ur iiispirion
■' 'iii'l ilfjxirteil hiiiis-tf with proprii'li/, iloiii;/ no itijiiri/ nml pi'iicefiiUy retir-
" 11(1/ irhfn niitinjieil of hi* error, no Mn/iVm votilit ini ikes iic/ii in mi the suhject
" tit' sfrioii» nwlmnution."

"If ff I- '!

;'•<;■

HOH

(Mr. Warren's Argument.)

Then lie qnotes from Attorney-General Cass, and pn.
ceeding says:

" Her Majesty'H Govorniueut oouciir entirely iu tluH view, ami tli.
" question therefore becomes one Hololy of diHcrotiou on the i)art of {].•■
" acting officer."

If your Honors please, this language, altiiough referiiiiL;

10 to a class of cases somewhat different from the cases now
under consideration, shows how 'Mie nation considers tli.
similar act of an officer of another nation, if performed in
a projter manner, and is autiiority for the contention thai
no serious reclamation would he made hy the Governmcni
of Great Britain against the Government of tlie Unili 1
States, hecause the hoarding officer, in the case of tin'
"Little Triumph," for instance, in the Unimak Pa--
hailed the " Jjittle Triumph." hoarded her, departed willi
out taking any part of the cargo of the vessel, although

20 there were seal skins there, returned to his shi;>, wlun
upon the officer in command warned the captain of tli
" Little Triumph " from the deck that the schooner slioulo
not enter Beiiug Sea.

No such claims were presented to the Trihunal of .AiIh
tration at Paris, except in the case of the " Pathtiiidri, '
No. L'l, which was an actual seizure in N'eah Bay, a ca-M'
of actual detention, for the vi^ssel was taken from Ihr
place of seizure to Port TowuscikI.

This item of the claims is not a claim for actual (lain

3oages l»ut for damages hecausi; of a willful tort conuuitlrd
hy the officers of th(! United States (ioviMMment. As id
whether oi' not damages of this nature should he awanhd
hy this High (."onmiission, the learned senior counsel Imi
the Tnited States will discuss.

It is in the class of cases which 1 am now to disrii-s
that claunauts have attempted to pervert and delVat llic
ohjerts of this High t'uminission. ami when I refer to
these claimants. I shall deal with them as private mi<Ii
viduais, anil not with the nation of Great Britaiu.

40 When we chara(tt'i'iz(f sonu? of these warning claiius a-
fradulent, absurd ami prepnsteious, we aie not. witliniii ,1
precedent foi' so doing. Tribunals of this nature have
authoritivt'ly set down in tiie books, that such claiiii-
against nations should be wt'iglied caret ully and witli the
mind charged with the fact that thi'v ai'e e.xaggeialel
beyond tlu'ir true propoition.

DrU.ATIO.V OK TMK SkASdX.

The lir,-t step in establishing a fictitious cliiin foi tlie-e
vessels that wine warned, was taken when the claimant
sought l)y their testimony to prolong the ordinary dura
tion uf the season in Bering Sea bcfvord the last davs ol
August, for the case of the I'nited Stales against tlie-e
vessels svas made by showing, tiiat alter the wariMiiu,
some of tiiem contunied to seal withm the wafers nt
BcMing Sea during the eiiliic .seas)n. made a catch and de
parted for \'ictoi'ia where the catch was sold, and lln
6oownerH received the benefit and suffer(.'d no damage whai
ev«!r.

I shall briefly consider the testimony relating to ilie
duration of the season. I take it that the duration of tin
sealing season is (piite clear to the minds of the Hi^li
Commissioners. 1 11 the .iigument filed on behalf of tin'

80»

!s, and jin

view, ami tli
the part of th

gh reftM'iiiiL
e cases iiuv
Jiisidt'i's tli^
ei'foi'iiicd ill
tention tliai
Joveiiuueiii
tlio I'liiti .1
cast' of tilt'
iiiinak I'a--
)aited with
el, altlioii^h
ihi;>, wliciv
)tain of til"
)oner.shi)nlii

nal of A rill
i'ailitiiHli'i,"
Bay, a (.asc
ill from till'

artna! dam
t conimittrd
leat. As til
l)(3 awanlcil

■ COllllSl'l 1. '1

(Mr. Warren's Argument.)

liiited States, conimt'ncing at page 22M, tliis subject is
ti! itod in detail, and at page 2H(), this statement is made:
• !// the testimony in the Record relating to the duration
ol the hunting season in Bering Sea given hy captains,
111 lies or hunters f>tt rr.s.sf/.s- ,"7»>.se rot/ayes irere not iutcr-
yijili'd or hiferfi'ii'd with, is contained or referred to in
tins portion of the argument.
10 The word "all" in that quotation is italicised in the
|ii lilted ai'gument.

it that is not accurate then before the learned counsel
f, I (Ireat Britain close, if they will correct it in one f)ar-
tKiilar and cite the evidence of the voyage of one vessel
tilt is not there releried to, the counsel for the United
Stall' will correct that statement. Every voyage the de-
tails i)f which are set out in the Kecord, anil which was
iioi interrupted— and I state that, because testimony as to
\( -lis whose voyages were interrii]tted would not be of
josiii li ;i convincing cliaracter - is citcil witliin those pages.
.Villi, when the counsel for Great Britain, Mi'. Bodwell.
toiiiid fault with that statement, he neglected to carry out
his (ibseivations hy citing to your Honors any testimony
tiial was omitted.

Ml, Bodwell:— 1 think 1 cited a good deal.

Ml. Wan-en:— No. VViien thecouusel fortireat Biit;un
n ail liie ( itations, lie proceeded to read testimony to show
Ih ii there were peculiar circumstances connected with the

vii\ aL;>'

;n Mr. Bodwell:—! think I pointed out a good deal with
ii'tiii'iice to that.

Till' Commissioner t)n the part of tli<' United States: —
Till- ii'coid of tile argument will show all that.

Mr. \Varren:-()f the nature of the criti(i>m by the
luiiiisti for(iieat Britain upon the citations theic, 1 have
niilv this t(j say: that in every instance our learned
liii'iid Ml', liodwell, contented himself willi the leading of
till' li^timoiiy there cited, and v-etaUeit for granted tiiat
\uiii Honors will read the tcsliinoiiy ami i'on>-idi'r tben
(livvhi ihrr oi' not the I'liiiclnsioiis drawn are jiistilicd.

Till' reroi'd docs not disclose that oni' single witness was
fVi I r.xamined by the counsel fri' (Jieat Britain relative to
tin -I'lieial suliject of the duration of the sealing sea-
-iiii III Bering Sea. The only two witnesses who were
aski'il liy ciiiiiisel fur (ireat liiilain a (piestion about taking
.Ma!s generally, were, Steele and .Magiieseoii, who were
askiil. if it weie possiiile to make catthes in September.
'I'lii' I iiited States, on the other band, inddiieed or cross-
> .\aiiiiiied the witiiisses who>e ti stinmiiy 1 will now i(>fer
; ill I'll the general subject of the duialiiinof the sealing
-ia-Mii in the Bering Sea, during all tlie.se yea is. 1 shall
iii>l irail tliat testimony: but 1 nuiy say that it estalilisbes
1 1 \ . ml ilispiite the proiiositimi that ail of the witnesses
w h" were aski d t his tjuestioii stati'd tlml llic s^aliinj sai-
.Mi/, i-liisal ((ppni.) iiiniteh/ lichrcen llic •l^^th (ind -J'tlli of
.l".//^s/.

I nb'T to the testimony of William T. Biagg. These
lilaiinjisaie not all in tlie argument, for they are citations
I'f ,t:i iieral testimony icfeiring to the duration of the sta-
''uMiii. William T. Bragg (Record, i)age 'jt'iCi, line 'j:!; and
Iv'emid. page Ttia, line "»">) was on the " Mary Ellen." He
liiil not ttstify, as is now contended by the counsel for
I ill at Britain, tiiat because the " Mary Klleii " had sm h a
l.ni;i' catch she was ready ti) go home; but testified that
till' reason was concluded; and because that vessel's move-

l!H^

Wrv •'

810

(Mr. Warren's Argument.)

ments are-4i«peHd«d' ujK>n so much, I desire to read hih i|y
from that testimony (Record, page '26(5, line 23):

" Q. The 24th of AnguHt won practioally the close of the Ncnljii);
" that year in Behring Sea, WBHit? A. It was the cloge of ourHenlui);.

" Q. The close of your sonling? A. That is what my books hIkiw

" Q, Did )ioii cnmi' iiirini niHiiT thill i/et
" ofiliniiri/ Ihiiil nf Ihf Kfidini/ uriisim?

Iliiit limi:"

ir lliim ollifrs, or ifiit i/im .«/.// thf
A. Tliiil mis llir nrt/iniiri/ lii,,,; ,,/

Is there any mention there about having sucii a l;ii„'t;
catch that they were ready to go hoinej

*' Q. Id those years? A. In those yearH.

" Q. And ill Itfe? it iriiH nhoiit the limit? A. Ahiml the limit in 1NH7 "

The Commissioner on the part of the United Static: -
Part of that is omitted in your written argument.

Mr. Warren:- -Yes, it is not set out in our arguiiiint.

When we were preparing our argument we thougiit iliis

2o general testimony would not be so convincing as actual

practical experience, l)ut I am referring now to the gi'inial

observations of the witness.

Tlie Commissioner on the part of the United States: I
am not asking you wliy you omitted to put it it) ymir
written argument, but it would seem to be in your f.iviir.

Mr. Warren: — Ves. it is, your Honor. This witiu'ss
continues:

" Q. The V)()i,. that were outfitted to go from Victoria iu 1H8() nnd
" 1887, wore outfttteil so that it would t-onipd them to leave tln' Sea
3*^ " at that tiracV A. The vessels that I have been in.

" Q. Why did the season close on or about the 24th of Au^'UHt. 1886
" and 1887V A. Well, coming on the first of September tli:> wiatluT
" commences to get bad. The northwesters set in about the latter
" part of August, and as a rule they take the first northwester almut
" the last of .\ugiist and steer for home."

Now. the argument filed on bi'half of Great Hiitain

italicizes the statement of this witness; that wlieii thcv

departed from the Sea they set their maintop staysail. tliK

concLision being suggested, 1 infer, that a vessel in a gak'

40 would not carry a maintop staysail.

Turn to the log of the " Mary Ellen," which is now in
evidence and is found in Part 2 of the Senate Dociiiiinit
lo7. r>4tb Congress, 1st Session, at page n'2, and wc see
that between tlie l.")t]i and litth days of August tlie " Maty
Ellen " took no .seals; tiiat from the lUlh day of August to
theLMtii she took seals; and the.sciiedule known as Kxliihit
No. 1*7, which is an abstract from a meniorandmn bonk of
the witness Bragg as to the catch of the individual lunittrs,
shows that the " Mary Ellen" remained in the Sea t'nitii
50 the 24tii to the I'Htli and look but one seal, but not troni
a boat lowertvl.

The "Mary Ellen" in the Sea until August L'ittli, iii.i
not taking seals between the ii4tb and 'J'.ttn. Does tliat
testimony show that the season did not close betwcoii
August 20th and 2r)th^

The witness Alexander McLean is criticized by couti
sei with tile intention, imdoubtedly, of affecting his testi-
mony as to the time the season closed, although that (esti
mony was not directly attacked. This witness, Willi uii
^>oT. Bragg, of whose honesty there can be no doubt, atui of
which there is no question ujade, testified (Record, pige
7(i,^, Mno .5,5). that the last day they hunted in the Sea was
on the '2.")tli of August, exactly the same date thatCai)iaiii
Alexander McLean's book states that they hunted; ami 1
will show your Honors that two of the other dates giveti

811

''■'''' ''iPi

limit ill 1H87

limiteil; ami 1
ir dates givi'ii

(Mr. Warren's Argument.)

liy Captain McLean are confirmed by the testimony on
lioss-examination of witnesses produced by (Jreat Britain.
1 refer to the testimony of Captain Wiibam O'Leary on
till' duration of the season, Record, page 773, line 44:

• {.). lu 1880 for what tiiuo (lid Tou outfit? A. Uutil about thu first
■• I'f Septomber. I Kouerally allowed to leave Ueliriug Sea nhifui the
■■ ]sl t/ Si^pti'inhrr tir tlir lust of Ainjiint."

William Munsie's captain testifying, if your Honors
jil.ase, that the season terminated about the last of Au-
gust!

1 also refer to the testimony of Alexander Mcljean,
Hocord, page 4(Il', line 5.5:

• {.). What time did vou leave the Behriuf; Sen iu the ' Mary Ellen'?
■A. I eaunot exactly say, but probably about the 20th or 25th of

• AuKust- I I'l' uot sure.
" Q. Kraiii i/ii'ir I'j'/H-i'ifiirr ir//iil s/niit/<f i/nii villi tin' mil iif tlif si'iiliii'j

isi.ii ill Ihlii-iii'i Hi-ii ill thr iinirn ISSChikI 18S7? A. AIkiiiI III-' 2(>ih
Aii'/iist, I iriiiilil iiiiisiiirr tlir I'liil nf llir xi'iisiui. I iinfil la li'urr llir
•• ^■•./ llfii.

■■ Q. Why is that the oud of the season? A. We usually fouud it so
■ lit that time
•• C^. What stops the season? A. The weather used to be bad aud

• \vt> figured un ({ottiun back about the last of August or the 10th of

• SfptcuiV>cr; we usually outfitted for that time."

He gives the date there when tiie "Mary Ellen" left
tlie Sea and William Bragg confirmed it in the testimony
1 have just road.
;o i read from the testimony of the same witness, Record,
[lagi' 410, line 4S:

•■(,). Anil the seiisoii r'ltse-l wliiii:' A. Ahunl the 20lh to tin- 2')th.

" (}■ Vf'ir in mill iieur out? A. Siiiiii'liiin:' I'lirlim' ninl noiiu'liiiiea us hite
•• (S llie Q'tlli. I hiirr hivii llinv us l,itf ,is Sf]itriiil,rr.

'• Q. Dill 1/1)11 liiii'i' mil/ Si'iitiiii/ in iSi'jiti'iiiln'r? A. I's, air; in' lutd
" liiini''.

" i}. ^Vll■^> thill r.cii'ptioniil, ri'miiiiiiiui nri'r milil Si'ptiiiihfr? A. IV,<,
" iiitiisii'il."

At Record, page 4t)2, is found an examination of Mc-
40 Lean, regarding an affidavit stating that be generally i/ot
ku'k about the llth of September. I have nothing to .say
on that jioint more than what the Commissioner on tlie
(lait of the United States observed at the time that testi-
nuiiiv was given, and that observation is in the Record at
j)age"403.

At Record, page 11531, line 48, McLean testifies:

" Q Why did vou leave the Sea on the 19th August? A. The season
" was i)retty well closed."

^'^^ At Record, page 1333. line 44, the same witness testified:

" Q. When you left for IJchrinj.; i^i'n in lS8(i as master of the
" 'I'ftvourite ' when did you iutind tf come back? A. 1 intended to
" 1)0 back here," that is Victoria, " between the Ist and 10th of Sep-

" tcmbcr."

I refer to the testimony of Captain Daniel McLean con
taiiied in the atlHdavit i)rinted at page IM'I of the Record.
liiii' 45, and the part I read from is line 5!»:

60,. ,

1 usually enter the liehring Sea during the fore part of July and

''■"•■' ih'' lust iif Aiii/iisl. Till' Hill ht'i'iiiii'S li,ii riiii;/li li. in'ikr il jirnjiluhl'' to
*' h'liit si''fl tifti'i' Ainfust, mill it is /hi' in'ftrtifrj'nr in'iir/i/ nil I'l'ssfts I'lii/iii/fti
" III Iniiiliiii/ si'iil lo li'iivi' iiIkiiiI Hint tiinf."

Tliat aflidavit was niade in the year 1S!):J, and refers back
tn tliese earlier years.

IM'

:1a..

PfT

812

(Mr. Warren's Argument.)

I also refer to Reconl, page 124s, line 3, the testiimiiy
of Captain Raynor:

" Q. When, in vour opinion, Captain Raynor, did tho actual npnlins;
" neason in 1887 dose ? A. Aiiiiiflfiv frimi llif 'JO/li Ainjiist /n //,■ ;,/

*' Si'jitrnthrr,

" Q. Wliat event wonld ileterniine what diiy between the 20tli An.
" (,'WNt and the 1st Hejitember the Keasou wouhl ehiHo V A. Tlie tir~t
,_ " strong westerly wind we got we wouhl U'uve the Sea.

" y. Tlffu-sl ili-(,ii;i ivislrrlii ii-ii,il, it'll, • llii 2(1111 A'lijii^f.' A. F.x, ,•■■,.•.'■

At Hecorcl, page 10(^3, line 42, is the testimony ot C'a|i-
tain Albert Folger:

" Q. Ueenuse you were 8o adviHed you did go away ? A. Yes, >.ii'
" Q If yo)i had not been so advised you wouUl have remained Inti^ror

" in tile Hea ? A. I inmlil /inn' s/oi/fi/ nnlil lln' lullrr imrl nf A"'fi.<t.

'• W/ieii //irflrsl iiiirl/iirrsi i/ii/in iiih- t irmilil linn' ntni'li'il /m' hiimi'. 77.. i/

" ili'iii'i-iillil ciiiiir lirhrii'ii lln' 'JOIIi mill 'J'idi Ani/iisl.''

2Q At Record, jiage I<i7s, line 1(1, is the evidence of Cap-
tain Jolin Steele:

•• i). Were vou in the Hehring Sea in 1HH7? A. Yes, sir.
• (). On wl\at ship? A. On the "Mary Kllt>n."

" t). Were Vou sealing in 1888? A. Y'es, sir.

" (}. Were you sealing in 188it? A. Y'es, sir. I was on the onast
" thot year.

'• Q. Were you in the Behring Sea iu 188(i? A. No, sir.

" i). But yt)U were sealing in 188'.t on the west coast of Vaneouvor
" Island y A. Y'es, sir.

" Q. Were you sealing iu the Behring Sea in 1890? A. Y'es, sir."

3° And continuing at line ">!', he said:

■' Q. Taking yoiir experience from the time that yon first arrived in
" Vietoria and up to 18iM), what time would you say the sealing scasnu
" actually closed in the Behring Sea? I mean by what time did tlirv
" stop lowering their boats and sealing? A. In those vears when I
" was sealing myself we used to consider thot the sealing would 1m'
" about closed from about the '20th August to the 1st Se))t('mlnr.
" The first strong gales that set in from the northwest after the -ilth
" August we generally left for home.

Captain Meyer testifies as folio .vs, Record, page 172^.
4° line Itl:

" Q. Ifiiir iliil iiiiH fiiiil till' ni'idiiii/ hi'hivi'ii Ani/iinl 20lfl nnil Ihe in'l I'f
" AiiijiiM? A. Friiin tin' 2l>lli of Aiii/nnt tn lln' I'ml iif Ihi^ iiiniilli?

" t^. Yi!>. A. IF''//, / iliilii't fiinl iiiHi/i ill it. Tlni-i' 'I'lis mil iiiiir/i j„iii
** ill stiii/iiifj lliiil Hull'/*

That witness, if your Honors please, was actually tlicie
aft^r August 20th and knew the conditions, as I will shdw
bearing on a different subject.

All of that te.stimony relates to the general subject of
50 the duration of the season, and nowhere within thecovtis
of the Record is it contradicted by witnesses examined
for the purpose of ascertaining the general duration of
the season; given by witnesses of both sides, if we .Tie
to draw distinctions regarding whoni witnesses were pro-
duced by.

Season of 1880,

The actual experiences of vessels in the Sea in the year
188t) is set out at length in the brief for the United States.
60 The counsel fi'r Great Britain in commenting on the tes-
timony of Ramlase, who, I believe, was aboard the "K:ite"
in I8S(">, said, that the experience of this vessel ought nut to
control, because she was not outfitted for the full season
If your Honors please, that is the character of the cc^n-
ments upon the testimony set out in our argument. Aiul

lie testiiiiiMiv

»8 on tho const

813

(Mr. Warren's Argument.)

what was the testimony as to the vessel Uanilase was on<
i;.(()i(l, paj^e 2)>!>, line 17:

■■(.). How lonR <li(l vou reinnin in tliP Son, seiiling? A. If I romem-
■ luT rijiht, wf left oii tlio ij.'itli of Aunnst.

•Q. Why dill you icnvo on tlio 25tli of August? A. I don't know; I
• sniiposo tliikt wnH tho end of the trip."

Tiie witness, at pajje ^o(», line 42, says:

• {). Hut you say tlmt in 188fi tho woBthcr was not as good in Au-
■^'usty A. 1 don't believe it was. I think we had bettor weather in
■.luly.

■ (}. You used to leave the Sea between the 20th and 25th of

■ AiiK'Ust, did you, in those years? A. That year wo left the 25th. I

■ am almost sure we did.

■■{}. When did yon stop sealing in .\up!ust? A. What year?

■•(}. lu ISHtl? A. Well, as near us I eaii remember, a few days be-

■ fine that, probably a eouple of days.

" Q. Then you left on aecount of what? A. The vessel wasn't fitted

■ out for a long cruise; she wasn't very well provisioned going home."

That is the testimony not set out in the argument for
tlic I'nited States, although the testimony showing that
he left on the 2i)th, and that he considered that the end
of the trip was.

The vessel was not outfitted for a longer season, it is
said. When the witness Warren states that his vessel
could have remained until October, hecause she was out-
titted for such a voyage, that establishes the duration of
tiic season, according to the claims of tiie learned counsel;

3°l)ut when this witness says that he came out on the 2r)th
of August, because that was the end of the trip, and on
being examined again states that his vessel was not out-
fitted for a long cruise and was not very well provisioned
going home, the learned counsel contend that such testi-
nidiiy ought not to be given any weight as bearing v on
the duration of the season.

F.eaiing on the actual experience in 1886, I cite the
Record, page 'itifi, line 23; page 271, line 3; page 21»!>, line
17; page 3(iti, line t)2; page 1728, line Itj, and page 4<i:^, line

40 Tm, without reading any of the testimony. Not one of
these vessels left the Sea because she was warned by one
of tlie cutters of the United States (Jovernment, or because
of any knowledge of the seizures made earlier iu the
season.

Season ok 1S87.

I will next consider the actual experience of captains in
tlic year lss7. The counsel for Great Britain cite, as bear-
5oiiii; ujion another branch of this controversy, the testi-
mony of Capt. Warren, at Record, page llti'.t, line .'JS;

• (,>. Was there then a rumor that the United (States intended to
" nsuine seizures that year? A. I think not; I know our author-
" itii's here told us there would bo no danger.

"(,». The authorities of the Port of Victoria ? A. Yes.

• (j). Who ? A. Tho custom house.

• t}. They expressed the opinion that there was no danger ? A.
'■ No danger."

This was in 18S7. Kecord, page 1 148, is also cited, line
ti7. the same witness:

■■(). It was pretty well known in fact from the experienee of 1886
■tlmt there would be seizures in tho Hehring Sea? A. No, I Ihiiik
" :iiil. ll (/•</.« ivjiiir/i'il ill till' iiiijirrs lliiil till' ri'.-Ki'h :«-itril in lS8(i imv to
•■ 1,1 ri'liirnril, null iri' niiiiiinsi'il llint itu/i'il lln' siiziiig; in' tuok it for
" '!i''inti'il ih'it llii't'i' irtm/il ill' nil itini'i' seiziiri'S,'^

ifW

814

'h.

(Mr. Wai-ren's Arguinont.)

But when conns*'! lejily to our contention tliat actu.il i x
pcrience slioiild control, tliey way tliat you cannot (Icpcinl
U|)on these ships, hecause they expected to he sei/cd m
18S7, and therefore they were mailing their nioveuients m
accordance witli that knowledge

If we estahUsh that there were vessels in Hering S a
in I8M7 whose captains did not know of any warnin;;s <,r

lohad no knowledge of any seizures after they reached th,!
Sea, their actual experience, we take it, will have sonietliint,'
to do with the (leterniination of the duration of tlic
season. As to the experience of vessels in the year I^^T,
no one ol which was svarned, interfeied with or left Ww
8ea hecause of fear of seizure, without reading, 1 ni;ikr
these citations: Kvidence of Kaynor. Kecord. page 1:.'I7.
line <!1; Captain Ijaughlin Mditan, Kecord, 7'.M>, lino ."..i.
and Kecord, I'.VJ, line i'; C'aptiiin Folger, Ii(>cord, losu', liiir
5S: Captain Meyer. Kecord. ITi'T. line ")•'., ;ind Kt'|i|Mn.

20 i:is4. line 5. The tesliniony of this la.st witness wascnm-
nieiited upon hy the learned counsel, Mr. Hod well lie
stated that the experience of this vessel ought not
to control, hecause the witness said that, although tiif
ship left on the l.^tli of August, he was not informed nf
the reason why. If your Honors j»lease, if ti>e vessel lilt
at that time and Kep|)en was not informed of the ri'axm
why, 1 should draw the conclusion that the reason sliu
left was a natural reason rather than an unnatural mw,
which would have heen known to the witness. His tes

30timony is at Kecord, page llSsf), line 4"):

" Q. You came out thiit vear ou the 15tli of Augu«t?
• g. Why? A. I dou'tltnow why."

Season of isss.

A. Yos, sir.

The actual exi)erience of vessels in the year Isss has
heen considered by my associate. Mr. Lansing, in coniict-
tioM with the chart that he hasitrei»ared. 1 content mysilf
with citing the testimony hearing on that as follows: page

4o62;v line 50 and page 7u:>, line 42. The latter citatinn is
from the testimony of Edward Crow Baker, ami the
learned counsel, Mr. Bodwell, in commenting on this tes-
timony, said the reason why the '* Triumph " terminated
her voyage so early was not known, hecause it was im-
possihle t») ohtain Captain Daniel McLean as a witness.
We have the affidavit of Captain Daniel McLean here, in
which he states that the sea.son terminated the last nf
August generally (Kecord, Isi'l, line (iui, and the hook nf
Captain Daniel McLean was in the hands of Kdward

50 Crow Baker when he was testifying, as shown by
that citation from page 7u-i of the Kecord. The
experience of Captain Laughlin McLean in l"^ss^
Fiecord, page 7:5o, liiu- <!s; Captain Folger. Recdiil,
page 10S2, line f).">; Captain Steele, l>age l()7s, lineL'o; Cap-
tain Meyer, i)age 17'2S. line 2ii; Captain Alexander ilcLeaii.
page 403, line a!* and page(i(;7, line S.

But the learned counsel say, in the year isss the sealers
had information that, after the^uth of August, there wire
to he seizures, and the learned counsel, Mr. Bodwell. said

'«3this came from Ca|)tain (Jau»lin. In that he madean error.
That information came from the witness Captain Clarke,
who said that, after the 2uth of August, the United States
were to seize. On the face <»f it the story is unworthy of
comment, hut tlieie are other facts in this Kecord. Victor
Jacobseii, who sailed the " Mountain Chief " in the year

S15

.;♦

(Mr. Warren's Argumont.)

h•^s. and whose vessel is the only one prior to tiie year
h^'.t that ever took a seal, so far as this Ueconl shows,
w ilhin the wat^i-sof Bering Sea in the month of September,
ivinained in tliat year until the M of September, and what
(lid bedoon that day? He went into the harbor of Unalaska.
Ilxause I suppose ho tlion>;ht the cntters wished to
si'i/e him after the 2(»th of August, and therefore he gave
10 tin rn the opportunity. Went into the port wliere the
(litters were lying, took water, came out, and took seals
ill the pass on the 7th of September.

What. CI edit should ho given this stoiy that seizures
\Trie expected after the 2nth of August, when this captain
toiik his schooner into Unalaska ami sailed out with-
o'.it having her seized? If he thought he was to be seized
wiiiild he have gone there?

II f

KXI'KKIKNCE AFTEK ACfil'ST '.'(rrH 0|{ AUOUST 2.'>rH.

There is one feature of this matter of the duration
(it tlie season which is not treated of in t>ur argument, but
wliii'b now seems to me very important, and it can
lie considered in connection with the chart put in by
the t:ounsel for the United States, showing the voyages
of tlie various vessels. 1 take it that, if we can show
tliMt vessels were actually in these waters after the
■jiitl) or i'.">th of August without taking any seals,
and witliout being able to lower their small boats,

^oit will have a very important bearing on this question.
Tlit'se references are not in our argument. The witness
Bragg, on the "Mary Ellen," is shown by Exhibit 27, at
piigc 4;{ of Blxhibits, to have remained in the Sea between
August 24th and August 2!»th, in the year 1S8*), without
IdWtring the boats. Captain Meyer remained in the Sea
from August 2!»th to September J Ith (Record, p 1728,
line It!) without lowering on account of the bad weather.
Ciiptain Laughlin McLean, whose testimony is not com-
iiit'iited upon even by the counsel for Great Britain when

40 tin y discuss the duration of the season (Record, p. 73n,
line .">.")», testifies that the "Favourite" remained in the
Sea from Augizot Hvtli to September .5th without lower-
\\]<i her boats. The statement of the voyage of the
'Triumph" in the year 1S88, found at Record, page 7n2.
line 42, discloses that the last lowering day was August
•.'dtli. and before that the last day the boats were lowered
was August 14th, and that was read from a book kept by
till' master. Captain Laughlin McLean (Record. 730, line
c.iii leinained in the Sea in the " Favourite," in is>ss, from

5o.Viiti;iist 27th to September .3d, without lowering, in spite
of tlie fact that they all thought they were to be seized
aftci' the 2<>th of August, and the actual termination of
liis voyage was the 27th day of August.

Witness William (1. Goudie was on the "Edward
Welch"' . ;.-8S, and remained from the 28th of August
t(i Si'ptember 7th without lowering (Record, p. 677, line
4J, and Record. 077, line 38.

This same witness, at Record, page C7S, line 5, testified
that lie was on the "' Molly Adams" in the year 1889, and

60 tilt' last lowering day, for the purpose of sealing, was be-
tut ('11 the 20th of August and the 2.5th, and that be re-
iiiaiiicd in the Sea until (Jctober 5th, without lowering
a lioat but once, on which day they raided the Pribyloff
Islands. Captain Sol. Jacobs was commanding that boat
and lie was in the sea from the 2.")th of August to October

!«:■

I ■

i: S

81«

(^Mr. Wanon's Argiinn'tit.)

.M!i, wiiilinR. C'niisinj; aliout waitiiif? for an ofipoitiinh >•
ti> raid an*l never lnwcrt'il a boat for seals. In tlie \,.n
l^<''o. Captain Lati^iilin Mcliean. again in the "Faviuii.
ite " ( Hecoid, T.M, Inie S. and 7"»4. line l(h, remained in iIik
Sea IroMi August 1 Uli to Anj^ust 'JoMi, witliont ioweijn;;
liis boats; and an exantiiiation of the lojr used liy \\„-
eounsi'l lor (Jreat Britain here in Hahfax, on oial ai^ii
lonient. discloses tiiat lie reniainod in tiie Sea until the jiid
of Aiignst. altlioiijili the testimony was until the u'l tli.
Tiie 1(1^,' shows, and I liave examined it, that he was tin ir
until the :.'.'>d of August witliout loweriuK lii« 1 )ats;ili,|
August 14th; that log is here and your Honors van mmij.
or any one ean read, the entries showing that he did not
take ono seal.

No Intkntiox ok Skai.ino ah'kk tiik last ok Aii.im.

2o 'i'he coiuisel seem to have abandoned the attempt tu is
tabli-'ii a prolonged season on the basis of actual experii m c
of vessels in the Sea. or on the general testimony reiatin;;
to the length of the voyagi' for which the vessel was nut
fitted; and now we have the argument, which we li.ive
lieietofore been unable to meet, because not advanced, tliat
it was tlie inteiitiuii of the sealers to remain in llic Sea
until September b'ith, and in soene cases until October 1st.
Accepting I he soundness of this argument, that the. in

.^o

tent ion should govern, let us^o to the Kecord and see wjiat
the Hecoi'd shows th« intention really was. The counsel
for the L'nited States contend, after deliberate considei a
tion, that the testimony shows exactly what the actual
experience established.

1 take up the testimony relating to each one of the ves
sels Milvancing claims, showing what the intention wa-^ a>^
to the duration of its voyage.

DlKATION OK VOYAOK OK THK " CaKOI.EXA."

4° 'I'lio "Carolena": William Munsie did not testify re-
garding the duration of the voyage, which fact was ad-
niitted in the oral argument by the learned counsel Mi
Hodwell; and the only evidence in the Record icgaidinj;
her voyage is found at page ;{77, line !(!, and page tine,
line !!. I read from page :{77, line Id, theevideni'e of John
Cotsford, a hunter:

" Q. Do you know niiytliiuK itbout wliiit llie tiiut' ('a]itaiii ( >Klcvii', m
" did vou hear aiiytliiuK aliout tlie time ho wa.s prejiariuK to leave tlic
'• Sea? A. Siiiiifirliirf nln iit tin- 20lli nr 23rtl i>f Ain/iis/, I hi'lhrr."

In the British argument in chief (page fl!*, line 4oi the
testimony of the witness Munger is (juoted, in connectinii
with theduration of the voyage of the "Carolena": "In
the Sea the captain talked of going home about tiie end
of the month of August,' and with that the (luotation
stopped. I will complete that testimony by reading froiii
lieconl, page tiStI, line 'M^, where the same witness, Jame.s
Plunger, on cross-exan)ination, testified:

60 " *i*- ^"'" reiiipnilier that— you reuieiuber tlu»t your partieuhii'hmitir
" talked to you about goiug homey A. Yos.

" ii- What did he say? A. He said that the veHwel was not iim\ ton
" bi«, and that we had better start home about the cud of the iiKUitli.

" Q. Will you swear whether the\ said 'about the end of the nmiitli
" or '2(tth August'? A. Xo.

" i}. You could uot say which? A. No, not as to the date."

Www

81T

(Mr. Wuitom's Arf;unieiit. i

Tliat is Jill tli»' t<'stitni)ny in tlu> iJi-cnid re^caidinj^ tlio
|iro|tos«(l (liinttion of the voya^t' of tlu' " Ciirolt'iia." Ono
wiliu'SH says aitout tlic '2titli or 'J!li<l of Aiin\ist, and '^e
oilier lliK last of Aii>j;ust, and wonld not nay as to wlivm^:'
it was tlio 2i>tli of Angust or I'nd of August.

Ill

DUHATION OK VoYAdK OK " ( (NWAHI)."

Wliat is tlu' tfstiniony n-lating to tho propoH'd voyage
(il tliL' " Onward " t Atlifcoid, pagt' stil, lino Mo, the wit-
11. ss. Ciiailes Spring, owner of one half, testified :

•' I). Will you 1)1" kind t>ii<iii)(h to tell mo ^.liiit Mu' iuHtriictioiiH wcro?
•A, Tlip iiiHtnu't ions were to the ell'cct tliiit lit' hIiouIiI iirocriMl to
" licliriiiK Hi'aniKl contiinu' there iih Ioiik ii« iiosHilili', uiid to lie liuok
" Miim- time in tlio month of Sr|itt.'ml>i'r ut itiiy riitr, to lie i(iii(1i'tl in ii
" iiu'iiHiin' liy C!ui)tuiu IMcLuan-on tlii' schooner ' Fiivouritt' ' iit that
" liiiu' — they had agrvtul to meet in Jtchrinfc Sea."

-•^ Turn to the Uecord — wlien diil Captain Mcl>ean leave
till Sea, and did he see the "OiiwanI '." l\v ii-ft the Sea
An^iust li>th, for he says, liecoid, page \[VM, hne 4h:

•' {). Why ilicl vou leave the Heu on the I'.tth August ? A. The HeaHon
" wfts pretty well eloHeil."

Did ho see tiio " Onward " '. Yes, for he took ftoT skins
otV llie "Onward '" and hronght them to Victoria.

Iitrord, |)age 4o2, line 5.'), Captain Alexander McLean,
to whom was entrnsted the retnrn voyage of the " Ou-
30w:iiil," stated:

" (,). From yonr oxperienee what would you eall the uud of thoHeal-
" 111^; HCiiKon in Behrinn Hea in the yearn lHMr> and 1H87 ? A. Aliout
• tlie '.illth of AuKUHt I would oousider the end of the seaHou. I used
•■ to leave the Hea then."

At page 4UH, lino r>4, he says:

" (,). How many years did you leave the BchriuK Sea aliout the 19th

" nr 'J'th AuKUHt ? A. In ISHiJ, the last lowering we had iu the lleh-

" rill),' Seu was on the 10th of Aupust. In 1HH5, on the 2:idof Aut^ust ;

10" 111 l>*^(\ on the 19th of Au^nst ; iu 1HH7, on the I'.tth of August ; iu

■ l^SH, on the 19th of August ; and in 1889, ou the 'iStli of August."

Tliat is all the testimony in connection with the i>r()-
|iiisid duration of the voyage of the " Onward."

liartieularhimtir

Pkoposkd Voya(jk of the " Favoirite."

What i.s the testimony regarding the " Favourite?" Re-
cord, page i;531, line 4^:

50 •■(.). Wliy did you leave the Hea on the 19th of August? A. The
'■ MiiHou was pretty well closed."

Cuptain McLean's testimony, Record, page 4(>2, line ;");■),
I liave just read in connection with tiio "Onward," and
al iiec'ord, page 4i>3, line M, is also the testimony of this
Captain McLean, which 1 have read, and it sliowsthat the
.Mason terminated about the 2oth of August. That is all
tile testimony in the Record, referring to the proposed
duration of the voyage of that vessel. When I say all of
^it, I do not mean that I have read every line of it, but
that tile material fact— the date — is brought out promi-
uriitly in that testimony and is contradicted nowhere.

1 refei' no" to the testimony regarding the duration of
the voyage ot the " Black Diamond No. .")," Record, page
IT.'m, line 5(1, the testimony of Captain Paxton:

-.. h

wmfmr

Fi < '•:

818

) *

(Mr. Warren's Argument.)

" Q. Wbv did you start for home? A. I was nfraid of a seizure.

"Q. Had you any other reason to leave the Behrinn Sea exci'it
" that of being afraid of being seized? A. No, sir; I had no otli. t
" reason.

" Q. For what length of time did yon outfit? A. Well, I exiiected lo
" get baek in the beginning of September.

" Q. You expected to leave the IJehring Sea about the end of August y
" A. Yes, sir."

They claim to the ].")th of September in the scliedulc
The captain testitied that he intended to leave Behiiiiij
Sea about the end of August, and that is all the testinxniy
in connection witii the proposed duration of the voyage of
the " Black Diamond."

Duration of Voyage of the " Anna Beck."

Next the testimony referring to the duiation of tho
voyage of the "Anna Beck." Record, 1(»41, line 4S, Cap-
so tain Olsen testified:

" Q. When you entered the Sea in 1887 how long did you pro]
'• to remain? X. Mv intention was to leave on the last of August if \
•• weather was rough, and if a few days fine I might remain a lit
" longer."

lost'

tlll>

lie

A season is claimed extending until the ir>th of Septtni-
ber. I refer to the testimony at Record, page l\2^, line
1">, which might be cited by the learned counsel as con-
tradicting this witness. One witness was the captain ami
^otlie other the mate, but there is no contradiction in fact.
At line 15 the mate testified:

" Q. Do you know what time the ' Anna Beck ' iutend-d to stay In
" Behring Sea? A. Until after the 1st of September some time. Tlmt
" was the caloulation; the 10th of September may l)e."

.At line 55 he was asked:

" Q. Do vou reallv know how long ho intended to stav in Bi'liriut;
"Sea? .V'No.
"(). You had nothing to do with governing that? A. No."

4° That is all the testimony regarding the proposed dura-
tion of the voyage of the " Anna Beck" in 18S7, except a
general statement of Captain Warren, which I will rctcr
to later, but the testimony of her own captain siiows that
she was outfitted for a voyage to the 1st of September and
left the Sea the last of August.

At one o'clock the C;onuTiis.'^ioners took recess.

At half-past two o'clock the Commissioneis resnimd
their seats.

If your Honors please, I had before the reco
considered the testimony bearing on the pro'

"■'<^ citeil and
duration

of the voyage of a large number of the vessels having
claims, and was discussing the voyage of the "Anna
Beck."

When speaking of the duration of the voyage of tlio
6o other so-called VVatien vessels, my friend Mr. Bod will
made an error. He read what Captain Warren testilii il
relative to the year i6'6'6' in connection with the "Sax-
ward," the "Thornton," the "Dolphin," the "Graiv,"
and the "Anna Beck," and applied it to all these claims;
of course it would api)ly only to the "Thornton," ns slio

8 lit

^;if^;f I

moib rosiimi'd

Not ill connection with tlii'sc ciainis for
-Yes. it is in my aigunient, that very quo-

(Mr. Warren's Ar}>;nnieiit.')

u;is the only on(> of lliose schooners seized in that year.
Tlic testimony j^iveii in relation to the year IS87 is foiUKl
al page ll!5t> of the KeconI, line ;?(i.

1 sliali reaij the testimony of the ca|)taiiis of the various
ships as to the piohahle duration of the voyap's in 1K87.
W arreii himself was of conr.se in command of only one —
tliongh he was the manaj^er of the fleet:

•' Q. For what Hi'iiMonM had thev atnrtt'il uiulcr vour swiierviHion ?
•• A. lu 1H87.

•• Q. YoH, for whftt aeiiKoii; for wliat h'lifjtli of time; wliat woro your
'■ iirnmnciiu'ntH nmdo for V A. Woll, sonio of tho vpbhoIs I don't ex-
•• lU'tlv know how lou>? I intoudod thi-m to Htiiy out. I inttnulod Rome
" of t\w veHKtds to stiiy iu the Hon just hh h>nn iih the wi-nthor would
" iillow.

'■ Q. How long could thoy liiivo Htayed out iindor the arriiugcnieuta
" you had miid«> y A. The jirovi»iou» ?

"Q. YeH, and animuniti<^u, and arnin)(enients an to crows? A.
" 'I'licy could have Htaved out to the end of October for that matter.

•• Q." In arraugiug, tlien, your work and tilting them out you saw to
-0 •• it that they could do that, if the weather would jterniit V A. Yes, it
" was my intention to send some home witli the skins and keep some
" of them there in the Sea."

That is all of his testimony on that question, and

Mr. Bodwell:- I read that.

Mr. Warren:
the vear 1887.

Mr. Bodwell:-
t.jlion

Mr. Warren: That testimony contains no reference to
^°tlie l(>n^th of time the vessels would have remained in
Beiin^i Sea The answer of the witness refers only to
the provisions, and how long the schoonors could possihly
have remained out, and savs, '* Well, some of the vessels,
1 (lon't know exactly how long I intended them to stay
(lilt " ■■'■ I intended some of them to stay just as

Imig as the weather would peiniit."

The captain of the " Anna Beck " says that he intended
to leave tlie Sea the last of August or the 1st Septemher
(Record, p 1(141, line 4SK The claim is made for all of
■*"tlieiii until the ir.tli Septemher.

Tin; Dt :i{ATK)N ok thk Vovaok of tiik " Am'uki) Adams.''

The;e is no testimony in the Record of the intention as
t(i I lie duration of the voyage of this vessel. This claim
\v;iN pre.sonted on the atlidavit and declaration of the mas-
tiM- aii.l crew, and no witness testilied except Moritz (iiit-
maii. who did not ttsstify as !o the proposed dniafion of
till' voyage and who hail nothing to do with it. But the
-pScht'diile attached to the British Argument only claims to
^ Septemher 1st, not to Septeinl)er ITith, so that claim is
not for damages for lo.ss of earnings to Septemher l.^th.

Tim; Dukation oi" tiik Vovaok of tiik " Pathfisdeu."

TIk! Counsel for (ireat Britain admit that William
Miiiisie, owner of the " I'athfinder," gave no instructions
iis \i> the duralion of the voyage, hut tin* counsel did not
lelci- to Captain O'Leary's testimony at page 7711, lino 44:

•• «,>. In IHSit for wlnit time did you outfit V A. Until aliout the 1st
(i(i" Scptenilu'r ; I generally allowed to leave Hohring Sea '(/">"/ Me i.f<

" Siiiiriiilii'r III- till' liisl lit' August."

lie was the captain on hoard this vtvssel, page 770, line

■■ (^. Wliat time ilul you leave that year? A. 1 left there some
" lir.ic towards the end of August."

.ii .-

I •

fit

820

Sif

fc.r.,!:'

(Mr. Warren's Argument.)
That last answer does not refer to 1889 of course.

" Q. The fact is that that season you hunted in the Sea about tijc
"usual time y A. Yes.

" Q. And you took 600 seals within that period ? A. Yes ; I lift n
" little sooner than I would have left ; I was short of grub that ycui.
' ' We got some of our stores nt Hand Point that year.

" Q. How late in August did you leave ? A. About the 25th of Au-
" gust, as far as I oan remember.

" Q. Von iieri'r irrrc in llii-iv liilfr Ihnii llif 25/// (if Aiii/iist? A. I ilu mil
" think so; that was the last year I was in Hehriug Sea.

" Q. Tlidl ii-d.i tlic /iili'sl Hull' /ion irriv i-riT in Br/irini/ Si'd, lln- 2'i '
" An(/nKl? A. Vrs, ton-iirih tin' lnnt iliii/n of .\n//iist nonicn'/n'iv."

William Munsie himself, however, has made an affidavit
whi(;h shows iiis idea of the duration of a proHtahle scal-
ing voyage in the Bering Sea. I refer to his affidavit in
Vol. 4. Vage US. of the American Reprint of the Proceed-
ings at Paris, vvliich, when considered in connection witli
other facts we Iiave in this Reco!d. shows distinctly his
idea. On that page 14S, in paragraph 7, he says:

" I have this on information given me by the said Captain O'Lciirv
" and by Captain Haker of the schoom i* ' v vo.' also owned by us iinj
"managed by myself, and n^as m iirtiru s, .,/c W/o/c iif tin' si^ism, nf
" 1S8I). The hunting eqnipu.-i:!, ni :..-. o schooners was abiuit
" equal."

I refer now to the testinion"; showing the duration of
the voyage of the " Viva '" in iss'.t, to see what period this
witness thought the entii'e season covered. The testimony
30 as to the voyage is found at jKige 71!), line 5:

" Q. An'/ ir/nil ir.is t/n
■ A. T/n' 2'>t/i Ani/nst."

tiint i/iiii i/ini tis/n'il in Ih'/irini/ Si'H in t/nil i/t-nr?

That is the testimony of the captain of tlie " Viva."
The " Viva " did not leave the Sea liecanseshe was warned
and feared seizurn or had lieard of seizures.

Mr. Hodwell: Ves. she had lieard of seizures.

Mr. Warren:- I intenil to show f.\;'.ct]y what she had

heard of. 1 did not let tliat fact escape me ('or a moment.

4oCaptain Maker nowhere testified tiiat he left the Sea he-

canse of any information he had of any seizin e wliatevor.

Mr. Rodweli:- Si-e Record, 724 of our Ai^;ini< in.

Mr. WairtMi: 1 will refer, then, to p;!-:-" 7'il line 40,
whi< h they depend on, and in that conne.:!i"ii jead lioin
page lis of the Argument in Chief of (ir it '.iritiii, .as fol-
lows:

•■ With reference t(i the ' Vivii.' she was uniler th' con., uv ' •( I'up-
" tain W. K. Hiikcr; by tlic '21st of .Viigust lie liad nmiic 11 <'atcli nf
" '2,1H0 KCiils, mill left the Hcii at tiiat date. I'/n'n' i.t mi ilin-r/ sluh ni'-ni
t/nit /n- /nnt ill '/ml tiinr rinirri/ uni/ /,niiirlii/<n' ii/' l/n- sfimrrn, but it lip-
pears tliat lie spoke a number of scliooiiers in .Tiily and AuK"st. mid
having reference to the iiiovenieuts of this muster iu otlicr ycuis. it
is not proluibje that he wmilil have rctiuiictl at so early a date unless
he had some reason to fear that his viiyii;j;i' would be iiitcrfeied with
by the cutters, anil tlicieby cansc the loss to his ouners of the very
good catch he had iiiailc."

That is the sole hasis of Ihat claim,
for such a claiin.

Mlinsic te-titied thai the " Viva " \v:
season, and that she was the mdv one

I is no hasis at

.■|!i

• 11 fe the < (itiin
• ■ liis hi/ats tli.it
As to the vova);t.'

was, and she lei t on the :.Mst August .....

of the "y;- ■, " ill i,svs_ jiiul h(>ariiig upon the point ,is
to when st: .renerallv left the Sea, 1 refer to lierord. 7-.'ii,
721 and 7l>:.

821

t the 25th of An

Si'ii ill llml i/iiii'?

no li.isis Ml .1!

(Mr. Warren's Argument.)
Proposed Duration of the Voyage of the "Kate."

Tlie statement was made in oral argument by the
learned counsel for Great Britain tliat in none of these
claims, unless the testimony showed a clear understand-
iiifj; that the voyage was to be extended until October 1st
was the claim made for a loss of earnings to October 1st.

Mr. Bodwell:— That is not exactly as I put it. I was
'^criticising your argument wiiere you said that we ex-
tended the season and I said tliat we had extended it in
its!)ect to three vessels, in which there was positive evj-
(ieiicp of an agreement.

Mr. Warren:— That is exactly what I said. The "Kate"
is one of these vessels whose season is extended to Octo-
ber 1st.

1 refer to the testimony. Record, 1:521, line .51, the cap-
tain is testifying:

20 '• Q. Now, tell me, captain, what wfiv your instructious, as to the
•• time you should stay in the Sea? A. My instructions were to stay
" there as long os the weather would jjermit.

" Q. Ah a matter of foct, what cauHed you to leave when you did
••leave? A. On account of being afraid of seizure if seen again."

Tliere is certainly no positive statement there as to iii-
Btructions.

At page 1S71 of the lioc )rd, line 41, is found tlie testi-
iiiDMV of Charles Spring, the owner:

•' y. Did you or did you not give any instructions to tlie captain —
i'^'^ lln'cai)tain was Neals Moss, was he not? A. Yes, sir.

" (^. Did you give him any instructions as to the time he was to stay
" ill the iSea? A. He was to stay as long as he could possilily carry on
" Ills scaling.

"(). No more instructions beyond that? A. Nothing more. I cou-
•' sidcred that he was well aware of the work that he had to attend to.

••(j). With ri'i/iiri/ til jirnn'sidiis, Imir liiiii/ iliil i/iiii /irnrision llifhuiil fur,
•• II lull Ifiii/lh iif riii/iii/i'? A. Aliiiiil till' miilillr iif Si'/ilfiiiliri; In ri'inh lii'ri'
" III Vicliii'iii/*

■|0

"To reach here." 'J'liat is the owner of the boat testi-
fviiig. Is there a basis tbeie for a claim for loss of time
toOctoi)er firstr

'• I). Ho far as provisions were concerned, you provisioui'd him? A.
" His instructions were to see that he was provisioned for the full
■ length of the time— somewhere in the middle of September."

At Record. 1421, line 8, Kdgar Crow Baker testifies as
til tlie duration of the voyage from Beiing Sea to \'icto-
ria. At page 1421, line 22, he says:

'•(,). So that seventeen days elajised before her return here? Is that
J •' Miui-c than the ordinary trip down? A. ' ' "
"Hlniight back here. / llilii/,lliiil llu' riii/m/i

•■ii.i,,,:'

I believe that he came

litis hi'rii iltiiti' ill /'iilirli'rii

There is a man of repute in Victoria testifying that he
believed the voyage had been done in fourteen days, and
thai an ordinary voyage was seventeen days, so that ac-
ciinling to Spring, the last day that the "Kate" could
have been in Ber ing Sea would have been the 1st or 2d
III' September, and her sealing voyage would iiavo termi-
"ateil before that time because she would have to reach
"'J Me I'ass anil prepare to leave the Sea.

Theie is also the positive testimony of the captain in
this case as to the duration of the season and I call careful
alteiiticn to it, because the determination of the facts re
laling to the duration of the Inuiting season involves a
lar^^e sum of money.

822

(Mr. Warren's Argiiment.^

In Vol. 4, American Hepiint. page l'Ol', is the atrnl.ivit
of iXeals Moss, the captain of the " Kate." relative to tins
voyage, and he says:

" 7. Di'furr lii'iii;/ s/iiiki'ii /ill l/'ir siiiil ciillrr mil iiih'niiiiii mm la ri'mn,,,
" in Berini/ Si'ii mifi/ llii\/irsl iif Se/ili'iiil"'i'."

That is the captain of the ship who makes that st;iii..
ioment;aii<l the owner Charles Spring, made an aftid.ivit
fonnd on i)age 2(K5 of Vol. 4, of the American Repriiii, in
which he says:

" I liavp read tlie (leclaration of Nuals Moss » « • and I vcrilv
" believe the mime to be true."

There we have the captain and owner both testifvin<i

that they never intended to remain in Bering Sea aftir

the first of September, and the statements were mi.kIi'

directly after the cause of action arose, one being signed

2oTth September, issit, the other l;ith of September. ISMt.

Do yonr Honors discover in that evidence any trace uf
testimony to warrant a claim being made that the " Kate"
would have remained in Bering Sea until October first?

The claim of the owners of the " Kate " is entirely ' jti-
tious.

Thk Proposki) Duration of tiik Voyage of the
" Wanuerkr."

The testimony of Captain Paxton, I refer to Record,
30 153S, line !♦; he. 'says:

" oil. I ex/in/i'it III /I'liri' hIiiiiiI tin' 2-'it/i Aiii/iinl."

I have omitted in reviewing the testimony relative to
the intended duration of the voyage, the testimony rclnt-
iiig to some of the vessels, whicli I shall refer to in dis-
cussir.g the (.'laints of tlii> owners.

This te.stimony establishes beyond doubt what the opin-
ion was regarding the duration of the sealing season at
tlie time of these occurrences, and having established so
4° conclusively the fact that profitable hiniting terminated
between August :iuth and August 2M\, according to
the opinion of the claimants themselves, I dismiss tlu;
question.

Ci,AiM OF THK "Black Diamond,"' No. r>.

The claim of tiie owners of the " Black Diamond " in Isstl

demands but scant consideratii>n.

^ Our brief sets out the nature ot this claim. The f)lij('c-

' tion to it on behalf of the United States is in the iiatnre

of a denitnier. Our objections are found in the pleadin^^s

set out in Claim No. 5.

The nature of the warning alleged to have been giveu
this vessel was, that the Collector of Customs (there is no
Collector of Customs at Ounalaska, however, there is only
a deputized niau there) told the captain, July 1. 18St;, that
there were to be seizures in tlie Bering Sea, and thecaptaiii
says that some time early in Augtist h<! decided to leave

the Sea. In the meantinie he sealed everyday. Alioni
the loth or 15th of August he left the Sea. The captaui's
testimony regarding the proposed chnation of the voyajjo
is at Record 17r)7, line r)4:

" Q. For what length of time (lid you outfit? A. Well, I exjH'ctcil
" tn get back in the begiuuiug of {September.

II inis III mil, 11, 1

* and I vcrilv

iioiid " ill ISMtl

2<)

^elj, I oxjH'ctoil

823

(Mr. Warren's Argument.)

" Q. You expected to leave the Bebrinc Sea about the end of AuKUsty
" A. Yea, sir."

So if this vessel has any claim whatever it is for the
jiiiod from the lOth or ISth day of August to the 2<ith to
'.'..til of August. But of this claim, and of the law ap|ili-
( ablt', and of the contention, as to whether or not it is he-
toio your Honors to he considered, the learned senior
( (iiuisel for the United States will have something to say.

No property was taken hy the United States Goverii-
niiiit. She left with lier catch on Vtoard and landed the
( ;ii tio at V'ictoria. A claim is made in the Schedule in the
|;ritish Argument for the catch from the 4lh of August to
Si ptemher 1st. There is no testimony to substantiate
tli.it claim. I iiave read the testimony of tlie captain as
ti when he was to leave the Sea, and he actually did re-
iiiiin in the Sea until between tlio loth and IStb, accord-
iiii;- to the testimony of the mate.

'I'lie captain was Heniy Paxton, and the owners were
.lacob Gutman, Alexander Frank, the American citizen,
ami the captain. The question of ownership has been
discussed at great length by me earlier in my argument,
and our argument covers the other facts in connection
with tiie claim.

CL.4IM No. !S, THE " ALFKED AdaMS."

The United States deny any liability to the owners of

30 the " Alfred Adams" by reason of the fact that Alexander
Frank, an American citizen, is tlie owner of half the
claim. This question has been thoroughly discussed.

The Commissioner on the part of the United States: -
Excuse me, Mr. Warren, are you now considering simply
tii(> length of the season?

Mr. Warren: I am saying all we have to say concerning
till' facts relating to these separate claims for warnings.

There is no proof that the "Alfred Adams" ceased
Sf iliiig or obeyed the warning. The claim wassubnntted

40011 the affidavit of the master and one or two members of
the crew. The affidavit of the master is printed at
i;('((ird, page 13<il», line 64.

It is true, if your Honois will remember, that some of
tiicse vessels were seized and disobeyed the warning; tiie
(iaiin becomes in those cases one in the nature of a claim
for partial loss.

Tiiere is no proof that the " Alfred Adams " after being
sci/.f'd did not continue her sealing operations. It is a
kiiiiwn fact that boats did seal after being actually seized

50 and ordered out. The "Minnie" was seized on the ISth
liny of July, and remained in the Sea until the middle of
;\ii;;ust, and other vessels did the same thing. There is
110 proof that the " Alfred Adams" did not remain in the
Sta, and the only fact in the Record bearing upon her
iiprations after that date is thic statement in the affi-
davit of the master: " We did not go to Sitka, but
arrived at Victoria, British Columbia, on the Hist of
Aiif^ust." The learned counsel, Mr. Beique, contended
that because the guns were taken she must have neces-

6osaiily stopped sealing. I call your Honor's attention to
the luct that the guns of tlie " Minnie" were taken, and
sill did not suspend sealing operations but used spears,
and before she was taken she was not using guns, as the
mate testified the Indians could not use guns, and there-
fiiip •<ht; was in as good condition after as before seizure.

(If

824

(Mr. Warren's Argument )

The claim is made for a voyage extending to Septenil . r
1st. The claim as to the duration of the voy;i o
for some reason or otiier is diminished by 15 days,' lit
the United States contend with reference to tliat voyaui'
tiiat it would have been terminated between August '•2>'\]\
and August 25th in accordance with the ordinary dini.
tion of the sealing season,
lo The schedule attached to this claim in the British Ai;; i.
ment asks for a catch aggregating 2, 73(»— larger than ilu.
catch of the "Mary Ellen "—larger than the largest catdi
ever made as far as the Record discloses during the yt;us
in controversy here.

Claim No. U, " Pathfinder."

The United States deny any liability on account of ihis
claim by reason of the ownership and interest of AndiYnv
J. Bechtel, an American citizen. This proposition li;is

"° been thoroughly discussed, and the facts '-"lating to tlm
ownershi|) and interest of Bechtel ])resente Counsel |, ,|
Great Britain admit that he was equally interested in ihc
venture and the proof is conclusive that he was a citi/.c n
of the United States of America.

Witli reference to the duration of the voyage of tlio
" Patbtindor," the counsel for Great Britain claim thai
the .season extended to September 15. I have read in
connection with the duration of the season the testiiiiuiiv
of Cai)tain O'Leary and the owner Munsie, and I will ndt

^°i'epeat that testimony. The references to the Record are:
Page 77;5, line 44; page 770, line 35; the affidavit nf
Munsie, page 84; statement in the British Argiinuiit.
bottom page 08; voyage of the '"Viva" in 1888, refenid
to at pages 720, 721, 727 of the Record. The testinidiiy
clearly establislies that the captain of the " Pathfimlor "
intended to leave the Sea the last of August or the fiisl nf
September. Therefore there is no basis for a claim (iir
damages arising from loss of time to the 15th of Seiitem
ber.

'^ The total catcli demanded in the schedule is 2,898 lari^ci
than the largest catch ever made in Behring Sea duiing
the years in controversy. The testimony as to the |ii(i|i-
erty removed from the "Pathfinder" is set out in din
Argument, page 418, where this claim is considered ami
the statement is made that the " Pathfinder" took 5o sials
after the seizure, and that is the fact. The claim is fm a
catch extending from July 2!tth to September 15th, ami
that should be corrected in accordance with the fact that
is established beyond any controversy, that the captain
intended to leave the Sea the last of August or first cif
September. They took, in the meantime, 5(i seals.

Therefore, this claim is one in the nature of a claim tor
a partial l(is.>, and the measure of damages is the cliaitfi
value of the vessel between the date she left the Sea ami
the ordinary duration of the sealing season.

Claim No. 15, "Black Diamond."

In c(mnection with this claim I wish only to refer to the
6otestin)ony relative to the duration of the season. Tlic
claim is made in the British Argument of a season ii|i In
the J5th of September. The only testimony regarding tln'
jtroposed duration of the voyage of the ' Black Diamdiul "
is I'oimil at page 177<i, line 1, where the witness Owrii
Thomas, of whom we have heard before, testified:

825

(Mr. Warren's Argument.)

• Q. For what length of time wan the vessel provisioueil? What
" jirovisions had you on board? A. I had plenty of provisions, sir.

• Q. For what time had you provisioned? A." To the latter end of
•• ( >ctober."

That is all the testimony as to the duration of the voy-
aiit! of tliat vessel. I refer to the testimony of Owen
Tiioinas given in connection with the claim of the '' Black
iol> iniond" No. 5, where on cross examination, he ad-
mitted that he did not know anything ahout what the cap-
tain intended to do; although on direct examination he
stated what the duration of the voyage would have been.
Tlie captain in that case had testified that he intended to
leave the Sea the last of August (Record, 1757, line 50).
At page 1770, in connection with the "Black Diamond"
claim No. 15, the witness Thomas says:

'■ <). You did not limit yourself to provisions; you said that you
'• were xoing to stnv in Bearing Sea until the middle of September?' A.
20 " .\tiout the 10th oi September, or something like that."

The captain had stated that he intended to leave the Sea
till' last of August.
Now, at line 50 what does this witness say?

•■(.). I want you to be more definite about it than that? A. If I was
" liiiu I would stay there until the middle of September.

" Q. If you were in his place? A. If I were in his place.

" (^. Then you are not testifying as to what he was going to do from
" nliiit he told you? A. He nnvor told me (ini/lhinrf of the nort as to when
" //. inin f/oiiif) to leiire,"

'I'liat shows the value of his testimony as to the proposed
duiation of a voyage.

The (iaim in this case is made for acatciiof 3,5!t<)skins,
and the " Mary Ellen" took 2,395, and eclipsed all records.

C1.AIM No. IC, "Lily."

In connection with this claim I only refer to tiie testi-
1111 my as to the duration of the voyage, which it is claimed
Wdiiid iiave been September 15tli. There is not a word in
40 tilt' Kocord as to the proposed duration of tlie voyage given,
and, of couise, in tbe absence of testimony, our learned
fririids will have to admit that the general testimony
given by any witness concerning the duration of the
season will control.

Ill

' I!

Claui No. 18, BIG "Triumph."

Cunccrning this claim there is only one question in dis-
piK''. It is admitted by both parties that Daniel McLean,

50 whatever his citizenship, and whatever his domicile, was
tlie owner of one-third of the vessel. The United States
claims that McLean was domiciled witiiin the jurisdiction
of the United States during the year 18S<), and there is no
testimony tiiat he was domiciled within the jurisdiction
of (iivat Britain. The counsel for the United States
claiin that if he was not a citizen of the United States, he
wa- a <lomiciled foreigner and therefore a civil citizen of
the United States. The senior counsel for the United
Stales will consider the legal rights of this claimant.

60 Tilt' only other question in dispute is as to the duration
of tilt' season. This is one of the claims where the coun-
sel ( xteiul the season to October 1st, and u|)on what testi-
MKiiiy, I ask your Honors? The testimony of the owner
is the testimony that the claim is based an, and that is
foiniil at Record, page 1120, line 44. And because, if your

t ! '

mm-

820

, <f ■})

(Mr. Warren's Argument.)

Honors please, there is so much involved in this uiijist
claim ot an extended season, 1 ask the time to coiiMii.i-
briefly tiiis testimony of Edgar Crow Baker, the ownfi :

" Q. Did yon give him any inHtruftious iisto the time that ho hIh iiM
" Btny in the Sea? A. H'l//, of nmrsi; J nin ni.l rnitlii pnsilirr ./... ,„.
" slnitiidiin. I was niiiiply ou(? of the partnerH mauagni^ the attaii - of
" the schooner, nm/ a i/timt ilful, jifirsmiri/i/, irtmlil lir ('■/I In MiL"iii'^ ,,<.
10 ** I'l'iiidft, hf'fftusf if irits Itf lliiit fjtit nil' til I/O info thiit rriitiii'i'. ^'iilm;, ,_ ^
" imii/il In' ijiiiili'il I'll his i-i'jiurl IIS In Hir lirnimsliiinis ir/irii In' irns In ri -u
" But it was distiuetly understood between him and mvsclf that lie
" wonUl remain there to the very hist of the season tliat he cuiiUl
" catch seals, .s-o us In iisn-rlniii, if pussibli', lii:ir Inmi Hull srnsnit miii'i ./,,/
" mill rniilil Insl.

" Q. Was there any understanding at all to that effect? A. V(>~. he
" was to remain there until late iu September.

" Q. That was fully understood V A. Fully understood between him

'* and nie. In fin 'I In' n'llnlril In liiimt' siitili'thtnij illiniit il'ltill hrrnihi <■' /ht^
" srii/s ii/Irr lliiii li'fl Ihi' S''ii, iin'/iiilini/ lln' Priln/lnff Islniiils, Hr ininh 'I to
'* i/n If Hull' rniinifi' nf ilisrnri'l'if In it rri'filitt I'xtniit, itilli tl'tfri' t/trui >mil
20 " 1 1 I'll! II fill II lln sniiii' si'iiliini iit llii' snnir linn'."

The Government of the United States to pay for t hi se
ves!-els going on voyages of discovfi-y, if your Hoikjis
please, and for them to •' probably do some seahng ;it the
same time! "

Mr. Bodwell: — Wiiy do you not read the next qutstinn'

Mr. Warren:— I intend to read it all:

" Q. It was mentioned between you, or understood, that he cnuM

" stay there until pretty late iu Heptember ? A. Oh, yes. Tlir pre-

30 " vious year he had come back on the 10th of September, and lie had

" everything on board that would enable him to stay there until the

" end of the year for the matter of that."

If your Honors please, let nie refer you to the iiccdid
at page 7oi', line ;$0, which shows that the last day ot the
" Triiunpii " in the Sea in 1SS8 was Au(just2nth. That
is how he remained the year before up to the loth of .">fp.
tember. We have the testimony given l)y Mr. i!iik>r
with tlie book of the captain in his hand, which said his
last sealing day was Auyiist i'dlh, but the last day he lunk
'* seals teas Augttst l.'/th.

Aie the United States to pay for the charter value nf a
vessel based upon a catch of seals to be made up to the
1st of October, because this captain wanted to go aii «
little roi/aije of discorerij, and liad provisions enough to
last him until the Hist of December?

In our argument (page 443) we make this observatidii:

" If the testimony of an owner, who was never in Bering Sen. tn the
" effect that he had instructed his captain, who was a man of Uiug

50 " experience in the sealing business, to stay in the Sea as late us poa-
" sible, is to outweigh the positive statement of that captain that the
" sealing season terminated toward the last of August, the opinions
" of all thinkiug minds I'egardiug the weight to be given testiniimv of
" this nature will be disregarded. Again, if the statement of a wit-
" nesH interested in the results, to the effect that he iustru<'tril his
"captain to go on ' a little voyafe of discovery,' to trace if pos'-ible
"the seals when they left the Pribyloff Islands to proceed cm their
"southward journey, and 'probably do some sealing at the >inm>
" time,' is to be taken as a basis of establishing the duration of the
" sealing voyage in Bering Sea, against the testimony so clciirly
" establishing the termination of the sealing season between tin' Juth

gQ " and 25th of August, there would have been little need of cxaniiniii!,'
" to sijch great length so many witnesses concerning the jiomrai
" subject of the ordinary period during which sealing operations
" could be continued with profit in Bering Sea."

The testimony of this captain upon whose discrition
the owner said he relied, is found at page 1821 of the

Bfect? A. Yo-, lie

next qiU'stiuiii

5 observatimi;

837

(Mr. Warren's Argument.)

l.'ccorrt, Iine45. Captain Daniel McLean male an affidavit
in 18S»2, in which he stated:

• I usually enter the Bebrinp; Sea during the fore part of July and

'• liiirf tilt' litat (if AiKjiisI, T/ir Si'ii lii'itiiiii'.i liio ri,ii)//i In mnki' it prdfiUible
'• /.. Iiiiiil .inil iifin- Aiii/iisl. mill it m tin' /iriirliii'/nr ni-nrli/iill rfusi'ls eiiijuf/ed
" (II liiiiitiiiij sail to li'iirt' iiliiiiit thill liiiii:"

If your Honors please, if Daniel McLean wished to stay
in Hering Sea to pursue the seal herd into the Pacific
( Lean, and indirectly to find some means of hunting them
there, a pastime which had been indulged in before with-
(piit success by captains sealing out of Victoria, is the United
States to pay for the time of this vessel, and tbe catch of
this vessel during that time? If so, then tbe testimony at
\ ictoria, or much of it, has been taken in vain.

Thk Claim of the Ow.neks of the " Kate."

2° The " Kate " was v.-arned to leave Bering Sea under
t hi cat of seizure, August 13th. No part of her outfit or
cntio was seized, and the vessel dejjarted with her catch
dl 770 odd seals, .according to the testimony of Spring
(Record, page 1372, line 1.5). In that connection I de-
sire to correct a statement in the argument of
the United States at the top of page 458. where the
statement is made that the catch was 73(» or 740. The
witness Spring testifies that the catch was 770 odd (Rec-
ord, p. 1372).

30 The "Kate" continued her hunting operations from
the day after the 13th of August every day *!iat it
was possible to hunt up to and including the 18th of
August. The witness Reppen, who was mate on the
voyage, testified at page 1382 of the Record, line 44:

" Q. Now, wait a minute. The fact ia that between the 15th day of
" .\u(?u8t and the 18th day of August, inclusive, it was so stormy
•' that vou could not lower a sealing boat; was it not? A. No, sir.

" Q. What do you mean by that; it was or was not? A. You couldn't
" lower; it was strong and windy.

"Q. So that if you had not been warned on the 13th, on the 16th,
' 17th and 18th, you could not have lowered your boats any way, could
' you? A. No, sir.

" Q. It appears that one day after the 13th of August, which was
' tlie day upon which you were warned, that your course was north-
erly? 'a. Yes, sir.

"(j. That would indicate that you were sailing way from the Pass?
' A. Yes, sir.

" Q. So that you were not attempting to get out of the Pass as
' iinii'kly os you could after you were warned, were you? A. No.

"Q. You left Behring Sea thai year about the time the nasty weather
' m4 in, did you not? A. Yes, sir.

" Q. And about the time that the westerly winds were beginning to
' lio the prevailing winds, strong westerly winds, is that not so? A.
' Vl's, sir; we were getting westerly winds all along.

»«*« i * * * *

" {). And you think that you cauio out in 1889 when pretty nasty
• w<'iither was beginning? A. Yes; some fine weather, too, before we
' wi'ut througii the Pa.-ts, and then it started in nasty afterwards.
' Fine weather the day before we went to the Pass.

" (). It was not fine weather the day before you went to the Pass?
' \. Two days before that.

■'(^. The 15th was the last fine weather you had? A. Yes.

■•(.}. And you lowered your canoes on that day? A. Yes, sir."

Slie took 140 sea! skins after her warning.
Tile Commissioner on tbe part of the United States: —
lie British case says OH.

Mr. Warren:— The witness Moss, at p.age 13H8, line 45,
-ilitit.s she had taken 771 seals, and at page 1372 Charles

IH'

i-l

888

(Mr. Warren's Argument.)

Spring says tliey had 770 odd. The Uci-ord shows tli it
she had (i3(» aboard when she was warned, which woihl
leave 141 taken after she was warned.

Mr. Bodwell:-- At |)age 1:538, line 33, he says that on \Ui-
14th of August he got 10 seals on the 15th he got i'tl n\.<{
on the Itith 1, which makes HS.
Mr. Warren:— Yes, hut that does not include the sciU

lo taken on the 13th, the day she was warned.

I .say, therefore, that this claim heconies one for a p.u
tial loss or for lo.ss of time from the I8th day of August lo
the close of the season. Counsel foi (Jreat Britain li;i\o
used the date of October 1st for th.e close of the season. I
have read your Hoiiors the testimony of the owner ami
cajttain that this voyage would have terminated the la-t
of Augiif-t I will not lepeat that testimony bearing u|m.ii
the duration of the "Kate's" season, hut only give tin'
references, liecord. page 13.S7. line .M; page 1371, line II;

2opage 14:il, line 8; allidavit in Volume TV.. American ir
print, at page '2i)2, and also jtage :io3. Therefore, theonly
claim that the "Kate" can have on the undisputed tisli
mony is for her charter vahn; or whatever the measure nf
damages is, from the I8th of August to the 2nth or L'.".tii
of August.

There is no dispute about the facts regai'ding the tcrntina-
tion of this voyage, if the Record is consulted to ascerlam
the facts, and there is no justification for that dato-< i, .
toiler first. The learned counsel, Mr. Bodwell, found f.inli

30 with the statement at page 4tiO of our argument, wiiiih
statcMient was inserted witliont tlie citation. I give yoin
Honors the citation now — page 14:il. line s, of the Kecdiil,
which estal)lish(>s the statement beyond a doubt.

Now, to refer to the facts concerning the catch of tlii-;
schooner " Kate." She counneuced .sealing on July l'oiIi,
and sealed uninteriuptedly until August 13tli, at whi. h
time she had taken t>3(> skins, and we are not in (lis|iuti'
about that fact. The citation for her first lowering day is
page 138S, line .'i;') of the Record; and the citation for I Ik

40 number of skins she took is i>age 13s!t, line 2\ of the
b'ecoid. The number of days on which she couM bunt
would be L'4, and her catch per day would be 2i< skins.
She hunted every day between the 1311i of August and tlu'
Isth of August, and took 14o skins which can be leM (ml
of consideration. The best possible view that can In-
taken of the case for the claimants, is that her sealing;
season would have lasted until the first of SepteiulM 1.
We contend it would have ended on the ^Otb or 2.Mii nt
August, but taking it until the Hist of Septeniber. slir

Sowould have 13 days remaining including August 1^ lu
bunt. .\s she had taken previously :.'6 skins per day -
during the best season for hiuiting m Bering Sea, iiaiin Iv,
from the lath of July to thel.'itb of August — as was stitnl
here by my learned friend. Mr. Bt)dwell, in the oral ar::ii
ment at Halifax- if she hail contiimed taking skins at tln'
same rate she would have secured 33.s. Hut
they claim that she would have taken ll'.'i,
for" which they want si'l,!t;'>4. Twenty-one tln'ii
sands, nine hundred and thirty-four dollars, for th''

60 use of the " Kate" from the isth day of August to ilir
L'olh or 25th day of August, or to the first day of Srp.
tember at the latest!

Consider the extravagance of these claims, if your Ilnii-
01s please. The date set down in the argument of tin;
Hiitish counsel is ab.solutely unjustified by the Recoi'l,

Lide tlio st;il>

(Mr. Warren's Argument.)

niil the number of seals that it is claimed wouM have
li. 'U taken after the 13th of AuRiist, is without any
1, on or basis whatever. I say that it is without any
li -.is, and I will com|)are it with the catch of the " Mary
Kli-n"- which is used as a basis by Great Britain— to
shitw that even that affords no foundation for it. I have
in re some fijjurea prepared by my learned associate Mr.

10 1 1 using, and he will vouch for their accuracy. The
" Kate" took (530 seals from July 2(»th to August 13th
Willi S canoes. I say 8 canoes, but the testimony is in
conflict with regard to that. However, it is immaterial,
1j( rause when wo come to multiply the catch by the num-
ber of canoes, if we use a largo or small number it will
ni,il<e no difference. The ''Kate's" catch from July 20th
t(i the 13th of August vvas an average daily per canoe of
\.i<-,:>. The daily average for a boat on the " Mary Ellen "
I'm the same |)eriod was lo.""), as taken from table "C"

:opi' I'ared by Mr. Lansing. That is ten times the average
(il (Hie of the canoes of the " Kate." A boat on the
" Maty Ellen" had an average daily catch from August
14tli to August the 24tb inclusive, of 5.0. One-tentii of
.•i,i; would give the jiiobable average daily canoe catch of
111. •' Kato" as. 50. Therefore with the eight canoes dnr-
iii- these eleven days the " Kato" might have taken 5o
skins. She actually took 141.

Tlie Commissioner on the part of the United States; —
Oil von make a counterclaim for these?

30 Mr. AVarren:— We have omitted that, your Honor.

That calculation is made on the basis of the "Mary
Ellen," and it is so fairasto commend itself to every one's
jiidjiinent. The " Mary Ellen's" catch iscompar'^d with the
•• Kate's" actual catch from July 14th to August 13th —
tlicie is no (juestion about how many canoes and about
tlii^ thing or that, but working power is compared with
Will king power, and the ])roporlion is ascertained, then the
prnlialtie catch of the "Kate" is estimated accoi'ding to
tliL' iHoportion her catch sustained in the past to the catch

40(il the " Mary Ellen," on the basis of what the "Mary
KIKn ■■ actually did after August. 13th, and she is entitled
td.'iii seals, but she actually took 141, and they want ^22,-
;',M Cur this claim.

Claim No. 21, " Patukixdku."

Ti'is claim arose out of the seizure of the " Pathfinder"
in .N'rab Bay in ISIM). Xeah Bay was then in what was
till Tell itory of Washington, and what is now the State
of Washington. The facts relevant to this case are set
jOoiH fully in the printed argument on behalf of the United
Sl;iirs. at page 402, and the law appli. il/i-! is discussed at
Irii-ili at page 150.

Claim No. li>. " Arikl.'"

rill " Ariel" was warned on the 30tli of Jnly. Within
lliivr hours after she was warned she lowered her boats
and took 120 seals that day. She continued sealing from
thai ilay uninterruptedly until the ITtli day of August;
t'Vii \ (lay she could hunt, operations were carried on, and
^tlial is sworn to by the master of the schooner.

Ill the argument on behalf of the United States the con-
tent, mi was made that the " Ariel " was not entitled to
liainai^i's for loss of time beginning the 3oth day of Jnly,
wliuli claim was made in the British argument in-chief;
and j\v on the oral argument our learned friend Mr.

!■ '■

i..

!H'

■1'

880

(Mr. Wniron'H Argument.)

Bodwell practically agives with tho counsel for the Unit. .1
States, for he sajH, that the "Ariel" hunted until ilni
17th or 18th (lay of August. Therefore this claim is i ,i'
damages arising from tht« loss of timo hetween the
IHth day of August and the ordinary dunifiMn
of the sealing season, which is llu' iitith ,,[•
Sfltli of August. The claim amounts to nothing in
lofact, yet if yoiu' Honors please the claiu) is modestly niul.)
against the'United States for !t<20,(it;i.

There was not a ^eal skin taken otT the " Ariel;" tinu'
was no property of any description taken; and these fiu ta
are admitted. The claim is entirely for loss of ca1( h.
This claim is treated at great length in our argument, 1m>.
cause f»f the fa( t that a claim was made for the prospiit-
ive catch that is estimated would have been made l.'.
tween the Itoth of July and the 1st of OctoluM'.

Wc discredited the testimony of Captain Bucknani. ami
20that captain did give false testimony at Victoria; and Ids
testimony regarding the prohahle duration of the seasnn
ought not to he given any weight. He testified wlnn
first on the witness stand that he could not tell the daii'
the " Ariel " left the Sea, because he had lost his Ix^iks,
but left the impression on direct-examination that he at
once left the Sea when warned July 30th. Hetiiedto
avoid the conclusion that this was false by saying after,
waul he meant the log— I believe ho did say ihe
log to l)e correct— but he produced when he was again mi
30thestaiula " niemorandum log," which stated that lie
left the Sea on the JOfli of August, and he was a>kt'd
when he last saw that i 'imorandum book, and reulied
that he .saw it shoitly ' re he took the stand the liist
time.

The nation that def... against claims of this kind
labors under a great disadvantage, because the knowled;,'^
of the facts is almost entirely within the minds of the
claimants themselves, or their employees, and when ynm
Honors discover that a witness is endeavoring to nii>l( ad
4° and deceive, I conceive you will give little weight to any
part of his testimony.

He te.stified that he left the best sealing ground— an.l
that is the claim now advanced; mildly contended for, to
be siire, by the counsel, but nevertheless presented.

We have prepared charts of the course from the liifi
of the "Ariel." and I file a chart of the course of
that ship in connection with my argument. The " Arid "
hunted over what counsel are pleased to call "the best pes
sible grounds" within the entire watersof Behring Sea after
SOshe was warned, and she took in that time 444 seal skins.
She hunted through the watei-s called in the British ari;u
ment " the best sealing grounds," the foundation for whidi
statement is Townshend's chart, taken from Senate K.\.
Doc, page 137, and she went directly through these
grounds. She sailed over the grounds that the "Maiy
Ellen," the famous sealing vessel of 1886, sealed over. She
crossed and she recrossed the grounds that the "Maiy
Ellen " covei-ed. She crossed and recrossed the groun<l of
the " Favourite," the schooner that made the largest catch
6o but one ever made in Bering Sea, and she hunted every
day that she could in the sea, after the warning given dm
the 3oth day of July until the 17th day of August.

The only way that a claim could be made for this vessel
was to claim from July 30th, although it is not denied tliat
she continued hunting, and extend the close of the season

K31

(Mr. Warren's Argument.)

til tho first of October. Tlje modest demand for li!il7,Cll,
till) alleged value of the sealskins thaf would have been
ttihen, is mado.

Wo have prepared, if your Honors please, a statement
ol the catch of the " Ariel," made after the date of the
winning and before the date of the warning, and we have
cMinpared that with the actual experience of the "Mary
ioKllon,"and let us see to what the "Ariel" is entitled.
Tlicsii figures are prepared by Mr. Lansing, who will vouch
f(M their acciu-acy. The "Ariel" tooi< 400 skins from
July 12th to July 30th with six boats, the average daily
CMtch per boat being 3.07 skins.

Tlie Commissioner on the part of the United States:— I
liavo 34»] skins here, where did I got thatJ

Mr. Warren:— The "Ariel"' took 844 skins for her

entire voyage, according to the testimony of Captain

p>ii('knam (p. 704, line f>), and 444 after the warning. The

jotlill'orence is 400, which she must have taken before her

warning.

The Commissioner on the part of the United States:—
Tilt' case for Great Britain says, that she took 485 after the
wiuiiing.
Mr. Peters: -And you will find that is correct.
Mr. Warren: — If my figures are not correct T will give
till' correct figures later. She took 4oo seals from July
IL'tli to July 30th, and with six boats this would give an
average daily per boat of 3.<»7 skins. The average daily
lopi'i iioat on the " Mary Ellen " in the same period was 8
skins, accordinjj to table " C " presented by Mr, Lansing.
'I'lic average daily catch per boat of the " Mary Ellen " to
Aii;iiist 17tb from July ;!lst was s.i3«i skins, and the ratio
is tliiMi S : 8,130 :: 3.7 : +• Figured out, the average
ilaily catch per boat of the "Ariel" from July 3Ist to
Aiijiust 17tb inclusive would have been 3.701 (that is +
ill the proportion would be 3.701) and for T) boats (one
having lieen lost) for is days the catch would have been
;i:'.ii skins. That was what the " Ariel" was entitled to
take on the basis of the " Mary Ellen's" catch, but she
dill take 444, according to her own figures; and if coun-
sel tor (iieat Britain is right in saying that she took 485,
tlicii she took that many more than she was entitled to
take on the basis of the " Mary Ellen's " catch.

Mr. Peters:— That shows your argument must be
wniiig.
Mr. Warren:— Not on the basis of the " Mary Ellen."
If she had sealed until the 24tb ot August she would have
taken 470 skins, and she actually took 444, or, according
5otii tlie counsel for Great Britain, 485. and they want as
damages for the owners of this ship §17,011. These fig-
uies with regard to the " Mary Ellen " cannot be wrong
as applied and presented in these tables.

The Commissioner on the part of Great Britain:— What
you mean is if she preserved the same ratio as the " ?>iary
Ellen " after the date of the warning, that she did prior
to the date of warning, it would have yielded her thennm.-
lier I if skins you meiHion?
Mr. Warren: — Your Honor is perfectly right as to my
(ionuaning. The working power of the " Ariel " is compared
with the working power of the "Mary Ellen" for the
same period, when neither were warned; then the
aitiial catch of the " Mary Ellen " is taken after the
date the " Ariel " was warned and continuing the
catch of the " Ariel " in the same proportion, we have the

it I

Kn;ri

U:':u

882

(Mr. Warren's Argument.)

"Ariel" taking more skins than she was entitled to, mnl
yet they claim $17.('»ll.

This shows conclusively tliat this claim is entirely tic li-
tious and the result of the dishonest and very appari'iit it
tempt of the captain to estahlish as a fact that lie oIr'VimI
the warning given July Hoth, when in fact heremaiiuil m
the Sea hunting until August 17th, and did not aclmilly
10 leave the Sea until August twentieth.

I shall refer briefly to the testimony regarding the dura-
tion of the voyage of this ship. Before doing so I wisli tt*
read the testimony of Captain Bucknam, found at Recon!,
page 703, line 41 :

" Q. You were in the ' Ariel'? A. Yes.

" Q. Wlien did you go into the Sea? A. I don't know the date. It
" was about the 10th of July.

" Q. And how long did you stay in the Sea? A. Jmitr oitl uliom !/,,■
" 30th Juhi, Iihii.k."

^^ (Janie out about the ;U)th of July! Why, he came out on
the 20th day of August. Are we to believe this witness?

" Q. I want to know the date you went out; how lonf? did you tutli
"there? A. 1 ilmi'l k-iidw tin- ilnh: TVn- sliiji's h<i<i/,s uiv IdUl iiiitl till' ',,,/
" liiHik iilsii."

He afterward produced the log after cross-examinatiipn,
which gave the date that he left the Sea as Ainjust .'nth.
Then at Record, page 70S, line 2o, cross-examination

5Q " Q. Have you any record of yourBehriug Sea catch iu 1889, siu'h
" as vou showed me for the year 1890? A. No, I haven't.

" <^. Have you the log of the 'Ariel' for the year 188!)? A. NO, 1
" have a kind of rough diary."

At Record, l+(W, line 40:

" Q. You had seen tluH luoniorandum just a few days before you
" the stand here on the !i3d Dftceiuber, had you not'?' A. IIhh'/ it i

'' fmSSf'Ssitiii,

" Q. And you l-.nd looked at it and talked with counsel about it,
" you not? A. You mean the dav I appeared here?

" Q. Yes? A. The counsel hail it at that time.

" Q. Hut you had talked with thcin about it, had you not?
" luiil spoken with tlicm.

" Q. .Vuil yon kiu'w wliat time vo\i left lit'hring Mea when yon \\f\r
" on the stand before? \. I could not tell without the diary."

Why, if he cotiM not tell it without the diary, did lir
not say so in liio tir.-t instance, insl«M(lof saying, ' I (lnn'i
know tilt' (late. 'I'lir sliip's books are lo.standtlie loj; Ixmix
also"?

•' Q. Did yo\i not know tliiit you liiid that diary wheuy<m tooli tin
stand tirst? .V. 1 knew Mint counsel had it,"

111 our iiriiitod argiiiiiciit wo niailo this oli,scrvaliiiii nn
(liat It'.siiiiioiiy I p. l.">4i:

" Hut little wi'i'4;lil will ]»• niven to the testimony of tliis witness iv
" Kurd lUK t lie niovcmcnts ol' I is ship after the date of the waiiiini,'
•• He made the delilpiTiite attempt to establish that his sliip left llin
•• Hea tiic ItOtli of .luly. jind it wiiM not until fcu'ccd by the cross-c\
" ainiinitioii to surreiidei' his meiuorandum that he did so, after Inn ii^'
" stated that he was unable to tix the date because the books win
•• lost,

" This same witness endeavored to establish the fact tliiit lie in
"**-' " tended to sea! iu Hering Sea in the month of October."

I will (onsider now his tivslimony as to whether iu u is
inten(ling to icinain in tlio Sea until tlie tiist of (hloiiii,
and endeavor to liiid out whctlior there is any foiimiatioii
lor such a claim. Rtuoid, page U")!*, line »!S:

t.MlK

M nil/

V 1

h;?:',

•I iibout it. Ill

Vdii tiiiik till

I'l'VlUliHl nil

[•t thiit 111- in

(Mr. Warren's Argument.)

• Q. For what time did you outfit the vessel? A. To make a long
' ' .seaaon. We intended to try October Healing in the Uehring Hea, and
" we fitted out for a long Heason.

" Q. To remoiii until October in the Rehring Sea? A. Yes, sir.

And at page 1472, line S(t:

" Q. Who gave you yonr information down hero at Victoria about

• soalin^x grounds that y«>ar? A. I ^ot it from general conversation in
10 ■■ a general way from the soalers.

•' Q. Who gave vou information there was good sealing up there in
'October? A. Mii mule miiil lif Imd hmi siio/,cii In hi/ a ir/ni/fr <niit iiue
•' of nil/ liiiii/rrn, iiiiil if- liml linivil tliiil jifo/ile of the i.iliiii<l.i Ihomjlit thnt
•• OviiiliPf iriiK II ijikhI iiidiiIIi In hr Ihrrr."

All the tef-timony relating to tiie duration of the season
with regard to this ship is found at the following citations:
Ifitord, page U()7. lino .It*; Record, page 1487, lines 50 and
i;7; Record, page 14S4, line ti; Record, page 14S5, line 10;
li't'cord, page 148(», line 10.
:o The witness He: man Smith is depended on to establish
llie length of the voyage of this ship, and he testified at
|\'( (Old, page 1484, line M:

•• Q. What understanding was there? A. On several occasions we
•• ii'.i't on board the schooner— that is, the hunters and myself met the
" ('ii|)tain and asked him to fit the vessel well out, as she was at that
■• I imc one of the largest vessels out of Victoria harbor; a staunch vcs-
" scl: and we had all made up our minds to make as long a season as
•■ possible on previous reports."

" y. Was there any mouth mentioned, or any time mentioned,

• which you desired to remain in Behring Sea ? A. Well, I believe
}fi ■■ tliftt I was one of the parties that persuaded the captain to provision

•• tilt! vessel up until October, anyway.

• (). What do you mean by ' up until October "? A. Tti nl/mr iis, if
•■ ill' irriil/irr jirniiilli'il IIS, iiiii/ if llii' rr/iiiiia in'ri- Iriir irilh ri'i/nril In uniLi
" hi i 1111/1111111/ lliiil iiiniilh ill llir lirliriiii/ Sni, llint irr iniiilil hr iili/r In .tlni/."

That witness was in the Sea the ne.\t year, and at
IJccoid, page 148(i. line 4o, testified that he came out on
the :U8t of August, and lie gave no e.xplanation.

1 refer to one other witness who was depended upon by
till' counsel for Great Britain, and that is the witness
4 '(it row. His testimony concerning the proposed duration
(i| the season was not read, only stated. It is found at
|i;i);e 14!t4 of the Record, line tin. I read from his cross-
cMiiiiination:

• i). Did you iKMir. prior to Iss!*, any scaling captuiii say it? .\.

• (111. 1 have licnril it here 15 or 111 years imo.

■ (,>. Dill you hcjir any sealing captain, prior to ISH!>, say that he

■ «as in Hi'liriuti Sea in Octiilicr ? A. No, all their iu formation was
' Ill-Ill whalers.

■ (j). Anil all the whalers ,1, ' was that as they passed through Heh-
. •• liiif; Sea llu'v had some gooii weather in October, and had seen some

"'■•^.■ltls? A. VCH.

lj>. 'J'lii'v did not tell vir.i -\ liat kiml of weather it was in H((pteni-

■ liir? A. I don't think i I ^.'. nientinned JSi'lilcnibcr.

'■ (,). And you thought if you could live out the S;'|itcnil>('r gales

■ yn wiiuld stay until October? .\. That would be the calculatiou
" (,». .\nd you heard of the Si'iitcniber gales from the whaling cap-

• l.iins, 1 suppose ? A. Well, I do not kuow as 1 have liearil any (lar-

■ tuiilar thing about Sei)teniber.

■ I,). You did hear before that time about the September gales from

■ j-iahng captains and from whaling captains, tn" ' A. Well, it has
" I'lfii generallv understood that September is a pretty rough uiontli

J " ilii're."

That is all the tt'stiimmy tln'ie is on whicii to base the
ill iiiiind for a prolonged .season. Will such tcsliinoiiy as
til it warrant an award In ing made to the owners of this
.'■I luKiiier for loss of time to October 1st? VVe think not.

•H

S34

(Mr. Wai'ieii's Argument.)
The Claim of the Owners ok the "Minnme."

Of this claim there is little to be said beyond what is
found in our printed argument. A claim is made for a
season extendnig to the 15th of September. The tcs
timony of the claimants themselves gives the date ns
the 10th of September; and upon the testimony of the
jQ owner hitnself prolonging the season to the 10th of Scn-
tember, a claim is based for damages for loss of time until
the 15th of September. That observation is true of tlio
"Juanita" Claim, No. 13, and that is all I have to sny
with regard to the "Juanita." The testimony bearing
upon the duration of the season of the "Juanita," i-^ ail
cited in our Argument.

I read from page 437 of our Argument in connecfimi
with the claim of the owner of the " Minnie: "

" The ' Miuuio ' enteivd Bering Hen June 27, 1889, carrying liniit
cnnoes, two boats, one of whicL would be a stern boat, and a cnw
of 16 ludiauH anl 5 white men, iui-luding oaptain and mate. Slio
continued lier liuntiug from the iJ7th of June until the 15th diiy nt
of July, at 4.30 o'clock in the afternoon, when she was seizoil liv
the United States revenue cutter 'Richard Rush,' comnmndciMiy
Captain Shepard. The boarding officer directed the removal of IIS
skins, one breech loading shotgun, one muzzle loading shotgun, and
eleven spears to the ' Richard Rush.'

" The schooner was ordered to proceed to Sitka. The instructions
were not obeyed, and ' that night made some new spears and'iuxt
morning commenced liuntiug as though nothing had hiii)i)i'iiiMl ;
we captured 50 seals <ui that day and tK) on the next. Ki'])t cm
hunting until the 17th of August, whtni, liaving 500 seals on Ijniiid,
Ileft for the South." "

20'

30..

The numhef of skins actually taken after tiii^ seiziiiv
was not 500, but was 4SH, as set out in our argumi'iii.
Record, page 144»), line 12.

The I )nly question is as to whether or not the " .Minni, "
is entitlecl to claim for loss of time from the I5tli nf
July, the date of the warning, to the J.')th of Septemliur.

Bearing upon this the original affidavits of Jacobsou an-
the very best evidence. His testimony before this Cum
40niission now is entitled to no weight as compared with lii^
original affidavits made immediately after bis ivtiiin to
Victoria; be !-ai(l on cio.ss-examination (Record, 144.".. liin'
40):

" Q. Am/ lllf ii<:rl nlnniilll/ Ifml riiliilllflifi'il aciiliinl '/.•.• IIkhhiIi nnllilml I(,i4
" litiiijiiiii'i/? A. T/iiil is irliiit in' iliil.

'* Q. How many seals ilid you take the day afttu- y<ni were soi/cil V
" A. t)h, I don't renicmlicr that for certain.

" Q. Alunit how many V A. I snpjiose 40 or 50 ; maylx' not 5(1 ; In -
" tween 30 and 50 anyliow."

5° In an affidavit at Volume 5, Anieiicaii Jiipiiiit, pauu
SCO, Jacobson said:

" I returned to the schooner, when the Ijieuttniaut aski-d uv
" for my guns and sjicars. He took a l>reecli-loadiiig gnn and ii
" muz/le-loadcr, luit refused 11 I'rciicli niuslict wliicii I ullcicd liini.
" He then left witli his men, leaving oni> man on Ixjaid. I'lic cntlii
" then steanunl away. The Lieutiinint ti.ld me liefore having tlmt I
" was (15 miles soutlieast by east from Fniniak I'ass. .\fter tlie inlti r
" h'lt, the I'nitcd StatcH haihir t(dd nii' he was in charge. l>nt lie ni'vcr
" attempted to interfere with the working of the vessel. Sume tiiii.-
" afterwards he showe<l me his written instructions, wliitdi were tiint
60 "till, vessel should prcx'ied to Sitka, and there be handed ovi'i In
" I'nitiMl States Marshal, and that tlie captain and mate slionM In
" arrested. I then concluded 1 would not go to Sitka but would 1 nn-
'■ tinue my voyage. That night we made some new spears, and mxl
" morning commenced hunting as though nothing had happcin d.
" We captured fifty seals that day, and ninety on the ue.\t; kept "ii
" huU'ing \intil the 17th Augutit, when, having five hundred sculs

n connecHiiu

835
(Mr. War.en's Argument.)

'■ cm board, I left for the south. After pnsging through Unimak PasH,
'• I told the prize crew I should steer for Victoria. He replied: 'I

• ill ways thought so.' "

111 an affidavit set out in Vol. 4, Americ.in Reprint, page
I'Ht, Jacobson stated:

" All hijiir (If XII il/li-r llir ' Riisli' in;, I iiinii/ l/ii' mini IffI in rlninii'

•' <l,iiiri-il mf his irriltrii iiis/riiitiiiis/nmi Cii/ilniii Slii'jiiiril,ii/'l/ii' ^ Riilnml

10 •■ tiiisli.' An iinirlii IIS I run ri'iiii'iiilii'r tin- i/in-rliiiiis, In- ivns In iMirrr llif

■■ • Miiiiiif' til llii' Viiilril ISIiiIrs iiiilhiivilii's ill ISilkii, null pliiir her riijilniii,

•• ,inisi'l/, mill iiiilli' iiiiili'r iirrrsl. J nl imcr iiinilr up iiii/ iiiliid Id slni/ irhriv

•• / iriis mill iiilili irliiil sails I fiiiilil. A'i:rl iiinriiiiii/ I innili' in'ir Sjirnrs/nr

•■ /l,i' liiilimis mill si'iil Ihi'iii mil sifnlini/. I ri'iiininfil in llii' Si'il nji In llii'

•■ Pl/li iif Aiiijiisl /iilliiiriini, mid ill Ihiil liiiii' ijiil 181) siuils mill 8 sm ulli-rs,

•■ I iliil iiiilsi-rmii/lhiiii/ of Ihr ' Hush ' n/li-r I'hi- I'tlh nf Jiiljl."

Here are two statements, one tliat he commenced seal-
ing the ne.\t njorning as though nothing had hajipened,
and continued until tlie 17th day of August, and the other
Mslating, "I at once made up my mind to stay where I
was and catch what seals I could."

Tlie ■* Minnie," therefore, lemained in the Sea until the
17th day of August according to that affidavit, during
uiiicii tune she took 48t) seals, or 4ss as a matter of fact.
we cite tile testimony of Captain Jacobson in our pi-inted
aii;iiment (Record, page 1441, line 24), with this observa-
lion at page 440 of our argument:

•■('iiptain JacoVisen testified that when he ^ntered Bering Sea he

" hud 150 skins aboard the ship, and there were 418 seized by the

30 " (litter on the 15th of July, making the catch between the 27th of

'■ .liiue and the 15th of July, '268, which, being divided by the number

" (if days occupied in making the catch, viz., 18, gives a daily catch

• (if nearly 15.

■■.\fter the seizure, and up to the time of leaving the Sea, the
'■ ' Minnie' took 488 skins, and hunted thirty-two days, making her

• iivcrage catch over 15 seals a day."

And a claim is nuide, if your Honors please, in respect
to tills vessel for i= ,187 for the loss of estimated catch.
Sue took more seal-, per day after her warning than she
^o<lid before the wafning, and she diparted with a cargo of
4»' seal skins for Victoria, ami the United States is in-
dclitod to her, we acknowledge, for the value of 41s seal
skins, making a total of IM)6 seal skins, the vahi of which
slu' actually realized, or will when tlie United States pays
tlio value of the skins confiscated.

A claim is made that this vessel left the best scaling
fiioniids. Surely when the effect of leaving t iio best sealing
>;ionnds is to produce better results than when she was
(u(U|)yiiig those giounds, the claimants cannot be in a
!;oiiiisitioii to base a claim for damages on the fact that a
I iiaiigu of her position was made. As hearing on that,
1(1 me cite the affidavit of Captain Jacohseii, wucre he
said that next morning he "commenced sealing; as though
iiiithiiig had happened."

.And the other affidavit wherein he states:

" 1 at once made up my mind to stay where I was and
(dell what seals [ could."

(hanged the sealing ground! There is no login evidence
cl the voyage of this schooner, and upon the testimony of
60 one interested witness who was mate of the ship, are the
(litjli Commissioners to award $33,187, for lo^s of prospec-
tive catch? That claim amounts to over 500 per cent, on
thciostof securing the seals, paying the interest on the
iiivistment, e(|ui|tpmg the schooner, and the original co.st
111 llie schooner; a profit of over 500 per cent, on the origi-

836

I I I

(Mr. Warren's Argument.)

nal investment including the lay and every other expeii'i-
ture.

The printed argument of the United States condnd. s
with this observation at page 441 :

" The Oovernxjient of the United States is liable for the (•hun.r
" value of the ' Minnie ' from the 17th day of August to the 20tli .r
" 25th of August, and for the value of 418 seal skins, 2 guns, and the

spears of the Indians. "

The learned counsel for Great Britain, Mr. Bodwell. m
his oral argument said that 'his captain made new spt^us
out of old stuff. There is not a word in the Record to
show that they were made out of old stuff. Not a wnnl
in the record that they were not just as good as any ollni
spears, nor that he did not go there provided with dtltr
spears than those that were seized. He tells ns liinisilf
that he made spears and hunted the next mornin}; as
though nothing had happened.
20 I refer to pages 144 and 145 of the British Argument in
Chief itself, and ask your Honors to make a comparisim.
At line 30 is this question: " Q. Was there any talk wlim
" you left for Behring Sea as to the time you would liavc
"remained? A. The talk between me and Jacobson was
" that we were going to have ..',000 seals and that we
" would notcomeoutbefore wegot them." They took '.tm;
Opposite that testimony the counsel claim for .^,!>..'(i anil.s.
The original claim presented was for no such catch.

I would remind your Honors before closing the discus
30si(m of these particular claims, of a fact that has not Ixm
alluded to in the oral argument, and that is, that the
estimated catch of these vessels, as prepared and ])\v-
seiited at Ottawa, was based upon a table whicli ccni
tained the reported catch of 13 vessels, and the facts have
demon.'<trated that there was but one catch in the eiitiro
table, the details of which are found in the Kocurd,
which in that table was not grossly exaggerated. Tliat
one correct catch is that of the "Pathfinder," stated in
that table and in this Record the same; in all other if
40 spec, ts the exaggeration is great. For instance, the " Maiy
Ellen" is stated as having taken more than 4,000 skins iii
that table when she took 1! 3!t5, and so it runs.

Tlie Commissioner on the part of the United States: -
That table does not pniport to be the catch in Berini;
Sea.

iMr. Warren: At the beginning of that table are found

these words: "Catch in and about Bering Sea," and 1

asked Captain Warren if he thought that " about Bci iuu

Hea '" was down 1,500 miles from there, and he said In'

5otlit>nght not.

The Commissioner on the part of the United Stato; -
'i'hat is much tiie same (piestion as asking about what i-
the size of a piece of chalk.

Mr. Warren:— If your Honois please, here is a courjn
sive fact. Ciii)tain Waiien made that table and lie di I
know the catch of the fleet be managed, and he ex
nggerated the catch of i^veiy schooner. The facts aiv
in this Record of the catch of those vessels. He stited in
that table that the "Grace" took 2,.^riO when she tnnk
60 1. 100; that the " Anna Beck " took l,4oo when she t'nk
l.lL>s; that the "Dolphin" took I'.t'.ol when siu' tool<
I'.o.'.T; that the "Say ward" took •2,~2:> when she tn,,k
I, ,■)'.••;. Those are facts -tliat the witness did know il,
aiiil yet, when that table is shattered regarding the cat'li,
tbeclaini foi' estimated catch is increased.

887

(Mr. Warren's Argument.)

Mr. Bod well: — Do you say that Captain Warren made
that table you have referred to?

Mr. Warren: — I said that he testified that he inserted
tliat table in the affidavits at Ottawa.

Sir C. H. Tupper:— It is shown that the table was taken
fiotn the Marine and Fisheries report.

Mr. Warren:— He took it from that report, and used it
10 knowing it was not right.

Sir C. H. Tupper: — Will you give your reference to the
lu'oord for that?

Mr. Warren:— I claim that as a matter of argument, be-
cause he nece.ssarily knew the catch of the vessels he
managed as well then as now when he swears to the num-
li.r taken by each.

The Commissioner on the part of the United States: —

Neither paity seems to be willing to stand by these claims

as made up. I do not think we ought to give much time

20 til them. There is some doubt in my mind how far that

IS in evidence here. I do not know how it was left.

Mr. Warren: — That table, if your Honors please, is in
t!ic Record.

Sir C. H. Tupper: — And so is the table from which it
was taken, the Marine and Fisheries Report for 1880.

TnK Claim of the Owners of the little "Tkiumph."

.^0

rho little "Triumph" on the 4th of August lay be-
calmed at the mouth of Unimak Pass, outside the Sea. On

■* that day a cruiser of the United States warned her against
entering Bering Sea. She actually did enter Bering Sea,
il your Honors please, that very night, the night of
Auj^ust -ith, and commenced sealing August 5th in the
inniiiing, and sealed continuously for eighteen days out of
t u eiity one, leaving the Sea on the 25th day of August with
a catch, which when compared with that of the "Mary
Kllcn"even, is greater. Comparing canoes with boats,
\]n\ I in the basis of two to one, but in this case on a basis
hree to four, the mostlibeial basis, she actually made

111

a laiger catch than the " Mary Ellen." The claim is made
fur sl>,7-2;1, 50 damages for loss of catch. The tonnage of
the little "Triumph" is 15. She remained in the Sea
ami hunted more days of the time that she was in the
Si a than any ship the details of whose voyage are in evi-
dence. She hunted from the 5th day of xVugust to the
L'.ith inclusive, eighteen days, more days, I say again, than
aiiv ship the details of whose voyage are in the Record.
She made a catch of 4-2(5 sealskins, which fact is set out in
-pthe Record, connnencing at page 14oo, line W.

Tile basis for this claim is now that tlie little "Triumph"
dill iKit I'eacli the best sealing grounds. The mate. Smith,
tisiitied, Record. 1402. line :)!• :

'■(,). Wo wore talking aliout this Htovni. Whou tliis storm was blow-
•• iiii.' vou into Boliriug Hoa, iiftor you got through Uniumk Pass, did
■ Null cliango your courso to go to tlio westwnnl ? A. So far as I cau
•■ iriiilli'ot our course was always westerly after we wout through tho
•■ rimiiak Pass."

NdW, if your Honors i)lease, the argument has been
fiotn iile tliat they went to the westward of Bogosloff Vol-
caiiii, turned round and came to tiie southeast and out
till ingh Four Mountain Pass. That construction of the
tiMJniony we cannot agree with, for the mate himself,
w lui is the only witness, says: " So far as I can recollect.

I I

838

(Mr. Warren's Argument.)

our course was always westerly after tee went tlirouiili
rnimaJc Pass.'' Antf at Record, "paRe 1403, line ;i (, -,.
tified:

ii-.ii-

10,

A. 0/< //„■ ,
II /it//,' til III,

" Q. How niatjy milrs of gronnd a day will canoes cover in an
" nary sealing day while sealing? A. 12 to 15 miles.

" Q. And every day that the canoes lowered off your vessel, tlio
" vessel would go about 12 miles V A. Yes.

" Q. And yon lowered 18 days out of 21 and proceeded to the wi st-

ward right along? A. Yes, sir.

" Q t>'i'ii/iiii/ I'rrri/ iliiy? A. iSi'ii/iiii/ fn-rii iliii/.

" Q. And when you "got over to a jiass where you could go out uf
" Behriug Hea, you went out, did you not? A. t')h, no.

" Q. Y'ou went out of l"'our Mountain Pass, did you not? A. Yi'>.

" (^. Are you a navigator, Mr. Smith? A. I oui now; yes.

" Q. And you know about the distances up in Beliring Si'ii. .iu
" yoxi not? A. Soniewheres about.

" Q. )'f/» I'nlirnl Viihiiiik Puss on l/ie nii/lil of tin- 4lli':
"qflhi"illi.

" y. Am/ 1/(111 tliiiik' OH llio tiionihii) of I hi' -^/li i/oii iri'r
" iriird iif Uiihiiiik' I'lissy A. Yrs.
20 " Q. Am/ OH l/ril i/iii/ i/iiii loiri'ri'i/ i/oiir lioiils—//ii' •'jl/i? A. Yfs, sir.

" Q. Am/ for 21 i/iii/s i/o,i l/iiiih you iri'ri' jirini-ri/im/ /o t/if inshriirii'
" A. i'rs.

" Q. And out of those 21 days you lowered 18? A. Yes.

" Q. Am/ iioii iri'iil out of Four Atoiiiitidii Puss? A. IVs.

" (J. And when the boats are out sealing they will go about 12 imlcs
" a day? A. Y'es.

" Q. Just tell me how many miles it is from Four Mountaiu I'usa
" to Unimak Pass? A. I will give it as near as I can, 185 miles.

" Q. Am/ i/oii l/iiii/i' i/oiir roiirsi' iriis ii/iriii/s in'sliniri/? A. Alinii/s «■• s7-
" frljt, irim/ mil/ irnit/ii'r jn'riiiilliiii/.

" Q. From Uiiiiiiid' Puss? A. From Uiiimii/iPuss."

He testified again (Record, 148r), line 5):

" Q. And you were in Behring Sea in 1887, I believe? A. Yes. sir.

" Q. And these were the only two years prior to 1889 that you wore
" in Behring Sea? A. Yes, sir.

" Q. You cruised southeast of the islands in 1888, and you cruised
" in the vicinity of the Bogosloff "Volcano in 1887? A. How near do
" you call the vicinity?

'" Q. Well about fifty miles to the northward? A. O/i, mi, ii n-os t'nr-
" tlii-r off l/iitii l/inl."

This vessel went through Unimak Pass on the nigiit of
40 the fourth of August; proceeded to the nortlnvard a siitfi-
cient distance to be niore that 50 miles north of the H(ii;()s
lofif Volcano, after which her course was westerly. In
order to come out throngh Four Mountain Pass she tcmk
a course southwest or south. There is no other construc-
tion to be placed on the testimony, and we have drafti^il a
chart of the voyage of the little " Triumph " based upon
that testimony, and her lowerings made 18 days out of l'I,
during each day of which time she covered only 11^ 01 l.'i
miles. Tlie foi/dne of tliat boat took tier ihruwjh ttic sn-
SOcalted best seali.j (jrouiids (IS s/ioivn by the chart of Mr.
Toirnsend; tooh: tier over the (/round seale(t over hi/ llie
" Marif Ellen,'' which is called by co»n.se/ the best .si'iilimi
(jround in Bering Sea; tooh her over sei-eral posiiinua
referred to in the Anjunient of Great Britain, and citeil f(s
tlie best .sealing grou)uls in Bering Sea; and duriini Unit
time she made a lar(jer catch in proportion to her jmnir
than the " Mary Ellen."

The testimony of the captain was cited as showing an
intention to abandon the best sealing grounds. If yuur
60 Honors please, a reading of that testimony will dis(|iise
that it referred to a timo when bethought tliey wi'iild
not enter Bering Sea, and not after they entered Bering
Sea. That testimony is found at Record, 13i»8, lino tW ;

" C^. Had you any conversation with the captain that ninde you
•' aware as to whether the captain intended to enter the Behiiiijj Sen

^■ip

83U

(Mr. Warren's Ari5unu>nt.')

or not? A. Not at tliet time, liut I had at th.-; timo we entered the

Kehriug Sea. He was compelled to enter the Bchring Hea because

iif the gale that sprang uji that night, and we were so close in shore

that we either had to go on the rocks or nin before the gale.

" Q. I understand that the captain did not tell you as to whether

lio intended going into fiehriug Sea or not after being warned out as

lie had been? A. No.

■•(.}. Uut, at a matter of fact, the vessel entered Behring Seii? A.

Vfs, sir."

Kocord, page 13!>s, line 31:

• Q. Then what did you do after that? Did your vessel enter the

■ Behring Sea? A. Well, we stayed there becalmed. Some of the

• Indians who understood English heard the hail tlmt (.'aptaiu Shepard

• f;ave us before he left us, and they naturally felt uneasy. They de-

• inauded our immediate return homo. The captain and iiiyself talked

■ tlic matter over, and the cajjtain exi)laincd that he had some infor-

• Illation as to some possible scaling grounds away in the westward."

That was, if y(^ur Honors please, before he liad decided
201,1 inter Bering Sea, according to that testimony:

■ • I cannot tell you exactly where, because at the time I was not a

• iiiivigator; in fact the captain was not very communicative on the

• matter. Anyhow, he gave me to understand that he thought it

■ would be best to go on some different sealing ground."

.Afterward the captain entered Bering Sea, on that night
he went in. He got good results, and left the Sea August
L'fith. having completed the season.

Tlie tonnage of that vessel was IT) tons, and the claim
is made to the 15lh of September. I will not say any-

-^° tiling regarding tiie testimony of the proposed duration
of tlie voyage of tiiis vessel. It is established that the
ordinary dination of the sealing season in those years, and
this was in 18>7, was between the 'Joth or 2oth of August;
and this vessel sealed up to and including that date, and
left on the 2«th, after having made a full catch. She
canied four canoes and no stern boat. I compare her
actual exjterience with that of the " Mary Ellen." The
•.Mary Ellen" took, from August Hh to August -iitth,
witli lier five boats, (iS'J skins— those are the actual figures

'*°— a daily average per boat of 5.3. On the basis that the
hunting power of a canoe, compared with a l)oat, is three-
tiuiiths, a canoe would have taken 3.1)75, and on the one-
luiU' hunting [)Ower basis 2. TiS. The "Triumph" was in
thf Sea from August 4th to August ^Oth, and carried four
canoes. Four canoes for twenty-three days, on tlie three-
fiiiirths power basis, would take 'MW skins. The same on
tl ne-iialf power basis would take 244 skins; but the

• Triumph " actually took in those twenty-three days 426
— kins.

' The testimony on which the voyage is extended is set
nut and discussed in our argument. There can he no
i|Uistion hut what this little vessel has no claim. The
|ilca(lings, if j-our Honors please, {lut in in this case, based,
ot ciiuise, on the information of the claimants, set out
tho tact that she abandoned her voyagein to Bering Sea,
ami never went in; and it was not until it was dis-ciosed
111 the cross examinaticm of other witnesses that we knew
till' little "Triumjth" was in Beiing Sea after August

f^^ 4lli. That statement is made in our brief, at page 408,
wuiiont any citation. I now give the citation:
Riciird, page 277, line 45. The owners attempted
tn make a claim that she never entered Bering
St ,1 after August 4th, and if tlie crossexaniination had
11(1 developed tlie contrary, I firmly believe that Smith
wuiihl have testified that was the fact.

(I <

nmi'

s-;o

(Mr. Warren's Argun.eiit.)

Tlie testimony of Smith concerning the operations .1
this hoat the day after she commenced seahn^ is found ii
Record, page 14(»2, line 2"):

" Q. How far tUd you go north from Uuiiunk Puss on Account of tl ;,
" Htorm? A. W«ll ill the nioruing after the wiuil calmed down, it li , 1
" been thick with rain, I just could make out tlie coast line.

" Q. The coast of Unimak Island? A. The Aleutian Islands, sir.
10 " Q, You thought you were to the west of Unimak Pass? A. Yes

" Q. Then when you got through Unimak you changed vour com ,.
" ami went to the westward? A. Not that day, that day it hapijcii. 1
" to calm down, as I recollect now we saw some seals.

" Q. We were talking about this storm. When this storm w i,
" blowing you into tiehriug Sea, after you got through Unimak I'^s
" did you change your course to go to the westward? A. So far ii~ |
•' can recollect our course was always westerly after wo went tbroii: \,
" the Uuiinak Pass.

" y. At about daylight on the morning of the 5th you think v,,]
'• were to the westward of Unimak Pass? A. Yes, sir.

" Q. You lowered your boats and went sealing? A. Yes.
20 " Q' Sealing all day ? A. Part of the day.

" (J. Why didn't you seal all day? A. One thing, a heavy sea Hiii
" ruDuiug.

" Q. Y'ou sealed s^ far as you were able that day? A. \'ea.

•• Q. After the 5th day of August you were in the Sea 21 days? \.
" Yes, sir.

" Q. And out of that 21 days you lowered 1<) or 17 days, did \nu
"not? A. Somewheres about that.

" Q. Just be certain? A. About 18 days.

'•Q. Eighteen out of the twenty-one days? .\. Y'cs, sir. "

Sir C. H. Tupper: You have left out, 1 suppose, muni

30portant passaj^es in that Record?

Mr. Warren:--! have. Bearing on the conr.se of tlir
little "Triumph" I cite Record, 140-', line I'o; Uo:',. lin,.
'2; 14o:!, lines I'it and Htl; Record, Uo-J, line <)."), and top uf
page 1403. The learned counsel cite the testimony of the
witness stating he intended to go in Bering Sea hetniv
he was warned, and hunt 4ii or «!o miles to the south nf
the Pribyloft" Islands; hut, if your Honors please, in tin-
oral argument here counsel have stated that the hest scal-
ing giound is not within 4ii miles of Prihyloff Islands, Imt

40 to the south. This vessel sealed one day later than tlir
" Mary Fallen." The " Mary Ellen " stopped sealing August
L>4th. The "Triumph" sealed August 2r)th and tool; :;:!
seal skins. The " il/0/7/ Ellen " ri'iiiaiiicd in llw Sc(( fnnu
the 24/// In the i'!>/// )ritliont loivcruxj her boats. The litil ■
"Triumph," according to the contention of flic ieaiiiMl
counsel, having secured a large catch, was ready t.) uo
home, bi'cause, based on her working power, she ii.-n I a
larger catch than the " Mary Ellen," and that is the 1 x
cuse given for the "Mary Ellen" leaving August :.'ttii.

50 At Reconl, page 1T27, line 5:!, is the t(.stimony of tlir
captain of the " Vanderhilt," who was in Bering Sea at
exactly this time:

-1887.

A. Yt

" Q. Did vou enter Bchring Sea that veav?'

" Q. On what date? A. July 4th.

" Q. Wh''ii iliil i/dii idiiif i.iii'/ A. T/if lll/i <i/ S''/i/i'iiihii:

" Q. W/i''ii "''W i/imr /iisl Idirrrimi iliiii? A. ll if'is itliinit l)i
Aiii/ii^l, air."

■JH/I, ■,(

Here is a vessel that was there from the 20th of Au^n-l
C^qIo the 11th of September, and her captain could not iin\' r
a boat to take a seal. The tonnage of the " Van<leihilt "
was !»4, and that of the little "Triumph" 15, yet it :<
claimed that the little " Triumph " would have remaiu' 'I
until the loth of September and taken seals. She wa- a
little vessel, and had completed her season's work ami

841

a lioiivv spR «iis

17 (lavs, (lid

Jpposo, iiiuin-

(Mr. Warren'd Argument.)

ailed home. The United States took no property from
hor and her owners are not entitled to any damages.

The Claim of the Owners of the "Favourite."

The ])leadings in this case, if your Htinors please, set up
that the vessel was warned August 2d, oheyed the warn-
ing and departed from Bering Sea. That information
"^( ame from one of the claimants, because Charles Spring,
the owner, made an aftidavit, at page 00 of the American
i;e|)rint of the Proceedings at Paris, Volume 5, stating:

• and I also claim $8,00(t damages, because the officer ni

• conmiand of the United States steamship 'Corwin,' as
" she passed the ' Favourite,' ordered her to cease sealing,
" which she did, and thereby lost her season." The owner
(if this vessel swearing before the Paris Tribunal that the
"Favourite" obeyed the warning! Jle testifies (Record,
\Kv^o IHOlt, line 22) to these facts:

•Q. And all you say now is tliat you do uot kuow that Capt.

• McLean told you that ho took seals on the liHh day of AuguKt or
•■ any other particular day ? A. Xo.

•'ij. Bill /((' (//'/ li'll i/iiii Hull hr liiiik nrii/s iifli'i- //(' HVM iriirnni? A.

• IVs."

Tiie captain told him in the fall of the year iss(i that he

t.Ktk seals after he was warned; and this claimant filed an

aflidavit at Paris, stating that the " Favouiite " obeyed

the warning and left the Sea immediately. This claim is

^oat the inception of the argument shown to l)e admittedly

■* fictitious, for the master did not obey the warning.

Wliat was the actual experience of the "Favourite"?
she took 2,374 skins, and the '' Mary Ellen," in the
largest catch ever made, took 2,3i»r), 21 skins more than
the "Favourite." Within 21 skins of the largest catch
(Vrr made in Bering Sea; and one of the owners asks
liir damages! This is a claim, if your Honors please,
where there are two owners. One owner testifies at
U'( C(ird, page 13(i2, line ;")(», that the voyage was left eu-

tiifly to Capt. McLean, the other owner. Captain McLean
was called as a witness (Recor.l, page 133o, line 60), and
1 1 si i lied as follows:

•' y). You took al)out 0-75 skius after you were warned? A. Yea,

'• -ir. "

ilhiml !/,■■ 2:iil, '.f

(k>

And Record, page 1331, line 48:

■ (,). And why did you leave the Sea on the 19th August ? A. The
siasou was pretty well closed."

And Record, page, 1333, line 44:

■ (,). When you left for the Hehriug Sea in 1880 as master of the

■ • I'livourite,' when did you intend to conio liai-k ? A. I intended to

■ lir /"(./,■ hfi-i- lietweeu tlie Ist and lOth of Septe uber.

■ y). Had vou anv special reason to come back at that time? A.
• Well, ' used to fit oiit for that time."

[{ecord, page 402, line al:

• (,). What time did you leave the 15(>hvingSea in the ' Mary Ellen ' ?
' A. I cannot exactly sav, but probably about the '20tli or 25th of

■ Au^'ust. I am uot sure.

• (,). From your experience rhat would you call the end of the seal-
' iuk' season \n Behring Sea in the years IHHti and 1887 '! A. Ahcni ihi>

" 'jmli i;t' Aiii/iisl, J miiilil roiiniilfr iiliiinl lln- rnd if th'' sr'Htmi. J iisi'd to
'■ '../,"(' Ilir Sni Ihi'tl,"

This "Favouiite" left on the llMh of August, having
taken within 21 skins of the largest catch ever made in

M-

Jif

842

(Mr. Waneu's Argument.)

Bt'ring Sea; and her captain testified that lie left becan |.
the season was very nearly closed, still one of the liaii;,
ants desires an award.

The captain testified, Record, 408, line .55:

" t^. How many voarH did you loave tho UehrinK Sea about tbo 1'.': li

" or 2(>tll of Au^UHt V A. //' 1H83 lln' lnnl ImrffiiHi tlmi iri' lind in II '■■■■

'* iiiif i>ni ifiis f-H tin' Idtll of At/i/Hs/. Ill IHS-t nil t/lfl --Vf/ nt* A'tijiisl. .,

lO " /'''W; (III l/ii' null iif Ani'iiist, i'li 188' nil III'' VJlh iif .\ii(fiist, ill As.s.s „

" llif null iif Aiii/iLi/', iiiid ill 188'Juii Ihr -J-'tlli iif Ain/iisl."

Has this vessel any valid claim hefore this High Com-
niission for being warned out of the Sea when slie ic-
niained until her captain thought tho season was closed'

The only witness who knew anything about this claim
was Captain Alexander Mcl^ean, and he was never ((ii
suited in regard to it, and does not now claim one doll, n'
foi- damages. I read from his testimony (Kecord. |ia-e
2Q i:i:<"», line 51:

" (■). Dill i/oii nr iliil iinii imt vniDiiilrr llinl i/iiii linil n cliii iti iii/nin.il iln:
" Ui'ili'il Stiiti-a (Siirn-iiiiniil fur liiirini/ hern iniriieil nut 1/ IMiriiii/ ,K ,i /
" .V. / (iiiiiiiil Sill) tliiit I iliil.

" Q. Dili i/iiii riiiiaiiirr tliiit 1/(111 linil nil cliiiiii fur till- ' Ki(riinritc''^ A /
" iliil net cinisiiirr tlint iii(/ cldiiii iins (/iinil.

" Q. And itnn illtililicil no ililjinrtdiici' til tlie iiiiltlrr III III/ :' A. JV«, si, ,■ /
** iirri'l' llKtitc 11(1 rldinl.'^

Sir C. H. Tupper.-— You omitted a good deal there, Mr.
Warren.
,Q Mr. Warren: -Omitted a good deal of it, if your Honors
please; I omitted this:

" Q. Can you Hay that you did consider that vou had no claim V A.
" There wma, claim entered in hero, and if the United States Govciii-
" uient would pay it, 1 would l)o very ula't to see my share of it.

" y. 1 ask you whether you consulcr you had a claim? A. I cuii-
" sidcred that I had for the 'Onward.' The 't)nward's' claim was
" Kood, hut the ' Favourite's ' I was always in doubt of."

That is what I omitted. Tho witness McLean g.ive
th.e dates when he left Bering Sea in later year.<, ainl

40 he was not warned during one of those years. He
stopped sealing three years in succession onthe Ifttl: of
August, and in confirmation of his testimony and llic ali
solute truth of it, I cite Bragg in su|)portof the testinionv
for the year is,^y, Tiiomas H. Brown for the year ls>'\
and his own affidavit ])repared in the year lS!t2 at San
Francisco, in which he said that for three years in succis
sion he left the Sea on the 25tli day of August; and liiint-
iug operations would terminate some days before the
schooner would actually leave the Sea. He testified that

50 he stopped sealing three years in succession on the Itnh
day of August. Our learned friend, Mr. Beique, cdii
tended that the testimony showed that he took 575 skins
after the warning. Undoubtedly that argument wis
based on the statement of the United States, thiniirji
error at the bottom of page 3tl!> of our argument. That
statement of the number of skins taken is incorrect. It
says 2,25!) skins and should be 2.'M-i, and those figures aic
contained in the schedule in the British argument, ami
are in the general tables prepared by Mr. Lansing. The

60 statement of the catch made after the warning shoiiM he
changed to 685. I now read tlie testimony to show tinie
is no doubt about the catch of the " Favourite " after she
was warned. Kecord, page 1:580, line 4(i, shows that .Mc-
Lean mado a mistake of 110 seals when he said 575, ami
the number should be 685; and Charles Spring testified at

S43

(Mr. Warren's Argiinient.)

IvL'Cord, pago 131it, line 11, that the I'ntire catch hi Bering
Sea was 2,374.

The claim is now advanced tiiat the "Favourite" left

I ho hest sealing gronnds, and two charts are presented to

liow her voyage. We now file a chart .jf the voyage of

I ho "Favom'ite" prepared on one chart, containing her

voyage hefore and after the warning, showing that after

10 the warning she crossed th<! path of her voyage hefore the
warning. In tlie Argument on hehalf of Great Ihitain,
jiage 59, line 17, the chart of C. H. Townsend is used to
^linw the hest sealing giounds in Bering Sea. The counsel
[in'sented that cliart of Mr. Townsend's to show that fact
and then claimed that the "Favourite" left the hest
scaling grounds. If your Honors will turn to page r)3 of
tlie volume in wliicli the original of that cliart is found
\(iu will discover flnit the clutit nuts based upon (he hnj of
llic '' Fdi'oiirile" of this rery voijdije. Did the " Favour-

20 it I "leave the hest sealing grounds when the chart that
the counsel put in evidence was derived from the data of
tliis very voyage of the " Favourite?" The very voyage,
if youi' Honors please!

If you will inspect the chart which has just heen pre-
sented, the fact will he apparent tliat from the I'jth to
the 19th of August, the "Favourite" made a trip round
her usual sealing giounds, and I will demonstrate bi^yond
any doubt why that was. Turn to page 52 of the volume
containing the original of the chart produced by the

30 counsel for (ireat Britain, the Townsend chart, and it is
disclosed by the log of the "Mary Ellen "for the year
1S8(!, there found, that from August 15th to August 19th
she never took a seal. Refer to tiie Record, page 1098,
where the catch of the " Say ward " for this same year is
ri|iorted,and your Honors will see that after August 15th,
iipon wiiich day she took one seal, there was not a lower-
in',' day to the L'HJ. of August. The crew of that schooner
iii'ver took a seal during tliat time. So there was a period
IVuni the 15th to the 19th of August, that the typical ves-

40sel "Mary Ellen "did not seal, nor the "Sayward" nor
tlie "Favourite." The "Favourite" left the Sea with
tliat storm, as her captain testified, but after the warning
lie covered the best sealing grounds, crossing his path
aj;aiu and again, and finally was within a very few miles
of tlie place where he was originally warned — which place
tlic learned counsel are pleased to call the "best sealing
grounds" in the entire waters of the Bering Sea.

Tlie Government of the United States considers this
claim wholly simulated and fictitious, and in that opinion

30af;rces with the owner of one-half the schooner who was
ciMiinianding the operations of the schooner at the time of
tliu warning.

1 have in presenting the facts relating to the fraudulent
cuiicoalment of the interest of citizens of the United
States in certain of the claims which were referred by the
Convention to your Honors thrown aside the protecting
iiaiiK! of Great Britain and considered the testimony of
till' claimants as that of private individuals. These labori-
fboiiNly honest and regular documentary titles were not dis-
lioiu'stly issued by officials of Great Britain, but were
obi allied by virtue of the false oaths of private citizens; and
whin, if your Honors do, declare against these attempts
to |ii rvert the purposes of this High Commission you will
not he compelled to declare that officers of either great

"TT^

H44

(Mr. Warren's Argument.)

power have proven nnl'aithfnl to their trusts, but only th.ii
private citixens of both countries have sought to perpetnil^'
frauds under the protection of certificates of British rc^;

Tliese claims are national claims only in this sense, thcv
are presented against the United States by Ihe (Joverii
ment of Her Majesty because there is no other way l-i

lo present tliem. The Oovernmeiit of (heat Britain owiv
tin obligation to its citizens to take up their cause, hut is
under nt) necessity and does not nossess the right to
urge the claims of citizens of tne United States of
America against the sovereign power to which they owe
allegiance. It has been the cherished belief of all citizens
of the United States of America that since the cradle days
of that Republic the judiciary of their own country lias
stalwartly and steadfastly stood between their persons,
their property, their lil)erty and any wrong doer, he it even

20 the executive branch of their own Government; and this
High Commission will not, I am sure, nnnouncetotheciv
ilized world that a citizen of the Unitotl States of America
has been compelled to seek the good ottices of any other
power on earth to obtain just recompense against tliu
wiongful act of the Government of his own country.

Let all <;itizens of the United States and all foreigners
domiciled within their jurisdiction seek the courts of that
country for damages resulting from any wrongful act of
whatsoever nature and by whomsoever (\ov.e, so long as

30 those courts provide a method for obtaining redress.

The fraudulent demai'ds of other of these claimants 1
have much discussed. We are not wanting in precedents
when we characterize these claims a^ giot-tiv cxtortionato.
Tribunals of this character have ai . i\\ m the past ob-
served the tendency toward exaggeration by claimants,
and have authoritatively set down in the books that when
considering claims of this character the mind rfhould W
charged with the fact that the amounts demanded are
beyond any proportion to the damu^cs sustained.

40 The proceedings and deliberations of this International
Commirsion, convened for the peaceful determination of
questions at issue between two great Powers, are beinj;
concluded. Significant is this fact. Its proceedings com
menced within sight of the fortifications protecting'
Esquimau harbor, and are concluding within the shadow
of the citadel and ramparts of Halifax— Britain's " Wai
den of the Honor of the North."

In the presence of these evidences of the settlement of
international disputes i)v the arbitrament of war your

50 Honors have, 1)V the wisdom and justice with which you
have perfort.ied the dnties devolving upon you, advanced
the cause ol the peacefnl arbitration of questions in dis
jmte between civilized nations; and the determination of
the claims refeircd to this High Commission in accordance
with the tei nis of the Convention and the principles of
international law will be a straight-flung blow iiy tw(j
great Power.'', which in the past have been willing to
pe.'icefnlly ai liitrate iiJl questions .save those involving tiie
dignity of t illier nation, at the prai tice of adjusting tiis

6opnted <iuestions by war.

At half past four o'clock the Commissioners rose.

CommiSBioners under the Convention of February 8,

1896, between the United States of America

and Great Britain.

I^^'^islativl' Coiiiuil Chainltcf. I'rovincial Miiildiiig,
At Halifax. ScptomlHT 21. 1h«j7.

1(^1 At 1(».!W) A. M. Ilie CommissidiuMs took their s(>atM.

Mi;. Dickinson's Ci.osiMi Aikilmknt kou thk Unitkd

Statks.

Mr. Dickmsoii: — May it |)lfas(> the Coiiit. Tallovrand
,,ii( (> apolo^^i/.od for tlio lt'n>j;tli of a paper in tln-sc words:
• Villi will excuse the length of this coMinninicalion. as 1
hi.vc had no time to write a shorter one." In the |»repara-
til Ml of tlit'arj^ntnent upon the most inipurtant and mtorest-
iii^' (piestions of law [iresented in the printed Itriet of the
20 1 iiiti'd Slatt's. it may he saiii of the time and pains ex-
|M init'd, that they have heen laijj;ely devote<l to the work
i.r condensation. We have endeavored to present our
vji'ws of the law with oidy leadinj;- citations. with(»ut dis-
( iiisiveness. and at the thieshold to call marked attention
In the (piestinns outside of mere assessment which must
hr disposed of by the High ('ommissio>icrs. The present
>('>>ion at Halifax commenced on the^.Mh day of August.
W 1' have now reached the L'ist day of September. In
view of the length of time taken, it is indeed my

3u|iiiipose, as far as possible, to continue the work of
(uiiileiisation in the presentation of the dosing argu-
iiK nt for the Tnited States, in so far as that <;an be
(li)iie with the concuirent preservation of a conscience
tliat must be clear on tlio score of duty that wo
our to this Commission as well as to our (>ovt>rninent.
( >t tilt; lime taken from the lirdh day of August, if the
Ciiiiit |»leaso, we have occupied up lo today, seven and a
half days. We commenced on Monday, the iJUh day of
St|itember, tlie'o|)ening on the law and the [»resentation

40 lit the case upon the fact'^. and we have now reached the
•Jl>t. For the time taken in the presentation of the facts
nil the part of the rnited States, a period of aliout five
il ivs. and part of another, wo have no excuse to make in
the form or nature of an apology. In this connection,
iiiav it jtlease the Commissioners, I desire to refer to one
suiijcct which is touched upon in th<' brief of Her Majesty's
(iMiiisel. commenting upon a statement in the brief of the
liiitcd States, which has occasioned me some jiain. and
fortius reason, I am suiv that all of the counsel of the

^oliiitcd States, iind I am ecpialiy sure that everyone of
I he counsel for (iieat Britain have, from the beginning of
tho hearing at Victoria, when we first met together, been
a( mated by a common motive that does credit to us all,
and that was. and is. and has been, to distinguish in some
il'-ivc the proceedings of this among International Tribu-
inN by the avoidance of anything in the nature of un-
i<iii(liiess or of accnsiition or recrimination between
counsel. This motive has characteiizeil the relations of
c iiiiisel from the beginning until now. whether before the

6oTiilmnal, in public, or in conference, and there has not
liirii one unkind word from either side to the other.
lint in the printed argument of the United States as an
I'v, iisefor the length of our analysis of the facts, and our
i|iiot itions from testimony, we referred to the extraordi-
iiai V condensation of the British Argument as to matters

-r :|

: Jv^;

8-ir.

(Mr. Dickinson's Closing Ar^iuncnt. )

of t'vidtMKC, and excused tlio time and si)a('e taken In i>
in tliat ri>f;ard by let'erenco to and conipaiison with i.,,.
staten.ents made in tlic openinj^ arfj;nnu'nt of Hci' Mujt ^i \ s
Coinist'l. Wo refeiTod rathcrto the failure tocito tlii> i( \t
as well as the evidence as lo points made in tiieir favMi,
and to their failinvto cite lliepa};-eof (piotations from the
Record in the linrry of preiiaration. and therefore, \\,>

lonu'ant to say that we l)ad been compelled, as the Record u ill
sliow, togo into very full () not at ions from tlietestimonv. ,iim|
accurate citations from the i)roots, in reply and refutali..ii.
My fiiends .seem to have taken that statement as a rctliv-
tion upon tlie fairness of tlu'ir arj^unient, or as irnplvm;;
tliat the United States desired or intended to char^t- w lil-
ful misstatement in some things they had set down. Put
I think, upon reading tiu? statement of the United S!;ii -,
it will beai' no other construction than the usual fonn^ii'
one that we could not admit the view of the testinn.iiv

20 taken by Her Majesty's (\)unsel, and submitted onis al
greater length and with necessarily fuller citation^.
Whether they did submit theirs too briefly is hefeiv Hic
Couit. We submitted ours very fully with abundant rii.i-
tions, and it has seemed to us at this session that, owinu to
the conditions adverted to as to the printed argument'-, it
is i)lain that it has been necessary for them now, in tin ii
oral argument, to develo|> and entirely riMuodel thru
argument on the facts. It seems to be true by the (Mir
fully prepared statement and review of the whole te-li

3omony whicli lias been spread befoiv the Conit finm
written notes that it is clear that they have been coin
polled to reform their argmnent upon the facts, and tiiat
this new presentation we have been compelled to nieit
here after the oral argument Iku. been opened. We lind
no fault with that. We are now excusing, as we did in
our printed aignment, the length, not the snbstanceol lur
argument upon the facts, and the length of the oral ai^ii
ment on the part of the United States compelled by the ic
presentation from carefully revis(>d and printed notes o|

40 new positionson behalf of Great Britain. Whether we have
done well or ill is for the High Commissioners to judge, and
we trust that we shall be judged leniently when our learned
friend comes to reply. The reflections upon the Govi m
ment of the United States in the argument of Great lliit
ail), and oui rejdy to and comments upon them, stand u|m]|i
different grounds.

Al.I.ECil.WCK AND NaTIONAUTV.

Coming to tho law argument, I invite the attention ^f
50 the Tribmial to Article 1. of the Convention under wliii li
it sits. It provides only lor claims sustained by '•peiMni-
" in whose behalf (ireat Britain is entitled to claim com
" pensation from the United States." This meets the
Tribunal at the outset, and I'enders necessary a survey ot
the meaning of the words, in International Law, and in tin
language of Nations, of "Allegiance" and " Nationalilv "
And it is necessary to bear in mind soinc' distinctions |iie
sented by the conditii'iis in the cases here, for witlieiit
having constantly in mind the (piestions here cgii-kI-
<''0('ied, one is liable to be misled by the rulings and
decisions wliieli have heretofoi'e been made, whicii il",
nevertheless, shed a clear light upon the points in i'-^ne
in connection with one or the other nation's claim of il
legiance, and in coinu'ction with the cases where natieiis
have claimed a corresponding right of i)rotection.

847

(Mr. Di'kinsdirs Closing Argument.)

|,ot ns liear in niiiid thul this case duos not invdlvo tlie
..-scition by Great Britani of tlio ()l)ligations of her na-
lionals due to her sovereignty, and a denial of tiiose
,.|)ligations hy tlie Uniti'd States.

it does involve the asseition hy tlie United States of
i.lijigationsdue to tiieir .'■fncreignty from nationals of the
inited States, which is denied hy Great Britain.

10 This case does not involve t'n- asseition i)y the I'nited
Mates of a right to jirotect l^ritisii sidijects against tiio
Mivereignty of Great F5ritain. It does involve an assertion
l.v Gieat liiitain of a liglit to protect Atnt-rican citizens
.igainst the sovereignty of the United States. The right-
fid claim of the nation to the obligations of a citizen or
hubject. rests on broader and (luite ditferent grounds from
the rightful claim of the nation to prote t tl;e same sub-
ject or citizen from other nations. To illustrate briefly,
liiil more at length as we go on with tlie argument,

20there are many stronger case.-; for the Uni.ed States upon
this point than the Dinnnnond case, in -J Knapp, P. C.,
L'ii,">. Take thnt, for instance. A British subject domi-
ciled in France; a convention between France and Great
Britain providing for the payment of claims of British
subjects injured by France. The attitude of Great
Hiitain to ;i British subject domiciled in Fratice was this:
This is a British sid)ject owing allegiance to tJreat Britain,
hut tliis man is also donuciled in France, subject to the
l;i\vs and sovereignty of France, and Great Britain caimot

30 in.ike reclamation and protect this subject as against the
nation of his domicile or civil citizenship.

Hut now we come to obligations on tiie otlier hand, and
illustrate them by authority. A subject of Great Britain,
a natural born subject of that Empire, domiciled in Franco
from his childhood, took a conunission in the French
aimy, and although by the laws of war the property of a
I'ritish citizen domiciled in France would take its national
chiuacter from France, and in a neutral country the
nntionality of the country of residence, yet Great Britain,

4iiof the same kind of a subject, bear in mind, as in the
Kiiapp case, where such subject could not make reclama-
tion from France because he lived there and was a civil
citizen of France, I say Great Britain ptuiished that Brit-
ish subject so domiciled in Franco for treason against the
sovereignty of (ireat Britain for adhering to Franco
against lier. So the same nation, as I shall show to your
llniiorsby citation.s, held in ls4S, during the Irish Kebel-
limi wliicli was not .1 state of war, technicilly at least —
tiiat a native horn American citizen, not, of course,

30 naturalized in Great Britain, but residing in Ireland, if he
participated in any degree in the I'evolt against British
sovereignty in Ireland, was guilty of ti'easou against (Jreat
Hiilaiu and cotdd be punished as a traitor, and, furlber-
nmre, the United States would not be permitted to inter-
\eiie for his |)rotection. as long as he was treated precisely
as a British subject was. There you have, in the cases I
liive instanced, the two cases of (Jreat Britain claiming
thai her own suiiject, doinicded in anotiier country, could
lir punished for violation of his obligations to the

<iosiivereigntv of Great Britain, and, on the other hau<l,
lii'liliiig that a foreign citizen domiciled in Great Britain
nii^;ht also i>e guilty of ticasou against the sovereignty of
(iivat Britain. Both positions are sustained by inter-
national law. The United States have consistently main-
tained the same thing always.

irfrwrr-

a ' 'till! ' ►

^'iij£ai'''

S4.S

(Mr. Dickinson's Closing Arginnent.)

In a case in 1S12, Elijali Clark, an Ameiicnn citizen v
original allegiance, doniiciled. however, in Her Majesi. s
dominions, was execnted by the United States for tron- n
against the United States. On the other hand, wh, n
Great Biitain and the United States weie at peace, m
the Williams case, to which I shall give yonr Hoiums
and my friends the citation, it will appear that Willinins

lowas a natnial horn American citizen. He had, Ikw.
ever, in 17!t2, gone to Guadalonpe, a French poss. <.
sion, and took out naturalization papers, as he ((nilii
in France, and became a citizen of France. That i- n
strongei' case than that of domicile. He took a comini^.
sion in the French navy and on the highseas -on theln^h
seas, bear in mind, captured a Britisii mev-Iint ship .iml
took her to Guadalonpe as a prize. Grea«/ Biitain ((iin
plained to the United States of this citizen of the I'nih.l
States on the ground of this same doctrine of | erjiciii;!!

2oallegiance. Williams was captuied. tried in llie Fedcial
court of the United Stales for violation of our !aw> uf
neutrality, tiied as a citizen of the United States, ami he
fore Chief Justice P^llsworth of the Supreme Court of ilic
United States was convicted and punished as a cili/iu
of the United States. It was held that he could not il( nv
his allegiance to the sovereignty of the United Statis
The obligation to sovereignty is far and above and lieyiini]
the obligation to obey a statute law. I have taken
the extreme cases of treason and of violation by dur

30citiz(Mi of his sovereignty's faith to Great Britain in times
of peac»i as binding on all our citizens wlieiever tlicy
may be. And they show that allegiance to sovereignty
means something else besides I he duty not to take uji arms.
Allegiance goes all the way down to this, that no citi/cn
by original allegiance, or by the teujpornry allegiance nf
domicil can deny the sovereignty of his citizenship, oi the
temjiorary citizenshii) or the permanent citizensliip;
neither can he, while allegiance exist.<. deny the asseitidii
(if the sovereignty of the nation, and set nj) his judgnirnt

40against the judgnientof hisown sovereignty, and wlietlu'r
that sovereignty be right or wrong, claim reclaniatidn
against his own sovereignty under the proteitinn (,t
another nation, if he suffers in his act of violating tins
duty of allegiance. (!reat Britain, least of all, wants any
sucii doctrine as tiiat. So that we see the United Stales
is in the position of stating as to one set of these claimants
'"Yes, you aie British subjects by original sovereignty.
We are not denying the claim of jurisdiction lo |iici-
tect you in case you are not treated precisely like ev( i\

soother citizen of the Unitcnl Stales owing allegiance In the
country that protects you." (Jreat Britain, bear in mind,
is not in the attitude that she would l)e were the L iiittd
States seeking t(i claim l'r(nn her damages for her sulijrct
of original allegiance domiciled in the United States, dn
the other hand, if there be anything in the doctiinr df
allegiance, if it is not a mere term ot sound without miIi
stantial meaning, an American citizen domiciled abidad,
entitled to and receiving protection to a degree as sm h Id
the extent that he shall be treated with justic(> by the

<JO nation in which he is domiciled, and further to the < N'riit
that il surrounds him with the full protection el liis
sovereign, not only the moment he gets hack to his ceiiii-
try. but th(; moment he s(>t his face hom(;\vard, owi - ic-
ciprocal allegiance, andsubstantial allegiance, to the I'mifil
States.

84!>

(Mr. Dickinson's Closiiifj; Aigunient.)

It is not the case of an American citizen domiciled in
(Mcat Britain owing original allegiance to the United
Suites, who is denying the sovereignty of his country of
(luMiicil. and asserting his right of protection on questions
III Conflict hetween IheUnited States and Great Britain, and
(• illing ui)on tiie United States to protect him. Great
1': ilain in this case takes the posiiion that she may inter-

10 V. lie to protect an original subject legally domiciled in the
I lilted States against the United States— I make it broad,
aiitl the case of Her Majesty is as broad— as fully as she
niay protect a British subject domiciled in Great Britain.
She stands upon the same ground precisely when she
tkiiins reclamation for an original subject of Great Brit-
ain domiciled in the United States. Furtliermore, she
maintains the converse position concurrently with this.
Silt' claims to extend precisely the same degree of protec-
tion to an American citizen domiciled in Great Britain.

20 A house divided against itself cannot stand. And, in
lU'ither position, as applied to this case, can such doctrine
he maintained as a iiiinciple of International Law, and it
cannot be tolerated and never has been toleiated for one
niuiiient.

The Civil Law is precisely like the Common Law in re-
s|M ct of the lelation of Sovereign and citizen or subject.
We learn from Ciceio's oiation for Balbus that under the
Rniuan Republic it was one of the privileg.'s of a Roman
liti/.eii to renounce ills allegiance to Rome, and become a

30( it i/.en of some other country. It was his privilege, but
lie iiiul to renounce to escape obligations of citizenship.
Later, however, under the Code, no miniicipes could ab-
jiiiv liis allegiance to Rome, and while it was true he
nii^iit take up his residence and acquire a domicil and be
JKiniHl l)y local laws in some other country, yet, he never
cdiild al)]ure his original allegiance. He might be domi-
( lied elsewhere, but was then under two nationalties, and
when these conflicted as to him, each case had to be de-
cided on its own merits. I refer my learned friends to

4ol,ilii'i 4 of The Code, title 38. I particularly refer— and
wt l)ow to the learning in the Civil Law of our distin-
giii>iu'd fiiend, Mr. Beique— I refer him upon this same
tiiilijict to Michelet's History of France, 4!>-r)4, on this
suhjcct. Two nationalities was the doctrine. One never
cu[\U\ abjure the nation of original allegiance; he might
take upon himself another civil citizenship by domicil or
otliirwise, but his nation of original allegiance still held
liini 1(1 his obligations and to a degree protected him in re-
turn.

50 Ti 111', under the Code Napoleon, the rule was relaxed so
thi' a man was permitted under the domestic or municipal
iawsof France, however, to unbind his citizenship so to
sjicak, by taking naturalization by pei mission of tlie sov-
pni^.ty in any other country — by taking a military posi-
tidii undei' the Government of another country, or even
by Iraving France to take up a residence in another
cminliy without the mind to vetuvn - Saiin eNjirit tie re-
tnni : t hat also severed the tie.

Till- law of tlie German States did not permit thesev-

SoeraiKC of allegiance until the j)erformance of certain ob-
liL;aiiniis of citizenship. That applies to the laws of all
thi I ui man States within the [)resent confines of the Ger-
man Kinpire and Austria. And, the controversies out of
the 'hvcrs claims to citizenship and piotection thus arising

■¥

860

(Mr. Dickinson's Closing Argument.)

are ni.'ulo the toxt of much of tho learning in the Ih. ks
upon thw suhject of allegiance and nationality.

This doctrine of allegiance is not the old doctrhi' if
fendal allegiance; it is the old civil law doctrine w i h |i
antedates the fendal system. It may he thus deli; mI:
Allegiance is the ohedience ov\ing l)y a person to the ,>.
ereignty of his nation of citizenship; it is not then! ij.

loeiice as to a feudal lord in the sense of .serfdom or ;iv.
ery; hut it is the older doctrine of allegiance, iint In iho
lord hut to the State and to all its assertions of [x^.i,
jurisdiclion and dignity. That is the old IJonian i|.,c.
trine; and it is tiie same doctrine held harmoniousU Ijy
the United States down to 18(18. and hy (ireat Mm liii
down to l87o. They held until then, that allcgiiHK c
could not he sundered at all without the conscin df
the sovereignty. At the same lime it was held la^ we
have seen from the Drunimond case and that cijiN- of

20 cases) that the suhject might take upon hiniselt ciilajii
ohligations in letuin for certain i)rotection in the ( iiiii-
try of his domicil, and tiius a qualified "douhle iiatinn-
ality," hut he could not, even hy taking out naturali/n-
tion papeisand renouncing his original sovereignty, ilis-
chaige his ohligations and duty to Ids original soverci^ntv
or he released from them.

I do not know that I can quote the old Latin, hr.l [
think I can. It is in first Blackstone and repcatril in
Hale's Pleas of the Crown. It will he found in lirst

30 Blackstone somewhere ahout page ;570, and in Hah^'s I'lwis
of the Crown somewhere about page •i8— and this is tlic
doctrine held hy i)oth nations without conflict; in tlh' did
Latin: *' Nemo potest exiiere imtiiaui nee delntiuii liiicun-
ti<(' eju rare '''—no man can throw off his own couutrv; no
man can abjure his allegiance to his sovereign.

An extended review of the history of the suhjci 1 i:i
other countries is unnecessary.

And now I come to the discussion of this (|uisiiiiii,
briefly, as it has been treated by the United Stato and

40tireat Britain. So strongly did Great Britain assnt iliis
common law doctrine, that after our peace followiii;; iln'
Kevolutionary War, she maintained, during her succicillng
wars with France, that she not only had the hellijiciciit
right — which was conceded on all sides— to .seanli an
American vessel in time of war; hut she also maintained
that she had the right to take from that vessel a citi/in of
(ireat Britain who had, .so far as he could, renonnccij liis
allegiance to Great Britain and become a naturalized tit
izen of the United States. She maintained the coniinon

5olaw doctrine of the United States and of Great Hrilani,
that a British suhject could not become a
of tho United States, so as not to he bound by
giauce to his original sovereignty, but she alfo
the right to take from oiw ships a citizen of tin
States, naturalized as such, hut who, at the same tinu>,
had not been released from his allegiance to (In'at
Britain, and impress him in tiie war .service of that
nation. Siie thus, let me repeat, claimed the rij;lil to
take from an American ship a naturalized citizen of Ihe

60 United States, who had been a natural born cilizin of
Great Britain, and this is what made the dilliinlty.
" kight of search " by itself iiad nothing todowilhit;
tiiat was conceded on all sides in time of war. Hui the
right to take our ufittualized citizens was the assertion of
this old doctrine to which I have called atteulioii, i/ .

ritl/.m

lis alli'-

clainicd

Unili'd

^51

(Mr. Dickiufon's Closing Argument.)

iliat allegiance to Great Britain could not be dissolved,
ciiild not bo thrown off or abjured. The L'uited States
I ii respective of her doctrine on this point) maintained that
(i real Britain could not take an Anjerican citizen — one
( \lled by the United States an American citizen or any one
I Ue— from an American ship, hut planted this resistance
upon the ground of the inviolability of the sliip and crew,

lo-iveas to search for contraband goods. Sir John Nicoll, a
liw officer of the Crown, was called on for his opinion, and
he laid down this doctrine of original allegiance, but on it
ii-;serted the right of Her Majesty's ships to maintain the
juri.sdiction of Her Majesty's Government over the per-
son of a British born subject, whenever and wherever
mid on whatever ship found on the high seas. And the
l^iitish Government planted itself on that ground. The
dispute on the latter position led to the war of \s\-2. It was
,1 practical question while Great Britain's war with France

20 listed. The Treaty of Ghent followed hetween Great
I'litain and the United States, and the question was
iiiif settled because it became a mere abstract (juestion
when the war between Great Britain arid France ended.
Tlie question was opened again in order to get Great
liiitain to disavow— not the right to the allegiance of her
subjects— but to disavow her right to take a sailor from
(111 American ship as an incident to the right of seaich
in time of war. A negotiation to have that statement
entered by Great Britain upon the diplomatic history

30(it the world was reopened by Mr. Rush, then American
Minister, in 1818; but Great Britain refused to open the
subject, because, as uiged at the time, it would lead to
endless complications if it were once admitted that a
subject could of his own will abjure his allegiance to
his sovereign. Great Britain planted herself upon that
ground, and refused to open the question at all. Mr.
Webster, at the time of the Ashhurton Treaty, in 1842,
endeavored to get a like acknowledgment in that treaty;
but for the same reason that negotiation came to nought,

40 although the slave trade and the matter of search on the
iiigh seas in that connection was then coming up. Then
for the first time there began to he involved the right of
search in time of peace. But it was not the old question
(if the right to take a natural horn subject of Great Britain
on the high seas on account of his original allegiance.
Tiiis was a new question, finding its origin vvholh- in the
ttl'orts of nations to suppress the slave trade.

Then we come down to 1848, the time of the troubles in
Ireland. Mr. Bancroft, our great historian, was then

50 Minister to the Court of St. James, Great Biitain insisted
that native born Irishmen, although naturalized in the
liiited States, were still Her Majesty's subjects. 'I'hat
was not so much disputed by the United States as were
(it her points. Great Britain insisted not only upon treat-
ing them as subjects when passing thiough Ireland, hut
also undoubted native born citizens of the United States.
Great Britain discriminated in treatment between them
and her subjects domiciled in Ireland. She also in-
sisted — and this point was conceded then by the United

^•estates, and conceded again hy Mr. Adams in 18»)() at the
time of the Fenian troubles —that an American citizen, a
native born American citizen domiciled in Great Britain
(iiiild be guilty of treason, and might he punished for
treason equally with a British natural born subject horn
(in British soil.

1 1

!fFP

■■\fi

852

(Mr. Dickinson's Closing Argument.)

Aiul the position taken by Mr. Adams and by Mr. Bii-
croft as to that was but this: that they should n<it be d ;.
criminated aj;ainst because tliey were American citizfii

Thedi^greeof protection against such discrimination w k
all that was asserted by the American sovereignty t r
the benefit of its own native born citizens as against
Great Britain; conceding always, never for one aioiiunt

igiisserting tiio contrary either in 1848 or in 1>m;.;.
or evei', tiiat an American citizen, natural Ixim,
who had taken n|i his domicil in (ireat Britain.
owed allegiance to that sovereignty and to all its powns
during such actual domicil, and that he could be imn
ished for tieason or for any less degree of defiance of tlii>
sovereignty under which be lived. There is no doubt tiiat
tTreat Britain and the United States agreed upon this
(piestion always. The L'nited States, both by the (li'cisions
of their courts and by the authoritative statements of iIh.

2ot'xecntive b'ancli of tlie (jovermnent, always conceiliil
and contended for that proposition. This was double
nationality, and while such temporaiy allegiance e.xislid
to the nation of domicil, allegiance to the nation of original
citizensbij) also remained.

In Shanks vs. Dupont, ;{ Peters, the doctrine of pciiict
tiial allegiance to the sovereignty is asserted by tbeSupninc
Court of the United States. In the case of Inglis r.s. Saiim s
Snug Harbor, in the same report, the doctrine of per])(tiiai
allegiance to the United States— the same old Englisli doi;.

^oti'int-. is also asserted. In the case I have refeired to, wlnro
Chief Justice Ellsworth laid down the rule, which will he
found in Wharton's State Tiials at page (i;");?- tlio \>vv-
petual allegiance of Isaac Williams to all obiigatious
to the sovereignty of the United States, notwithstanding
bis acquired relations with a foreign power, and bis |iif-
petnal obligation to his sovereignty, was asserted by liie
Chief Justice of the United States in thepe words:

" Tho coninion \n\\ of this conntry (says the Chief Justice of tlic
" United Htiites) remains the same as it was lieforo the Kevolutiun.
' The present (juestion is to l)e deoiileil l)y two great priuciiiles; one
' is, that all the meml)ers of a civil eonimunity are bound to each otliiT
' by oompai't; the other is, that one of the i)artiea to this eominu't (mh-
' not dissolve it. The compact between our community iiiul its
' members is that the community will protect its members, anil on
' the part of the memt)ers that thev will at all times be obeilicnl to

• the laws of the commuuity and faithfiil in its defence. This (•(iiii-
' pact distinguishes our (iovernmeut from those which are foundcil
' in violence or fraud. It necessarily results that the members ciiiiiuit
' dissolve this compact without the consent or default of tlic cmii-
' niuuity. There has 1)een here no I'onieut, ou default. Defmilt is
' not j)ret ended; express consent is not claimed, but it has been

• argued that the consent of the community is implied by its policy,

• its conditions and its acts."

And the jury was charged:

" That he (Williams) could not dissolve l)y domicil or by takiii); tlir
" oath of allegiance to any ])ower, his compact with the sovcri'innlv
" of the United States which held Williams to his allegiance; and
" that in as much as on the 2;ld Heptember, 1797, he attacked iiiul
"captured a British shi)> and crew on the high seas, contrary to I ln'
"21st Article of the treaty between the United Stfites and (iiciil
" Britain" — he was convicted and sentenced by the Court to a inv^'-
go " t^DO and a long imprisonment.

The books are full of diplomatic decisions, but I sliail
read from a recognized English authority, which is mot
interesting for the reason that it was written on this vt 1 y
subject, and vvritteu at a time when it was called for as i

sr>:5

(Mr. Ditkiiison's Closinj^ Aiguinent/i

Mittorof insttiiction on the whole subject of alleniaiice
;i 1,1 nationality. It is a work carefnily prepared by tlie
I tc Chief Justice of England— Alexander Coikbuin on
Xitionality,

The history of I he I'elations between tlu; I'nited States
;iii(l Great Britain, the assei tion of protection on the one
li md. and of allegiance on the othei-, running tinough all
lotiic period at which 1 have so hastily glanced; the rela-
ihiiis of Great Britain with otlier powers, the advance of
( ivilization, the frequency of niigiation, the closer rela-
iinus between civilized countiies conmiercially; led both
(niMitiies at one and the same time to take up this subject
iiiidtoseeif some conunon understanding coidd not be
ii.liipted by which allegiance might ht^ sundered and a
iirw citizenship and complete allegiance concediMl by one
iMiinfry to the other without tiie conflict incident to
(l,)iible nationality; that of the count ly of oiigin with
2otlh' country of doinicil.

The whole subject was referred to a commission of lead-
in- statesmen of Great Britain. I do not remember all of
tin in. but they were men most learned in the law. I le-
uiiubei' that on that I'ommission were Veiiuni Harcourt
Mild Lord Bramwell; and the best minds of Kngland
were lirought to bear upon this great (|uestion of all(>giance
and the right of national i)rotection, and how nations
(■(Hild 1)0 reconciled upon the very (piestion which we are
called upon to dispose of here. T'lie conunon ground ar-
',oiiv<(l at was tliis: to admit by statute, in both countries,
tin right of expatriation by naturalization. But let me
call vonr Honors' attention to this: tnat that conunon
mound adopted— by the British Act of I'ailiament of IS7n,
and liy the joint resolution of our Congress in IStls,
(1 111 firmed by the treaty between Great Britain and
the I'nited States in isTu— that common ground,
leaves the (piestion, so far as this case is concerned (as
always maintained by both countries before), precisely
wliere it was before l^tis and IsTo. Neither country has
4or('r(ignized that a man can snriender his allegianc*^ of
oii;j,iii by merely taking up a domiril elsewhere. Neither
(■(Mint I y admits nor will permit the sui'rendei of allegi-
ance by any other act than that by the form of actual
iiatiiialization, and abjuring by oath in accoidance with
th. treaty between the United States and (hvat Britain,
and in accordance with the statutes, as to all other coun-
tries with whom treaties are not had.

Si) tiiat we see that these older decisions of the courts
are aiitlioritativ(> here because they bear directly U|)on the
joiiiiestioiis presented to this tribunal, because^ as to thecases
li( l.iie you there is no naturalization intervening.

The attitude of Great Britain or the representatives of
(ileal Britain hero is: that a British subject, unnatural-
izeii in the United States, hut legally domiciled there, may
invoke the protection of Great Britain against the United
Stales, to reclaim from the United States d-unag(>s suf-
feied by him while violating the sovereign antbority as-
sei led by the Government of tlu' United States. But
tlie\ again assert: that an American citizen, domiciled in
6o1hii not naturalized under treaty or by statute in (ireat
iliii liii, bis allegiance being luulissolved as to the United
Stales, still owing duty and subject to be pnnisheci for
tiviMin against the United States, liable in all the other
(leuM cs for any default of duly" to the sovereignly of his
country, may also invoke the protection of Cireat Britain

'<:.4

I Mr. Dickinson's Closing Argiinu'Mt.)

unil uncU'i' it reclaim daniages from the United States
damajies at their liands siitt'ered in tiie doinfi of

'iance to the United States

(1-

III

violation of his alle;
ment.

So, this law, the doctrine of tlio old civil law as i m.
hodied in the connnon law of l)otii conntries, as ,.
liave seen, tlie decisions upon it, the authoi'itativf m ■-
lolarations of hoth ct)untries npon it. heai' directly ii{i.>u
tins (|Uestioii. wliicli is a livinj^ one liere, l)ecanse iiatiii,i|.
ization, which alone can change tlio rules as to alle^ianc)
and correla'ive i)i'otection. has not occurred, to takr the
cases hefore you out of Ihost? inh's.

The ("ommissioiier on the part of the United StaU--: -
I do not understand the proposition of the British Cnim
sel to he as i)road as that; perhai)s 1 misunderstood tlirm.

Mr. Dickinson:- [ am takin;.^ uii their position in their
brief.
20 The Commissioner on the |)art of the United Stales; -
I mean as they argued.

Mr. Dickinson: —But your Honor has read the prmiid
argument?

The Commissioner on the part of the Uniti'd Slate^: ^
No. I liave not.

Mr. Dickinson:— I am sorry, your Honor. 1 had as-
sumeil that yon liad read the oi'iginal argument.

The Commissioner on the part of the United Stale-:-
1 never read anything until 1 hear the whole case.
30 Mr. J)ickinson:— Tlie position of the counsel in the on-.
inal argument is tliis, outside of the question of ia(|.
They sav this, and I am replying to their argument. 1
am coming to the " lia Ninfa" case, referred to in the
oral argument, and which. I think, may he in your Honor's
mind. I am coming to that later.

Tlie Conunissioner on the pait of the United Stales: —
1 do not (juite-see the i)ertineucy of the (piestion of alle-
giance.

Mr. Dickinson: -May it please your Honor, I have e.\-
4oamined their brief with the greatest care, read all tlieir
authorities, analyzed them all in my brief befoic you,
and their position is tliis, from the " Drunnnond" castj
down. They say, in the first place, on the facts, that no
American citizen domiciled in Cireat Britain had any in-
terest in the vessel.

'J'he Conunissioner on the part of the United States:--
1 understood them to argue that there was nothing in llie
acts of those domiciled American citizens which was in
violation of the laws.
50 Mr. Dickinson:--That is in their reply, your lloiKir,
based on the "La Ninfa'' case; that is after they Iiaii reail
our argument. To resume their position is this, if yoii
will permit mo to state it: Conceding, for the purposo of
the aignment only, that, as a matter of fact, there aiv
American citizens domiciled in (Jreat Britain who owned
or had an interest in theships; which is denied, conceding,'
that miller the treaty the United States may go into
the iiuestion of ownership by Amei'ican citizens, then
they say that an Ameiican citizen domiciled in (iivat
60 Britain is underthe prittection of the lawsofCreat iiiiiaiii
for all i)urposes; nan cuiiKlaf, he violates a law ol llie
United States, or, noii coiiNftit, he does what was done
hei'e, whether a law of the United States or not in our
view is immaterial. Great "Britiiin can still protect liiin
against the United States and make reclamation for liiiii

SDO

(Mr. Dickinson's Closing Aigiunent.

iiiidcr this convention on claims. Tii.it is tiicir attitude
iiiidcr tiic doctrine of doniicil. Look at tiicir contention
a-^ to tlie effect of (lomicil in their printed argnmeiit.

The Coninjissioner on the part of the United States.-I
understand yonr proposiiiim.

Mr Dickinson:- -Yoni' Honor will find it treated under
t!i(>liead of " Effect of doinicil on nationality," at page

10 17 (if their hrief, where they treat it at great length, and
;i! various other i)laces they also treat it under the head of
" I'nited States ownersliip."

The Conmiissioner on the part of the United States: — I
iini aware of tiie geneial proposition, hut this particular
juoposition thi-y did not advance in their oral arginnent,
Ml far as T lecollect.

Ml'. Dickinson:— I an\ arguing the case as presented,
viiur Honor. J am going to have some little to say ahout
the " LiiNinfa" case in another connection; hut what can

jotliat have to do with this (piestion*

The Commissioner on the part of the United States:— I
(inly spoke of that as illustrating their projiosition as I
understand it. Of course you will conu; to the "La
Ninfa" case in its natural order. I do not want (o anli-
ripate at all.

Mr. Dickinson: — Tliis (|uestion is far and away ahove
the ■• l^a Ninfa" case, and lules the cases hcic even if the
" La Ninfa " case was a decision of the Supreme Couit of
the I'nited States. The fpiestion is as to American citizen-

3J>hip and the (piestion of allegiance. Xdji couskit, the
United States, as to its own citizens, could not under
its statutes and Constitution lawfully jjunisli a citizen
el the United Slates for doing an act in Bering Sea; and
vet did jtunish them hy its sovereign authority, and did
ihi'ni damage, the ruling (piestion iiere is far away from
tiiat, for a citizen of the United States, oi- a ])erson owing
allegiance to the United States, caimot, hy international
law, invoke the protection of (heat Britain toohtain jus-
lire for him from liis own country. The position in tlieir

4o;ir^innentat page r»o, paragra[)h :'., is as follows:

•■ Tlic imjilied oMifJtation of olxnlicncc to tlio liiws of thf I'lmiitrv of
• liis iloinicilo, ilovolviiig npou nu alien liv roiison of liis rosidt'ucc,

■ (lists ui)on tlmt iintioii tlu' coiTclative duty of protoctiou iu every

■ .iisi' in whit'li till' rights of such foieiffucr lue invudcd or liis jiro])-
• 1 rtv (li'stroved liv tlio wrongful acts of any other State."

III.

^iiu see this right is claimed (!ven as against the nation
of original allegiance.

Your Honor, what is the ohject of reading the Alahama

lOilainis case? 'J'hey have done that in this oral argument,
,111(1 set it out in their printed one. Kow there is no
(Iculit, and we concede it to the full, the authorities
ill iiiiiiistiate the correctness of this position, that an
Aiiieiican citizen domiciled in (Jreat Britain may have,
and I state the doctrine precisely as the authorities will
sustain me, and the distinction is necessary to he home
in mind. Great Britain's protection for the prosecution
lit his claims for injuries, on account of any violation
III his rights perpetrated hy France, Germany, Russia,

6oS\vrdeii, Norway, Turkey, C'hina, Japan, Spain, or what-
ever nation, always excepting the United States. There is
lie iloiiht ahout tliat, not the slightest; hut when he has not
>\\iirn allegiance to (ireat Britain, that is. liecome natural-
i/iil there, that nation camiot, when he owes original
alligianco to the United States, pnitect him against the

U-

V.I

'!'iu

riJKtiWlM,*'

(Mr. Dic'cinson's Closing Argument.)

I'liitt'd Slates foi' daninges siilTi'icd l)y hitn in vidlaii i;;
liis iilli'giaiK'f til tile United Statts. That is the n ^
tiiietion. So tliat, in tlie ian^naj;e of this treaty, (in it
Hiilain lias a riglit, as against the United Slates, lo
protei t any person in (ireat Britain, if P'reneli. ■ .r
instance, — siie "is entitled to claim compensation" ji.i a
Fiuncii snhject. doniioded on Biitish soil, aj^ainsl the

ioUnite<l States. Let ns j^oovertlio matter of "snhjeci "
a^ain, so as to get the persons in a correlativo way lii;,v
(ireat Mritain has tiie right to protect an American cill/, n
domiciled there against any power except the Unit.'d
States for injuries sntfered hy him. She has the righi to
protect as against the United States imder this convent mn
any Krenr'hman, Spaniaid. linssian, Fiiu), (teimnn. Am-
tiian, or any snhject of another cotmtry domiciled in
(Jreat Britain. There is no tpiestion ahont that ; hut (Iri it
Bi'itain has no right when she comes up against this

20 pi inciple of allegiance, as laid down hy heiself. ami Jijd
down in harmony with her hy the United States as inlir.
national law. to protect a citizen of this countiy for vicila-
lion of duty to his original allegiance. 'J'he " J.a .Nliita"
case in this connection, may it please yom- HonorsI hms
it hear on the (piestion^

The Commisfioner on the part of the United State-:
It does not alter the (jueslioii. hut it illustrates the iialnir
of the proposition wliich they made. They did not sniii
tome to state any position which contravenes the une

30 which you made.

Mr. Dickiui-on: -1 heg todilfer with your Honor. Ymi
may read the argument of (Jreat Britain, which I in-
deavore<l to answer as exhaustively as 1 could in nn
jirinted argument from pages 1 to l.">!», and you will \\n[
find any such doctrine as advanced ahont the" l^a Ninl;i '"
case in the reply; so 1 nuist dis|)ose of their main conl'ii-
tion now.

The Commissioner on the part of the United States:—
Undouhtedly; I merely wanted to tell you how tin ir

40 argument impressed me.

Mr. Dickinson:-! was ahout to come to the positimis
of the two countries, diplomatically as well as judicialK ;
and 1 lead from the discussion in l«4s hetween \\\r
countries; Lord I'almerston, first at page s;t of Cockimin
on Nationality. Lord I'almerston hegins hy stating thai

'•He ii|)|)r('li('iiils tliiit the rt'UKPiistniuce contained in Mr. Haiirri.fl's
'• note lias orijj;iiinti'(l iu ii iiiiHtiilicii notion as to the doctrine licid hv
'• Her ^Iaj('^t,\ "s (iovcrnniciit npon this umttci', because Mr. Huik intt
" states tliat one consei|neiiee of the liritish doctriui! of natural idl. -
giauce is, that (ireat tJritaiu denies to the United (States thc> rii;lil nf
re^tulatinj,' tlie condition of eniinrants from ( ireat Britain in siuli
manner ' as nwiy most conduce to the wellheing of the einit,'rants ami
the safety of the lAniericaii) coninionwealth.' Now, althongh li\ llu'
law of ]'",n Inland natural alle^'iance is a tic which cannot lie seven li m
altered liv anything hut the ' uuiliul concurrence of tlie Lcprisliilun .
and although it is true (as (diserved liv Mr. Justice Storv. an eiiiiiiriit
Aniericaii authorit\ I, that ' every nation has hitherto assiiined it ii'^
clear that its laws exteuil to and liind natural-liorn snlijects at nil
times and in all iilaces,' yet Her ^lajesty's (roverumont ilid iiel di---
seut from the ojiiuionof the same learned . I iidge tliat 'in sjpealiiiiLi "I
tlie right of a Stati' to liind its own native snlijects eveiywlierc, «'■
speak only of its own claim and exercise of sovereignty over tlniii.
and not of its right to compel or reiiuire oliedieuce to such law-- cmi
the part of other nations; ' and Her Majesty's Oovernmeiit cuiiiur
with Mr. .fustice Htory in niaintaming that 'every nation has an i\-
(dusive right to regulate persons and things within its own territerv
according to its own sovereign will and polity.' "

SO"'

60."

851

ill Vi(l|,|l|i|;r

; is the I, ^^
t'iitv, (in it
1 States, U)
KicikIi. f If
at ion" tm a
against ih,'
"sulijcci ■■
■e way In u
ricaii citi/.i I,
the I'liit,.,!
111!,' iij;lit to
■^cniivcnti'.ii
'I man, An-
loinicijcd III

t; l)Ut (ill ;it

against this
'If, and liiil
ti's as iiilcr-
ly for vi(i|:|.
' La .Nini.i "

IIKUSI hiiis

ihI Statfs:
s tli(! natiiii'
li<l not sciia
.'nes lilt' (Pile

onor. Villi
which I III.
Duld in my
k-uii will II, It
' l^a Niiila "
lain contiji-

'd States:-

llOW tlnil'

Ik' |)osiliiiiis

■i jndirially;

twcni the

CocUliiini

tatin^ that

\ly. Hiiiii'i-iifls
triiii' liclil li\
.Mr. Hiiiicriift
uiitural alli'-
s tlic ri(,'lit I if
it.'iin ill siiili
iiiinniMt> mill

ll(lll(,'ll llV tllr

lioscvi'iTil iir
L('f,'isliitiiri ,
y. nil Miiiijnit
ssiiiiii'il it as
ul)jiM-ts at all
t ciul iiiil (lis-
II sia'akilij,'"!'
cry wiici'c. «!■
ty over tlirm.

HlU'll law> nil

iniciit i-iiiiriir
on lias all cx-
)\vu trrrilnrv

20,

(Mr. Dickinson's Closing Argnnient.)

( now road from Cockhmn (pagu I2ti), (pioting Mr.
K, i-rett, AmtM'ican SiHMetary of Statf, as follows:

■ TliiMloctiMiu> of iimlii'ualilo iillo^iiuire iM, no (loiil)t, iittcndi'd with

'■ :ii lit iiriicti<'ul (lillit'iiltifs. It lias liccii afllrmi'il liy the Su|)rem«

'■ I lUirt of tlio Ihiiteil StateM, ainl 1)\ more tliaii one nf tiie State CimrtH;

" jiiit tlienatnrali/.atioii InwHortlie I'nited States eertainlyiinHnmetliiit

■' ;i person eaii l>y liis own acts ilivest liiinself of tlie alleKianee iiniler

wliieli he waH liorn, and eontraet a ik'W iilleKianee ton foreign (lowi-r.

Hill, until tills newalh'Kiaiiee is eoiitraeted, lie must lie considered um

liiinnd liy his alleji;iance to the (ioverninent nniler which he was lairii,

Hid subject to its laws; and I Ills mnloiilited iirinciiilc seems to have

Its direct a|)|dication in the jireseiit (•ascH. "

Aliaiii, on the snhjcct of allof^ianct", Cocklmni i |)ago

liy the same comity of imtioii^ ii alien is I'lititled to the jnotec-

tiiiii of the country in which lit i\ lie; ami in return for this i>rotec-

limi owes tdietlieiiee to the liiw, ami teiii|iorary allc},'iaiice to the Sov-
I 1 1 lull or State, MO as to lie liahle, like the natural liorii snhjeet, to the
],. iialtit s « liitdi attach to the violalioii of the law, and this to the ex-
li lit of lieinn I'unishalile fortreason for any atteiii|)t against the State,
iMii tliongh ills own country shonhl lie at war with It, if he has liceii
|iriiiiitted to resiile during' time of war."

A^aiii, at page W:

All

rican eitizpiis. therefore, whether natural liorii or natnrali/etl,

«liii came ti> Irelantl to levy war apiinst ami overthrow the ex' '-•

;;iivi luiiient, wercameiiiilile to the penalties of our treason law, or, if

'"■■■- iimler a reasoiialdesuspicitin of iiicilitatinj; such com 1 act. wfre

much suhject to the repressive measures ]ilacctl at tl

11 |«>I<, niiitiiti iiiiiiiiiii I'tiiii ifi Liiii III itof.t II,

levy war apilnst ami overthrow the existliiK
I'le to the penalties of our treason law, tu', if

^ e suspicion of mcilitatinj; such com 1 act. wfre

J '• ii~ much suhject to the repressive measures ]ilacctl at the tlisposal of
'• the < ioveriinieiit, as tilt! siihjccts of the <j)uecii. If, liideeil, the au-
'• tliorities in Irelaiul hail ahusetl their iiower, ainl for |iur|)oseH of
•• iiiiprcsslon. liatl availetl themselves of the oi)portuiiit,v to seize
'■ Aiiicrlcaii eiti/.eiis, without reasomi' le ciiiise to suspect them of hos-
•■ tile designs, anil w'llioiit an htuiesl 'clief in their K"i" " — Cmd here
" is the whole tloetrine of |>rotection apjilyiii^t to such a case) —
'■ ■ America woiiltl most assurctllv have hail tfootl cause to eomplaln.
'■ Hill iiothiiij.; of the kilul can with the smallest show of reason he al-
'■ li-rtl."

Niiw, I come to a most interesting aulhoiity, which
v.'iii Honor has overlooked, if ytai have not remembered
tli.ii I he sam(> iiosition taken in their original brief is taken
hiiv by the learned senior cotinsel for (Ireat Britain. 1

II III to the Alabama Claims cases, tried, in the language

III iiiv learned friends, " before a distinguished miinici|ial
('liiiit of the I'liited States." Ho cites this to the point,
that (Ireiit Britain has a right to protect an American
iili/i'iias against the coiuilry of his original allegiaiic(>.
Now let ns see about this decision I There has been much

josi'iM e given to this decision in the brief in chief before this
tiihiiiial presented by our learned friends— the tI(>cision of
Ciiiimiissioner Uaynei' on this point. At page 50 of the
amimieiit on behalf of (Ireat Britain, Kayner, "J.," as
ni\ li ieiid calls him, is quoted as follows:

■ tills iiriuciiile of interuatiimal law is recof^nized ns a jinrt of tho
'• ii.uiilcipal law of Knglautl nntl of the United States The Kiij^lish
•■ ( Hints have ilecideil, nKiiin anil ftK'H". that not only is u foreigner res-
'■ lilt ill ill Kiitilnml entitled to the itrotection of her laws to his jiersou
•■Mill proiierty; but even in the ease of an alien enemy, if he (iuietl,v

mill peaceahfy oliey her law sand jierfornis the tint ies reipiired of him.

Ill is not only eutitletl to the |)roteetiou of her laws iu sueing for his
' n;lits in her courts hut he is entitled toproteetion tohisjiorson, evtii
'■ ' > yiiiifil lilt' Itinil nf liis tiKtiril;/. "

N" tioiibt, if he is within the jurisiliction, no one will
conti 11(1 that the person of the man could not be protected

H^l^

II-:, i!

(Mr. I)i(kiiis()ii's CIoNiiig Aimiiiiont.j

I'min any invasion l»y any othi'r ^ovi'inincnl. A:4,iiii. it
\nm<' T)!, KayiKM', ./.. is ({noti'd:

Ami it' till' ('(iiillict liiul liri'ii ilirrctiv lii'tuiMii ( Iri-iit Itiiljiin miil i lni

I'liiti'il Htiiti's, uiiil tlicrc Imil Iiitii itii iiilrii

'II til

I' |illlt 111' (r lit

'' lli'itiiin til liiinii ov In aiiv wiiv tn n rou^i tin iii wliiii' iiinlrr Diir |>i>'i.
"tiiiii, all till' iiiitliiii'itii'H woiilil ^ |in.vi' tliiii inii' (iuvi nm . iit
" wuiilil III' liiiiiiiil to ili'I'i'iiil mill in'iiti'i't tlii'iii ill tlirir ri^lit^. i in
" iiK>iii>''*t llirir i>wn ^iivi'i'iiiiiriit. Our i'iiiii|iliiiiit ii'^'uinMt ( li-nit III ii .jn
'^ •■ WHS mil timt sill' liml dii'i'rllv or iiili'iitioiiiillv nroii^jcil our ( inv. ; n.
" iiii'iit or Its I'iti/i'iis, liiit tliiit wroii),' liiul Ih'cii done tlinni^'li l,rr
•' nt'nli'i't to oliscrvf hi'r ncntnil olilinutiipiis,"

Yollf HoiKllS will set' <IM wIimI CnMsillcialioIl Mill,

Htati'imnf as that is inaili'. wiii'ic lie makes tlic dislii

iiiiil il till' cnnfliit liail limi dii't'ctlv Irl

i.ii .|,

ween (I

hiilaiii and tlic I'liiltd Sl.itc:

(

;it

ai'. 'riii'ii III' savs that we wmild lie limiiid T

ollllK t lllr;i||s

i^iiti

I ploll it ;|

isli siiliji'i't " I'vi'ii a^aiii'-t tlicir nwii {idMiiiinrhi

Will, I shniild say sn. Inia^iiii'a stall' nf

\v;:i'

l'.iiii-li

<iihjtM t (III uiir sdil. Ill undif laii |iii>lrrliuii in aii\ \\,i\,
andtii't'at Kiilain atti'niptiii<^ to laki> liio hiitish siiliji 1 1,
or aiiyhndy I'Isi'. or anytiiing risi'. And t'aiiiy a i ciirt
citiiio ihiit as a incri'diMit. of as a iTasini why. in a -l:iti>
of iii'arc. III' ill any othci riiiidilion, tin- (ioviMiimi'iii ii'iiM
jiioti' t (h<' rilizi'ii on a ciaiin lor dainagi's. That I'ln

iiii(.'

30,

ilhistiation. Thi'ii hi' };oisoii to say

" If ( iri'iit llritiiin suiiposcd, us scciiis to liavi' lii-i'ii tlir case, llmi in
" jiiiviiiK this nioiit'V it was to iiidcniiiifv those who had lieen iiijiiicil
liy her failure to exeeilti' her own iiiiiuiei|ial laws, would sh.' imt
re^tiird aiiv ai'tion 011 our part in iiideniiiifviiiK her own siiliji'i'tH
for her iie^jleet as ineoiiKistent with the olijeet.s and piirposi,^ lur

•h si

le af,'n'ei

I to the arliitratiou in the first iilaee. iiiui 1.. the

" pavnii'iit of the iiionev in the second place; and while we ini^lit lie
• liiiund to indeninify a British suliject entitled to <mr pnitectiini hImi
•'had siiUered a direct positive wrong frtiin his own j,'ovi>rniiii iil . aii'
•• we lioniid to indeiniiifv liini for a loss ciiiisei|uent upon the fiiijiin.
'• of his miveniiiu'iit to do her duty as to the conduct of her own miIi-
•' jectsV"

Now, wi' statt'd at the timo tiiat this aiitliority wa-^ ifinl
in till' oral aif^iimcnt. and this position was ai|;iii'd. ili;it,
in payinji this inoiu'y hy thi' (Tcnova award, it wn- imt
giMiitrd against (ireat Britain on tlu' ground Ihii -he
hiid iicgli'cteil to I'Xi'Ciiti' her own nnmicipal la\\> ,ii
all; and when the Coininissi'Uier on distrihnlioii n. ilie
Alali.'tnia rlaiins, states that all the authorities u,n in
]iriiv(' that any governnient would he hound to pidini
a citizen owing allegianeo to tJreat Hiitain, as against
(iieat Britain, that all the antlioiities so say. lie liaij
not seen one not a single, simple onol and tiierc ;iii'
none. The only point where he could find anytiiiii;^ to
hang such a statement on is this, that if there had lin n ,1
war hi'tween the United States and Great Hiitaiii ' il
the conflict."' to use his own language, '' had heeii hd wccii
the I'liifed States and (ireat Britain, the United St.iies
wiiiild have the right to protect the British siihjii t as
against (ireat Britain."' Well, I think they would' Imt
wlu'ii he states that all the authorities hold, or aiiv .111

.-Ml-l

tliorify holds, that thenation of donn'cil may protect aj.
the iiiition of original allegiance, that statement I ihil
leiige. It shows a total lack of research: and I will vimw
you liowahsiird the position is on every point < >f cinii-i'.
the language my friend i-efer.s to was not necessary to
thedecisioii, hecause the Court refused an allowance tnlho
British suliject; hut they did it under these circiimstanri s,
to which I will call your attention, and not hecause lla'

Hr>i»

t.)

A,^;iiii, it

Di'itikiii iiihl 'i|,.
• |piii't 111' (i lit
iiliT cmr |ir..i. ,..

Ml' (idVc I'lili . lit

cir ri^^liiN, ( ,,„
hI ( liciil III 1' ill
;c'il mil' ( ii.v <|.
Ill' tlllci||;;li i , I-

;itin|l Mlrh a

ic ilisi iiii'iiMii
twccii (;i.,it
llict " III! HIS

III |IMi|l ( ! ;|

(ivcniiiiiiii.'"
^v■. i\ l!iiii-li
in .'iiiN u.iy,
iti^li siilijiMi,
fimcy ;i loiut
y, in ii -l:iti>
iiiini'iii I'oiijil
riiat I'm <.|ii'

111' niM', I lull ill

ml lii'i'ii iiijiiriil

woiilil nIii' hilt

'I' own Mllijrrls
ll |illl')lnsi.s |i,i-

lai'c. mill III till'

ill' wi' iiiiMlii |„,

in'iiti'i'liiin wliii

(OVI'l'Illlli 111. ilH'

pull tlir I'liihiri'
i>f liiM' own -.nil-

itv \V:i- Mill
rfiucil. lliiit,
it wii'. nut
11(1 llnl -\\r
lili i;i\\> ;il
itioii <>;' till'
I'ilies ^11 111

(I to IHdti'iI
, MS .'l^'ilill-l

•;;iy, in' IkhI
1(1 tiicrc ;iii'

lliytliill;^ In
(■ IiikI Iii'i n :i
|-!iit;iiii ■il
cell ht'l w nil
nitcd St;ii.<
1 siibjcit as

wdiilij' liiif
, 111' any .in
iti'ct a,u;iiii-t
iiciit i clial-

I will slinw
Of ciiiir-i'.
i('c(>ssary In
wallet' 111 I 111'
cimi^taiir'S,
bt'causc I III'

(Mr. Oiikiii8(iir« Cl(Hiiin- .\i>;iiiin'nl i

( iiiirt Iff (li'iifva liMHid a jinluiiKMit a;;aiiist (Jnat Hiitaiii

I r violation of or ni'nicct to fxt'cult' her own niiiiii('i|ial
lavs. Tlin decision of tinvse ('oniinissioncis llicmscivos
w.is |iiil, may it pU'.isc your Honors, on iirccist'ly tlio
j;i(iuiid lliat we o('( npy licie— on a coiisliiiction of tlie
^ lint' identical laiiK'ia^it' tliat is in your ConvtMitioii, put
llicre hy llie antiioiative represeiilativc of tln' rnitcil

lilts (iiiVfinnient, tlic .\ttoiney( iein'ial -tliat om' conn-

I I \

1.'. 1
\i '•
lu

I'liiild not make icclamalioii a^aiiisl aiiotlier (diintiy
iiijuiit's siin'ered at the liamls df that other coimtry
he latteis own snitjecl. That is where it is put; and
will .see wluMV ("ominissioiit'i' IJayner linally ended
reason of this tlictuni. He ^ot into tidiihle latt r,
and on ids dicta hein}{ cited against him, upnii it heiiij;;
.sliiiwn tliat in time of svar some Mritish ^mids were
ilisiroyt'd in an Aineiican hottom, the oitl dnctiine of
(iiir Supreme Conit and of inteinatioiial law thai neiilral
j;i,iiils were pi'otected even as aj^ainst hi'lli^^ereiits heiiiy
iiild, Commissioner K'ayner dissented, hecanse one of the
(iiiiimissioners had cited his own doctriin' to him in the
\\ III til case that a Hiitish siihject was entitled to recover ,
.1- .iiiainst the nation of his orijj;inal allej;iaiice, and said he
li.iil not meant that. And he went to the length of say-
ing tliat a Mritish snhject with ^oods on an Anieiican ves-
sel, protected by the Ameiican Hag, could not rei'ovt>r
fiiiiii this fnnd in spite of the muversal rnlelhe other way.
Tliis tlecision of Ct>mniissioiier Kayner is also cited, may it

,Q|iliase yonr Honors, as a decision of a immicipid court.

■* ^uiii Honors will find this in the briefs. We had stated
that the decisions of its municipal courts were evi-
(Itiico against it of the holdings on international law
(if a nation. Of course when we refer to a hind-
iii^; authority, it is to a court of last resort
always. No detusion, even where tlie fpiestioii
is (lirtKtly involved, of the court of a nation is evitlence in
an international court, or is authority in an international
oHirt. unless it be the decision of a court of last resort —
ue will come to that and discuss it fully later on — or in a
sj" rial case, for the special purposes of the tribunal, if a
pally coming before an international tribunal with a claim
caiiiiiit show the decision of a court of last resort against
liiiii, or cannot show, to excuse his failure to produce that
(111 i-inii, that tile Cloverninent against whom he claims
]iivveiited his appealing to il, he cannot be heard. But
wlirii we say that dtn-isions of its municipal coiirls are
eviileiice of the holdings of the international law of a
iialioii as again.st that nation, we mean courts of last re-

roHHi. Hut 1 propo.se to show your Honors that thisdictuin
was not hy a nmniciiial court of the United States at all.
Tlir Act creating it did not even provide that lawyers
sliiiiild compose it; its duties were clearly defined by a
statute like a code The court was only to last a year,
ami the law ofTicers of the United States had to formulate
aiiil regulate its proceedings, which were like those of a
jiiiv ass(^ssing damages. While the testimony fills about
>«•-' volumes, some of the Connnissioners wanted to get
(III 1 1 cord, and there is the total of the opinions of the

6oC'i>iimiissioners, including dissents (exhibiting one small
volume to Commissioners), from which we are cited as if
to I lie judgments of a municipal court of higli authority.

.\i iw this is the court that is to he the authority against the
riiili'd States, equal to that of the Supreme Court of the
L'liiied States, as evidence of our national position on inter-

i il

«!♦■

.s(;(i

[Mr. nickinson's Closing Argumont.)

national law (jiuv-^tioiis. T ;iiii it'fori'iiiii now to In I'nitc.i
States Statiitf at Largo. I'ait :'.. ;s7;!'7r>. 4:!h1 Congress,
oomiiiouciiig at page lMTi. In Scotion 1, tlio I'lvsidcnl , r
tiie I'liited Statos is aiitlioii/od " to iioiiiinato, and l)v ail
"with tiio advico and (onst'iit nf tlio Sonatc, apitoint li\,'
" suilabU' |UM'soiis, wlio sliall (•(institutca (\)urt ot t'oimni
"sioiicis or Alabama Claims. Kacli of t ho judges :md otii. i

lo " oflicois of said com t shall take t ho oath otollico|)ii'sriilii I
" hy law to he taUoii iiy all ulliccrs of Ihc I'liilcd Stales "
Tho usual provision in such cases is. tiiat it shall he cum
posed (if men learned in the law. precisely as in this Cmi
veiitioii; hut '\i is emitted in the statute referred to. | ,|,,
not h.ipix'ii to know whether the Commissioners ;ictuali\
appointed were all lawyer.•^; they may have been, hut iIh'
law does not ie(|uire them to he. I am oidy giting im >
the(piestion whether this was a cnurl of municipal law
Then it pioviihd that thecmnt sluudd e.xist for dUe sen,

2oandthat the rresideiil might, bv prncl.-nnalion. e.xn n.l
this period for six months mure. Sect ion 1 1 says thai I Ik \
sh.dl "decide u|ion amnunt and \alidity of such clainw in
" ciinfonnity with the |provisions hereinafter' contaim d
" and accnrding to the principles (d' law and the merit-, nf
"the several cases." .Amnug other provisions there is
this, that in no case "shall any claim li(( adnntled <■[■
" allowed " a perfect inde all tlu' way through " lor nr
"in respect to mieai ned freights, gress freights, prospei iim
" jtrotits. freights." and so on. Hut we now come to il.r

3olast clause in Section li'. to wliiih I call your lloiiois"
.■ittention. and on which the decision was giviMi, th il a
Ihilish subject could not make reclamation, and iIik
clause is as follows:

" .\n<l iio I'liiiiii simll lie uiliiiissil)li' or iillewi'd liv said ('i)uit ;insiiii;
"in ruvdi- of iiiiN' .iM'isdti not cntitlcil iit tlic time of liiw los.'; to ihr
" proti'c'lion of till' I'nili'il Slulcs in tlic in'i'niiscs. nor ariMinf; in Ihmt
" of any ]ii-:'Min wlio diil not at all tinu's during I he late i-i'lu'llinii l,i-ar
" ti'ui' allt'fiianco to tlir I'nitcd Slates."

Now. the law odiceis of the I'nited States cojilrnilMl
40that no Ihitish subjecj was entitled to protection ,e-
agaiiist (ireal l'>ritam at the hands of theUniled stales,
and th.'.t was held under that Stalnte, and that is why iLe
case was so decided. Now. Mr. Hayner said the r<'ason il
was so held was hecansi' il would have been a violation 1'
the dignity of (iieat Britain, jiossibly, to give ,'i subj. i'
damages which had been awarded against (ireal UiiiaMi
for a neglect or violation of her own nnnucipal law; anl
he says, therefore, it would uol do for a Ihitish suhjecl l^
recoNcr money for his sovereign's violation of its own l.iw
50. Now we will see how wrong lie wjis on that.

The position of (iieat Hritaiii on this subjed w,is this
1 lefer to \'ohiine I., lirilish case, before 'rrilimial of ,\ilii
tration at (ieiieva. page :is. 'J'his was the position el
(ireat Hrilain undoubtedly as stated by Mr. Ua\ner. Imi
mil suslaiiied by t he a 1 bit 1 at ion as he erroiieou.sly stale-

" hi cvi'i'N coimti'v wlii'i'c the Kxi-cutivc is snliji'ct to tin' liiw-^.
•' fori'if^n stati'H Inivi' the I'i^jlit to i'X|«'ct (<i) that the laws he sncli ;is

" in the I'xci'i'isi' of ordinal," foresight niinlit i'easoiialil,v be deei I

" adei|iiate for the repression of all aets which the < iovernnieni i-
' under an international oliliKiit ion to repress; (A) that so far as iii;i\
t)0 .> Ill, I, ,,,.,. „^n|.y for this |inr|)ose the laws lie enforced and the 1ci;mI
" |Mi\vers of tile ( ioverniiient exercised.

" lint foreign stales have not aright to reipiire, where sinli l.u>-*
" exist, that the jlxeciitive slioiild overstej) them in a iiarticnlar 1:1 .'
'• ill oi'der to prevent harm to foreign states and their citizens; iwv
" that in order to |in'vent harm to foreign states or thi'ir <'itizeiis tin
' t'.xecut ive should act against tlie [lersoiis or the iiroiiert,v of indivil

SC.l

I) In riiit. 1

'I'Osillcllt nl

and liy niil
ippoiut li\ r

I'saiid otiii I
(']»H'S(i'ilui|
tcil Stall'- ■■
all lie ciiiii
11 this Cull
imI to. I do
IMS actiiali\

("11. but tlh'

j^oiii};' i 111 II
lifipal law
11' olio voar.
ion, oxic ii.|
ks that til. \

ii flaiiii- III
1' coiilaiih (I
lie nn'rit- <<(

IIS tlu'lr IS

uhiuttt'd 111-

;li~ " Co!- or

pros|M'(t i\ (■

•ollll' to Iho

our iloiuii--"
iviMi, tllll I
I, and tins

Ciiurt iivisiiiu'

is loss til 111.'

risiiif; ill liiMT

l-i'lli'llinll I r:ir

; colltrllilnl

Icrtion as

lod Mall's,
is why ll.r
I' ii'asoii II
violalioii I'
I siihji I '
oat Hiii.iiii
1 1 l;i w: ;iii'l
I suhjiii I"
s own law

tl> tlic Im«-.
\\s lie siirli MS

_V 1)1' (ll'I'llll'il
ciM'llllllrlll I"
SI) fur as iiiii\
mill Ihr li'::al

I'l' Slll'll llIM '

irtiriilar i':i-.'
Ili/.i'iis; iinr
I'ili/i'iis III'

Iv of llllllv I'l

.\>

(Mr. Dickinson's Closiiij; Arguineiit.)

■ imls unless nj)oii cviiU'iu'e which woidil justify it in ho iictiuK, if tho
■' iutori'sts to 1)(> jirotcrtotl wero its own or tlioso of its own I'iti/.ous;

• nor are the laws or the nu Ic of judicial or luhninistiativc jiroccduro
■which exists in one couni .-v to ho apiilicil as constituting a rule or

■' stanilaril of coniiiarisoii for any other cnuntrv. Thus, the rules

• which exist in (treat Hritain as to the ailinission and prolmtivo
■'force of various kinds of testimony; tlie evideiu'e U(>i-essary to bo

' prodiu'ed in certain {■ases, the iiuestions jiroper to be tried l)y a

• jury, the functions of the Executive in rcfjaril to the prevention and
' ■ prosecution of otl'enses, may ditl'cr as to the orfianization o' the mag-

■ istrature, aud tho distribution of authoiity anions central and local

• otlicers, also ditt'er from those whicli exist in France, (iermany or

■ Italy. Kach of tlieso countries has a ri^ht, as well in matters which
■concern foreign states or their citizens, as in other matters to ad-

■ minister and enforce its own laws in its own forum and accordill^? to

• its own rules and modes of procedure: and foreifiii slates cannot justly

■ comiilain of this unless it can be clearly shewn that these rules aud

• modes of p' ici.,liii',. contlict in any particular with natural justice,

■ or in other .v,.i-.|s, with i)rincii)les comuionly acUiiowleilf;cd l)y civil-
i/cd nations !ii l)e of universal oblif>iitioii."

That was thf attitntlo of (ifoat Hrilain. Kurtlicr rofVr-
I'lirc is found in tho sanu- vohniu'. at pago 44. They lefor
III the law whicli is ombodiod in tlio Acts of I'ai'lianit'iit,
and tlu'v j)r()cood to maintain that tliosc wciv. sntHiient
laws, '['hat was the attitiido of tlrcat Britain. On tiio
ollior hand, at pa^e l!>, (7 .scf/ , of tlio Ainciican .-Vi'^ii-
nii'iit to, I'apois -'I'rcaty of Washington), thescpiaro issue
was taken up iu tliesL' wordss:

■■ The Counsel of the rnited States maintain that the neutrality of

■■ (lie Oovernment as rcsjiects two belligerents is a iiuestion of iuter-

iiatioual, not munici)ial resort. Its lefjal relations are involved

■ III the Iiuestion ot the rights of peace and war. Ilrmr lo i/c/irii</ iijio/i

■■ ji'iiitliri' imiiiirijuti hiirs tit //ir nl'linlfinlmf i.f inh't'ii'itimtill H'ltli'tt! ihl is

• itsilf iifijlnl of neutral duty, which duty deniamls preventive inter-
■■ position oil the part of the Kxecutive power of the State."

• Oreat Hritain, therefore, on tli(> imrrower aud iniulmissilile prem-

■ isi's of her own defense was lej.;ally rcspousilile to the l!iiited States

• lor the acts of the cruisers in qui'stion whether as for iioii-e\ecu-
lioii of her then existiun Act of Parliament, which was want of duo

■ .lilij;i'iice, or for undertakiu);; to depend on that ai^t which not only

■ involved want of due diltneuce but imiilied refusal to perforin tho

■ duties of a neutral. "

■1" ,

TluM'o aro tiio two positions mort> fully stated, perhaps.

at nther places. Now comes the decision of the 'rriliunal.

I i|iiote from the opinions of ai'bitiators, pai;i' ."il, the de

' i^ioii and award of the Tribunal (,4, i'apeis. Tfeaty of

\\ ashinj^toni:

■■And whereas the (iincriimeiit of IIci Itritannic Majesty cannot

■ lustily itself for a failure in due dilifjeiice, on the plea of insulH-

• cicncy of the le^al means , if action which it possessed."

c,, .\iid in the same volimie, pa^e ."i',i, tho opinion of Coiiiit
>ilopis, as follows:

■■ I w illiu^ly admit, on the other hand. th:it t he diil ie* of the iieutial
'■ |iower cannot be determined liy the laws which t!mt power may have

■ iimde in its own interest. T'his would be an ea.sy means of cinilisi^?

■ jiiisitive responsibilities which are ri'co(j;nizeil byeipiity and imposed

■ liy the law of nations."

So that the point was squarely made l>y (ii'cal Bi'il.iin,
lli.d upon the point which Coiiiiuissioiie!' Kayner cites Iho
iiliiliatoi's do not hold lief for any ne}j;lect to execute her
C(.i.iwii laws but held over and above that without rei;ard to
liir own laws that she was liable by Inleriialiv iial law.
SIk' was never held for neolcct to e.veiaite iier own laws.
She was held to tiie iliity imposed hv Intel national l;i\v
I H'speclive of her o>vn laws, sotluitMr. b'ayner wasmis-
1 iImii upon tlu' only };roiuuls that he puts it.

II f

(Mr. Dickinson's Closing Argnment.i

But liitcr on, in tlic cist! of Schreilit^r against tiic I'li
States, we tiiui him dissenting and (|U()ting liic si;
dottrini' that my tVieiid qnotcs in his i)riet. lUs (hss. -
ing (i|iiiii(ins arc all prmud. This was a case \\1|.
Krcdcriclv Scliritdicr and .\h'V(r wcic copartners in hiisih
at Singapiiic. a British |i>ssession in the Kast Indic-
ia;:!. (ineCoiien, a naturalized British suhjeet shi|i|MM|

lo hoard tlie "Texan Star," 12.r).">:'. hags of rice. ColKMidi'
on Meyer i^ Co., ami the draft was i)aid. 'I'he "Ti \
Star" was destroyed l)y the ciui-^er " Alahama." (.1.
hecame hiinkrupt and the tiiinof Meyer iScC'o was m \
paid, llavmg tailed in their attem|)ts to procnic pay i in m
they cinii' hefoi'e the ('i)minissioiiers of Al.iliama Clainis
as complainants, and tiiey ceilainly were Britisli snlijiru
Now Mr. K'a\ ner isconfionted with his own decision il.it
these people were entitled to protection, and with his ..wn
dictum, and this is what lie said. He held tiiat tlu-r

:!0 people were iiof entitled to protection.

Tile CouMnissioner on the part of the Uniti'd State--:-
Slie was ;i British vessel, she was undei' a Bi'itish II, i-.
She w as a wliitewashed ship. 1 remendiei the i-ase.

■ 1

.Mr. Dickinson: -This is
dissent in this case:

what Mr. lia;'ner said

ni In-

" 'This ((lu'stioii liiiM not (in my view) Ik'imi ilctilicriitt'lv ]iii.ssc',l u|,oii
by tills (Ninrt.' Tlic svlliilnis in West's I'lisc. No. 1)1 (tlir ii|iiiiiiMi
(ini)t('(t from l)y tlic Hi'iti.sli itrnuincnt lu'it"), ciinuot tic coustiu. .1 t<i
nicim, and tlic luitlior never iiiteiul I :■ . deeision to (Miiliiiu r all
persons, wlietlier niitiv<'-lporn or o' [.'i-'.-u liirtli, wlietlier ii;(tii-
rulizeil or unniit nralizeil,' without . ■;■ 'iMon oi' iiniilitication. So
' far Ironi it. tlic collocation plainly shows mat the I'ci'i'ludiii)^ clau.M'
' is (lualilicil and rcNtiaincd liy the previous |irovisiou, '',,/ii/.,/ .,; ,'„

' /////'■ "/' his /nss fii tlft' /n'o/fi/tuit nf thr dnl''tl S/'l/rs in Ihf jn'rtit isrs ' ; and

' suhjoi't to that (pialitication, I still contend, that \vlictli(>r imlivc-
liorii or of forcif^ii liirth. wlietlier naturalized or nnnatiiiali/rd,
makes no ditl'erenc<'. Throutrliout the entire ojiinion, all tlic mmi-
ment in favor of aliens not naturalized. sti|)ulates as a condition
prcccili'iit tlic iirolectiiui of the United States. After hniiio do«ii
that indispensalde condition, the not continuinsj; to repeat it at tin'
end of every paragraph, cannot. l>v any reasonalilc system of dctiimi!,'
tlie meaning of huiKuage, lie construed into yielding the condition

The learned gentleman oiigitt to have put the (pialitii ,1
tioiis in it every time, and then my friend would nut lia\
(pioled him with such empiiasis. Of course in ttiiic I'l
war it does not make ;uiy difference. It doi's not make
much ditference then how much the ship is " wliiti'
washed " with untine natiniiality. Site was an .\merirni
sliip

The Commissioner on the pait of tlie United Slate-:
She was an .\merican ship. Cohen did not ohiecl to
Soiicr.

Mr. Dickinson: So that we get light hack to ijir posi-
tion that she was an .Xmeiicau ship with British goods.

The Commissioner on the (tart of tiie Inited State-:
Were these British gooils;

Mr. Dickinson: S'es. But it startled Conmiis-iniin
Hayner so that he had to get hack and (|iialil'y his dii liim
hy dissenting as I have said, although hoth majwtit v jmli;
meiits were <()rrect. The first judgment in the VVortli of
West case, that ii British suhject was not under Aeniii mi
^10 protection and could not recover, was right, hut Mr. i.':i\
iier"s dictnni was wrong, and the second judgment thai .1
Ihitish suhject who hiid a cargo in an Ameiican siii|i in
time of waruas a neutial and couhl lecovor, was ;il- 1
right. But Mr. h'.iy tier wrongly dissented.

Voiu- lloiiots wili see at |iages '.',>> and :'>',» of the i'.nii-li

sil;',

t.)

it tiu! riiiii ii

IK 111*' s:iiiu;
His (lissi-nt-
(■asi> w li' I,.

s in l)iisii;> -s

t llllli(•^. III

t sliiplinl ,11

( 'dIh'II ill I w

tih> •••r.Nii,

iia." (\4i!i)
II was Ml \ir
lire ])ayiiii nt
)ama ('hiiiii>
:ish siiliji'i't^.
(h'cisidii lliat
with his iiuii
(I that tlhM.

!r(l Stales: -
Hi'itish 11,1.;.
DO case.
r said in lii>

I'ly ])iissi'.l u|,i.n
'.H Itlic ii|piiii,,ii
!)(' cnustni, ,1 tn
tci oiiiliiiic'c ■ ail
, wlicthcr iialu-
mlilu-iitiiiii. So
ivliidiiiH' cliniM'

U, ' I'lllilhll ii l!n

" /ifriiiin'S ' : iillil

wlii'tlior iiiilivc-

uiiimtunih/i il.

Ill, all tlir uii;ii-

us a coiiilitii.ii

I'V lining; ddwii

repent it lit till'

Htem (if ililiiiiiii,'

tile eduilitiiiii

tllc (Ulaiilir.l
)lll(l lldt ii:r
10 ill tlllli' I'l
X'S lUit IP.akf
is •' whiti'
ai! Aiiierii m

tcil Stall-;
lot iihjcrl 111

^ to (hi' li'isj.
tish j;oii(l-,
tf(i Slati'-; -

'oIUlllissiiilliT

V his (hcliiiii
ui juiit V jiiiln
thi' Worth "i-
Icr AiMiM ii ,111
lilt Mr. i.'.iv
gniciit, that a
licaii siii|i III
i\(>i', was ;il-i

if thr I'.nti-li

(Mr. Dickinson's Closing Argument.)

.NigiuiHMit, that it is contended that tiie oniission of the
v.. mis " l^riti'-li subjects" in Article 1 of the Convention
n defining those for whom (Jreat Britain had the right to
I lim compensation, was a means of eiilaigemont of jtiris-
(1 ■tion latiier than a limitation. 1 am going to discuss
fi it for a few moments. My friend was not (jiiite satis
I I witii the amount of diplomatic coM'espoiidence that,
lol got into this Kecord against my vigorous contention
a; Victoria, so tliat when they come to make their
|ii lilted argument here they import a letter that was not
introduced at Victoria at all for further u,-e in the matter
,,r construing (he Conventioi;. 1 shall at a later period
U, notwithstanding tiie 'Iccisioii of '• ],;i Ninfa" ca.se.

II. si:

u|"in

another point, that l(>tters and negotiatii^is of the

(ii.vcriiments, any more than the delt.Mes of Congress as
til statutes, wiiich were used in " La Ninfa"" case to con-
strue a statute, cannot lie used in the ciiistrnction of tliis
3o( 'iiveiition. Jnasinucli, however, as tliis letter is |)ie-
Miited and is directly in accordance with the contention of
till' United States and is iiriiited in my fricnd"s brief, 1 will
read it ill relation to this mattei'of Britisii subjects. This
letter which we have shown is produced lor the first

guiiient at jiage ;{,'s.

is ,1

time ill this case, in the Biitisli Ai
iMr. nickinson lieie read the letter.)

Now, your Honors will find, taking the iiosition of
tilings as tiiey were at tlie time of the making of this
Cuiiveiition, that under the previous Convention of l^^.^;i,
30 nnuiing through from beginning to end. and I refer to
tile Commission for the .settlement of the claims between
the I'.iited States and (Jreat Britain, lejiort of the Anier
ir.iii agent, Mr. Hanneii, later Lord Haniien, being the
agent for Creat Britain, that one of the ditiiculties with
wliii'li they had to contend was the use of the words
•■ I 'litisli subjects" in that Convention, and the ■.et>ming
(iiillict lietween the use of th(> words "Britisii subjects'"
iiiil the rule of International law which would precluile

tiie recovery of a British subject, domiciled out of 1

lis

40r(iU

iilrv against the Unitt'd States, iiot in one case, but in

iiiaiiv,

in the Lanrentz case, the

•laii

11 was pK'sented on b

]i,iU of a Britisii subject domiciled in Mexici . Tiie Con-
viiitioii contained the woi'ds " B)ritish subject '" and pro-
vided Cor the adjustment of claims of Britisii subjects
rigiiinst the I'liitt'd States, and for the claims of American
citi/t'iis interchangeably. But, inasmuch as it w;is so
liv the rules of International law -and the case was fully
argued liy liOrd Haiinen and Sir K'obert Philliinore for
5o(;ic.it Britain, as shown by tlie report of this case— it was
Ihld that iiiendy becau.se a man was a British subjiTt,
altliiiiigh the treaty provided for reclamation on liehalf
III' I'.iitisii subjects, yet he could not recover in that case;
tile reclamation I'ould not be made in that case because
the I'liitish subject was domiciled in Mexico, and hisgoods
timk their character from that country. There was the
(list difticuty they had; that difhculty is recognized

(Ii

h th

I 'SI' !'(

'jiorts.

Ill

ke (iiieslion came up as

til litizens and doiiiicil, and the construction to I

I gi I I'll
sii'ii.
sini

tlie

th<

words in niaiiv cases before that Commis-

1 iioid ill my hand the jigeiit's repoil of the couimis-
I of is.'i:} "uihraced in the nic^sage of the President of
rnited Stati's, communicatiiig tlie proceeiiings of the
('niiimission to Congress. It contains the iuguments and
liii. I- ill the important cases and th" decision of the Com

r ■!

864

lie
v's
iml
:iat

liar
111.-

(Mr. Dickinson's Closing Argument )

missioners and of the Umpire. In tliia Report ii
" Lanrentz " case it was contended by Her Mnjc
counsel that whatever miglit be the rule of Internal i
law, yet the use of the woids " Brilish subject" in
Convention concluded the whole subject and that tl
fore the British subjects were entitled to recover.
Now in the treaty of Washington under which a sin

JO Commission was formed in 1871 the words " Biitisii
jects " were introduced again, and furthermore aiin
clause was introduced which is interesting in this ciiiincc-
tion, which is not in this Convention. I am leading! mi
the " Treaties and Conventions between the United Si ii.s
and other powers, 177*> 1SS7." Article I'i of the tieai \ of
Washington, at page 4S4 of the book I liave cited, pnniihs
for claims 'excepting claims growing out of the AlalMina
claims) on the part of corporations, or private iiidiviiiuals
'■ bubjects of Her Britannic Majesty," which may lave

2obeen presented to either govermnent and which liav.- k..
mained unsettled. It was provided that they slioiiM In;
referred to three Commissioners and the Commissioihis
so named shonld meet at Washington at the eailiest inn-
venient period and shall before proceeding " make md
subscribe a solemn declaration that they will act iiii|iai-
tially and to the best of their judgment and according to
justice and equity." According to "justice and eiiiiiiy."
I would ask your Honors to bear in mind all the contin.
tions made under that treaty as to these phrasts. ■jju;

3oCounsel for Great Britain und«.'r the treaty of 1^71
contended that they were not confined to the riili- of
International law, not only by reason of the use (it llie
words " British Subjects " lint by reason of the novilty
of the words " justice and equity " also in conveiiiinns
between countries; tliat it was the intent of the Tnatv
to take the case out of the rules of International law, aiul
to rei)Ose absolute discretion in the Commissioners with
out regard to the rules of law in the country wlieic tlu'
complaint originated - without regard to the usual liiniia-

^ntion u|)oii the right to recover in case of tiie decision ul a
niiinicipal court liefore apjieal, before a decision was inadi'
by a court of last resort and in all other respects. It was
like throwing the case before a jury unlearned in law. ami
which should decide on general humanitarian piinciplt s.
This contention was made by Her Majesty's Coun-el m a
number of cases, liut 1 call particular attention to ilie
" Hiawatha ■' case, page lU of the Kepor of thel>iiii-li
Agent, presented to the Houses of Far lament, by r..iii-
mand of Her Majesty, in ls74. Her Majesty's Coniisi'l

50 contended, at page KKl:

" 'I'lierc is a cloar ilc|iartnr«i in the Treaty of Wasliiu^'ton fnim tlio
" pret'i'ilciits i'liruiHlu'd liy otlier Hiiuilar Ci)uv(>utioiiH to wliii li the
" Uiiiti'd States wi'V('iiaiMics, in tlic nniisHioii from tlie Treaty of \\;l^ll-
" innton of tlie wiudw wliieli inalto the iml.lie law a rule of (leri^ini.
" The oath to whieh the Cominissiouers are re(iuireil to Kuliscrilii' «:i»
" qiioteil as eHlalilishinn th(^ ri/^ht of the ('oinmisHioiiers to iih|iiiip
" into the facts of the several eases, not with a view to deciile w Ij. tlicr
"a teehnieal ri^ht to caiitiire is disclosed liy them, Imt vnlliu
"view ot deterininiufi whether the claimants were injured, wiilmiit
" their fault, liy the Cfnited States, in the prosecution in jfood r;ptli ef
60 " ft lawful trade. au<l were therefore justly and eiiuitaldy eulilud to
"relief."

And in the other cases, it was contended by the l'"tisli
Government that the ca.si' did not stand before the ' 'in
mission as under oidinar\ conventions, but that the rnis

s(ir<

(Mr. Dickinson's Closing Argumont.)

(Ii.lioii had a broader significance and tliat * ■■ *
'• Justice and ecjuity must be determined in tl\e case."

.And so it was made a point in a number of otiu>r cases,
iis s(;eii by Vol. ("> of the Papers HelatiiiK to tlie Treaty of
\\ ,isiiinj;ton, ]»ages 24r), Ki;! and i:i4. Now on the term
" Uritisli subject," used in the Treaty of IS'l, tlie La\u-
eiitz case was cited before the Commission of 1H71, The

10' .^'^e was fully argued by a very learned counsel on behalf
(ii eai.'h side — the late .Vttorney-General Hoar argued the
ci-r for the United states— and it was insiste<l by Her
Miijesty's Government and decided liy the Com-nission in
f.ivor of the contention of Her Majesty's counsel that the
u-e of tlie words "Britisli subjects '' in connection with the
view tiiat the Commissioners had thei'etofore taken of
tliis peculiar cjuvention -unlike any otiier convention in
iv^ai'd to the method of committing the (piestions to the
Ti ibunal— the use of the woids "■ British subjects" con-

:otiiilled the case, in spite of the lules of International law,
Ih.it one country could not make reclamation against an-
oilier for anything in favor (if the party owing the latter
|i( rinanent or local allegiance. The Commissioners held
ill that case, and the British counsel insisted as the
Ir.uling point (point 'A of their brief) that so far as
the rule of International law urged by Mr. Hoar was con-
(I'lned that it was sufticient for them to establish, and
they did establish, and the Commissioners found that re-
cliination could be permitted to those British subjects in-

joviiking the protection of Great Britain for injuries sus-
tained within the United States, providing it appeared
that the person so invoking the protection against the
I lilted States should demonstrate that they had been
laitliful to their local allegiance to the United States.
That distinction was made, however, in the decision.
Number S of the brief of the British counsel in this case,
tlir i'.arclay case, was this jioint, that while Barclay had
hecii domiciled in the United States he had been faithful
to the United States as any loyal citizen, and the case was

40(licided by the Commissioners on demurrer. The priu-
(•i|i|e admitted by Her Majesty's Government that entitled
him to recover even in that case under the peculiar words
dl the Convention, giving reclamation to British subjects,
was the ()ualitication that the claimant must have been
loval to tlie sovereignty of his domicil and liave obeyed
all its municipal laws. Here is the statement of the Britisli
cui nisei.

First, as to the demurrer, admitting the following
facts:

' " 'I'liut tho claimant nlistaiiied from all inteniu'diUiug in the Civil
" War and iu all resin'cts uoiuluctud hiiUHolf as faitlifnlly to the Uuiteil
" Sliitt'M aH any loyal suhjiH't could Lavo done without taking an
" lutuftl part iu tho war."

His allegiance was maintained and his keeping of his
allegiance was an essential. That being the demurrer,
this was the argument of Great Britain:

" .\iid this briujJCH us thorcforo to the iiuostion wliioli is ixM'haps
" MHiif iuijiortaut tliau wlu'tlicr a subject of Her Majesty wlin was
■ irii such subject and has never been naturalized or taken steps to
•' It naturalized in any other country, * * * domiciled in the
" liiited States."

riie Commissioner on the part of the United States:--
Wheii I spoke to you before. .Mr. |)ickinson, 1 luiderstood
that the British counsel disavowed so strong a |>ro|)osi-

IK)

In I

8(i(;

(Mr. Dickinson's Ciosinj!; Arj^ument.)

tion as yon stated. I had in mind what is stated at im (>
111 of the oral aignment. 1 want to call the attt'iiti u
of the connsel for Her Majesty to it becanse I gatlici il
from that, although it is not directly stated there tint
they did not intend to maintain so strong a piopositidii is
stated hy yon.

At on" o'clock the Commissioners took roce.ss.

At lialf-past two o'clock the Commissioners resnitii
tlieir seats.

Mr. Dickinson:—! shall come to this Barclay cis,'
aj;iiin, may it jtlease your Honors, but enough has Ihm n
pointed oiil t<> show the historic conditions in lh(> dw
cuss;on of treaty terms between the govennnents in n..

20spi-it of the (piestions of construction here as to reclaiii;i-
tions and claims of one govei'ument against the otinT.
turning on the civil status of claimants at the dalo
of the making of this convention. And it appears hv
this convention that the words " British subjects," were
eliminati'd. It also ai)pears by this convention that the
Words which were used in the convention of 1S71 that llie
decision should be made "according to justice and etpiii\,"
whatever that may mean — and for this purpose it is im-
material what they mean - those words were not used in

30 this convention. It follows that in all the historic rcla-
tions between the govennnents in respect of convent inns
of this de?cription, ditticulties had come up in tlie deliliir.
ations of arbitrators or commissioners over the use of the
two terms. Both terms had l)een heretofore a 3nl)je(i ,,f
couti'oversy, it being insisted prior to this tune by Ihi-
Majesty's Govermnent that if the words "British snh
jects" weie inserted they could recover irrespective ot In-
ten ational law on estal)lishing that the claimant wa-; a
Britisli subject wheivver domiciled. They had contend. d

40for these positions bolli imder the Convention of is.".;i. .iik]
undertheConviMition of 1S71. '1 hey were consistiMit. Now.
it always follows, and this case makes no exception to the
1 ulf. that you cannot u.se diiilomatic correspondence anlr-
datmg a treaty to construe a treaty any more than yon
can use debutes in congress or parliament to const me
statutes It is the law, doubtless, that the historic comli
tions aie to be taken into consideration by a conit in con-
strniiig a treaty or statuti; to see to what mischief tin'
ert'orl was directi'd. Now the parties having differed a-

50 to tiie construction of these two teinis, the oni> holding
that the ordinary rules of International law would not aji-
ply l)eeause of these e.xceptional terms, and the other|>aii v
holding that the rules of International law must apply ii.i
withstanding the terms, and both terms being ehminat'd
from the pit'sent Cor.vention of iS'.Mi, for the i)urp(isi' of
avoiding any contiovei'sy in regai'd to it, it results that
the rules of International law are to govern here both as li
the class of persons and their status, ijiioadihe Unit d
States and Grea*, Britain, as to their right to recover, and

6o;ilso as to the rule of decision of this Connnission cre.il' d
by that Convention, Here was a controversy as to ilir
two terms, one government constantly contending th it.
exct'ptions were made to the oidinary rules of Interna
tional law by tlie use of these terms, and the other goven
ment contending, successfully imder one convention ami

m't

fi*i|ii

uevs ivsiin, d

(Mr. Dickinson's Closing Aigiirnent.)

uiisiiccessiully nnder anotluM', that the luiea of Interna-
t, iiial law must apply in Conventions of this kind notwith-
Rtincling the teiins. This Convention eliminated hoth
trims. I am coming to the scope and construction of the
(invention generally later on. I am now only discussing
tlic terms of this Convention in resjjectof this (juestion of
iilltgiance and citizenshii).

10 Now. in my learned friend's rejjly, though differing from
11-, as their right is, they liave undertaken to cite what is
not in evidence at all, in the matter of the scope of the
t invention, certain tentative drafts of this Convention,
which were made hy the two nations, the United States
and (ireat Britain, before tliev came to a conclusion, and
sritled upon the final draft of the Convention here under
whuli yon sit. Unless there is amhi^uity, of course such
(halts of the Convention could not hi' used. Hut with-
iiiit introducing them, with the other corresiiondence,

2oan(l material at Victoiia, they now turn up as new
matter in my learned friend's argument in reply
al pages 4 and h, and inasnnich as they give
Hi authority f<ir their drafts and they are not in the
];, I ord, I have asked my learned friend for his authority
aril! they have been kind enough to fuinish luethnir printed
tianscrijtt of the drafts that weie proposed interchange
aliiy l)etween tlie governments in the course of negotia-
tions, from which tliey quote in the Reply brief, and
] now hand your Honors two copies of these transcripts.

30 It seems there were seven before they reached the final
(Iratt. Inasmuch as portions of these drafts are cited by
my learned friends from their standpoint, I have tiie right
to refer to the full drafts upon the copies furnished me.
It appears that in the second draft, as originally presented,
th • old words which caused trouble in ls71 were inserted,
tlius:

" 1 ho lii^jli coutracting parties agree tlmt all claims of Hritish sub-
■ jccts for injuries sustained by tLein in BeLring Sen, &c."

40 .\rticle Til. contained the old words, as to which con-
tioveisy had arisen:

" The said (commissioners shall (letoriiiine each claim referred to
" tlii'iu and fix the amount, if any, to bo paid therein, in accordance
• uitli justice and eipiity."

The third draft by nuniber, provided in Article I.:

■ That all elaimw of Britisli subjects for injuries sustained, and for
" uliich compcusati(m is claimed to be duo from the United States
" inhhr the award of the tribunal of arbitration, shall bo referred to
iH.p Comuiissioners, itc."

50 ■•

fo..

And Article III. of the same draft still retained the
wdiils as to the Commissioners, that their delib"r.\tions
siioiiid bo in accordaiu;e with "justice and equity, " and
tile tindings and decisions of the tribunal of arbitration.

riie lourth draft in numbtu', provided:

" Tl. :i the high contracting parties agree that all ISritisli (dainis for
" injiin' H sustaineil, and for which compensation is claimed to lie due
" fmiii ti ' United States, under tlic award of the tril)unul of aibitra-

ti'M. 1111,1 inchnl.ug those referred to in Appendi.x 'A,' shall be re-

I' ircd to 'WO Coniinissioners, etc."

I lie tlii. 1 article omitted the words "justice and
oijiiity " --8<! you see 'hey go out by intention. The claims
in !lie first draft we find have been changed from
" Ml itish subjects" to "British claiuts," and there is no

SOS

'. I

(Mr. Dickinson's UlosiiiK Aij^nnient.)

liniitiitidii as tn tlie clainis that art' ivt't'ircd. Hccau- ,
yunr Honors will see (Voin Articlt' f., in tlitMtli diafl, tlia' ii
provides tliat ail Rritisli claims for injinics snsfaiiUMl, nn 1
foi' whidi coniiKMisalion is claimed to he due fVoni tin'
United States undei' the award of the tiihnnal of arhiti i
tion at Paris included everything, whether Ix'foic ih,.
Pi\ris trihuiial or not. 'I'his is important. l)ecanse the \i,.
lopeiidix "A""(lid not constitnte a limitation of the jnii-
diction of the Conimissioneis. TIk; lanj:;na}>(' n>e(i is "All
Hrilisli claims for injuries sustained, including tho-e iv
ferred to in Appendi.x " .\," "' and not exi'hidiiit; aiiv
others. So that it was open to any Hriti>h (laimani.
Hut in tliat (haft the words " British subjects" and the
words '"justice and eijuity " disappear.

i\ow we hegin to ^'et more restrictions. Tiie ath di.ilt
provide.-;:

•' 'I'lit' lii>?li contiiu'liiiK imitiis iij^rci' tli:it nil cliiiiiis mi iiccdiiiil ..f

"'-'" injuries sustiiiiKHl l\v persons in wliosc liuliall' (iri'iit Itriliiin is in-

"titli'il to cliiini comix'nsiitioii from tlit- United States, and arising liy

" virtue of tiie treatv aforesaid, tlie award and the tindiugs of tiie^iiill

" tribunal of arbitration slniU iie referre<l. &e."

li-
i

There the Hmitiition is inserted confining the lefeici
to what was in the awanl and before the tribunal of arl
tration, a limitation and oxclusion of any other, with
clear intont to exclude all claims that were not before tl
tribunal of arbitration or in the findings of that li
\rticle III. says:

" I'lie said coinniissiouers sliall detc>rnuue the lial)ilit,v of tlie rnilcil
" Ktati s, if any, in resiiect of eacli ehiiin, aud assess tlie aiuouiit af
" eoinpeiisatiou, if any, to lie paid on aeeount tliereof so far iis tiny
" sliall lie able to agree theroou."

The words "justice and equity" still out.
The next draft, the <!th in number, says:

" .Vll elainis on aueount of injuries sustained l)y jiersous in whoso

" lielialf (treat Britain is entitled to elaiiii eonilieusation from the

" United States, and arising by virtue of the tre.ity aforesaid, tlie

40 " award and tindiugH of the said trihuual of arliitnitiou sliall he re-

" ferred to two oomniissiouerH, iVe."

They have not yet reached anything in the nature nf
" additional clanus." The high contracting parties li.ive
provided by the other diaft that i\o claims should lie re-
ferred to the tribunal except those appearing by the tiiid-
ings of the Paris tiihunal, and by that paragraph your
Honors will readily see that additional cldims, or ,iiiy
other claims would have come in but for the limitation,
50 the award of the Paris tribunal. It did not need any
clause for additional claims if it stood as it did before.
Now the nex*^ draft provides:

" The high eontraetiiig parties agree that all elaims on aecouiit (if
" injuries sustained by persons in whose behalf ( rreat IJritaiii is eu-
' titled to elaim e(mipensati<iu from the United Stales, and arising; liy
•' virtue of the treaty aforesaid, the award and the tindiugs of \\[c >;iiil
" tribunal of arl)itrati<in, us nUfi the ■n/lition'il ilniins speeilied in tln'
" ti/th paragra|ih of the preamble hereto, shall be referred tn tw.i
" coinniissiouers, <te."

60 So that your Honors will see. that by intent, in llie
course of construction of the tinal Convention, the wonls
" British subjects" were omitted; the words "justice :iiiil
eipiity " were omitted, and a restriction was inseiinl
ivintining the claims that conld bi> considered to llin^o
in the award and the findings of the Paris tribunal, in-

Sti!)

lie r»tli iliilt

(Mr. Dickinson's Ciosinp Argument.)

iii .111 of taking in all tho claims; and ti) make this restric-
ti II absolutely certain as to iritiMit that tlicy Hhoiild cx-
r; iilo every other claim than those fouml in tlie award of

II tribunal of arbitration at Paris, when it was con-
cl nlt'd to add some claims not bef'nre the trii)unal of
ai iiitiation. tliev had to insert them by a distiiuit and
s< parate clause providing for specific additional claims

lOaiil naming them. And that aiticle was the one
a'l'i|)ted.

Now my learned friend argues in his brief, that the
w .i(ls " British subjects" were eliminated to give en
lilted powers. We have none of the correspondence
tl it went with the drafts, e.xcfpt the single let-
tn of Secretary fireslian). which is piinted in my
|(. lined friend's brief. That letter says that he
(|i is not care whethei' the " British sid)jects" am in or
ii.|; lint note this in the letter of Secretary (iresham, a

20^1,1(1 lawyer, who had undoubtedly examined tli»M-lauses
uii'ler tlu) prior conventions and found dilTiculties from
th'iiseof the teiin '" British subjects "', 'is to whether or

III I it took tlie case out of International law, we find him
willing that he does not care whelh»'r the li'rm is used or
iiiii in this Convention, provided that there shall b(> no
iiii-imdorstanding that the proceedings under this Con-
vention shall be governed by the rules of International
l,i\\ on this subject.

Ill view of this historv, 1 submit, with absolute confi-

30(liiice. that " British subjects," as an arliitrary designa-
titiii of proper claimants is eliminated, so as to leave no
luiilniversy as to the persons for whom (Jreat Britain
iiiiulit make reclamation, as to their .shiliis qnodd the
I'liilod States and the Uoveinment of Great Biitain;
peiMins for whom by international law Great Britain
can make reclamation, cannot therefore be i)eisons who
iiweil allegiance to the United States by reason of domicil.
nr by reason of original nationality.
While I am on this matter, as 1 mean to refer to these

40(lialis again, I call your Honor.s" attention to the |)osition
(if I lie learned counsel who read what was known as the
|iii liininaiy correspondence between Sir Julian I'aunce-
t'nte and Secretary Gresham, wherein be stated that there
wiie seme claimsomitted from the tiiidingsof the tribunal
(i| arbitration at Paris which were not jiresented there,
and so constituted additional claims, and among them he
nainiN all that were subse(|uently added as additional
claims, and he also names the claim of the " Black Dia-
iiiiuiil " of IHSCi, and the claim of James Gaudiii for dam-

jOaps lor ;iriest. Bear in mind that in the Convention, as
it was already agreed upon tlu! claims snbmitteil to the
tiilHinal at Paris, the claim for every ship and of every
kiml for which any owner or person might make reclama-
timi was set ilown and defined. Then Sir Julian Pauiice-
fnlc IK it ihes Secretary Gresham that there are claims, to
wit, tlie "Henrietta," the "Wanderer." the " Winiii-
iir,l,"tlie "Oscar and llattie," the "Black Diamond"
and I he claim of James (iaudin, be would like to have iu-
sfihd in the present Convention in addition.

^" That was when they were negotiating this Convention,
or piior to the submission of the matter to the Senate.
'ihe name of every one of these ships does appear in the
('(invention which »'(».s submitted to the Senate, and rati-
fied hy the Senate, except the " Black Diamond," which
was (iinitted; and the James Gaudin claim disappears, al-

li ;

870

(Mr. Dickinson's CiiKsing Argtitnoiit. i

thon^li Sii' Julian raiinct-folt' IpkI iisked to liiivi* Imlli
Hcrtcd IIS " ;i(l(liti(iniil claims." Nav, nion', wlim ||

c'.'iniM to tilt' aildilinii:

aims that liati to

spcci

UMiIi'i' tJK' clause uf tlic C'oiivontidii pmvidiiif; f'ui
tional claims, aililcd to tllll^(> siiiimittcd to the tiilimi.i ■{'
ai'liitialioii at Paris, and found in the tiiidin^^sof laii in
tentative diaft "A" and diaCi " I)." tliey inserted i ,.
lo" Black Diamond" as an addilioiial I'laini to ^o a! i;
with the " Hem ietta " and flie"()scar and llattie" ,:]
the "WinniCreir' and the " \Van<lerer." Indiatt'i ."
and the linal draft, vonr Flmiois will find tiie naim - uf
fhi! '• Wanderer" and" the " VViniiificd " and the " lleini.
etta "and the '" ( )scar and Hat tie," hut you will lind tli.it
the " HIack Diamond," which had aiipeared in the di.ilis,
and which Sir.luliaii I'anncefote hail asked to he inseili i|,
is omitted. Therefore the claim of the " lilack DianmiKl,"
which is now uii;ed as an additional claii

n was

20oniitted h.v intent, and the .James (iaiidin clain

I Is

oniittei! and therefore omitted hy intent, as it ;i|i|ieaiv in
the nej;otiatioiis hni dis-uiipears in the Convention. Ills
not so vtMy iin|K)itant in the matter of amount, Imi it
sustains the contention of the United States, and llir
counsel of the I'nited States are as an.xions as my leai ind
friends can he that when your Honoi's make tin; awanl

this case, it shall not

111

found that the cotninissiniii'ir

have in any matter e.\ceed(>d their powers. 'J'liese chiims

are not in the Convention hetweeii Her Majesty, the (,iiii en

30i)f (treat liritain and the President of the United St.iii

and

coverinir

ditional claims

The Convention iiiidi

which your Hoiioi's sit, is the Convention which was pit-
sented and understood, witii all th(> coiresjMindence and
the drafts of the Convention hefore its trainers. Tlu' Cmi-
vention must be the one that was latificnl hy the Seii.itcdf
the United States, as shown liy the last clause of the Cdii
vention, and as always insisted ui)on as essential. It will
not do, it seems to me, to add anything on, or to in any way
change the Convention, in view of the experience staring;
40 us in the face, that in icpeated instances where there li.is
been any departure from the careful deliniitation ,iiul
definitive statements of these things that are to go heluie
a tribunal of arbitration, the awards liave been set ■.\>uU'.
should the tribunal exceed its jurisdiction. Katliei tiiaii
such a result, as Mr. Webster once said of the iiat

lolUll

debt. 1 would rather pay this claim myself.

Mr. Lansing: — It would not be ver\' expensive.

Mr. Dickinson: — I do not think it would be ver
pensive. Now, coming back to the questions. The rule
50 of International law. which 1 have taken a very brief sur-
vey of, is: First, that no government can make recliuiia-
tion in behalf of a foreign citizen domiciled within its
borders, and unnaturalized, against the nation of his
original allegiance, especially for acts in contravention or
in denial of the asseition of the sovereignty of bis own
country. Whether that assertion of sovereignty was iii;lit
and eiticient is immaterial: the citizen is noi to he iln-
judge. Secondly, the subject of a foreign power ilomi-

•iled in the United States- having his settled civil

ir^ai

II'

^jodomicil there, and bound by an allegiance to il
sovereignty under which he lives, until he moves uiii or
turns liis face t(t his country of original allegiami'—
cannot invoke tlie protection of the country of his oiiLiiiial
allegiance against the countiy of bis domicil, unle-s uul
except he can show that the country of domicil ii.i> in

H71

(Mr. Dickiiisoii's Closing Aigumeiit.)

: line inanntd' (liHcriininjitod against liiin bocaiise of his
lienaKO - '"i c«>n(liti((M not in this «;aso. He, doniicilod
i'l this (uiuntry, owos an allc^ianct' to tho country of
iii.s doinicil in ail matters involved in the assertion of
llie sovoreigiity of the coiintiy of liis doinicil; he owes
I liedieiice to that assertion, and he cannot uet up ids
j idgenent,— even agreeing as ids jiidgnieiit may with

iqIIio claim advanced hy the couidry of his origiiiid alltv
;.iance-and then inakt* reclamation against thcs country
|fi which he owes aiiegianct^ so long as lie remains witiiin
Its holders, for damages sufTeied in denying the sovor-
( ignty of his doinicil. Those matters are vtMy exha'ist-
ively discussed under previous conventions liy ahlo comi-
^- ■!, and the rule of International law is undoubted and
i~ in fact conceded hy British and American authorities
alike, ns I liavt^ stated it, and distinctions were never
iiiuie, except as they turned on terms used which are

,,,( liiiiiiiated from this Convention.

I was taken somewhat bysnrpri.se by your Honor's sug-
urstion, that possibly counsel on the other side had aban-
il.iiied their position, which they argued at such length in
their original argument and in their oral argument at
liiiiifax, and that they now rest on the doctrine of the
" I -a Ninfa " case. I wish they would. Hut I find, by refer-
ence to my notes of tlifdr oral argnnient here, that they not
only maintain the doctrine stated at length in their orig-
inal brief, but they jircj.sented for tbe consideration of the

"^" High Commission and for our reply, numerous supple-
iiiriitary alleged authorities to the effect that (ireat
Hritain can maintain this position which we are contend-
ing against. And inasmuch as they, in their written ar-
gument and in their oral argument at Halifax, have occa-
siniied me much labor in following them, and much con-
scientious lesearcb, which I would have preferred not to
have undertaken, I have gone into thisqnestion very fidly
in order that the positions of the United States upon the
legal aspects of allegiance and nationality in reply, may

40be fully understood by the Commissioners, and by any
(Hie who reads the British argument, botb printed and
eial, when these and our reply, both written and oral,
shall have passed into the history of International juridical
(■iiiitrover.sy.

The learned (;ounsel for Great Britain, in their oral
argument, fully maintain all the positions taken by them
ill their written brief. " But," th.ey say. " here is the do-
(isiuu of a United States Court in the "La Ninfa' case,

;owiiich renders it still more certain that Great Britain is
entitled to make reclamation, because it is now settled,"
tiicy say, " by the decision of the C*)mt of Ai)peals for
the Xintli Federal Circuit, that tbe United States had no
jurisdiction even over theirown citizens on the high seas,"
ami they apfdy that to the Bering Sea. (I will come to
a full discussion of the "La Ninfa" case by and by.)
Tiiat, your Honors, is the attitude counsel for (ireat Britain
(i((ii|)y. Of course if I should ask them now whether tliey
aliaiidon tbe position they have elaborately set out, in

6otlieir brief, and stand only on the ground they have taken
on the "La Ninfa" case they would make an answer
\viii( li \Yould at once justify me in the line of argument
at length that I am pursuing. But I shall make but a
liiief reference now to the " IjH Ninfa " case in passing.
Tliis question of allegiance and nationality is so far

^^^.

^>,

^■"^^Ji^.

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23 WCST ^V'N STRHT

WnSTM.N.Y. MStO

(716) S73-4503

'4^

S72

(Mr. Dickinson "8 Closing Argument.^

away, and beyond, and above the question of lliw \,i ,\
jurisdiction of the Amorictin Courts, that I have \\..\
thought it of 8o much importance to spend time ii|ioii tl"
latter. If it should be held (and we will tnke it iis \f
the Supreme Court of the Unittd States, as a l)iii(lii'n
authority, had so decided instead of an internudinir-
Court) (hat the United States Courts had no jurisdictinn

loovcr llieir own citizens in Bering Sea outside of the tlu" i
mile limit, then, is it a legitimate and logical aigntmiii
that (ireat Britain can make reclamation for a citi/i n
of the United States? Suppose it had turned (nit. |..i
instance, in the hearing in Victoria, in the light of the " I ,i
Ninfa" ca.'e, that the claimant Charles Spring as a niatlcr
of fact— and your Honors were out there to invt^sti^Mic
matters of fact— suppose it turned out that Charles Sin in;;
was a citizen (if the United States born here and doiin-
ciled here. We refer to the schedule submitted at I'.iiis

2oand the findings of facts, and find that he was one of tlif
persons making a claim, for whom Great Britain makes
reclamation. Would it then bo any answer to this i\t'-
fens<; of ttie United States to say: The Supreme Court of
the United States has held that their couits have no jiiiis
diction to take Charles Spring's property in Berinji Sc a
outsiiie uf the three-mile limit? Yonr Honors would iii>t
consider for one moment that Charles Spring could rccnvii
against the United States Government in this Intiiiia
tional Court, invoking the protection of Great Britain.

30 Take the " Washington" case under the Claims Coiivtn
tion of ls.^8. (treat Britain had a law forbidding ccriain
things in fishing in British waters; (ireat Britain linn
claimed exclusive jurisdiction over the Bay of Kundy,
which is 4.") miles by 7.5 miles of sea. The " V*'a8hingtnn.''
under a certain claim of privileges as an American vessil,
entered the Bay of i'undy and proceeded to fish in contra
vention of this sovereignty claim of Great Brit.nin. slu'
was seized by a Brilish cruiser, condennied by a Biili>li
Court, and jurisdiction asserted on the ground of the ex

40 elusive jurisdiction of Great Britain in the Bay of Fiimly
throughout the length and l)readth of those waters.

The Tribunal held, and decided, that the Bay of Kumly
was not a closed sea— it is immaterial on wiiat gronnd
they put it. They held that (ireat Britain did not liavi-
exclusive jurisdiction in the Bay of Fundy, and that tiic
Bay of Fundy was the high seas, and they h) awardrd
They did not, as my learned fiiends contend heie, cdii
sider the intention in seizing and destroying this vcssi I
and her fishing trip, but they awarded tiie claimant tln'

50 value of ins ship which liad been taken from liiin;
awarded him the damages which were the legitimate and
natural consequences of the act of seizure. In passiiifi.
we may say that it was the intention of Great Britain at
that time, while asserting her sovereignty in the Hay nl
Fundy, to prevent the sch<»oner Washington from lisliinj;
in the Bay (»f Fundy. That was what (ireat Britain
seized the schooner for, and iiiat was her intention in
seizing her. But no one ever dreamed that because that
was her intention, when she made the seizure under a

6oclaim of jurisdiction in good faith, although dis|)iited.
that it would affect the question of damages. Howevei .
passing that (|uestion, taking that for an illustratioii
suppose, instead of ."n American citizen, it had been a
British civil or political subject, owing temporary or |»ei
manent allegiance to Great Britain, who had Wn tin

«7H

(Mr. Dickiiisun's Clusing Aiguinoiit.)

owner of the " Washington " in the Ba^' of Fundy (the
rlaini of Great Britain Iteing to exclusive jurisdiction),
md this suhject, in contravention of her Majesty's claim
uf soven-ignly over these water ,, i»ad done t'nis tiling for
which he and the ship owned hy him were seized. It
liaving been decided by an international arhitiation— to
wit. the Commission of 1H.53, which had abundant power

K to do so— that Great Britain had not, as she claimed,
ixclusive jurisdiction of the Bay of Fundy, now sup-
pose this subject wlio owned the ''Washington"
and lost her, yes, and under the American flag,
had, under the auspices and protection of the Ameri-
(.111 Government, gone before Commissioners on
claims; how much of a standing would he have had in
the court? '' What," they would say, "since the seizure
tlie British rarlianient itself, or the British Privy Council
M'lf, in accordance with a decision of a Tieaiy Court.

30 lias decided that Grent Britain was wrong, and that it
dill not lipve jurisdiction to seize even a Brilishowned
ship upon tne high seas in the Bay of Fundy." Would
tliat make the case of the American Government any
stronger to recover for a British subject damages sufTered
while doing an act in derogation of (Jreat Britain's as-
sertion of sovereignty? Is the citizen to decide? Take the
ca.se of any territory in dispute. The question may come
lip at any time in reff ence to the Alaskan border, as it
did come up .11 the case of the Island of Sau Juan. Great

3'.) Britain may claim jurisdiction over land. We will say
that the question is one of jurisdiction over land instead
of over sea. Bear in mind the distinction, however. In
this case it was the sea, which I will come to discuss when
I take up the "La Niufa" case in another connection.
< »ur Government claimed exclusive jurisdiction over the
Mt'Hng Sea, and Great Britain did not claim exclusive
jurisdiction as against us, but she claimed only common
1 iglit. But take the case of land in dispute. In the ex-
••' utive authority of the Government is the power reposed

4 tn assert the sovereignty of the United States in interna-
tional matters, and with that assertion the judiciary has
nothing to do. Suppose that we maintain our title and
jurisdiction to that land. Great Britain, (m the other
liaud, maintains that Her Majesty the lj|ueen, in her
lapacity and character of sovereign, owns it. An Ameri-
can citizen goes upon the land and gets some rights from
(ii-cat Britain. He takes the position that his own country
i> wrong, and he maintains the British side of the case,
and in so maintaining he gets damaged in some way at

5" the hands of our Government. Well, the (Mse goes to
arbitration as to who does own the land; and sunpose it is
dicided by arbitratitm that the land was actually owned
l> (Jreat Britain in accordance with the ctmtention of the
.\iuerican citizen, and that boundary disjMite is thus set-
lliil. Is the American who stood up against the a.ssertion
lit the sovereignty of the United States and suffered from
it. t(» get damages against the United States under (Jreat
liiitain's protection? If he is a British subject, living
there, possibly; if an American citizen living anywhere,

'x)||,.v,.|.; if a British subject remaining aud continuing d-.u'-
in;; his arts, and subsequently, legally domiciletl in con-
" dcd American territory, never.

III

S74

.ff:

.t;

(Mr. Dii-kinson's Closing Argumi'iit. )

The Commissioner on the p.-iit of the United States: -
Mr. Dickinson, in a c.ise of that Koit i suppose yon will
admit that Great Britain might protect tiiat Aint'iicui
citizen on this soil which proved to he hers, even to ilm
extent of war, could she not? Now. this aihitratimi Is
supposed to take the place of war, and why do they imt
go on parallel lines?

lo Mr. Dickinson:— It does not go on paiallel lines, hecuis,.
war involves (piestions of national dignity, and a cl.iiins
convention never doi's; hut we will jufpose that instead uf
referring to arhitration and 1 1 will take your Ihinoi's
analogy) we had snhmitted to the arhitramentof war; and
suppose the .American citizen upon that territory takes up
arms under this arbitrament of war against his I'diiii-
try, he would he shot or hanged as a traitor, would ho
not?
The Connnissioner on the part of the United States: -

20 This case does not involve his taking up arms.

Mr. Dickinson:— But I carry it to its logical coik hi
sion, and I submit that, instead of going to war we j^o in
friendly arbitration on private claims, can (ireat Hrit lin
protect the An)ericau citizen until he become her ciii/cii
as against the United States?

The Connnissioner on the part of the United States: !
do not think you (piite iniderstand me.

Mr. Dickinson:- I n)ean for acts committed pendin;; a
settlement of the (piestion. If (ireat Britain has uiilini-

3oited and undoubted and exclusive jurisdiction where tins
American citizen becomes domiciled, she can piotect that
citizen, protect his jHirson absolutely and entirely williin
her own jurisdiction, and protect him by making reciani-
ation for his injuries before a claims convention aj;;\ Inst
every other nation in the world except the nation of ids
original allegiance in the case of his defying the sovi r-
eigntyof the nation of liis original allegiance; that is tin-
exception.

The Commissioner on the part of the United States: 1

4odo not think you quite understand my proposition; siip
pose a lot of American citizens settled in New Hnms
wiek, and the United States of America insisted on gi'ln^
over there, arresting them, and taking them into Maine.
and upon a remonstrance by (ireat Britain, still insisti d
on doing it, that w»»uld, 1 suppose, be what the inter-
national writers would say would lay a just cause lor
war.

Mr. Dickinson: — That is an act of war, your Honor, nr
an act involving national honor and dignity.

50 The Commissioner on the part of the United States. -
Not necessarily an act of war.

Mr. Dickinson :— To invade the territory of anollur
sovereignty?

The Commissioner on the part of the United States: -
Not necessarily, but no matter about that; only Ameiicm
citizens are concerned. The international writers wonid
undoubtedly say that that would afford Great Britain a ju-t
cause of war, because her teriitory had been invadi d.
Now, instead of submitting the question to the arliitra-

6oment of war, she submits it to the arbitrament ol a
commission. Why is not the question exactly the same
before the comnjission? When you put in the element of
American citizens taking up arms, you put iuan elein> iit
which I had not supposed.

,.i •■,■, I

t.)

ted Stato>< -
ose you will
at Ain»'ii(Mii
i, even tn liio
aibitratimi is
<lo tliev ii.it

ines. bec.iiHt!
and a rliuins
lat ii)ste;iil iif
•our IluiKu's
tof war; .iiiil
lory takes ii|i
xat Ills ('(iiiii
tor, woulii liu

ted States: -

gical colli III

war we ^o Id

treat Hril lin

le her ciii/cii

ted Stat.

ed j>en<liii;; a
n has iiiiliin-
M\ where this
1 piotect tliat
itirely williii)
»kilig reilain-
■iition against
nation of liis
ng tlie sovi I-
:>; that is the

ed States: 1
josition; sup

New Hriiiis
sted on p'in^'
into Maine,

still insisted
at the iiitir-
list cause ler

)ur Honor, i>v

ted States,

r of anothii

ted States:-
nly American
tvriters woiiiil

Britain a ju-l
leen invadiil.
the arliiln
;ranient ol a

ctly the same

le elenieiil ef
ill an element

S7/5

(Mr. Dickinson's Closing Argument.)

Mr. Dickinson:— That is your Honor's own illustration;
Mislead of the arhitrameiit of war we go to the abitra-
iiient of peace, a commission on private claims, and your
Honor's illustration misses the chief point here when it
, iiiits to premise that the invasion «)f New Brunswick is
not made under the assertion of a claim to the territory
-iipported hy all the sovereign authority of the govern-

10 nient.

The Commissioner on the part of the United States:—
Now why is not the <piestion to be solved in one case ex-
actly the same as in the other?

Mr. Dickinson:— Because, in the first place, that is an
Mivasion of the soverei>:nty of tSreat Britain, in one case,
;ind that is a national question. Would it not he a wanton
aet on the part<>f the United States to invade New Bruns-
wick without any national a-iu-rtiou of jurisdiction — with-
out any dispute as to territory^ It makes all the differ-

2oeiice in the world. Take, for instance, the McLeod case
ill 1!H87. (iieat Britain came over into the United States
and took the Caroline, or McLeod came ovor into the
United States by Her Majesty's authority and took the
Caroline— took a ship flying the American flag-Great
Britain asserting the right to enter the United States for
self- protect ion against an armed insuirection and its
aiders and abettors t»n the American side. Now it at
unco became a question between the nations -this in-
vasion of the territory— and it turned out that when

3o(ireat Britain asserted— bear in mind the analogy is por-
t'ect to the case your honor puts, — and when Mcl^ieod came
and took the Caroline by the authority of Great Britain,
liis act became the act of the ,sovereignty of (Jreat Britain,
and McLeod, the individual, could not be touched because
it was the act of the sovereign, and it immediately led to
the adjiistnie'it of the matter between the sovereignties
in an international way. But McLeod wj^"^. im|)risone<l in
the United States for that act, and in his case put before
the Commission of 18.~)8, on reclamation against the

4oriiited States by Great Britain for McLeo«l, for damages
for bis arrest an«l imprisonment, the answer was that, be-
cause it was a <'onflict between the sovereignties, that in-
vasion of the territory of one nation, it was not a case
where a reclamation could l)e made of one government
against the otiier for private claims. That is one complete
answer to your Honor's proposition.

There was a treaty providing for the reclamation of
[leisons under Great Britain's protection in IH.MJ like this
one. Suppose as in the case put by your Honor there was

josiiih an invasion of Great Britain l»y the United States.
K it a (ippo-able case that a convention for reclamation
liv persons would be entered into? The invasion of the
dij^iiity of the nation would be asserted by Great Britain

at once in that case

The Commissioner on the part of the United States: —
Mr. Beicjue puts it that this was an invasion of the terri-
toi V of Great Britain.

Mr. Dickinson: — Not at all; he could not rightly put it
in that way because she did not claim exclusive jurisdic-

^10 1 ion here.

The Commissioner on the part of tlie United States:— 1
mean that seizing the vessel was the same in Knglish law
as invading the soil.

Mr. Dickinson:— If it is a British vessel, yes; but this is
I" i^ging the question.

'*»!

s-t\

<v
tun
■al

(Mr. Dickinson's Closing Argimieiit.t

The C'omniissioiior on the part of tlie United Statt-
Ho argues tiiat it is; hut whether it is or not is an<it>
matter.

Mr. I)iekinson:-Can we take an American owmd \
sel on the liigh seas, is the <|nestion.

The Commissioner on the part of the United Stafc-
d'd not intend to involve yon in that question.

lo Mr. Dickinson:— Very well; to that (|uestion your Mi ii
will come. The invasion of undispnted British soil ni<
taking from British .soil and the reparat ion heconies ii.it i(
at once. There are plenty of cases in the hooks huppm t inf;
this contention. The matter as stated in the Imoks ut i||c
rights of Ihe citizen, he lie British oj American, Itecomc it
once snbordinatH to the great national question of aUii mi. ij
dignity and invasion of territory. The nations settjf ii;
they do Udt refer it to conventions to deci«le what pei~..;,s
may get in money. Theie was never a case known ..f

20 the reference of suili a matter as that to a commissinn i>ii
claims between any nations. It is settled at once— repai;i.
tion. apology, payment— anything in vi(dati<in of iln-
rights of nations, like an invasion of territory, is setll.il
at once between them and the rights of individuals ari ,it
once subordinated. When it comes to that question, wl'
shall show that even if the decision of a tribunal of inii|.
national arbitrators could have a retroactive effect .uid
make it lawful for a United 8tates citizen to have donr a
thing which was unlawful when done, that the nation.ilitv

30 of a vessel on the high seas follows ownership.

The Commissioner on the part of the United States: I
understand your proposition there. I merely intendfij t.i
state it hypothetically from Mr. Beiqiie's position, tli.it
was all.

Mr. Dickinson:— We are coming to this again -ihr
right of protecting an American citizen for violatin;;-
denying- the jurisdiction of his sovereignty, asserted liy
its "constitutional authority as the sovereign powci t.i
assert sovereignty. It is no wanton act here as in

40 the case of an invasion, because in the treaty of I'aiis
your Honors will find recognized a dispute in good fnitli
on both sides, and it was made interchangeably; that if
it should turn out on the investigation to bo held that tin.'
United States was right — and Great Britain always ((iii-
ceded the color of right thioughout— always concediij
the good faith of the United Slates— if the arbitiatois
should decide the other way. Great Britain should jtay.
They t^tood on equal footing as to their respective claims
of jurisdiction and the results of the arbitration; liotli

50 admitted that the decision might be the other way. ami
that Great Britain might bo held responsible in dama;;is
for the invasion of American rights; neither was inoiu
mder color of right than the other; both conceded tliit
" You may Iw right. Great Britain," said the United Stati>
und (Jreat Britain throughout .said, " Vou may be right,
and if you are right we will pay." It was not a casi' of
wanton invasion at all; they were contending as to wliii li
was right, just as two parties in an ejectment suit may
contend. Let me illustrate, your Honor; I am getting a

6olittl ! in advance from your Honor's suggestion, but I un
glad to do it.

The Commissioner on the part of the United States; it
was only a question brought out by your illustration, Mr
Dickinson.
Mr. Dickinson:- I quite imderstand. I prefer to sp'' ik

877

(Mr DickiiisoirK C'lusiiig Ai^unient.)

io what may be in your Honni's mind as we ^o along. I
-hall give your Honors an illustration in the course of the
.irf;nment of the precise point you make in replying to Mr.
Ilcique's position. I read on llie question of douht, and as
litaring somewhat uj^n our friend's position as to the ef-
fect of the British H.ig, the following from the Maiquis of
S;di>l)ury to Sir Julian I'auncefote. iu the Appendix to
10 • use of Great Britain, American Hepnnt, volume *>, page

" 1 have received your diHpatch of the 24th ultimo."

This is dated August 1'2. ls!»|, and they are still negoti-
.iiing the .Arbitration Treaty signed in February. isi>2:

• The modifli-ation of the 7th Article of the Arbitration AKrecment
■' iiropoHeil by the President of the United HtateH, and ooninninieated
■ 111 Mr. Wharton's note to yoii of the 2'M ultimo. eouiaiuH the follow-
•' in(t words;
20 " The (Jovernmeut of the United States having presented on its own
" liehnlf, as well as of the lessees of the privilege of takiuK seals on the
" Priliyloft' Islands, claims for ooniiiensation by the reason of the kill-
" inn of seals in Uehring's Sea l>y i>ersons aetitg under the protection
■■ iif the British flag, the Arbitrators shall consider and decide u|ion
'• MU'h claims."

s again -tlic

These words are quoted from the then proposed draft,
as your Honors will see, of the treaty providing for the
Viiv Seal Arbitration at I'aris; and it is proposed to fix the
li.iliilily of Great Britain to the United States in case the
joarliitration should decide the other way, that is, in favor
(if the American contention. I proceed:

" These words involve the doctrine that Her Majesty's Government
•• arc liable to make g<pod losses resulting from the wrongful action of
" piTNous sailing outside their jurisdiction under the British flag.

• It would Vie impoNKible for Her Mojesty's Oovernmeut to accept
'• •<iicli a doctrine even at the bands of an Arbitrator. Nor can they
" admit that, bv hav ing asserted di]ilomaticallv the right of any |)(>rson8
"tojii that which an Arbitrator sub»e(|uently decides sucli persona
■ ciuiiiot do, they are made liable in damages.'
• This 7th Article, which deals with the question of compensation,
i- tlierefore likely to give occasion for lengthy negotiations, and the
i(iiestion arises whether it would not be b»>tter, if the Oovernmeut of
tlic I'nited States will agree to such a course, to sign the other sis
articles as to which an agreement has been arrived at. 'iliI to pro-
cc'i'd with the arbitration, leaving the 7th Article to be tri i. d -epa-
latelv."

40,

50,

Sir Julian Pauncefote to Mr. Wharton, page S4!», same
Vdliime, discussing this same matter:

• Mv Government are unable to accept the form of clause proposed
" I'v t lie President, because it appears to them, taken in connection
with your note of the 23rd ultimo, to imply an adniissiou on their
part of a doctrine respecting the liability of Oovernmeuts for the acts
nf their nationals or other persons sailing under their flagon the high
^I'as, which is not warranted by international law, and to which tiiey
cannot subscrilje."

Page 880, Sir Julian Pauncefote to Mr. Wharton:

" It implies an admission of a doctrine respecting the liability of
' (i'lvernments for the acts of their nationals, or other iiersous sailing
' under their flag, on the high seas, for which there is no warrant in
' I lie law of nations. Thus it contains the following words:

' • ' The Oovernment of the United States having presented on its own
' Ix'linlf, as well as of the lessees of the privilege of taking seal' on
' I lie Pribylofflslands, claims for compensation by reason of the lill-
' inj; of seals in Behring's Sea l)y persons acting under the protection
' "i the British flag, the Arbitrators shall consider and decide upon
' sn. h claims,' &c.— quoting from the clause.

" '['heso words involve the proposition that Her Majesty's Oovern-
' iiii'iit are liable to make good losses resulting from the wrongful

1 '

srs

!i!

(Mr. Dickinson's Closing; ArKiiiii* lit. i

'* aotion of ixTHonn nailiug nutHidr thoir jurimlirlinn uii<li>r tin- Itnii ii
" flax.

" Hor MojpHly'M Oororniiioiit coulil not Bcocpt hiicIi h ilnctrjij...
.• « • » 'f|„, a|i|i|i)<ati<)n <if iiitornatioiiul luw to tlio><<- fiu'tH wnn'.l
" be left n« a nmltcr for fiirtlior uPKotintioii iiftt-r tln\v hIiuM linvi' 1,. ,,
" UHfortiiiucil, and mixlit l><> Hul)H<>i|n<>ntlv rcffrri'il to the Arliitrui, ,
" in wliole or in part, if the two KovvrumvutH hIic iilil axrvc- to iln s,,

■?y,:,'' ■

^^w

to On Miiv 7. \x\^-2, du' n«>^iiti!itions ( iiliiiinati'*] in mii
Hcatioii oC tlic trciity, and I lend this not fur the i in
poHe of construing, hut as an aiitlioiitativc Ktalmn ni
of n iiid|iosition of iiitfiiiational law. Voiii- ]|nn< is
will licai' ill mind tli'it tliis coii-tHpondriK-c was titiir
the t-ei/.nios. and hear in mind, too, that on the i|ii> ■
tioii of tia^, if it whcit'held iiiuhT the arhitration tliii
tilt' United Slatis had e.xcliisive jiiiisdiclion on the ph |i
erty lijjht, or otherwise in l^eriiin Sea, any vessel IImh^
the Htitish tla^<(iiild liave heeii taken, and if it lesi^lMl,

20('oiild he (oikU'Iiiih (I foi resisting; and the<|neslion Iln ic
fore ,iro>-e, to coiiclnde where (treat Hiitaiii was coihiiin
out in case the decision oi tlu^ arhitiators was the dtlir
way, if tlie doctrine was maintained that the (lag over
the ship was a conclusive guarantee of its nationality I r
which the nation would he respoiisihle.

The Commissioner on the part of tlie Tnited States; I
did not intend to hasten you into adiscn.ssion of tli.it ijiir^
tioii, Mr. Dickinson. I was simply following out ymn il
lustration of a controversy on laiui; hut 1 would he viiy

30Klad to hear you through on tliis, of course.

Mr Dickinson:- Of course it is uow contended, n<.| -i,
vigorously in the oral nrgiiinent as in the origin.d |iriiili il
argument, hut still contended with gic-at vigor on tjic
question of damages, that the act of Uie United St.ilcs
was wanton, willful and without color of right, and ll at
the delay from lss«» until the present time, for ••elcv.n
long years " has heen owing to the position of the liiiltd
States in not i-esponding in damages earher; and, rurtlii r.
that the United States intended to prevent the sc-diiij; <>(

4oBiitisii fielders, as well as its own, in Bering Sea; and
you see that here too we come upon the ({uestion of intiii
lion as urged hy Her Majesty's counsel as entitling tiicm
to the lule of aggravattnl, vindictive cr punitory (Iain-
ages, turning on the c|Uestioii of good c r evil inteiilion.
Here is their own statement in 1S!»2 after all the seiznns
involved in this case had heen made. T.'iey negoti.ittil
and came to this c;onolusion, and I am roac'ing frcnii tiit>
treaty ratificnl May 7, iMi'i, generally called the Treaty of
Washington, of FVhruary tii», lK<.»ii. resulting in the award

50 and tindings of fact which are developed in this case:

" Her MajcHty, tlio (jneen of tlio United Kinf(dom of (Irwit Hiiiiiiii
"and Irt'laud, and tlie United Htates of America, l>eiuK dcHiroii^ tu
" provide for au aniienlile Hettlenient of tlie queHtiouH wliicii liuvo
•'arisen l>etween tlieir reHpeetive KovernnieutH vonrerniiiM: tlir juii''-
" dictlonal ritilitH of tlie United States in tlie waters of Heln-iii« Siu,
" and ooneeruin^ also tlieprc>servationof the fur seal in, or lialiitiinllv
•' resortiun to tlie said sea, and tlio ri^litH of the eitizeus and sulijr.ls
•' of either country as re^fards the taking of fur seal in, or liiiliiliiall.v
" resorting to the said waters, have resolved to Hithniit to arliiliiiti'iii

the i|ue8tion8 involved."

The Commissioner on the |)art of the United Static: -
Had this reference which you have there given the original
draft, the Article 1'.

Mr. Dickinson: — Y'ea, I read it. Now, this claii-i'.
Article 8, was suhstituted for it:

879

i^ t

(U>r tlif Krii; 'i

(Mr. Dickinson's CloHJii); Ai>;iinit>iit.)

■ The IiIrIi rout rafting iiitrtirH ImviiiK fouiitl IIh'iiiik'Ivoh tinnMc to
'• iigrw) upon B rcftirciH'o wliicli nlmll iii<-liiilftli)- i|iit<Hti<iii «////-• Imliiliiii

'• ,'f II I'll for //('• iiiJiifiiH iillriiiil III linri' hfin HUslnimil Ai/ Ihr nllnf. III' III/ ilD
"iliiiiii; ill I'ouiirrtioii with tli** cliiiiiiH proHoiitpil iiinl iiritfti )i,v it ;
" Mini lH>iii)(H<)licit<>uH tliitt iliin niilmri/iiiiiii' i/iiin>iiiii hIiiiiiIiI not iiiti'rrupt
■• .ir longer ilvlsy th*' HuliniiHHion iiml iti'tcrininntinn of tlx' niiiimiupH-
" liouM, do iiffn'o that t-ithiT iiiiiv Hiihniit to tho urliitnitorH nnv (iiien-
" iiiin of fai-t involvt'il in Niiiil chtiniH, ami iiHk for ii tIntlinK liicrcon,

" hi f/lft'Ktillll I*/" f/tl' liilfiifltl/ Itf rithll' iJliri-I'llHlriif lljHill t/li flllU f'llHIIlt hi hti
Hlthjlt'l lif/iirthri' tti'i/filiiltiliii,**

That Wii8 tlu' position of llio two novcriinK'nts wiicn
lli.'V fntt'ii'd npon tin* iirltitnition, tliiit it was as likely,
ill th»'«'(juai position in whicli they stood, that an aihitra-
li'iii as a coiii't lietween disputtnits would lind one way as
till' other, and one nii^lit have to pay dania^^es, as now

II ther has to pay. in aaordan'e with the jnd);inent.

And tht> delay in assessing any anioinit nn which payment
(i.iild he niadeoccuned thi-ou(;h the faiinre of the nation-,
,iiid especially (iieat Hritain. to agree njion the clauses to

-"Miiiniit us totiie matter in the treaty involving immediate
ilii'ision as to the amount of damages (ireat Mritain might
li.ive to pay. So thev waived the (piestion then. My e.\-
]ni -w terms th«'y saiJ, we will not take this up. It is a
iiii'i-e subordinate ipiestion. And in accordance with
tlif invitation of (Ireat Britain, as shown hy the cor-
II •'piindence. the matter of liahility and payment earlier
to follow the finding of tin* arhitration was left nut. And
tli.it is the reason of the delay con)plaincd of hy counsel.
Vour Honors will see that it was not considered an in-

^^viision— noi a question of wantonness and intent to do in-
jiiiy. F>en the (juoslion of liahility at all, was put aside
until the jjreat disnnt > as to whether the I'nited States
h.id exclusive jiiristliction, or jurisdiction in common with
(iirat Britain and other nations, should first he decided.
It is like ^he illustration that I have not carried out hut
li.ive refe> id to once or twice. Suppose an ordinary ac-
• jiiii of ejectment; around this might he hung all the
nilis of damage incident to this hearing. ( )ne man claims
)'\<lusive title and another man claims a right in common

"^^ with him to a piece of land. Ejectment is brought against
the party in possession, who has excluded his tenant in
(iiiiiinon. He has excluded his tenant in common who,
wliiii he comes upon the pro|»erty in defiance of the claim
(if title of thoi)arty in possession, is thrown off, and he is
pu'vented from obtaining profits, when he is thrown off;
till' " intention," of course, is to keep him from that prop-
erly and to prevent his gaining from it, and he goes on
ami prosecutes his jiction of ejectment, and when it turns
(Mil, on a fair controversy--on examination of the muni-

"'^iiii'iits of title— that the parly in possession ought to have
iidiiiilted this man t«» a connnon right with him in the
jiin|ierty, the man in possession who has intentionally
Ki pt his tenant in connnon out, is not held as a wanton
tiopasser, but he is held to respond for the proportion of
till' lair rental value of the property of which he has de-
prived his tenant in common, who finally prevails. But
il ilieyenter into arbitration, and say, Well, we do not
kiiowhow this is, we will have the (piestion of title de-

^(•i<l((l, there can be still less question (jf evil intent or
\\ iiitunness.

My friends need not have struggled to show evidence of
th • intent of the United States; every one is held to in-
ti ml the ordinary and necessary consequences of his own
acts. Great Britain intended to prevent the "Washington"

I ;•

II'

KM»

I ).

(Mr. DickiiiHon's ClosiiiK AiKiinuMit.)

from opfratioiiH in tlio May of Finidy, iiiul tlic Tin ,,\
Stuti's iiit(>ii)l(><l to imu-i'iit tlif'ir ritiz«'ns, and ev<'iv niif
else, without diHciiniination. rroni stvilin^ in tli<> lii'i:ii^
Hea. when she niado the sL'i/,ur«'K in Reiin^ Sea. ^ ,iii
n»'rd not an into tho coin'spondonce to show tli»> int. nt.
But what kind of intLMit^ Has it any of th«> (>vil flcmt ntn
in it which shonhi h«*conHidi'i(>d in the matter of (lain;i;/i's>

lo And \H it |)ossilil(> tliat I'liiler Huch (.ircnmHtanc.'H it (mu lie
put on a hnel with an invasion of territory, like that ^u^r.
gestedil An invasion of New Hrnnswick? In the iiuuirr
of dispute <ana citizen of the United Stales lake ilic
^roinid that I)i8 government is wrong - against the cuiiii
tut(>d authorities— and can he chiim (himages het'dh a
trihunal of international arhitraiion, pa.ssing U|miii iId'
title -can he claim damages against tiie United SlaWs
thiough a foieign potentate or State, if the trihunal df
arhitration on the great ditliculty hetween nations >|ial|

30 finally hold that the other .ountry is riglit on such a ijih s
tion? Impossible.

Hesuming now the subject of allegiance, Mr. Hei(|ii...
in his learned argunuMit, asked me to reconcile the>i' i wu
.statements, one at i)age TiIJ and the other at page Itinruiir
argument. At page l(> I stated the following, and I lie-
lieve counsel for Her Majesty find no ilifticulty in timlin;;

30,

40..

" Thf right of tbe nation to protoc-t a douiiciloil porHou, even in liini'
of war, nmcli It'HM in tinio of iiciicc, Iioh novor bi'cn UHHcrtt'il in I'avcir
of HUfli )i<>rHou AH aKHiUHt IiIh nation of citiMMiHlii]) for tlic cdnNr-
(|uen('<'H of liiH violation of tlio law of liiH rouutry in tinut of iiincr.
or liix ]ioHitivi> violation of Iuh alh'Kianct' in time of war.
" Tlic maintonanco of tlie riglitH of domicilo in t)i<< liiHtory of Intir-
uational Law, aw will lit! m'on, kIiowh;

"(1.) Frerjucnt asHj'rtions of prottu'tion in tinio of poaci- ii^tainst
all other uationH excopt the nation of oriKiual alleKianco; and in the
applifahle prinei))leH laid down Ity the authoritioH thin exi'i'|iti(in
will alwavH lie found in ternix.

"(2.) In war a perNon domiciled in a neutral country will lie |iici-
tected in hin property and hin perHon, even ikH iiKaiuHt liiH own Ixili).'-
erent country, always jirovided tliat ho ImH not violated the law df liis
oriKiual alluKiouce and has not cnKaged in any hostile act iipi<iist
his country. In other words, to be ]irote<-ted liy the (ioverniiicnt df
the neutral in such conditions, it must appear that he liiis main-
tained the status of the government of his domicile as to Ilcntl'lll'
itv.••

If mv friend wanted any more emphatic distinction lie
tween the statements at these two pages, he had hut lo
turn the leaf to page 15 and note the premise, from wiiji h
,Q the conclusion read at page 1<» was drawn. This is tlic
premise:

" A citizen of the United .States, wherever resident or doiiiiciled,
" until he lieeomes naturalized in Great Britain, is still boun<l to liis
" original allegiance to the United Ktates in ros|>ect of —

" {(I.) Their assertion of jurisdiction and sovereignty over torritcuy
" or property.

" (/(.) All municipal laws having an exterritorial effect. "

Theie is the distinction hetween the two propositions

made in as good English as I knew how to put it. And

^upon these propositions we are prepared to stand hecan.-i'

they are propositions of the statesmen, publicists and

jurists of Great Britain and the United States.

My friend, Mr. Bodwell, who has not abandoned
the adverse position by any means, has citnl
some cases as to the nationality of property as <li-

f^^i

Ml'. Bt'ii|iii'.

l!lj;<' l<i nC I Mil

Ity ill fimliiiK

Hoii, ovt'ii in tiiiii'

iMHcrti'd in I'iimh-

)i for the cDn-.!-

II tiini> of iiiarc.

war.

lii»torv of Inlii-

f j)i>iK't' ii^'iiinst
unco; iind in ilir

flllH CXri'litKHI

try will 1)1' jini-

I IllHOWIl liiih);-

»mI tlio lii« (if Ills
stile net iipi'ii^t
(Jovcriiliicnt I if
at lu> has mil Mi-
le as to ni'utnil-

it or (loiiiicileil,
11 bouiul to liis

; ahandoiHil
lias cilnl
arty as di--

!<■»■•'• "■••I" » IlnHFlt.^, Illltl. *«WI1| III t% II1I\>1|^I\I«II|

-iiisf, of my li'iiiiM"! I'lit'iiil in iisiii^; tlit'sc iiutlKtrilicH in
.iiis\v«'r is scrii from the (listiiiction lictwi-fii what is
known as vnniiinrtiiil domii il. a|»|ilyiiin solely to time
if war, ami riril domicil, a|i|ilyin^ .suh'ly to linit* of
|itiact>. Till' law toiicliiii^ tli*> iwo kiiiil> of domicil is
well uiidristood and liif distinction is as Itroad as tli)>
liailiorof Uaiifa.x hiit-y cites llicm in Note 4 of ids A|i-
IMiidix, pa^o l'\'t, iiiid I (|nott' him:

• NOTE 4.

'• CoMMKI riAIi ll( Mini, IS TlMK OF Wab.
" 1. PorHon'H i-liurarter ili'ti-riiiiiinl liv iloinicil.
" lu time of war the iiiiMwer to the i|ueHtioii wlieth<'r n ponton in or
' \H not to \h' riiiiMidereil nil alien eiieiiiv is, in inoHt eaxeH at aiiv
■ rate, to 1h' ileterinineil liy rt'fereiiee, not to IiIh nationality or ulleKl-

■ iiiire, liut to liiH trailing rehitleiiee or roniinereial iloinie'il. Every
person doniieileil in u Htute eiiKaKeil in lioHlilitieH v itii onr own,
uhellier he in a lioru Hnlijeet of that Htute or not, in to he reitartleij
il.'. an alien enemy."

Again, iimlcr the heading '' Nature of the Commercial
homicil." at page 7:!7:

" (//. ) DitTereneeHlietwoen civil ami eoniniereial ilomieil. Tliefnnilu-
' iiieiitul (liHtiuetion lietweeii a ei\il ilomieil and a eiiminereial doniieil
" i^. thiit A civil domicil in hiicIi a |ierniuuent residence in a country
as makcH that country a jierson's lionie, and rendorH it therefore
' nasonahle that his civil ri^htH Hhoiild in many instaiiccH he dc-
' tiTiiiincd liy the hiWH thereof. A commi'rcial domicil, on the other

■ liaiid, iH Huch a residence in a country for the |iur|iose of trad ng
tlii'ieaH makcH a person's trade or Imsiiiess contrihute to or form

• |piirt of thu resources of hucIi country, and renders it therefore
iriisonnlde that his hostile, friendly or neutral character should ho
ilctcrniiiiCd l>y reference to the character of such count ly. When a

■■ imtsoii'm civil diunicil Ih in <iuestioii, the matter to he deteriiiinod in

■ HJicther ho liiiB or has not HO settled in a ^ivcii eountrv us to have
' iiiiiile it his home. When a |>erHon'H commercial domicil is in ipicH-
' tiiiii, the matter to lie determined is whether he is or is not residiug

■ 111 a ({iveu country with the intention of coutinniu^ to trade there.
I'i'iini this fundamental distinction arise the following dilTereucPH:

" (1.) Ah to residence. Hesidence in a eountrv is in general /iri/nn
" /'"M>evidcnceof a iiersou havingthere liin civil domicil, hut it is only

• I'l-iiiiii J'liiir evidence, the efl'i'i't of which may lie (|uite got rid of liy
|iroof that a peiwin has never lived in the country with the inteutiou
uf niakiug it liin permanent home. Hut resilience is far more than

■ in-iiii'i fiiiir evidence of a person's commercial domicil. In time of

• «iir a man is taken to he domiciled for commercial purposes in the
' ■ roiintry where he in fact resides, and if ho is to escape the etVect of

" ."iicli presumption, he muHt (irove afltrmatively that ho liiis the in-

■ liiiti<iu of not continuing to reside in such country. A long jieriod
■ fuither of residence, which as regards civil rights is merely evi-

' ili'iice of domicil, might, it would seeui, 1h> alisolutely conclusive in
' ilctcrmiuing national character in time of war.
•'(■J.) As to intention. The intention, or '(niimi.t, which, in eoni-

■ liiiiation with residence, constitutes a civil domicil, is ditl'erent from

■ the intention or iiniiii"s which, together with residence, mukes up

• :i commercial domicil "

" The intention which goosto make uptheoxistonce of acivil domicil
" i< the present intention of residing iiermanently, or for an indefinite
I' period, in a given country. The intention which goes to make up
" the existence of a coniinereial domicil is the intention to continue
" residing and trading in o given country for the present. The former
'■ IS an intention to ho settled in a country and make it one's home,
"the latter is an intention to continue residing and trading there.
" lleueo, on the one band, a person does not acipiire a civil domicil,

■ liy residence in a country for a definite purpose or period, and can-

■>i

.it

fl^^M

'-'^^^^^1

^^^^^^1

fw^'ti'!

■St (i jJm .'

BBt

■'■Tl

! .)'•'•

=s|l

• ■ ' !

«v;^

lo..

(Mr. I)i< kiiison'.H ClosiiiK Argiitnont.)

not liy roMJili'ntM* in (inc nuinlry, ,■. y. , I'Vutx-o, ^pt ri<l of n ilm
ill anotlior, •. </., KiikIhikI. if li<> rt-luitiH tlir |iiir|iiiN<> of iilllihMt
rctiiniiiiK to KiikIiiiiiI, uh liiH lioiii<>; \vliil<>, on tlii' otlit'r liiuiil, tl>.
teiitioii ' uliii'li lilt' liiw iilti'ilnili'H to II iMTHoii rcHiiliii); in \\ In, i
roiiiiti'v, IN not iliH|irov)'il \\s rviili'iu'i- tliiit lir roiiti'iii|i|iili'il u nti
tn liin own coiinti-v \\\ kiuik' fiiliiri' ihtioiI. If tlic |ii>riiiil of lij'-
turn i>t wliollv iiiii-i'i'tiiiii if it ri'iiiiiiiiH in iloiilit iit wimt liini'. u

all, liouill III- iklili> to It ■iii|ili'«li till- ilrNi^n — till' ili'Ni^ii, lic.w,

Moi'ioiiHlv t'liti'i'tiiini'il. will not iiviiil to rcfntt' tlir Ii-kuI iiiTNiiiiipi m
A .■Hiilcni'i' for iin iiiililtniti' |ii'i'ioil in, in tlir jmlKnii'iit of Iii» i
t>^ tiiMitorv. lull |M'niiiini'nt. Kvrii ulii'ii tli<< |iiirty Iiiih ii IImmI im
tion to ri'tiirn to liin nun I'niinln' iit ii rcrtiiin piTioil, vet if n |.
inlt-i'viil of tiinr iiti intra ml not of inontliHliiit of vi'iii'h iHtml.ii
lii'foi'i' liin |i|iin of rciiiovul I'lin Ix' I'tlrctcil, no i'<>kiii'il.' "

"il

ly
111-

Hi.
I'll
' (*•
III

■ r
'h.

Hit

II-

'.^•'

ll«> cites aiitlioi'itifs ill Ills notes. I now coin*' to
rait:

•• (.').) Am to K|ii'riitl ItiiloH. — yV/'iv m-i u,ic i,r liro riilfs nsliin.iiiiif , ml
'• ilnmiiil irhi'/i iiii liiiri un n/i/ilirfi'iiiii In mi nyiliinirii i iril iltiiiiiiil. 'I'lnn
20.. aciMinliiix to Aiiicrii-ikii cIitihIoiih ut IimihI, iiii An'criciin riti/ni ^muj
•• tin- siiini' |irini'i|ili' woiiM |ii'i'liu|is |i)> .ipplii'il liy KiiKliHJi cniiii- („
■* HritiHh Hiilijri'tMi I'liiiiiot, liv I'liiiKi'-'itioii frinii liiH own riiiiiili'\ .lur.
" '\u\t tliK I'MNti'iirt' III liostiIitii>H, iii'i|iiiri' nui'Ii ii forriffii iliiniiiir a^ lo
" iir.ili'ct hiH Iriiilf iliiiiii); till' wur ik^'uiiiHt thi> lii'iiiK<'i'<'ntrliiiiiiHi itlicr
" of liiN own roiiiitn' nr nf u Imstili' |iowi'r. So, iif^uin, a ni'iiti'ul imr
" rimnt, iniiy, nt iiny tiinc, witlnli'iiw \\'\a |iro|ii'i-t_v iiiiil fninlH fn.iii „
'■ boHiili' i-oiintry, iinil iich 11 witli<li'ii\viil iiiiiy ii'stnii' liinilnliiH m nimi
" (louiii'il. I'lit wlirllicr the »iiliji'rt of 11 lirlliifciTiit nIuIu ciin. ullor
"the (iiithronk of lioHtilitii'H, witlnlntw' from a liimtili' hIiiIi' ko iis tn
" em'ii|i«' the iinputittioii of triulo witli Ihc cut'iny, iH iloiibtJul."

30 And .it pajii' 740:

" From tho ilistinctionM ln'twri'ii 11 civil iiiiil 11 commcrciiil (lomifil,
•• the concluHion followK tlmt 11 |icrsiin iimy liiivc n civil iloiiiicil in nuo
" country, luiil. nt the Hnmc time, 11 coninicrcial iloniicil or rcHiilinci'
" in iinothcr. TIiuh, «h|i]iohc that D's iloniicil of oii(,'in is l'".ni.'lihb,
" ntiil tlmt lie noes to France ami hcIs up in traile there without aiiv
'• puriiiiHc of \inkiuf; France his |iei'niiinent home, hut with the iIIb-
" tiuct inteii. 11 of returning to Kui;laiii1 within ten years, lie clearlv
" retains his ^Injflish ilomicil nf orijjin ; ninl the onthreak of a war ho-
" tweeii France itliil Fnpflaml iloes not of itself atlect D's civil ih^inicil.
" If |) continues to reside ainl traile in France after the onHiiruk of
' hostilities, though without any chun^'e in intention as to tlie tinii'
' of his stay in France, he will acipiiro 11 French commercial ilomi.'il.
" In other wonls he will have a civil ilninieil in Eiinlaud ami a cmu'
'• mercial ilomicil in France."

TliiH (listiiiilinii mil.'.;! lie ki'pt in view ami our rontiiitioii
is Ir'I'i' ill till-: iiiiitlt'i' iif (loiiiii ii tliat tli*> (loiiiiciliatiil jut-
sons (111 liiitlisiilrs of till' iiin', llio Miitisli siihjiM!! ilmni
cilfil ill llic I'liiti^i! Statrsaiui tiu' .Nnn'iiciii citizi'ii iloiii
( iUnl ill till' Diiiiiiiiioii. an' (ivilly ilomiiilcil lint not ('inii
inciTially (ioniiiil'd. Tlic Miles ;iii|(lyiiij; in limes of war
,i li.ive IK) ii|i|ili("ition line ;iltlioii{j;li some of tlieiii woukl
' ho for Hie III iH'til of tiie I'liiteii Sl;ites; some of llu'in
would not lie for the heiietit of oiir coidenlion. I de.-<iie to
keep the distinetion ehar that coninieicial and civil dniiii
lil may exist at one time, and (hat one person may have
one ill oni' country and another in (he other coimliy.
rpon (he lepil distinction .is to civil doniicil and roiii
mercial doniicil wehaiiK tliedeiiioiistralioii and conckitiion
of our arjjiimeiit in reply to my learned friend's cases ami
all of them. A man can have as many commercial doiiii
ells as tlieie are countries. Ho can have but ono civil
domicil. What we have to deal with liere is civil doniiL'il
ill time of peace.

Commiuioneri under the Oonvention of February 8,

1896. between the United States of America

and Great Britain.

LogiHlntivo Council ('haiiilicr, I'mviiirial liiiilding,
At Halifax, St'pt. 5*2, 1HH7.

At \0:'M\ A. M. tlio CoinniissioiitTH took thoir Henta

Mr. l)i('l<in«f»n:— Your Honors, when closiiip; my oh-
siivations last ((vciiiug. I prtsfutt'd t lie broail (list iuction
li'twet'U I'OMiiiiorcial doniicil in tinit! of war and civil
il' inicil.

The aif^unu'iit prcsfntrd liy (treat Britain benrs more
{liicctly u|ioii the status of Aini'iioan citizen- '!• Miicilfd in
^^,( .inada, and that argument, aside from tlic *j>ii tion of
tli<' scope of tli»' convention and the constiuclion of the
convention, on our contention, that it applies to perHons
iii^teail of to ships, may he stateil hroad'--, that, as to
Americans domiciled in (ireat Hritain or ' .ida, the ship
wliich was his property hecomes nationalized as I": itisii.

I ,iis is 8o p'uerally of a time of wai- in respct of prop-
iiiy as relat< d to commercial domicil, hut that '.,is nothing
t(i (III witli »iK here. There is no (piestion of l).|Iinerent
riulits here.
,f, r.ut as I liave already said, when I come to the construc-
tiiih of the convention. I e.xpect to demonstrate that this
iio-ition of the British counsel can cut no ti>;ure in the case,
hiraiise. hy express intent, shown hy the drafts of the
coiiv(>ntion already suhmitted, as also hy the proposed
cmi'-l ruction (irrespective of any drafts or ne;;otiation
|)H'(eiling it) (ireat Britain must stand or tall on the status
of persons and not upon the character of prt)|)erty ua
rt'--|ie(ts nationality.

liiit I shall treat the arj^ument of my learned friends
,,,\vitli the respect that I have for it, hy hriefly disposing of
tliiir contention, as far as I can. on principle, and then,
l)v iiiialyziufi; the cases they cite, and all of them, and
slinwiiig you that they do not estahlish or sustain their
(iiiitentiou.

1 trust your Tlouors will kindly hear in mind what I sub-
niitt.'d in closing last night, in pointing out thedistinc-
tinii lietween commer(;iiil (lomicii m time of war and civil
iloiiijiil in time of peace- although civil dumicil may
li;i\.' all the results, in time of war. so far as the liahility

of il ilomiciliated person is concerned.

All the cases cited hy my learned friends upon this con-
toiition of nationalizaliou of propertv due to domicil are
as follows; They first cite the case of the " Francis." I.
(iailisiin, page 614, and that decision— as ;ire all decisions
till v cite intSallison— was hy Ju. MceStdiy. Your Honors
will at. once see that Justice ^loiy rests the decisions
up .11 commercial donucil in time of war; and hefore I
fiiu-li with the authorities cited hy my learcjd friends, I
sliall point out that Justice Story makes precisely the dis-
fti^tiiirtiou made in my closing remarks last evening. The
ca<t of the "Francis" was in tiie year IH13. It hore on
till' -.t.itus of u naturalized citizen of the L'nited States
(liMiiiciled in th«' enemy's country in time of war. The
cili/i n's name wastJillespie, and (Jhiuf Justice Story, after
Id itiiig the facts, said:

lii.

884

y.!..-

(Mr. Dickinson's Closinjj Argument.)

" And I take it to l>e clear tbnt the facts of this case estatilisli i||,>
" position that Mr. OUlespie, at the time of this shipment and cui>i nr,
" was a merchant — "

There is the trade domicil, your Honors—

" was a merchant doiuicilod in Great Britain, and, of courRo, uffr. uj
" witli its uiitionol character. Ho was settled therewith a hmi-r „f
"trade, and for jiurposes of indottnite extent and duration. I lad

10 " the facts \>eeu e(juivocal, the circumstance that it was his nuiivo
" country would undoubtedly have been entitled to great weij;lii in
" deciding the (|uestiou of domicil; for, as Sir William Hcott jii-lly
" observes, the native character easily reverts, and it reciuires fewer
" circumstances to constitute domicil, in case of a native subject, lliiiu
" to impress the national character on one who is originally of iinciinT
■' couutrv. Such, then, being the domicil and national churiicli r uf
" Mr. tJillcspic, he must, according to the settled rules of jJuVilir lnw,
" be deemed to partoke of the advantages and the hazards of a Hrilisli
•' merchant in peace and in war. For all commercial purposes, It is
" quite immaterial what is the native or adopted country of a parly.
" Ho is deemed a merchant of that country where he resides aiiil

20 " carries on trode. "

This is a war case, of course, and clearly of coninuivinl
domicil.

In the case next cited hy counsel for Gieat Britain, voiir
Honors will see that Chief Justice Story uses the distinct ion
which I have jwinted out. I refer to the case of " 'I'iic Ann
trreen " and cargo, from pages 274 and 'J75 of 1st (iailisdii.
cited hy my learned friends in their oral argument. This
was also a prize case in time of war. 'I'luning tn lln'
, opinion of Mr. Justice Stoiy, I find this discussion:

" If Mr. Culleu were domiciled at Jamaica, at the time of the .■^lii|i.
•' ment. he would be liable to all the consequences of a Urifi.sli cciiu-
" mcrcial cluiriicter, for no principle is better settled, than timt tin
" property of a person settled in the enemy's country, althou).'li In' lie
•' a neutral subject, is atfected with the hostile character. It is cuiiti'
" immaterial in this view ."

Your Honors will see the distmction:

" It is quite immaterial in this view, what was the original nr w-
•' quired allegiance of Mr. Cullen. \ native American citizen is just
40 " as much within the scope of the principle as a foreigner."

Again, at page 286, Mi-. Justice Story says:

" I admit that his connection in a house of trade in New York would
" not alone protect him;/«/' hf nim/ id llie snini' liinr jiosscm tlii' (i.iiiniu--
" riiil c/iurmifr iif germil nulinns."

No man can possess the civil character of several nations,
oi' rather have more than one civil domicil. I quote Ironi
page 28t):

50 "It is also said, that this shipment was made by Cullen in the cliiii-
" acter of a Hritish subject, oud that this furnishes distinct prouf of
" his having returned to his native allegiance."

That is also the argument diawn fi-om the cases. ;is
sh'.wn hy thehrief of the learned counsel for Her Majisly.
as to the allegiance of a civil domiciled person, or of mio
owing an original allegiance to the country of his liirlli,
unnaturalized in the country of his domicil. Tho.se casts
liad been cited in the briefs of counsel in the " Ann Gncii "
^^case, in endeavouring to have applied the law of civil do
micil, and I call your Honors' attention to the clear distiiic
tion which Mr. Justice Story makes. He says:

" I agree that such would ordinarily be the case; but a .listiint iou
" has been taken in the authorities between a time of peace and of »iir.
" Much greater lasity is allowed to mercantile transactions in I'luoc

^I't

lit.)

laac CHtablisli
aent aud oupi

I course, iiffr> i.il
1 with a hiMi- uf
il (luratiou. Il.nl
it waR hi8 iiai .vi>
o great weijjlt m
liam Scott jn-ily
it re<iuirt'8 t. Kci-
itivcHiibjcct, liiMll
igiually of luii'ihcr
ional churiul' r of

nlos of l)ublii' law,

azaritH of a Hiiiisli
ial purposi's, ii is
juntry of a imiiv.
re he resides aiul

' of comnit'ii inl

[it Britain, yim
8 thedistiiiclinii
seof "Til.' Anil
of 1st (Jallisdii,
rgument. Tills
'I'liiniiif; to llif
isciission :

e time of the sliip-
s of a Uritish cuiii-
th'il, thau tlmt the
^ry, although lie lie
raeter. It is quite

the original m' in'-
rican citizen is just
eiguer."

lys:

in New York woulil

jiossins thi' uiiiinii !■■

several nations.
I quoto licMii

■ ;o N

Cnllen inthnlmi-

■ '

■H distinct proof of

■

m the case?!, us

■

■or Her Majtsty.

■

lerson, or of "iie

trv of his biilli.

iil. Those i;isis

■

16 "Ann Given"

law of civil ilo

■ OohiM

the clear disliiic-

■ will

> says:

. but a .listinil Kill
of peace and ol' »'"■•
'ansactioDS iu 1'<ik'i'

S,S5

(Mr, Dickinson's Closing Arf;^ument.)

"than in war. DiBguiHi's and covt rs are allowable iu the former,
•• which would not lie tolerated in the latter. I do not know that a
" -^itigle ea»e has lM>en decided, in irhiih the iigmnniiii/ n iiiilioiinl rlmnic-
•' ■• r ill hnt>' n/ jiftu-f\ lotirnii{ mui*if t/m/ t/i'tit's t.r retfuliitiiitiA^ nr to artiiti
'■ il,.- •■flWls r/ impending war, has been held to bind the party, where
•• il liiiH not l)een in fraud of the belligerent who makos thocapture."

That was in time of war.
iQ 111 1st Gallison. |»ano hA:t, there is another case cited hy
111 V learned frien«ls. This was the case of the hrig " Jo-
st'iili." and it is alsoa decision hy Mr. Justice Story. It re-
tris to lime of war again, and this is the head lutte:

• If an American veNsel, after a knowledge of the war, proceed
" from a neutral to an enemy port on freight, it is a trading with
■• I he enemy, which subjects the vessel to forfeiture, and she is liable
•• tlicrefor on her return voyage to the United States.

•■ The birth of a party is not that which decides his national ehar-
" alter, but his douiicil." » • *

:o Time of war again. The Court says at page .')4S:

• Tiie trading with the public enemy, for which cimdeninatiou is
" !<onght, is the taking in and carrying a cargo on freight to Knglanu,
" after a full knowledge of the war. This is attempted to be justi-
"lieil. partly upon the opinion of the American Minister, and
" |iiiitly on the ground of inability otherwise to meet the expenses
•• of the voyage."

Mr. .Justice Story, of course, holds that the placeof trade
ami dt partuie of tlie sliip. and the trading with the coun-
tiv with whom we are at war, must determine the char-

.iO;i(trr of the act.

The other ca.se cited hy my learned friends is in 1
Hcis.iiuiuet & Puller, page 4;?o. This is the ;-oniewiiat
famous case of Marryat rs. Wil.son, and it is famous he-
caiisc it has heen commented on in various ways hy all the
anllioiities on the (|uestions involved, the <piestions of
cili/ciisliip and allegiance. Now, may it please your
llniiors. it lias not heen commented on in such a special c«mi-
iit( tion as this hefore, hut your Honors will tind that this
was the situatitm in that case. The .authoritative head

40n(ii,.— and they had authoritative lieail notes in tlio-e
(lavs, somewhat more authoritative than now, fortius was
in IT'.i'.i- the autlioiitative head note in stating the gist
111 I 111' decision of Chief Justice Eyre, says:

■A natural born subject of this country admitted a citizen of the
" I nileil States of America either before or after the declaration
" of Aiiieriean independence, may be considered as a subject of the
" I iiited States so as to entitle him to trade to the Eas' Indies nnder
•' tin iiliine treaty."

o\v, the Treaty of 17!>r> between Great Britain and the
ted States, e.xpressly provided, that citizens of the
It'll States shoulil have the privilege of such trailing,
iiiiise, (Jrej't Britain, for the piirpo.ses of the tre.ity,
(om polled to accept for trading purposes the persons

I weie citizens of the rnited States under the ITnited
rs laws. That is perfectly apparent, hecause it was a
tv. aud the ilec siop. is solely upon the treaty anil not

II ujion doiiiicil. When we niid the court coming to

i|iiestion of .illegiance, w find this formal doctrine

down hy the Lord Chief Justice, and your Honors

leiiiemlier one sentence in it which I am glad to find

He was considering the case of Scott rs. Schwartz,
I lie Lord Chief Justice said:

■ r.> the wav. I do not understand upon what ground the case of
" llmlir was tlistinguished from Collett's case, unless llutlcr has been

ijtili

'• I )

8S»'>

(Mr. Dickinson's Closing Argument. '

" t'xproHHlv tlisdmrKi'd fnnn liii* nlleKiauce liy Act of Purliiunii.
" oonBt'unoni'e of our ackuowli'dnniont of tin' InilppfinloiuM' ni
" Uiiitoil StatPH. Tliey wt^re both uiitiiral liorii subjects, tlicx
" both n(lo|)to<l HiibjertH nf the Uuitoil Htatos, suul it ih to bp nui

" botll, yflllt l>'l'riillll in aim imlllS !•!</ e.CI«(r, tiVi /rjriiiilinr ilrliiln,,.

" fiirr /insnil,"

Sv.

TliH it\irnof! Cliief Justici' tliore does not lay down ,, v
iotl>ing lint tlie uninndifit'cl and pun* (Joctnnt' of Imtli d, ,;i.
trii's. as announced by the judicijiiy and liy tlicir di|,:,i.
niatic ie|»re8entatives on every occasion, when tiie sultj' t
came u|) f()r discussion from the time ot llie Inde|ictii|, i , ,.
of tlie United States down to the Treaty of isyo. |i,. | ,vs
that down as a postidate. and that is tlie |)iinci|tie app \ .
in;^ here .is we liave se«'n.

" It WHS ol)s<>rvi'il b_v Lord Halt', that a natural born subject oi ijus
" country niiiy by foreiKn naturalisation entauf^le himself hi ilitli, il-
" ties anil a contlict of duties. So may the naturalized or deni/.n > ii,.
20 '• ject of the Kinj; of (Ireat Itritain."

The learned Ciiief, Justice then proceeds tt» fnrthei di,.
cuss this original diHiriue as ailmitted in the rnii,,!
States, and (Jreat Britain attirnis it. htit holds tliat nihlri
that treaty, and for the purpose of trade only, (iivat
Britain must accept a naturalized citizen as htinu a
citizen of the United States, entitled to trade witli tlie
Indies, hecanse he is a citizen of the United States, n. n-.
nized as such, and adopted as such - a naturaliz'd citi/in
30 of the United States— and upon that ground only. Ollu-i
wise it wotild lead to a conflict U|)on tlie treaty Itself. No
other doctrine of nationalization is laid down; on the < on.
tiary. the assertion of the original allegiance is laid iltiwn
with more strength than it is stated in Blackstone; a- i<
also the question of the duty of a domi( iled citizen in the
nature of allegiance to the (Jovernment of his domic il

Tlie olhe'.case cited hy (he learned connpel for (iiv.it
Britain was the case of the "Nancy" in Nova Smtii
It is at page 4!t of Stewart's Admiralty Heports, .111. 1 is
4oknown as the •' Tnrj»entin«>" ca.se. It was providid in
the time of (teorge III.. :!;? George III . Chapter ."lO, s. (
tion 14:

" That it sh'ill and may be lawful * • * to im|iort pitch, im and
•' turpeutine, Iteinfj the growth or production of any of tlic terntnrii.>
" belonf^iuK to the United States, from any of the territories of ili,.
" said United States into the Provinces of Nova Scotia anil Niw
" Hninswick: jtrovidfid that snch pitch, tar and turpentine sh.ill not
" be imported, excejit by Itritish subjects, and in British built ^\,\\i--.
" owned by His Majesty's subjects and navigated aocordiut; to l:i« '

' One of the members of a firm which imported tlir lur
pentine was originally a native born British snhjci i Imt
domiciled in New York, and (he Court in this judginrnt
reviews tlie cases that have been here cited by my li uiied
friends, and all the cases bearing upon the (piestinn of
commerciiii domicil in time of war. The Court .>-avs
this:

••III /irizr, a British subject forfeits every ri^ht which he woiiM Ik'
"entitled to in that capacity by residence in a foreign count i\ Il
(\q •' (ireat Britain was in a state of peai'c durini^ a war befwceii I'lanci'
" and Spain, an Englishman who inhabited either of those ciiiintiiis,
" would be liable to have his property seized by the respective eniinics
'• as much as the natural born subjects of the <'ountry. Hi> linli^ii
" allegiance would afford him no i>rotection. This ])riiiciple dui - not
" rest only upon the Prize Courts and the law of nations, but it i»
'• recoKuized by the common law."

20.

(Mr. Dickinson's Closing Argument. »

That reasoning is from a state of war clearly.
TIh'v cite the casn of Tahles vs. Hendelack, with re-
icct to the decision of l^onl Kenyon. wiiere it was lieltl
II time of war tliat —

wliothor the Hliip ho ontitlod to Ain<>ri<-an |)rivil<'n<'M doos not de-

• iK'nd inorc'ly upon the owuor l>t<iiitt au .\iiii'rii'au Imru. Persons ro-
^idiiin in tliiM conntry, r(>ii|iiiif; tlio udritiitiigi's of tlic triidi' of tliis
cDiiiitrv, ami ooutrilmtinn to Hi<> wcll-ltcinn of tliis conntry, must

^iii- tf/t' fmr/ittst' iff fl'tli/r hi' fniinif/fffif 'is /ttlnn'/iii'/ fit tliis r'Hiiifrij,

" Tliis, indi'od, was a ciiso iis between iientrnl eounfries, and the
powers at war, and dei>ende;l eliietly npou tiie law of nations, l)nt
there is another ease, in wliieli the same prineijile was a))plied be-
t ween Oreat Britain and her own snlijects, and with reference to
Itritish laws only. I mean that of MaeConnel n<;ainst Hector (in
Hosanpiot and Puller's Ueports, Vol. III., ll:j(. The (,iiestion re-
lated to the validity of a eonnnission of bankruptcy, and this
dcpendod upon the point, wiu'therthe di'bt ui>on whidi the iietitiou
issued, was sneh as could be sued for at law. the petitioning^ cred-
itors beinj? three partners, of whom one was resident in Kn<;hind,
iiid the other two beintJ subjects of (Jreat Itritain, were resident
and concerned in trade, at Flushing, a port belonniuff to the enemy.

• It was held that they were not entitled to sue as Knjtlish subjects
' ill an Knulish court of Jtistiee, and Ijord .Vlvanly saiil, -every natu-
" ral born subject has a ri((ht to the King's protection so lonji as he
" • entitles himself to it by his conduct; but if he lives in an enemy's
•■ ■ country, he forfeits that rifjht.' "

1 brought in this case to siiow also that the Nova Scotia
(uurt, resting its judi^ment on the :!d Bosanquet it riiller,
was on the principle of commercial domicil in time of war.
Km tliermore, this judgment cites the case of Marryat vs.

3o\\ iNon in 1st Bosanquet & Puller, to which I have called
\.iur Honor's attention, which was of a Britisli horn snii-
ji'd, hut a naturalized American citizen domiciled in
.\iiierica, and his status was under a treaty; hut this Court
( ii> s it as if it were the case of a British subject domiciled
ill tiie United States. But the Cotirt entirely omits the
consideration in reviewing this case, that the decision was
S(|ii;irely upon the fact that there was a treaty permitting
American citizens to trade with the Indies, and omitting
tlif distinction made in the case itself, that a domiciled

4ofciMign born British sid»ject had been naturalized and
till refore within the ti-eaty to be treated as a citizen of
111.' I'nited States, because there at. the time of the recog-
liiiion of their independence by Great Britain.

( »f course, in theory, all the people of the United States
at tii.it time were native born British subjects.

I iic vesult on this Nova Scotia case niay thus be smiimed
II |i l!);•^^much as the trading by British subjects only in
turp', iitine was permitted, it was held that because a mem-
liei of the firm, an original British subject was domiciled

Hoiii the United States, be was forbidden on account of his
tmding domicil, to import turpentine inider the clause
continingthe importation of turpentine to British subjects
- it confined it also to British owned ships, as well as to
Mulish subjects, and it was a case under the niunicii)al
liiu and not under the law of nations. The learned Chief
.lii-tice, in conclusion, says:

" I am of opinion, theroforo, that the turpentine, the tar, and oon-
" M'i|uentlv the vessel, are all subjects to eonti'-cation. In pronounc-
" inn whic'li latter part of its sentence, the Court feels the less re-
(^iq" luctance, as the master has not only shown that hi' was conscious
" "t doing au illegal act, bv attempting to conceal the nature of part
" I'f his cargo, but in so doing was likewise guilty of a fraudulent at-
" ti'inpt to import it clandestinely into the province."

Tliat case, ubiy it please your Honors, is reasoned as
niv learned friends the British counsel rea.soii upon the

■i 4

888

lii

I 1,'' f i

(Mr. Dickinson's Closing Argument.')

law of coniineiTial doniicil, witliout distinguishing tin*
law as to civil doniicil. It is under British municipal law;
it was a case not involving the obligation of the sul)je(t ! >
his sovereignty at all; hut construes a statute that taki ,
from him a privilege or imposes a disability on him. L. .
cause of his non residence.

It is quite a different thing, from the relations of a
lonatural born subject of (Jreat Britain to his soveieigni\.
claiming its protection for the consequences of his vinli
tion of the laws of the country of hia domicil. These iih'
all the cases cited upon th.'it point by my learned friem!?;
the count^el for (Jreat Britain ni their oral argument.

I now come to I he consideration specifically of the riglils
and relations of a British subject domiciled in the Uiiitdl
States, to wit, Ciutpcr, in respect of this Convention iin
der which we are pioceeding.

Jn limine, replying to the statement of Sir Chas. II
2oTupper. that the United States had changed its position
since the Paris Arbitration, let me say, that under I he
Treaty of lS)t2. under which that tril)unal sat, all questidiis
of fact, except those found by the award and findings of t he
tribunal were reserved for future negotiation, and that
negotiation folk)wed and resulted in this Convention aiui
the appointment of this Commission; so that all questimis
as stated in the Treaty of lS!t2 were deferred for fiitiiro
negotiation; in the language of section "A"; except this,
that eithei party might ask for a finding of fact before 1 1 lo
30 Tribunal of Arbitration which should be taken as conchi-
sive between the countries in respect of ttie future ncj^o-
tiations which did result in the Convention. Of course,
befoie the Tiibunal of Arbitration, there was noexaniiiia-
tion of witnesses, and no attempt to pass upon dispiitd]
fact«, except the grand one disposed of in chief by tiie
Tribunal of Arbitration; but no disputed facts hearhiij
upon the relation of persons to their respective govciii
nients or upon the obligations of one government to iv
spond in damages totheother in respect of their respocfivi'
40 citizens. Cooper, the American counsel maintained ho-
fore tlie Paris Tribunal, on affidavits and e.r /intir tesli-
niony. was not the owner of the ships. The Tnited St.iles
insisted tliat there was evidence <if American ownerslii|iuf
the ships claimed by Great Britain to be owned by Coopir.
That position was contested by (Jreat Britain befoie tht?
Paris Tribunal, and that tribunal made no award bearing'
on the (juestion.

Xoii coiistdf, the American (jovernment was then con-
tending that the flag of Great Britain had been used iiy
5oAmeri<an citizens to violate the sovereignty of the
I7nited States, to violate its nnniicipal laws; yet Ihero
was no decision upon that (piestion. no decision U|i(in
the right of persons to recover at all; that is .>xpressly
re.«erv«'d in the findings of fact. It is expressly ih-
avowed that findings should b.? made— as I shall sliou
your Honors when 1 come to the consideration of the
Convention on which any liability could bo attached of
either country. Taking the findings of fact, then, ik
(piestion of liability having i)een decided, it is provideil in
<J<Jthe C«)nvention itself of Isim;, that (Jreat Britain can only
recover under the findings of fact of the Paris Tiibiin.ii.
for such persons as are within her protection. What ol
the position of the United States, then? As to Cooper, the
facts of his domicil wer.- not before that tribunal TIh'
United States did not understand that the legal domicil ol

SSO

(Mr. Dickinson's Closinfj; Argument.)

( ooper was in the United States. It was reserved for this
( (invention to investigate that t|uestion with the otiiers,
hiidecided, found at Paris, and to attach to its decision
tiiereon whatever conchision as to liahiUty might follow.
I here is no change of frortt as to Coo|»er, and there never
Ills heen It appeared hefore the Paris Trilninal, it is
tine, on an f.i'/Mtr/f statement, that Cooper's residence was
10 ill San Francisco; but residence and legal civil doniicil are
(jiiile difT»'rent things. Xon constat, lie might have re-
filled in San Francisco, yet when we come to the investi-
j; ition of the facts as to the right of (Jreat Britain to re-
( !aim for hin), he could have shown at Victoria, before
this Conuiiission, that notwithstiinding his residence in
Sill Francisco, .is shown by the e.r parte statements to
the triliunal at Paris; yet. tliat his legal domicil was still
in (ireat Britain. That could have been shown as a niat-
{,•]■ of fact at Victoria, because it could have been there
2oslii>wn that l.is lesid'c-nce there, while pn'md facie evi
ilmce of bis domicil, did not in fact constitute civil domi-
(il. because, however long that residence, yet his inten-
tion was to return to his country of origin. I rep«>at and
I'lnpliasize, that civil domicile as distinguished from com-
iiiiicial domicil':', does not turn on residenct', liut on lesi-
tlciice with intent to make a home— the aiiiiinis maneudi
is essential, and the proof of the animus vcvcrtvudi
(listioys civil domicile.
('(»o[)er might, in the contest of proofs, have given evi-
30iiiiHe that at the time he sent out the vessels he had
111 ide up his mind, notwithstanding his residence was in
Sail Francisco, and, therefore, prima facie, iiis legal
(Idiiiicile, that he intended to return, or, as conclusive,
that be had actually set his face toward his country of
(iii^iii. It was not necessary for him to have actually
;;(iiu' back to his country; bis original domicile and his
status would have reverted if he bad set bis face in that
iliicction. So that your Honors will see that no jiosition
\\,is changed at Victoria from that at Paris on the part of
40tlir United States for the simiile reason that, until we
tiHik the testimony, neither the domicile of Cooper, nor
liis status, were fixed before this Convention. The length
ot residence is immaterial, save that it is nwixAy jtrima
j'ncii- evidence of intent, as shown by all the authorities.
lint what of the attitude of Great Britain throughout as
ti) the Cooper ships? Great Britain has consistently
maintained not only before the Paris Tribunal but in
tlic Courts of the United States, of Alaska and in the
Su|ireme Court of the United States— the lower courts
joaiiii the Appellate Court— that Cooper was the owner of
tlusc ships, and that Warren and Boscowitz had no
iiiii rest in them. Now, it is a matter of law, perfectly
Will settled, that however much another party may
iiii|iiire into the registry of a ship, and however little
elTt'i t the registry may have, or the record title, in a con-
tuivcisy involving it with third parties, the registry and
n'MU'd title in every international court in tiie world, in-
clinliiig the prize court— and the rule of war is the same— is
ci'iii Insive against the party who registers it, on the qiies-
fc til 11 of ownership. We have come to the position, and
Ikiv.i now settled by the examination of Cooper himself at
\ II iiiria, and by all the investigation as to bis civil status
tliii liie real owner. Cooper, was civilly domiciled in the
1 lilted States. Warren, above all. is estoppi'<l in this great
iiiiii national contest as to the ownership of Cooper, because

800

''I

, 'r } ;■ i'

(Mr. Dickinson's Closing Argument )

he lias Miiulo the affidavits in his hehalf as ownti, umI
has always made the appeals, taken the proceeding-, m,!
pnl in Cooper's answers. Waiien, in the schedule at I'imn.
pajje-i 1 to (to, inciusiv»«,. has sworn, and met the ioii|...|
of the L'nited States on tiie l)oiiit of owneiship, il it
Cooper was the ownei. We dealt witii the contest i it
came up at Victoriii, liy the testimony, with alertnts- ,, ,1

locarc, so far as going into Mr. Cooper's intention in «-i i\.
ing in San Fiancisco was concerned, letting it stand ii|..,ii
the evidtiice m.aking a jiriiiia J'aiiv case of domii il imj
(Jreat Britain's contention that Cooper was ok\ ner. \\\.
did think that i>ossiltiy it woidd he contended afterwiuls
tii.it lloKcowitz had some interest in these cliiiins. and we
endeavored to sliow, that for the reason that he was n<,\
a Ihitish sid)ject. and. as he admits, helieved hiniM-ll in
American citizen— and lliat is shown conchisivcly \w
desiieil and had his interots, if any, pnt in C(po|h|'s

2oname. If this does not amount to estoppel on own(i~lii|i,
I do not know what does; and this was one oiij^ct ol oiii
testimony in Montreal, although there were; others TIhh'
is another reason, if it shall hecoine material, elsewlitie.
This is the first time, I think, your Honors have (^mi
heard, or that it has ever hef^n urged, that one wlic n-
gards himself as the equitahle owner of a piece of |iici|i.
erty, and is suing for its value in the name of anoilu i in
whom he has jiroved the title, can himself set up iliat
fact, against a defense to the claim of such second owner.

30 Admitting that he is not the legal owner, they have to
assume that their act was against puhlic policy, liecaii-i it
was in fraud of the registry laws of Great Britain.

But over and ahove all other questicms, as shown liv
the instruction of tlie Treaty, this is a Coiiveii-
tion to (lass upon the claims only of persnns
presented as claimants against the United States lieture
the Trihuiial of Paris, helween pages 1 and <'.o nf the
British schedule, and such a person is Cooper.
Now, it appeals, and 1 cite without reading. l)i(ey,

40 page i;W, that, in the ahseiice of proofs snowing tliiit
Cooper meant to return, and in the presence of the sIkiw
ing that he had lived for 4o years in San Francisi o, it
must he taken as conclusively settled as a matter of law
that his civil domii.il was in the United States. The
same do(!trine is laid down in full in Baker's Halhck.
Volume 1., page 421, and notes; but I do not know that I
have any more distinguished an hority on the whole siih
ject of civil citizenship than Dr. Phillimore. who lias
written a work on domicil. He quotes with appinval,

50 at page 14t) of his work, the conclusions of Justice Stury
and the American Judges, which he cites iu his note- as
the law. He says as follows:

" Iu iineHtiouH on tliiH Kul)ject, tlie chief poiut to 1)0 couttidiTi'il is
" tlie iiiiniiiis iii'iiiriii/i, au(l oDurtH are to devise siu-h reaMimaMe nilis
'• of eviilence as may ostalilisli tlio fuct of intention. If it sutliciiiitlv
" appear that the iuteutiou of removing was to matte a peniiaiiciit
" settlemtjut or for an iuilelinite time, the right of domieile is iici|iiii.(l
" l,_v a resilience even of a few days. Again every man is viewc.l In
" the law of nations as a member of the society in wliich he is iniii].l.
" '^HKi'leiiir is iiriiiin fiiiir rriih'iiii'iif iiiiliiiifil i/i'irmt'T; snsce|iiil>lr, Imw-
60 " ever, at all times of explanation. If it l>e for a special purjMiM'.
•' mid transient iu its nature, it f.liall not destroy the original or )niiir
" national character; hut if it lie taken up iniiiiins m'iii<;i'li. tin 1: it
" lieoomes a domicile, superadding to the original or jirior eliiiiaitcr
" the rights and privileges as well as the disabilities and )ieii:iltii'»
" of a citizen, a subject of the country in which the resideuci' is
" established."

H!tl

(Mr. Dickinson's Closing Arguniont.)

1 will not continue at length the reading of Dr. Philli-
iiiore. It results in a very hill examination of what i.s a
( ivil domicile in time of peace, that il makes him a civil
I itizen. to use the language to which my learned friend
tikes so ni'.ich exception, of the country of his domicile,
(w ing it allegiance like all other citizens, and, as I shall
>ii()W, discharged in the countiy of his domicile from all

ioii^litc)f protection hy the country of his original allegi-
jiiue. t xcept in the single instance that he shall not hedis-
(liminated against in the country of his domicile hecause
(it hi' alienage. We have it from Kent, i»age 7<i, that do-
iniiile is the lest of national character, and 1 liave dis-
cussed this suhject and cited our antliorities at page m
ami foUowmg of my hrief.

Kven in tiiue of war, as in peace, the exception for
w liiih we also contend as strongly as for the rule, is made;
it the domiciled citizen seeks to surround hin)self, without

20 wM uralization, with the protection of the government of the
( (iiintry of hisliome as against his original allegiance for the
Msiilts of violating I ho lattei'. "The only li nutation." says
Kent, page 7r», "upon the principle of determining the
" iharactei' from residence, is. that the party must not he
" found in hostility to his native country " ; the allegiance
!>; still preserved. " He must do nothing inconsistent with
" ills native allegiance; and this qualification is annexed
" to the rule hy Sir William Scott in the case of the
'• ' Kmanuel,' and the same qualification exists in the

30" French law, as well since as hefore their revolution."
1 inject this in passing so that the distinction may not
be lost sight of until I reach it.

1 have cited in my hrief, at page 4fi, a quotation from -2
Wharton's Digest:

" Protection caunot he iuvokoil hy ilomicilcil foreignerH, €»X(!ei)t for
" (lisorimiuation and nrltitrarv acts ' as distiumuHlied from penalties
" iiiul iiiinishraents incurred by the infraction of the laws of the eonn-
" tr.v within whose jiirisdictiou the sufferers have placed them-
" selves."'

"^" My friends take exception to that quotation and say, at
]i;ige 7 of their argument in reply, as follows:

" The quotation (p. 40) from Wharton will be found to be iucom-
" plete ; it should have been as follows :

" The country whose 'protection' is invoked cannot, it is conceived,
" properly interpose in such a case unless the municipal law, the
" viiili.tion of which is charged, contravenes some right of such
" icuuitry acquired by treaty stipulations or otherwise. The principle
" ilocK not at all interfere with the right of anv State to protect its citi-
" zciiM or those entitled to its protection wtieu abroad from wrongs
;q •' mill injuries, from arbitrary acts of oppression or dejjrivation of
■ " pioperty, as controdistinguished from penalties and punishments,
" iiuMirred by the infraction of the laws of the country within whose
" jurisdiction the sufferers have placed themselves."

Now, may it please your Honors, criticism has been
iii.iile that my quotations are incomplete at several difi'er-
eiit pliices in my learned friend's argument. 1 ([uote the
gif-t iind conclusion, and I submit to the Court whether,
t\ir the purposes of the point made 1 had not quoted sufii-
(iiiitly from the )>age of Wharton »nery thing bearing
6ou|icin it. Great Britain contests my position, bear in mind,
tluil the civil domiciled citizen, not naturalized, although
a natmal l)orn British .subject, cannot invoke the protec-
tion iif Great Britain, as a person entitled to its protection
against the United States, for an act committed eithei' in
inli action of the laws of the United States or in defiance

(ifi-rf

S02

iMii 4^

1^"

i^i^

(Mr. Dickinson's Closing Argument.)

of the sovereignty of the United States. They take s(|ii i ;o
issue with me there. 1 state that the rule is tliis: tliit
Buch naturnl born subject of Great Britain, still uinirr
original alle}>iance to Great Biitain, which has imt
beeu broken, if (iomiciled in the United States, (.m.
not be protected by Great Britain as against iho
United States, except in the single case that lie

lois discriminated against because of his aUeim^i-;
because, for instance, he is not given equal protect iin
of the laws; and only in that case can Great Britain inli i -
vene. If he is treated precisely like a citizen of liie
United States, then, and in that case. Great Britain can-
not intervene f«)r his protection That is the contenlii ii;
that is exactly where we stand; and that is just where we
differ as to Cooper. In the first place, let us see what I ho
situation is in the United States as to what law is biiulin^'.
I will cite the authorities to this point of the jurisdictidii

20of the United States, not only over the residents witliin
its border.-^, but over all persons, having vessels on the liij;li
seas, living within its borders of course. The same doc-
trine was asseiled, pro and con, at the beginiiinf; of
our late war. The United States asserted that all persons
within our borders, domiciled or not, owed allegiance to I lie
United States, and maintained that, so long as they re-
mained here, they could be punished like any other citizens
of the United States for treason, sedition, or anything else.
and that they might be employed in the land and navnl

30 forces of the United States so long as they remained hero.
No one disputed that they had the right to turn tlnir
faces away to their own country: no attempt was ever
made to detain them. Great Britain acknowledged that
proposition, and it was through the sug^iestion oftireat
Britain, admitting that citizens of Great Britain, donii( iled
in the United States, were amenable to all our laws
and all our claims of sovereignty, so long as they con-
tinued to remain here, that they were given time and
opportunity to turn their faces homeward, or to anot'in

40country, and thus change their domicil. So longa.stiie
civil donjicil existed, it was admitted by both sides that
they were bound by all the laws and by the sovereignty of
the United States. This is the undoubted law, ami I
read it merely to give your Hcmors the citations readily;
and First let me premise from Section 21 of 1 Wharton:

" In a ooutroversy l)pt\v»'eu the United States nnd a foreign natinu

" as to boundary the conrtH will follow the decinion of those di'imil-

" ineut8 of the fSovernnieiit to which the aHscrtion of its iiitcn^is

" agniitHt foreign ])owers is confined, /. <•., the legislative and the cx-

CQ " ecutive,"

citing Foster r. Neilson, 2 Peters, 2.53; Garcia v. Lee. 1:'
Peters, 'A\\ Williams v. Suffolk Insurance Coinpanv, \:\
Peters. 41."); U. S. v. Reynes, S» Howard, 127.

In the matter of this same Coopei-, although it was not
necessary to the decision of that case, in 143 U. S , paj;e
472, on this very subject of the controversy in Bering Sea,
the Court heicl that, the sovereign authorities of the
United States had asserted an exclusive jurisdiction 111
Bering Sea.
^ The Conmiissioner on the part of the United States: —
Did the Supreme Court say that Congress had a.s.seitd
jurisdiction, or the executive branch?

Mr. Dickinson:— Both legislative and executive, and I
cite to your Honors the authority cited in that opinion on
this very point, namely, Williams v. Sutfolk lusuraii.o

^If'HJ

Sl»3

(Mr. Dickiiisnirs CloKiii^ Argument.)

( Drnpany, 3 Sumner, 270, and, on certificate of division,
111 that case in the Supremo Court of the United States,
11! Peters, 4lf>; Luther v. Borden, 7 Howard. I; (Jeorgia
r. Stanton, « WaUace, 50; Jones r. U. S., 187 U. S., 202;
Nabob of Carnatic v. East India Company, I Ves. Jr., 371;
■J. Ves. Jr., Mi; a Ves. Jr., 424; I'enn. v. l^altimore, 1 Ves
Si.. 444.
10 Now what is tlio law as to Cooper for our purposes at
the time of Jiis acts; It is tliu assertion of tiie sovereign
iiiithorily binding bini and all cili/ens of the United
States.

The Commissioner on tlio part of the United States:—
Tiie Court hehl, did it not, tiiat it was a diplomatic exec-
utive cmestioni!

Mr. Dickinson:— On tiie contrary, the decision was not
upon a diplomatic (piestion. The Court held and found
that this claimant hud been condemned in the United
:o Slates Court, and that he had appealed to the Supreme
Court of the United States, as he ought to have done,
jiid then had abandoned his appeal; that is the point of
I lie decision.

The Commissioner on the part of the United States:—
It was a petition for prohibition that the case was settled
upon.

Mr. Dickinson:— Certainly; he asked for a writ of pro-
hibition.

The Commissioner on the part of the United States: —
;o[ hud in mind another case, that of the Little Guano
islands.

Mr. Dickinson: -It is not my purpose to cite every case,
your ilcmor, but only those directly in point.

Having premised thus nuich, I return and refer to the
liclmte in 18(52 in the House of Lords upon the question of
tiif rights of British subjects domiciled in the United
States. A condensation of it will be found in 2 VVharton,
S( ction 2H0. The Earl of Derby stated the position of
(ireat Britain upon this subject:

" The noble earl opposito Las apparently u^rived Bomo advantage
" and instniftion from the eorreHiioudeufo in wliioli be was euKaged
■' with Mr. Seward, because in an early stage of those proeeediugs he
" very properly invoked against those i)roeoedings the protection of
" the American law."

I read from the Earl Derby's side of it because he was
( liticising there the ministry which had asserted that
doctrine:

" He said thot that which the law sanctions with regard to American
;o '■ subjects we could not complain of when applied to British subjects,
■ Imt the question is this, does the law sanction it?"

Tiien he goes into the question whether there has been
iliscriminatiou against British subjects and whetlier thoy
liave the piotection that surrounds American citizens.
l-!ail Russei says in reply as to the subject then under dis-

ciission:

" That the matter was further inquired into and it was found th-vt
" Mr. Seward was wrong in his fact that this gentleman had given
•• notice that ho intended to become a citizen of the United States r.nu
"^ ■' to forswear all allegiance to Her Majesty,"

ami it turned out that he had not.

Let us not forget that my friends have taken direct
issue with me, and have even gone to the length of read-
ing; another portion of Wharton -and have completed the

|(t

*•

(Mr. DickiiiHitn's Cloning Argument.)

sentence which I have citt'd, as teiuling to sustain tl. ii'
contention— ilnis intimating that I am incorrect in i iv
contention that tlie only consideration foi' a vnt-r Li>|.
Cooper's is as to disciimination against him and the i...
priving him of rights which are granted our own citizi m.
1 continue from the same section:

" tUtizciiH of tlio Unitt'il Htfttt'H, wlii-n nbrond, will tw |ii(iti,iiil
"^ " (roiii iliHcriiiiiniition uimcd nt tliciii on iict'oiint of tliHr iiiitioiuiMy.

" A citizen of tlio Ihiitwl HtiitoH wlio abiindonH Iuh nationality ■ uii.
" not tako the K>°<>iin<l tl>nt Huek nationality waH diHcriniinated aKiiiii.st
'• hy a forcinn Htatt'.

"If, inih'fd, Mr. TliraHlirr in liiH arront and trial did not cnjciy iljc
•' bvnetitH which native liorn HpaniHh Hubjccts enjoy in like c»mcs', 1iu{
•' waH more liarHhlr treated or more Mcverely |)nuiHhed for the n n-nn
" that lie waH a native born citizen of the United HtatcR, it wiml.l ],c
"a clear caHO of the violation of treaty obli^atiouH, and would i|i'.
" niand the interixmitiou of the Oovernuient. There exiKts in iImh
" department no proof of any hucIi extraordiD;.ry treatment of ^I|■,
•' ThraHher.
20 " The iiaruKraph n]>on which thiH deciHion rPHtH in that prole, imn
" and allegiance are reci})rocal ; that the citizen of the United StntcH
" who becomcH domiciliated in another country, contributing' liis
" labor. talentH or wealth to the HUjniort of Hociety there, bii-,,iiics
" practically a member of the political Htiito exiHtiiiK there, and I'nr
" the time withdrawR hiniRelf from the dnticH of citizenHhi)) here and
" cooReuts to waive the reci]irocal right of jirotection from its own
" Government" (2 Wharton, Hee. 244).

Mr. Fish, in 1870, in i elation to the matter, section JH,
says;

30 "We are not entitled to claim for our ritizenR on trial in timt
" Kingdom (Great liritain) privileges which are, 1st, not grautcil by
" British law to British subjects."

Again, Mr. Davis, in 1873, to Mr. Austin:

"British subjects when within the tiBrritorial jurisdiction of thp
" United States, are required to resi)ect and obej- the laws of tlic
" United States, and when held to answer for any offense agniunt tlicsc
•' laws in the courts of the country, have the same rights and privilcjrts
" extended to them that are enjoyed by citizens held to answer for
" similar offences. Citizens of the United States when held to answor
in the courts of Great Britain or her colonies have a right to deinaiKl
the same privileges extended to British subjects under like circum-
stances."

40..

The statement of the law is made by Mr. Bayard to Mr.
McLane, June 23, 18S6 as follows:

" That the State to which a foreigner belongs may intervene for his jiro-
" tection when he has lieen denied ordinary justice in the foreign couu-
" try, and also in case of plain violation of the substance of niitunil
" justice, is a projiosition universally recognized. One of the liif;lipst
" authorities on international law, Valin, says: 'To render legitiniatc
" 'the use of reprisals, it is not at all necessary that the ruler a^'ainst
50 n < whom this remedy is to be employed, nor his subjects, should liavp
" 'used violence, nor made a seizure uor used any other irregular at-
" ' tempt ujjon the i)roperty of the other nation or its subject; it is
" 'enough that he has denied justice.'

" If the government of a foreign country refuses to execute its
" own laws as interjireted by its own courts and to give eflect to llic
" decisions of its own courts, in respect of a foreigner, it dciiios
" justice.

" If the tribunals of a foreign State are unable or unwillint; to
" entertain and adjudicate upon the grievances of a foreigner, tlio
" ground for interference is fairly laid.

"In his recent work on the 'Laws of Nations,' Sir Travers Twiss,
60 " who holds a distinguished position as a writer on public law, says:

" ' International justice mav be denied in several ways.

" ' First, bv the refusal of a nation either to entertain the coni-
" ' plaint at all or to allow the right to be established before its trib-
" 'unals.

" ' Second, or by studied delays and impediments for which no good
" 'reason can be given, and which are in effect equivalent to refusal.

H\K)

section -.'U,

(Mr. DickinHon'H Closing Argumentr)

" 'Third, or by au pviilontlv unjiiNt ami partial dcriHion.'
• 'Law of NatiouN,' Sir TruvprH TwiMH, port 1, pan*' iWl.' "

'' Now, niori> nati(iii<^lit,T pecnliaritioH in adininiNtt'rinK juntiro will
not permit intcrfcri'inMv Tli«< in«>ri> met that a citi/.cu of flu' UnitMl
Htatt'H, when ou trial for an off<'iiMf iu AiiHtria, whioU li« voliiutarilv
viHitPtl, Ih forliidili'ii when niiilor nrrcwt to liavo iiitnrooiirNt' with his
fricnilH, Ih not Krouuil forthf diplomutiv inturponitiuu of tho Uuitod

StUtl'H.

•• IrrPKiilofiticH in tht' iiroHwntion of a citizen of th«> United HtutttH
' IU ('hili not atnonntinK t<i a denial of jiiHtiee or an undue diHcrimina-
" lion u^ainHt him an an alien, will not lie ^rouud for the iuterfcrcucu
•■ (if the Oovcrument of the United HtoteH " (Miirev, 2 Wharton, Hec.

•2:10)

In the F«Miinn trouhlfR tlie samo thing was stated, see
the tlisnatch of Evarts to VVi'lsh in .July, 18»iM; a very
raref'ully prepared instruction to onr Minister by Secretary
(il State William M. Evarts. It was in the matter of the
r.lcase of a prisoner who claimed the protection of the
^*^1 nited Htates as an American citizen domiciled in Great
i'.ritain:

■' The President hoH every desire that the invostigation shall result
•' to the eDlargenicnt of the prisoner and in ouy event slmU satisfy him
" ntid his friends that every proper step has I'leen taken in his liehalf
-' til aocompliah the purposes of the joint resolution of Congress."

Says Mr. Evarts:

" It is ]>arti(>ularly desirable that nothing be done whieh might give
•• the Oovorument of Her Majesty even colorable grounds for regard-
3° " iiit» the action now taken as in any sense an interference in the
■■ ilomestic judicial administration of another Htatn, the sole object
•• lii'iug to discover, if possible, whether any presumption of innocence
" exists iu favor of the prisoner, which, if'lir irc/v u Itviiish sidiject, and
" tiic evidence iu lis behalf came through the usual channels of British
" hiw, might reasonably operate to secure him the relief contemplated."

.Again, in the correspondence with Great Britain, Mr.
Jilfeison says:

' Aliens in general being within our limits and jurisdiction are
" liiiund to respect our laws, and cannot exact ony other mode of pro-
^'-' ■' iiinl(.'ntion than that vhich is marked out for the information of our
■• (iwu citizens."

Now upon the point of Cooper's right to return. Let me
state this proposition, so that it may impress the Commis-
sionors and our learned friends as the position taken after
most careful deliberation and thought. If Cooper desired
to engage in any commerce or trade permitted by the laws
of Ills original sovereignty but forbidden by the sover-

joeignty of his own country, he could do it by setting his
faif toward the border, but he could not, wherever
onr sovereignty reached, still remain in the United
States under the protection of our laws for all purposes,
exit'i)t for acts in violation of his duty to his original
alli'giance— for at:tive violation of his obligations to
tliat country— he could not remain surrounded by
eviiy guarantee of our fundamental laws — to personal
lilitity, life and property— protected by every muniment
tliat surrounds the life and property of every citizen of

6otli<' United States— receiving" the protection of the Gov-
voinment of the United States which Great Britain could
not extend to him within our jurisdiction— he could not
remain within our jurisdiction and violate the assertion
of (lur sovereignty. If be did, and suffers equally with
American citizens, Great Britain cannot intervene to pro-

»i

1 !^'

(Mr. DickiiiHoii'H CIohImk ArKiiint'iil.)

tt'ct him. If. wJHliiiif; touiiKu^o in this t>iit»r|)iis(>, hi>l< i<|
t'veii tiiiiietl his I'lict* hoiiunvuni, for hn would not I1.1 ,.
iieudutl to pu8H tho hoi'tiur under tiio ducisiou of \,u,.\
Stowi'U in tini«3 of iwuce or war. I»« would liuv»> at oh i-
uscapt'd to the |irot»'ction of his own sovoiciKUty .iiiij
f>sca|)od linliility to ours to thn ttxttMit of any oth*>r suli|< 1 1
of (>r«>at Hritain actuall^r living th(>ri>. Itut h<> c-iiiii.,!
lort'inain witliin our sovfrfi^nty during; this loii^ pt'iinil
civilly doiniciUul tliore -and set himsvlf up — liiinself |>i
tiMttMJ f(p)iilly with our own (;iti/,«'ns under our l;n\~,
and <lefy the sovereignty that protects him. Said Mi
Madison:

" The moHt iuvi<ilal)I(> 1111(1 till* inoHt nlivioiiH ri^lit of nii iiUni rrK|.
" (li'iit iH tliiit of witli<lr»wiiif{ liiiiim'lf from it liiiiitiMl nml t*<iii]ic>riirr
" nllc-Kiuuc*' liiiviDK no otlicr fouudutioii tliau Iiim voliititurv ri-Hidi n,.',.
" itHolf. The itifrnctioii uf tliiH ri^lit ih ciniHt'iiiiontly aiiioii^ the
" ^rciitoHt of iiijurioH that onn Ixt donn to iuiliviilualH, uiiil anion^' i|ii>
2o"jiiHt<>Ht of caiiHUH fur ihu iuturiJOHiug iiruteotiuu of other goMiii-
" luentH."

Section 203, Vol. 2 of Whartdi. There has been aiiollu r
controversy with Oreat Britain to which I call vmir
Honors' attention. Tho result of it wen; these instiiic.
tions to Mr. James Russell Lowell from our (ioverniMcni.
A person made considerable invostments in the Fiji Fsl.iiids
and wan there domicile<i. In tH75 tl I* iji Islands \vi'rt>
annexed to (Sieat Rritaiii, and it se( ^ that this iinson
complained to our (iovernmont. 11 was an Anieriiaii
^"citizen.

He had received various injuries from the British (iov
eminent entitling liim lo redre.ss. Now. there is no(loiil,t
that the injuries had iiecMi sustained. Mow sliuiild Iii>
apply for rediers a citizen of ours domiciled in (Jrvat
Biitainf Assuming that he had been injmed by the
British (Jovernment. how should he apply for redress^
This was the letter of our Ciovernment on the subject.

" If you were a citizuu of thoUuited HtateH, domiciled iu the I'mtnl
" Btatt'H, you might, iu »ome coutingeucieH BUHtain an appeal fi>i'tlio
" di|)lomatie intervention of this Department. Whether von slill ro-
" main a eiti/uu of the United States Ihu (pieHtion whieh it ih not iicccfl-
" sarv here to diseUHs. It Ih Huflleieut to say that your adoptimi of
'•Fiji as a permanent home leads the Department to infer tlnit yo'.i
" iieceptud a Fiji doniieil. If so your contiuuanee in Fiji aflcr
•• Uritish annexation niukes your domieile British, and under tlicsccir-
" cumstanees it is not thought that yon eau lay elaim to the di|iio-
" matic intervention of the Department. It was held in a reeent ciikc
" that if a domieil in Mexico was proved to have attached tn a
" British suliject there resident, this excluded hucIi jjarty from tlie
'• right to appeol to British inter\ention for redrt'ss for wron^R iulUctccI
"on the i)arty in Mexico. Tho same principle rules the i.nsont
•'case. No doulit the grievauces of which you complr.in entitle v. ui
• to much sympathy, hut if domiciled in Fiji your rc'lress muHt now
" he sought from the British government, either heca'jse it sanctioncJ
" such injuries or because it stands in the place of the Fiji authoriticH,
" by whom they were peri)etrated."

Porter to Burt, July 11, 1885.

" The American citizen who goes into a foreign country, altliounh
" he owes local and temporary allegiance to thot country, is yet, if lio
" performs no other act changing his condition, entitled to the pro-
" tection of his own Government, and if without tho violation of uny
f " municipal low ho should be oppressed unjustly ho would linvc a
" right to claim that protection, and tho interposition of the Aniericiin
" (Government in his favor would be cousidered as a justifiable iiit(>r-
■ ' position. But his situation is completely changed where by hi» own
" act he has made himself the subject of a foreign power. Altlioiiftb
" this Oct may not be sufficient to rescue him from punishment for .iiiy
•' crime committed against the United States — a point not intended to
" be decided— yet it certoinly places him out of the protection of the

1.)

piisc. lifli 1. 1
ikl Mot lin I'
ion of |,ui,|
liiivi> at iiii !•
'M'iKnty .11,, I
)tlu'r Hiilij. . 1
t li«' cinih I

>I)K pt'lilHl

liinist'lt' |>i
r oiir law-.
1. Siiid Ml

of HI) itlu'ii n '.I.
ikliil tt<iu)iiii'iirr
ntnry rfHiilii,,,.

itly Hliioiif; llio
UUll ailll>ll(< the

( ultiur KiiNcrii.

been iiiKitliir
T call vi.iir
hcsH iiistiiic.
(lovorniucnt
i(! Fiji IsliuidH
Islands w.'ic
t this |i('i>iiii
an Anieiican

Britisli (Jov
ic is no doiilit
i\v should 111'
led in (liv;it
juicd hy Ihr
for r('di'cs-i(
subject.

eil in the I'nitid

>n a|)|)cul for tlii>

Ihur voii Htill re-

h itiH not ni'c( s-

our ni1(>|itiiiM <if

;o iiifor tlmt \v:i

•a in Fiji al'ici-

under tlicHc i ir-

m tn the ili|>li>-

in a roc'iMit ciisf

attached t(i a

party from the

wror.fjh iullictcil

Ubh the iircM'iit

plf.iu entitle y'U

e'tresH niust now

jse it BanctiiineJ

Fiji autlioritics,

)untry, aUboiinh
ntry, Ib yet, if ho
tied to the iiro-
violation of luiv
ic woxild have ft
of the Aniericnn
justifiable intcr-
irhere by his own
iwer. Althonnh
□ishment for .itiy
t not intende<l to
protection of the

(Mr. Dickinson's C'lo-iinj; Ar^utut-nt.')

United StateH while within the territory of the HiivoreiKn to whom
he haH Hworn ulleKiauee, and, eouHeiiueiitly, tukcN hiiu out uf tlio de-
oeription of the uet."

'I'hiH citation iH from paKi) 454, s)>cti(>n l!tn. I did Hup-
|. iHc. and tbcrcfitrc did not treat it liltcrnliv in n\y brief —
that it was admitted anion;; civili/ed coinitries tliui a per-
iii liavihK u civil domi<'ile was aiiienablu to the laws of
<\\\v country in wbicli he was domiciled -even where ho
was not natnralixed, and that Uie only exception permit-
\\\\^i inttM-vention by the comWrv of ori^rina! allegiance
was in the (;as(; of injustice and discrimination against
him. That is, discrimination between iiim and the citi-
/. IIS of the plai-e of his domicile. That rule of non inter-
Miition admits of no exception except this: Section 242:

" ThiM rule does not apply wliere there in no h)eal judiciary or
wliere tlie juiliciul action in in violation of international law*, or
where the te»t in waived, or where tliere ih undue diHcriniiuation."

And it cites tlte cases in f'liina and Japan in tliose days,
lliat !i coimtry may intervei;.' to pii»tect a citizen, because
it is not admitted that the countii<>s where the citizen is
(jimiciled have judiciary or ni«>ans of applying innnaii
iii-.tiLe, and tliat make t)ie exception.

To permit the intervention of (Jieat Britain for the
protection of a citizen of (heat Britain domiciled in
this cointt"^ is to admit one of two things, and there
is no escape from it; it is a matter of national dignity —

Vjtirst, that our Courts and our country has discriminated
.i;,'.ainst a man because ho is a British snbject—treat-
iiig him tmjnstly because of iiis alienage; treating him dif-
fi iciitly from what they would treat an American citizen,
III second, that we have not civilization. Tliose are the
iimIv two exceptions. The countries are becoming so
civilized now tliat it is almost invidious to cite the old
authorities as to the now energetic, progr(>ssiv(» and
iiuickly civilized Empire of Japan. The abrogation of
the consular courts for the protection of citizens of other

40 ii.it ioiialities in Japan is provided by a treaty already
tniinulated to take effect at sonu* future time in Japan —
we now have maybe the States of Morocco or the States
ill .U'rica south of the Mediterianean, where it can be
siitl the protection of the Government may be invoked
(HI the grounds that they have not a regularly organized
jiiiliciary or the ways of civilization in the enforcement
III human justice and the protection of civilized people,
lint to grant the protection in this case is to class us with
tlie almost nameless countries of the deserts and wilder-

jOiiiss, or to do what is but a little less, and assert that
the subjeci of any nation in tlie world cannot get justice
at tlie hands of the United States authorities, or at the
liaiids of her courts. This Convent; au provides for no
sii. h case, of course.

I have treated the matter seriously and fully because
till' position is contested by my learned friends who have
(it "d. auKmg other things, the Koatza case. In that case
- Idiig ceased to be cited under the peculiar circumstance
as any authority for anything, as I shall show by direct

riO'inthority— Kostza had taken the first oath contemplating
natnralization in the United States. He was an Austrian
subject. He had declared his intention to l)econie an
.American citizen. This is fully discussed at great length
ill my friend's brief and referred to in the oral argument.
11' iiad a domicil merely in the United States, had not

I'V

III

SOS

(Ml'. Dickins^on's Closing AiKiiiiunt.)

become a citizen of tlie Uniteil States. In; owed mi;;,.
militaiv duty to Aiistrin, nnd there was no treat v \\i:li
Auntiia jM'iiililtiiig her citizens to heconie expatriatcil ,|
citizi'us of tile United States.

He went to Turkey, and Austria witii lier cruiser i
tempted to take him from Tmkish territory. Not In m
Austrian territory — and Kostzajiut liimself under the II ,^

loof the CVmsui of tiie United States in Turkey The Horn ,,1
tlie cousuhite was American territory. Tiiey did take hiiu.
Austria took him from Turkish territory; she took ihis
man from Turkish territory witliout tlie protection of tlm
American Consul. An Ameiican man-of-war, notwiih-
standing tiiat lie was only a domiciled resident of ilir
United States— he was not a fully naturalized citizen ili .
manded him from Austrian cruiseis and finally demandid
him at the mouth of shotted guns, and he was mm
rendered.

20 This is cited as an authority hy my learned fiiends tlmt
the United States asserts a juri-sdiction to protect a ddinj-
ciled foreigner against the country of his orifiinal allc^i
ance. Yon will find it in their hrief quite fully tieahd.
Iiet us see how far this case will go when fully e.xumini d,
Mr. Bei()ut' goes ()uite fully into the Kostza case for a mlu
of International law. We find at Wharton, page ."in.,,
Vol. II., the position of the United States (ioverniucui
stated as follows, and hy the same Mr. Marcy, wlio
conducted the Kostza case for the United States, ami

30 who was cited by my learned friends in support of then
contention:

" If a niitive born oitizi'D of the United States goes into a foreign
" oountry anil sulijects liiiuHelf to a ])rosecwtion for an offence anaiiist
" tlio liiws of that eouutry. this Ciovernnient eanuot interfere with llu'
" proeeeilings, nor ean it chiim auv right to revise or eorreet tlie 1 1 ror
" of Hueh proeeoiling, unless there has been a wilful denial of jiistire.
" or the tribunals have been corruptly used as instruments for |mi'-
" petrating wrong or outrage. This Government is in the ilnilv
" practice of trying and punishing the subjects of other States foi- df.
" lenses committed here. Those States have no right nor would tiirv
be allowed to interfere with our proceedings against their subjcils
upon any other ground than a wilful denial of justice or a re ir-
rupt perversion of judicial proceedings for the purpose of wrong nr
oppression.

40..

I ask to have the distinction made by him.self noted.

"Kostzo did not return to Austria or any of its domiuious, but it>
" officerB attempted to seize him in a foreign country withmit auv
" right to do so. Ihul Ko.i/;ti hufii iritliin iJio Jiiri.filictiuii uf Aiiairi.i
" irlii'ii hi' irnn sri^i'i/, IliP ir/mlf flmrnrlrr of tin- ci/.s'c irimlil Imrr In; n
" changed, and the forcible taking of him from the legal custody of
50 " Austrian officers could not have been defended on any principle uf
" municipal or Internatioual law."

He nas a Hungarian, an Austrian subject originally,
and went to the Ihiited States and made the usual dec
laration of intention to become naturalized. In 1s."p:! Im-
went to Smyrna on business, and theie obtained from tlic
I'nited States consul a traveling pass staling that he \v;i^
entitled to .\mericaii protection. In isr);{, while on llir
Turkish soil, he was seized by some person in the pay o|
6othe Austiiau Consulate, taken out into the harbor in .1
boat, thrown into the sea. and picked u|) l)y a boat from
the Austrian man of war " Hussar.'"

I am dealing with this more si'riously and at length. I"'
cause like the citation in the "Alabama" case, it is iisul
by my learned friends as the chief authority for their po-i

S! !•

ICM.|

(Mr. Dickinson 'b Closing Argnment.)

Ill, lliat a foreijiner doniiciletl in t'n' (rountiy may invoke
le protection of Iiis doniicik' aj;ainst iiis conntiy Of oi i^-
lal allfgiancc for tlu' daniajic ((nsecuKMit npon his viola-
II. of iiis duties to llial allegiance. The I nited States
nsnl went on hoard and renionstiated, Init llie captain
the "Hussar" persisted in letaining Kozt;i. Theie-
Miii the United States CliaigV- d'Atfaiits at Coiistaiitin-
ile requested the captain ot the I'nited States ship of

u.ir "St. Ijouis" to demand Koz*a's release, and, if iiece:;-

- ,iy, to have recourse lo force.

• As 11 couflict l)etwei'U the two ships of wnr would have ln'ou at-
'■ Ii'iuIihI wiili ^;reut aiiu);<'i° to thi>Khi]i|iiiig iii the ;>ort ami to the town,
" the French Coiisnl ott'eri'd liis nietliation, aud Kozta was tlieu «iveu
" liver to his careto he kept until tlie ilecisiou of the respective ttoveru-
" meiits was ascertniueil.

"On the 2ilth of Aufjust, IH.W, tlie Austrian Charge d'Affaires at
■ \i\'asliiuf;ton jiresimted a formal reiiionstranee to tlie United States
•■ (iovernnient, (irotestinj? aj^ainst the claim of the United States to
;c iilViird protection to Kozta, aud calliug on them to disavow tlie con-
•• iliH't of their atjents aud to grant rejiaration for the insult ottered to
'■ I lie Austrian Hag.

•■ Mr. Marey replied on the 'itith of Septemlier, IHiiK. contending,
•• lirst, for the general right of every citizen or subject, 'having faith-
" Inlly performed the past and present duties resulting from his rela-
'■ lion to the Sovereign Power, to release himself at any time from the
•' (ililigatiou of allegiance, freely ([uit the laud of his liirth and adoii-
" lion, seek through all countries a home, or select anywhere that
'■ which ofl'ers him the fairest prospect of happiness for himself aud
■■ his posterity.' "

30 L'ltoii that proposition of Maicy's hangs the argument
of(ireat Britain. Your Honors will ohservt* that on the
tarts it is [lurelv a dictum, and of no weight as an author-
it) in inteinati'>iial law, and was afterwards renounced hy
.Marey himself.

Ciiief Justice C'ockburn, in his Nationality, page J21, et
stij., comments on Marey "s position, quoting it as follows:

•' .\s the national character, according to the law of nations, depends
'■ n|iiin the rlomicil, it remains as long as the domicil is retained, and is
" clianged with it. Kozta was vested with the nationality of an Amer-

■ i'lin citizen at Smyrna, if he, iu the coutempiutiou of law, Lad a

• .idinicil iu tlie United Stotes."

imself noted.

And comments thus:

•The matter was eventually com|iromised by an arrangement bo-

■ t ween the .Vustriau Internuncio and the United Slates Minister at
•■ I'oiistantiuople, that Kozta should be shijiped ofl' to the United
" Stiites, the Austriaiis formally reserving the enqity right of proceed-

■ liig against hin. if I..' should return to Turkey.

•• Till' reasoning of Mr. Marey, which is remarkable for its boldness

" in riirrying the doctrine of acipiired nationality further than it has

?'-'■• i\ II' lieeu carried, and iu whii'h the eft'ect of domicile iu respect of

•• civil I'onsequeui'es is confounded with its efl'eot as to political conse-

•' i|iu'ii('es, is altogether inadmissible. Uomicile, aud even resideuc,

" in II piirlicular country eutitb s the )iarty to the protection of that

" ciiiiiitry only so long as he is within it; and the eflect of such a rule

" as tlmt contended for by Mr. Marey would be to introduce the most

" liimi'iitalile confusion into this branch of the public law. Naturali-

" zatiiin is generallv, and should be always, accompanied by some iiu-

"tlii'iitic lU't, whicfi cau be referred to, and which speaks authorita-

" tivc'jy. Hut if mere domicile were to give the rights of citizeusliiii

" I'Vi'iy case would necessitate a judicial imiuiry upon a matter which

, " I vi'iy lawyer knows to be, dependiug, as it does, on intention, a

■''^ " lui'stion often most difficult of solution.

" It is theri'fore satisfactory to find that in the subsei|Heui case of
•• Siiiiiin Tousig. Mr. Marey no longer held the same language. Tou-
" '•if.', a native of Austria, had acijuired a domicile in the United
■• Stiiti's, but had not become naturalized. He returned to Austria,
■' Willi an Aniericau State passport, and \va'. arrested on the charge of
" "iViiises committed b«'f ore leaving Austria. He appealed to the United

i< ''

!»00

{■

I' wm

lO..

20 '

30'

(Mr. Dickinson's Closing Argument.)

States Mininter for ]>roteetion, and the latter having I>rou);li
case before the State Department, Mr. Marcy, on the lOtli of .1
ary, 1854, writes ns follows: 'I liave carefully examined yon
spatt'hes relating to the case of Simon Tousig, and regret tu
that it in one which will not authorize a more efl'ective interl'c!
than that v hich you have already made in his behalf. It is ti h
left the country with a passport issued from this department :
as he was neither a native born nor naturalized citizen, he wa
entitled to it. It is only to citizens that passports are issued
is true that there was, as is afterwards pointed out by Mr. ."\l,,
the distinguishing feature in this case, that ' Tousig had volunt
returned to his original country, and had placed himself ii
power of the Austrian authorities;' but the language cited simu
show that Mr. Marcy had abandoned the theory that ddin
affords a right to protection beyond the territory in which thr ,
icile is situate. Mr. Marcy fully assents to the position that l
ralization can give no immunity in respect of oifenses comiinii.'
before leaving the country of origin. He goes on to say :
" Assuming all that could possibly belong to Tousig's case— tliat lie
had a domicile here, and was actually clothed with the uotiniuilitv
of the United States — there is a feature in it which distiuguisli, , ft
from that of Kozta. Toiisig voluntarily returned to AuHtiin. nuil
placed himself within the reach of her municipal laws. Ho wiui liv
his free act, under their jurisdiction, and thereby subjected liih.soif
to them. If he had incurred penalties or assumed duties \\ hilo
under these laws, he might have expected they would have Ihm i; ,11.
forced agaiust him, and should have known that the new puliiical
relation he had acquired, if indeed he had acquired any, couM not
oi)erate as a release from these penalties. Having been onci- sub-
ject to the municipal laws of Austria, and while under her jui isdu--
tion violated those laws, his withdrawal from that jurisdictinn. iuul
acquiring a different national character, would not exempt bini rr.>m
their operation whenever he again chose to place himself nmler
them."

I he
111-

.1,..
nd
,re
lie

'■ut

-Kit

t*V,

ilv
ili'e
-to
■ilo
'111-
in-

lu anothei- despatch Mr. Marcy used the lan,mi;ii,'e
which I have read to youi- Honors on this suhject, wlmli
is squarely in line with Chief Justice C'ockhurn, on the
true rule of International Law, and with all tlie anthmi-
lies of the world. He discovered subsecinently, wlim lie
came to a case that involved the question of the (i|iiiii(iM
e.xpre.ssed in his dictum which my learned friends havo
Ui^ed, that he was wrong.
40 A little further on, at page 124, we have this from 1. ml
Cock burn:

" In the case of De Sandt, a Prussian by birth, who had gone ti' the
" United States, and had tliere declared his intention of bt'coiiiiiin i>
" United States citizen, but had returned to Prussia prior to nalnr.ili-
" zation, and liad thereupon been ordered by the authorities to liuvo
" the country, Mr. Uaruard, the United S'lites Minister at tlic Ciiiirt
" of Berlin, on being ai)pcaled to by De Sandt, at (mce admitted timt
" under such circumstances the claim could uot be insisted on ; :iiid
" that 'as Sandt iid quitted his residence in the United States In foro
" perfecting his ui turulizatiou, and had again fallen up his uImmIi' in
Prussia, it was ii,ipossibIe to claim him as an American citi/.rn.'
" Mr. AVheatou, one of the most distiuguished of American jniisls,
had, on a former occasion, when Unit(!d States Minister at li. rliu,
held similar language, on lieiug applied to tor his ofHciiil int. rlir-
ence on b( half of one Johann Knocke, a Prussian by birth, wlu,. iit
the age of '21, had emigrated to America, and become iiatuiMliz.il
there, but, having returned to Prussia, had been required t.i do
military dutv,

" 'It is not in my |)o\ver,' said Mr. Wheoton in rejdy, 'to int. ifeiv
in the manner you desire. Had you remained in the United Stiit.'s,
or visited any other foreign country (except Prussia), '<uyour l:i'\ful
business, you would liave been protected by the American iinth.iri-
ties, at home and abroad, in the enjoyment of all your rights and
privileges as a naturalized citizen of the United States, lint,
having returned to the country of your birth, your native domicile
and natural character revert (so limg as you remain in the rni-^smu
dominions), and you are bound in all respects to obey the Iuhs ex-
actly as if you had never emigrated, ' "

60.,

iM)l

' «

ge citi'il st'iii , to

(Mr. Dickinson's Ciosinjij Argument.)

Then he proceeds to cite, as American doctrine, a letter
from Mr. Everett to Mr. Barnard, of January 13, 18.5:5, to
which I have before adverted. These are the conclusions
of this learned author, Lord Cockburn, page 185:

" The following propoHitions aH to the offect of naturalization

• in the view of other uiitiouH than our own, may be stated as evolved
•' from the laws which have been set forth aud th'e discussions which

have been detailed —

" 1. That naturalization, as occurring in other countries, and as dis-
tinguished from the incomi)letc aud iuctliciicions form of it known in
this, has the effect— at all events where the iirelimiuiiry comlitiois,
' if any, by which the party to be naturalized could denationalize

■ himself and divest himself of his former iiUegiance, have been ful-

• tilled— of conferring to all intents auil purposes a new nationality,

• and at the same time of destroying the old— of placing the party
' naturalized in the pt)sition of a natural born subject or citizen in

■ relation to the Htate which adopts him, and at the time of dissolv-
' ing the ties which bound him to the parent State and freeing him
' from all obligations of allegiance or duty to its Sovereign or Govern-

• uieut.

" 2. That nothing short of actual naturalization, carried out by such

• solemn and formal act as the law of the particular country may re-

■ ipiire, will have this ott'ect. Domicile, residence preliminary to

■ naturalization, declaration of intention, with renunciation of former

■ allegiance or rights, will not suffice to give the character of citizen

• or stibject of the country of adoption, which can be ac(piired only
' by the act of uaturalizutiou itself.

" 3. That the ellect of naturalization is prospective only, and has no

• rotroaclivo operation."

iif

Then, on page 139, the author says:

" Hi/ llie xiDiw CDinili/ (i^ "'iliiii'", 'III iilien in entiUnl In llie /iriitiKlinii 'if
" III'' iiiinilrii ill ir/iiili Jn' iiini/ In'; unit in ninrii fur lliis iirolixiiim owes
" ofieilli'iici' III IIikIiiii; mill liin/nii-'iri/ (il/i>i/liiiirf Id the Surfrrii/n or Stale, so
" iia III l>e tiiil>lt; ///'' //c nn'iirnl hum snh/rrl, In iln' jirunllifs irliirli ulliicli to
" III'' violiilion iif llir l'iii\ Hint l/iix III ill'' I'.etenl of hi'inij pnniflnilili'/iir li'i'iison
'■far mill tillrmiil (Hi'iinst lln' Sl'ih-, rrm llniii'ili liis uini luimlrii uliindd In' at
" /(■(((■ "•//// /7, if III' Ihis Iiii'h /ii'i'iiiilli'il III resiili' iturini/ tini'' nf irar."

I road now from Twiss' jjaw of Nations. Your Honors
will find this work fiecjuently cited by my learned friends
ill tiieir brief, and, indeed, we find quite a chapter from
40 Twiss in their argimient in reply, in the precise words as
it is (juoted in the Costa Kica case to which I am coming
a little later on. And although it comes under a dilTer-
ent ii"ad in the brief, it may bear upon the question of
jurisdiction, to which your Honois adverted a few niom-
fiits ago.
I read from Section 1(10. pnge 231:

" Considered from au international point of view, the jurisdiction
'■ (if a nation must bo founded either upon the /).•/•«)» nr the projjerty
' ■ ing irilliin il.f Inrrilnrii. Considered from a civil point of view,
jurisdictionmay bo founded upon natural as well us local allegiance;
in other words, every independent State claims to make laws per-
petually binding upon its natural born subjects, wherever they may
tie. But natural allegiance, or the obligation of perpetual obedience
to the Government of the country, wherein a man may happen to
have been born, which he cannot forfeit, or cancel, or vary by auv
ihange of time, or i)lace, or circumstance, is the creature of civil
law, and finds no countonanco in the law of nations, as it is in direct
conflict with the incontestable rule of that law, 'E-i'tra lerritariiimjiis
'lici'iili inijiiiw nnn jniirli'i:'

■' Vattel, accordingly, holds that a citizen has an absolute right
to renounce his country and abandon it entirelv — a right founded
oil reaRous derived from the very nature of political society. For
instance, if the citizen cannot ^irocure sustenance in his own country,
it is undoubtedly lawful for hini to seek it elsewhere. If the society
of which be is a member fails to discharge its obligations towards a,
litizen, he may withdraw himself."'

;o,.

60.

t ■■

!»(»•_>

, 1 ' ' ..

50..

(Mr. Dickinson's Closing Argument )

We find statenjents here at variance with Inteinatin! ,1
aw as iield hy Great Britain and tliis country elsewln i^
liscussed hy me, hut that is not maverial to tliis i)oiMt;

■•Twins, Hoc. 1(11. — Ai'fordin^to tliplaw of iiiitious, wlien llie niiti ■! al

' I'liiinictcr of II pcr-sou is to bo iisoortaiticd, tlio first question i~ m

' what torritorv (loos ho rosiilc, and is ho rosidout iu that toviiliiv

' for toniiiorarv purposos, or i)oriiiaueutlv. If ho rosi'los in a ^'i.ou

' torritory i)ormanciitly, ho is rogardod as adhoriuj; to the nation to

• wliioh tlio torritory belongs, and to bo a mouibov of tho political

" body sottlod thoroiu. If ho is only rosidout iu a given terrilirv

" for temporary jiurposos. he is regarded as a stranger thereto, anil

" a farther question must then lie uskod, in what eouutry is his

" prineipal establishment, and where, when ho has returned, dues

*' ho oousidor himself to be at home? Tho eoiintry whieh satisfies

" tho oonditions implied iu this further (piestion is designated in the

" language of publio law the domieil of tho individual, which Vuttcl

" dotinos as u fixed residouee in auy place with the intention of alwu'-s

" remaining there. "

Then there is a discussion of domieil which I will not
detain the Court hy reading. At h'ection 1(>8 the wiil. r
says:

" Till' ri(//if/iil iwrrcist' of Jiirisdiiiidii im tin' /jiiii i>f a milidii dopcuilH
" upon one or other of those eonditioua, that /lie jiiison nr the pro]" rtv
" (s- in'lliiii (lie tirrilorii of Ihe wilimi. In either of those eases a nuticiu
" is on])ablo of enforcing the judgment of its tribunals in inritns. If
" the persons are withiu its territory, the sovereign power of tlio
" nation can compel them to appear before its tribunals, and can c n-
'• force its decisions in pi-rndiniiii. If the property is within its t( iii-
" tory, tho sovereign j)ower of the nation Las control over it, and can

enforce its judgment in rtiii."

Also from Section 1<>4:

" No person according to the law of nations is without a domioil.
" In tho absence of all evidence of any other other domieil dr /,{,/,,,
" the domieil of origin is the domieil ilejiire, but a person may havo
" more than one domieil for commercial purposes."

I now quote from Dr. I'liillimore, wiiich will he found
on our hrief at the hottom of page 47. The citation tliere
is incorrect. It should be " VVliarton's Digest":

" But I must agree with HefTter in holding that a mere resideuoo iu
" a State owes for the time being allegiance to such State, and nnvy be
" guilty of treason to such State if as a private person he wages war
" against it or rendors comfort to its enemies.

" CJobbett, for instance, when in the United States was never natnial-
" izod, nor did he over restrain himself from declaring that he was
" and continued to be a IJritish subject, yet no one would have jiro-
" tended that C'obbett, while residing in the United States, was not
' ' liable to bo indicted for all ofl'cusos, |)olitical or otherwise, made iu-
" dictable in tho place of his residence, aud the same j>ositi()ii luis

" been, as wo have seen, taken by the British (rovernment iu rcH| t

■ to citizens of the United States who, when residing in Ireland, have

been engaged in conspiracies against the British Government."

I desire to sui)ijlement that (luotation with a statemtnt
of the law from Baker's Halleck, page 2U!>, comnieucingat
Section 17:

" In regard to the citizens (native or naturalized) of a State, while
" within its territory tho jurisdiction of tho sovereignty over them is
" complete and irresistible. It cannot bo controlled, and ought ovcry-
" where to be rospoeted. In regard to citizens domiciled abroad,
" nations generally assert a claim to regulate the rights, duties, acts
60 " and obligations of their own citizens wherever they may be donii-
" oiled. ' And so far,' says Story, 'as those rights, dtities, obligations
" ' and acts afterward come under the coguizanee of the tribunals nl'
" ' the sovereign power of their own country, either for onforcenuMit
" 'or for ))rotoction or for remedy, there may be no just ground to ox-
" ' elude this claim. But whore* such rights, duties, obligations ami
" 'acts come under the consideration of other couutries, and espaciiilly

•)

nti'i'iiatii" il

•y »'ls(nvli' 10
his point;

ion tlio nati'i 111
: queHtion i>. m
1 tha* tcviil. ly
si'.'iCH ill 11 (.'iviii
o tbe imtii'ii to
iif tho iiolit:. al
given tcnil' vy
or tlioioti). a ail

oouutvy is his
voturnod, (lis

wliii'h satisl'ios
>sit;iiat('<l ill till'
il, wliioh Vattj
>utii)U of alwa-8

:;h I will imt
VA tlie vviilcr

! ntitidii ilciitiiil»
iir the iiroj" rty
3 casoH a nut inn
Is //( iiirihis. If
n power of tlic
nls, and eaii iii-
witliin its ti rii-
over it, and laii

bent a doniicil.
ilomicil (/•■ /'•"'",
lorson may have

will be folliul
itation tlii'io
St":

■re residouco in
ate, and may be
he wages war

IS nover natiiiul-
in(? that he was
ould have inc-
State», was \\<A
rwise, made in-
to positioti 1ms
niont in resiieit
in Ireland, luive
ernmout."

1 il statement
jiiiDUMicin^al

if a (State, wliile
uty over them is
inil onght every-
inieiled alnoail,
;hts, dnties. aets
•y may he doini-
itios, obligationa
the trihuuals of

for ouforceiiient
ist ground to ex-

oVdigtttions lunl
ami espsoially

!t(»H

(Ml. Dickinson's Closing Argument.)

• of tho country whoro such eitizeuH are domieilod, the duty of reeog-

• nizing and enforeing sueh claim of sovereignty is neither clear nor
' generally admitted. The most that can be said is that it may he
' admitted I'.c roy/nV'fA' 7' /'//"/»,• but it may also be denied r.f Junlilin
■ i/i-iitiiim, wherever it is deemed to be injurious to tlie interests of
•foreign nations or stibversivo of their policy or institutions. No
•one, for instance, could imagine that a judgment of the parent
•country confiscating the property or extinguishing the personal

• rights or capacities of a native on account of siicli foreign resi-

• donee would be recognized in any other country.' "

» * x- » » » »

•• The same distinguisliod writer says that it is clear, niton general

• principlos of interuatiimal law, that a nation has a right of jurisdic-
' tton over foreigners resident in the country, and tho extent to which

• such jurisdiction shall be exorcised is a matter purely of municipal

■ arrangement and policy. All persons found within "the limits of a

■ ^.'overnment (unless specially excepted by tho law of uations),

• whether their residence is permanent or temporary, are subject to
' its jurisdiction, but it may or may not. as it chooses, exorcise it in

cases of dispute between foreigners. "

I now desire to again call your Honor's attention
t(i the Barclay case under the mixed Commission of
IsTl, which will be foinid in the report of tiie British
;ijient in the British and American Claims Commission,
ul page 280. Upon this point my learned friend, Mr.
Ui id well, challenged my statement of the position of
.judge Hoar, then Attorney-General of the United
States. Barclay was a British subject of original
allegiance, domiciled in the State of (leorgia, in a bellig-

3oeieut country, the belligerency of which had been recog-
nized by Great Britain. Of courre Ju<lge Hoar's position
necessarily demanded that he should take the extreme
contention for the local sovereignty of tlie United States,
and maintain the jurisdiction of local sovereignty to the
utmost limit that International Law would permit. We
have briefly adverted to the fact upon the suggestion of
your Honor the other day before we reached this branch
o1 the argument, that the ultimate judgment of the Com-
mission turned upon other questions, questions relating to

40L'fitain verbiage of the Convention. But in the argument
made by Judge Hoar, aftei a most exhaustive examina-
tion of International authority, he says that a domiciled
British subject owes such allegiance to the United States
that he cannot lecover against the United States. Great
Britain had lecognized the belligerency of the Southern
State's; tho British subject was not domiciliated in the
Northern States, but was in that portion of the United
States in rebellion against the Governuient. Now, I cite
tiiis CUSP, because it is tho t)iost extreme position that a

5odi>tinguished and conscientious lawyer like Judge Hoar
Could take against the contention of Her Majesty's Govern-
ment, that a domiciliated citizen of Great Britain could
recover against the United States. Of coiuse it is impor-
tant, in its bearing upon this case, bow far that conten-
tion would atimit of exception t<» the obligations of a
citizen of Great Britain domiciliated in the United
States to the sovereignty of his domicil. If he
notes any exception to that rule as to the dissolution of
tile relations of allegiance between the country of his

6oori^inal allegiance and a domiciled subject it will bear
vei y strongly on tho question here in view of what the
Conimissionei-s ultimately decided. After showing that
this man had been twenty-tive years absent from Great
Britain, that he had acquired a permanent domicile in
Georgia, and continued there until April Dth, 1865; that

' in

<?ih,,h

(Mr. Dickinson's Closing Argument.)

he became an owner of real estate in hia own name \
absolute title, and had a permanent residence with : k
family, h* states this postulate:

"Under such circuinstaucpH nu iuliabitant i» a swbjei-t of '1,^
" Soveroiguty unilor wliioh ho lives. He nml his property are iiLim-
" Kubjeet to all taxes aud imposts which that Sovereign may or uii. it
" choose to impose for purposes of peace or of war."

Then he cites a large number of cases upon tliat pun t,
all of which 1 have examined, and they are in point.
But further says, and this is the point:

" An inhabitant so domieilod owes civil and political alleRiMn ■.>
to the local Sovereignty, lui/enK -is mininsl llie Socrrrii/ii/i/ nf hin liirlL '

My friends statein their brief that Judge Hoar took id
such position and made no such exception. Now he L is
taken the position as strongly as it could be put, citing iii,-.

2oauthorities to show the relation and separation betwn n
the domiciliated subject and the country of his original ,illf
giance. It was his point and aim, of course, to make ilic
separation as wide as possible, but he is a man who wcmiM
not omit a modification and dear exception found in (mi
trolling authorities, and therefore he stated this broad t x-
ception frankly, as he found it ii' the books. A foreignci l.c-
comes a civil citizen of the Umied States if domiciled liiiv,
but the exception is squarely stated that at the same tunc
he owes civil and political allegiance to the country ol Ins

3odon)icil. Tiie exception is as broad as the rule as tu the
sovereignty of his origin. And that is the exceptinn td
the lule of local allegiance on which 1 plant the posit iuii
of the United States as to the citizens of the Uniteii St itcs
domiciliated in Great Britain. Allegiance means sonii'-
thing, and has results entailed, if it exists, and as i(i,i
citizen of the United States domicihated in Great Britain,
not yet naturalized, then it entitles hini to the protection
of the United States to see to it that he is treated e(|ually
as well as British subjects under the law I have aire i.iy

40 cited, and furthermore reserves to him, whenever ho >» ts
face homeward or passes across tlie border, all a citi/iiis
rights, ami all the privileges of American citizenship iv-
served foi' those always within our borders. At Inure
such rights and privileges immediately attach on ivtniu
as if never suspended. What do they owe in e.xcliaiiuff
What is the reciprocal duty? What does the term " .Al-
legiance" import as due from such citizens in return Im-
this reciprocal protection? They have not surrendercil it
by naturalization and adjuration, and they retain it lor

50 their benefit. The bond remains, the ligament that himls
the citizen to the country as well as the country to the
citizen who lives across the border never having Imiii
broken or dissolved, but retained for all the benefits df
American citizenship, can that bond continue to c.\ist.
aud yet the citizen commit acts in derogation of the
sovereignty of his country, and then call upon Givat
Britain to make reclamation for damages for all he lias
suffered from his acts in violation of his Sovereij;ii's
claims? Judge Hoar could not find in the books any siuli

f)Oruie, without the exception; there still existed this r.x-
ception, that while such citizen might be protected, and
make reclamation through the country of domicil against
every other country of the world, he could not be protct tid
against Ins nation of original allegiance for a violation of
her sovereignty. It is stated in broad terms, aud I do not

' ll'l

t.)

\vn name v
nee with i i-;

sulljoot l)f lU

iporty arc ai.,^^•
;n mav or mi, at

m that poll I.
in point.

litioal alloRiiiii..'

<!;/ iifliis hl.-th ■

Hoar took no
Now ho Ills
put, citing tlif"
ation betwi 111
is original ill It'
e, to nialvt.' ilio
lan who wcnlil
1 found in ( mi
this broad > x-
Aforeignci lie-
domiciled liiif,
, the same tiiiic
country ol Ins
i« rule as tn tlic
he exception tn
uit the posili.iu
|e United St lUs
re means sonu'-
s, and as tn m
Great Britain,
;he protection
treated etiii:ill,v
. have aliTMiiy
henever he sets
, all a citi/.iiis
citizenship ic-
rs. At lioi!:e
ttach on letiiin
e in exclian.ur;
the term " Al-
ns in return tor
surrendered it
ey retain il fur
nent that hinds
country to tlie
r having Imiii
the beneiits of
inue to exist.
ogation of the
1 upon Gnat
for all he lias
lis Sovereign's
books any smh
xisled this ex-
protected, and
domicil against
aotbeprotertcd
jr a violation of
na, and I do not

(Mr. Dickinson's Closing Argument.)

understand why my statement that in the Bai-clay case
liidge Hoar strongly conceded this position is challenged
|iy my learned friend.s. In the British Keport on the
jiarclay case hero I find this statement:

" This alloKianco and oliligfttiou Invvc no limits or i|ua1iflcation8,

■ anil tho mere fai-t tliat lio may not have uouo tlirouf;1i the forms of
• naturalization would he, uudor thi' (.'ivrnnistanpcM of his case, imnia-

li^) ■ terial. It would furnish no answer to that iSoverei^uty if it should
•■ see tit to make the same demand upon him as upon its natives or

• naturalized eitizens for eivil or military service in person, or con-

■ trihution from his jjroperty, movaVile or inimovahle, for exigencies
■ (if peace or war. No power could call in ([uestion these absolute

• rights of the local Sovereign, inilrxa il In- the sovereignty of this in-
'■ habitant's birth."

.Judge Hoar never stated this broad proposition of the
separation of the tie of allegiance without naturalization,
unless with it his fair mind stated the exceiitioii, howevt r
strongly th(! imm<idified ruleniad*' for his contention.
''^ It was not for the interest of his case to make the ex-
(1 ption, but his examination of the authorities compelled
liini to make it as an exception, and the sole exception.
He goes on;

•' Such a question could not be settled by the municipal law of tho

• Sovereignty of his birth, but by the Law of Nations. In the i)reBent
•• state of the Law of Nations it is extremely doubtful if there are any
" circumstances which would justify the Sovereignty of his birth in
•• interfering for his protection. If there be any, it would be such as
•• furnish proof of the local Sovereign in some way attacked through

-o " this person the sovereignty of his birth. Such would be, for iu-
" stance, a law or act discriminating against the claimant on account
" (if his nationality or connection with the country of his l)irth, or in
•• derogation of the rights of that country as recognized by Inter-
'• national Law."

" It is not necessary to citizenship that the domiciled inhabitant
" should have the right to vote or hold jiolitical office."

.\nd then he goes on to discuss that question.
.•\t one o'clock the Commissioners took recess.

At half-past two the Commissioners resumed their seats.

Mr. Dickinson: — Your Honors will find the arguments
and all the briefs for and against Barclay most interesting
on tiie questions presented here, and yoiu- Honors will find
tile full briefs stating the position of the United Stales and
of ( i reat Britain in that case, commencing at page 2tl7 of the
liiitish report, reviewing all the international authorities.
.Judge Hoar's brief is included in the pages of the citation
-\jiisi given. It is on page 280. The diplomatic histories
of the countries, the judicial judgment of both countries,
and the writings of publicists are reviewed. It was of
roLirso one of the most important of the cases that were
latdie that Commission of 1871. In the conclusions upon
till' wlude subject by Judge Hoar, is involved the whole
I'xiiiit of the right of i)rotection of a government over its
citizens, and tho whole extent of the obligations of the
citi/.cn to his native allegiance and to tho allegiance of his
iloinicil. There is a difference, as I stated in my opening
' Jpio|iosition, between the obligations of a citizen, and the
right of protection of the country of original sovereignty
over a citizen domiciled in another country. They are
not concurrent. And both propositions are here so clearly
stated in the arguments, adverse to the position of Great
Britain, and so clearly stated in the exceptions that I

i'll

te»

906

'V'i

' SPp

lr>

r^:-

(Mr. Diikiiison's Closing Argument.)

liiive callfd marked attention to the case, as they sniu up
all the (liscnssion on the subject. A domiciled Hriti,||
subject, nnder the |Misiti(in taken by Judge Hoar, dwts
special and piditical allegiance to the Tniteil Stales jnd
may he protected by the I'nited States except against ihc
sovereignty of iiis birth lor acts in derogation of tije hiiii r
sovereigidy. Then as to his lights of protection.

lo The extent of th»' right of protection of the soverei-^iiiy
of his birth, iis to tiie samiM'itizen, is also staled in \\\q
ne.xt jtroposition; it goes to tile length which 1 have, |ii,..
sented toyoin- Honors,- the case of <liscrimination onlv.

Judge Hoar .idniits to the fullest extent, aftci ,i
thorough review of all the authorities, tlia*^ the natioii nf
domicil cannot protect a domiciled citizen as against tin.
country of his original allegiance if he bo not natinali/..(|,
for acts in violation cf his allegiance; to his original -miv-
ereignty. You have, therefore, the matter presontnl iu

20the full extent of the doctrine in each case; the riglii uf
protection and the obligation of the citizen. To illiist imIu
the position of Judge Hoar and the undoubted conclu-ioii
of all the authorities, let me state this proposition beai iiifr
also upon the subject of jurisdiction, as to which I sli;ill
deal in detail later on.

The i)roposition we expect to establish beyond all i|ii('s-
tion as to the high .seas is that the sovereign autliuiity
extends on the high seas over all subjects and citizens of
the country of the sovereign and over all domiciliated jicr-

30 sons and their ships; that on the high .seas there is the
conniion right of jurisdiction, the best analogy to wliicli
pos.sibly, from private rights, is a tenancy in cominmi.
Every nation has a connnon right in the high seas. Im!
every nation has jurisdiction over the high seas and over
its own subjects on the high seas, binding them and their
ships. And the limitations which my learned friends
have iu their brief pointed out, upon the jurisdiction nf a
nation, are limitations only upon the juiisdiction nf a
nation as to the territory of another sovereign having

40exclusive jurisdiction over his own territories. Tlu'
doctrine is laid down by Twiss and all the autlmri-
ties, that the sovereign authority of one nation cannot
take even its own subjects out of the country of aiuitlu r
nation. It cannot exercise any jurisdiction over tiie
dominion of another sovereignty. It cannot punish
its own subjects in the dominion of another sov-
ereignty: itcannot molest them in the dominion of anntjui'
sovereignty. The moment it does that, the question lie-
comes a national one, and it is an invasion of the territory

50 of the equal sovereignly. But, on the other hand, on tiio
high seas, the rule of International law is equally well
settled that every nation has juri.sdiction over the high
seas, but not an exclusive jurisdiction; and that the laws
and sovereignty of a nation may he extended over its
own subjects -or what is called in 'he books its " na-
tionals" — on the High Seas, and of course over ships
owned hji llieiii on the high seas.

Now, we will suppose, as Great Britain has in several
instances in history done — that she claims exclusive jnris-

<JOiliction over a certain sea, and we will take for illustration
Beiing Sea. Suppose Great Britain asserted by sovereign
authority— without regard to her municipal laws— such
jurisdiction over Bering Sea; and by a proclamation she
prohibited any one from taking seals for a year, or tiiiee
years or four years— the length of time is immaterial -in

!t(t7

(Mr. Dickinson's Closing Argnnient.)

till' waters of Ik'iiii}; Sea -no one wonld deny in tliat
;ise-(>lhur niitit)n.s niakiiig a liuiin only tliat tlioy had a
iDnnnon riglit in Bt'iinji Sea— no one wonld (K'liy Iut
juiisdittion in llie sea any more Mian tiiiil tlicy wonld
ilcny lu'i- jniisdiction in llio Atlimtii- or I'acifii- ncoan ovrr
licrown nationals, and tlic only i-ontidvcrsy whitli wonld
arise in c-ase of lu'r claiming cxcUisivc jnrisdictiun over

u. Ht ring Sea wonld be on the part of a nation, who wonld
>ay: that is not a closed sea and yonr jnrisdiction is
not exclusive. Hnt, she does assei't that jnrisdiction as
.xclnsive and lorhids the taking of st'ids in these
u liters. The citizens of the United States takt; the
position that (Jreat Mritain has no exclnsivc jinisdiction
ill Heriiig Sea. and they insist upon taking seals
ill these wateis. At the same time the liege snh-
jtcts of Great Britain— and 1 nse the word "•liege"
ill its national ami hroad intendment of obedience to the

;:os()veieign anthoiity— the liego snb.jects of (Jreat Britain
(ioiniciled in the United States, also take the position that
tlieir conntry, and the only conntiy to whom thev owe
original allegiance which tiiey have not foresworn by
naturalization — their own sovereignty having jniisdiction
over the high seas, and over them everywhere on the earth
except in the exclnsive jnrisdiction of another conntry- -
these subjects say also, that this is a right in common not
only to British subjects, but to all the world, and they go
ill with American citizens and take seals notwitlistanding

30 the claim of the sovereignty of Great Britain. I will
not take a case of municipal law; that is immaterial;
tiie assertion of the soveieign is all that is required.
Great Britain makes the seizures under hei' assertion of
exclusive sovereignty. She takes the ships and proi)erty
of American citizens in this sea, a thing she would have a
right to do if there were exclusive jurisdiction. She takes
also the ships of her own subjects in the sea: not iii
American territory, bea'' in mind, but in the sea. The
Iimjierty of the American citizens having been taken who

40 were there in the asserticm of the right to tish and take
seals in Bering Sea as common ground, they appeal to
tlieir National Government, and that Government after
(hie consideration is disposed to back up their own
citizens in their conclusions that (ireat Britain has not
exclnsive jurisdiction in the sea, and it becomes at once a
national (lUestion. It is, therefore, necessary to settle the
question of exclusive jnrisdiction- not common jurisdic-
tion -either by the avbitrament of war or by friendly
negotiation and arbitration. Now, it having been

SOgcttled by friendly arbitration that Great Britain is
wrong, and that, notwithstanding her vigorous
contest to the contrary, she has only common
jinisdiction in Bering Sea, she consents to a conven-
tion to pass upon the claims of persons whom the United
States have the right to protect against Great Britain, hut
is careful to limit the claims that shall be considered by
the Commission under the Convention by words carefully
inserted after several drafts, limiting the United States
to recover for those only whom the United States have

fca right to protect. The American citizens pre.sent their
claims. British subjects who at any time had the priv-
ilege of taking out naturalization papers in the United
States but who never did so, reserving and retaining
tJHMr right to demand British protection to a degree
always, and British citizenship any time when they

I r ;i! it-it

908

(Mr. Dickinson's Closing Argiitncnt.)

Bhonld re t'nter her dominions— British suhjects livjiij.- ,,
the United States, I say, also enter the Internatii! i|
Court and they say: We are still Hiitisli siihjects so f;ii ,s
that is concerned; we still claim the protection of (ii. ,t
Britain; \\v have not changed to citizens of the I'nii .|
States hy the only method known to International lnv
hetween tlies^e two countries, namely, hy taking uui

lonatnrali/ation papers; we still claim the protection uf
Great Britain always as against the United States so In
as protection from injustice is concerned -but nevtiili,.
less wo also claim the same rigiit identically as tlin-c
American citizens in this International court, our slii|is
were seized in a .sea where Great Britain nndouhfcdly hy
the law of nations iiad juiisdiction over her own snl)j(ris,
hut we claim (himages— and we demand the value (if mn
pioperty seized at the time we weie British subjects, ;iiii|
w hjle defying the proclamation of Her Majesty the (^in rn.

2orind we propose to enforce our demand through the Injird
States Government. That, your Honors, is where il is
proposed, by the contention of the l^ritish counsel in I his
case, to biiiig this niaMer as a question of Internaticn il
law.

Now, of such a i)eison claiming the protection of tin
United States against their country, precisely as I Ii;i\(.
put it. Judge Hoar concludes that such a British citizen,
merely domiciled in the United States, could be protniMJ
if it weie France or Germany or any other nation agjiinst

30 whom this juiisdiction were asserted; hut. inasniucli ;is
be still retain(d his allegiance and all his riglits ih a
British subject and cotild assume them at any time lie
chose, it results in this that that British subject could imi
invoke the aid of the United States for protection agaiiisi
bis country of original allegiance. Kight on the other li.inii,
on the question of protection, that in the same conditiun
I have nn-ntioned, a citizen of the United States, still iv
taining his allegiance to the United States, but being in
the dominions of (ireat Britain, could not invoke the

40 authority of his home government, namely, the Unitnl
States, lor reclamation undei that convention, for vessels
that he had lost while he stdl resided as a civil domiciled
citizen of Great Britaui and in which he continued at all
limes d(»miciled. The United States could not relieve in
tliat case a domiciled subject of Great Biitain, because lie
had not foresworn his allegiance to that nation or given
lip his reciiirocal right to its protection and citizenship
which he could have done at any time. And on the other
hand, the United States, as against Great Britain, in that

50 very case, could not relieve an American citizen domici led
in Great Britain, subject to its sovereign laws temporarily,
by inotecting him against Great Britain for her seizure
of his ships, when he was treated precisely like British
subjects, his neighboi"8. These are the two decisions
finally conie to and which must be come to, concludiiij;
both questions to the extent of the right of protection on
tiie oue baud, and the obligations of the citizen on the
oi her.

^o That is the conclusion. And if j-our Honors are to lay
down any other rule of international law, under a con-
vention which is a sequel to the proceedings at Paris— aud
you must lay down one ortheother— then if Great Britain
(an make reclamation in this case, the United States can
do it in the next case, and you have laid down a rule of

ItoH

(Mr. Dickinson's Olojin^ Argument.)

international law, absolving nllegiance by mere domicil
without naturalization; and in the other case, you assert a
light of protection far beyond the rules of International
i;i\v, as underptood to be settled by civilized nations up to
I lie time you so decide.

The quotation which I alluded to this morning will be
tiund m Wharton's Digest, page .')(»!», Section aon. with
this additional from Philliniore:

" Thst the home Hoveroign haH nlh>Kiauc(> due him from Huch por-
" HouH U mnintainod by all rivilizod StuteH, there lieiug no HUch Htate
' which does not mniutain its right to levy taxes on mich perHons, and
" to hold them reHponsible for all offenseti committed by them against
■• its sovereignty."

Now, in this connection I desire to call your attention
lure, more fully to the Barclay case, showing the decision
(if the Commission. The decision recognizes fully the
|ii inciple stated by Judge Hoar. At page 208 is this alle-
-'^'^;ation of the claimant in his petition to which demurrer
was taken as follows:

"That he abstained from nil intermeddling in the insurrection and
•' civil war, conformed to the (jiieen's proclamittiou of neutrality, and
" lu all respects conducted himself as faithfully towards the United
" States as any loyal citizen."

There we have in Barclay's statement of his claim, pre-
tVired in his behalf by Great Britain, the proposition for
which we contend, namely, that a domiciled citizen must

30 obey and conform to the sovereign authority of the
(iiuntryof his dohiicil. That he averred in his claim.
Tlien be proceeded to allege that he had been discrinii-
ii.ited against, and this dearly tenable position was set
up in addition to the position set up by the British coun-
sel, that the words "British subject" and the words
"justice and equity" in the treaty compelled an award
anyway. This is important in getting a clear opinion of
this case. The following was the attitude of Her Ma-
jesty's Government in the argument against the demurrer

4ot()that claim, the United States having demurred upon
the ground merely that the man was domiciled:

"And this brings us therefore to the question which is more im-
" portant than any other which can come before this Commission.
" Whether a subject of Her Britannic Majesty, who is t>orn such a
' Hubject, and has never been naturalized, or taken anv steps to be-
" come uaturalized in any other country than that of iiis birth, and
" <.vbo during the insurrection atistained from all intermeddling
" therein, and conducted himself strictly in accordance with the
" Queen's proclamation of neutrality, and in all respects conducted
" himself as faithful to the United states as any loyal citizen could
;o " liiive done without taking an actual part in the war, does, neverthe-
" leas, cease to be a British subject within the meaning of the treaty,
" bv reason of his domioil in the United States."

Section 3 of the brief of Her Majesty's counsel then
proceeds to make a distinctio"' "pon this treaty, from the '
language of it, in that it provides that the subjects of Her
Britannic Majesty are entitled to recover in any event
without regard to the question of domicil. But further-
more, in their point 8 that Barclay claims the protection;
first, because of his loyalty to the United States, he not
Co having in any degree violated the claim of their sovereign
rights over him or denied the sovereignty of the United
States in any manner,— that is argued out by the British
couufel. Then next they argue that the term " British
subject' entitled him to recover his estate under the pecu-
liar words of the treaty. But finally, they argue that the

-'J ti' ; £1

,'M.

II ^•li !

'lii-i

r)«+ \ ,

010

(Mr. DickiiiNoii's CIohjii^; Arp;iiniont.1

claim of protection of (iroat Hrituin i-cHtsiipon thiM^iv !|,|
of loyalty to the HovorciKnl y of (ioiiiicil, uiid allege*! <mr.
elimination only, and thoy cit(> aiithoiiticu copioiislv with
rcfeiuni'i' upon that. Tlmro was no doubt about the i.e.
titudu of that Ifgal position. Tlu\v quote from Pbillirihir

an followH:

*'TlioHt»tu to wliicli tlio for<<i)(U)>r IioIoiikh iiibv intorforo for hi*
" iirott'ftiiiii wliiMi lit' liuM rtH'tiivi'il lumitivi' mult rent iiitnit, or wliiii In-
'• liuH Ik'oii tl(>ui(-il iiriliniiry jiiHticc in the foreign country. 'I'lir .sinte

of tlio fort'iKiicr may iiiHiNt upon rciukrution immciliuti'ly

iliu

rciiikruti
former fiiN»'. In tlie liittcr, tim inti'rfi'ri'iice in of ii more iii|i,,it
" ohnrncter (I'lirt 5, I'll. I.). And ho (IimIucph from the t'nuiilit' df
" Htott'H 'tlio rinlit of II State to iitl'ord proteetion to her huIiJicIh
" wherever eommuraut.' "

Thus, it is contondcd. tliat it is a li^bt undiT liitti na
tional law, irri'spcctiveof tlio words " British sid)j('('t, ' \n
make rei-laination for a Hriti.sli subjt'ct domi<iU'(l in llic
20 1 lilted States, whenever, first, he shows his loyalty In (h,.
country of his domicil, that he did his duty, and |>i r
formed it as if he were a citizen of the United States, (i„il,
that the (jiovernnient of the United States, throu^'li its
military authorities, has positively nialtreated him, or Ims
denied him juslic*'.

That is the doctrine 1 have been trying to maiiit
here, and that is the position of Her Maje.sty's (iovi
ment in the Barclay case, under which Baiclay clain)i(
award. Now, we will see the decision in that case. '

30 decision upon the demurrer, page IH of the Agents' We|
(American) foiuid in Vol. tl, " rai»ers re"

of Washington."

am
■111-
liiii
I'iie

lating tothe Treaty

" The ttrHt thiuK to be dceided in thiH civhp \h whether the ('onuuis.
" HionurH have jurisdiction, wliiih dependw u|)on whether the cliiiiimut
" is, within the meaning of the treaty, a British suhjrct.

"That he is in fiict a Uritish subject there is no doubt; but it is cnn-
" tended that, boin^ domiciled in tho United States, he is not diic (if
" those intended by the frnmerH of the treaty to be included in tliiit
" term. It is undoubtedly true, as appears from various cases citt'il
" in the argument, that the subject or citizen of one State doiiiiciled
40 " in another ac(]uires, in some respects, privileges and incurs lialiilitifn
" distinct from those jxissessed in right of his original birth or citizen-
" ship. But he still remains the subject or citizen of the Stale to
" which he originally Indouged, and we see no reason to sujiposc tliat
" it was the intention of either government to jiut tho limited iiifuii-
" ing on the words 'British subject,' contended for in the argiinnnta
" in suppo'' •■'f the demurrer, so as to exclude from our jurisdiction a
" British subje.'f »!,,. has never renounced bis original allegiance or
" bec-me niiViir.ilized in any other country.

"The fact oi the <-laimant having his domicile in one of the Cou-
" federat! *-t .tes will, of course, have a material bearing on the |Hiint.
" also iitisci. in the demurrer, as to the liability of the claiinaMl'.t
50 " i>ropertv to seizure or destruction by the Federal army. It is ililli-
" ciilt to fay down a general rule applicable in all cases to the rights
"of an invading army, nor in this i)articular case is thot necescury.

" T/i>' sidlimi'iils roiiliihifd in llir tiii'iiii.yiiil iivr, /or l/n' i>iir}ii-fis 'j/ Ihif
" iin/iiiiii-nl, to III' (lasiiiiifil lo In' Inn'. One of the statements in thi'
" memorial is, that part of the claimant's property was taken jids-
'• session of by the Federal army withtmt any military necesKity, con-
" venience, provocation or inducement, and plundered, and that part
" was wantonly destroyed.

" .Supposing this to be true, wo are not prepared to say that some
" liability might not be established against the United States Oovern-
" meut.
60 "The demurrer is, therefore, disallowed; but the United States
" Government will be at liberty, if they think fit, to take issue upon
" the facts alleged in the memorial."

Bear in mind your Honors tliis decision was on a de-
murrer, and they had to consider the words "British sub-
ject " in respect of the claim of Great Britain, and also the

(Mr. DickiiiHon'H Closing Aigiitnoiit.)

.intPiitidii uiuUt iiitcniatioiial law ina(lt> in the rncniorial
I hat Hairlay had preserved his l(»yal uliiniame to the
loiiiitry of domiril Ciorn start U> Miiisii, and had heen
il.'iiitHi tho ('i|uai protection of the laws, and had heen
maltreated.

I have read the deci.-ion. and it is the old (N)ctrine
which we have insisted npon from hej;inninj,' to end; that
,y . domiciled citizen of a for»'i>;n conntry performing his
duty to the government of his sovereignty, not violating
KV denying the assertions of sovi reigntv," has a riuht to
llie protection of his government of origin for disci unina
lion. And we maintain, tlierefore, that without oxceptiou
the rule, as stated in our hrief to this effect, is the law.
We say at page 4K of our printed argument:

•The lociil HovcroiKuty cou protect him and jiroiet-t hm jiroperty

iiiid iiiiilit' rofhiiiiafion for him ii>?aiuHt t>v»>ry otlicr iint ion, except

••lhc<mtM)f his oriKinal ullf«iuiii'i', in any caHc; and in cbhc of war,

2() " ivcn if tlu> country of \dn oriKinal aHcKiancc ih Im-I liferent, tho

■ (Miuntr^v of liiH local allcKianco being neutral, nniy intcrveni> to i)ro-

• tcct linn aw a neutral aH aKaiuHt tho country of "liiH orixiual allcgi-

•■ iince; but never, even in that eiiKe, if he haH been n"ilty of au act

'■ lioHtilo to the country of liiH original allegiance."

These would he the logical positions of (Jreat Britain
llicnas to Tooper on this question; their argument that
till' register and the flag are conclusive:

" ((/. ) That his ownership of the vchscIh seized must be taken as con-
' ciuHive (in this wo fully agree, but on other and distinct grounds
' from thoHo taken by (Jreat hhtaiu).

•• {!).) That although domiciled in the United Htatcs from boyhood,
' and for nearly half a centurv, because he was not naturalized, and

• liecanse ho was an original Uritish subject, he could, under the

• iiuiuicipal laws of (Ireat Britain, take out a British registry for hia

• ships and put them under the Uritish flag.

" (c.) That so domiciled by virtue of such registi-y, and flag alone,
' iu direct violation of the munici])al laws of the United States of ex-
' territorial force, and in direct violation of their criminal statutes,
' also of ex territorial force, iimi in ttirnt (hjiitim- ifi/ir na'U mil lUiint
' ■1,11/ iissfiiion iif jiirisilicliiin nrrr llir si'iilhif/ iralirs nf liirimj Si'a {a
' ^ni-rri'liin ddiiii mmliiinlhorildlitilii hii ntll/n' /minclirstif l/ir (junritmeitt),
' lie could send his vessels to take seals in those waters.

'• ((A) That concurrently with his, the vessels of Cooper's neighbors
' ill San Francisco, who wero native born citizens of the United States,
' protected no more than himself by the laws of the United States,
' luiving been sent by them to take seals in the same waters, may be
' seized and condemned, under those laws, while, at the same time,
' tlieir owners, his neighbors and fellow citizens of thirty-five years,
' witness his fleets go and come, and take seals with impunity.

" ('■.) That if in tliese circumstances the United States enforced the
' law alike and with equal hand upon tho i)roperty of all their citizens
' ef San Francisco, be he a citizen by domicile or like his neighbors
' liy iiativitv or naturalization, that Cooper, by reason of his original
' imliti<'al allegiance and liy having put his vessels in a British registry
' iiijil under a Jlritish Hag, is a person on account of whom for these
' I'limlties that he has suffered, and while still retaining his American
' (Idiiiicile, Great Britain can claim compensation from the United
' States.

•' We attirm that no such monstrous doctrine can be tolerated for a
' iiiiiiiietit.

•■ hi such circumstances, the citizen by domicile ^for that is what
' lie is) cannot lay aside his character as a ' national ' of the United
' States whenever he sees ttt to defy the same sovereignty and the

• siuiie laws that protect him, by asserting his original political
' iillt'giance and the fact that he has not gone through tho form of
' naturalization.

■ Much less can he call upon the country of his original allegiance
'to make reclamation for him again : the nation of his actual
'iillegiance for what he has suffered for violation of the latter's
' laws."

ffefe

1 ■■

ixs :m

!M2

(Mr. Dickinson's Closing Argunjeiit.)

As Secretary Fish c'^i'j, in a comnmnication qnotcil n
page 46 :

" It would be a inonHtronH doctrino, which thin Oovorninont wm !,l
" not tilernte for a momout, that a citizen of the United Stat oh "

reversing the order — taking the otlier position,

'■ who might deem hiniHolf injured by the authorities of the Unit.,!
lO" States, could, liy tl•anHferrin^J his allcKiauce to another pnw.r,
" confur upon that i>ower the ri^ht to enquire into the legality nf
"the proceedings by which ho may have been injured while a
" citizen."

Let US see what Chief Justice Cockhurn says on tins
doctrine in " Cockhurn on International Law," page jii
The subject coniniciices at page 110. After discussing tin.
position as taken by tiie Earl of Malnieshury in 18.')8:

" If a person had been born in France, of British parents, and liad
" voluntarily returned to France, he would have been a Hritish mi!i-
" ject in England, but he would not have been entitled to lb-it isli
" privileges or protection in France, as against the country of his ii,'.
" tual l)irth anil domicile. And this, as it appears to Her Majcstv's
" Government, is j)reciaely the case of the children of British subjdis
" who are l)orn and resident in Buenos Ay res. "

He states that "the doctrine thus laid down may be perfectly just
"and founded on a proper consideration of what is due to OiIkt
■ States."

He says at page 111:

" It is conceded that as against any other power except one to wlii.li
•^O " allegiance is due bv reason of the second nationality they wouKl lie
" entitled to i)rotectiou; so that it cannot be said that their charailii-
" of British subjects is confined to British territory."

There is our conclusion and our position in six lir.iv,
after a careful leview of the very point und«>r di.soi.'-Hitiii

1 have before read in connection with another ]H)iiil
Ihat, in return for the protection, the domiciled citizen
owes obedience to the law, and temporary allegiance to
the sovereign or State in which he is domiciled. This is
the subject with whic:h that country was then dealing;
'♦° when the late J^ord Chief Justice wrote, reviewing the
laws of nationality and the right or subjects of (iie;il
Britain to protection abroad- written for tlie purposes i>\'
the discussion which resulted in the Act of 1870 in tliat
country and of isdH in the United States, and also in the
naturalization treaty of the two nations.

At page 183 he says:

" We have seen the inconvenience and embarrassment which nmv
" arise, more especially in case of war, from a twofold nationality, in
" giving rise to conflicting claims to the allegiance of the same iiuli-
50 n vidual, or to inconvenient claims of protection. And we have socii
" that such twofold nationalitv arises cither from a ccmflict of laws rc-
" lating to nationality of origin, wher(>by an individual becomes I lie
" subject of two Strttc^s at once, or from an ac(|uired nationality lioint;
" added to without doing awav with that of origin.

" Ought, then, thit Svofolil source of nationality to be left? "lie
" question ap])ears to answer Itself. No man can satisfy a doiililc
" claim on his allegiance made by two nations which are in coutlul.
" So long as the two nations are at peace the man of two nations, liv
"obeying the laws of the countrv in which he happens to be, nmv
" find him.scif involved in no difnculty. Yet the contrary may hup-
" pen. Take, flrst, the nationality of origin. An individual beiii^,' in
60 " fact a subject of State A, and conceiving himself to be no, but rcsid-
' iug, for purposes of business, in State B, finds himself called ui»>n
" to discharge duties or bear burdens incidental to the character ef 11
" subject of the latter. He claims exemption as a subject of Statt! .\,
"and calls on the government of A to protect him. He is toM in
"answer that ho is a sul)ject of both States, and that though, if in 1)10
" territory of A he would be treated as a subject of A, yet having'

U\.\

(Mr. Dickinson's Closing Argument.)

pliioi'il hiiiiHclf within tlio jurisdictiou and powor of H, liowover he
limy havo delmleil himself with tho notion of heint,' '' fuhjcct of A,
iind unili'r tho n'f,'is of its i)rotoi'tn)n. he ih ciuito hh much a sul)jt'ct of
U, anil must tit?ht tlio hatth'H ami oontrilmto to tho l)urdeuH of the
luttor.

" Hut what if, as in the ciihc already juit, wai-Hhonhl take i)hico be-
tween the two nationsV To whieli IS he to adliereV Which aUegi-
auoo is to prevail ? Is this, aKaiu, to depend on wliethoi- Stuto A
iir State It hap|ienH to have him within the nriis]i of its authority ?
It shouhl he rememliered that alle^^ianee is a matter of solemn ol'ili-
i,'ation ; and that so loii^ as a man is clothed witli a kivimi nation-
ality, allegiance to the State, in the person of its ruler or govern-
ment, ismatter not of option l)utofdnty ; and, what is of by no means
indifl'erent, that the breach of such duty may involve a iiian in no
small danger." « * *
•' The same observations apply to a double nationality arising from

• iiaturali/ation in a second country, when that of the country of
origin continues, though here, no doubt, it may be said that it is
the fault of tlie person himsidf who has voluntarily placed himself

■ in this position of ditliculty."

I'age IHt! : •' It must be remeiubereil that tlie obligations of sover-

• ligu and subjects, of State and citzens, are recii)rocal, and that

• wlicre the one owes allegiance tlie other owes protection. And
tliough it may be true that practically an individual subject may

■ Imve no means of enforcing this right against the State, yet no gov-

■ criiment can be wanting in the discharge of this obligation and fail
' to iirt'ord protection, according to its ability and means, to a subject

■ -lulTering a wrong at the hands of a foreign power, and thus disap-
' point just and legitimate e.vpectatious without seriously compro-

■ iiiising its own character and dignity. It is therefore imiiiifestly the

■ interest of every government not to l)e exposed to having its protoc-

• tion claimed, and to becoming involved in disputes with other

■ powers, on behalf of persons who, though nominally and in eou-
' teniplation of law its subjects, are but unprotitable subjects,

■ being, in fact, settled elsewhere and contributing nothing to its

■ wealth or strength. It is equally to its interest not to be com-

■ pelled to refuse protection to undoubted subjects, lest by interfer-
ing in their behalf it should do violence to the rights of other

' |Hiwers. That governments may bo ex|)osed to claims of this sort,
' and that embarrassment may issue therefrom, expi-rienee has abun-

ilimtly shown." * » «
• It is obvious that the evil would be remedied if, by a law common

ici all nations, thu rule as to nationalty of origin were everywhere

'he same, and naturalization by a second country had thu eifect of

--iipersediug the allegiauco due to that of birth." '

I »r course that lecommt'iidation was canied out, l)y tlie
si.iluli's of both countries later, a'ld it is now the f.iult of
(ilizens on both sides if euiharrassuicnts have lesullod.
This liad heju a ni .'t^'V of controversy and (hscussiou he-
twci'ii tin'se two grear governments from ITS.'idown — how
tii-ct on common g ■ nr.id so a^. to settle heyond question the
nlilii;ation of n'logiance on one hand, and of protection
(111 tli(^ other; and it was agreed tinally to settle \\,: ;,o put
ill Ihe power of any subject, who was likely to invoke

30|M itcctiun, by his own act. through the olticials of either
Kiivi'iiui.Lnt, to forswear liis allegiance to one country or

tl tber; and it is only in that way that embarrassments

cm he prevented. Until that is done, and that is in the
power of the citizen himself — the allegiance that ho has
iinl I'orsworn is a Kolemn duty, binding upon him, because
lir may return to his country, invoke its piotectiou, and
hiki' ail his rights as a citizen.

I Ml the other hand, it should bind him, because, until
iialiiiidized in the country in which he is domiciled, lie may

(x)lie hound by all the laws and ali the assertions of sover-
oiiiiily in the country in which he lives. If he does not
Wilt to take the obligations of citizenship in the place of
hi dumicil, wiu'ii the conflict tomes on between what he
wi hes (odo adverse to the assertion of sovereignty of the

i .41

111.

i f

(■•ilIM

liy in whic! lie is lomiciled, he siiuidd depart to the

-I'i !

Ill

!tl4

(Mr. Dickinson's Closing Argument.)

country lie prefers anrl to its protection. That is wii
his power, and that is pointed out by Chief Justice ('(
burn as a way out of his difficulty. The citizen, liini
is given the power, as he never had iieen before, t<.
nounce one allegiance and take another, but up to
time of the culmination in the legislation of Great Hiii lin
and of the United States of 1SC8 and 1870 and the tn i; y

loof 187(t between those nations, embarrassment arose linii)
the fact that the citizen was not empowered to give ii|, hig
allegiance, but was held to it. The way out was to | m
the fault upon the citizen, if he did not take advanta<^. cf
the plan that had been devised between the two gov. n-
ments that y)ut in his bands the power to voluntarily i il<e
one or the other of the nations as bis. Then, if lu^ liU
into embarrassment, if he fell between two stools ou ihis
embarrassing question of allegiance on the ono hand ,111(1
protection on the other, the countries could say to him

20 that it was his own fault. Cooper lived from boybuoil In
the United States without any intention of retiniiiii<r.
These American citizens o!i tlie other side who
domicil in Great Britain, who have lived upon or.e ,
the other, are now claiming the j)rotection of
Britain, since the naturalization laws, since i'' "
able to relieve themselves of their embarrassn. i,
the time when, if they wished to defy tlie l;i"
sovereignty of the United States, they could
renounced their allegiance to the United States. (;)ii tlie

soother iiand, the citizen of Great Britain, domiciled in the
United States, has remained here upon the soil ol dio
United States when, at any time, if he wished to go mid
any business in conflict with the authority of the UiiiUil
States, but permitted by Great Britain, he could (l('|i,in
from our midst. He was to be either a citizen, buniiil
by the laws that protected him, by the sovereignty I hat
protected him, 01 he could go on and enter into conllict
with the United States under the a'gi.s of his own govt in-
ment, but he could not do so and reniiiin here. Let us

40 bear in mind that he remained here not only protectcil hv
our laws, upon our soil, throughout his acts in detiain c ilf
our sovereignty, but afterwards and always, during the
negotiation of this Convention, and until he appears as a
claimant here before the Court, and he is here still a
domiciled citizen or national of the United States.

1 will read another English authority, the work on !ii
ternational Law of Hall --who, I understand, is lecei^ id a^
very high authority on international law in (ireat Miit-
aiu— the Oxford edition of his work in 18si). At jjagc J It!

50 there is a discussion of the condition in the Unit<'(l Slates
of English subjects at the opening of our war, and a re-
view of the correspondence to which 1 have beret o| die
called attention. It was conceded by (Jreat Britain that
domiciled British subjects were amenable to our
sovereignty, and it was stated by Mr. Hall that,
althougli

Claim

,111(1

have

60 .<

otjjpc'tion wiiH nftcrwnnls talcon to EngllHh suhjci'tH lioiiifi; r(iiii|Hlli- 1
' to Herve iu the annicH in a civil vvar, wliori' lii'sidcw tlii' oiilinaiv in
' ciiloutH of liattlo they iiUKlit lu' oxposoil to he trcatocl as nilii'N auil
'traitors iu a (luurrol in whioli, as alions. lb' .• woiild liavc no coi!-
' ('I'm,' it was at tlic same tinit' said that tlic novoriuiiont ' lni^;llt well
' Ih' content to h'ave iiritish sul'' ts voinntaiiiv doniicilcd in a
'foreign countrv, liaMo to ail tii ',l>l>^fiititii,;< nrdiiiarilv iiiiiiliut
'to Hiich foreign doniicih', indui'-pf^. wlwii iiiij)o^;>d tiv the inuiu-
' cipal law of such country, sorvic* in I'lc Milil ,. ■.■ National (liiant,
' or Local Police for tlic uiiiiut"" incc of ii;*- luu^ peace aud nrih'r.

**:,

t.)

lat is wii

Ill

usticf C'l

\i-

wu, liiin

'f,

)efor(', t'l

it up to

'11'

iroat I>ni

ill

d tlic In

■ y

t ai opo 1 1

111

logiv('ii|i

liis

was tci

•lit

advaiit;!^.

two }i()v.

■ 11-

Inutaril}' i ike
It'll, if lie 1(11
stools on I his
mo liaiid .'iihI

I say to liiin

II lioyhooil ill
of roturiiiii;^.
e who claitii
on Olio >• .(]' ''
ion of < "'
ce li' v \ .
issn,"nr, t-i:i',d
the 111" ""^ ,!iul

could have
ates. On tlip
tniiciled in llip
le soil oC 1 1 10
hed to {^o into
of the Uiiiiuil
:> could (l('|i;ut
citi/eu, linnnd
vereignty that
r into coiiliict
s own govt'iii-
lere. Let iis
protectcil hy
in di^tiaiii f of
s, dm'in;;- the
a|>pt'ais as a
s heio still .1
States.
work on In
is received as
n (iicat I'.iit-
At page I'ltl
United States
ivar, and a re-
ive heietoluio
t Britain that
liable to our
Hall that,

liciiiR cdmiuH' I
■s the onliiiiirv ii.
ftteil a** ivliil^ ami
)ul(l liavc iu> iiiu-
inient ' miKlit well
y ilimiicilcil in «
rdiniii'ily iiuidcut
t-M liy'tlie iMiiii-

Niiti()niil (iiiaiil.

peacH' auil mili'V,

915
(Mr. Dickinson's Cloiinj^ Argument, i

• ' or cvpii to a limited extent for the defense of the territory from

■ 'foreign invasion.'

•' Tlie case of personH domieilecl or at least temporarily Hottled in

• the country seems to have boon the only one ooutemp'lated in the
•■ iuHtrnctions referred to, and it isnotprob'alile that the EupiUhIi Oov-

• ■ orument would have regarded persons, who could not he called
•residents in any sense of the word, as being affected by such ex-

■ tended liabilities. But whether the latter was the case or not, and
■• whether if it were so there is any sufficient reaion for making a dis-

10 .. tinction between residents and sojourners, the conc(>s8i()n made to

• local authority seems nnuecessarily large. If it be once admitted

■ the* aliens may bo enrolled in a militia independently of their own
' consent, or that they may be used for the defense of the territory
•■ from invasion by a civilized power, it becomes impossible to iiave
•■ any security that their lives will not be sacrificed in internal dis-
" turlmnces producing the effects pointed out by Lord Russell as

• objectionable, or in quarrels with other States for'the sake of inter-
" ests which may even bo at voriance with thoKO of their own country.
'■ It is more reasonable, and more in accordance with general princple,
•' to sav, as in effect said by M. Bluutschli, that—

'• 1. It is not i)ermi8sible to enrol aliens, except with their own
:!0 • • consent, in a force intended to be used for ordinary national or

• political o1)j<'cts.

' ' '2. Aliens may be compelled to help to maintain social order provided
" that the action reiniired of them does not overstep the limits of
" police, as distinguished from political action.

" 3. They may be compelled to defend the country against an ex-
" tcrual enemy when the existence of social order or" of the ])opula-
" tion itself is threatened, when, in other words, a state or part
" of it is threatened by an invasion of savages or uncivilized
" nations."

That goes into that extreme question of enlisting in war.
30Still. referring to laws of a military character requirii-g
service, he says:

"Whether laws of this nature are good internationally; whether
" in other words they can be enforced adversely to a state which may
" choose to object to their exercise, ap]>ears, to say the Icnst, to be
" eminently doubtful. It is indeed ditlicult to see upon what they
" I'rtu be supported. Putting aside the theory of the non-territoriality
" of crime as one which unquestionably is not at present accepted
" fithcr universallv or so generally as to be in a souse authoritative,
" it would seem tfiot their theoretical justification as against an ob-
" jcctiug country, if any is alleged at all, must bo that the exclusive
40 " territorial jurisdiction of a State gives complete control over all
" foreigners, not protected hy special immunities, while they remain
" ou its soil."

The condition of the law before naturalization, at page

240:

" Tiiat of England was based until 1870 upon the princii)les

• "f the indelibility of natural allegiance and of liberty of emigra-
■ turn. Every one was free to leave his country ; but whatever

" term he went through elsewhere, and whatever his intention to
" dirtuge his nationality, ho still remained an Englishman in the

50"i'yi' of the law; wherever, therefore, English laws could run
" liV liad the privileges and was liable to the oldigatious imposed by
•■ tlii'm; if ho returned to British territory he was not under the dis-
" abilities of an alien, and he was not eutitled to the jjrotectiou of his
" adoj)ted country "-—this bears ui)on our citizens over in Canada —
" if he was met with on the high seas in u foreign merchantmau he
" could be taken out of it, the territoriality of such ships not being
" recognized by English law. On the other hand, so long as he stayed
" witlrlii foreign jurisdiction ho was bound by liis own i)rotessious; he
" ha'i chosen to renounce his English character, and he could not de-
" r.iaud the protection of the State towards which ho acknowledged
" 111) duties. In the begii'.eing of the jircsout century this doctrine

*<)" wat rigidly enforced. E iglishinen naturalized in the United States
" wore impressed from ou I oord American vessels."

Then there is a discussion of the right of search. As
to the taking on of allegiance, Hall goes into the broad
question, that

^>^J^

l'^'-\:

lo,

910

(Mr. Dickinson's Closing Argument.)

" until after Daturnlizatiou under tlio treaty of 1870, until this
" allegiance is eontraetetl, lie must be eonsidored aH bound li
" allegiance to the government under wliieli he waH born ainl
" jeot to its lawH, and this undoubted principle seeniH to !m\,
" direct application in the prcHcut cases - the caseH of rrussiun
" jects.

Section 87, p. 291: " Htates possess a right of protecting their
" jects abroad which is cor-rolative to their responsibility in res

of injuries inflicted upon foreigners within their dominions;

have the right, that is to say, to exact reparation for maltreat i
" of their subjects by the administrative agents of a foreign g(j\
" ment il no means of obtaining legal redress through the tribuim
" the country exist, or if such means as exist have been exhaust i
" vain; and tliey have the right to require that, as between their suli
" and other private individuals, the i)rotectiou of the State uiul
" justice of the courts shall be aflforded eipially, and tliatcomj)onsii
" shall be made if the courts from corrui>ti()n or prejudice or other ;,Kc
" causes are guilty of serious acts of injustice. Broadly, all pei> i.s
" entering a foreign country must submit to the laws of that count ;v;
" provided that the laws are fairlv administered, they cannot, as a r ;li',
" complain of the ciTects upon tliemselves, however great may Ir. tho
20 " practical injustice which may result to them."

Qualification, page:i!tr>:

"When the subject of a State is not merely passing througli. m-
" temporarily resident in, a foreign country, but has Ix'come iliuii-
" ciled there, the right of his State to protect him is 8()iii(<»li;il
" affected. He has deliberately made the foreign country the i Imf
" seat of his residence; for many jjurposes, as will bo seen latci . Ii(>
" has become identified with it; he must be supposed to obtain some
" advantages from this intimacy of association, since its existciiii- is
" dependent on his own act; it would be unreasonable that he slicmlil
-^ " be allowed to reaj) these advantages on the one hand, and timt mi
•^ "the other he should retain the special advantages of ii complililv
"foreign character. To what degree the right of a goveriiiiicnt U)
" protect a subject is thus modified, it is at present impossible to suv
" with any precision in the abstract; but the rule is one whi<'li can iii
" general l)e probably applied without much difficulty to indiviiluul
" cases."

Lord Westbury, in Udny v. Udny, L. R., 1 House i.f
Lords, Sc. 441, said, in delivering his judgment:

" The lawof England and of almost all civilized countries ascriliotn
" each individual at his birth two distinct legal states or conditions;

^ " one by virtue of which he becomes tho subject of some partii'iilur
" country, binding him by the tie of natural allegiance, and which nmy
" be called his political status; another, bv virtue of which lie Ims
" ascribed to him the character of a riiiim of some particular count rv,
" and as such is possessed of certain municipal rights and subject to
" certain obligations, which latter character is the civil status or cdn-
" dition of the individual, and may be (piite different from his polit-
'• ical status. The political status may depend on different laws in
" different countries, whereas the civil status is governed almost iini-
" versally bv one single jiriuciple, namely, that of domicile, which is
" the criterion established by law for the purpose of deterniiniiif,'
" civil status."

By tlie decision of the Hoiiso of Lords then in that cnse
— and I did not bring tliv> word " citizen " in that part of my
brief, in referring to Cooper, so much decried by my
learned friends, out of the depths of my own intelli-
gence, but I used tlie decision of tiie House of Lords
in tho case I have cited, and 1 use the language (it
Lord Cliief Justice Cockburn— that a permanently domi
ciled person, although a subject of another country \>y
birth, and not naturalized in the country of domicile, is a
6o civil citizen of the country of domicile.

I take up, may it please your Hono's, at page 50 of my
brief, the positions of our learned friends upon the sub-
ject of the effect of domicile; but, before coming to timt,
I desire to call attention to two important questions under
the head of " British, Domiciled in the United States," in

'•17

111
ill

<ll
III

n|
20.1 1

(Mr. Dickinson's Closing- Argnment.)

my brief. Two inij»oifant i-ises I wisli to citu, to wliidi I
lave bel'oi'e I'oferred; as to the attitude of (i rent Britain
liefore naturalization has occurred cunceininf^ jiersons
domiciled in another country in respect of original alle-
i^iance, Cockbnrn, on pag(^ (lii, ^-ays:

"No British Hul)j('t't can put oflf liis country or the iiatunil allegi-

■iini'O that ho owes to tho SSovcreiKU— even with tlic iiKscnt of the

]0' Sovereign; in short, that natural allcKianci' cannot lie got rid of l>y

• anything less than au act of the Legislature, of which it is liolieved

" no iustauee baa occurred. '

Tiiat is up to the time of his wiitiug in lst)S. And he rites
t> case of Aeneas McDonald, who went to France in his
fancy, was a natural horn subject (if (ireat liritaiii, wlio
■came domiciled in France. It is a strong case for
)niicil and tlie rights of domicil. In the course of time
' took a connnission in th(^ French ai'iny, and war came
1. He was arr(>ste(l and tried for trea.son. liOrd Chief
istice Lee, in charging the jiuy, said:

• That the overt acts laid in the indietineut having been proved
•• II 'T>st the prisoiu'r and admitted liy him, the only fact to he tried
•' iv them was whether he was a subject of Great I5ritain."

I'nder this charge of the Court McDonald was found
guilty of treason. He was a domiciled citizen of France
hcyond question — a civil citizen — hut the doctrine of in-
nlienahle allegiance iield him. That illustrates the posi-
tiiiu of (ireat Britain up to the date of the adjustment in

30 1>'''-' iind IS7u. On the other hand, your Honors will tind
in our country the case of Flijali Clarke referred to and
set out in Sir Siierston Baker's Xotes to Halleck, at page
413 of Halleck's International liaw. Flijah Clarke, a
civil citizen of Great Britain, domiciled in Canada, but
owing original allegiance to the United States, was ar-
rested for aiding (freat Britain in the war of isi-J, and
was convicted and hanged by the American anthoiities,
the United States maintaining also the doctrine of iuaiien-
ahle allegiance, and this rule and law was maintained,

4oaiul admitted by both countries, without exception, up to
the date of the provisions for natinalization, in ISds and

l^TH.

It is still the law as to all who do not take the benefit
of the natinalizalion laws of those years

Allegiance being inalienable save i)y such naturalization,
all its conse(|uences are unvaried now from that doctrine
of (ireat Britain, when under a Convention with France
to pay the claim of British subjects who !iad suffered
at the hands of France, they decided in tlu; Drunmiond
jocase, .so often referred to, "That a citizen domiciled in

• another country, while still retaining bis allegiance
•• ti) (Jreat Britain " (and on account of whii'b he might
lie punished undoubtedly as in the .Eneas McDoiiiiM
case for treason or any less degrees of violation of it),
yet his status before a Claims Convention was Ibis that if
|i(iniiciliated in that country and so anienable to the juris-
diction and sovereignty of that country. Great Britain
(ould not make reclamation for liim for damages against
that country. There were two positions standing side by

reside; inalienable allegiance in so far as ol)edience is con-
itined— the obedience of the subject for the ignoring of
which be could not make reclamation against his own
country— and on the other band, no right to reclamation
undi r Gieat Britain's protection against the country of

i I !

I i
t

■'1 ''X^

i i'

■J '■■'■' i
i, ■

l<i

; !

' !

liiiil

II ti

'u
rtl.,

it IS

(Mr. Dickinson's Closing Aigumcrit. i

(loniicil. The Treaty of ism hetw^'cn our nations is
in e.xistt'iicc and applies to Cooper. The 'J'reaty of
your Honors will find referred to authoritatively ;is I
nig on both conntiies under the ConvtMition of Is;,:;
port, at pages H8.". and XM, and in Hanlay's case in ]s71
(juote the Treaty:

" That the oitiziMiH of our rcHjjC'otivo coiintrioH .slioiihl niimiii i
'-'"territories rcs])e<'tively, niul nenenilly tlie iiiori'liants of tli.
" conutrics respeetivi'ly shoiilil enjoy the most eoinpletc orotinii,],
" luid seeuiity for their eoinmerec, l)Vlt ahvnys sul)ject to tlie hiw-* i,f
" the two countries respectively."

Analysis of Authohitiks CrrKU A(i.\nist Us.

1 am s.itisfied that under the later registry law^
Merrhants' Shijiping Act— which have been presmti'd
here, and to which I shall Liter call attention in inn

2o'i''ction with ships— that the broad stiitcnient in (uii-
brief, at page 52, which has been criticised, but wlii( h
as tlu'ie stated was uiniecessary to our argument, tli.u
Cooper was not entitled to British IvN'gistry w,is ,ui
error- an error solely because the later act of rarli;i.
nieiit had not been called to my attenti<in. I'nder iho
law as it I'xisted before as held by tfer .M. 'sty's Cnim-,.
Cooper w;is not entitled to registration ii there w,i- a
mortgage interest in any person not a citizen of (licit
Britain. That law is changed by this new act. So ciie-

3oful was (iieat Biitain in providing that no one who
was not a citi/en of (ireat Biitain a subject of lin
Majesty or of the Kmpire should have any iiiterc'-t j

made that stalement on a (liorough examination

til

cases, and tberii being no decisions under the lati'r \u-\
because that was expressly made to meet that holding
of the British courts. Over and over again there w.iv
deci°'ons that a mortgage interest in some man who w,is
not a British subject conveyed a legal title and thei-elnic
defeated legal registry. That is how 1 made the mistake,
4oand it is one that any lawyer not familiar with regisiiy
statutes would have niad(\ As was said in another con
nection. (iod forbid tiiat 1 should not know something of
International law, but 1 am not at all shocked to discovei
that 1 knew nothing of some municipal .statute of (Ircal
Britain.

Now. as to the citizens of the United States claiimd
to be domiciled in Gi'eat Britain — of course the evidence
on the question of domicikf is a very important one. I

50am discussing the position now admitting tentatively
that these citizens of the Uu'ted States were legally doiui
cileil in (ireat Bi'itain.

It would lie a very remarkable condition of things, if,
after we have gone through all these Treaty negoti;ilions
—after tiie decision of tlie J'aris aibitration that the
United States did not have exclusive jurisdiction
in i\w Bering Sea— and after all these negotia-
tions lasting years and costing both (iovernnieiils
large sums of money, if it should now be held

C'Othat an An;erican citizen owing allegiance to the
United States is entitled to recover under the piotdlmn
of Ureat Britain. That dilliculty is the chief rea'-on that
your Honors are here. The tiovermnents coidd have
agreed u|»oti an as.sessnient of damages. Thei'e was no
dilficulty in agn.'eiug at Paris about that, except for tin'

i n

"•\.' i-ri

!tr>

^^^^iW

\[\\ tlU'lf \Vrii'

lUMU wild was
' and thiTi'loic
tU> the inislakc,
r with rciii-iiy
in anotlifi- ion
sv soinolliiuK <>!'
fUoil to (hsiMivcv
ttituto of (iivat

lie ("vulcuce

In of things, if,

|itv nt'iiot lilt ions

■ation tliat Hn'

theso ne^iitia-

M' tiie pllttliliiiU

liicf roa-ou tliat

ts fOllliI li:'^'*^'

Tiieiv \va> u.i

(Mr. Dickinson's Closinjj; Aij^umcnt.i

reason that the United States insisted tliat it wonld not
admit that anyone siiould violate the snvei'eij;nty of the
I'nited States, ulioowed it allegiance, nndertlie jiioteition
of Her Majesty.

It was asserted on tht? other hand that all the shi|)S
were Hi'itisli ships; that they were wholly British owned;
that American citizens had no interest. The I'nited
1,1-^lates assertetl tliat American citizens had a concealed in-
irrest; thattiiey had put on British rcgisteriesand |)iitn|»the
British tlaji to violate the sovereignty of this country and
iiptjii that issne, hecaiise they conld come to no agreement
iijion theqiiestion of ownership as a matterof fact. ;md as
(ireat Ihitain conld not protect citizens of the I'nited
Slates and for them rt'cover damages from the United
Slated, as a matter of law, that this Convention was iiego-
liated. And so yon are here, (iivat Ihitain m'ver claimed
such jirotection as a matter of law at I'aiis.
iQ When Miey came to that matter- to make up thetind-
iiigs of facts, they conld not .agree njion these facts; and it
wonld he a most singular thing, aftei' a most careful pro-
vision was inserted in tiie treaty, after Sir Charles Knssel
had stated to that arhitration. that if it shonld turn out
that American citizens h.-id an int(>rest in a vess(>l there
certainly conld he no reclamation hy Creat Britain —it
would he a most reinarkahlc^ thing, I say, that here, where
under the jirovisions of that treaty expressly and in terms
made, American citizens might he jjioven to have an
-0 interest in th(! vessels and yet take damages from the
I'nited States in this international conrt. Tht^ (jnestion of
law was not made at Uaris. Onr position here was con-
ceded there. It is raised hy the other side here for the
first time. Upon that (piestion my friends have cited,
among other things, as their leading aiitliority the decis-
ion of the Connnissioiiers in the Alahama claims, which I
liavt! discussed at some length and shall not refer to again.
Among the authorities cited hy my leaiiied friends is the
case of the " Indian Chief " to which I referred the other
^Qil.iy, and wiiich is cited as an authority that an American
citizen domiciled in (ireat Britain, stilJ under allegiance to
the United States, for injuries suffered hy him while vio-
lating the claim of jurisdiction of the United States in
Bering Sea, can recover under the protection of tJreat
liritain. We say of that, that it was not a case in point,
liecadse it was not a case where the original citizen of one
country domiciled in another, was making a claim tiirough
till' country of his domiciliation against the country of his
original allegiance. It hrings up the distinction that I
;yliave discu.ssed in Judge Hoar's argument in the Harclay
case and the whole question agaiii.

The case is valuahle only on the Cooper claim, and on
that is strongly against (>reat Britain.

They cited the case of the " Matchless" in their original
hrief. A British suhject was domiciled in Boston -and it is
as strong a case as you can find for the United States hefore
this Commission, in the case of the claimant Cooper. But
it turned upon the law applicalde to domicile for mercan-
tile or trading purposes—commercial domicilp, and was
/jglor an alleged violation of the second section of the navi-
gation laws of Great Britain, to wit:

" No alion shall exeiviso the traJu or occupatiou of a factor in the
pliiiitatious."

I't

'.•20

":m\

• i' ',■'■'.

(Mr. Dickinson's Closing Argument.)

The rase is clearl}' not to tlie jjuint cited. It is nm a
claim for indenniity for injuries suffered /lom violin n.;^
tlie laws of England applying to Hritisli subjects, and is
very far fr*)ni an antliority to the effect that the coniuiy
of doniicil, the United States, could make reclaninlinn
against (ireat Britain for the injuries so snffeied.

The Diuminond case is also cited against ns, hut I h.ivo

lodiscus-ed that and 1 shall not analyze it again, hut I ni.iki;
tills illustration from the Drnmmoiid case. Sup|)osi' in-
stead of a treaty providing for reclamation by Hrilish siili-
jects against France it had heen a treaty providing for iv-
claniation for injuries suffered hy civil subjects of Franc,.
in f^eneral against tireat Britain, in certain watersclainuil
by the Bi itish sovt-reign as jiiiisdictional at the time of
the injuries; assume the ass^ertion of jurisdiction by the
Queen's proclamation and that in puisuance of tli.it
tSovoreigii assertion and in jiursuance of its prohibilidns

20 and penalties that (ireat Britain had conunitted the in-
juries complained of; and, linally. assume that the case
before the Court had been whether Drummond, thou.L;li a
British subject, because of his domicile in France, conkl
through France make reclamation against (ireat B)rii,uii
for the loss of his vessels while violating that claini of
jurisdiction and that proclamation.

But (treat Britain would be the last coiuitry in tlie
world — Great Britain extending her jirotection over her
citizens around the woild— oneof whose gloiies is thai .a

30 subject of her's. like the Roman citizen, caiiies citizensjiip
as protection in itself wherever the sun shines -(inat
Britain, I say, would be the last to concede that anyone
ovei' whom she places and owes her protection as an Eii^lisii
subject— could violate the proclamation of the soverei^ntv
any wiiere on the face of the earth, and then under the i)ro-
tection of a foreign flag make reclamation in dania^os
from her for injuries suffered while acting in derogation
of that sovereignty that so protects bin). Tliiidc ol it;
Wearing the proud title of British subject— one that llie

40subjects of Great Britain do not readily or willingly re-
nounce because of the protection given, as well as of tlieir
pride in walking the earth as British snbject.s -not merely
for the senlimeul but the actual living protection and dis-
tinction the world over — can these seek a foreimi Hag
and sue their country for injuries .suft'ered at its hands,
while defying it?

This bond is one that the subject cannot easily sunder.
It is one of his rights to which no jot or tittle does he sin-
render until he becomes domicilecl in a foreign country

50 and then he does not surrender his right to resume it, or
his light to protection to a degree while there, and he
does not s.ave by voluntary naturalization. Great Britain
cannot, except for felony, forfeit his light to wear the
proud title of British subject around the world. The
majesty of the great Empire cannot take it from him—
and if, in return, he may, without pursuing the course
marked out by the law of 1870, enter another country,
and in \iolation of the proclamation of the sovereignty of
his nation, enter into conttict individually with that nation

60 in a place where .she claims jurisdiction on the high seas—
thereby suffer from his defiance of the authority— and then
invokethe]trotectioiiof a foreign flag and a foreign power
to get damages out of Her Majesty's (lovernment- 1 will
not pursue the analogy— it is beyond belief that any such
proposition will not fail in the very making of it!

!t21

)

It is Uni a
iin violiilin;^
jocts, iiiul is

roclaiiinlii.ii
•ed.

i, l)Ut I li:ivo
I, but I m:ikii
Supitdsc in-
Uritisli siili-
■idiiifi I'oi' re-

'ts of FlMllll'

iters cliiiiiinl
tlie time of
ction l)y tlie
nee of Ihat
proliibitiiiiis
itted till' ill-
hat til'.' rase
(lul, tlio(i,L;li a
^'I'anci', could
iwixi Brilaiii
that claim n|'

iiintry in tiic
tion uviT luT
iiios is tiial a
ies citizt'iisiiip
shines -(^rcat
} that aiiyoui'
lasan English
le sovfioijiiity
niuler the pro-
11 ill (laniMi^cs
in (le rogation
Think ot it;
-one tiiat the
willingly le-
ell as of their
s— not merely
ction anil ilis-
foieiuii Hag
at its hands,

easily sunder,
e does he siir-
)reign country
o resume it. or
there, and lie
Ureat Britain
t to wear the
i world. The
it from hilli-
ng the course
other country,
sovereignty of
ith that nation
the high seas—
rity— and tlieii
foreign iiower
innient- 1 will
' that any such
of it!

(Mr. Dickinson's Closing Argument.)

If a man desires to make reclamation against the United
^lates for entering upon any business in detiance of the

I nited States, let liiin, under the law as it now stands, by
his own vohnitary act, before be enters upon that business
fi. reswear allegiance to the country whose sovereignty he
|u(iposes to violate, and accept the allegiance and i)rotec-
tioii which he seeks, under some other llag. Until be does

;otiiat, a citizen of the United States, wherever resident or
(■(inmorant, cannot make reclamation under the jn-otection
III a foreign Hag from theCiovernmontof the United States.

II the Government of the United States has injured him.
tlh' courts are open to bim, where be may comeat any time,
and the United States reserves his right to come, with
all his rights of citizenship |»reserved. Hut be camiot do
hoili. An American citizen cannot remain such in Her
Majesty's dominions, preserving bis citizenship and a con-
.-^ninent right to protection against Her Majesty's Govern-

:oiuiiitand violate the sovereignty of the United States at
til.' same time. He cannot be a <itizen of two countries,
wiih equal rights under the laws of each and under ohliga-
tiniis to ueilber.

The Countess of Conway's case is the next case cited.
The case is not in point. Tlie Countess was not a British
Buhjecf, nor domiciled there, and if she bad been, it did
nil appear that the claim was for injuries sustained by
iu'i while engaged in iiostile acts against France (the
country of her original allegiance), or in violating the laws

30of Kiaiice applying to her. In Livingstone rs. Maryland
Co.. 7 Crancb, the decision by Story, Justice, is a very
strong case against the position of Great Britain in cases
like tliat of Cooper. It is not, however, a decision bearing
at all upon the question here. It was not a claim made
against Spain the country of original allegiance, and was
not a claim made for injuries resulting from the conse-
quences of acts hostile to that country, or for violation of
her laws.
The " Venus" was another case cited by Great Britain,

40 and it is the last of the cases cited in the original brief of
(ireat Britain, which commenced by making somewhat
disi inguished and famous the decision of the Commissioner
of Alabama claims The "Venus " is a case which I cited
en our side in another connection, and it has no bearing
whatever upon the right of a domiciled citizen to recover
against his own country.

Aside from the great question of sovereign assertion of
jurisdiction, superior to any mere legislation, I come to
foanother of merely municipal legislation. I will call atten-
tion, first, to the position taken up by the senior counsel
for (ireat Britain, before the Paris tribunal, then Sir
Charles Kussel, now the Lord Chief Ju&tice of England,
Vol. in. United States Reprint, page M\. I quote him:

" 'I'lu'only right of protection of fishiug and other free swimming
" iiiiiniiils in the high seas which can be exercised by any State (apart
•' fium I'onvcntion) in as aijainsl Us own tiotionals."

The Commissioner on the part of the United States: — The

word " protection " seem to be used thei'e as equivalent to
"re.milation."

Mr. Dickinson: -Well, regulation, in the nature of a
game law, I suppose, which is protective.

" It may be in the interests of commerce and the fishing industry
" (if I In' u'lition that all its fishermen alike should be made to respect
" A iliisi" time, even for migratory fishes and even in the deep sea.

1 ■:

922

|i!

n^ii

(Mr. Dickingoii's Cloaiiig Aiyiiinciit.)
" A Stiito luis u ri|j[lit to li'giKlato for its own sulijccts on tl

" Hucli loKiMlation (iiviit liritaiu is williuK to ))iimh in rfsiicc, i| 1 1,,.
" HcalH in Bclirint? Hen; but out' CHHontinl condition on wliidi llrr
" Miijcsty'H (lovernnicnt insiHt is, that the other uittionH inti'ii^t,,!
" Hhould pftHH Himiliir liiws."

lo i^iipposi' sh<' dill pa'-H llie Imw, mikI other ii.itions did n ,t^
woidd it not liiml Hrilisli iiiitioiials aiiyvvlicro on iIicIiil;|i
Beixsi Of coui'se it would. Tlio fisst'rtioii of lur |,.-;s
lativt" authority foihiihliiijj; lit'i- siihjt'cts or hor iiation.ds
to t:ii<(' tlu> North Athiiitic; roiito, would hind tlifiu; if they
wcr(> fouiidoM till! North Atlantic routo, they would he \i.\\<\t>
to seizure at the hands of any ship of Her Majesty's (iovnu-
nuMit. And the sovereij^nty extemls every wIipk^ over iln,
nationals on the iii^h si'as without ()nalifi<'ation, and liiinls
siihjects. even if the suhjuct is within the t(!rritoi\ i,f

2oSonie other nation. TIk! oidy thing that (pialilifs ihc
right to enforce the law in the latter case is the e.vclii-ivc
jurisdiction of the other sovereignty over nndoul.liil
dominions, so that in the case put hy his Honor liio
American Conuiiissionor yesterday, it would not do, al
though the law wijuld hind a man across tlie hordi i in
Now Brunswick, to go and take him; he is practically pio.
tected from the penalty of the law which hinds him in llic
United i^tates, if he is across the hordcr, hecause anv in-
vasion of Ihitish territory would he an invasion of the -(]\.

joereignty. That is all there is o( that question of cxcliisivo
jurisdiction.

In the British counter case (Vol. s, Am. Ut'i)iint. juif^i'
85) it is said:

" In connection with this branch of the Kutjjoct, viz., the scope nuil
"effect of tlie legislation of other nations, it is essential to kcip iu
" minil the well known rule of International Law, that the laws uf u
"nation affect none but its own subjects, anil the eubjects of dtlicr
" nations whoso persons or property may be within its tcrritdiiul
" jurisdiction."

'^° " Whose persons or property," — that covers Mr. Cohihi'.
We can either have his person or property, and hind liini
until he betaking himself to his country of origin he asMit<
his British allegiance and protection — we can hind liini
while ho violates our law, and while he lives in the L'nited
States we can take his ships on the high seas but nol liis
property on British soil, or his ships within three mihs of
British (;oasts.

No nations have more consistently affirmed the rul<' 1
have quoted, say the British counsel at Paris, than tho

'° United States and Great Biitain, and a large nnnilni uf
citations are given establishing the proposition. And linn
ho proceeds to cite the authorities, the most of wliiili I
have inserted in my brief; but I desire to call your HoiKirs'
attention to the decision of Judge Story in this coiiinc-
tion, at l>age 370 of 9 Wheaton — The "Apollon" Case:
"The laws of no nation can justly extend beyond its own
territory, except so far as regards its own citizens."' Nnw
in this case we go a step further. I do not care anylliuif,'

^ about the municipal laws of tho United States in this (tui
°nection. If the Uniteil States seize a shij) on the liii;li
seas, tho remedy must be in the Court of the riiiiid
States, if the person is a national of the United St alts
A "national" is a person civilly domiciled, as well as a
political citizen wherever domiciled.

(•23

ts (111 till- li' il

(,Mr. Dickinson's Clo^inj^ Arminiunt.)

Several planes helo'v tlio nie.tt ((iiestion which rules
this case, the assertion of sovereignty by the exeentive
authority, and still cm the snhject of nnniicipal jurisdic-
tion of conits under nnniicipal lej^isiation, I will see how
the " La Ninfa" case hears. I contiruie to (piote from the
British argument at I'aris.

"Tbo arrcNt of tlio olTi'iiiliuK vesHcl muHt tlioroforo lio rest ruined to
K' .. placeH wlietd our jiiriHilictioii in coiiinlt'te, to our owu wntcrH, or to
' the ocean, the coniniou liighway of nil uutionH. "

Sir V. B. Maxwell, a standard authority, is cited hy
Groat Britain in the l^iris case, and after stating that
|iritnarily the legislation of the country is territorial, and
iliat the laws of a nation apply to all its suhjects, and all
tilings within its territory, the citation proceeds:

" It IH true thiH (looH not <'oiniiriH(< tlu' wliolo of tho IcKitimato juris-
• (liotiou of a Stftto, for it liaH a ri^lit to impose its U'KiHlation upon
2i>" its HuliJLM'ts, natural or nntunili/.tMl, in every part of the world, and,
" indeed, on sueli matters as ]>erHoual status, or eapiu'ity, it is uuder-
•' stood always to do so; but with that exception, in the abseuee of
" an intention clearly expressed or to bo inferred either from its own
" lanKuago or from tlu^ object, or subject-matter, or history of the
" enactment, the presumption is that I'arlianieut does not design its
" statutes to operate on them beyond the territorial limits of the
" United Kingdom."

In the United States the rule of international law al-
ways held is that the municipal laws of a nation extend

,„ over all citizens and suhjects everywhere on the earth.
Tiie laws are so extended tmly to the extent that the sover-
eignty has jurisdiction. But the (juestion here is whether
the executive authority of the United States in its acts
and by its proclamations, iriespective of any municipal
law, could prevent a citizen of the United Slates, so
tar as all other nations are concerned, from even having
liis ship enter Bering Sea, hy seizure. If the citizen enter
Holing Sea in violation of the proclamation, and it was
done many times in this case, the question remains not

^o<if jurisdiction dependent niion any municipal decision
of a court, like that of the "La Ninfa" case, whether
the citizen of the United States may seek relief through
Great Britain for acts done in the territory in which his
own government had at least common jurisdiction, or must
stek it in the Courts of his own country. His remedy, if
any, must depend on whether the executive authority,
liis representative sovereignty, under our jiecnliar system,
e.xceeded its constitutional powers. And who can pass
on thatJ Not your Honors, not an International court on

50 the invitation or demand of a foreign power, but the Su-
prcnio Court of the United States only. That is the ou;^
tribunal that can pass finally on the right of the executive
to forbid a citizen or national of the United States to enter
Bering Sea. The question of any municipal law and its
extent is of very subordinate and minor consideration.
The question is as to the national jurisdiction, if the
United States chose to exercise it, either by judicial
authority or by executive authority, or hy legislative and
executive authority, or by legislative, executive and judi-

601^ id authority combined, as they did choose to exercise it
ill this case. It is not for any other government to pass
iijioii the statutes of this country, and it is not for any
(it lier government to pass upon the fundamental law or
till' municipal statutes of the United States as they affect
our own citizens.

It24

*i:M

(Mr. Dickinson's C'losini^ Ai^ument )

It is certainly not within tin* antlioiity of any otli
powj'r or any otlu-r triltinial to nsurp tln' fnn( tion ot' tl,
Sn|>ii'nu' Conrt of tlm rnit«'(l States, ami (imstnicnmcdi,
Htilutiiinal assignint'nl of the powers of oiir Kovcri'i^'iiilv
and hold that wIkmi tlu> i'rt'sidcnt of tlit) United States h
proeliiniation forhade nil I'liited States citizens from enti i
nig I'erinj; Sea it was not a valid exercise of Cdnstiti,

lotionai power. It is for onrown courts to test the e.xeicis ■
of sovereignty and the limitations upon it by the written
C'oiistilnlion. Iriespectivo of tin? liniilalioiis of tin ci.ii
stitntion, if it he conceded that we have National jinisdi'
tion, whether in common with other nationsor e.xeliisive, is
immaterial, .uid may legiMJate as to the high seas, e.xcici^,.
jmindiction hy legislative, judicial or executive autiioiilv,
it will follow that it is not the atfair of a ciii/.en of miv
other count) y, or of any other country on the faco of tin
earth, how we exercise tliat Jurisdiction s-o long as weilu

20 not molest a cili/eu of that other country.

It is very material, however, that citizens owing a!
legiance to our sovereignty, which altogether, I'.xecntivf.
legislative and judicial, certainly have a light to as.Mi t
jurisdiction over leering Sea as against American suii-
jects, it is material for the purposes of citizenship iiiul
sovereign authority whenever reposed, under our cdii
stitntion, that wh«'n forhidden to enter Bering Seatlmi
the citizen shoidd ohey the mandate. How is an liilci
national Court to pass upon the question^ Putting it

3oahove municipal legislation, this is a proclamaf" >n of the
President forltidding any American citizen t'' er Hi 1
ing Sea, and eveiy man hound by allegiance to ')vern-

nient of the United States who suttered at . ..uidsnf
the (iovernment for infraction of that i)roclamation must
enter the United States Courts if ho wishes to test the
validity of that pioclamation, or the authority for a
seizure- he cannot appeal to a foreign nation. It is a
matter of allegiance, not of municipal law. I now wisli td
re^id from the case of Hudson vs. Guestier, reported in 4

4oCranch, page 2!»3:

" Wlien a «i'i/,uro is thus inado for tlie violation of a municipal liiw,
" tbe moilo of j)r'ipt't'(ling niunt be excluHivelv regulated l>v tlio sov-
" ereigu power of the eouutry, and no foreign court is at lilx-i'ty to
" (|Uestiou the eirreotness of what is done, unless the court passing
" the sentence lose.* its jiirisdiction hy some circumstance which tin'
" law of nations cau notice. Recapture, escajie, or a voluntary dis-
" charge of the cap 'ured vessel would bo such a circumstance, hi-
" cause the sovereign would be thereby dejirived of the possessinii of
" the thing and of hi& ])ower over it. \Vhile this possession remains,
" the ri's may be either restored or sold, the sentence of the court can
,_. " be executed, and therefore this possession seems to be the essential
' " fact on which the juriiidiction of the court depends.

" The laws of the United States re(niiro that a vessel which has bic n
" seized for violating them should be tried in the district wlicrc the
" offense is committed, md certainly it would be irregular and illcgiil
" for the tribunal of a different district to act ui)on the case. But <>f
" this irregularity, it is believed, no foreign court could take notici'.
" The United State.n might enable the admiralty courts of one district
" to decide on cajjturcs made for offenses committed in another ilis-
" trict. It is an internal regulation, to be expounded by our own
" courts, and of which the law of nations can take no notice, 'riie
" possession of the thipg would be in the sovereign power of the Htatr,
-. " and it is competent to that ])ower to give jurisdiction over it to any
*^ " of its tribunals. There exists a full power over the subject and an
" ability to execute the sentence of the court. The sovereign jidwi r
" pos.sessing jurisdiction over the thing must be presumed by foreign
" tribunals to have exercised that jurisdiction properly. But if tlm
" r«.i be out of the jwwcr of the sovereign, he cannot act upon it nor
" delegate authority to act upon it to his courts."

926

)

f liny oil I
■tiiih or' 111.
-nu' uiii'coi,
i»V('ivi^;iiit\ .
• ■(ISliitrs li •
\ from i'iit< I

of CdllSlit,,

lilt' cxcivis.'

tin' Wlittlll
■i of tll( coll

mill jiiiis(li<
oxcliisivc, I-,

(^■IS, I'Xcrci-r

,»• jiulliorit\ ,
ili/i-ii of iiiiv

(' I'lH'V. of I III'

iiiij; as \vi' ilii

US owiii^ ;il
r, I'xcciitivi',
;ht to ivss-cit
iiericaii suli
izciishin aiiii
h'V our coll-
rin^ Sea tli;it
A" is an Inter
i Putting it

Uat' '11 of lllr

t'" ev Hri-
i>v('rn-

; .. ..lods iif
miation nui'-t
es to tt'st till'
hoiity foi' a
tioii. It is a
now wish to
reported in 4

til

mnniciiml liiw,
iitetl l)v tlio siiv-
ia at lilicrty to
ooiirt imssiiig
liiico wliii'li till'
voluutai'v ilis-
ircuiuHtnucc, lir-
he i>osHossi(iii of
iHertHiou roiuiiiii^,
of tlio court I'liii
1)0 the osHiiutiiil

^1 which liaK liciu
istric't wlit'rr tlii>
gularaml ill'.'^nl
lie case. But nf

Id talco iidtii'i'.
'ts of one distrii't
d in another ilis-
ded l>y onr own
no notice. The
iwerof the Stiiti',
on over it to any
sul)ject aud im

sovereign jutwcr
lumed ')y fori'i(,'n

rly. But if tlm

act tipon it uor

30,.

(Mr. DickinHoii's Closing Argument.)
Now tlien, as to juris(lit;tion:

" Tht< vosnel and cargo wliich conntitnte the Hultjoct of controverijr
' wer<^ Heizt^d within the ttirritoriul juriHdietion of the Ooverunient of
■' St. Domingo, aud earried into a HpaniHh port. AVhile lying in that
" nort, iirtieeeditigK were regularly iuHtituted in the court for the
" iHlnnd of Ouaditlou^ie; the cargo wuh noM hy a proviHional ordur of
'' that -.'ourt, after whieii the vuHsel and cargo were condemned."

III " The Hovereigu wIiohc ollleer liiiH iu liiH name captured a vcHMel as
•' j)rize of war remaiiiH in posHeHHion of that vchhcI and liaH full power
" over her so long aw hIic in in a situation in wliich that jiimHession
" cannot lie rightfully divcHted. 'I'lie fact whether she Ih an enemy
" vcHHcl or not ought, however, to he judicially iiwiuircd into and do-
" cided, and thereforethe property in a neutral, captured as an enemy,
" iH never changed until Nentenee of condemnation liaH jiaHHod; and
" the practice of natiouH requircH that the vckhcI hIuiII he in a place of
" Bafety hefore Huch Hcntence can lie rendered. In the port of a nen-
" tral Hho ix in a place of Hafety, and the poHHCHHion of the captor con-
" not bo lawfully ilivested, liecaUHc the neutral Hovereign, hv hiniHelt
" or by luH coertH, can take no cognizance of the i|ue»tion of |)rize or

20 "uo prize.

" ThiH position in not intended to apply to the caw of a Movereign
•' hound by particular treatien to one of the lielligerentH; it ih intended
" to apply only to tlioHc neutraU who are free to act iK'cordiiig tt> the
"general law of natioUH. In Huch caHe, the neutral Hovereign cannot
" wrent from the pobuchhIou of the cajitor a prize of war brought into
" his portH."

" PoRHcaHion of the /•<•.•< by the Hovereign Iuim been couHidered as giv-
" ing the juriHiliction to Iiih court; the particuliir mode of introducing
" the Hubject into the court, or, in other woni , of instituting the
parti(!ular proi'css which is preliminary to tlir sentence, is properly
of municipal reguhition. uncontrolled by the law of nations, aucl,
tlierefin'e, is not examinable bv a foreign tribunal. Jt would seem,
t'leu, that till' iirinciplcH wliicli have been stilted as applicable in
" this respect to a prize of war, may be ap|died to a vessel rightfully
" seized for violating the municipal laws of a nation, if the sovereign
" of the captor |)osse.^ses the same right to maintain his jiossession
" against the claim of the original owner in the latter as in the former
" cii.se. If, on a libel tiletl by the original owner in the courts of the
" cuuntrv into which the vessel might be brought, the jiossession
" couhl i)e defended by alleging that she was seized for the violation
" of a municipal law, and the right of the court to decide the cause
" would be thereby defeated, then that possession would seem to be
" sutlicieutly lirni to maintain the jurisdiction of the courts of the
4*-' " captor.

" Up(m this point much doubt has been entertained. It is, however,
" the opinion of a majority of the judges, tliut a jiossession thus law-
" fullv aciiuired, under the authority of a sovereign Htate, could not
" lie Invested by the tribunals of that country into whose jiorts the
•' captured vessel was brought: at least that it could not be divested
" unless there should be such obvious delay iu iiroceeding to a jou-
" ilemnation as would justify the opinion that no such measure woa
" intended, and thus convert the seizure into a trespass."

I no%v refer to Dana's '' Wheaton's International Law,"
(111 the subject of niunicipal legislation.

" Sec. 113. The judicial jiowerof every independent State, then, es-
" ti ads, with the iiualitieations mentioned:

" 1. To the punishment of all ott'ences against the munici|>al laws
" of the Htate, by whomsoever committed, within the territory.

" 2. To the punishment of all such ott'ences, by whomsoever com-
" niitted, on board its ]iublic and private vessels on the high seas, and
" on board its public vessels iu foreign ]iorta.

" it. To the jiunishment of all such offences by its subjects, whereso-
" ever committed.

" 4. To the punishment of piracy, and other ofTences against the law
" (if nations, by whomsoever and wheresoever committed.
(3o " It is evident that a State cannot punish an offence against its muni-
" cipal laws, committed within the territory of another State, unless
" liy its own citizens; nor can it arrest the persons or property of the
" supposed offender within that territory; but it may arrest its own
" citizens in a place which is not within the jurisdiction of any other
" uiition, (i.s- the liiijli seas, mid jninis/i l/ifiii. for offences commilleU if it/iit:.
" ,s'«c/( a place, or wil/iin the territory of a foreign State."

\\U

!•»

m'-

m I

^•i' ' 1

f»?6

(Ml'. Dickinson's Closing Argument.)

Of cours»% that does not moan that we go to tlie lonj^th
claimed by Great Britain for us that it can take one of
its citizens on the liigh seas from a ship rightfully hen
ing the British Hag. The United States maintains (lie
contrary doctrine— but that it can take its citizen any-
where on the high seas that it finds him, on nis own shiji,
or take any ships owned by him whatever flag he flies.

" Seo. 114. LawH of trade and uavif^at ion cannot ntfoiit foroifjncis
" beyond the territorial limitHof the State, but they iire binding; u|iiiii
" ita citizens, wherever thoy niuy be. Thus, offeuHCH a^ainHt tlie lnus
"of a State prohibiting or rcKuhitiuf? any i)articuhir traflic, niuy lir
" jJuuiHhed by it« tribnnalH, when committed by its citizens, in whut-
" ever place; but if coiniuitted by foreifjners, such offences can cmlv
" be thus punished when coinniitted within the territory of the Stat.',
" or on board of its vessels, in some place not within the jurisdiction
" of any other State."

Wo shall come to this question more extensively, wlion
20 1 come to the question of jurisdiction on the higli seas;
when we come to the discussion of the principles laid
down by my learned friends in their argument, as to tho
nationality of tho ships, and the sacredness of the regis
ter, by International law.

At five o'clock the Commissioners rose.

Commissioners under the Convention of February 8*

1896. between the United States of

America and Oreat Britain.

Legislative Council Chamber, Provincial Building,
10 At Halifa.-:, September 23, 1897.

At 10.30 A. M. tlio Commissioners took their seats.

Mr. Dickinson;— Discussing the relations of the Ameri-
can citizen domiciled in Great Britain in respect of liis
allegiance to Cireat Britain and his allegiance to the United
States and his status under this Convention, I call your
Honor's attention to the position wiiich we have taken and
ilaborated tliat the original allegiance can never l)e sur-
ic'idered except by the act of na^turalization mider the

" Treaty of 1H70, or under tiie respective statutes of the
nations.

Hail, in the 4tb and last edition of his work on Interna-
tional Law, states at page 240, the British doctrine— and it is
also the American doctrine— that " The renunciation of
" former allegiance will not suffice to give the character of
" (-itizen or subject of the country of adoption, andean bo
" .icciuired only by the act of naturalization itself." Both
Cdinitries are agreed that only naturalization can change
tlieir conmion acceptation of international law on the ques-

' tion of i)erpetual alle{.,uince, as it li;is stood from the
foimdation of the United States Government until now.
This was the doctrine of the civil law as [ read from
Twiss yesterday morning, and is the law of nations, so
far as the Umted Stiites and (ireat Britain are con-
cerned, as it is the common law; and is the accepted
law on this question l)y treaty, and by acceptation of the
courts of both countries, and the first and most binding
of canons of the international code is that an international
iirinciple bv consent is the law as between nations. Again,

•^ Kays Hall, at page 2i>ry.

" Until ii'tliirii/uiilifmliiirn nre satiiitird, tin' Slatr into ir/iich a person has
" iiitmigratni fiiii l/irr no rii/lil of jirnli'rliu;/ him."

That is the broad rule without the exception, because it
has a right to protect him to a certain extent aa against
all V tions but one. If, in addititm, there had been suf-
fi.xod the single exception which we have stiiti ' "against
tlio nation of original allegiance" — it would iiave stated

;otlii' unmoditied doctrine. But let us refer t little more
to Hall, and we will find our position stai« .1 After re-
ferring to British subjects at the time of the American
( ivil War, I call your Honors' marked attention to his
ri't'erence to //(/)•(/ States (,/.(^, other nations than the two of
(iiiginal allegianje ;ind of domicil) where, after having re-
ferred to the British Government declining to interfere in
iii'liair of British subjects who had placed themselves in a
rortain situation at the time of our war, he says that it
lines not follow that such persons are in a better position

fol'ian ordinary foreigneis, as between third States and the
Slate within which they have arrogated to tluMuselves the
li^lit of subjects, and the burdens of which they must
(iinsequontly bear. Having stated that the natural alle-
gi uice could not be sunendered under the jire.sent laws
lictween the countries, except by the act of uaturaliza-

928

.< '

(Mr. Dickinson's Closing Argument.)

tion, he now states our doctrine as to third States a.s
follows:

" Third Stales, and the State of origin when it acknowledges Ufttiini!-
" ization as changing uationaiitv, cmi onli/ lonk to l/ie fuel ihut il,e
" iiatiir(tliziiliim Ittim of the Slute iitiliiriiliii)i(/ Inire nr /iiiri' not bfi-n r'uLi/
" complieil villi. Viilil tlifHf /iiirs nrf snlislh'ii the State into whicli tlu>
" person has immigrated can have no right of protecting him."

Can there be any dispute about that being tlie dortiinc
of British law after that statement by Hall? No Ahum i( an
citizen claiming under the protection of the Britisli fla^
here has done what was put within his own will, laki>n
up naturalization in Great Britain. The only embai lass-
nient ever before between the countries in this re-
spect was the embarrassment to the individual owing to
the fact that both countries were holding him to lijs
original allegiance, and he had no cower of renunciation

2Qin either country. But, owing to the growth of coiii-
nieroe, and inunigration and emigration, owing to con.
stantly increasing intimate relations between the jn'oplcs,
the conclusion of the investigation made by the great Hril isli
Commission in IStW, and of the concurrent investigation
made by a Conmiittee of Congress, appointed especially
for that purpose in lstl8. was to place it within bis own
power to relieve the citizen of that difficulty l)y permitting
him to take naturalization voluntarily, and thus nmlo
his allegiance and dissolve all the.se embarrassni'iits.

-.Q Having done so, tht; State of liis domicile can protect him

^ against iiis original allegiance. Hall saysso; every Amer-
ican authority says so. Until that is done, the State of
domicile cannot protect him against the nation of his
original allegiance. Hall does not mean that the State
cannot protect him to a certain extent, because we
find him stating that, as to third nations, it may pro-
tect him, but not as against the country of his original
allegianie until naturalization.

The doctrine is stated by Sir Sherston Baker's Halleck

.qOU Jurisdiction, at page 205 of volume 1, as follows:

" OffonscH against the law of a Htiitc, regulating or proliibitiiig
"any particular trade, if committed l>y foreigners within tiic tcr-
" ritorial jurisdiction of another State, are not i)unis]ialilc liy the
" triliuuals of the State whose laws thev have violated ; Imt if cniu-
" mittedhy its citizens, thev are so piuushable, no matter where coni-
" mitted, whether within its own limits, on the higii seas, or in a
" foreign country."

These are our citizens who have not become naturalized
over in Great Britain, we are now discussing:

"A distinction, however, must lie made Ir tween mere com-
" inercial regulations permitting or iirohihi'ing a certain trinle,
" and statutes creating a criminal otl'ense, W'tli perstuial pc>naltics cx-
" jiressly applicahle to all the citizens of the State. The coniiiicrcinl
" domicile of a party may sometimes exempt liim from the oiieralioim
" of the laws of trade of liis own country, but while his funiier allc-
" gianci^ continues, he is lialile to iiu'iir the penalties of a criminal of-
" fense against his own country, which penalties may lie euforcod
" whenever he comes within reach of its municipal laws."

Now, an interesting (piestion came up — a conliiit of
6o,iui'sdiction between the country of original allegiance and
the country of adojited allegiance— adopted without natiu-
alization— and the history of it is given in "Wharton's
(-onllict of Laws," and in a niuuber of other authorities.
It is a novel question, and is stated also in 2 Wharton's
Digest, page 60!>, Section 203. 1 quote it as an interesting

929

d States as

f his orij^m.il
Ikt'i-'s Halloik

xvitlmi the tcr-

iiHlmlil(> liv lilt'

'il ; Imt if I'oiii-

Ivtti'i' wlicvc I'om-

li st'UH, or ill tt

10 naturalizt'd

■ ■en iiii'ir imhu-
III I'oitaiii ti'iiilc,
1 ))i'imltifs i\-
iit' coniiui'i'cial
Ln tin' (iiii'ratiourt
I Ills fdiiiic'i' iille-
I of 11 1'liiiiiuiil ot-
iiiv 1)1" fufoieoil

i-a conllii't of

.llogiaiu'eaiul

ithout iiatiu-

" VVliarloii's

• aiillioritios.

I) 2 Wharton's

Ian interesting

(Mr. Dickinson's Closing Argnnient.)

|iart of the history <jr this l(>ng controversy and oinhar-
raj^sment, which has now been settled liy putting it
within the vohintai y will of tlu> [icrson to savt> himself
from the eniharrassnicnt:

" An iutorcslinn- (lucstidii arises when a fori'l^ncr is iiidii'tcil for a

• political oH'cnso, wliicli he is r('(|iiir('(l to coiiiiiiit l>y liis own sovor-
•• (iffn In sncli a case the coniniaiul of tlic for<'i(;ii sovereign is uo

defense. If tlie ilefeiidant in such a jirosecntion is convicted in vio-
lation of the law of nations, it is tlu^ duty of the executive to inter-

• fen.' with a pardon. If this is inipraeticalile, the iiiiestion is one
■ for international adjustiiieut. A foreigner caiiuot sa\- that he is not

" bound to obey the laws of the State whi're he is sojonruing. Hut if

• tlie act for which he is convii'ted is one enjoined liy his own sover-

• eifin. tlieii that sovereign iinist he held res|)ousil)le."

This is till' extrt'iiic cas(> of a foreigner -we will sny of
a citizen of the United States, doiiiiciled in (Jieat Britain,
cnniniandi'd theie to do a thing w liicli is eiijoinod by the
I'nited States. TIh'ic the old iirolilciii came up for sohi-
2otioii of an irie>istilil(' body meeting an immovable body.
'Hie two alltgianci's coim togetiier in conflict, and the
only way ont was by negotiation and iiy tiie arbitrary ex-
ercise of the premgative of pardon; bnt tlii' distinction,
as 1 stated at tile outset, must be constantly borne in
mind that the right to protect rests on dilt't'reiit grounds,
to which there are exceptions, than the obligation to
obey. Tlie obligation to obey tlu; sovereign, if enjoined,
|)uts the citizen so (diligcd to obey in a position where he
cannot reclaim for wjiat he sutf'eis for the act of disobedi-
30(iic(': but the protection of the country of bis origin caii-
iint surround liini. provided be is treated exai'tly like the
citizens ( f the place of his domicili', and the country of
(leiiiicil cannot make rccianiation in any ca.se againsfthe
country of origin.

In Lawrence's Wheaton the matter is somewhat fully
discussed in lht> notes (p. IT.'), lith eilitiont. In Bar's
I'rivate International Law we come to le statement of
tlie doctrine which ajipears in (piotation mark-; in my
brief, as to which 1 desire a correction. Jn dictating the

40 proposition it came out (pioted. and in some way or other
if passed me in proof reading, llioiigli I thought 1 reail my
own proof carefully. (Quotation marks were improperly
added to my statement of the |)ropositioii; but as soon aa
1 discovered this, as your llonois will remember, I called
attention to it and asked to eliminate the (piotatiou
marks. 1 meant to state my conclusions on the whole
subject, and that, in Bar's Private International Law the
tiue iloctrine was laid down precisely as I have stated it
inyseif. and as I have read it from Hall this moriiiiig.

Soliiad stated that it was in the (iillespie Translation
of Bar's -The Edinburgh edition and notes. I iiave it
here now, and this is the statemeiit from tlie notes.
1)1 course yon will not always find, in text
writers especially, to say nolhing of t'ourts, where
lliesuhji'ct is not being particularly discussed, the excep-
ts iiis laid down when a broad geni'ial proposition is
stated. We did not find it in Hall until he came to dis-
iii-s the special subject of the lights of protection against
third nations; but we do iind it admitted in the notes of

''0|>;ir, where the te.'ct slates: " On the other hand, it is no
" sign of nationality to be subject to the system of private
'■ law in any particular State, and in the same way it is pos-
" sible for a State to go so far as to extend diplomatic pro-
" tcction to peirons who are not in trutb its permanent
" subjects." There is no doiibt of that as a general pro[)osi-

S.l

ri; s

i 1 :

U I !

930

(Mr. Dickinson's Closinp; Argnmont )

tion against all third nations, and that I have also itil
from Hail. But I tind in the notes to Bar this stateiiu m :
"The United States extend diplomatic protection to jx i
" .sons who have not as yet hecome citizens, if tiiev .u"
'■ domiciled in the United States, and have made a de( l.ii i-
" tion of their intention of hecoming citizens; ('.rccpl /,;
" niiestioiis irtfh the count rafrohi tchich thuii caiiie. if hi/ /is

lo " laws the existing bond ofalleifiance is not dissolieil, .mil
" if the persons in question have voluntarily hetaken tluni
" selves to her territory. See on that snhject Wh -rtoii ami
" VVoolsey on International Law." Of course that caiih-
from Ihe Koszta case, and the (jualification in the Tonsig
case on the points where a citizen has voluntarily betakiMi
himself to the territory. But your Honors will see that
on these notes and on tins statement of the law, and from
the quotation from Woolsey in Bars' Notes, in connection
with the statements of the other authoiities and text wiii.

2oeis I have cited, that my statement of the proposition
agreeing with the other authorities at page(i;^>()f my luicf.
is entirely fair, except in the use of the quotation marks
as if using exact language of the annotator instead of
my own. Great Britain has stated this doctrine in ihc
dispatch from Earl Russell to Sir J. Crampton of .July li,
l.S()2, and cited in Cockburn's Nationality at i)age 11-.', of a
domiciled person, a British subject domiciled in thedoinin
ions of the Spanish crowMi: that while he is not entitled to
claim British protection against any obligations resulting

3ofi'om his Spanish allegiance, he maybe also entitled to
the privileges of a natural born British subject in (Jrcal
Britain; and the discussion is at page llo of Cockburn.
Of course (Jreat Britain contended that neither a natural
born British subject nor his children could absolve them-
selves or abjure their allegiance to Great Britain, so that
the same principle applies. I quote from Chief Justice
Cockburn:

"A person born in this couutrv of French parents wlio are 'omi-
" oiled liere, at the afj^e of manhood, Roes to reside in France, Imt

40 " without the intention of l)e('oiuin« a Frenchman, and with the piir-
" pone of eventually returning to £ufi;land. By the law of this eoiin-
" try he in undoubtedly a British subject. As such, by the comity of
" nations, he is entitled to reside in a foreipfu country without liciug
" liable to military service, but, being born of French partiits, he is also
" a French subject, and is therefore reipiired to serve under tlie coii-
" Bcriptiou, and, refusing to do so, is prosecuted and i)unislieil. He
" claims the i)rotection of the British government. It is refuseil to
" him on the ground that, having placed himself locally witliiii the
" power of the French law, this country cannot deny the right nf tlio
" French government to claim him as a subject, and must sink, till he
" gets back to this side of the Channel, the right to claim him as licr

50 " own. Has not a sjibject so circumstanced just cause to coniplaiu
" that, having been taught to consider himself an pjUglisliman, pm-
" tecticm is not afforded him? On the other hand, the French govcm-
" nient cannot be expected to make its own law of nationality siilioi-
" dinate to ours in respect of a subject whom it finds within its own
" territory. Possibly, in time of peace, the delicate handling of (li|i-
" lomatic interventi(m can find a way out of the difficulty. But what
" if, unfortunately, war should take place between the two couiitrii s.'
" What will then be the position of our supjjosed individual with thr
" double nationality? Is he to be Fn'uch or English? ' Under whiih
" King ' is our ' Bczouian ' to fight? "

^o Then he discusses that out to its logical conclusion, and
comes to the conflict of allegiance again, as in the disdis-
sion to which I have just adverted, cited from Wharton,
and Ihe conclusion io which Chief Justice Cocklunn
comes, and to which that great British Connnission canio,
was, that if, put in his own power to be naturalized, ihe

031

(Mr. Dickinson's Closing Argument.)

subject himself takes the embarrassment upon him, it
should be his own fault if he suffered. If permitted to
absolve himself, if the subject failed to relieve his situa-
tion by foreswearing his allegiance by consent of the
country of his original allegiance, he could not com-
plain.

Many of the authorities which bear on this ques-
lotion, of course, were before the laws for naturalization
were passed in either country, and some of them tuined
on the question of domicil without naturalization in the
country of domicil, and others were cases where the
party had attempted to tiike naturalization without the
consent of the country of his original allegiance; but all
were put on the same ground, of course, that he could not
surrender his original allegiance, and the principle applied
was that he was still an original subject, and siill owing
original allegiance which could never be surrendered.
20 That was the main difficulty, which led to the adoption of
the treaty.

I have discussed the Barclay case at length and shall
leave it. In the Koszta case I have stated the true
doctrine before, and have called attention to my learned
friends' criticism upon my statetnent of it, which
they made at page S of their reply, and wliich
Mr. Beique has made at length here. They have
taken Mr. Marcy's original letter, which I quote at page
47 of my brief, his original position, and then they con-
3otinue the quotation from that original letter as if it were
a quotation from the later position of Marcy in the same
case, which [ treat and cite at the same page, and which
they criticize as if at page 50.5 of the same Wharton's
Digest, whereas the original quotation from Marcy is at
page 48.5, Section li>8. They have entirely omitted to ob-
serve or to comment upon the fact that I gave them the
citation from which I quote, and proceed to add to what
I have quoted at page 505 something from page 485 of
Wharton. This makes quite a difference. It will not do
40 in that instance, of course, or in any instance, to add on
to a quotation something, even from the same author,
several pages over, as though it were from the text
quoted. In the British reply at page 15, Marshall is quoted
on the question of jurisdiction in connection with the
" La Ninfa " case, and I have simply run a pencil through
a marked quotation in their own brief from the 4th of
Cranch. Says Chief Justice Marshall: "It is conceded
that the legislation of every country is territorial," to that
point they read it to your Honors. But Marshall con-
Sotinues: " That beyond its own territory it can only affect
its own subjects or citizens," and there is the whole
doctrine in the very same sentence after the comma. " It
" is conceded that the legislation of every countrj'is terri-
'• torial, that beyond its own territory it can only affect its
'• own subjects and citizens." Of course the citation
is as strongly that ic can affect its own subjects or
citizens anywhere, as that it cannot legislate beyond
its own territory affecting foreigneis. So, in the same
quotation, the exception is made that those who do not
60 reside within it. whether they be native born subjects
or not, may not be affected directly. Again, at Part II.,
(pialifying it, "both the public and private vessels of
■' every nation on the high seas and out of the territorial
" limit of any other State are subject to the jurisdiction of
'• the State to which they belong." Tlien my friend has

' 11

fflj

Pi IW

■1

ii 1 1

!>:?2

(Mr. Dickinson's Closing Argument.)

read the doctrine from Sir Travers Twiss at page 17 cf
their hrief. whicli is taken hodily or quoted e.xarlly in tin^
"Costa Kica " case; and 1 state of the Twiss position h. i,.
that ail the language applies to the doctrine that iii»
sovereign State can exercise its jurisdiction within tlif
exclusive teiritory of another State, as we will see fioin
the (pialification at page '2^\'2 of Twiss, where the ddctiiiir
10 is stated as to the suhject to which I have called attenli(,ii
hefoie. They have read from Chajiter lu. Section ITiT s.
which does not at that place refer to the (jualiticatioii as
to jurisdiction at all:

" When tlio imtioual clianicttT of ii persdii is to lie ascprtninod tlio
" tirst fiuostion is: In what tfiritovv docs ho reside. * * * If he
" resides iu a f{iven territory iierinaneutlv, he is regarded as adhi rin;;
" t<i the nation to whieli the territory lielongs, and to tie a nieniliei- (,f
" the politieal body settled therein."

and then he proceeds to show, as I read to your Ilonms
2oyest(>rilay. that any peison who has his I'esidcnce in the
territory is sidjject to its jurisdiction on the high seas or
within his own jurisdiction. The statement is strong fur
the doctrine (.f jurisdiction on the high .seas, as it is Inr
the position which Sir Travers Twiss has treated at jiagv IT
of oui' fiiend's hrief— that you cannot exercise jurisdiclimi
within the territorial jurisdiction of another nation. Let
us see. Section lUtl, page *_'42 of Twiss:

"Tlieopen sea is, strictly siieakiufj, mil/ns Ifyi-itnyiinii. No naticm
" can claim to exercise jurisdiction over its waters on any n''*^'"'<l of
30 " exclusive possession. On the other hand, it is the puldic hif^hway
" of nations upon which the vessels of all nations meet on terms of
" eipiality, each vessel carryinf; with it the laws of its own nation 'ir
" the tiovernmcut of those on lioard of it in their mutual rcliitions
•' with one another, hut all sul)iect to the common law of nations iu
" matters of mutual relation between tlic vessels themselves and tin ir
" crews."

They have correctly quoted Hall also, at page is of tiicir
hrief, anil 1 call niaiked attention to the last sentence (if
that piopositiou from Hall, as follows:

,_ " The ri(?hts of sovereignty give jurisdiction iu respect of all acts
'^ " done liy subjects or foreigners within the limits of the State, of all
" property situated there to whomsoever it may belong, and of tliose
" acts done by mendiers of the community outsnle tlie iState territory
" of which the State may choose to take coguizauce. In practici'.
" however, jurisdiction is not exercised in all these directions to iiii
" e(iual extent."

In the case of Cooper, 111! United States, at ])age 4Tl',
it was iield, and this is iu harmony with the finding df
the Palis Trihuual, for the purposes of this Conventioii.
that the L nited States District Court of Alaska was a

SOcourtof superior jurisdiction, and that every inteiidnu'iit
therefore is made in favor of its decrees. VVhatevci'
those courts did was, therefore, in the exercise of the judi-
dicial hranch of the sovereignty of the United States.
As to the exercise of the juiisdictioir iu this case hy the
sovereignty of the Unitecl States, your Honors will tiiul
throughout our printed argument— as well as since listen-
ing to the distinction made hy our friends in oral argu-
ment-thai we have put over and ahove the existence of
the actual statute iu the siatute hook the assertion of the

6ojurisdictiou of the sovereignty of this country hy tiio
executive authority, (iiveu that it has jurisdiction 011
the high seas, then if the authority was exercised owr
our own nationals or citizens no foreign nation can say us
nay or call us in question. The position taken squarely
l)y our learned friends, the counsel for Great Britain, in

933

(Mr. Dickinson's Closing Argument.)

1lie Cooper case, 143 U. S.. was ''That no action hereto-
" fore taken by thu United States Government amounts to
" an assertion of any sovereignty in the United States
•' wliicii would give jijrisdictioii to its courts over any por-

• tion of the Behiing Sea or the wild animals theiein be-
" yond a marine league from any shores of the United
" States." The opinion of the Court is given at page 498:

10" If vve assume that the Record shows the locality of the
'• alleged offense and seizure as stated, it also shows that
" officers of the United States acting under the orders of

• their Government, seized this vessel engaged in catch-
" ing seals and took her into the nearest port, and that
'• the law officers of the Government libeled her and pro-
'• ceeded against her for the violation of the laws of
'• the United States, resulting in condemnation. How
■• did it happen that the officers received sucli orders?"

Now, since that decision, the Paris tribunal have de-

20 tided that the officers acted under tiie direct authority of

the sovereignty, and this is one of the questions of fact

found, and binds your Honors. The Paris tribunal have

sent down to your Honors this finding:

" That the saiil several searcheH and soizures of vessels were made
" by public armed vessels of the United States, the commanders of
" which had, at the several times when they were made, from the ex-
" ocutive department of the Government of the United States, instruc-
" tions, a copy of one of which is annexed hereto " (Vol. I., p. 43;.

30 Again, in the same finding:

" That the seizure was adopted by the Government of
" the United States," and that as to the warnings, " such
" action was adopted l)y the Government of the United
"States. ' First, that seizures were made by the direct
autliority of the Executive Department of the United
States; and second, that the warnings were adopted by
the Governnjent of the United States, and, therefore, were
authoritative — fully covering the question of the authority
of the Government in the prennses. But, before that.
4°" How did it happen that the otticers received such
"orders?" say the Supreme Court of the United States
in the Cooper case:

" It must be admitted that they were given in the assertion on the
" part of this Government of territorial jurisdiction over Behring Sea
" to an extent exceeding 59 miles from the shores of Alaska; that this
" territorial jurisdiction, in the enforcement of the laws protecting
" spill fisheries, was asserted by actual seizures during the seasons of
" 1886, 1887 and 1889, of a number of British vessels; that the Govern-
" meut persistently maintains that such jurisdiction belongs to it. based
uot only on the peculiar nature of the .seal fisheries and the prop-
erty of the Government in them, but also upon the position that
" this jurisdiction was asserted by Bussia for more than ninety years
" and l)y that Government transferred to the United States; and that
" iK'gotiations are pending upon the subject."

50,

The Commissioner ou the part of the United States: —
What page is that?
Mr. IMckinson:— Page 4D!>; and the Court goes on:

" While it is conceded that in matters committed by the Constitii-
" tion and laws of the United States either to C^ongress or to the
60 " Executive, or to both, courts are clearly bound by the action of
" I'ougress or the Executive, or both, within the limits of the
" authority conferred by the Constitution and laws, yet it is insisted
" that Congress and the' Executive, constituting the political depart-
" incuts of the Government, having before them the question ' of the
" extent of the dominion of the United States in the Behring Sea,'
" which they could doubtless by conjoint action determine so as to

■■■^1

V.:'' i

(Mr. Dickinson's Closinj; Argument.)

" bind the oourts, Lavo chosen neither to iletcrmiue that extent iioi in
" make any provision of law by wbieh it is devolved u]>on the ExecMtuc'
" to determine it, and that, therefore, it is the duty of this eiiuit in tliu
" case at bar, iuvolvinj? the legolity of the seizure and condcniiinlinii
" of a foreign vessel alleged to be in violation of the law of niitii.ns,
" and without warrant of any law of the United States, to deti'i miin^
" the question.

" ARsuniing that the Executive alone can H))eak so as to liiinl mn'
" courts in resjiect to the sovereignty of foreign territoi-y. the clnin.^iH
lO " in foreign governments, the existence of civil war in foreign cnuiii ncs
" and the character of o foreign minister, counsel, uovertlieless. ion
" tidently assert 'that without the dear authority of the law ot ( nii-
" ' gress.the Executive can never, by determiuiug'a so-called poliliial
" ' nuestion or by construing an act of t'ongress or a treaty, coiu'liiilc
" ' the rights of persons or proj)erty under the proturtion of tlieCdiisti-
" 'tution and laws of the United States or coudnde the courts ol' tlir
" ' United States in a determination of these rights.' "

Tiio Court goes on to consider all tlie auth()ritic> ciiiil
by Mr. Clioate, Ht-r MajestyV coini.sel, and iiiocctds id
2ot-"<>iisiiler the Acts ot Congrtss as construed by the K.xivn-
tive, and concludes at paj^e i',i))i:

" If reference could be properly made, to such matters [dcliiitcs],
" (for the act. as finally approved, must Hjjcak for itself,) still we ilo
" not concur in the view that it follows that Congress thereby expn s>ly
" invited the judicial branch of the Government to determine ' wliu't
" are the limits of Alaska territory and the waters thereof,' and wliat
" is ' the dominion of the United States in the waters of Hehriug .Sen,'
" and think, on the contrary, that there is much force in the jxi^iliou
" that, whatever the reason for the conservative course pursutil liy
" the Senate, the enactment of this section, with full knowledge of tlio
" executive action already had and of the diplomatic situation, j\isti-
J " tied the President in the conclusion that it was his duty, under sec-
" tion three, to adhere to the construction already insisted upon us to
" the extent of the dominion of the United States, and continue to act
" accordingly.

" If this be so, the a])plication calls upon the court, while negdtia-
" tions are pending, to decide whether the Government is riglit or
" wrong, and to review the action of the i)olitical dei)artments upon
" the question, contrary to the settled law in that regard."

It then proceeds to cite the autiiorities. Of course that

discussion was not necessary to the decision of the (msp,

40 but it is fully presented, as it would have been decisive, if

necessary, to the decision of the case, doubtless for the

reason stated in this language:

"In this case Her Britannic Majesty's Attorney-General of Cauaila
" has presented, with the knowledge and approval of the luipi'rial
" Government of Great Britain, a suggestion on behalf of the clainiaut.
" He represents no property interest in the vessel, as is sometimes dnue
" bv consuls, but only a public political interest. We are not iuKcusi-
" ble to the courtesy implied in the willingness thus manifested that
" this court should proceed to a decision on the main question lU'fjued
" for the petitioner; nor do we permit ourselves to doubt that niidot
Buch circumstances the decision would receive all the cousidoiation
that the utmost good foith wouM require; but it is verv clear that,
presented as a political question merely, it would not fall within our
province to determine it."

50"

It discusses that view of the case, but the judgment finally
turned, not upon that point but upon this, that Cooler
hiuLself had appealed from the condemnation of ilie
Alaska Court to the Supreme Court of the United Slates,
as he had a perfect right iodo, and had afterwards volim-
tarily, without any consent or suggestion on the |i:iit
^of the United States, abandoned his appeal. And mi
consideration of the whole case, the Court was necess
arily obliged to find that inasmuch as he had not taken
care to have included in the findings the position of the
ship in the Bering Sea. the United States was hound In
the finding of fact of the District Court of Alaska, wliidi

Di;:.

lorities ciinl
I piocct'ds 1(1
y the Kxfi u-

)f cnursi- thai

of till' (MSI-,

3en dwisivc, if
tless for ll't'

(Mr. DickiDson's Closing Argument.)

found that tlie seizure was made within the dominions of
the United States in the Bering Sea.

Before the Geneva Tribunal, one Joseph Burns, a British
sul),iect, wlio had never forsworn his allegiance, and a
yMloi on an American ship, presented his claim for
damages. He was, so far as his person was concerned,
,0 while on an American ship, though a British snhJHct,
entitled to the protection of the United States. Any
invasion of an American ship by Great Britain to take
lliis British subject would have been an invasion of
American territory; and I do not know that I can give
any better illustration of a proper answer to your Honor's
suggestion of an invasion of JCew Brunswick. So long
as Joseph Burns was on an American ship, and under the
American Hag, conceded to be an American ship, owned
111 the United States of America — that being the lest of
20 nationality— Great Britain could not touch him of course.
But the ship was destroyed, as claimed before the Geneva
arbitration, by the fault of Great Britain.

I turn for a moment to this case as a side light on our
friends' doctrine of intention and damages. It is innna-
terial whether toit was committed by culpable negligence
ur by an active tort. The law has one word for such a
wrong and that is tort, and whoever commits it is
responsible for resulting damages, as laid down in all
the authorities, and I cite good British authority upon
30 that point; the only definition of what damage follows
by tort— say by a negligent collision at sea or by a tort
fioin willful capture— is that a party shall be responsible
for all the natural and legal consequences of his act.
The man guilty of negligence is just as guilty in the
aspect of damages as a man who willfully does the act;
otherwise it would not bo called a wrong. There may
be such degrees of negligence that a party gui!ty of
gross negligence might be mulcted as a man guilty of the
most malicious and willful tort. Gross negligence is the
^oftliiivalent of willfulness and maliciousness. A tort com-
mitted actively under the belief of color of right is '.lot as
evil an act as an act of neglect of duty. And when I
come to the question of damages I shall m;)ke ihe argu-
ment ad hominem to the counsel for Great Britain.

The absurdity of the talk of willful damage can be de-
monstrated by'this proposition: Great Britain was very
careful in the negotiations for the treaty, and, as appears
l)y the correspondence, carefully guarded any damage
against herself in case the decision had turned out the
joothei way— and very properly so.

The delay with which the United States was charged
was delay in connection with the Treaty of 1892. The
United States would not admit and Great Britain would
Dot admit; the negotiations were largely delayed because
Ureat Britain did not want to be responsible for any ship
that carried the British flag and for what she did in the
Bering Sea, and Great Britain did not want to pay dam-
ages for what was done by any ship carrying i;he British
flag in Beri;ig Sea. Well, suppose the Arbitrators
60 at Paris, to whose main decision we bow with some
reluctance, had decided the other way, and as we
thought was right— else we would not have been there —
Uieat Britain would have been held under that treaty for
damages. Would it not be absurd if we not only
went in and asked for payment for the actual damages

fi|-

'ivW"

■I

'.r'.u

(Mr. Dickinson's Closing Argument.)

that Great Britain had done to our seal fisheries, and also
charged her, in view of her contention that this wiis ,i
common sea, and that what she did was undt-r color ol
her contention that it was a part of the high seaH, as slm
beheved, in good faith, but that we should also charge lur
with taking our seals willfully and wanlonly, and iIickj
fore should claim aggravated damages because she iii-
lo tended to take the seals? Of course she did, as we inteiniiMl
to take the vessels. Because she intended tt) tiike tin'
seals, how ridiculous it would have been to contend that
we were to have anything other than the value of tlio
things taken.

But we are coming to the case of Burns, from which I
was diverted. Bums presented his claim at (Uneva, ami
because he was a British subject it was not coiisiileiiMl
worth discussing— not because Great Britain was charged,

20 as stated by Commissioner Rayner, with violation ot or
neglect to execute her own nmnicipal laws, — because he
was a British subject it was held that ho could not have
any reclamation although on an American ship, and
although injured by the .same acts for which Aniericim
citizens might recover, he could not have reclaiiiatioii
against Great Britain simply and solely because he was a
British sul)ject. And that was the only ground upon
which it was put, and he occupied the same position, so
far as respects the law and right, on an American ship as

30 if then domiciled on American territory. It is quite a (lit-
ferent question, whether Burns could be taken from an
American shi|) by a British vessel, and whether he can
make reclatnation for an alleged tort conunitted by his own
sovereignty. It would be a state of things which would
be inconceivable that any citizen could go to another
nation alleging that his >7ountry has done wrong and re-
ceive foreign protection on a claim for damages. That
is tlie position of Her Majesty's Government before this
Convention, because not one of tiie American clain\ant3

40 was naturalized prior to the alleged injury or prior to the
Convention under which this High Commission sits.

"La Ninfa" Case.

We had the " La Ninfa " case out at Victoria. There is
nothing new about the " La Ninfa" case, and we cannot
conceive how even if it were a decision— as we said the
other day— of the Supreme Court of the United States,
it can cut any figure here. Just reflect a moment

50 upon this. The award of the Paris Tribunal— this is a
matter which should be well fastened in your Honors
minds if there is any mistake about it,— the award of the
Paris Tribunal which found that the United States did
not have exclusive jurisdiction in the Bering Sea, was
made on the l.'ithday of August, 18!)H, and there and then
was settled, according to the "La Ninfa" case, may it
please your Honors, the right of jurisdiction in the
Bering Sea. I am not going to discuss this at any great
length, but I would like to have these dates in your

60 Honors' mind.

The "La Ninfa" case rests upon the decision of the
Paris Tribunal. We will not speak of its binding eflVct
upon any one as yet. The decision of the Paris 'J'ribnnal,
upon which the " La Ninfa" case rests, finds that jnris-
diction did not exist over American citizens in the Bering

087

(Mr. Dickinson's Closing Argument.)

Sea, and was madt* tho intli day of August, IS'JH. It had
tliun been fully decided that the United Slates lia<l not
oxclusivo jurisdiction in Bering Sea, wlien this Coin-
niission now sitting was organized under tlus Convention
between (ireat Britain and the United States in 18!Mi. I
repeat, wlien this Convention was entered into in Fehru-
;iry, isjMi, it had been decided hy the Paris Tribunal that

lotiie United States iiad not exciusivt- jurisdiction in tlie
Bering Sea as fully as wIumi the learned Judge decided
tlie *■ La Ninfa " case. Nevertheless, after that award these
two motions made this treaty of lMi»t>, which provides
who shall have reclamation before this Convention, not-
withstanding this fact. It provides that only such per-
sons shall have reclan)ation, as (heat Britain is entitled to
make reclamation for, and points out that the right of
the United States to siiow ownersiiip in our citizens
shall be preserved before you.

20 Do our friends seriously contend that if the Supreme
Con it «»f the United States even had held yesterday or the
day before, that the United States could not punish citi-
zens under the Section Il».")(> as amended, for acts done
l)eyond the three mile limit in Bering Sea — do they seri-
ously contend that an American citizen who has been in-
jured by this infraction of his rigiits in Bering Sea by his
sovereignty, can take the flag of Great Britain as a protec-
tion, and enter an international court and assert the right
of an American citizen for damages^

30 Take the most extreme case you please, under this Con-
vention or by the rules of International law. Suppose that
on tlie North Atlantic, l,'>(») miles out at sea, an American
cruiser, without any authority, takes a ship to day, an
American owned ship, which had run up the British flag,
itut turned out to be an American owned ship--novv she
is on the high seas 1,500 miles out— her capture, we will
say, was an outrage — beyond conception, an outrage —
without color of authority, and the United States ratifled
tlie act. Has Great Britain anything to do with it?

40 She has to do with it until the pretense of British owner-
siiip is torn aside, but if the ship turns out to be actually
.■\iiierican owned, she has no more to do with it than we
iiave witli the " Renown " and her conduct out here in
Halifax Harbor. Could you give Grctat Britain the right
to do anything about it by any Convention, 71011 constat our
courts had no jurisdiction in Bering Sea, non constat our
municipal statute does not cover it^ A Convention has
been made between the countries providing that no one
sliail come before it except those persons for whom Great

50 Britain can make reclamation, and it is further provided
upon this point that the question of citizenship of claim-
ants shall be inquired into by your Honors.

1 am going to finish once for all with this "La
Ninfa " case, which has been given and received
a most remarkably improper significance, in my
opinion. Of couree this decisicm of the Federal
Courts of Appeals of the Ninth Circuit is not an au-
thoritative exposition of the law of the United States,
or of International Law for any court outside of the

6c' Ninth Circuit, because, by the Court of Appeals Act, this
case is appealable, and the decision of no court but the
court of last resort is evidence in any international court
of the position of the Government, nor is it binding on the
Uovernment of the United States, 'i'he decision to be
liiiuling must be a decision of a court of last resort. The

I ;5

i»;is

(Mr. I^ickinson's Closing Argutiu-iit )

"La Ninfa" ciisd properly ( ited is "il Circuit Cnurt ni
Appeals, pag«' 4:t"). In t lit' forepart of everv voliinit' w ill
hetoiind the Court ot Appeals Act. wiiitli will show lli.n
the case was clearly appi'alaltle to the Snpieine Cuiirl ij
the United States. Hefore the Convention of |s71, as li..
fore the Convention of 1S.">;<. the right logo lielorcan hi
teinatioiial CoMunission on Claims on a loss occuniiig liv
lo tile action of judicial anihoi ily of the United Stales, w.is
n-peatedly discussed and decided. And the doctriiii lo
which there are no exceptions, on a full review of all I In'
authorities in which iheio is no exception, is:

" TImt no I'oclainittion ciiii lie iimdc UKaiiint tliii (lovcriiiiit'iit dii iic-
" c'omit <if imv loNM lu'crniii)^ liy nctiim of judii-iiil iintlioritv of ilic
" coiiiitrv uiilcHH tlicro liuw liccn iin aiipciil iiiiulu for relief to tin'
" court, mill II (loeiHioii reuelied liv a court of luxt rcMort, itdverNe in
" the pOHiti^n ol'tho eluiiiiiiut."

^ ill the Papers relating to Xlie Treaty of Wasliiiiglciii,
Vol. VI., page ^s (Conunissioii of 1^71) it is said:

" Tlio question an to tlu) juriHdietion of the C'ommiHsioii in eases
" whei-(> tlie party eoniplainiun liad faih'd to proseeute hi.s ap)i.'ii|
"from the i)ri/.e eourt of ori);inal jurisdietiou to tlie eourt ofnlli-
" mate iippelhite jurisdietion, wrh raiHed l>y demurrer.' ote.

" Her Kritanuie MajcHty's eonusel, on behalf of the eiaiiimiits in
" tliiw and other eiiHeH, maintained tluit the doetriuew of tlie pulilieists
'• in renard to the ueeesHity of u party aggrieved followiuj^ out his
" eoin))lete remedy in the a)ipellate prize courtH of tlu^ nation ol wIkwc
30 " acts lie eoni|ilaiued, ni)i)lied only to the ipieHtiou us to ({''onnds of
" war and reprisalH, and did not apply to the (pieHtiou of juiiHdietleii
" liy an interuutioual tribunal, (^staldished by treaty, witli the liiv|.' v
" powers and jurisdietion eouferred by the treutv upon this (loiiiiiii:
" sion. That under the terms of the treaty the Commission Imil
"jurisdietion of all wrounful aets eommitted by the authorities nf
" the United States upon the persons or property of British sul)jeits "
*******

"The Commission held, in eflfpct, that under the treaty, they Im.l
" jurisdietion, uotwithstaudiuf; the failure of the elaimaut to ])ursiic
" his remedy V)y appeal to the court of last resort, but that siiiU
' failure on his part would be considered conclusive against liiiii. iiii-
40 " less satisfactory reasons were ^iveu for the omission to api)eal. (t
" was thereupon unanimously ordered by the Commission that llio
" demurrers lie overruled, but that the claimants, in all the piize
" cases in which a])pcals had not Vteeu taken and pursued to the eoiiit
" of last resort should tile with the Commission their reasons for such
" omissions or failures to take and jiroseeute such appeals.

"Subsequently the claimants in this cose filed an afUdavit, assifju-
" iu« as their reasons for not appealing from the decree of the District
" Court the following:

'• 1st. Hecause it wos universallv known in Philadelphia at the time
" said decree passed that appeals from the prize courts there by
" claimants were almost uniformly couf • -led with costs. 2il. TImt
50 " j)ublic opinion there was in sympathy with such confirmations,
" under the suspicion that commercial men in this province (Nnvii
" Scotia) were in sympathy with the Confederates. 3d. That tlie
" other owners of the -Napier' were not of pecuniary ability to pro-
" cure the necessary sureties without much inconvenience, nor to
" sustain further heavy costs, and the burden of loss added to iu-
" jury, especially as we had already expended nearly lS,500 in counsel
" fees, a^encv and travelling expenses connected with this seizure.

" On the filing of these 'reasons' the Commission, without fiutlioi
" argument, held them insutiicient to excuse the want of appeal, mid
" unanimously disallowed the claim."

60 There is an opinion by the United States Commissioner
in the Appendix of this Report, and then follows the (lis
missal by the Commission of all cases which had not bcci>
appealed as not binding on the Court, and as not showini:;
the action of the sovereignty of the United States at all,
where not appealed, and they are dismissed incontinently

IP1»»'W*<

)♦:;(•

NfF^ll

ill:

:;(

(Mr. nickinson's Closing Aigumont.)

ill tivory castt wlion* n-asoiis were not filod. TIhto wpro a
largf lunnlKsr of cases, and at pago !t2 llicy t'mtlici' say;

" It mny Im Htntod Koucrally, t'liit ulthotiKli >>> two nr tlirnn crhoh, an
•• iiliovf iiott'd, tilt! (!oiiiiiiiH«ioii "xpri'NHly htihl the t'xciiHc for non-
" u|i|M'itl to lio Hiitllciout to I'liti 1 uiiii jiiriHilii'tioii of thi> cluiiii u|ion
" till' iiiitritH, ikuil iilthouKli in otlior cuHtm the ('(iiuiniHHion diil not i>x-
•' prt'HHiy (UhiiIIow tho cliiim ou tlit> Kro'U'd "f ♦'><' iii»ulll('it>iii\v of tlio
" I't'itHouH for iiou-u|>|>t'ul, no itwiinl wuh inuilti iiKititiHt tint Uuitcd
" HtittOH iu iiuv ciiHc in which tlii! rhiii i:iiiU Imd not |iiirHiicd tlioir
" rcnit'dy in the ))ri/,)' coiirtH of thn l.uitod HtiitcM by ii|i|)i'!il to tho
•' court of hint ri'Hort. I um iidviscd that Mr. ComiiiiMHioiicr Frazor
" waH of opinion that nothing Hliort of iiiiHfcaHaiu'c or default of the
" ('a|>turiup; (lovcrunicnt, liy iiicaiiH of which an appeal was prevented,
" waw Hutllcient to excUHcthe failure to appeal, and that iu accordance
" with thiH view he held the reiiHoiiH iiHHiuned in every caRO before the
•' I'uniuiiHHion to be inHiitllcicnt."

Now, I havo (lisciiHsi'd tlic^ iiia|)|ili(;altility of the "La
Ninfa" case, even if it were iiimlin;;; autlioifty, anda^ain
shown that an it was not a judgment of a '■ourt of last
resort it hinds no one, (except the Ninth Circuit. But it
strikes nie that in view of the decision of the Cooper
case hy our Hupieine Court that no other court would
have held that the decision of an international tiihunal
that the L'nited States diti not liave such exclusive jurisdic-
tion in liering Mea as to entitle tliat nation to take pro-
perty from British suhjects, v^'ould have the etfect to erase
iroin our statute hook a prov.-ion of the Federal (Jovern-
lueiit that no person shall kill any otter, mink, maitin, or
fur seal within the jurisdiction of the United States, as

^°applied to our own citizens. Think of it!

The Commissioner on the part of the United States: —
We want to get upon common ground all
round as far as we can. I do not know that
the decision goes to (^uite the extent you claim
it does. Mr. Beicjue claims that this decision had a
retroactive effect, and that is a serious question. The de-
cision itself, as I understand it, merely holds that Section
ll»,")t)isoperativoby its terms only within the jurisdiction of
tiio United States, and that the Paris Award has deter-

'^^ mined that the United States had no jurisdiction over the
waters of Bering Sea, and thus by the terms of Section
1 !•.')») it was limited to the littoral waters of the Sea. It
Keeins to me that Mr. Beique gave substantially the pur-
port of the decision. The effect of the decision is another
thing.

Mr. Dickinson:— The Supreme Court of the United
States, which seems to me to be binding authority, seems
to have held that the United States Court of Alaska did
have jurisdiction.

''^' The Commissioner on the part of the United States: —
Whether the decision is right or wrong, is a matter to be
held in reserve. I am only giving you my impression of
what the Court assumed to decide. Will you kindly read
the head notes of the decision}
Mr. Dickinson:— I will.

" By the award of the arbitrators under the treaty of arbitration be-
" t ween the United HtateB and Great Britain (27Btat., 948), it was
" settled that the United States have no exclusive jurisdiction in the
" waters of Behring Sea outside the ordinary three-mile limit, and no
6o" ri(;ht of property in or protection over the fur seals frequenting
" till! islands of the United States when found outside of such three-
" mile limit. Therefore, the Act of March 2, 1889, declaring that
" Kev. St., J 1956, which forbids the killing of fur-bearing animals in
" Alaska and the waters thereof, shall apply to ' all the dominion of
"the United States in the waters of Behring Sea,' must be construed
" to mean the waters within three miles of the shores of Alaska."

, 'II ■'.'Jll

!»4(>

(Mr. Dickinson's Closing Argument.)

The Commissioner on the part of the United States:
That is sufficient for my purpose.

Mr. Dickinson:— But the award that is referred to in
the decision, and as the hasis of the decision, was niailr
three years before this Convention, hased u|)on it, was
signed, and this Convention provides that no one sliall
recover Ijefore this Commission who is not entitled to

10 British protection, so your Honors can see vcryclcailv
tiiat the "LaNiufa" case couhl not cut as much ol •!
figure as the Paris Award, because the Paris Award
decided that we had no exchisive jurisdiction in Heiiii;;
Sea befort! this Convention under which you sit was
negotiated, and that was negotiated with tlie Paris Awaid
as an express premise.

Now 1 insist that the Supreme Court of tiie I'liited
States would never have contirmed such a decision, and it
is l)inding on no other Court outside of tiie Ninth Oiicnit.

2oand tliatyour Honor sitting in your own circuit on revimv
of that case would not hold any such doctrine, 'i'jio
Supreme Court in the Cooper case went carefully into the
question of construction, and did hold, by construction,
that the act — this very act g litad — was meant to cover all
the waters of Bering Sea. and at least hound our own
citizens. The Paris Award, which is said to be l)in(iing
by the " La Ninfa" case, is said, in effect by the learned
Judge in that case, to have all the force of a tinding that
our statute was unconstitutional and void, when it at-

30 tempted to punish our own citizens in a place where we
had, bear in mind, at least concurrent jurisdiction
with other nations.

The Connnissioiier on the part of Her Majesty: —Has the
act been altered since the Paris Award?
Mr. Dickinson:— >io, your Honor.

The Commissioner on the part of Her Majesty:— There-
fore the waters of Alaska means all the waters of Alaska.
Mr. Dickinson:— Certainly, the intent of the statute
was to protect the property of the United States (Joveiu-

40meut in seals, and certainly the United States can assert
that, I hope, against its own citizens in regulating that
fishery. The statute. Section !!».")(), and amendment of
18H!>, "did not ai)ply in terms to British subjects, but on its
face it applies t<> American citizens. In terms it only
bound such jiersons, but said all persons, just as any
other statute of the United States would read. The (pies-
tion was above that, the (piestion that went to the J'aris
Tribunal. Now 1 have the utmost respect for the learned
Judges of the Court of the Ninth Circuit, and particularly

50 the mend)er of the Court who dissented, the present
Attorney General of the United States, but how they
could hold that the question that went before the I'aris
Tribunal, which was simply and solely whether thel'iiited
States had exclusive jurisdiction in Bering Sea, could take
off fiom our statute l)ook a penal statute which protected
the property of the United States in Bering Sea from
United States citizens, is more than I can conceive, dt
course the Paris Award is the highest law of the iaiui,
so far as it decided anything. There can be 110 more ar-

fe resting of British subjects, or Italian subjects, or Japanese
subjects, in these waters, and it has decided incidentally
the specific case, that the waters were free to British sub-
jects, but the law of the land which the " La Ninfa" case
seems t hold is this: That the decision at Paris binds all
of our o .' n courts as to our own people as well.

(t4l

sty:— Has I he

'aris binds ;ill

(Mr. Dickinson's Closing Argu.iient.)

The Commissioner on the part of the United States:— It
wouM still be a matter of the construction of the statnte
whether waters of Alaska meant the vvateis of Bering
Sea or territorial waters. The executive autliority having
withchasvn its declaiation, and having agreed to leave it to
the Paris Tribunal, the Ciicuit Court might say, we do
not think there is anything in the stand taken by executive

loauthority to prevent us, tlie Cinuit Court, from hoiding
that the waters of Alaska mean the territorial waters.

Mr. Dickinson:— All that would he very well if tiio ex-
ecutive authority had witiuhawu anything except as to
foreigneis. The statute, as I iiave endeavored to show
this morning, does not provide that it shall he executed at
any place against a foreign subject. It is a statue which
forbit's the killing of fur seals, and is for the protection of
the GoverriUient's property rights, and does not refer
to British subjects or foieigners at all. The statute is

20 within the jurisdiction of the United States in so far as
the subjects of the nation are concerned. On the high

seas we may forbid an Anierican

The Commissioner on the {tart of Her Majesty: — Except
that you may limit the prohibited act to acts done at cer-
tain places. Suppose you said no seals should be killed
within three miles of the Pribyloff Islands; that would
hv confined tothataiea, and [suppose the Court U!tbe"La
Ninfa" case held that they were called to construe the
words, " waters of Alaska."'

30 Mr. Dickinson:— That may have been the intention.
Thoy <lid not do that; if they did I should not at all criti-
cize tho decision; hut they say the Paris award is bind-
ing upon the courts and nation in respect of our own
citizens. The Paris award did not and could not find that
the United States could not forbid its people from killing
seals in these waters or anywhere else, and the object of
forbidding the killing of seals, as found by the Supreme
Court of the United States in the Cooper case, was for
the protection of the property of the United States, as well

40 as the assertion of exclusive jurisdiction in Bering Sea.
If the Court of Appeals of the Ninth Circuit, or anywhere
else, wanted to construe the statute so that it would apply
only to territorial waters, very well; hut I do protest that
the Paris Tribunal could not take off from our statute
hook a statute prohibiting our own citizens from killing
seals in the waters of Bering Sea. If it coiild not the " La
.Mnfa" case is waste when cited here.

The Commissionei- on the part of the United States: — I
think Judge King and myself look at the decision alike.

50 1 do not think the decision has the effect you give to it. It
(lid not assume to take the statute off from the statute
hook; it only assumed to construe the statute. Whether
it construed it correctly or not, may be another (piestion.
Will you, before you get through, kindly refer us to the
language of the Supreme Court in re Cooper, where they
state that the statnte applied to all parts of Beiing Sea.

Mr. Dickinson: -Certainly, your Honor. I \^ ill now
read, if your Honors please, from the decision, what I
criticize t'rom the "La Ninfa" judgment. It is this, and

f'Ol submit that the result is exactly what I iK)int out:

" In Hul)mittmg the (iHCBtions to the HIrIi Court of Arbitrntiou, the
" (idveruiiicnt iiKrecil to Vie bouud l)y the decision of tlic urlutnitorH,
" 1111(1 luis sinee pusseij uu net to f?ive effect to tlie awiinl lemlereil hy
" tlio tril)UUHl of iirt)itriitioii (28 Htnt., .')2). Tlie award shonUl, thore-
•• fore, be eoiisidered iih liiiviux Huivlly settled tlio rinhtHof the United

!:^

tni

t)48

(Mr. Dickinson's Closing Argument.)

" States in the waters of Alaska and of Bebrtng Sea, and nil i/uesin ,,<
" cniiceruhig lite righh of iin oirn cilueiifi miil milijecls th(Teiii, an vcW ii:i
" of the citizens and subjects of other countries. "

Possibly, your Honors, lam not familiar enongli with

the ordinary meaning of English words. If I am, fliin

my statement of this decision as I have before given it ir,

not open to the criticism your Honor has just niiKk-

10 upon it.

The Commissioner on the part of Her ^iajesty:— Dm s
that mean any n)ore than this: "We think, by 11, c
words, waters of Alaska, (,'ongress meant the territciiiiil
waters. If it is claimed that the executive autboiitv
went further we would not give effect to it because wc
could not oppose the judicial or executive authority. Hut,
they say, we are not hampered bj' that at all now. lie
cause the executive authority has finally withdrawn its
contention by submitting to the Arbitrators at Paris, aiul,
20 therefore, it leaves us free to determine what the watt is
of Alaska meant."

Mr. Dickinson: -That is not what they said.

The Commissioner on the part of Her Majesty :~-N"o, it
is, I suppose, what they meant.

Mr. Dickinson;— My learned friends, in their positidu,
stand on what they said and must do so. otherwise the
case has no bearing here. lam answering an argiinniit
which seems to have made an impression. The Paris
award decides that the United States did not have e.x-
30clusive jurisdiction in Bering Sea as against other natiniis.
It did imt decide that (Jreat Britain had exclusive jm is-
diction in Bering Sea. nor that the United States did not
have common jurisdiction in Bering Sea, did not liave
jurisdiction in conmion with other nations, did not have
juri>^diction in all of Bering Sea as to its own citizens.
Our learned friends say that whatever the United St.Ues
have done to American citizens by wiiich they have
suflered, they may come before this Connnission, even if
American citizens, — that is their contention. - and ask
40 reclamation under Article I., as persons for whom (lival
Britain is entitled to make reclamation. All tiiat 1
criticize in the decision of learned Court of the Nintli
Circuit, is that they should hold for one moment that the
Paris Tribunal could repeal a statute law of the United
States in effect.

The Commissioner on the part of Her Majesty:-Tliey
could not do that.

Mr. Dickin.son:— Very well, your Honor; that is where
my learned friends stand. It may be that the ( ouit
50 means something else as your Honor suggests.

The Commissioner on the part of the L nited States: it
seems to me that the real difticuity is one that Mr. Hi'i(|iie
suggested— that it had a retroactive effect. Your position
is this; that the treaty under which we are acting has in
terms declared that what was done in BeiuingSea wa^ liy
authority of the (lovernment of the United States. The
Supreme Court in the Coopt'r case has said that wii.it was
done l)y executive authority on a question of that .-01 1,
binds the entire people of the United States. Now you
''Osav at the time when these things took place, these so
called American citizens were acting against the Linteii
States, and could not after that make reclamation. Now
whether the case «)f the "La Ninfa," assumiujp; it to l)e
correctly decided, can have any letroactive erfect, seems
to me to be an impoi'tant (piestion.

(1 nil (jiiesli' lis
"ill, as well ii:i

loufih with

I am, tluMi

3 Ki^'eii it ir,

jiist made

esty:— Dues
nk, by 11.,.
B territmiMl
', autlioiity
because \vi.
lority. lint,
ill now. lie-
lidravvu its
Paris, and.
t the waters

'Sty:— No, it

eir position,

hervvise tlu'

11 arguiiii-nt

Tlie Palis

)t have ox-

hor nations.

lusive jniis-

ates (li(l not

1(1 not liavt>

lid not liave

wn citizens.

lilted States

they havo

ion, even if

- and ask

hoiii (ireal

All that 1

the iNintli

lit that the

the United

esty:--'riiey

at is where
tiie Court

States: It

Mr. iiei(|ue
our position
•tiii^ lias in

Sea \\a^ liy
;tates. Tho
it what was
f tliat sort,
Xow yon
tiiese so-

the United
.tion. Now
iig it to lie

ffect. seems

043

(Mr. Dickinson's Closing Argnment.)

Mr. Dickinson: — The award upon which they rest their
opinion was made three years before this Convention was
formed, in which Convention it is provided that the ques-
tion of citizenship is to be raised, and under which Con-
vention it is expressly provided that no reclamation can
be had except for persons in whose behalf Great Britain
is entitled to claim compensation, and I have endeavored
10 to show as well as I could by the rules of International
Law, that no nation can make reclamation for persons
under allegiance to another power for injuries suffered in
violation of that allegiance.

Claims fok Great Britain as a Nation.

I have not been al)le to learn just what position my
learned friends now take as to there being any claims here
for the nation of Great Britain. In their brief, at page
20 i;!, they claim to recover full and complete compensation
for losses and injuries sustained by Her Majesty; and by
all i)erson3 in whose behalf Great Britain is entitled to
claim. At page 18 they make a claim as follows:

" It is therefore siilDinitted that the claims referred to are all the
" claims which hail been preaeutett and uryed l>v (Jroat Urituiu prior
" to the date of the Convention; and further, that (treat Britain is en-
" titled to conil)enaation from the United States on ln-r own bi-half,
" and on behalf of every person vho was interested in any of the ves-
" sets in question, their cargoes and voyage, either as owner, master,
" mate, member of the crew, or otherwise."

Now, my learned friend, Mr. Beique, says they make
no claim for Great Britain as a nation. They cannot oc-
cupy two positions; it is impossible to do that. They
cannot claim quoad individuals and (juoad i\\G nation, too.
If they claim for persons for whom they are entitled to
make reclamation, as will be seen under all conventions —
the Convention of is.'siiand the Convention of 1871, and
all other conventions that Great Britain has ever made —
where claims are made, the right to recover invariably

40 depends on the political and civil status of the claimant
for whom the nation seeks compensation.

From a cursory examination of the various claims as
indexed in the two sets of leports under the treaty of 185;>,
and under the treaty of 1871, and under the French Con-
ventions with Great Britain, it will bo seen that the per-
sonal status of the claimant is decisive; and there is no
claim urged by the nation under such conventions except
in behalf of a person; the claims so urged by the nation,
in no ca.se under claim conventions, jiartake of the char-

5oacter of national claims. They are national claims only
ill the sense that as they are claims against the sover-
eit^nty of another nation, they can only be presented by
the sovereign of the nation. Of course a private indi-
vidual cannot come hei'e and sue the United States, nor
can a citizen of the United States sue Her Majesty in
(ireat Britain. Thei e is no court provided for such claims,
so that it becomes a (juestion between the sovereigns on the
mitterof the protection of the citizen. But the nations go
to the international court in every case, precisely as if the

6oclaiinant was the plaintiff, and he recovers on his personal
status (jnoad the nations. The figure that the nation cuts
is, the sovereignty protecting the claimant, but the claim-
ant stands and the nation for him stands, in inesenting
his claim, precisely in the position where the claimant has
put or left himself. Of course a claim like that recovered

'1. !

51 !■:

944

(Mr. Dickinson's Closing Argument.)

from China of $;?,()00,0o(», although for damages m
British subjects, was not under any claims conventiiiii,
but Great Britain in behalf of her sul)jects who h,,,!
suffered, demanded repa'ation for them, and she ^ot
it through diplomatic not judicial methods, in a luriip
sum without going to assessment befoie commis-
sioners; and the decision of the municipal court on the

lodistribution after payment was, that this money was
in the hands of the sovereign, and that tlicii'.
fore no private person couM bring suit aj;aiiist
it. But for an illustration of the class of cases
showing that a claim must depend upon the personal
status of the claimant, I do not know of any more apt
illustration than in the case of the " Drummond " under
the Frencli convention. Of course, the cases cited sIkiw
that these are national claims, in the sense that the nation
can present them, and not claims of the nation against

20 the other country. I cite the doctrine in my brief fioin
2 Wharton's Digest, Section 214, et seq., and it2 United
States Report.s, |)age 520.

I have now discus.sed the (piestion of United States
citizenship and nationality as fully as I care to.

Nationamty of Ships tested by Owxehship.

I proceed, in ordei- to call your Honors' attention, to the
American printed argument, commencing at pages t!>s and

3071, on our position as to ships, that "nationality follows
owner.ship."

Notwithstanding the provision of the treaty that cit-
izenship may be inquired into, and that the right to re-
cover depends upon the status of the claimant, our
learned friends contend that the question is concluded,
and that these are British claims. In other words, they
plant themselves under the third and rejected draft of the
convention now on your desks, where it was jjroposed to
put in the first article, that Great Britain might recover

40 all British claims and all claims.

By Article s of the Treaty of 1892. it is provided that
the chief dispute, so far as the nations were concemtil.
should he settled in oneway, by the tribunal of arhitia-
tion, and that the n)atter of claims of the citizens of
either nation should be left to futnre negotiation.

The only way that the woids " national claims '"got into
the treaty, was because it was necessary to name them as
the crossclaims of the United States, the United States as
a nation making the claim back on (Jreat Britain, as a

50 nation, for maintaining the right of her subjects to fish
or to kill seals in Bering Sea. But, on the (piestioii of
citizensliip, Article S of the Treatj^ of lH!t2 provided
that matters relating to the injuries snffered by tlie
citizens of either nation in connection with the claims
presented and urged by it. should not longer dtlay
the decision and determination of the main questions, and
that certain questions of fact with reference to daniago
claims should bo presented as to the claims of the citizens
of either nation. Then, this Convention of IHIMI in itstirst

^•o preamble refers to the rights of the citizens and sul)jeits
of either country as regards the taking ot seals; ami tiie
second preamble refers to the injuries alleged to have been
sustained by the other nation — referring of conrse to the
national claims ol' the United States against Great Britain,
"or by its citizens ■' in connection with the claims jiie

it45

(Mr. Dickinson's Closing Argument.)

sented and urged by it. But by Article S of tbe Treaty of
IS'.ti', eitber party might submit to tbe Paris Tribunal cer-
tain questions of fact for the purpose of the claims of
citizens. Of course, tiiese are claims of persons and turn
(in their status as shown by every section of tbe act. For
mstance, Article « of tiiis Convention, as to what shall be
done at the end of your Honors' judgment, says:

'*-' " The amount awarded to (Ireat Britain under tliis Convention on
•account of <iiii/ vlnimim/ Hball 1h« paid l\v the Oovornnient of the
■' United States to tlie CSovernnient of Her'lJritaunic Majesty within
" six months after the amount thereof shall have been tinallv asoer-
"tained."

I rail your Honors' attention to the words "any claim-
ant." And then the Convention provides for a separate
tiiiding in "each case." Of course, as your Honors
have seen, by the provisions of the various drafts of tbe
Treaty, the claims must depend upon injuiies sus-
^°tained by persons who are tlie claimants, and must be
so under Aitiile I., of the Convention by express intent.

The question of citizenship, my learned friends say,
is concluded against us anyway, notwithstanding that
we find a provision in tiie Treaty that it shall be ex-
amined into. But we find that this clause was inserted
in tbe course of a discussion in whicli the present Lord
Cliiif Justice of England said that l.e prepared the find-
ings of fact, including everything of tbe findings of facts
as now found in the award of the Paris Tribunal. He
3*^ St) states to the President of the arbitration as shown in
i;< American Beprint, page ft."). At page 48 of the same
collo(iuy Sir Charles Hussell says:

" The finding that the vessels, the names of which appear in the
•' case, hove been seized and seized while exercising a le(?al right
" would not conclude the liability of the United Htiites to pay if,
" for instance, it turned out that some of those vessels wer(! owned l)y
'■ citizens of the United States and sul)iect to the laws of the United
•■States."

And again, at page 54, this appears in tbe colloquy be-
'*'^tween the learned arbitrator, Mr. Justice Harlan, and Sir
Charles Kussell:

" Mr. Justice Harlan (one of the arbitrators) : What, then, is left
" for future negotiation ?

" Sir Charles Uussell : The question of amount.

" Mr. .Justice Harlan : Only of amouut '?

" Sir Charles Kussell : The nuestion of amount, and a little more
•• thau amouut ; a question of amo\int, speaking of the matter in
•• ;rross ; a (luestiou of lial)ility as regards items of that amouut , as,
•• fur instance, the ([uestiou of whether the claimants j)ut forward are
■ (>utitlcd to claim — whether they are United States citizens."
5°

Mv learned friends in their print»'d reply and orally,

have taken exception to the statement I made in constru-
JMj^ this award, when I cited the undoubted rule: that
will n a treaty or international document came up for con-
siileiation, tlie construction should he taken mostsliongly
aj^amst the nation drafting it. And both in their oral
argument and in their printed reply my learned friends
make this conunent upon the statement I hail made to the
etVoit that the findings which I have sought to construe
fcwere drawn by Her Majesty's Counsel.

At page 4 of their reply, my loaiiied friends say:

• It is attempted (p. 'ity) to make a point touching the construction
•■ of the Claims Commission by insisting that Her Majesty's govern-
" Mirnt prepared eveiy word and line of the tindings of fact of the
■• I'liris Tribunal, and' in that cimnection reference is made to Proto-

> >

U4((

'rUi'

(Mr. Dickinson's Closing Aigunient.)

" col XLL, Paris CoinmiaHion, Vol. I., U. 8., paj^e 43. Tn '//.</„,„ , /■
" t/ii.i it is only necessary to look at Protocols on pajijes 33 aiiii :',H,
" Vol. I., U. a., Paris Commission, from which it will i)e seen that the
" proposed finding at poRe 43 was simjily a consolidation of tlio pro.
" posals made on behalf of the United States and Her Miijistv
" respectively."

Note the words, your Honors, '"To dispose of till^."
Our learned friends continue:

" It is only necessary to look at Protocols on pages 33 and 38. Vnl.
" I., U. S., Paris Commission, from which it will bo seen that the jivn-
" posed finding at page 43 was simply a consolidation of the luo-
" i)osals made on behalf of the United States and Her Mojesfv v,:
" spectively."

Now, it is not so simple to look at that and to tiiul tlmt
that .'Statement is so. Bear in mind that the point I was
makin'T is: that Her Majesty's counsel prepared evciv
word and every line of tlie findings, and therefore that iln'
2o ordinary canon of construction must apply: tiiat on .niv
question of douht as to the construction, the constrm tiuii
is to he taken most strongly against the govermnent pic-
paring it. I have cited a numlter of authorities under that
head in our printed brief. This statement of fact of nms
is challenged hy our learned friends the counsel for Her
Majesty. Now, the protocol shows precisely what 1 have
stated in my hrief, on the question whether Her Majesty's
Government prepared those findings of facts.

Such startlmg contradictions of my statements as tlKsc,
30 and there are many, deserve grave consideration.

1 call your Honors' attention to the convention itself.

Article 8 of the old treaty provided that either govmi-
nient might submit findings of fact, and the ;kl preaiuliit:
of this convention of 1896 states:

" And, whereas, tin' ttgent of Oreat Brildiu iHd, in nccnrdmico iriili il,g
" prorisiiiiis of siiiil Article VIII., mi/imil la llif Irilniiinl of iirliiir^ili.-m
" cfi-l'iiii n'liiliiiijs (if ficl which were agreed to. as i)roved by the ivscnt
" of the United States, and the arbitrators did unanimously tiuil tiie
" facts so set forth to be true, as appears by the award of "the tiilm-

"nal."

They were therefi)re prepared by the agent of (iiuat
Britain. The question is not whether the United States
agreed to them, hut the question is who pre])ared tliem.
They were prepared by the agent of (rreat Britain mnier
his own hand, and there was no merger of two drafts.
Again, the statement being challenged that they were so
piepared, or, that the canon of construction refeiied to
would apply, I call >our Honors' attention to the Finding
itself. Under the convention of 18!»2, let us see who pre-
^° pared the findings and whose language is used. Article 8
providing that either party might submit to the arbitra-
tion questions of fact, we now come to the award of tlio
tribunal, and we find embodied in the award the follow-
ing:

■' Whereas the Oovorument of Her Britannic Majesty did suliiiiit to
" the tribunal of arbitration by Article VIII. of the said treaty cortaiu
" questions of fact involved in the claims referred to in the said
" Article VIII., and did also submit to us, the said trll)unai, a statc-
" ment of the said facts as follows, that is to say: Jiiutingn of fud /./■«-
do " jiosr'l hy l/ic itrji'iil of Grcul Urilidii."

Mr. Petei's: — And agreed to.

Mr. Dickinson:— Agreed to as prepared. Of roiii.sc
every treaty is agreed to by the parties to it, else no (jiies-
tion of juridical constructiou could over arise, it ikmi

947

(Mr. Dickinson's Closing Argument.)

comes up for construction until it is a treaty. Tlie ques-
tion here is, who prepared the language which is referred
to? And the last clause says:

" And the fjoverninent of Her Britannic Majesty did ask the said
" arbitrators to And the said facts as set forth in the said statement."

That, your Honors, is in the finding itself. Therefore,
III your Honors, I think it may be taken as concluded, even
without going into the protocol or reading tlie btatoment
of Sir Charles Russell, who said that he did prepare the
findings— it may betaken as concluded, I say, that l)y the
treaty and Convention themselves it appears that Great
Britain prepared the findings of fact-'.

Now, after this diversion, we take up the question of
the nationality of tiie ships.
My learned friends say in their argimient, and they
20 vigorously contend at page 39, and line 30 of their brief :

" Under no principle known to the law of nations can it be open to
" the United States in time of peace to go behind the flag or register."

I have fully discussed the position taken by the learned
counsel upon the "right of search" matter and the case
of the "Virginius." We have maintained at all times
that this question between the nations, the matter of tlie
invasion of the dignity of the nation, or the infraction of
tlie sovereignty by invading territory or the deck under

30 the flag, had nothing to do with the question wliere it
comes before a tribunal to pass upon claims dependent
upon the status of the claimant; wliere the convention
provides that the persons must be persons under the pro-
tection of one Government or the other. But, as an
academic question, I have discussed that matter quite
fully, and it appears that even as between nations where
tiie great question of sovereign dignity is involved, even
as between nations, the flag is not conclusive evidence,
but ot\ly prima facie evidence of a nationality.

40 We have passed that (juestion, however, when we enter
an international court, which is to inquire whether the
persons who claim to own, and who ask damages from
the United States, are pei-sons for whom Great Britain is
entitled to make reclamation. Uf course, the question of
tiie right to invade ships in time of peace had been dis-
cussed largely under the controversy growing out of the
abolition of the slave trade. And I have but one other
authority to add to what I said in the '* Virginius " case in
tiie discussion the other day. It may be interesting to

50 show the conclusions and tiie effect upon International
law of that "Virginius" case in general, by referring to
Hall's International Law. I, therefoie. call your Honors'
iitlention to the case of the " Virginius," as treated by
Hall in the relation of this case to International law.
And I point out to your Honors that it has no
ri'levancy to the question here, as it was a question
solely between the nations, and was not at all involving
nglits of individuals. From Hall on International Law,
commencing at page 287, it appears, as your Honors will

60 see, that the reclamation enforced by the United States
tor individuals, as clearly deliminated by Hall, was for
tlic treatment of citizens of the United States, or persons
within our protection, in violation of the rules of war,
(ifh'r Ihei) hunkd 011 Cuban soil, and it was not at all for
the seizure of the vessel.

I'^l

,.!1 ! !

!»4R

(Mr. Dickinson's Closing Argument.)

Now, is it trne that registry is conclusive evidence nf
ovvneiship by the rules of International Lavv? Are regi«.
try and the flag conclusive evidence? In other words,
can a man procure a British subject to make oath that h.
owns a ship and every interest in it when he does not, ainl
so conclude the world? Can he, under such ciiw urn
stances, get a registry, raise the flag, and, as against nil

lothe world, have the fact of that registry and that Hag niadr
a conclui^ive evidence of ownership? We maintain tlir
contrary. And we maintain, fuither. that it is not evm
evidence in the courts of (ireat Britain under tlu'irown
laws, to say nothing about an internationjil court. Tlic
question of the municipal law of (iroat Bi itaiii has nothing;-
to do with the question here. But, your Honors, even in
the couits of (ireat Britain it is not uven prima facie evi
dence of ownership under the statute itself — that i'^, it is
not prima facie evidence in fa vor of the party himself. As

20 1 shall show, however, and it bears on Cooper's case, tlu>
registry taken out by a person— not if it is a false registry
without his notice and in fraud of him, but by himself
taken out or with his i)rivity — is conclusive of everytliiiii;
found in it as against him who takes it out or by whose
piivity it is taken out. It is not even prima facie evi-
dence in his fuvor by International Law; and, as 1 shall
show, it is not even prima facie evidence under British
municipal law. I shall show further that by even British
nninidpal law, and by the regulations and instruct ions

30 which registrars of shipping are compelled to giv(! the
masteis of ships or their owners, having all the force of
statute, the British flag over a ship is not a protection to
a ship which is not actually owned, and every interest in it
owned, Ity British subjects, whatever the registry. First,
I will take as my postulate the statement of the undouliteil
law made by Her Majesty's distinguished counsel hefoie
the Geneva Arbitration as to the effect of registry in l<'li
time of war and in time of peace. I refer your Hoiiois
to the British case, as piepared by the counsel of Her

40 Majesty before the (xeneva Arbitration, at page "!• of
the "British Case and Evidence" of that printed
liecord. I have quoted it in full in my brief, at page 7;i,
and I have quoted it accurately (reads from the original
as cited).

Furthermore, as is usual with anything stated by Her
Majesty's eminent coun.sel before that tjibuual in respect
of the "Alabama'" claims— except questions involving the
liability of tireat Britain, or as to a point never before de-
cided by an international court — it is a conclusive and a

50 fair exposition of the lavv as to which research was re-

3uired by the arbitrators. On the subject of interest and
amages, on the subject of prospective catch, on the sub-
ject of gross fieigbts and on the subject of the ett'ect of
the registry or the status of British shipping on the high
seas, it has been found impossible, and it is impo.ssible to
find any flaw in the statement of the position of the Brit-
ish counsel before the Geneva Arbitration. This is tiie
statement:

60 " Tlie effect of registtrv is to entitle the ship to use tlie nritisli tliig
" and asHuiue tlic Britiwli national character. The couilitious iiecps-
" Harv for ot)taining registry, in the case of a ship not alreaily refris-
" tered, are the prodiictiou ♦o the registrar of a certificate In- the
" huilder, in a form prescriVwHl by law, and of a declaration (uIhd iu
" a prescribed form) OkiI lla- ship is British ownrd."

""P

J»4(»

(Mr. DiL-kiiison's Closing Argument.")

Your Honors must bear tliat declaration in mind, And
now as to the effect of the declaiation and registry:

" It 18 not the duty of the registrar to question or ascertain the ao-
" curacy of either the buihler's certificate or the declaration of owner-
" ship. As a ministerial officer, he is bound to accept them if tendered
" to him.

" For false statements in the certificate the builder is liable to a
" penalty, and for makiuK a willfully false declaration the owner is
" liable to be indicted for a uiisdcmcauor, and to forfeit his interest in
" the ship."

Tliere is no such thing known under English law as the
forfeiture of a ship for false registry ipso facto of which
we have lieard so much ; it takes a libel, hearing, and
condemnation in regular course in a plenary suit:

" In Great Britain, as in the United States, the law does not

'• positively retjuire the registration of any vessel. 15ut the disad-

" vantagesand disabilities incurred by omitting to procure it are prac-

2o"tieally sufficient to make the registration of British-owned ships

" uuive'rsal."

Yoxi see, your Honors, she may he a British owned
shi|) or an American owned ship without registration.
Now, here comes the great question which is before the
Commissioners— that is the British statement of it at
Geneva, from a British standpoint— because the rule here
is the rule of International law, outside of the British
municipal law.

■10 " The register, though in ordinary questions arising under muni-
' " cipal law evidence of the title of the person registered as owner, is
" not conclusive in a question arising between other parties, nor is it
" necessarily sufficient proof of the national character of the ship. A
" transfer to a foreigner, at sea, or beyond seas, of a registered British
" ship, is sufficient to change its ownership and the nationality of the
" vessel, though not followed by any registry. The law of registry is
" 11 part of the law by which British trade and navigation are regulated
" for fiscal and other purposes; and a ship is registered as British on
" the voluntary declaration </ llie persmi duiminy to be oteiwr without

•' FUnTHER PROOF."

^0 There is our position.

At one o'clock the Commissioners took recess.

At lialf-past two o'clock the Commissioners resumed

tlieir seats.

50 Mr. Dickinson: — Before proceeding I call your Honors
attention to that part of the decision in 141^ United States,
which your Honors called for.

The Commissioner on the part of Her Majesty:— Do you
iiieaii the Cooper case?

Mr. Dickinson: -Yes, sir; in connection with the "La
Niiifa " case; and in that connection 1 desire to call atten-
tion to the error of the judgment in the " La Ninfa"case in
two respects. Y^our Honors will see that in the "La Ninfa "
(Msc, after citing the statemt nts of Senator Sherman, at

60j);ir;t> 4157, iu debate, in tine print, in the second paragraph
liclow, the District Judge goes on to say that the Supreme
t'dint there held that the question was a political one, in
wliich the L'nited States had asserted a doctrine in oppo-
sition to the views contended for by the petitionor, and
thai the negotiations were then pending in relation to the

'I " w

960

&''■» ■

(Mr. Dickinson's Closing Argument.)

paitirnliir .subject. Now tlie Supienu; Court diil not il.
cido tli»' case on that ground at all, as a lefcionct; to tin.
CoopiT cas*' will show. Fuitlifirjiore, I call youi- Hoikh' '
attention to the means used tor the construction of Si r.
tion i!>r>t> in the " La Is'infa" case, lefening to the (IcIkiIi s
and proceedings in Congress to get at the coMstruction ,n
to whether it was intencled to extend it over the wateis (.f

10 Bering Sea heyond tl)e three mile limit. As a matter nf
fact, the Court in the Coo|u'r case expressly sjiys of ih,.
quef«tioii on which the learned Judge intlu!" l<a Ninra"'(;isi.
says it, was decided, tiiat " we need not go I'aither in this
"direction, as our decision rests upon narrower grouml^,
"and we have been led into these observations hecaiise,
" where iui application is made to stay the enforcement
" of a decree three years nftev its rendition, and aflcr
" tiie pendency of an n|»peal therefrom for the same lenylh
"of time, wo do not regard the Court as constrained in

20"' intervene in this way, unless, perhaps, upon an irre^i^t
" able case and ade(iuate reason shown for the delay "; ami
finally rested the judgment as delivered upon the niher
groiuid that Coopei' was l)ound to jiresent bis appeal.
But as to what they say, so far as they do refer to tli(>
question, without going into the debates in Congress, which
they expressly refuse to do, they review the various .\( Is
of Congress in older to arrive at the intent of the le;;is-
lature, and cite the legislation, including Sections llL^d
and the Act of March 2, IHS'.t, as evidencing the intenfion

3oof Congress in passing Section lit")!!; and they fuithcr
cite, and we submit it is conclusive upon tlie question of
jui isdiclion, irrespective of nuuiici|)al law, after citing tlie
Act which confers jurisdiction upon the Alaska Coiut in
oi'gauizing the Alaska territory. Section I'M of the Re
vised Statutes, as follows: " I'loceedings of seizuics. for
" forfeiture under any law of the United States, m.ule on
" the high seas, may ho prosecuted in any district into
" which the property so seized is brought and proceed-
" ings instituted "--that is a seizure on the high seas ami

40outside of the* exclusive jurisdiction of the Court "ami
" jiroceedings on such seizures made within anydistiid
" shall be prosecuted in the district where the seizure is
" made, except in cases which it is otherwise provided."

Thus the jurisdiction of the Alaska Kedei'al Conit, hy
the express finding of the Paris award, by the decision of
the Supreme Court in the Cooper case, was held to lie
clear in this, that it was a court of general jurisdiction in
respect of seizures under Federal Statutes and prosemi-
tions, generally; that it had juri.sdictiou to prosecute a

5oseizure for violation of the laws of the United States, ami
where the seizure was claimed to bavo have been niadu
on the high .seas, that its jurisdiction, unassailable col-
laterally, turned upon whether the res was brought into
that jurisdiction for adjudication.

Then in the Cooper case the Court proceeds to consider
R. S., See. 5tiH, as regards the Court of Alaska in that
connection, and ])roceeds to levievv the authorities cited
on the other side, citing Chief Justice Marshall to this
point in the case of lattle r. Barreme that "it is liy no

6o " means clear that the President of the United States,
" whose high duty it is to ' take care that the laws hu
" ' faithfully executed,' might not, without any special
" authority for that purpose, in the then existing stati;
" of things, have empowered the officers commanding
" the armed vessels of the United States to seize and

(lid not il< '

t;ll('(! t(l tllr

(ilir Mdiihi' '
;tioii of Si I .
1 tilt' (lt'li:itis
struct ion !H
he wiitt'is (if
i a iniittcr df
siiys of till'
I Niiifa"<"i-<('
iitliei- ill tliis
Avv groiiiiils,
ioiiH l)tn;aiisf,
(,'iif'orct'mrnt
111, ami aflir
> same icii.^tli
nistraiiu'ij in
111 an irn.'si^I
' (It'lay "; ami
on the otlitT
it iiis aiiiical
) refer to I he
ngiess, whicii
various Aits
of the h-is-
Sections luriH
: the iiiteiitiiiii
tliey fiiitluT
lU quest ion nf
ifter eitiiij; till'
iiska Conrt in
\U of the l;.'-
seizures, fm'
ites. inaiif mi
district inlii
and |ir<Hci'il
igh seas ami
Court -"aiKl
any distiict
the sei/uir i-;
;o provided. "
ral Court, liy
k; (leeisioii nf
held to 111'
nrisdictioii in
iiid prosHcu-
o prosecute a
-ed States, ami
fet been iiiadu
.assailaliK' col-
hrouglit into

ds to consiilcv
laska in tliat
thorities citi'd
rirshall to this
" it is hy no
United Stat.'s,
It the laws lie
it any special
existing slate
coinmaiiiliiig
to seize and

(Mr. Dickinson's Closing Argument.)

" send into port for adjudication American vessels wiiich
" were forfeited whilu being engaged in this illicit com-
" inerce." It als«) reviews the case of the United States
against Hanscher, reconciles it to the conteiilion liere as
against the position to which it is cited by Mr. Clioate,
and concludes against the adverse contention which was
that the act dul not extend the jurisdiction beyond the
lothne-milo limit, as follows; "To this amendment the
" Senate disagreed, and the section, as it now stands, was
" the result of a coiiferenc** between the two houses. If
" reference could be nroperly made to such matters," that
is, to the reports of tlie committees and the debates of the
two houses—" still we do not concur in the vi w that it
" follows that Congress thereby expressly invited theJudi-
" cial branch of the (iovernmeiit to determint! what are
" • the limits of Alaska territory and tht> waters thereof,'
" and what is ' the dominion of the United States in the
20" waters of Hehring Sea,' and think, on tiie contrary, that
" there is much forcf in the position that, whatever the
"' reason for the conservative course i)uisued by the
" Senate, the enactment of this section, with full knowl-
'■ edge of the executive action already had and of the
" diplomatic situation, justified the President in the con-
" elusion that it was his duty, under Section III., to .adhere
" to the construction already insisted upon, as to the ex-
" tent of the dominion of the United States, and to con-
" tinue to act accordingly."
30 In order to get at the construction, in further review of
the "La Ninfa case," where the Courtarrivesat a c nstruc-
tiou by the aid of tlie debates in Congress, which the Su-
preme Court refused to do in the Coojier case, let me show
how out of line the learned Judge is with the rulings of
the Supreme Court of the United States in repeated adju-
dications. I refer to the decision of the United States
Supreme Court in the Freight Association case, It'.O U. S.,
31S, for the renewed statement of its repeated judgment,
that under no circumstances, and not for any purposes
40 could debates in Congress be referred to for the purpose
of arriving at a construction of an Act of Congress: " De-
•' bates in Congress are not appropriate sources of in-
" formation from which to discover the meaning of the
" language of a stacuto ])assed hv that hodv, citing 91
" U. S.. 72, TO; Aldiidge i'. Williams, 3 How., it", l'4, Taney,
" Chief Justice; Mitchell r. Great Works Milling &
" Manufacturing Company, 2 Storv. ()4S, CaiJ; Queen v.
•' Hertford College, 3 g. B. D., f)!»3,"7or."
This doctrine was again stated in a case which I argued
■ioiii the Supreme Court of the United States, involving the
construction of the homestead laws of the United States
and of the forfeiture of a grant by Congress, where it was
attempted to be shown by Judge Dillon, the author of
" Dillon on Municipal Corporations," and one of the most
distinguished jurists of the country, that Congress did not
intend to forfeit the land grant of certain corporations,
by the debates that that was the reason why certain
clauses were put in. I contended that, by the uniform
decisions of the Supreme Court of the United States, from
60 the earliest judgments on construction, the debates in
Congress could not be referred to, and I cited not only
these authorities, but some others bearing upon it from
circuit by members of the Supreme Court of the United
Slates, and yet the learned Judge of the Ninth Circuit
rests his construction upon certain debates in Congress,

*.'

Hi W

968

(Mr. DickiiiHon'H Closing Argument.)

and n'ports of nminiitti'cs. [.astly, I call vdiir Hdtim-"
altt-ntiDii to tlif fact lliat Judge llawlcy, wlm dclivci. ,|
till' " I-a Ninfa" ju<lgni«'nt, was the JliHtiict .Indue, ami
that the liarntd t'iicnit Judge for the Ninth Circuit is tl !■
meseut Attoiuey (»eneial of the Cnited States, Mi-, Mi
Kenua. Ho was Circuit Jiidge and sat in the " La Niiil;i '
case, and dissented from the judgment: Itut as 1 said In

lofore, the " La Ninfa" case, even if good law, has nothiiij^
to do Willi this case Tlu! right of (ireat Hiitain to asscit.
a claim for damages incurred hy an American (iti/eii lie
fore the Convention had heeii made, after the award u|i(>n
which that "La Ninfa" decision rests, and when theCdii
veiition provides for raising the (|uestioii of citi/.enslii|,
cannot ho maintaineil. Municipal law has nolhiiig to ijn
with it. As I contt'uded yesterday, and have shown i»y tlio
authorities, the proclamatiou of the Oueeii, as well as the
pioclamatioii of the President of the United States, hinds

20;ill citizens wliost) only appeal must he to their domestic
courts or their respective sovereignties.

The importance or heiiiing ot tlie "La Ninfa" case. \
have not conceived, hut I have treated it fully, owing li.
an imprej-sioii made hy it, an impression which must I';'
evanescent.

1 desire also, so that it shall not he said that I jiassed it
by, before leaving the (luestion of doiiiicilo and jinisdic-
tioii. to recall to your Honors' minds the statement of mv
learned friend Sir C. H. Tupper. that we had no citi/.rn's

30 of the United States, that they were citizens of States
merely; and, as your Hoiku's will reniembei', he called at-
tention to the message of President Cleveland, saying that
our laws of citizenship were in an unsettled condition, and
therefore the ('eduction to bo drawn was that, on the (|ii(s-
tion of doiiiicil, the domicil being always in a State, us
citizenship was in a State, that hence the authorities 011
the question of domicil were not pertinent. Now, so lar
as the main question is concerned, the history of tliediplci
matic relations of the two governments discloses that that

40 question has never been raised at all; that a doniicilerl or
civil citizen of the United States is sunounded by the pm
tection of the United States, the same as a [lolitical citi/en,
and that in all the conventions the (jUtjstion of doinicij
has been raised as of a person domiciled in the I'nilid
States without regard to a State, which under our svs
tein can have no relations of comity or controversy with a
foreign nation. In the next jilace, owing to his lack of
familiarity with our own laws and system, my friend is
mistaken when he says of a State that a citizen is net a

SOfitizen of the United States. The Fourteenth Aiiieiid-
nient to the Federal Constitutioi expressly i)rovides lliat
any naturalized person or native born pei-son is a citi/m
of the United States, and the ameudment also providi's
that " No State shall deprive (dii/ /lersoii of life, liberty or
" property without due process of law, nor deny to any
" person within its jurisdiction the equal prot»'ctioii of the
" laws," thus asserting the power of the Federal Govern-
ment to intervene in any case for the protection of a
citizen or a domiciled foreigner. President Clevelaial's

6ostate pajier referred wholly to a matter of domestic ditti-
culty as to the differentiated privileges in the States of a
man who was declared a citizen, and particularly of pcr-
soiis who had merely declared their intentions to becoinc
citizens and had not taken out full naturalization pajxrs.
lu some States tliese could vote and in others could imt.

9SH

(Mr. Dickinson's C'loHJiig Arguiin'iit. )

and it was thought lu'tter to have unifoini nik'H in llic
Stutes 08 tn that.

1 now icsuino tlu? consideration of tlif snlijcct of na-
tionality, and our positions tliat n.ilionality follows
(iwnt'rslii|i, and that the ifgistry and the tiaji aii) not con-
elusive. 1 have cited authorities, which I shall not reail,
U|)on my hrief, assuiniii!;- that the (,'ouit will e.\ainin(>
them, referring only to s>uh as have heen chaileuKcd
hy my learned frieuils in theh' reply or in their oral
argninent. To Parsons' Maritime Law I shall ^r\\■^^ a little
more exteniled attention, jtaiticularly to the Notes of
Kuglish and American cases, The |)osition of the next
writer is tnat •"The law is uiuvilling to recognize in the
" fact of registration any other etlicieucy than that of
•' imparting certain privdeges, or to peruiio th(i ahstMiiie
" of that registration to have any other etlect than merely
" to prevent those privileges from attaching to the ship."

I also refer to Kent, N'olume III., page Ut'., that "the
•• registry is not a document required hy the law of
" nations. The registry acts art* to he considered as
" forms of local or municipal institutions for purposes of
" public policy."

I do not care what work you take, Sedgwick or any
other elementary work on evidence treating of the
sub.ji'ct of ships' registry, and I understand that
30(rreenleaf on Kvidence is considered a standard work
ill (ireat Britain as well as in the I'liited States, though
(111 some other subjects he does philosophize. I call your
attention to Section 4!t4 of (ireeiileaf, which is not cited
ill my brief, as to the etlect of registry -whether in time
of peace or war is immaterial, as we will siiow that the
same rule would apjily, except that conclusiveness of
registry against the owner ill time of war is not held. I
((iiote:

'• 'I'lic reKwtry of a ship Ih not of the nature of the puhlic or official
• registers now under consideration, the entry not Ix'inj; of any traus-
'■ iietion of which tlie i)ulilie olHeer who makes tlie entry list is cnniisaiit,
" ,Vf^/' is tl ti '/oi'ntHi'u/ ri''ftiiri'tt luf the I'ltr nf nutH'iia^ its »'r/*/'''Sv/r»' r)/* ///«
" sliip'x iinliiiii'il chiinu'lfr. Tlie rej^istry acts are considered as institu-
" tions purely local and inuniei]ial. for purposes of public policy. The
" n'ljister, therefore, is not of itself evidence of property, e;cept so
" fur as it is eontirnied liy some auxiliary circumstance, sliowiiif; that
" it was made by the authority or assent of the person named in it,
" and who is sought to be charfi;ed as owner. Without such conuect-
" ing proof, the register has been held not to lie even jiriiii'i furif evi-
" deuce, to charge a jierson as owner; and even with such jiroof, it ia
" not conclusive evidence of ownership; for an eipiitable title in one
j'^ " person may well consist with the documentary title at the ('ustom
" House in another. Where the (piestion of ownership is merely in-
" cidontal. the register alone has been deemed sutHcicut /iriiim fucif
" evidence, lint in farnr nftlii' y/cy.sc/; vldiiniiit/ <ii iiivwr, it in no erii/fncf
'■ 'it all, In'ing iiulliini) ni/i'i' tlmii /lis oirn ilcvlwdtion."

I also (juote from I'arsons' Maritime Law, Vol. 1:

"And, in general, as the law sini])ly offers to registered ships cer-
" tain jirivileges, which are exactly detined, it is not willing to
" recognize in the fact of registration, any other efficacy than that of
" imparting these privileges, or to permit the absence of registration
6o"ti> have any other etlect than merely to prevent these privileges
" from attaching to the ship.

"On the other hand, registration is founded on the oath of the
" party, and is a solemn act of the law, and it is not reasonable to
" make it wholly insignificant. And an eminent judge in Knglaud,
" lljord Eldou), has intimated that the registry laws of that country
'' have, as one of their j)urposes, the ideutitication of property."

S:i

If I ■

11:4

(Mr. Dickinson's Closing Arguiiioiit.)
Also the notes citing the English cases:

"It apix'Ui'H to be well settled iu the English eouris, thut tli.'
" rej^ister is not to 1)0 cousiilered'iis a public documeut, or reeoid, hut
" a private iustnimeut, and the mere declaration of the party maL-
••uigit."

Then leaving the American authorities, at the top ui
,Q page 41:

"It follows friiin this '•« /I'li'/r character of the registry, that it i>
" uot even /iriiifi /<ii ir evidence to charge those who arc not slinwn
" to be parties to it. by their own act or asseut, althongh their uiimhh
" apjii.'" upon its face."

That is a nioditication ot tiie British doctrine, which hoMs
that tile alleged owner cannot go behind the legister. I
will read the (|Ualitication below the authorities:

" Lord Elleuborough seemed to think that, where no notice of an

^ " intent to deny thi> ownershij) was i)rcviously given, the rcgislif

~ " might be /;/•///«'//■"■ /i- evidence to cliargi! several part owners, whin

" obtainc<l on the oath ne of them only, although admitting tliiil.

" had tlie facts of the ease been dittereut. he should have requncil

" stricter proof. * * *

" .Vgainst the i)ersou on whose affidavit it is obtained, the legist iv
" may be evidence of the facts recited, l)eiug his own declaration made
" under the saueticm of an oath."

Again, on the same i>age:

" .\s to some of the facts sworn to. such as the national cliaiiutii- .if
" the ship at the time of registry, we apprehend that tlic registry and
30 " affidavit art! conclusive against the party nuiking them, he lulnn
" estojjped to deny what he has affirmed under oath."

Finally, at page 4;>:

" But, by the i;rovisions of the British acts, as we shall see hereal'trr.
" such a I'hauge of ownership, unless inserted iu tln> registry, was
" null and void; hence, the registry became, as against all the wurlil,
" emiclusive evidence of the state of the title at any moment sulisc-
" ipient ti> its execution, and, therefurc, conclusive against tlir
" existence of any legal ownership in other persons at any such
" time. * * *

"Lastly, is the rc^gister /)/■////'//</(/.■ evidi'nce of cwiierKhip iu favnr
of iiarties to it? In Hnglanil a i>raetice of admitting it as smli
' seems, from the language of Lord Ellenliorough. at one time to havr
' prevailed, and at Nisi I'rius. Bayley, ./. , remarked, in the case nf
' Tinkler '•. Walpole, x/y./w.- •This is very dillerent from the case of
' 'a person pul)liidy asserting that he is owner by the act of registii-
' • ing a vessel iu his ov.ii name; that may be /iriiihi /'ncii- (ividi'iKT fm-
' ' liini that he is owner, becausi^ he thereby publicly challenges all
' 'persons that he is so.' But Lord Elleuborough, in I'lower r.
Young. deni<'il that such could be the case; the registry aniouiitin«
' t() nothing more than the declaration of the party, he remarked,
was clearly not admissible in his favor. .\nd the court were of tlir
Baine opinion in I'irie r Anders(Ui. sn/ir'i. (iibbs, ./., saying:
" ' It was stronglv urgi'd for the defendant, that, because the title
" ' cannot be complete without the register, therefore the register sliall
" • b(> /iritit'i fiv !•■ evidence (d' \\w title; that <loeH not at all follow. If
" ' the legislature makes an act necessary to complete a tith', it dm'-i
" ' not thereby make that act alone to be iiro<d' (d' tin' title; if siii li
" • were the law, a man might make for himself a title to anything in
" ' the wcirld.

And then it discusses the dictum <d' Ravh-y. .Judge, :ii
Nisi I'rius. supra, and that wholi! note and tin- review el
the authorilies is of much inteiest on this suliject.
•60 In (1th AttoriieytienerarsOpinionsof the United States,
which I have on nty table, the jiosiliou of the I'liitel
States is stated that the statutes do not re(|uir(! a vessel In
be registered and enrolled, and if owned Ity a citizen id

the I'nited States, she i:^ .Vniericin property and [lo.sses I

of all the general rights of the properl} of an Aineric.iii

iuris, tliiit til.'
, or rt'coid, Imi
In; ))arty iimk-

t the toil 111'

Htvy, tlint it i>
lire not shinvu
j^li their uiiiii> .

, wliich lii)lil>
• register. 1
i;s:

10 notice of an
"11, the register
•t owners, wliiii
lulmittiiitj; thiil.

11 have reiiuiir,!

ed, the iCKi^try
eehiratiou m;iil<'

mal ehariirter nf
tlie ref^i^try uii.l
theiu, he IhIhk

all see hereiillir.

he veRistrv, was
t all the xvorlil,
iiioiiient siilise-
at;ainst 0\r

us at auv sucli

uerKhip iu favcu-
tiun it as sui'li
lie time to Imve

ill the ease "t
1(1111 the ease of
net of ri't;ist<-i-

-.' eviili'uei' I'm-
y clialh'iisies all
1, ill FUiwrr )■.

try aiiiouMliun
V, lit! reiiiarki'il,
iiirt weri' of Uie

sayiiif^;
leeanse tln' tilli'
he register shall
it all I'ollow. If
(■ II title, it ili"'^

hi' title; if siuli
(• to aiivthiiin' ill

•. .Illil^r, at
tin' l-('vii'\V III
llijc I'l.

.'iiiti'd Stall'-.

r Ihl.' I'lUlril

ifi; a vessfl III
y :i citizen lit
.111(1 [losses-oii
11 American

I.Mr. Diekiiison'.s Closing Aij;iui)('iit.)

ISow, the British acts do not rciiuiie a Britisl) ship to he
enrolled or registtn'ed. There is not the slightest doiiht
that a British suhject may sail a ship upon the high seas,
as an American citizen may an Americ'in ship, without
ever registering it at all, so far as the (piestion can
arise hetween nations. 'J'lie Registry gives the ship
only certain municipal privileges under nmiiicipai l.iw,

loanii wlii'ii the question of nationality arises it does not
turn on the ([tiestion of registry, hut on the iiuestioii of
actual ownership, necessarily-, iu any International
Court. At page (),a2 of (itii Attorni^y-Creiierars
Opinion'^, he sjieaks of the right (jf an AiiK.'rican citi/en
to purciiase and own a foreigu ship and says: " Tiie ship
•' so purchased becomes entitled to Near tlie Hag and receive
•' the protection of the Cnited S',;fes. There is not a
•' practical doubt that a British siijii not rt>gistered is (>ii-
" titled to British protection if Britisli owned; then* is not

jo" a imictical donlit that a citi/en of (rreat Britain on the
" high seas in a 'British unregistered ship, if his right of
" property is invaded, has a ight to appeal, and may ap-
•' peal successfully, to the sovereignty of (ireat Britain to
■' protect him iu his property rights on tiie higli seas."
Wharton's Digest, Section 410, page W^, reviews tiiis siih-
ject, and fully sustains the po.tition we here take Henry,
the author of "Admiralty Jui'isdiction and I'rocedure,"
will be found cpioted in Wharton's Digest. Section 410,
and sums up the inix-rnational 'piestions in the.se words as

',oto the vessel's character. [ liave only extracted those
parts bearing upon this qncstieii, but it is printed in full
here:

" The (piestionas to the disabilities xvhich themuniciiial rules of the
" (loveriiiuent of the owners might imiiose on siieh vessels did not
" eoneeru other ufttions nor atfi>et their nationality." * * ♦

" So far as the international side of the ([uestiou is coneerned, the
" position of sueh vessels is ti.xed. .Vllliougli the right of sueh ves-
" sels to earry tli(> flag of the United Sti.tes has been discussed iu two
" late papers, there could hardly be oceasioii for such a (juestion.
" .\ vessel's flag is only its signal to other vessels at sea.
40 " The natio . I luiutiiig displayed is a coinmunicatiou to other
•'vessels of '\. nationality of her owi er, as her other signals are
■' used to convey die name of tlie jirivate owner, or of tlie line to
•' which the visseN belongs." * » *

•• '''lie word ' flag.' when used either in i>ublic or private inter-
" iiaii. Qal law, in maritime subjects, designates the uationality of the
" vessel, arising from ownersliij)." » « ♦

" k vessel as a subject of nationality is ni't considereil a personality
" any n^ore than any other chattel, ami cuuaot liav.' any otlier iiatiou-
' ality impressed on it except that arising from ownership.'

1 then cited Kent. .My friends criticize my citations;

30 hilt I invite a review of the decisions, and say that I have
stated the substance and the very gist to the position, tliat
nationality follows ownersinp. I do not print a whole
ilecisiou iu m.iUing a brief, hut what I consider to he tlie
gist of tlie case, iu view of the entire conte.xt.

From the b'>ok cited from ,it such length by my friend.
Sir Charles, 1 have extracted the langiiagi' of that
great Minister of Kngland, so well known ti. lioth sides,
Lord l\ilmer.ston, as to the effect of this flag, and I read
from jiage til? of liawience on "Visitation and Search" as

6, 1 to what liOrd Palmerston said of the flag in speaking to
tlic .American (iovernmeiit. He .says: "The l']nglish (iov-
cniment, is not hound to take notice of e\ery hit of hunt-
ing sewed up in the form of an .Americsn ilag." It wa,s
(iiiwmight. .and in language li;irdly diplomatic, but it was
plain Kiiglish, and we tind Lord Salisliury in negotiating

(Mr. Dickinson's Closing Argument.)

tho treaty of 1892 protesting that the British (lOvtMiuhfiii
could not he held responsihle for every one who h.iistt'il
the British flag on a ship. 1 have already read thai
correspondence. Of coui'se if not responsil)l(' foi' what a
ship carrying tho flag migi)t do, then certainly (ircat.
Britain would not he entitled to protect such a ship fur
damages suffered hy it in doing the act nierclv liecausc Ji

lot-airied the Hag, hecause it he was not v>illing to let
the registry and the flag stand as conclusive evidciici'
of nationality to hind Great Britain, it, must he at once
conceded that the L'nitrd 'lates had the right to seize ;i
ship douig damage unless it turned out to i)e ahsohitdv
British owned. If they were not willing to he respoiisiJih^
for a ship wliich tlew the flag, the flag merely eould he
no evidence for oi' against —at least of a conclusive iiatuiiv
W'e will sn|i|)ose a British owner makes an athdavit,
fakes out a British registry anil flies tlie flag. That Brit-

2oish suhject is immediately entitled to a right and iiiotec-
tion. He stands upon solid giound. If any one inter-
feres with his property his goveriunent will com|i(>i
reclamation if the invasion of the deck is hy a foreign
nation. If it is not hy a nation and is hy a jjiivale
citi/en he can seek redress against the latter in any
court in the civilized woi'ld within v.liose jurisdictioii
lie can catch the }>arty who has committed the ties|iass.
But suppose an American i-itizen huys a ship and swea -
out a British registry, and flies the Biitish flagon tl ■

30 higii ^eas; and under process of a lu'deral Court against him
for the violation of the revenue laws of the United Stati's.
that ship is seized. Does the i^ritisli flag and the false
British registry give this American reclamation on he
half of (ireat Britain; The British Kegisfry Act say-, no,
and while the Biitish Registry Act, as I have agam and
again denionstiated, in the coni'se of tlie [jruited argmnent.
is puiely nuinici|>al and cannot he cited in a com t of ii;i
tions, 1 propose to show that even that does not give him
protection, even in a nnniicipal couit. Neithei' is a shi|)

40 protected that flies the British flag with a British registiy.
if any interest in that shiji is owned hy a foreign jierson -
foreign to th<' emjiire of (iii'at Britain. Niw, my liiemls.
read the following from the Ihilisli .Merchants" Shipiiiim
Act of 18 -4, Sec. IH:

" No ship liereby ri'ciuircil to lie rpRistprcil shall, unless refjisti riil.
" be rtH'O^uiZi'il as a Hritisli sliiji; and no officovof en stems shall fiiaiit
" a clcarani'e or transire to any shi|i liereliv ic(iuiro(l to lie ri'^istiTiil
" f<ii' the iinr|iosc of cualilinif her to iireci'ed te sea as a Hiitisli >lri|i
unless till' master of such sliip. ui)on heint; i'ei|uire(l so to ilo. |iio-
(lui'cs to him such I'l'rtiticate of !■(^ist^y as is hereiuaftei' nicMtioncd;
and if suidi shi]) attemjits to jproceed to sea without ii idiiiiaiK'c iir
tiiinsire, su(di odicer nniy detain such sliij) \iiitil such certilicato is
l>voilii('od to him."

50,

Now this clause, " No ship required to he registered
shall, unless registered, he recognized as a British ship,"
telN us nothing hy itself, and standing alone without the
other pio\ isioiis of the act, and liack of that and hefore it,
anil aside from, and inde|)endent of I'egistry, is Sectimi Is,
as follows:

" iVo !<liil> dIiiiII III' ill I nil il III hi- II Ilrilisll ahip iihIish xlir /ii'lriii/>. irhiJIi/ Id
" iiifiiprs nf'thi'foltiin'iiiff iff'scrifi/io'i'^'

It will he seen hy the section which niv learned fiieii'l'^
rely upon, tliat the registry, hy the act itself, does not
conijiel uHOgnition of the shi|) as a British ship, liiit that

957

'TV ■:'■'■ ll*WWf|

Dveiiiiiii'iii

li(» li.iisti'il

read tlmt

for wlial a

inly (Ji'iaf,

a ship I'lM-

■ liiH'aiisc It

liiiji til 1(1

e evidence

lie at iiiire

to soize ,1

absolutely

rt'Sp()ll>-ilile

ly fould lie
sive iiatuic
II aftidavit,
Tliat liiit
and ])i'()tec-
y one inter-
ivill ciiiii|iel
ly a foreign
,■ a |)rivato
ttei' in any
jiuisdictidn
,lie ticspass.
and s\vea■^
flajj, on tl •
against liim
lited States,
nd the false
,tion on lie-
ict says, no,
igani anil
(I argmnent.
conrt III' nil
lot give him
her is a ship
ish registry,
ign jierson -
, my tl lends,
Is" Shipi»ing

loHH renistfrt-M.

inisshiill uniiit

11 lie rciiiMtcP'il
a Hrilisli slii|'
se to lid, pl'd-

t'tir iiii'iitioiiril;
clcunim'r IT

ll CCltllU'lltl' IS

le registered
iritisli ship,"
withont the
nil before it,
s Section b*^,

lirtdii'/s irhiJIfi to

irneil IlieMils
elf, doe> nut
lip, bnl thit

(Mr. Dickinson's Closing Argument,)

no ship unless registered shiill be recognized as a British
ship. By Section is. it will be seen that by this act own-
ership is made the solt> test of nationality after registry.

Mr. Peters:- Read the top of Section "l!).

Mr. Dickinson: " Kvery British ship" — to be sure,
"every Hi'itisb .ship" must be registered as follows, (Sec,
F?ut Section li( still leaves ojien the ([uestion " Wh.at is a
u British ship"? and Section 1« answei's "ownership."
Thus: " No ship shall be deemed to be a British ship un-
less she belongs wholly to owners of the following de-
scription." but by Section li» no British ship shall be en-
titled to the municipal privileges of a British sbii) unless
she be also registereil.

Section lis, at page l-J'.t. deals with the question as totlie
conclusiveness of the registry:

" No porwon Khali lie entitled to lie regiKtereil aK owner of a ship or

•' any share therein until he lias iniule ami sulmevilied a declaration in

2' > ■ the form marked ]{ m the sclieilule hereto. lefeniiin to the ship as

■' deseiil)e(l in the eertiticate of the Hnrveyor, and eoutaiuiug the fol-

■' lowing jiai'tieuhirs, f'lit is to say —

'■ (1) A statement ef his ijualilieation to be an owner of a share in a
•' JJritish ship.

" (2) \ statement of the tiuie when and the [ilace where such ship
• was Vnhlt » * *

'• (8) A statement of tlie name of the nu;stev,

" (4) .\ statement of the numlii r of shares in sueh ship of which ho

■ is entitled to lie registered as owner.

" (,")) A diMiial that, to the lii'st of his knowledge and lielief, any
" nni|ualified person or Imdy of persons is entitled as owner to any
:;o " legal or lienerteial interest in sneh shi[i or any share therein."

Now, we have a ship that is registered, divided into
sixty-four shai'es. eveiy one of which is required by the
law, Section IS, to l)e owned by a I'ritisb subject with no
outstanding interests to entitle a ship to tHili<l British
registry, or if registered to tin; British character.

The title of the subject L now ipiote is " yidinmil Cliar-
((cicr."' Section lo:i of this same act:

" If any person nses tlie P>ritisli Itagaiul assumes the liritish national
.JO" eharaeter on Imard any ship owned in whole or in part liy any per-
" son not entitled Ky law to own British ships, for the purpose of
" mii.Wiuj7 sneh ship appear to lie a IJi-itish sliip. sneh ship shall lie
■' forfeiti,d to lifer Majesty, unless srndi assumption has lieen madi' for
" the purpoHe of esea|iing capture liy an enemy or by a foreign ship

■ of war iu the exercise of some belligerent right."

Tiie word register does not appear in the seition.

" .Vnd in any proeeeding for euforeing any sueh forfeiture tlie bnr-
" den of proving a title: to use the British flag and assume the British
' national character shall lie upon the jierson using and assuming the

'■ same."

■And yet he has the Hag up and the registry in his cabin.

■' :!. If H.ny nnipialitied jierson, except in the case of sueh trans-
" mitted interests as ar<' hereinbefore mentioned, iu'i|uires as owner
" aiiv interest, either legal or beneticial. in a ship using a British
" llag and assinning the British (diaracler, sneh interest shall be for-
'■ feited to Her Majesty."

Xotwithstanding the rc'gistry in the cabin and the flag
over tlie deck! The cpiestiou of registry on this point
(Im's not ajijiear at all, the (jiiestioii relates back to Section
6ols, ;md turns on actual ownership and the registi'y in the
cabin and the Hag over the deck are not oven prima facie
evidence of owntMship. It turns upon the ([iiestion of
who may own British ships, and Section is says:

•• No ship shall be deemed to be a liritish ship unless she belongs
" wlioUy to owners of the following description; that is to say:

11 M

''nr

il V

958

(Mr. Dickinson's Closing Argument.)

" (1) Niitnriil born BritiHh Hubjei'ta. * * *

"('2) Poi'Hdus luiulo (Iciii/.iMis liy lottor.s of Donizatioii, or nulm il
■" izp(l l)y or piirsimut to any act of tlio Iiujiorial Legislature or 1
" pursuant to any .Act or Ordiuauce of tlio proper legislative autln
" in any British possession.

•'(ii) JioiUes corporate estaliliHlied under, Hnl)je<-t to the laws , i,
" and Iniving their principal jilace of husiness in tho United Kiugd .m
" or HOMie British possession."

lo Even sucii (IciiiztMis must bo witliiii Her Majesty's dd
niiiiidiis (ir a nieinher of a l^i'itisli factory. So \\[> li;i.,.
tlu! ship on tile liigli soas witli the Uritisli registi-y aini
flag and tlien if anyone molests her-ina Hiilish in/i.
Conrt whore international l^aw is administered or in .mv
British nnnii(i|>al conrt — if it apjjear that she is \i,',[
British owned in res])cct of every one of her inter( n|^,
thei'e is no right to the flag, and slie is not British. .And
in a direct pMu'eeding against liiin tin; registry and l!,!;;
are not priiint fdcic evidence and he must |)roceed and

20pi'ove the ownershij) in a British subject, as I have read.
Now, (Section lo:!. No. (4i. pi'ovides:

" If auy person, on behalf of hiinsolf, or any other ijcrson or hodv cif
" persons, wilfully niak(>s a false declaration toucliing the i|uiihliiii-
" tions of liiniself or siicli otlier person ol' boily of persons lo i]«n
" British shi|>s or any sliares therein, the declarant shall be ^^niltv of
" a misdcuicanor; and the shi|> or share, in respect of which sm h ilrc-
" laratiou is made, if the sanii" has not been forfeited under the I'oii!-
" goiufi; provision, shall to the extiMit of the interest theieiu of the
" person makiu}? the declaration, and unless it is shown that he had
" no authority to make the same, of the parties on behalf of whuiu
-^O " the declaration is made, be forfeited to Her MajoHty.'*

" And in onler that the above provisions as to forfeitures niav he
" carried into efl'ect, it shall be lawful for any commissioned olliier mi
" full ])ay in the nnlitary or naval service of Hvv I^fajesty, or any
" British officer of custcuns, or any l<ritisli consular officer, to seize
" and detain any ship which has either wholly or as to any sliaro
" therein become forfeiture as aforesaid, ami to brin<< her for adjiidica-
" tion before the High Court of .Vdmiralty in 10nglau<l or Ireland, or any
" court having Ailmiralty juiisilictiou in Her Majesty's ilominions; mill
" such court may thereupon make such order in the case as it mav think
'• fit, and may award to the officer bringing in the same for adjudiia-
" tion such portion of the proceeds of the sale of auy forfeited ship or
" sliare as it may think ri/ht.

" CIV. No such officer as aforesaid shall be responsible either civilly
" or criminally, to any person w Iiomsoever. in respect of the seizure
" or detention of auy sliiji that Ims been seized or di^tained by him iu
" i)urHUance of the jjrovisions herein contained notwithstanding tliiit
" such ship is not brought in for adjinliiation, or if so brought in, is
" declared not to be liable to forfeiture, if it is shown to the satisfnc-
" tion of the ,ludge or Court before whom any trial relating to such
" ship or such seizure or detention is held, that there were leasonalilo
" grounds for such seizure oi- detention; but if no such grounds are
" shown. s\icli .fudge or Court may award payment of costs and dam-
" ages to any jiarty aggrieveil, and nuike such ordt'r in tlu? premises us
" it thinks just."

Ipso fai'fo forfeiture! Is that the .-idjudication of tlio
Court tiiat my learned friendscall an //<.so /Wc/o forfeitiiici

Mr. I'eters:— I would like to state on that point, that
both in England and the Tnited State the authorities mv
clear that the foifeiture is ipso fticfo; if my learned fiieiul
wants them 1 have tliein under my li.iiid.

Mr. Dickinson: \'es, shosv one; lam reading diieiily
from your act which recpiires proceedings in the .Vij.
niirally.
6o Mr. I'eters:- Take the ca.se of Annand.ile, which is re
ported iu "2 J'rohate and Divorce, jiage 21S. That was a
case of foifeiture mider the section of the Mi'r( jianis'
Shipping Act referred to. It was mstituted on lieh.iHiif
a British Ollicer ol Customs against a vtNsel for .dlc^vd
infringement of the provisions of the .section. I'luiiilitf

itno

ijesty's il.i^

;'^isti\v :nii|
lilisli Ti i/i'
(1 or ill any
slit^ is imt

■V illtflt ^l-.

itisli. A 11.1
ry and t'.a;;
iioi'ccd ami
havt; If ail.

•atinii (pf tliu
7(1 t'di IVitiiicJ
it piiiiit, that
itliorilics ai't'
■ariii'd frii'iid

, whicii is re

'riiat was a

(« MiTiliaiits'

on lu'lialliif

■ 1 for allr.uv,!

on. I'luliltill'

(Mr, Dickinson's Closing Argument.)

all<'giMl tliat on the 1st of July, IST-I, one of her owners
heing a British suhject had f.slsely icprcsented that she had
lieen sold to foreigners. The statement of the defense
and founterelaim was delivt>red, whicli in tlie Tth |)ara-
graph set up a dt^fense that on the ftth of July defendant
hecame boiiii Jii/c pnrciiaser of the vessel |)r()ceeded

against for a valuable consideration without Unowl

Ige

I, (if any of tin niatteis alleged in tln! statenu.'nt of claim
.And plaintiff denuu'red to the Tth paragrap'.i of the de-
fense. Held, atlirming the decision of tJK! Judge of the
Coiutof Admiralty that the dennu'rer inui-t Ite allowed

for that the property in the vessel

was (Uves

ted

20 (

'sted in the Crown iimnediately on tiie (!()nHnission of
any of the offenses, in rci-pect to wliich under the pro-
visions of tile section the penalty of forfeit ur(> was im-
posed. The Judges were James, Bagg illey anc! Cotton.

Mr. Dickin.son:— I should say tiiat tiere would ho no

h>uht ahout tlial.

Mr. Peters:— That was inunediate forfeiture, .so much

( that it took th(> property out of an innocent person

,lio had bought, the propei'ty. And to the same etTect is

he (

lecisiou of the United States. This i^-

a cas(>

not

under the Shipping Act but involving the same piinciple,
fnited States rs. l.'.Miu bags of Coffee. 8 Crauch, ;!!t8.
This was a case of forfeiture of goods for the violation of
the non-intercourse act, March, isS!»: the defendant avows
a siib.sequent sale to an innocent purchaser, although she
1 had a regular permit for landing goods and although the
duties might h;ive been paid. And that case is remark-
able in one res|)ect, because it, overrules Judg(> Story.

The ConumssiouiM- on the part of iler Majesty : —Might
not tliat mean that it would have (street from tiiat date,
but that it would iiave to bo proceeded for?

Mr. Peters;- -The point we made on that and which

IV friend is controverting is i-liat the effect of an

im-

proper decl.iration of owneiship with legai'd to a British

ship, involves, from the very moment you commit that

40nlVetice, that tiie shij) tiieii and tiieie becomes th<> prop-

erlv of the British Crown, and that even the transfer to

m innocent person passes no

titlt

And it is the

pel icy in all these case

•it<^ these cases in our brief.

Mr. Dickinson: — I do not think we disagree as to the
judgment of the courts just cited. 1 do not miderstaud

tei

m ipso ftirhi

as u

sed by my learned fiieiid. \Vi

ppose that if a title passes ipso fdcio, or if a |irovision is
made that a certain transfer shall be alisolutely voiil as
against all the world it does not reijuire any direct proceed-
joiiig of forfeiture, but the facts may l)e shown collaterally in
aiiv proceedings by any one in future proceedings. Where
foifeiture is provided for by competent jurisdiction we lio
t undtM'staiid the term ipso facto to mean that you have

111 wait a decree ii

1 order to avoid the title. We do not

iim

lerstand that that is tlie meaning

forfeiture ipso

I'liclo. Tiiat is the difference between us. Voui' Honors
will see that under this Act providing for for-
feiture that only the interest of the otfending
paitv can be forfeited imder the said provision en-
<iotitle(l " National Character." and that ii\ such cases it is
jirovided bow discharge may b(> made, and wint court
to take him before, and such court may thereu|H)n make
-•iich order as it may Ihiidv tit. There does not seem to be
iimch ipso /(trio there, because the court has compe-
(i lit jurisdiction to consider the question imder tho Act

^mmF

960

(Mr. Dickinson's Closing Argument.)

after the thing has been committed on which condeinna-
tion might follow, and may forfeit such interest as it sn »
fit. or no interest as it sees fit. It is the language ol iho
Act. If that is ijisofacio, my friends and I do not iimlir.
stand the term alike. If ip.su Jurto forfeited, any |iiiv,itp
person in any court could set it u]>.

Mr. I'eters:— We understand 'i.ir i)ositions now.

lo Mr. Dickinson: — 1 do not know to wiiat end the (uii.
tention is made anyway, because if it is claimed ili;it
the title is in Her Majestv, as in case of decree made li.r-
feitiiig to Her Majesty, then Ih'r Majesty's (•oveiniiiin!
is tilt! cl.'iiniant here in its own hehalf. The cdunsil i,(
Her Majesty's ( iovernment are here representing tlu
of these claunants as owners, and not the rigid of llcr
Majesty as owner and Her Maj< sty could not liecdiiic
the owner unless under this law there should he a d(( ivc
by a competent court of general jurisdiction in a (IIkm I

20])roi'eeding that an act of ftjrfcitnre had been conuiiilicil,
You cannot urge forfeiture in this pioceeding collatci.dly.
Bu\ let ns see how it would he as to public acts. Iirit>
are the " Instructions issued to h'egisti'ars"authoi itativtiy
possessing all tlie effect of an Act of Parliament. I rail
your Honors' attention to the etfect of registry in tins
same volume.

Section \'2 of Instructions, page 12:

f/illis iirr ilijiii' il ill
ItcfiiHtnir is iiiirfic-
liis iiuist iiuiMutniit

" Till' persiitiK eiititlcil lo be ninimt of Brilhh

• lllf. ISlli S'liiou (if lllr .1(7. Till' iittciitioii of till-

' tjlavly ilii'cctt'il to tlii'.'fc jirovisiiiiis, us one of

" duties is tlic iuvfstigatioii of the iintional cliiinicti'r of the iiiisons
" rcqniiing to lie lonistt'ivd us owners, ami ii carcfnl examination of
" tbe eviilince adduied in siii)i)oit of tlieir claim, the nature of wliicli
" will lie detailed in the eourse of these instnu'tious."

" Hi. Vit;ilaneo in this reK|)eet is necessar,v, from the oireiiiu-
" «tanee " —

This is the most important thing of the whole matter,
because these regulations have ail the force of law —

" Vifiilanee in this respeet is necessary from the cireumstan<'e tlmt
Parliament has of late years cousideralily relaxinl the conilitjiins
wliieh entitle' a shiji to carry till' Uritisli fta^ and to claim Uritisli
" jirivilem's and jirotectioii. \ shi]) may now 1m a Hiitish ship and
" vet have heen huilt at a t'oreif^n )iort. and 1m manned and I'omnianded
" \)y foreipners; the sole reijuisite which remainsis. that slie should he
" owned l>y persons who one allei;iance to the liritish Crown, aiul are
"subject to Uritish law, .Any netllect. therefore, of the jirecaiit ions
" onioincd hy the Act, with a view to estalilishini;' nationality, will de-
" jirivt! Hhi|i >'.gistry of its im|Mirtauee in a imlilic jioint of \iew. "

Thus, tli'Mi, a ship carrying tin British Hag still has lu>r

natic'.ialit' tinii on the(|uesti(in of ownersliip. and it that

5° shall nut oe in accoidance with llii' iirovisious of the law.

the iieg'strar is instructed that lilt' Hiitish tlag will not

protect her, in a public point oi view.

IStiw, then, note tu the above:

" Persons lioldin({ letters of denization or letters of naturalization
" are reiiuired toi>riMluce them to the Ke^jistrar when makinj,' dechira-
" tions of owni'rsliii)."

And this I call marketl attention to:

(jO " In cbhcs iu wliicb there may be any doubt about the nationality
" of a declarant, the Itenistrar should distinctly point out to him that
" tlie law throw'.- the onus of ri's]ionsibility in this ri's|)ect uiion tho
" person makiu(,{ the declaration, and not njion the Kej^istrar."

So that a register may be maile by a jierson under a
fal.se oath and tiie Kegistrar is btumd to receive that oath

961

(Mr. Dickinsoii's Closing Argument.)

from the person falsely niakinp it. The Kegistrar is hound
to tell him that the registry will he no protection to him
and that the flag will not cover him when he is registered
unless the British ship is actually British owned in every
interest. And that is the puhlic point of view. The reg-
istry is not conclusive evidence then in a pnhlic point of
view, and the oidy thing that is ohtained is this, that

10 from the British act and those Instructions to Registrars,
the ship unless British owned is not a British ship,
and unless British owned in every one of her sixty-four
parts— and the man seeking registry is told that his reg-
ister will no t piotect him unless she is British owned in
every one of her sixty -four interests. The registry does
not vouch nationality any more than so much waste paper
and he is so told. We get hack to the fundamental, the
hasic princi|)le that nationality follows ownershiji, and
when you get down to the question of ownership, whether

20 it he investigated in the British Court or in any other
court in the civilized world, you come back to this British
ownership, i»id British ownership only makes the nation-
ality of the ohip. Mr. Bayard correctly stated the law as
[ quote him at page 7h of the United States brief.

" By the law of nations * « » tlio oitizeuH or 8iiV)ject8 of a par-
'* tietilar eountry, wlio arc tlie owuern of a sliip, are entitled to carry
" on such ship when at Kea tlio Haji of Biieh country, and such flag is
" to be regarded by all foreign sovereigns as the badge of nationality. "

p This is by International law, of course, irrespective of
British regulations; Lord Stowell said as I have cited him
in my brief:

"A bill of sale is the proper title to which the maritime courts of
all countries would look " —

that is International law —

" It is the universal instrument of the transfer of ships in the usage
of all maritime countries."

40 11, Atty.-General, Opinions, page 72, 186():

" The flag, then, the outward symbol of ownership, sho\ild properly
" correspond with the bill of sale."

In the case in 15 Peters, decided hy Story, United States
vs. Ai misted, our learned friend makes some criticism
ui>on our construction of the case. It was in a time
of peace, although so far as that is concerned, the cir-
ciUDstances in time of war are only varied on this
(juestion by the admission of the condition of privilege

fo recognized by the law of nations that for the |)ni'i)oses of
disguise and to avoid ca|)ture, a man may put on a dif-
ferent nationality or identity to escape, iuul that makes
an e.\cej)tion to the universal rnle as to tiie biiuling char-
acter of the a])parent insignia of ownership as against the
owners. In time of war ilso, however, when yon want
to get back to the right of >rotection of the ship, as to
what her nation is, neutiai or belligtrent, yon have to
trace back the actual title, ti. determine the nationality,
in any court. In time of peas;) you have to determine

'••jlier nationality by her ownersh,'). The case of the United
States r,s. Armisted was the cas( ^f a Spanish registered
and documented ship. Not onl^ was slie documented as
a Spanish ship and as Spanish owned, I'lit, by treaty be-
tween the nations, certain privileges were gnaranteed
ships of either nation so documented.

I i

y62

(Mr. Dickinson's Closing Argument.)

It turned out that sho had a disguise in time of poarH,
and that she was actually owned by citizens of anotln i
country, and this heing suspected, she was seized, and, ol
course, her flag and her registry did not protect Uw
Judge Story considers this as of a time of peace, and com
ments on tile fact that it is in time of peace, and .s.ivs
that this is the rule in time of peace— that privati'
loownership determines nationality. As Lord Sto\V( II
said, that, a hill of sale — of couise a bona luh'
hill of sale — a solemn instrument of title, dc
termines that question. Our friends cite, at paf,'(.s
44 and 45 of their brief. 16 Peters, 21.5. iNt,u,
this was a domestic litigation between a judgment cred-
itor and another, and involved the (juestion of whctlicr
the registry of a transfer of a ship under a Federal statiitf
Avas a prerequisite to a change of ownership as against
creditors. The decision was that it was not, and tlic
aoCourt proceeded to say tliat the registry as contem|)lat('(l
by the Federal law was only for the purpose of conferring
certain privileges on a ship as a national ship They alsu
quote Hi Wallace, 610:

This was also a domestic suit, involving a conflict be
tween a bankiuptcv assignee and an attaching creditm.
The ))aukruptcy assignee was appointed in Massachusetts,
and the creditor attached the shi|} in New York. It was
iield " for the purposes of the suit " that the ship was a
portion of the territory of Massachusetts, and the bank-
3oruptcy assignment passed the title as against the attacli-
ment.

In the case of Catlett against the Pacific Co., 1 Paine,
Circuit Court Reports, the question was whether tiie
implied warranty m a policy of insurance, that the sliip
was an American vessel, had been complied with. It :ip-
])eared that she was owned by American citizens, aiui it
was conceded that if she also had an American register on
hoard it would have been a compliance with the warranty.
The essential thing disputed eventually was the (jueslion
40 of American ownership, and the effect of registry was not
in issue.

That case, if it is of any account at all on their conten
tion that the American registry is conclusive of owner-
ship, it may be said, was cited, as my friend cited it Iumo.
as shedding some light on the subject (and to that e.xtcnt
probably it is here) in the United States Supreme Court on
the argument in the Armisted case in 15 Peters, where
the contention there and here was distinctly overruled by
Judge Story.
50 Now, the next position, and it is re 'erted to again by
Sir Charles Hibbert Tupper, is this, that the registry is
put upon the same ground as naturalization paper.s.
Well, that is so well settled in this country since tiie
decision of Spratt v. Spratt, in 4 Peters, that it will not be
necessary to say much upcm that point 1 have in my
brief considered the case, so well known and so often citi'd
in our courts, that I simply alluded to it in our briuf as
" Spratt'scase.'" but the proper citation is 4 Peters. Tli.it
decision was put scjuaiely on the ground that natnrali/.M-
<3otioii is a court proceeding and judgment. That it involves
a hearing ni testimony by the court and adjudication, and
it could not be collaterally attacked. It is quite aditt'ereiit
principle tiian that which applied to registry of shiiipinK.
with whicli no judicial or quasi-judicial authority has any-

963

(Mr. Dickinson's Closing Argument.)

thing to do. Natunili/ation is a decision or judgment of
,1 court, and it is so held in Spiatt's case.

The position of the United States as to naturalization
is quoted in our brief at the top of page 81.

" It is not within tlie power of tho Socretar.v of State to vacate a
" ilooree of naturalization issuod by a eoniiieteut court of tlie Uuitcd
"Spates. » * * The judfjmont of a court (j;r»ntinB toaniudividiial
10 " the rightB of citizonshiii iH entitled to receive tho respect given to
" all other judgmentH rendered by courtH of competent jurisdiction,
" and if not iuipeaohablo for fraud, in conclusive as to all the facts
" necessarily passed upon."

A Registrar has no judicial discretion, but is obliged to
accept the oath in both countries.

The Executive and Judiciary of the United States are in
iiccord that the test of nationality is ownership, not the
icgistry or flag.

In a time or war, if anything is necessary to give added
20 conclusiveness to the flag, there is a form used of an
official certificate from the Executive Branch of the CJov-
ernment, commonly called a 8hii)'s pass or a ship's certi-
ficate, which you cannot go behind, very likely. If the
matter is investigated, and the government certifies to the
world that this is a British owned ship or an American
owned ship, that is the ship's pass; and that is what the
" V'irginius " carried as shown by the history of tliat case.
1 have shown, heretofore, in my argument that she was
certificated bj' the United States, and therefore the ques-
30ti()n of nationality became of no importance, although in
that case the United States permitted an investigation to see
if a fraud had been committed on the sovereignty. But that
involves the national dignity and not damages to private
rights.

I now call your Honors' attention to authority bearing
upon the consideration of allegiance in this connection
wiiich was before the British Commissioners ou nation-
ality and naturalization before referred to. Lord Cock-
4fMiurn, in his work on Nationality, at pages 180 and 181,
says:

" The report of the Commissioners appears to assume that the re-
" nioval of the incapacity to hold laud is tho sole motive with aliens
" for seeking to become naturalized. It does not notice another, and
" perhaps still more important, head of the incapacity of aliens,
" namely, that of being unable to own llritish ships. Should the law
" iu this respect be relaxed? Tho answer will bo readily in the
" negative, so far as aliens iu general are concerned. ^1// ulifn. who
" iiin-s nil idlrijiiiiice Id Ih): i-iliili', mill lelio, ir/im an llie senx, i,'< im /oiii/i;r
" iimi'iiiilile III iiKi' litii'K, can /iiivi' iKi cliiiiii In llii' iiriilnHini of the lirilhh
W fi'i'i, ill ri'sjirii iif ii tipecien of jinijinrti/, irliich, iinliki' ival csIhIh, mmi, at
" mil/ miiinfiil, lie williilniii'ii fram lirilixli iliiiiiinioii tilliii/i'ther. But whether
" a foreigner settled and domiciled iu this conuti-y under eircum-
" stances which would entitle him, according to tlie usual course, to a
" ccrtiticate of naturalization, might not be jierniitted to be an owner
" of British shipping, so as to supersede the necessity of a uaturaliza-
•' tion which, in reality, gives no British nationality, is another, and a
" very ditl'erent ipiestiou."

Suppose a citizen of t!ie United States was on his own
sliip, suppose Alexander McLean was on his own ship in
li(;riMg Sea, actually owns it, as we contend we have
*^h1i(iwii and jiroved that hedid; he is out of the jurisdiction
of (ireat Britain, and he is on a ship not protected by the
Hiilish flag if he owns an interest in it, because iie is
imt i)ermitted by Great Britain to own an interest in it,
iuid if he does have an interest in it what-
I'vur the registry, the British Act expressly pro-

]1t

"'•«,.

( i',,1

i»fi4

(Mr. Dickinson'^ Closing Argument.)

vides that she is not j)iotecte(l as a British ship So
suppose lie is taken; he is an alien on the high seas, aticl
beyond Ihitish jurisdiction, and, of course, could ciaiiu ih>
protection at the bauds of Great Britain, being in a sliip
that was not a British ship.

I do not kuovv, may it please your Honors, as 1 cimiM
better illustrate the distiiK^tiou Ix^tween the injury |.,r
lo which redamatiou can be had for a private citizen, as liiil
down in the books, and that for which vindic.ilion of tin.
sovereignty of tlie nation may be due, than by casus wliji h
have occurred in the relations between the two govern
ments. The distinction is broadly made, and it bears u|i(iii
something that was iu your Honor's mind the day iMtdio
yesterday when your Honor asked me the effect of t.iking .m
American citizen from British soil. That very position was

E resented in the case before one of the mixed commissidiis
etween the countries. In the case of the Britisli shiji

20 " Trent " we liad a perfect right to go upon that ship .ukI
search her in time of war. No doul)t about that. Knj,'-
land having recognized the belligerency of the Confedeiato
States, that a state of war existed, we had a right to stop
the ship on the high seas to .see if she had anything coii-
tiaband ujion her; but we had no right to enter upon the
ship and take off Mason and Slidell. That was an invasion
of the dignity of the British ship, and was an actual in-
vasion of the sovereignty of British teriitory, as wo
had contended constantly on our side since 178S. We did,

Sohowevr, take off these men. It was considered a Wan-
ton act, a j)iratical act, and was so characterized by fireat
Britain at the time, and an a|)ology was demanded. We
promptly responded, gave up graciously as we should have
done after the violation of International Law and an inva-
sion of national dignity. But what would the coiuitiy
have said if Mason and Slidell, who had suffered somewhat
had insisted upon reclamation against the United States.
They were citizens of the United States and were engafjed
in a violation of the sovereign authority of the Unitwl

40 States. Suppose in addition to what Great Britain asked

of us for invasion of the national dignity

Mr. Peters:— Suppose you had tak(;n their goods?
Mr. Dickinson: — We did take their goods and on the
same demand restored them. We shut the prisoners
in Lafayette i)rison, but would any one ever dream, may
it please your Honors, of invoking the protection of Gnat
Britain, and making reclamation on the United States for
damages before a Claim Commission for Mason and Slidell?
No, the national question absorbed everything else. Tiie

50 subordinate question of private lights was sunk out nf
sight, and it became a (piestion of national dignity alone. So
far as the personal injury to Mason and Slidell they could
not recover from the United States, except so far as they
wei-e under the jurisdiction of (Jieat Britain. They were
American citizens engaged in violating the sovertMgnty of
the country of their nativity, and no one ever dreamed of
proposing that a cent should be paid on their acconiit.
Your Honors will see to what absurdity it would have li'd
if suggested by anybody. 1 do not know if it was ever

60 asked for by Mason and Slidell, but if it was it never re-
ceived any consider.ition from any one. Again, in the casi"
of the "Caroline" .n lh37 a full statement will be found
in Baker's Halleck, page 477, and Wharton's DiKost,
Sections 21 and 3.50. Here was an invasion of American
territory, and an American ship under the American tlag,

Dflfl

(Mr. Dickinson's Closing Argument.)

and in American waters. Tliorc was no doubt al)out this,
tliat tlio sovcnignty ot Great Britain s«Mt McLiMid with a
force (if men on to American territory, and took a sliip
miller the American (la^- and destroyed her; took her
ri^ht otT Ameiican territory, and (ireat liritain witli Hrit-
isii I'rankness acknowledged iier rcS|ionsil)ility I'or what
slie did. She did not charp; it up to Mci.eod, hut said

K that lie acted under liis nation's instructions; or, it lie did
not, we ratify what he has doii". 'i'lie L'liited States de-
nianded satisfai;tioii foi' that, (lieat ih'itaiii assiMtod the
li^lit to enter the territory on the ground of self-preserva-
tion, ad(hi(ing evidence of an insurroction, and claimed
that the •• ("aroliiu'" was aiding it.

The matter was .satisfactorily adjusted hetween the
^ioveiiiments, hut Mcl^Mid in the meantime got lietween
lii'eat Britain .ind tlie I'liiled Slates, while the confe.st
w.is going on, and was arrested and jailed for a long time

Join the L'nited States. He ought not to have been put
there, hecause, as was held hy Mr. Webster, Se(;retary of
State, and hy everyone else e.xcept Judge Cowan, that as
this matter was a matter between the sov<;reignties, in-
dividuals harl nothing whatevi'r to df) with it. It was an
act of the sovereign against tlu; sovereign, and that mat-
ter was to be settled between them, an<l the rights and
liabilities of individuals were not pertinent, and were out
of sight. The great question between tlie sovereigns
was settled, and that should have ended the whole con-

30tioversy. But McLeod, tlirough (ireat Britain, attempted
to raise the question of private rights, and make reclama-
tion from the United States, and you will find the
case reported under the American Commission of
is.'iS, to wliich his claim for damages was presented.
The umpire decided that it could not he brouglit before
the Commissioners as a private claim, because it grew out
of a purely national (juestiou, which liad been adjusted
hetueeii the two countiies as such, and there could be no
reclamation for McLeod. It is an interesting history as

40-.lifilding light upon this question here.

Hut suppose it bad not been McLeod who was making
rei'lamation? Suppose a British subject domiciled in the
United States, and not naturalized there, while in the act
of -liding that insurrection against Great Britain, had been
(latr.aged in his person or property rights by McLeod's in-
viision; Great Britain sent forces in here and damaged a
good deal of jirivate property? Could it be seriously con-
tended that he could have successfully made reclamation
tliroiigii the Unit(Hl States against Great Britain, his na-

5011. in of original allegiance, for liis injuries sutit'ered while
acting in violation of that original allegiance?

On the other band, suppose an American citizen, domi-
ciled in Canada, had aided the insurrection, and had his
liiiuse burned over his head, and he had bidught his claim
lielore the Convention of lsr>;i? Would it not have been
said to him: "Mr. American Citizen, domiciled in Great
Hiilain. this participation of yours in defying the
bovereiguty of your domicile, for which you have
sntfere<i, takes you out of the category of per-

Ccsdiis who can present a claim under the aus-
picis of the United States against (Jreat Britain,
because you owed allegiance to the soveieignty in which
you were civilly domiciled."

' »n the distinction between questions of the kind arising
lietween nations in respect of the inviolability of national

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(Mr. Dickinson's L'lo.smj; Aij^nniiMit.)

territory and the t'lnltlem of tin; national dignity, .md
tlios«' in ifspcct of til*' claims of individnal citizens im-
sentt'd l»y one nation for personal or property injiirits
against anotliei'. it is liroa<lly and well dinwn by cdiiiimI
in the case of McHn^h and otiiers against the I niicd
States, hefoie the Mi.xed C'oinniissioii nnder the Treat \ of
Washiii^ten ( ik'eport t)f British Aj^ent. p. i>tu, Appeinh.x
loNo. 7. Tiiiias follows. (I said when yonr Honor asUeiJ me
the (lay liefore yesterday what would hetheeired n( ilin
invasion of Hritisli territory hy the sovereij;iity of ihr
I'nited States that later on I was was connnj; to thai c|i>
tini'tion.i 1 now read from the leporl of the Hrili-li
Anient:

"Till' i|iii'sti(iii lii'forc tliis ('(iiiiiiiiMHii)ii is not wlictlici- Orint Itnliim
" lius Niillci'cil Ki°>*'vuni'<M)i- iiiHiilt lit tilt' IiiiiicIh of ilii- I'liitril Stiil< s jn
" till' I'lisi' ill wliifli ri'i'liiiimtioii in hdukIiI. If if were so, it uiniKl lir
" ciif iri'lv iiiiiiiiitiTiiil wlictln'r flic iiiti'stitti>, Slifnimii. were a jlriii^li
-,[-. " Hul>ji'i't or no. he liiiviiiK lii'i-ii itrroHlcil on Kritisli soil. 'I'Ik! mjurv
~ " to (Iri'iit Hntiiiii was liy tli*' iiiiliiwfiil iiivuHJon of licr tcn-itorv mill
" the tiil(iiiK tlii'iicc Itv force of ii person under tlic proteetioii of lifi-

" lllWH.

" Wlietlii'r tliiif perHon was uii Aiiierienn citizen or Hritisli sulpji.t is
" of no iiiiportimce. She liiis tlie Niiine ri){lit of conipluiiit ii^iiiii-t tlio
" United Htiites for the uiihivvfiil or wrongful arrest of un .Viinricaii
" I'itizen upon her Hoil. and his reniovul liy force from the proli'iiidn
" of her laws, as she would have for the sai.ie treatment of a Itiitisli
" Huliject.

" lint it Hiindy cannot lie contouded flint, liv reason of such iujiuv
" to the sovereignty of (li'eat Hritain, Hheriiian. if in fact an Anicriiau
" oiti/.eii, would have a staudiliK liel'ore this triluinal to maki' reclii-
30 " niatton under the treaty.

" ilt- woiihl have to stand upon his chnracter iih a Hritisli siilijicl.
" and upon that only: and it wiuild lie only liy virtue of hucIi national
" character that he could make reclamation here.

"The particular claim, as appears liy the report, i. •., that of Mi'~
' Hhcrniun, waH unanimously ilisalloued liy the ('oiiiniissiuiiers. "

The very point was eiahorately stated and decide.) hy
Haron hiaiic, the nnipiie, in claims !)4 and '.•.'i. Cainpliil
and others c. Spain, under the Spanish and .\fneiii iii
Commis-ion of Kehriiary !•_', isTl.

40 My friend. Sir Charles Ilihhert Tupper, says, "th.it is a
difTereiit convention in principh* from this." Not at ;ill I
have it here. This wdl he found in Treaties a ii<l Coiiveiiiions
hetween the I'liited Slates ;iud other I'oweis, I77t'> l^">7,
at paj;e loi'."(. This was an arhitration for the settienirin
of cert.iin claims of citiz(>ns of the United St.ites on ac-
coiiid of wron.us and injuries connnitted hy the aulliori
ties of Spain in the island of Ciiha, or within the ni.iii-
time jurisdiction theieof, since the insuirectioii. Il
w.'is agreed that all such chiins should he snhmith-d to

joailiitration, one to he appointed hy the Secretary ot Sl.ilc
of the United States, another hy the Knvoy Kxtiaordniaiy
and Minister I'lenipotentiaiy of Spain at \Vasliinj;loii,
with an umpire, wlm was to decide all <|nestions on ulijc li
they should he iniahle to a^reu. 'I'hu arhitrators and nin
pile weie to impartially hear and determine to the hct ol
their judg) 'cut. and according to pid)lic law, ;ind tlie
treaties in force hetween the two countries, all siirji
claims as shwuld in conformity to the fioit.cuient he laiil
hefore them on the part of the (lovernment of the rnil' d

OuStatt's. It provided that each (iovernmeiit might name
an advocate to appear hefore the arhitratoi-s or the mnime
to represent the interest of the parties. Section 5 of that
Coiiveiiiion, among other things, provided:

" No jiidKinent of a Hpanish triliunal. disallowiux the nffirinatinii nf
" a party that liu in a eilixen uf the Uuitvd HtateH, Hhall prevent Ibo

'■ i

987

(Mr. Dickinson's Closing Argument.)

' urbitratorH from hi-uriii); n rt'flitiuutioii ]iri>st'iit)Hl in 1>cliiilf of said

IMirtv liy till' Uiiitt'il StatoH (iovt^rnintMit. NcvcrtlicloHH, in nnv rase
leanl liy tho ai'l)itr»t<ii-H, tli<> SpaniHh Oovcrnmout inny truviTHc the
' allo^atiou of AiiK-riciiii citi/ci'Hliiit auil tlicruiipuu coniiift.'iit autl
' Ktiflicit'tit prool tlu-rcof will lie rt'ciuiivil. The I'oiniiiisHiou liaviiij^
' rcooKiiizeil the (]iiality of American citi/.ouH iu th<! claiiiiantH, tlii'v
• will ac(|uiro tlui riKhts act'onled to tlifiu liy the present HtipnlatiouH
' an Hueh eitizenH. And it i« further agreed' that the arliitratovN shall
' not have jnrisdietion of any reclamation nnide in liehalf of a native-
' horn Hpanish snhject iiaturali/.ed in tin; United (States if it shall ap-
•' pear that the same sulijeet matter having been adjudieated liy u
"competent tribunal in Cuba, and the ehiimaut haviut; appeared
" therein, either in person or bv his duly appointed attoruev, and be-
•' ing recpiired by the laws of Hpain to make a declaration of his
" nationality, fuiliMl to declare that he was a citizen of the United
" Htates."

Tlic t'.\|i('iis('s (if iirliitriition avcic to lu' paid Itv liotli
(Jovermncnts. It was a Claims Conventimi on all fours
with this as far as the princijilo is concerned. It. was llie

,y|)rivate (;laiins of citi/eiis. .Now. in tlb'it case cited, the
•' Mary Lowell" was nnder the Anieiicaii tia};, and on the
hif;h seas, dnly docinnented as an American ship 'J'he
umpire tinds distinctly that tho violation of the Ha^ was
an otfens(> against the sovereifrnty of tho United Slates.
The claim was presented l)y Ihe rnited States, as claims
are presented here, as one on account of the* owner. It
was one of the most important cases, and was hefore the
unit ■ -e twice. It was aigned fully hy Spain and the
I'hiu'd States, and was passed upon hy the umpire finally,

,^,and then a reiiearing was granted, and the final decision
of themnpire, Haron HIaiic, a distinguished pnlilicist, since,
if not heloie, conside>s the (|uestioii of aHronl to national
dignity hy the invasion of the " .Mary Lowell," and sets
over against it the status of claims under conventions like
this. This is what he says on the rehearing:

" Ah a matter of law. the unipireis of opinion that jirior to the cap-
" ture of the ' Mary Lowell,' and independently of the circuinstances
" of the capture itself, the vessel and caixo were beinn wsimI, by
" the act or tliroUf?li the nenlinenee of their respective owners, iu nu
" unlawful enterprise, and pla<'ed outside the contlitions of lawful in-

" •' tercourse in time of peace ; that this ille);ality was of such a chanic-
" ter as to carry with it forfeituri' of tht> protection of the United
" States tlaj^, ami as to subject the property to such eventual actiuu
" as miKht be I'.eeined proper by the United States and by Spain ac-
" cording to the mutual rights and duties of the two i^overi nients ;
" that such abnormal situation of the owners of the ship and carj^o
" towards Spain, and, indeed, towards tin' Uuiteil States tliemselve.s,
" could not be covered by the alle)r)>d iufra<'tioii of international law
'■ involved in tin' subscipient capture of the ' Mary liowell ' and car^o
"by the Spanish forces; and that on those ]>rinciples of ecpiify
" w'liicn the umpire doi's not feel at liberty to disref^ard hi' is bound
" to decitle that the owuors of the ship and car^o are as such es-

1-'" topped in their present claim to iudeiauity for tlie consocpu'uees of
" their unlawful vi'uture.

" // is tlii'ii irri'/T'iiit Hiii/iT till' rirriiiiisl'lin^en n/' lliis o</w In stuli' limr fur,
" i/ III nil. till' mla i/llf Siiiiiiiah/iii-iii, ilniii- in srlf'-i/rfninp. irfn' nii'inllin-
" i-i:i-il III/ iiili'rii'ilinii'il hiir nml sn'li nu In I'rvilr n clniin mi llii' /inrl nf Ihe
■' i'liili-il Sinli'S iii/niiisl S/niiii in bi'linfn/ lln' nfi-mli'il snriireii/iili/ nf lln'ir
•• llni/. ll is na'nriliii'jl/l niiinvrssnri/ /nr lln' ihlmiiiiinlinn nf llii- jntsniinl
" ri./lilii nf till' c/niiiiniils hi'/nii' Iliis cniiiiinssinii In nsri'riniii ll,e fm Is on
" irliirli till' rfifiilniili/ n/' llnnnjilny. ns In lln' lii/lils nf ihe Viiili'il S'lli'S ite-
" limi/s. iinmi-hl. Uns lint ' Mnru Lmri'll ' srl liorsi'lf rii/lil ns In llif nllnjil-
" linn n/ S/iniii llinl slio irns. nl llir iiiniiii'iil nf tin' cniitnrf. inllmnl n iniitiiiii
■' nii'l irilliuiit till' iii'i'i'ssnrii jinjieis tnjnsti/il In I'llni), tlinl sIih »•.(.« imrsiiiiiff

K) ' ' lln lliijlistilleit rniirsn, Ac.

" The um|iire must be understood as a|iplyini,r the rule of estoppel
" only aKainst the private I'hiims of (). H. Campbell and A. A. AraiiKo,
' as claimants of an indemnity for their own individual aeconnt, in
• which private claims the ipiestiou, Was the cajiture of the 'Mary
■ liOwell ' and cargo unlawful V is subonliiiate to the other iiuestio ,
viz.: WcN' the ' Mary Lowell' and carj,'o engaged iu an unlawful

«fl8

(Mr. Dickinson's Closing Arnunient.
" entiTjirim' ? Tin

Tiifiv it is in a niitslu'ii. Tiio invasion in spiir df ili,.
(lii^ find till' it'^istiy, jind tin? affronts to the (li;;iiit\ df
tlif rnilcd Slates was all alunuiantiy siiown, Imt in tin
claims I'onvi-iition to wliich all cases of this gt'iinal niitiin
of piivato clainiantH was |»iest'iit« d and nrned li\ Uu'
I'liitfd Slates, llie iinipiie held that, in so far iis tiie in-
vasion of the ship on the \uy;\\ seas is conrenieil, ,111
American registered docnmeiiled ship, cairyiii}: the flaunt'
the I'niletl Slates, it conid not lj(> considei'ed in <'oniii'(
tiiii will) the qnestion of damages in an attempt at ie( la

20niaiion hy the owners of that vessel, under the claims
convention, of conrse. that is a decision (»n all fours wiili
the '■ \'iininius" case, in so far as any piivate rights were
involved. Our learned friend. Sir Charles Hihheit Tuppcr,
has shown that the United States did demand icpaialion
for Its otfeuded dignity, in the invasion of a (ciiijiciilnl
ship of the I'nited States carrying the flag, hut when it
appeared that its flag had heen carried frnndulently, oiii
(government never even daimi-d reparation on hehalf ot"
the owners of the " Virginins," hecause of that invasion

3° of even a certificated ship under the Mag at sea.

St.vtlh ok thksk Cl.mmants.

We suhu'it with confidence on the claims presented to
this Commission, for Cooper, who owed temporary allegi-
ance to the I'nited States, whose name was presented jit
Talis, iind as to whom only we have findings of fact hy
that Trihunal. cannot he jidinitted under this Conven
tioii- we suhmit. with e(pial confident'e, that none

40ot the persons owing original allegianco to the Initcd
States and resident in (Jieat Britain, can, under the
protej'tion of (iieat hritain, make reclamation against
the L'nited States (iovernnient for injuries to their
properly on the high seas. In other words, that holh sets
of persons who owe<l allegiance to the I'nited States teiii
porary or permaiieiit - one set domiiiled civil suhjecis not
natuiali/ed. and the other native liorrr citi/eiis not natiiial-
ized in (iieat Hiitain — are not persons who can recover as
limited in Art. I. of this Convention. 'I'his covers, as we

5oinsi>-t, all of the Cooper' claims for the " Crace," the
"Dolphin," the "Anna Heck." and the " Sayw.ird." It
covers Iho Alexander Frank claims for the " Alfred
Adams," the " HIack Diamond" and the "liily." It
reaches Andrew J Hechtersc!aimsin the " Carolena,"aiiil
the " ratlitin<ler." It reaches the Darriei Mcl,eari claim
for the larger' "Triumph"; and tlu' Alt-xander McLean
claims irr the "Onwar'd" and the "Favourite." These
slrips wer'e all seized oi' warned in the years isst!. \ss~ and
1Hs<,i, and appear' in the schedirle of British claims filed at

6oi'aiis(pp. 1 to lio inchrsivei, as those referi'cd to this Com
mission under the convention, as owned and djiimed fur
hy the followirrg persons ( I now take the claims directlv
from the British schedule). The "(trace," "Dolphin,'
" Aiirra Beck " and "Say ward " are sworn to in Ihesched
ule of Ihu British case, irnder the findings of fact sent In

9«i»

(Mr. Dickinson's Closing Ai-giiment.)

tins Commission as ontirely ownod by, inifl tlio t-ntire
claim for coniiMMisal ion for tiio scizinvs is in Thomas H.
C'oopnr. As to tiie "Alfred Adams," Gutnian is .s«>t out
as ownur, and his partni-r. the said Frank, as wjually in-
terested with (iiitman in the results of the sealing voyage.
The " Black Diamond " was not claimed in the sciiedule
(1 to (io) as owned hy Mori is Moss, hut it was set out that

iishe was registered in the name of Morris Moss. As to
the " Lily," it was set out that she was registered hy
Morris Moss. As to the "Carolena, the entin* ship,
as appears hy the schedule (1 tot')(») was in Munsie. As to
that we are permitted to contradict under the convention.
As to the " I'athtinder," it is alleged in the schedule (1 to
♦»()) that half is in the |)artnership and one-quaiter each in
the individi'al mend)crs of the firm of Carne ct Munsie.
As to the Daniel McLean claim in the larger "Triumph,"
the schedule of the British cases alleges that twenty-one

20 shares are in Edgar Crowe Baker, twenty-two shares in
Daniel McLean and twenty-one sliares iii one (Jihson &
Blackett as the claimants. As to the "Onward," in
which we say that Alexander McLean has an interest,
the schedule of British claims shows— it is verified hy
affidavit— Charles Spring as the sole owner and claimant.
As to the " Favourite," Charles Spring is shown as sole
owner and claimant. Now, this appearing hy the
schedule, 1 to <iO inclusive — we as permitted hv the Con-
vention as well as hy the law, have made a showing as

3otothe citizenship of Alexander Frank, an American citi-
zen, and as to his ownership of the " Alfred .Aflams," the
"Lily" and the "Black Diamond." As to the "Caro-
lena " and " Pathfinder," we have shown on the facts
part ownership at least in A. J. Bechtel. Ah to the
"Triumph," we have shown that twenty-two shares out
of sixty-four in all are in Daniel McLean, wliom we claim
to he a political and civ.; citizen of the United States,
and in any case a civil citi/en domiciled in the United
States, and a civil citi/eu at the time of the seizure as

40 well as at the time of the convention. There is no ques-
tion about that, on the testimony. Then as to the
"Onward " and " Favourite," one-half interest is in .Alex-
nnil»;r McLean, an undoubted American citizen and dom-
iciled in the United States.

Now, upon this (piestion of the rights of the claimants,
we insist that to entitle (iieat Britain to make reclamation
for any one "as a person in whose behalf she is entitled
to claim compensation from the United Stall's" (I (|uoto
the language of the Convention), tlu( burden is upon that

5oiiation to establish at the very outset two things:

First, and before all else, th.it at the time of the conven-
tion and of the presentation of the claim, the claimant
was under the protection of (ireat Biitain as a citizen,
with a legal doinicil in the dominions of that nation,
or not in the Ihiitetl States.

Second, it must also be established — and tlie.se two
tilings must concur that at the lime of the injury of
whieli complaint is made, the person was under the pro-
tection of CJreat Britain as a citizen, and domicih'd within

60 her dominions, or not in the United States, or, as the
ti|uivalent of domiciled citizenship was on hoard a ship, as
one of the officers or crew, ttvvned hy a British subject in
fSrilish territory, or on th»' high seas. Both these must
concur. It must be shown by (ireat Britain that at the
time of the conveutiou and presentation of the claim, the

!»7(>

(Mr. Difkinson's ClosiiiK Arpiuniont )

clniinaiit was uiulcr tlio protection of (Ireat Hiitaiii as a
citi/AMi, and witli a le^al iloiiiicil in lier (loiiiinions, .hkI
also at tlio tiiu)' of tlu* iiijiiiy. Hotli aro ahaoliitcly i>ss* u
tial coiulitioiis.

T (i«'sirt> to call your Honors' attention to tlie rcadinr-s

witli whiclicitizonship may revert. (.See Halleck, pa;;c (iM.

and cases). After reciting, as a principle of univ(i,,ii

lolaw, that "Native allegiance is a legal incident of Imtli,

and is tlie implied fidelity and obedience dn«) from tvi rv

E arson to the political sovereignty under which lir \<
orn." the autlior continues to consider how far and m
wliat manner thii. primitive allegiance may he dissulvi,!
or transferred. The learned autlior says at page 4<il»:

"ItniBV Improper to rumnrk in thiH place! that, iuitHmiicli us il,,.
" national clmrai-t(>r, wliiob rosultH from origin, coutinufH till Icj^allv
" cliangud, tli<> ouuh of itroviug hucIi oliango usually reHts upon tlic
" party alleging it."

Citing also I'liillimore on International Law, Vol. i^

81.5. et set/., and Westlake's Private International l,a\v.

Section 7, et sci/.; also Blackstonu, at page 457.

"Local allegiaucc Ih 8uch ax is <lne from an alien or stranger liorn,
" for so long a time as he continues within the King's douiiiiiou iinij
"protection; and it ceases the instant such stranger trunsferH liini-
" self from tliis kingdom to another. Natural allegiance is ])crpi'tiial,
"local allegiance is only temporary; and for this reason, cviilintlv
" founded upon the nature of government, that allegiance is a iliOit
" due from tlie xubject. upon an implied contract with the prince, tlmt
-10 " so long as the one affords protection, so long will the other denieuu
"himself faithfully."

At page 42i», the same author, treating on the termina-
tion of national character, says:

" The native national character, lost or suspended liv a foreicn
" domicil, easily reverts. The adventitious character impoHeil liv
" domicil ceases with the residence from which it arose. An iielmil
" return to his native country is not always necessarv, nor even an ac-
" tual departure fron> the country of his domicil, if he has iictuiilly
" put himself in motion b<iiiiijiilr to quit the country x/z/f uuimn n nr-

Several of the American citizens— alleged to have heen
domiciled on the otiu'r side during this period, had flicir
faces in motion towards, and actually returned to Sati
Francisco and lived there; and Andrew J. Bechtel retnrni'd
to the United States and lived there, and resumed tiie na-
tional character of the nation of his original allegiance.
My learned friend Mr. Bodwell looks incredulous and
smiles, hut I.<3chtel swore to it, and so did Munsie.
50 The Commissioner on the part of the United Slatos:—
From your standpoint, that does not help you.

Mr. Dickinson: — I suppose your Honor means from onr
Btandpuint as to his credibility. But he never denied it in
the witness l»o.\, your Honor.

When we stand upon the oath of some of these genlk'-
men out in Victoria, our friends smile, and when we assail
their credibility they jue indignant.

Y'our Honors, I have found more satisfaction, on tiio
question of nationality and protection in this little vnlmne
^of Lord Chief Justice Cockburn than in anything e!s<- 1
n*fer your Honors to pages 12;{ and 124 of CtK'kburn. I
will, however, simply cite the cases as 1 find I have read
them on another point. I will mei-ely cite, as to a party
setting himuelf in motion towards his own country, that
his imtionality of original allegiance reverts. I refer to

971

I I

tlio temiiim-

sun' iiiiimii rt ri r-

(Mr. Dickinson's Closinn Ar^^iinient.)

Wharton's Int Ijjiw, as to tloniicil and national cliaractcr
revtMtin)j;(S»'c. ;VJ+, cl wr/. ), where Sir \V. Sirott anil other
authorities are citetl.

C'ockbiirn on Nationality, at page 11«. of a time heforo
the act of IsTo says:

" TliilH r(>Htri<-tiHl. it is plain thnt tlicofTcftof iiuturalizntiiiu inOroat
" lirituiii iH onlv to ri'iiiovt' tliH Ic^nl iliMabilitit'H of tlii> ulii-n, ami to
10 " jilaco liiiii, aH to (••>rtaiii minor political ri({htM ami an to civil ri);litH,
" on tlio Hamo footiufj; »•; the uutural nnlijcct; ami further, that the oath
" of allegiance takun l>,v him auiountH to mi more than a promiHu of
'• that uTieKiauce which evorv alien, while reHitlinK in the realm, iit
" lioiiml to romler, ami muHt he taken to carry with it the impliud
" roHervation. that it iw to operate no longer than while the party ro-
" luainH within the (jnoeu'H doniiniouH."

That was the condition precisely. His doinicil stands
now as that of a naturalized alien ii. England, and under
tile law, naturalisation as then provided entitled him to
20 take out denization papei's which bound him only so lonR
as he remained in the country. It applied tohini the law
of doinicil and local allegiance and gave hi(n some other
privileges:

" When abroad he is no longer n Huhject. On his return to his own
" country, his nationality of origin, ho far an thin country is con-
" cerned, would revive, and, in cbhc of war lietween the two countries,
" he might boar aruiH against Her Majesty without incurring, legally
" or morally, the guilt of ti-eason."

JO It need not be argued that a person who may have beea
injured by a nation cannot afterwards l)ecomo naturalized
or domiciled in that nation, and thus become a political
or civil citizen, or both, and thereafter invoke the aid of
the country of his original citizenship against the nation
of bis existing citizenship. And so the Convention pro-
vides. Article 1, that the persons for whom reclamation
may be made by (Jreat Britain must be persor.s who then,
at the time of the Convention (and as held in other com-
missions, at the time of the presentation of the claim) were

40 under the protection of (treat Hritain in virtue of citizen-
siiip, as above defined. Here again the incongruity, not
t(t say absurdity, of Great Britain's position as to Cooper
is manifest. I have shown to your Htmors that at .uiy
time bo could set his face honje wards if he wanted to en-
gage in this business. Cooper, a resident and a civil
citizen of the I'n'ted States since IS.H, with the courts
open to him as to an American native born citizen, enjoy-
ing the protection of our laws; without returning to his
cDuntry of original citizenship to present this claim, he

;oi«'inains a citizen of the United States, and instead of
appealing for relief for his alleged wrongs to that Ciovern-
iiieiit, or its courts, he invoked a foreign nation to aid
iiiin in recovering from the United States, without re-
turning to his country of original citizensliip even to pre-
sent this claim. The rule is undoubted universally
acknowledged that the recourse of a domiciled person
for injuries against the (tovernment of his domicile
is in the courts of that country, exceitt in case t)f discriii)-
iiiatioii. The principle is stated in Wharton as applied in

r«()urrelati<ms with (ii-eat Britain: " A citizen of the United
" States residing in Canada, whose property there situate
" has been destroyed auti pillaged by British troops, must
" .seek first redress from the tribu.ialsof the country under
" wliose laws be has settled (2 Wbart. Dig., Sec. 241, and
" see Sec. 22*5; Keuworthy'a Case, Mixed Commission,

<•!

r rM

■• I,

Fii-

r I'

U72

(Mr. Dickinson's Closing Argument.)

" 185«; Hally </ »/. Coniuiission, 1x71; s«'»' 6 Papers, iV.
" WjisiiinRton, pp. lit i'<i; Andoison's Ciise, /(/. ; Movd -
"Cast', Miitisli Agent's Hcioit, p. 12). Aslii'ivtotoic hi n
" in such caaes. tlicre can no no ground for intervcntii.n
" by tlH> country of original allegiance unless there be dj..
"crimination as against the person hecuuse of his imln
" ical nationality as between hnn and citizens of the (omi

io"tryof his domicile." At page Hit of our printed liriil.
" Ander.son's Case," as it appears there should he " .Mcx
ander's Case." It appears hy the autliorities liereinhit(iii>
cited on the subject of domicile that the presumplioii i-;
that a citi/e]i of a comitry has liis residence and Ic-.il
domicile in the country of his political citizenship, iinil
that the burden to establish domicile in any other count iv
is upon the iHjrson alleging it. The burden may be at oik !■
shifted by showing actual residence, as has been seen, Imt
if there he anything in the point made in the oppiwin;;;

2oargument as to Frank, the AbJiCans and Bechtel on thin
alleged don)icile in (ireat Britain against the conteiilinn
of the United Stales to the contrary as heretofore pri'.
senti'd. then the burden woidd certainly he upon (Jrcal
Britain to establish the fact of domicil conclusively.

On the record there is noitretenseof the proof of Frank «;
domicil in Victoria. There is no such thing as a ( ivil
domicil for purposes of trade iritlnnit residence. That is
civil domicil. I am not talking about the distinction in
time of war, as to which distinction I have read from

3oDicey. "Jiesidence and home is the supreme lest of
domicil." I am speaking of civil domicil but not doinidl
in time of war. It appears that he was a partner of (Jnt-
man, but there is no proof whatever that he was a resi-
dent of Victoria, as he was not. He had a trading dom-
icil and that would have hound him in time of war, l)nt
he bad no civil domicil. This is all there is in the record
bearing on lesidence:

"Q. In Niivoiiibrr, IHHH, were you a rositli-nt of Victoria? A. I lip-
" licvc I wnH; niii not iiuite iiositivc nliont the time I wont fo Siiu
40 " l'"rancin('o citbtT tho latter part of 18HH or parly part of IHH',1, anil I
" stayed tberi' Huvcrul niuutliN."

We have submitted in " .Appendi.x 2 " of our brief all
the testimony in the r(L;<rd, and every item (tf it bcaiing
ui>on the citi/enship 01 residence of Alexander Frank,
Andrew J. Bechtel, Dai iel MclA»an, Alexander Md-ean
and Thomas II. Cooper.

As to Bechtel, there is .10 conclusion upon his tcsti
monj', because he contradics himself directly by his sev-
eral oaths, and is shown hereafter under the hcnl

50"Carolena" to be unworthj of credit. Fnlsus in mu).
Jd/.sn.s i)i oiiniihn.s. His hotel business is no evideme of
civil domicil. The authorities are cited in my brief at foot
of iiage M*. Tn an affidavit he has sworn that lu' was iit
onetime a resident of California, and afterwards, in .111
alTidavit, as in his testimony here, coveting the period of
his attidavit in (-'alifornia, he swears that he was a nsi
dent of Victoria. His mere affidavit to the contiaiy
is not evidence for him, and his admission of residence
in California is evidence here. From the witness box at

<JO Victoria, throughout bis examination, he was duiiil) on
the (|U('8tion of his residence in California; while Mniisio
testifies to the time wlien Bechtel was living in California,
in corroboration of the admission by affidavit. His
ownership of real estate is no evidence of domicil, <'x-
cept iu time of war, and even then, says Sir W. 8cott, 4

ii7:i

(Mr. DirkiiiHon's Clo'^iti^j ArRunionf.)

lioliiiison, |la^M■ •_'.'»">. Tlu'ic is no fvidencc that fitlxM'
Kiiiiik iir Mfclitfl wtTU (luiniiileil in (irt-at Hiitaiii at \\w
liiiH'of til)' C'iiiiv<>nii()ii. Daniel McLean, as appears l»y
llie lecind. Iiecanie a natniali/ed citizen of the I'liitell
States on I tctohei' ;(, 1nm-_', ,iimI lie hecaint? such nnder
the Naturalization 'I'leaty helween (iieat Hiit.iiu
and tlie L'niteti States oflsTn There is not a woid

i(,Ms to his residence ni Victoria in the Kecord,
liut ther«' is a statement of his residence in San Kran-
cisi o in is'ti'. and, also the testin ony of Lnhhe thai haniel
MclA'an appeared at Victoria in |ss:! as one of the crow
of the American vessel tlie '"("ilyof San l)ie)j;o." And
furthermoie as shown in Ml-. Warren's arKmtient, wliat
had escaped nie m the testimony of Alexander Mcl,ean —
he swears to th. residence of Daniel McLean in San Fran-
cisco at the time of the seizures in lHM»-that should he
addeil t<i tlie statement in my hrief.

JO Mr. Peters: - 1 do not see how he could he in the Her-
ii]^ Sea and at San Francisco at the same limef
Mr. Dickinson:- lie was livinj^m San Francisco.
.Mr. I'eters: — At the tune he was at sia<
Mr. Dickinson: -Certainly, he had a home there.
As to Alexander McLean's American citizenship there is
nocpiestion: and while the testimony as to him is the
strouj^est in the KeconI as to any residence in Victoria at the
time of the seizure of the ships he was interested in, there
is n(M|uestion whatever that for a lonj? time prior to the

^nConvention. atitsdate, and ever since he has had his dom-
icile in the City of San Francisco. On the (piestion of hur-
den of proof to estahlish the relation to a per.son which
would enahle (Jreat Britain to make n-damation, it is set-
tled hy the decisions under all the Couunissions hereto-
fore referred to. So fai' as these (juestions (d" donucil in
respect of Americans ahroad are concerned, we have es-
t.ddislied their 'itizenship heyond (|uestion ami their own-
ership. It follows, that if (Jreat Britain shall shift from
the };idi;iid heretofore taken, that ownership in that na-

41. lion's political suhjects is concluded hy showiii}; a shi|)'s
register, and now claim the light to protect Anu'iican
citizens as aj^ainst their own country hecause of their
ilomic il la proposition never heard of i>efore except in the
argument herei, the change should at least start from the
pustulate as to them, that their domicil hy residence has
lieen conclusively shown, hoth at the time of the seizure,
and at the time of the treaty and presentation of the
claims. Thecpiestion remains as to the effect of partowii-
ciship hy ail .\mericau citizen with a British suhject. If

■;o Joint owners or partners, the whoU' claim must fad heyond
ijiieslioi). A recovery cannot m such case lie had for a
moiety hy the rules of internation.d or ((unmon law.

liut we suhmit, upon the argument heretofore pre-
sented, that no claim can he made for these American cit-
izens alU'ged to he domi<iled in (rreat Britain, even if the
fact of the domicile were shown. We suhmit that the
ilomicile in (Ireat Britain has not heeii shown as a second
mound: and third, we suhmit that no Biitish suhject
ildiniciled oil .American soil and slill remaining there

6(.)tlnoughout the time of his violation of the assertion of
•overeignty hy thel'iiited States in Bering Sea, remaining
ilii'ie since, remaining as a domiciled civil citizen then and
remaining there now, with ourcouitsdiuingthe whole time
opi'ii to him. can m.ike reclamation in an International
Court like this, under the protection of the sovereignty of
(ireat Britain, hecause hois a national of the United States
mill a civil citizen owing allegiance to that nation.
At five o'clock the Conunissioners rose.

■- 1 .J ,

.r''l^'vJ

'■ i'

CommiBsioners uuder the Convention of February 8,

1886, between the United States of

America and Great Britain.

lirnislativo Comiril ClianilM-r, I'loviiici.tl HuiMihl;,
At IliiliCax, ScpifiiilMT 2J, l^'.t;

At 10 :i(» A M. the ('((inmissiiiiit'is took their scal'-

TIh- ("uiiiinissioiifi' on the part of tin- I'liitcil Slal.s,
Bi'Coif yini prorccd, Mr. Dickinson, 1 wish to niiiilMii
tliat thtTc is a late ilct'isiiiii nf tli<< Su|Mcni(' Cuui I \\hi<li
tonchrs Ihf (jucstinn of tin- re^jislry of vessels inii|< r
statute. I havf not seen it cited on either side here, h
is a case wliich I am <|iiite sure will he hroii;,;lit In ms
consideration l)ef'ore I am ahle to careliilly examine tin
issue picsented lu'lore Us here, and therefore | tlmnjilil n
2a .just to mention it. If they sent it tome correcily rh,|ii
I'ortland it is the ca.se of Hrnne rs. I'nitt'd Slates.

Mr Dickinson:- Has yom- Honor seen itf

Tile Conunissioner on the part of the I'niled Slate- j
have not seen it lor som<' time; I simply know thai it i-
our ^uide in criminal cases to a certain extent, and it k
lialde to he hrought to my attention in a latlier m.nkrd
way hefore tinse matters are carefully t'xamined here

Mr. Dickinson: I have endeavored in the discus^idn ni
tliis matter to cite cases- with a single ex<eption wlii( h
3ol>ear diieclly upon tht> <|ueslion <d' international law. 1 1|
coinse as to municipal law and statutes, these should liiivc
no heaiinj; upon the i|Uestion of tlieelTectof the re^i-li\
in a mailer of internalioiial relations. 1 cited the !in;.;ei-
caK(> from. I think, the same volume which contains ihr
case your Honor refers to. That was a (|Uestion of jmi-
diction over the seas in respect to ovvneiship of vessels

The Conmiissioner on thejiaitof the Inited Stale-
You also cited a case in which it is held that a vessel is uni
.in .\meiican vessel under certain criminal law.
4c, Mr Diikiiison: You refer to the United States a-aiusl
Armisted.

The Commissioner on tile )iart of the I'liiled States;
No. it was a criminal case, the opinion of .ludp' Story.

Ml-. I'eleis:- I think it was cited in our Itrief.

Mr Ditkinsoii: It was referred to in our lirief as shiiu
iiij; that Hie ownership of a vessel determines its n.iliixiil
character I also cited the I'niled Slates a>i;aiiisl Ifuj^vi-

'I'lieCommi.ssionei' on the part of Her Majesty: 'I'li.il i-
reported in volume l.Vi, United States Ifeports; in veiii
5ooial argument vou seem to have dropped out the refeieiic.'
totliat.

Mr. Dickinson:— Certainly I am doing so asto otlier i iii
tions in our hrief in onler to sliorten tlie discussion. We
iiave condensed our vitnvs on international (|uestinns to
l.^u odd |»ages. I assume tliat your IIoikms will read lli.il
printed argument, and tlierefore I have saitl. in disciissin;:
tile law, that I am niferring only to tlie positions l.ikeii
where criticisms have Iteeii made upon our citations. 1
had taken special pains in the |>rinted argument not lo lir
6o'liscursive, hut to cite cases liuariiig u|)on inlernaliniial
cases only, and to cite only loading cases and cases ul
courts of last resort and of hin<ling antliority. I su|i|p i-r
they will all lie considered, even if not referred to oialiv
Tiiere is a single exception, however

Tlie Conunissioner on the part of the United Stales:

1*7

itfS il'MMWl

(Mr. Dickiiisoirn Closiut; Arguiiiuiit.)

It is pdssilile tliiit tin- liisi' I liavu in iiiiixl is riiiti.'il States
iigaiiist Hi'iiii<>.

Mr. i>ickiiisi)n: That is r('|»(irted in '.'d. Wallace,
lunior, a .V/.s/ I'n'ns case, lliat I nscil for illiistratimi.

Mr. I'«'l<'rs: We niinim iiIlmI mi tlic ca^c iil llii" I iiitfd
Stairs aKaiii.><t Hrinit' at pap- l> otdnr- n-ply.

'I'lif C'(ininiissii>ni'r on the pait nf tlic rnitui Slates:—
h Till' I'nited Statt's against Hriinc is the casi- 1 h.id in
mind.

Mr. Dickinson: -'i'licrc is iiocasc csialiiisliinj; that rcj;i8-
try is even jniiiiii Jhiii' t-vidrncc ^<\' title

Thf C'oinniissionfr on the part of the I'nitcd States: —
'I'lieic is no tlonhl that registry is not /iniiHi furii: evideiice
<>r title; that has hecn sclllcd.'

Mr. Dickinson: Hy intciiiational law it is not even ovi
ilence of nationality.

The C'oinnii.ssioner on the parted' the I'nited States: —
20 Tile United States against lirinie on the lace of it is op-
poseil to Sinclair c.s. The I'liited States.

Mr. Dickinson:- I will get the Sinclair case and distin-
gnish it.

The Conuni.Hsioner on the part of the I'nited States:—
My advices from Hoston lead me to iid'er that I shall
have the (piestion hefore me shortly to rnle upon. I'er-
li.ips lean get the lienefit of some light here. At any
lale, I thought, as 1 was liahle to he called upon to rule
(111 that case, 1 ought to advise each side in reference toil.

Damacjks.

Mr. Dickinson:- I now coine to the (piestion of Damages
and I have cited in my hrief all the cases from interna-
tional trihunals and ail the cases of courts of last resort
luaring i>n the ipiestion (tt |»rospective piotitsor prosp(>ct-
ivf c.itch as a measure of (laniages, to which access could
ill' had in the lihiaries. together witii the leading opinions
(if |iui»licists. Those that I have not set out in my hrief

4ulieaiing hoth ways will he found cited and discussed in the
authorities that I do cite in my hrief. I except the "City
(if K'ome " case, the original report of which 1 could not
tiiid and therefore did not cite in my hrief, hut after its
preparation, which was finished under the rule hefore the
l>l April, I endeavored to oiitain, and did ohtain an au-
timritative memorandum of tlie "City of Rome " case re-
feired to in the te.xt of Marsden on Collisions, and that is
now here. The other case which is not in my hrief is the
(a^eofthe " L'mhiia " in the Supreme Court of the I'nited

5i states, which had not heen decided when I made the
l)rief.

I had directed that this citation should he sent to the
liritish counsel and to hoth Conimissioiiers, hut hy some
mi-take it was only sent to one of the Commissioners. 1
(lirected to have a corresponding letter at once .«ent to the
I'll it ish counsel, hut that was omitted. That case should l>e
aiiiied to the brief.

Tin; Commissioner on the part of the I'nited States:--
I would like to put in the coimecting link hetween oral

'oaiiil the printed argument, and I suppose this case can be
added at the bead of i)age )»8

Mr. Dickinson: -Yes. If her Majesty's counsel would
;i(id at |»age 109 the case of the " Umhria," l*'.*; I'nited
States, page 4(»4, it will, with the "City of Home" case,
mmplete our citations.

Hit!

«j [^l.

I;-;

(Mr. |)ic'kiiis()i)'s ClnMiiiK Ai-Kiiini>i)t i

I hli.ill liist .nlilifss mvscit' p'lii'ially Id llie ilasn uf jm
tlioiiti»"< <iU'(l liv my fiU'iiilK on tln'ndirr snlf. oiit'.iili. ,,i
fiiHt's (Hcuiiiiij; on tli»' liiuli seas. 'Vit lliis i lass mav l.i'
nssij;iu'(l tin- rases wliicli liavc Umi cited liv niv le;iiiM.|
fiieiiil Ml'. Kniiwell. arising iiiiiler iIk* assertion nt eiiiiiien!
domain liv Stales; and the ease, al-o, ( ited Iroin || Mirlu
^an K'e|inrts, \vlii< h was an invasion liv a laiidloid nf n,,.
I<~| jiremises of his tenant : and all t lie other riass of i ase-^ |.,
theetl'ect. as eiled liy Mr. I'eleis, that tiitilie |irotits m,, «
coii^ideied ill damages to realty. The other clnss lii

rases to wliieli I call alteiilioii are th<' cases of |iei-iiii;i|
injury ii|Min lailioads. whereby the earning ca|ia<'ity i,| ,
|ieison IS impaired and evidence has heeii iiitrodn>'ed in
order to tix the damages to he awaided to tln' persun ~i,
injiiied III respect of Ins earning; capa;ily.
'I'hi> cla'-s of cast s is not in point at all. and cannot lie
in all injiiiies to realty, of coiirse, there isnodestnu-
lotion of the /('.s. no total loss (d' the Miiiij; injured. If jt
could lie conceived that a ship at sea could he pemii
iieiilly injiiied so as to he heyoiid the poHsihillty of lepiji.
then the rule iniKliI allacli, hnt that is an impossiMe sii|i
lositioii; she nii^lit then recover np lo her total value
lecaiise ol permanent injury to her earning' cap.Kiiy.
H.it. let us hear in mind that cases referring; to realtv .iie
upon the siihstaiitial principle that realty can only hi im
paired in value, not destroyed, and such cases are wiili

the principle (d the rule that you cannot ^ivi

-pertivc

3opi(itits as to personal property (h'slroyed. hnt inav ;;ivt
soniethin;; in the naluieof a denniriap' or damage-, jm
temporary or repaiiahle injuries to personally.

As to the ship that is temporarily ilisahled. yon may
^ive something in the nature of deinnrrap-, and ns to
realty that is iinpaire(i in value you never can destiov
it— you may };ive something in the naluieof ■,[ loss uf its
eainiii;; capacity, impairment id' piod will, and >o mi.
In Indh ca^is you apply the principle id' partial los^ .\,s
to a ship which may he destroyed, you can only j;iM. iji,.

40 value of the ship as a natural and le^al conse<|uence of the
As to the really, which can never he destroved,

injury.

yon are always upon the priiw iple of partial loss. As ti

the ship that is destroyed you are upon the principle , if

total loss. Your Honors will lind even in the II .Mii h.

case. C'hamller r. Allison, which is the leading; (.ise nf

anion, willful .ind malicious tort, and which wa^'

iiaind

(ir

hy your Honors" friend, the late Charles I, W.ilker, f
the plaintilf Allison, that the ri^^ht, not to recover fiiiim.
prolils, hut to otTer in evidence \y,[s\ protils as eviden. e nt
50 the injury to the realty as to its e.irninp; capacity w.is put
upon Ihe ground that the suhject matter (d' the suit was
realty, aiul that the thing injured w.as soinelhiiij; lli:it
grew out of it, to wit, good-will. 'I'hal is the hnrdeii <i|
.Indge Charles I. WalkerV argument.

And to he careful, even in that e.Mrenie c.ise. your Hun
(lis will lind in .Judge Christiancy's judgment, delivering
the opinini) of the Court, that he excepted as sonietlijn;;
that should he heyoiid the riih;— the cases of peixmal
property th.it could he totally destroyed- and he d.-iiihs

'^tlui capture of a ship at sea, and classes them all under t
head of trover ;uti<ins or cases whore there is a total i

nil'

version or joss

lese aie lieyoml the rule, even m ca'^e.s
of willful tort. The rule of d.images as to such cases, as
he excepts them <tnt under the single general term trover

tioiis, is that vol! cannot even receive evidenie, f

sav

877

(Mr. l)ickinsnii'8 CloMii); Ar(,'iiiui'iit.)

■lothiii^; of iiwaidiiiji ilfimni{«'s, fur fiiliin- prnllfs of jhm'
niial |MoiM<rlv. 'I'lic only (lainaurs lo he nivcii is |Im<
\ aim* of (lit' |>io|M'il V, Anil so lor nitMlircaiilidn still, ho
IS not to srt'Ui from his nt-nrral statcint-nt to lie in nui.
ilii t Willi the nnivirsal ,jiiil^nM>nl of tlio world, tluit fvi-
:. nt'L' of |)ios|>»'rlivc |M(iti|s ami |Miis|ii'rlivt' earnings ran-
■ H.| lie aililniril in i('s|)(i| of r;iiiiin;;s of vessfN ,il sea,

icii'' t'Xif|i|s all that ila-s of cis.s s|iitili(ally from tlif inio
i-i (hat case t'lilirrly. ami Ihcii In' ilisjiosrs of my frii'iiil's
..iliiT conli'iilioii on till' llii'oiy of intriit as atr<'itiii;i tll(^
.|iiistioii of ilamap's. in harmonv with lip' (loctriiii!
i|i|i|yiii^; here licvoiiil (|Ui'slioii. in ihcsc words, w hiili aro
in his o|iinioii. I read tliim tiom the head-notes, hecaiisn
lli-y are there staled, lnit tiny are tlu're e.xailly ipioted
(loin his opiiiioii: " Whcie suit is liiciiij;lii for a tiespass
' (oniinilled while the delind.'iiil wa^actiii^' in ;:<iod faith
" .Old under an IioiM'sI heliel that he had i lej^- il ii<.dit to

.'( <lo the act <'oni|>lained of, the plaiiitilV is eiililled to
" lecovet only tlic iit'tnal d.inia;.;e^ sustained hy hiin, and
■not damages of a |innitoi . ■■ exemplary char.ictei''
HI Mich., .■>4-.'i. So 1 don't ear. whether the rapture in
uillfnial se.-t. If till" proper! s- j-; taken and is a total loss
I.I the owners, the rnle of daMi,,;;e laiil down in Ih.it casu
I- ilie value of thepropeit' hut I may .as Aell put this
III lli'le jlieolinert |on \\ it, iiatease. I*' it can he shown
tlial the action w.is Wiiiiton and i hat always m\o|ve^ the
i|iiistion of (■/■/'/ iiiiihfc soiiK till.!,": in the nature of

•,o«\.'inplary daniajje lan he {^iseii. lint never prospect ivo
|iiiilils. No coiPt has evei dreaineil even in a red ,i( I ion
III hanj;iii>^ npirii the question d' will|iiini-> oi' cnil
iimlivea ineasiiie of d.inia.ii.s liiviii;; prospective piolits.
A- tar ;is any court has ;;i .lie even n ie,i| est.il.' .I'tioiis
is I.I take tn'idence of eaniiiij; cipai-ii ■ and iis.' it in order
to fstiniate actn:il dama,t;.'s.

Next, the case of the snrni'on injnn i, on the London &
N.iith Western I Jail way. this class of casi-s asyoiir lion, as
kiiiiw is .s/(/ (/('((('/'/.s- ;ind there is no coiitlict as to the piiii-

.joiiple. The case makes an analo>;y to llie cuse of paiti.il
lii^s at sea, the imp.iiinieiit of can. i.e.; c.ipacity, of course,
.IS I -.in he reaiiily seen. It is imt ;i c.ise o| total loss iie-
caiise the man was imt killed. If he were killi'd, e.xiept
liv Lord CampheH's act and similar acts in our country —
ill. re can he no recovery for his (le.itli. Imt hecaiisc he is
injured .and his eitininj;' capacity is impaired we have
.i;:;iin the principle of partial loss and the measurement of
li iiiiau'es accoi(lmjj;ly. It is a r.idically ditfereiit principle
ti'iiii that .applyiiifi to the conversion or tortious destriic-

;i.ii.iii of a vessel. It is (piite a ditfiient thiiij; from a total
j.iss of a vessel, with the universal rule applvinj^ as jn all
.Klioiis that the measure of dam.i^es is s(dely the value
of the tliinj; destroyed. ( )f coiiise. in the cases of eminent
iloiiiniii, to which I will refer directly the case is put
-■(|ii,ii'eiy upon tills principle that under eminent domain
where property istak*'ii for piihlic use— the law recpiires
that full comptuisafion sli.all he made, and the courts of
(Iiv;il Britain an' the United States hold that as to the
imit th.it renmins— not destroyed, hut ini|>aiied — it is

6osiiliject to the rule that full "Oinpensiition sh.all he made,
Mot (inly for the real estate uctually taken hut the iinpair-
nuiit of value in the remainder that is not taken is to be
jiaiil for.

Ill any case, except under certain cases of contract, the
expected speciflc profits cannot be recovered for the loss

III

978

(Mr. Dickinson's Closinj; Arguint-nt.)

of tilt" nso (if tlie v»'s^('l. Tiio »'X|tect(Ml speclHc piotit- k •
tak«'n into ciinsidt'iation tVoni tin- eiiinin^ <'ii|)aritv ot lii.
vcss«'l in order toari'ivt> at a pi'opcr nu-asnif of tiani.i^i' m
tilt" n.itnit' of iK'munap'. lint in no oase can tlw r\
pt'ctcii spccilic loss he given in the case of partial inim \
I rvlVr to st'ction I'.tti, page I'sii, of Sedgwick, Daniij;.--,
Mil edition —

'• Itut I'xpci'tt'il Hpocirti- prolltH ciiiiuot ho recovcrod for tlio liis< ,,f

IISI' of tlu' VONHl'l."

;fl

il i

It is merely the loss of earning power during the jmi ii„|
she is laiil up, and the matter of piotits is sometnnes (mi
iideied as a matter of evideni'e, l)ut never given as iMdlii-.
even in cases of |)artiai loss. My friends iiave cited in
their aigiimcnt in print -and again in their oral aiuu
inont -writers on the Code Napoleon as to the nieasuiK of
damages in this International Court. French writers of

-othe civil liiw. wiiich is tlu' parent of the Code Napulcoii.
are also cited as to the rule (d" damages. Hut tiierc iN hd
rule of law as to damages to he awarded in c.ise of toit liv
tlu' ( ivil law at all. and the civil Iww can cut no figure iii
an international court, when the law accepted liy lioti)
nations is the law of nations for that court. The dis
tinction. for the i ule of damages, hetwei'u the rule under
the Civil L,iw, the Code .Napoleon and oms. you will tind
fnllv discii.ssed in Sedgwick's latest work on l)amages.
Aftei' a full review of the rule of damages under the

3oCivil Law, your Hoiiois will find hnn quoting from Iho
same puhlicists and w liters cited in our friend's hrief. .At
pages 24 and 25 et .si'tjiiihir, the learned writer says:

" The I'ivil law. as iiitroiluct'd into iiiodi'i'ii Kuropc, sorms to Imvo
" ri'tiiiiH'il tho t'lirly fciitiircs of its (iriniiuii, in tlic ivs|iu('t of wliicli
" we iirt" now Kiii'iikiuK. luiil, instcail of laving ilowu anv tixcd or arlii-
" trary rnli', to liavc left tlic niattor vt'ry niiicli to tlio (liscrutioiiarv
" fonsiilcration of tin' triliunal wliicli haw I'ognizani't'of tlu' I'ansc, S(i,
" nniler tliis systi'in as cHtalilisln-d in Krani'c, and provious to tlio
" adoption of tin' Code Napoleon, dama^'os won' divided into intcrust
" and daniajji's {inlrrelrt ami i/<))iiiiiiii/rs-iiilrf<tsi. Inlfrrl answers pre-
40 •• (.JBcly t(i our interest, and is the nieusnre of dannvges intlii'liil for
" the lireach of a mere peeuninry ohlipition, as in the common oasis
" of hills and notes. Ih.mmiiiji's-iiiliTils correspond with our term
" dnninKeH in its apidieation to all other forms of action; and in this
" respect it is that the systenj ap|>ears loose and uncertain.

.Vfter layinn down tin' rul

regard to inti'rest, which, as with

" «R, is limited to a fixed rate, Domat says: ' Tlie other kinds of dani-
" ages are undefined, and are incri'ased or dimiiiished, at the iliscre-
" lion of the jud»j;e, according to tie! facts anil circumstances of the
" partn'uli.r case; thus, in the case of a tenant who omits to nutkc the
"repairs to » liii'h he is hound by liis h'ase. or of a contractor who
" does not jicrform his contract, or perf irnis if ill — in either case they
50 " owe an indi'tinife annmnt of (hinui:,es resulting from the default,
" and those danniges are differentia regulated according to the di-
" versify of the losses whii'h happen, tin" miture of the facts, and
" the atteinlauf cin'umstanciw.' And he illusirntcs these rules liy
" one or two cases as to profits claimed as loss, \. i.ere he says: 'It
" must lie left to the discretion of the judge to arrive at sonn- mcas-
" lire of compensatiou according to the circumstances and the par-
" ticular usages, if thi're are any.' .Vnd again: 'It results from all
" the preceding rules, that as ipiestions of danniges de))eud on tlie
" attendant facts and ein'umstauces, they must ho decided hy a sound
" discretion, exercised as well with regard to the circuuistau'ceM of the
" ca«e as to general princiiiles.'

" And so says I'othier: ' It is necessary to exerclBO a certain degree
" of moderation in estimating the uinouut of damages according tn
"the ])articulur case.' And again, 'Danniges urn to be ino '"rated
" where they would otherwise be excessive, by leaving the coniputa-
" tion to the arbitrament of the judge.' Ho again, 'Where the daiu-
" ages are considerable iu amount, the" should not be rigorously
" MsesBed, but with a certain degree of moderation. And again, evcu

.X)

!»(!•

I>'.,

(Mr. Dickinson's Closing Argumont.)

in cases of fraud, ' It niUHt W loft to tlut diHcrotion nf tlio judge,
evfu in i'a»i'H of fraud, to oxiTfiwo a ct'rtiiiii di'i^rct- of indulKouco in
HxiuK tlic iiinouiit of dikiiiuKOH.' Merlin uhoh Nulmtuntiully the Hame
lunKU»Ke ; liu HavH, ' It ix to 1it> obNorvod that tho law of JtiHtiuiau,
HO faran it liniitH exorbitant or «x<'t'Hnivt< danukK*'** to prt'cisolv double
the value of the thinj? in eontroverHv,. Iuih not the force of law with
tiH |and the ('ode liaH not incorporated it aiaon^ itH proviNioUH] ; but
the ))rinei|ile on which it is founded, beinn one of natural eiiuity,
Hliould be adhereil to, by moderating the daniafjcH wherever they
are too Kceat, by leaving; them to the arbitrament of the jud^e.'
»•»»♦»

" Our law dilTors very materially from all thene HyHteniK. liy the
" general HVHtem of our law. for every invasion of right thoro in a
" remedy, and that remedy iw iiimpeiisalinii."

Your Honors will stu' tlioit' is no rnlo at all Ikmv, and
1 Icavf tho anthoritics and citiition in my friend's Iniof
witli this icniaik, that the rnlo of damages in Interna-
tional Law has always heen the rule of damages under
^ ,the system which obtains in Oreat liritain and the I'nited
St.ites. and no Inteinational Court has ever laid <l(iwn any
other rule of <laniages. save that which ohtains luider our
systems. And I may say that, in all the history of con-
ventions hetwei'u th«' countiies, ,iiid of arhitr.itions, when
thetjuestion of damages has heen considered, as it has heen
in all. in the 1S.^;{ and 1S7I conventions, thelJeneva .and
Paris Arhitrations, no counsel on eith'-r side evei' hefore
suggested, nnicli lessct)ntended, that theCivil Law, orany
of its progeny in Codes, could furnish any criterion or aii-
.gthority.

Now, among the new things stated hy my learned
friends, is one that the case is ruled hy the decision of
the "Costa Kica" case, and I desire to state that the ap-
pendix to the printed Hritish argument in reply, assuming
to set out the case of the "'Costa Wica." does iii,t st't it
out. Let there he no mistake ahout this statemynt of
mine at all. In considering the " Costa UMca '" ciise, your
Honors will need to take the authorized puhlication which
n)y friends have furnished yon since thiM)ral argument
(•(unmenced. Tliey furnished me one of the earliest
(upies that could he ohtaiued, and it is not set out in the
appindix to their hrief.

Now I make this further slatement hefore the Court
tlial is to rule on this "Costa Wica '' case as an authority
which has heen dignitled in the argument hy every one of
my learned friends, that it is not an authority in their
f.ivor, and that it d(»es not ride prospective profits in favor
of (ireat Britain. I make Hie further statement, that the
i>siie of prospective profits was not hefore the uni|tire, as
jotlie Netherlands put their defenctMipon entirely different
gtoiiiids, mid did not even present, much less argue the
i|uestion of jirospective jtrofits at all.

At page 7<> of Mr. Peter's oral argument, and also in
Mr. Heiciue's argument, with reference to the capture of
tliis ship, it is stated in snpport of the position that the
"Costa. Rica " case is a great authority for prospective
catch, " Tlie amount of damages already given was much
" larger than the amount claimed, and therefore when
" we come down to the qiuntion of comp(>nsation, there
60" should bo no doubt left in the mind of any person that
■ the compensaticm iillowed should be .is full and ample
" as possible." My friend is mistaken again, because as
Hixinas I heard there was a decision of an International
Trihunal in the "Costa Kica" case, I obtained it, and I
vviinted to see whether an umpire, wherever he came

(Mr. Dickinson's Closing!; Aiguni(?nt.)

from, or wliocvor lio was, would rule on any exaniiiialinn
of llio question, tliat nrospt'ctive prolits were In |„'
awarded as dainajics. I find tliat tlie claim of dain.iL;. s
wiiicli (Jrcat Mritain iiroscnlcd. and from wliich sli.'
never receded, was for prospective catcii, and tliai Hi,
claim for the owners was made for flti.nm iss. lo,l , n-,
fitated ;it paj^c l!>of the full K'ecord. Tliat claim was mail,
loup as f(dlows:

£. H. ,1.

I,()s» 1)11 Hnlf of tlic voss»>l i>. IIM t> 1 1

LcisH of slinri' iif [irolits 10:i2l ii

Amount of c^xpt'iisfs I!,.")?? 1',! U

Totiil cliiiiii t'Ki.d'.U Is 111

The nmi)ir(> aclnally awarded, as siilticient indemilv cm
this sum, hut i'i.MMi. There is no mistake in lln.^,.
figures ;il all. The claim for prospective catch was

JO £in,;{i'4. The claim foi' e.xpen'^fs .done, which were (ullv
shown, was ,l';i,,"iT". The loss orr the vessel was l'LM;i:i,
makirr^ a total of legitirrrate claims .-rrrd orrtside of pros
pective pruHls of rre.rrly L'ei.ooo. The pr'ospective prntiis;
claiiired v/ere L'lo.:>i' I. the le,i;itirrrate darrrages over- t'.'i.ono,
and the airrorinl awarded the owners of the vessel lii.sihC
Th»'rt! is rro mistake ahorrt it at all.

'J'lie ( 'ommissiorrer- on the part of the I'trited Siirles:—
I looked the case tlirorr^h, and I coirld not tirid that tiie
quesiiorr was raised, hut does not the award to the cnu

3oiir(licate that theic was sotrietliirrg irr Hie way of prosprciive
profits?

Mr-. l)i(-kiriscirr: No, yorrr- Honor-; 1 have exairriried Hie
Kecor-d for- that prrrpose with great (-iire. The casi' ha-;
been dignified hy every (ourrsel when on his leit
on the olliei- side as a new dep.-ri-tur-e. arrd an ;iiilhor-it v on
th« (pieslioii of pr-ospective catch. I had e.\arriiiied the
case hefore. and 1 have e.xamirred it with gr-eat car-e again.
for- I want to distinguish the ca^e so that it slr.ill riot go
upon this Kecor-d as having a he.-iring uporr this (pie-tioii

40 at all.

The ("oimnissionet- on the jiart of the rnite<l States: f
under-sl.rnd you that the aw;rr-d itself does not show tli.rt
tliei-e was ariythirrg specifically awarded for- jir-o-^peclive
catch.

Mr. Dickirrson: Certairrly rrol. and furlherniore, (oiiM
not he, lie(-.-iuse the legit irrrate d.uiiages outside of tin; pr-os
pective (-alcli wei-e over- .l'.">,(»(Mi. and the award was oiilv
l';i,NnO. That is as to the owriers. .Now for- the (-rew, to
which your- Honor- has (-ailed ;itt<'rrtion. 'I'he statement

5ois made firat the total pr-olits would he, less expense-,
L'2<».(;4H lits. till, 'i'hey dediK-fed advances to the (-rew so
that they should not irri-lude in the prospe(-tiv(! (-aldi
gross fr-eight, t'H-_>(; l:>s. ."id, and the total of the pr(i>|iertivu
catch estimated for the purpose of arriving at the (lairrr of
the crew whiih is pi-eserited, is l'l!»,s'Ji' 7s, Id,

The ci-ew among therrr would h.-ive got approxirri;itely
OIK! half the profits less the c.apt.iin's share; the crew
would have received tH.ndo. and that is the claim made in
the specification of the items, tor- the (-|-ew. in the claim,

Co and the only claim presented hy (Jreat Britain. .Now
what did tlie arhitiators do< The claim of (treat Hiitaiii
was as stated that each of the crew should receive a sinn
proportionate to his rightful sliaro of the anticipated
profits of the voyage, after deducting these advances.
The umpire, in fact, awarded .t:i,(iOO to the odicers and

(Mr. Dirkitison's (^losiiiji; ArLcmncnt.)

. ii'W instead of Is.udit. hikI the i'sjHiu, hfjii' in niiiid. was
stimatcd after tlfdiirtiiiK the t'xpiiiscs ot l'L',7.")l, and
.uivanct's tS'_'(; l-_>s. ."id. Tlit^v aic tln' cxin'iiscs
III this lu'lialf wliitli aiv iifcts-aiily deducted to as
i.itain the net iinispective pntlits. Were prosin-ctive
piitHts given hy tlie ail)itiatnis; The award was I'l.C.iiuto
ilie ollicers and ciew. Ndw cotniiig to tlie cajitain lie

1,,'lainu'd his loss of share ni prolits Li\n(M» expenses, in-
( hHJinj-' advanees and travel f.Miii. Kor arrest ami iin-
jiisoiinient, indignity, mental |).iin and anxiety sntTered,
injury to his health an<l credit, and loss of tinie. L'.'>,"(i(»;
iiiial. t'7."><>u. The t<ital award given to the captain instead
,it L'T. .■•<"> was l':'). l.".o. Now what was the claim of the
r:i|itain for; In addition to the loss of prospective cadhf
\\ hy he wastreated with inhmnanity. may it plea>-e your
Honors. L'niike the cases of the crew of tiie " Thornton "
and '• Onsvard." this man was conlined as a common felon,

:, dragged thiongh the streets, placed in jail with a man who
was diseased, in a hare and lilthy jail full of vermin, with
ii(( conveniences whatever, and that was the hasis of his
largest claim as yon shall see. (if conrse he was nlti-
iiialely dischaiged. and in this case it was admitted hy the
Netherlands that the original arrest was without the least
color of right. It was conceded that for the investigation
he might have heeii detained, hut the gross outrages put
ii|Hin him in the course of the iinreasoiial'ledetention were
made the grounds of his principal claim, and the principl«>

;,,;i|iplying thereloie was that the arrest was ;i tres|>ass ((6
initio. Here is the evidence referred to. and even this
record is not as full upon the testimony which w.is .id-
iiutted on the (juestion of prosptntive profits as it should
lie, liecaUM' there is one appendix of evidence ^lill
omitted to which I shall call attention in a moment.
Tiiis is among the statements of how (,'aptain Cai-
peiiter was treated. He was first arr«'sted, and then
l.ikeii over to a remole prison hy sea, curried in
a ship along with coolies, ami so on. and then as

4()appearshy tlie declaration of t'harles Mernanl, ho was ini-
|iiisoiied III a cell where native convicts were contined,
ami an inscription over the door of the cell was to the
ilfecl that it was used for coiideiiin(>(l Kiiropeans. There
was another occupant id' this same cell, a cohjred man on
the sick list. The prison w.is iiotoiiously nnliealtliy.
which as stated was to liaveheeii expected in places where
vever.il linndred native convicts are contined with no
|iiiiper sanitary arrangements. The cells were on the
^iiiiind tloor. exposed to the northwest monsoon, and

;iiuere constantly damp. "Carpenter," says the witness,

• when 1 siiw him for the first time on his arriv.al in
" Macassar, appeared to he in good health, hut on his

• elease he was a changed man as regards health and
">tieiiglli, the change for the worse heiiig due to his
" i-eiilineinent.'" The prison was notoriously unhealthy
as i-i shown hy the l)utcli authorities now taking steps
III provide hotter accomniodatioiis. * " The ipies-
" tioii of the unhea'thy condition of the piisiui has fie-
" i|iieiitly heeii ltroi:;;ht up in the local pre>s, and herri-

' '■ lieiii, a disease coiiimonlv attrihnted to had sanitary
" eiPiiditioiis was very |»revalent. It fre<piently happened
"lliat prisoners sentenced fin' short terms are discharged
" -ntViriiig from this complaint, which causes a heavy
' lierceiitage of mortality amongst its victim^."
Now Carpenters own stat»'iiieiit is appended, showing

1 1

1^:!

i 'It

(Mr. Diikiiison's C'losinj;- Argiiiiieiit.)

liow he Wits treiitt'd; all this was not <lt>nie<l. Kiuin l.i'
giiiiiiiig to I'liii ho was tnatcd liko a t<iiiiiiioii felon, wis
|)Ut ill a i'«'ll as a coiKltMiiiH-il man. with an iiisii i|iti,.{,
over ihiMlocir tlias it was a plaii* tor thf (.■ondciniitMl .\,,u
tlu' .Netlu'ilands picst'iiti'il no aifiui icnt on llic (|ii.-ti,in
of |)i'os|it'('tivt> catch, hut ahiimlant (>v:(l(>nci- was |iicv,.|ii, {
on the |iart of (Jrcat Hritain as to the loss wIh( h w ,,
losullVri'd hy reason of the ini|trisonni('iit of Car|i«'ntt'r. .inil li\
the ship ill prospi dive protits. and the L'lnpiie savs, p,i>v||i_.
on t his (piestitiii of tiie iin|)iisonnieiit of Carpnitei in n^
proper lieariiiHas wellason the claim for prospect ivepi, .lit .

" Whcrunn tlif trtMitiiH'nt to wliifli Mr. CiiriM-iitiT wits sulijiTti .1 m
" prisiiii lit Miifiissiir iippiMirs to In- uiijustitliililt' in view of ln^ Imih.'
" tilt' Kuliji'i-( of II I'ivili/i'il Stiiti'. wliosi- (It'tciitioii was onlv a |ii-..aii.
"tioimrv iiit'iisnrc, itiid tliiit, consoiiin'Utlv, this tiviitiiii'iit I'lititl.- lum
" to a tail' i'oni|)iMisiitioii;

•• WliiTcas tlic uiijuslitiiiliic ilt'tt'iition of Cniit.kin Cariifntii- (huvi ,|
" liiiii to miss the lii'st |>»rt of tlic wliali' tisliiii^' s)>aso]i:
2U •• Wlifivas. on tin- other liiiml, Mr. ('arpcntcr, on lii'int; srt fur. «a>,
" in II position to liiivr rt'tnnu'il on lioiml tlic ship • Costa lijia I'miK.!
•' in .lanniii'v, IHJt'i, ut the hitcst. and whi'iviis no concliisivi- ]iiim.| has
" lii'i'M iiroiturt'il liv him to sliow thiit iif was ohli^cil to h'uvc liis sl,||,
" until April, IHitti. in the port of Tcrnatc wiclioiit a master, or. ^tiH
•• less, to sell tier at a roiluci'il price;

•• Whcri'iis tlic owners <ir the ca|itniu of tlie sliip licinn; iiii.jrr au
" ol>Iij;atiou as a jirci'antion iipiinst the occnncnce of ■ome inri.lini
" to the I'liiitaiii, to inalti' provision for liis lieiiij; repliu'cil. tlic iiiali'
•• of the 'Costa i{icii Packet ' onuht to have liecn tit to taki' tlic lum.
" maiiil and tocnrrv on the whale fishiiij; indiistrv;

" .-Vnd whereas, thus, the losses sustained liy the propiielois nl tlic
JO ■' vessel ' Costa Kii'ii Packet.' the olllccrs, and the crew, in coiisc^niiihc
■■ of the detention of Mr. Carpenter, are huI mlirr/ii //,, „,...<>,,,•,; ,,,, >^.
" niiti.t'' tif llfs jtf'Of'iniitfti'ii ilfti'titiiui :

" Whereas, in so far as the indeninitv to lie paid to Captain Ciupni
" ter, the olllccrs, crew and owners of the vcsstd 'Costa Itica I'a.kii
" is concerned, the documents produced, aiul. in particular, the i\.
■' Jiert o|iinion to which recourse has heen had at Ifriissels. dn „.,'
••/iiiiiisli tie' iirrissiini f/i>mr,'is for tixiiiK the amount, etc, "

The e.xjierl opinion mentioned here hears diiecilv mi
the ijiiestion of prospective protits, ;in expert niiininM
wiiiih is not enihraced in the Kecord as furnished, hut ji
4'Jappeais hy coiite.xt that an e.xptMt opinion was t.iki n lie
s;iles the testimony which is set out, of what wli.ilin-
protits could h(> made hy tliis ship, and had heeii in nli
Foi' instance. Mr. Carpenter stated in his testiniom . inni
there is almiidant evidence upon that point, thai llie
capliiieof whales depends upon the skill of the otlii ei>.
It reails liku a paj^e ot this case hefore you. He sa\s:

" The capture of whnlus depends upon the skill of the olllccrs, an,!
" oven if Youn>; had had the necessary knowledge. li< " ' Init on.
" otlii'cr to assist him. This would liave ciialiled onlv one lio.u to liavc
3*-' " lieeii hiwercd, and it would have lieen most dangerous to attack a
" Hcliool of sperm whales with oiilv' one liout, ISesidcs this, Vomih'
" hud not at that time a forcijiii-^'oinn ccrtitli'iite of conipclcncv, aiul
" could not he examined in Ternate, and I did not feel jiislilieil iii mv
" duty to the ownorw in even sendiunthe ship to Mueiissur in chart;ciif
" Young, "

We have the doctrine of aveia^'' ■'Hid all ahoiit Ji jiis!
as ue have here. Tn alio' her place it is uio(,.(| and sd nut
UH to the niiiiiher of whales they could have taken, ami
which they were prevented from taking, and they claiiin li
^'O these prospective protits as tin? necessary consoipieiicent ihe
acts of the authorities of 'I'hc .Netherlands. For iiistam. ,
referring to the evidence of Jkiishach, Carpenter say>:

" It is ipiite true that I told him that ou one voyanc I had rc;ili/,'.|
" a profit of jCH.IKKI, hut this was olitained iu the course of ahont inin
" weeks, and was not the result of u full whaliug cruise, "

t)88

Ki'iiiii 111'

f'floll. Wis

iiiMTi|iii.ii
lied .\..\v

II' (|llcs| iiih

s |in'>-i'iiici|
uliif li W.I-
iter. Mini li\
ivs, |i;i>-ni-
icllttM- ill it-

tivclHMtil .;

Hlllljcctl ,1 111
1' nf 111- liilln;
>lllv 11 |il'.. ■un-
it ciilitl. - liiiii

'IH'iilfr nin-i il

t; sft ficiv Wil-
li Itii'ii l\i> K< I
sivr |iiiiii| lias
leave lii- -liiji
Ulster, cir. -till

eiiij; iiiiili'i- an

•iniie iiceiililit

lU'ed. tlie llliltr

tllke tile rnlii-

|>riet(ils iif tlie
ill e(iliM%|\ieniT

Hfi 'SS'h't/ • iTSt^'

'ii|>tiiiii ('lU'iiin-
1 Kieii Tu.-ket

tlellllir. tlie ex-

riissels, ilii ,■■■■

(iilTlllv c,||

X'I't n|>i||inl|

slicd, lillt it

S taken lie

lilt wiialiiii;

llCt'll III llle

tiiiiiiiiv, aini
It, tlial the
tin- nlliiel-
ic sa,\s;

lie oIlieiTs. an!
■ ' iMit en.
lie iiii.ii te Imve

Ills t>> attiii'k a
les this. Vieiiii'
)lll|)etelle_\ , illKI

jllstitieil in lliv
tsar ill eliar;;e('l

aiiiitit ii Jii-t
1 ami set Milt
(' laUeii. ami
tlicy claiiin il

'(lUl'lllt'llt the

Km- iiistaiie. .
liter savs:

!• 1 had reiili/.'.l
«■ iif almut niii'

(Mr. Dickinson's Closing Argument.)

Ho was ntiitendiiigtiiat i'M,(»tMi was too little. Tlu-y had
put ill some toHtinioiiy tliat lie iiad ixfore said that tiie
result of a whaling voyajj;*' was ahoiit t'H.ood, whereas on
this heariiijj; he contendeil t!iat it was very niiuh more.

I coiitiiiiio reading from the award;

•' Autl wliiTt'iiH, a Hiitliciont iiulemnitv will have to he niveii tlioin hy
" grautiiiK tho Hum of il'.i.lM to Captain Carpenter, the sum of tl.tMlil
1,1 " to the ottleiTM mill erew. and the huui of jI;;5,M()0 to the owuurs of the
" vessel ' Co»tn Kii'a rueki-t," "

For these reasons,

" I (lechiro tho Oovcriiinent of Ho.'- Majesty the t^ueoii of the
" Netlierlaiuls responsilile, and I couHeiniently fix the iinicniuity to be
" paid at —

" The Hum total of Ct.l.'iO to Captain Carpenter.

" The HUm total of .tl (100 to the ortieers and crew.

" The Hum total of X;j,S(H) to the owners of the vessel 'Costa Uica
•' I'aeket.'"

"' Now, if 1 understand Kn^lish, that is a decision against
lirospective catch, on the wcll-recogni/eil old rule that
tlu'y are not the necessary cons('(|iiences of the tortious
act, and the other and chief and familiar {.iround that
such damages cannot he estimated. That is the ■" Costa
Uica" case. That is the authority to change tiie iini
versal law as laid tlown hy international tribtinals and
courts of both nations. The chief position taken hy (Jreal
Britain in the case was, and I (piote:

^O "Just autieipntioufl being entertained of tho profits to he derived
" from any whaling cruise was the I'hief iudueemcut for undertaking
" theeuteriirise."

The question of jjiospective protits was clearly set out.
The British a'gumeiit in the "("ost.i liica " case is inter-
esting in a great many ways, in its statement of the tin-
iloiihted rules of international law. The (piestion of will-
ful intent isdiscussed in the British argument and itsettect
upon aggravating the damages. Tlieciuestiuiiof the juiis-
dictioM of tlio State on the high seas is discussed. The
4" learned counsel in the "Costa Kica " case says:

" In ships on the high seas no one is subject to anv jurisdiction
" but that of his own country or of the country ti> wtiich the ship
" belongs."

Again, from Mr. Justice Stfuy. (pioted in the "Costa
K'ica " case:

'• The laws of the sovereigu rightfully extend over persons who are
" domiciled within the territory and over property which is there
•■ situated."

Again:

"The laws of every nation bind of natural riitht the projierty situate
" within its territory as well as all persons resident therein."

And finally, I am under great ohligations to my learned
friends for the "Costa Kica "case in full, and heg to make
my acknowledgments for it.

And now, may it please your Honors, 1 am going to take
(ii)iiptlie oral argument ()f my learned friend, Mr. Peters,
ill which he returns to his position: that the (Jeueva
Triliunal awarded prospective catch, or something in lieu
of iirospective catch; hecause he states siihstantially in
liis oral argument what he stated in his brief in chief.

At page SU of my brief, where I quote from him, and I

III

\>i

<»n4

(Mr. Dickinson's Clusiiig Aigiuncnt )

have conipartMl the statinient witli tlu' statements ni.nlc
here Ity my leaintMl friends, notahiy hy tlie learned senini
eoiinsei for Her Majesty, lie says:

"A rcfcrciH't' to till' id-iKM'i'ilinns lit'fort" tlic (icnova Arliilnitu u
" will hIiow tliiit lih It iiiitttiT of fuct. iiltli(in);h tliiH general i>i'ii|H>Kitiii||
" waH laiil down in the award, a hiiiii in litMi of immppctive proHtw was
" allowed to the (iovcrni.it'nt.

" Hv n-fcriMici' t>) I'rotorol Xo. 'i!( it will a)ii>i<ar that tlio awiinl wns

tina'lly iiiadc niion the basis uf allowiii),' a sum cipial to 'J.') per cciit.

of the valni' of thi' vessel and onltit ill lieu of prospeetiv

this sniii anioiiiitiiiii in that ease to J^lWH.dOd. "

eal-.

We liave said in our Itrief: "'riiis is a strikinj; ei loi (it
our learned friends.'" and we again challenge that slate
inent in their hriefand in their oral arginnent here. .\-

froni the natnre of the awaid. and after all tl

le coiitn

versy whirji ocenrred over the Sta'inpfli tahles in I'lcitin ol
•_".». some seven or ten days later, and when they iiijlv
2o<'<'nsideied it. the (ieneva Ai hitr.itors decided that they
coidd not award "(in;/ sum" for piospeclive eatcli: hi..
cause as the liarned aihitiator in the '"Costa IJica

(MM'

said, there is no method of measurement, and as all tl
cases say, hecanse of the arhitrary ride that you cannot
meisnie prosjiective injuries. My learned friend still cc in-
tends that (ieneva lield otiieiwise. notwithstaiidiii;;- I liat
that liihnnal of arl)itration used this langiia};-e:

'• .Vnd whereas prosjieetive enrninKs eannot pro])erl_v lie made tlip

" sulijeet of eomiii'nsation inasmuch as they depend in their nature

30 " ui)on future and uneertain eontin(ieneies, the triluinal is uiiaiii-

" niously of opinion that there is no (;round for awarilinj,' to the

" I'nited States any sum liy way of indemnity under this head."

That langnaf^i' is found in Protocol ;il. It is tiie
final dtH'ision on the (|iiestion of prospective ])rofits, und
uotwitlistainling that languaj;e, your Honors are asked
to tiii<l that the (ieneva Aihilratiou (hd award smne sum
in lieu of prospective catch. In the sen.se my leanu'd

friends use •' in lieu of.

as meaiung in place (

'f," I

iro-

pose to show your Honors heytuid the shallow of a duulit,
'^^outside of the citations which 1 have made in my hrief.
that there was nothiutc further from the minds uf Hie
(iene\a trdiuual. than even the consider.it ion of prospective
catch. And I propose to show that the words " ni lieu
of" ap|)earing ii the verhiage of Arhitrator Cockliiinrs
coinineiit were words which apply not to the rule of dam-
ages, liut to a lule of plain, piimitive. primary Kngli-li
coin|)iisition of the old giainmar school.

This is the way it occurred What led to the Sta'iii|itli
estimate in i'rolocol No. -'!• as found in the 4tli papers le-
latuig to till' Tieaty of Washington. ])age 44^ 'i'lie thing
that my learned friend pins liisfaitli on now. is this Kiii^-
lisli composition. The Lord t'hief Justice of Kngland, in
criticising Haroii Sta'in|tHi's tahle.s, says:

'Add to tins Mr. Stiemptli's allownnei; iu lien of prospective catch
•• one vear wanes ^'iMK.IHMl, and twenty-tive jier cent, on the values of
"the vessels, »-t()0,lHMI.'

I shall show you how ihat came ;ihout and why the
words "in lieu of" were used hy the Loid Chief Justice.
Your Honors will find liy Volume '.\ of the papers relating
to tho Treaty of Washington, jtage 57!i, that the liihnnal
uf nihil rat ion on consideration of the tahles of the United
States wherein they claim for the |)rospectivo catch of the
whaling ves.sela $4. yn<i,:i(i-J. ill", askeil the Counsel for the
United States to prepare tables eliminating tho item of

JtSS

(Mr. Dii-kinsuira ClusiiiK Arguiuent.)

])rospective catch, and saying to the Anioiican Counsel
and agent: " Thero is an indispositiun to take; up tliis 8ub<
ject or to allow piospsctivn catch; give us sonm f aides as
to what you will claim in lieu of prosjHJctive catch, or show
us how your tables will look without prospective catch in."
1 am very anxious to make niy.selt' cle.ir here, liecause
the matter has been controverted and is still contended for

I by my learned friends. In the original tablesof claims pre-
sentt'd by the United States, the Americans did not, like
our friends her*', when they diiim prospective catch, or
as our English fiieiids did at I'aris, put in prospective
catch together with wages and interest added; but when
the Americans put in prospective catch at (ieneva, natur-
ally they did not also charge for wages of men. because
pi (ispective catch to be allowed at all nnist be net. There-
lore, when the American coimsel put in their claim for
prospective catch at (ieneva they had not inserted wages

20 of crews, itc.

In the British sclu'dule at I'aris, they claimed not only
for prospective catch for one year and two years and so
on, but also for the w.iges of men during the same lime,
and also for the provisions (just as Munsie did at N'ictoria
when they started in with the Hritish case i and also for
interest. But the American (iovernment was warned at
(ieneva that prospective catch was to be thrown out by
the tribunal of arbitration at (ieneva, and it was said to
tliem: "Now, make your substitute. How will you

30 present your claim if we eliminate prospective catchy"
This all ajipears, your Honors, from the citations to that
recoixl.

The .American (iovernment, or the agent of the Amer-
ican (iovernment, presented coini>arative tables on the I'.tth
August, 1H7'2, in compliance with the re<|iiest of the
tribunal. Your Honors will see what they say at page ^>S*),
\'ol. 3, papers relating to Treaty of Washington:

" III lU'Pordancc with tlic sufi^Jt'stioiis of hoiuc of tlii' arhitriitors we

•• liiivt' oliininiitiMl from tlio tallies the claims submitted iu favor of

40 " wlialing vessels for tlii> [irospective eatcli, the aiiiouut of which

" would l>e #4,(M)'.t.;t()'.J.r)(l, lint we liy no means intend to withdraw

" these claims or to intimate that W(> do not eonsider them just."

" On this subject we refer the arbitrators to the note alludoil to at
'• the close of the American arjjument. Should the Tribunal share
" our views, the claims for injuries sutVered by these vessels should be
'• ))ro])ortioiiatel.v diminished. In ease it should not share our views
" we should ask it to (iiant us, as an ei(uivalent, interest at the rate
" of '.i.") ii.'r cent., interest on the value of the vessel and eiiuipmeut."

It was not, your Honors, 2.'> percent, on the vai'ie of the
vessel and ecpiipment. but interest at the rate of L'.'i percent.

,11. Mr. Sta'iuptli made an error on this when he came to pre-
pare his tables. The American counsel when preparing
llieir tables, without prospective catch, as requested, page
."is;{. same voliune, take their lonner tables, add the wages
of 2.') men for ;^ months and •27 men for 4 months, and
so on, vessel by vessel, but deduct the prosjtective catch
item by item, vessel by vessel also. They said: If we do
imt have prosj»ective catch wo nuist now put in the wages
"I the men which never appealed in the claim before. \ ou
will find item by item that the vessel iu ri'spect of which

(lotiiey claim for prospective catch are only whaling vessels,
and in remodeling their tables at the retpiest of the arbi-
trators, they deducted from their original tables the
amount they charged for each vessel for prospective catch,
and they added beneath the wages of the men which
were not charged for before. And so it api)ear8 through-

i'i

!■ >i'i

I, ■ I

'I , I

(Mr. DickinHon'8 Closing Arguiuoiit.)

out the detnilH of the claim for each veHsoI. Tlicv dc
ducted tho rhiiiu for the bieakiug up of the V(»ya(ir df
certain vessels, hnt tlu'y added the wagea of tlio nitn (u
the remainder thus found. For instance, in the "('un-
cord" wise, they deducted the sum charged fertile hicik
ing up of the voyage, hut they added the wages of :',s
men for seven months. Then they followed what had hccn

losnggested hy the report of the British Board of Tiadc
Connnittee, that, as to such whalers, not those totally
lost hut as to the whalers for the most part that W( re a
partial loss (dismantled, some sent homo and some de
stroyed or used hv the Confederate (lovernment). tlu!
claim of the Tnite*! States for prospective catch not \h''\\\^
admitted, something would he fair in the nature of diMimr-
rage or for the loss of their voy.iges, and they put tli.it at
25 per cent, interest. That and the wages are e.xaclly llio
sums the American agent and counsel put in when tliey

20 were told to prepare tahles eliminating prospective latdi.
They charged wages then and they asked for 2;") i)er cent,
interest. So, naturally having struck out the entire item
of the i)rospective catch at the command of the arbitratois,
they presented tahles without it, and hy the rule of
English composition the word "substitute" would Ini a
synonym for " in lieu of," In the sense that there were
such revised tables in place of the old, with prospective
catch entirely eliminated. Tiiat is the way "m lieu of"
comes in. But Baron Sta'mpHi in making his table .siip-

30 posed that the 25 per cent, was on the value of the vessels.
He assumes that the report of the Committee of the
English Board of Trade when they said 25 per cent, inter-
est meant 25 percent, on the value of the vessels, although
both the American and the English counsel agreed that it
was 25 i)ei cent, interest. Now, then. Baron StjempHi pre-
fixes bistable with 25 per cent, on the value of the vessel
instead of 25 per cent, interest, and he figures it out at
ti40(»,<M)0. In Protocol No. 2y, Treaty of Washington,
Volume 4, Chief Justice Cockburn says:

" Ailil to this Mr. Htiempfli's allowaucc in view of iiroHpoctivp
" catch one v»>ar'H wageH, goHS.OOO. ami 25 per cent, on the value of
" the voBBel i^iOO.OOO (and it makes «!»««,()00). "

As to that the Lord Chief Justice says very naturally:
" Mr. Stwmpfli has also acldeil for some unknown reason "

The idea of interest not being in the mind of the Lord
Chief Justice:

" Mr. Stnimpili has also »<l<1ed for some unknown reason 25 per cent.
" on the value of the whalers, au addition which can easily lie hIuiwu
" to be equivalent to altdgethcr alldwiuf? over and altovo the oriKiuiil
" value of the whalers aud their outlits a i)erceutage exceeding !H) [mt
" cent. ; and this although thi^ (juestiou of interest is still left open to
" the decision of the trilinnal."

It was an extraordinary proposition in the view of the
Lord Chief Justice. Baron StaMiiptIi in presenting these
tables had not got the idea of interest because be added 5
60 per cent, interest on that sum, and it was an astonisher to
the Lord Chief Justice when he came to review the table,
because he at once makes the point that 25 per cent, ot
the value of vessels would e.Kceed 90 per cent.— although
the Baron added besides interest. Now, with that excep-
tion, the tables of Baron StcetupHi were all right; and he

987

(Mr. Dickinson's Closing Ai-f^umont.)

uses nothing in lieu of prospective catch— but, he says, at
page 44 of tlio Piotocol tilt from American tal)le:

" ProHpective proflts in interruption of the voyngo, t4,i)0(),100."

Then in his table, in wliic^h there are suggestions to the

arbitrators, this item is struck out as such, and the item

for wjtges comes in as a substitute for prospective catch

'$5HH,(»o(>, and here is where my friend's " in lieu of" is

found.

Then Baron Sta>mpfli comes to the mistake 25 per cent,
on tiie value of tlie vessels ^4(K».(K»o, making $!)MH,000, and
making a total round stun at !^12,<)i»u,(hm). Tlien he sub-
mits the interest at 5 per cent., and arbitrator Cock-
It was on the 'Jd I)e-
Si'.t, that tlie mistake made
And after a full discussion

burn makes his criticism,
cember, 1H{»2, Protocol No.
by Haron Stiempfli ocfunred.

twelve days later the final award is made, and i>. appears
^'^not that Haron Sta-mpHi's figures were taken at .^P.oOO.-
ottO, but that the criticism of tiie Lord CMiief Justice had been
listened to, and that the total sum awarded, instead of be-
ing ^17,000,000, including whatever late of interest might
have been allowed, was l»ut !? 15,000,000, including interest
all told. Therefore, the Baron Sta'ttijiHi's figure of *400,000.
in which he made an errir, undoubtedly went out, even if
the wages, as they probably did, went in. Now, the
wages were not given in lieu of prospective catch as such,
of course, and interest was not. In defining interest in law,
3^^ it is laid down in the elementary books that inasmuch as
future profits of money or moneys worth caimot be allowed
as damages, the law has adopted interest as a i)roper
rule in lieu of profits which it cannot give. That is what
interest is defined to be when it is called damages.

1 I

■ the Lord

le added 5

Now, I venture to hope, that it will not be
found by this High Conunission that the Tribunal
of Arbitration at Geneva awarded anything as damages

40 for jtrospective catch, or anything in lieu of pros-
pective catch, in tht sense of admitting the doctrine of
piDspective catch as .; nieasure of damages. I especially
hope .so, in view of the fact that the arbitratois expressly
stated in theii' award that they did not allow any sum on
any such cause. As a matter of fact they did not. We
liavc! now seen that they could not have had it in their
mind, and that the learned Chief Justice of England could
not have had any such thing in his mind when he used the
words "in lieu of." He meant when he used those words,

50 that in place of the illegitimate item of catch there had been
put in a legitimate item of damages, to wit, the wagosof
the men, and he meant also as he said that " prospective
citch was not a legitimate item of damages."

Now, upon this evidence, your Honors will find in the
(icneva Arbitration the testimony in behalf of the
wiialers on all fours in every respect with the evidence in
thi- case— with the exceptions carefully pointed t)ut by
luv learned associate. Mr. Lansing, in his most careful
tiihles— that the rule sliould apply with 'greater force as to

<j<j scaling, because sealing is very much more uncertain in
ils conditions than fishing or whaling. In the former
tin-re is no question of tlu' conditions as to the seals, of their
litiiig easily frightened, of lying on the surface of the
\v;iter, of their sleeping, sinking, or any of the other po-
ciiliarities bearing on the uncertainty of taking them— all

ItHS

Mil

I I

?' I

(Mr. Dickinson's Cl()sin(; Argument.)

of wliicli hav«* Ix-on most can>fiiily poiiitcd out to flislin-
giiish tiit> taking of seals from tlic taking of U<.\\ ,,1
wliah's, and all of whifli add a greater uncertaiiitv tn tlio
taking of seals than to tlie taking of whales, r.iil ih,.
testimony set out in full in support of the claim for pins
jiective catch for whalers before the (Jeiieva .Arltitialinii
was to tiiis etTect : in many instances the vessels weie dr
lostroyed in the midst (if schools of whales. In maiiv m
stances they had a whale on hoard and another atl.u IimI
alongsidt!; thoy were on the ground; the whales wiiv
there to he caught, and they were catching tliem. .All
these (piestions were urged in favor of tlie cei tainty that
they could have got so many whales. Indeed, in sdim"
instances the proof at tieneva was as strong as the posi
tion of that witness whom n)y friends put upon the stand
at Victoria, and who said that the seals were so thick iliat
one could walk on them.
20 Mr. I'eters: ( )ne of your witnesses said that.

Mr. Dickinson: — It was \ ictor Jacohson. your hrst wit
ness. At (ieneva the testimony was uncontrailicted Ihal
the wiiales were there and countless whales. W'li.alis
tied to the ships, whales in the ships, whales an.xious to
he caught and putting their noses right up to the Iniw
sprit; St) audacious and forward were the monsteis tliat
the whalers were actually afraid of the tails.

The Commissioner on the pa it of (Jreat Britain:— Tluy
made out a good case at (ieneva.
30 Ml. Dickinson:— They made a very strong (visc; a
stronger case than it is possible to make out here with re
gard to the seals, excejit on the testimony of the single wit-
ness Jacohson, who found the seals so thick that tiicy
were there, not only in great streams flowing touaids tiio
I'rihilotf Islands, as one of the witnesses said, hut liny
weie so thick that all over the sea you could walk on tiiein
as you could upon a boom of logs.

And still they would not give jtrospective catcii at

Geneva. I have dealt with this (ieneva judgment in all

40 its as|)ects as to which it is treated by my learned friends.

I shall now refer to the subject of my learned friend's

doctrine of iiitenf.

The Commissioner on the part of the United States: -I
do not know that anybody is aware what the tribunal at
(ieneva finally allowed for any of these items. I sup-
l)o.se that no one can be cei tain about it.

iMr. Dickinson: Except that they did not allow foi pios-
pective catch; that is certain.

The Connnissioner on the part of the United States: —

SoKstimating on the basis of Baron Sta'mpHi's figures, or the

suggestions made by Great Britain, does not either ard both

of these allow something for the enterpiise beyond the

mere value of the vessel and what was on board of liei ;

Mr. Dickinson: — There is siothing allowed so far as you
can find out, and there is certainly nothing allowed for
prospective catch. " SutTicient tor that argument is that
evil thereof."

The Commissioner on the j)art of the United States:—
Taking the five cents a ton, or the 25 per cent, interest that
60 was suggested by the British counter-case; or taking the fig-
ures given by Baron StaMiipfii, do not they represent some-
thing besides the value of the vessel and the catch on
board?

Mr. Dickinson:— Baron Sttempfli does not, because he
says exactly what he means. He made the mistake about

IJ^r .,.- '»Y

(Mr. Difkiiii-on's Closing Armmifiit.i

tilt' ilt'iii of !i(4iM»,iMMi and r,<tnl Chit 1' .liistin- CocklMirii
threw it niit by his logic. Nnw, what he dues allow ami sug-
gests in a<Milion is ijTi^s.too, the men's wages of the
whalers as clainieil.

The Conuni^sionei' III! the part of the I'nileil States: —
lint the wages nl the sailors wer.- not a vahiahle or ii
chattel;
I , Mr. Dickinson: Hut they weio lost and Ihev were nn-
(louhteilly asvarded.

The CouHnissionei' on the part of the I'niled Slates:
Do not Ihe-e tigurt s, on either side, repieseiit to a certain
extent what yon have descrihed as the earning lapacity
ot the vessel in the position in which she was;

Ml. Dickinson: — The most ol them, hear in mind, were
partial loss cases and donhtless something was allowed
lor that. Hilt in the .item of wages, w.iges were only
allowed for the time stated. In the American aignineiit
;, they claimed for wages only for certain periods and on
account of the long voyagi^ they ilaimed in some cases for
nine months, hut only on the theory that wages should he
rnllected for lliu men for the length of voyage for which
lliey had not. received pay or whether they did receive it
or not the owners were entitled to it and tor the time it
woultl lake to gel hack to port. That w.is the theory on
which they presented their claim for w.iges, and they
never claimed interest in addition to prospective |ndtits
as our learned friends do here from start to llnisli
-o Mr. Peters: -They did, and they got it.

Mr. Dickinson:— They did not even claim interest on
prospective profits. Von claim pids|)ective piotits and
interest on it. Voii did claim wages, prospective profits,
and interest on all. Von did claim ( Miinsie swore to it at

Victoria) wages, money lost on the ship, provisions

Mr. I'eters:— That is not correct.

Mr. Dickinson: -Von did, and yon produced those
lieaiitiful vouchers to sustain the claim.
.Mr. Peters: — We ccitiiinly never claimed it.
40 Mr. Dickinson: -The claim was put in and yon figured
it out very impressively, including the supplies that
Miinsie had there carefully sworn to and for which he
presented the vouchers which we all lememher. making
ilie tot.il claim !?lU,(tOO, besides prospective catih and
interest.
Mr. Peters: -My learned friend is mistaken when he
claim that from the Lnited States. I do not

Iliiiik the .irgiiment siiouid proceed on tlie basis that we
ale making a claim which we did not make. The claim
jiir the '•Caidlena" is the very first claim that is nieii-
t lolled hefoie the I'aris Trihiinal. and before your Honors.
and that claim expressly on its face, originally and al-
uavs. was for the value of the vessel. It then put the
value of the outfit inconsumabli' and till- svages of thecrew
In date, and afterwards deducted tlu^siim of .S'>.'-M:!, which
iiii iiideii the wages of the crew, as shown hy the p.ipers
;imiexed to that very claim. 1 am referring to the claim
a- iiiiginally put in at Paris. It is a pity we should have
a niisnnderstanding on a point of that kind. '' claim is
Cotnr vessel, for value of inconsumable outfit. ,ii-ii'ance,
wages and estimated catch. From that was deducted the
-mil of ?!:'.. li':'). ;'>::'. wliicii includes all groceries, aminu-
iiilion. drygoods. ship ch.aiidlery, miscellaneous articles
and the wiigcs of thecrew to that time; .so my learned
tiii'iid is in error when he states we havt; a claim on the

!Mtii

(Mr. Die kiiiHon's Closing Ai'KUiiiiiit. i

riiiltd Sliilis for the niittit of this Vfs>,(|. TIm' vimhIm i
;it Viclori.l writ' |»llt ill lor .llinflici |il||'|io-.i>

Mr. IHckiiisuii: I siilniiit tli.it iiinli'i- tin* m-IiciIiiIc In
*lii| iiol (Icdiict Iht' wji^jfs til' llic cii'W. iiinl thai liny ,iUm

(IcIlllllllitMl IHOHplMliVl' (lllcll ill tllC SCllCtluJc (K I'jlli-. \\l'

spi'iil a ioii^' tiiiii' ill jioiiijj; over IJicsc very liiir vuinhii,
uf Mr Miiiisic. iiikI tlicv wfn- tutalt'il l»v liim Im' snii ;ill.
iil'Icr (lavs. iMil (lavs s|i('iil ii|>"ii IIkmii liy my Icariicil Iriciil.
as "oiitlil, oilier lliMii in'ovisioiis, ^iiiis and aniiiMiiuiiMii.
^•_',7'_'l.n:.; iHovi-idiis in addition, ije.t.'iO.Ts; ^mis ami am
iniiiiilioii. ^tio.t.ol ; siiiKliics, !i<l.7'j:t,7"_'i value of mIiuhii.i.
iitl.iMio; lofal, *|o,(»iio,atl." outside of |)ros|)(.iiive ealeh ami

inleiesi isee at |>a;;e Il0(d'tlie Uecordi. I do not kn

what

we W

ere at winU on there, and I do not kn

ii\\

o\v W ll.ll

Mimsii' \v,is sweariii;; ahoiil, unless he ex|>ecte(i to lecuxci
all that stnlVthat went into his tradiii'.^ posts and (Hi Ih
coast in the spring voya}.;(

I adinil that inv

ir I

friend does not claim it now; hut you do claim prospMiivi
catch, do von not '.

Mr. I'eters;('erlaiiily.

Mr. |)ickiiison: Ami you do claiiii interest on pri(-i|H(t

ive (.1

t(h

niiKiM

Mr reters:- Certainlv ; now we are on coi
);;ioiind

Mr. I>ickins(»n. — What yoiidid claim in the "("aroleii.i
case may he imnia^'i iai. if yon do not claim it iio\>
only appears, and we hiv(i only used it in this ca

the cn'dihili' V o" Mr. Miinsie, who Ihoiiuhl ii

H'arm^' on

was ifoiii^i' to recover

it. I

iccause he swore coiisislciillv

and he.inlifnily from 1 heginnin^ totlie end that all \\\\->
went into the Meiiiig ^l a voyage.

('(iNsi:(.>ri';NX'Ks oi- Intkst.

1 was ahoiit to say that I would discuss tiie distinction-
which my fiiend makes in prospective catch heforc tin'
(ieiieva 'rrihiinal and here, that these prospective catdio

ll^e
ell

e> in-

diould not have heeii given against (Jreat liritain heca
die was only guilty of neglig.nc >. hut should he giv

liiist the riiited States, hc'cause the I'liited Stat

tended to take tlie ships. We will take Sedgwick a>. a
common authority. Tlieie is no dilVereiKX' hetweeii a
fort from negligence, in respect of th(^ damages to he ic
covered and a tort with express intention. 1 concede th.it
tliei • is ii dilVereiice when the intention involves an ele-
ment of evil motive, hut that is the only tiling that di^
tingnishes. Mut willful tort and gross negligence st.i ml

50 1";

■Iv al

Iso oil the same groun

d. I mean willful \<iv[

th evil motive, in respect of damages. AggrMv.iifd

(lamagis,

(»r

•.vhat are called exemplary damages, ful

tKMtcfl of hy Sedgwick and otiiei text writers, aregiveii
ill hotli cases. On the other hand, dain.ages in a collision
case, 01 damages for (-apt'.ire, in the al><eiice of evil
niotiv(

lalice and evil w.iiilonness stand inccisely

(III

the same ground; hoth are torts, .and the damages re
stilting are governed hy the s.ime law and rule.

Tlie ("ominissioner on the jiart of Her Majestyi-Migiit
5o there he added a distinction .irisiiig from this. Mr. Dickiii

III, that, taking tin,' case of tlit- " Alaham

lere

pro-;pective catch was a remote conse(|uence, heing the
conse<|uence of a coiise(|nence, if one might so say. I'oi
instance, as the coiise(|Ueuce of a iK^gligeiit act, the escape
of the vessel, the American vessels were destroyed ; as a

ll.ti

IJ' V "■»ii

<Mi. I )irkiiisoirH Closing ArK»ii»tiit. i

niiis)-i|ii>-nri' of that tlu'ic was till' iillr;{f(l loss ot |ir(is|ii>i.t
iv ' t'jitrli; wliili- ill this ciisc it mi^hl lir tliiit thr .iIIp^i.mI
(diisi'i|ii)'ii'i> ol' till' |iios|ii'i'livi' catrh wii-^ iiiiiiM'iliali', ami
not till' rn|iM'i|ii('iiri' III' a niiiM>i|ii<'iii'i'.

Ml. Dii'kiiisoii: I think |ii)ssili|y voiir lloiin's ronsn-
<|ni'ii('i's ^o too niiiny staurs away; liiij on cilln'i' la<'ts liotli
all' toi'ts. Takit voiir Honor's ili'^tiiiiliMii that ilir n)';;h

ip'tin't'liai^i-ahit' toCirat Iti it >ii> >vas in li'ttni); Ihrsiiip p*,
anil till' shi|i at soiin' lati'i pi'iioil haviii)^ iloiir ihi' '''xna^i',
that svas a ronsi'i|iii'iii'i' of a ro!ist'i|ni'iiri'. I i|nit*' a|i|ii.t
lii'inl that; hnt. atlcr all. (Iii'at hiitain woiilil not have
Ih'i'Ii liahli'at all iinlc-^s tor a tort, ami that tort was tlm
iii'^lip'iiri' of (irral lii'ilaiii: ami, liki'all trnts, Iht- natural
ami li'K<tiniali' <'<>nsi'i|m'nr<' was thr ili'sti'mtion of the
Anii'iiraii vi'ssi'Is. hi'caiisi' tlii' " Alahania " li'ft tno |i(irt
hy ii'asoii of tlit* iii'^lini'mi' of (iii'at IJiitain an a war vi-s-
st'l to prt'y on one ciiiinni'i'ci'. It was a <-iil|iahlt'
2uni'^liK*'i><'*' <"' it ^^'it^ »<>t it toll; ami Ihi' ilistimMion which
yoiir iloiior sii^^fsls I siiliinil is not niailc at all in tin'
ciisi's. Kor instaiici-, thi'ii' aii- alinmlant antlioiitn'-i as lo
unlawful captnii' unlawful sfi/nif - tin' aitnal taking-
ami thr saini' nili' as to piospi'clivi) ilania^i's is applitiij as
applinl at (it'iicva, ami my fiim Is (aiiiiot liml a casi'. -I
do not speak as to iiiimc tcniporaiv injni-y or ili'lay, hnt of
the (li'strmtion of personal piopi'ily, or its conversion -
where |>rospe(tive ilaniaues are ^iveii, tlioii|f|i the intent
he til (lustroy or «'onvert

;. Tlio (,'omniisHioner on the part of the United Slates: —
Von mean in conseipieiice of the intent.

Mr. Diikinsoii: — Without rej^ard to the intent of thu
party who does the act. A man who captures a vessel or
Hi'izas it on the liinh seas, in the oases cited, as to which
the rule aj^iiiist jirospectivo damaj;es has heeii put with
eipjal force, nnist he held hy the law to have coiiclus-
ivelv intended to have stopped the vova;;e. 'I'lieie is no
doiilit ahont that. The ipiestioii of intent to stop the
voyaj.;!' turns on whether that was the nalural coiiseipieiico

40 of the act of seizure. Itiit it is hack of all that yon must
p't on a new ground for damages, to wit. an evil motive,
to give anythiiif; in the nature of a^nravated or ex-
emplary (laniap'.s. Let me illustrate: Never, with refer-
eiiie to personal property, is the rule clian};;ed, except in
till' single case of contract If the I'nited Slates were a
person, and had, without <'olor of right, and for the pur-
pose of mischief, for the purpose of destroying tin- prop-
erty, with no other fair ulterior iiioiive, made these
seizures, they should he mulcted in exemplary damages

iolicyond (piestimi. There is no ilouht ahont that, however
one or two of our State courts ni;ty ditfer as to that (pies-
tidii. The universal rule is to give soiiiething in the na-
ture of exem|ilaiy or adiU'd damages in suili a case. Hut,
\( the I'liited States, or its olHcers, as stated from the
upinion in the leadi ig case cited by my friends from my
own State (Chandle- r. Allison), are proceeding under
color of right, or paities are in dispntiN as over a piece of
l.iml. and they go to law about if, believing they are right,
tiiere are no exem|ilary damages. To give exemplary

'"ilaiuages, the act must be done with intent to do mis-
chief—evil intent. The intent to destroy does not add to
tile damages, if such intent to destroy, or take from, is
accompanied with a fair motive, and is in good faith.
Take the case of a man driving to town on business with
!us horse, wa;.;on, and family; a man claims the horse.

jli

i,^

(■1

W'2

(Mr. Difkiiison's Closing Argninout.)

Wi'li, if ho simjily stops tiiat trip l)y iciisoii of mi evil him
tive, cliiims llic lioiso. and canit's it off. wiilioiit ciilni cf
title, lit' is liahlc in dainagt's for tlif simple fact that ;li.
injurt'd Mian was troiihlfd and put to discomfort; and i].-
is gi\ I'll adth>d or fXt'iiiiilaiy damages too. Hut sui)pii-.c.
instead of taking a horse in that way he takes it uinlir
color n! right, on a wi'it of re|ilevin, and occasions all lln-
same iiicoiivriiieiice and lo: s Ity the action iiiidrr tli if
writ aiiil carries the liorse otf; the same results follcuv ,i,
to tile iiuiinveiiience of the pai'ty whose hoise is t.ikiii;
and yet it may turn out that the plainlilf was witliMui
right, and the Conit may decide that the horse heloiig- |,i
the man fioiii whom it was taken. He can only iicix,.
damages for the val'ie (d the ju'operty. if not retuiiicij.
otherwise than if his suit or a( t is malicious.

Now. to inilher illustrate this rule, let me refer tn th,.
■• Argeiitino ■■ c.ise, which has heeii freciueiitly cited, .nid

2otherule laid dow n in the Court of Appeals. Ofcoiiisc 1
hardly need argue that, heing a contract case, the Ian
piiage of tlu' opinion in the Mouse of Lords s()uarely turn
mg on its heing a contract case, it is not in point; hii
us e.x.imine the decision of this case in thcCuin'
Appeals heiow. This is a vt'i'y elahoi'ately argued ca^c,
helow an<l here. Loss of profits of course wi-re claiiinil:
the delilierate inieiit lo injuie. That part of this decisinn
ivleiiiiig to Sedgwick is ipioted hy my learned friend asjt
it distinguished the matter. The language (pioted finin

■;oSedg\\ ick is as follows: " 'I'his geiieial pi'inciple pervades
■• the civil as well as llie common law. and applies e(|ii,illv
■■ to cases of lireach of I'ontraet and violation of dntv; U\
■•all (ases, in short, wlier" no eomplaint is made nl anv
•• delilierate intention to injure." 'I'liat isat pagi' IH7. Tiie
dehheiate intent to injure is evil intent . is Sedgwiik (lis
cu.sses; hut the opinion of llie Court, delivered iiy linucn.
Loril .Justice, discusses the whole (|uestioii:

•• 'i'lu' (Imniit,"''* r('c(>vrial)lt' from a wriiufiddcv in cases nf cdlli.^idn ,it
• sea iiiust \ir ini'astircil accdnliiij^ to tin- ordiuarv ininciiilcs of tlio

• roniinoii law. Coui'ts of .Viliiiiraltv have no power to (jjivc nioii'. tlu'V

• ou^jlit not to award less. Spcakiuf^ nenerallv as to all wron^'fiil uts

• wliatfvrr ■o-/>'//;/ mil nf liirt fi- hn'ocli i./ cinili-.nt. tile Mnnlish law niilv

• a<lo]>ts till' prini'iiilc of rrshhftii, n, iiiti-jriini snlijcct to tlie (|iialiticii-
' tion or rest riction that the ilaniaps must not lii' too ri'iiioti, tliat
' tlicv must 111', in other words, sueli damani'sas How dirertlv and inllii'
' usual I'oursi' of thiii),'s from the wroiififul ai't. To thrse tlie law -^iiiht-
' adds in the ease of a lireaeh of eoiitraet — |now eoiiiiiit,' to the i|nes-
' tloli of eontemiilation and intent] — ^(or to speak aeeordiiij; to the view

• taken liv sonic jurists, the law ineludes under the head of these \eiv
' damages, where the ease is one of lireaeh of eontraetl. siieh ihiiiiat;es
■ as ma\' reasonalilv lie supposed to have lieen in the eoiitem|ilatiiiii of
' liotli parties at the time thev made the eontraet as the proliiilile re-

• suit of its lireaeh. With this single moditieation or exreptieii,
•■ irlii'h IS 1, 14' lliiil ii/i/iii' s mill/ III rusis nf liri'mji n/' cini/rin I the |-',n;,'li>li
•• law only permits the reeoverv of siu'li damiifji's as are prodiued iiii-

• mediately and naturally liy the aet eomiilained of "i I.'l P. )).. p. pi] i

That uKiditication of the conteniplaled injury wjieie
]irotits are to he made, where the contem|ilated injiiiy iiia\
atVect the amount of profits, or give profits as d.iniages
where prolits would not he given l.y the rule in tnif ov
contract, the Lord .lustice says only applies to cises <>\'
lireaeh td contract and not to cases of toit, ami of coiiise
ill cniitiact the Kasoii of the distiiiition is veiy plaui.
•that, where the contract is hrokeii the same ohjecli'in to
prolits which makes the rule of law ag.dnst profits dins
not ohiaiii. hecanse the contract shows what profits an- in
lie made, and it is Mot ohno.xious to the ohjection of le
muteness or contingency at the hreach.

4f)

"io

^-TTFMf^l^lll

lent.)

11 of ill) evil iii'>
witlmiit (mIui iif
|il." t'iX't tliat ',li.
'diiitort; and li<<

Hut S'lil|MI-C.

lakes it iiiulir
occasions all llii'
tion iiiidcr tiiaT
r('>uits t'ollciw a'-
' liorsc is taken;
lilt' was witliDut
iiorse lielonj^> tn
can only frcti\r

if not relnineil.
ms.

me ri'l'ei' In t Im'
uei\tly citeil. ami
als. Of conise 1
let case, the lan-
•(Is s()naii'ly tnin

in point: lint Iri

in the Coiiil lit
tely aij^neil ca~e,
I'se wt're ciainuil:
it of this decision
I'arned friend as it
uaj^e <|noted fioiii
irinci|iie peivailes
nd applii's einiaily
lation of duty; to
lit is made (it anv
sat pap' !'.•:. The
It as Sedgwick dis
livered iiy iiowni.
on;

niscs of i'olti>iiiii :it
mry priuiapli's of I lie

;'!• to tiivc Miol-i'. tllfV

to all wi'oii'^'fiil 11 ts
till' Kiinlisii law nulv
lijfi't to till' iHliilitiiM-
it tic too rcinoliv tluit
low (liiii'tfv aiiil ill till'
tlu'si' till' law su|Hr-
roiiiiun t>i till' ijiH'--
ari'oi'ililintutlir \ii'W
till' lu'iiil of tllrsi' MIV
tnu'tl, siirll ilaiiia;,'i's
till' couti'mlilatioii of
rt as till' in-olialilr Ir-

tiiation or I'xri'iitiiui,
iuiih-.i'i till' Kiij-IUli
as an- jii-niliii-i'il ini-

lofll:! 1'. I>.. P l''li,

lied injury where
plated injury may
rolits as d;iina-es
le rule in tml or
pplies to cases nl
lit, aiul of Colll-e
ion is veiy plain,
same olijecti'Hi In
;.iinst profits dees
what piolils are to
e ohjei'tioli of re

int.T

(Mr. Dickinson's Closing Argiuneiit.)

Therefoi'o it is made flic only exception wiiere prospoctivo
profits can ho Riven, and we liave tliis, 1 think, until re-
versed, from the hijiliest authority in Her Majesty's juris-
prudence. That is tlie contention bv which we liavw
stood at all times. Take tiio cases cited of tiie destruction
of the British ships hy (.lermany. Of course (leiinany
needed the ships, and th« shijis were oi rof/utjc and earn-

loing |>rotits; they were eii^^ajied in tiieir occu|>ations.
VVIien (ierniany wanted the slups siie took them, and she
contemplated and therefon* intended tiiat, if siie took the
sliips and used tiiem, or destroyed them, they could not
pursue tlieir voyaj^es. So far as tliat is concerned the
intent was theie; so far as the owners were concerned,
they could not pursue their avocations and earn money;
and the intent, in the sense in which my friend uses it
here, was to prevent them. Also tiie otiier element
existed that Germany wanted the ships. My friend says

20 that tiio United States wanted to i)revenfc tiiese ships
from sealing to get the profit, and that the United States
knew that the people could not seal and make the protit
if they took their ships. That is true enough. In the
(Jerrnan case they knew that if they took the ships, the
ships could !U)t go on and earn their profits; but the
Hritish authority to whom the whole matter was referred
by Germany— -at least (ierniany accepted the decision
upon it of the learned Kegistrar and the Committee of the
Board of Trade to whom the matter was referred— ruled

30 out the claim of tliese owneis for |)iospective piofits on
the universal rule that they could not he allowed. I
desire, also, to call attention right on this (luestioii of
intent to the njost interesting case of " The Washington."
The reasoning following from it is so jiertinent that I call
attention to it —under the Convention of 18.W.

The Commissioner on the part of the United States: —
Great Britain at the same time i)aid for the "Argus,*'
which was seized ofY Knglishtown down there at Cape
Smoke.

40 Mr. Dickinson:— Yes; I am only referring to cases where
there are extended opinions on the subject. In " The
Washington " case, it was held that the United States had
renounced any right to take and cure tish on certain
coasts, bays, harbors and creeks of Her Britannic
Majesty in North America. A United States ship, under
the flag, and undoubtedly owne<l and registered as an
American ship, duly documented, entered the H.iy of
Kiindy, and (ireat Britain, claiming exclusive jurisdic-
tion, seized and confiscated lier. She was a total loss to

50 iier owners: but no one ever insisted that Great Britain
,hd not seize her in good faith. She claimed exclusive
jurisdiction over the Bay, although it was insisted that
under international law by the rules governing nations,
the Bay of Kundy could not be a closed sea, but the
owner had lost his ship, and had been ruined in his fish-
ing for the season, and he was given damages for the
value of the ship. My friends have no stafenuMit of tiie
British report of this (uise, anil it does not appear what
and how the claim was made; bu; it certainly does not

t«;i]ipear that any claim for prospective catch was made. I
use it, however, to illustrate this point, that the United
States never would have maintained for one moment
that, however extraordinary the claim made by the
sovereignty of a great nation of exclusive jurisdiction
in tiie i3ay of Fundy, so as to prevent au American

994

(Mr. Dickinson's Closing Argument.)

I W

■ f.

she intended \n

contemplated that

was in the minds

ship from fishing there, this nation made it in hikIi

bad faith as to he guilty of an evil motive wlicn

she seized our ship. Doubtless

stop the yhip from lishing, and

she would spoil the fishing. It

of the authorities of Her Majesty's Government that, if

that ship was taken, condemned and sold, her owner

10 would lose her for fishing purposes that season. The in
tent was there, as it is here. Now, we submit, with
great respect for and deference to our learned frii-nds.
that the United States would have been turni'ij
out of any international tribunal, and out of that tii
bunal, if they had insisted that, because Great Britain
tried to stop the fishing, which it was admitted she did,
but rested her claim to stop that fishing on the ground
that the Bay of Fundy was her dominion, although it sub-
sequently turned out by arbitration that she was wrong,

20 she was liable for exemplary damages or for prospective
catch. 1 only cite this case on the doctrine my friend
sets up that, in some way or other, on account of the in
tent, he is entitled to prospective catch, and so take these
cases out of the ordinary rule. The reason of the rule
against prospective catch is not at all on the question of
motive, intent or indirect wrong, but is entirely the (pies
tion, as laid down by the Geneva Tribunal— a question of
impossibility of measurement. That is why prospective
catch is refused. Then the next point would be, not

3oW'hether you would get the prospective catch if the tiling
was intended, hut whether you could get aggravated or
exemplary damages because of an intent. If you come to
that point, you have got to find the United States guilty
of wanton nnschief to give exemplary damages; and in
the case of " The Washington," where the claim was made
to the Bay of Fundy, somewhat more absurd, if you will
pardon the mild sarcasm, than the claim of the United
States to exclusive jurisdiction in Behring Sea, the Tri-
bunal, according to my friends, should have found Gieat

40 Britain guilty of an evil and wanton motive in the seizure
of the " Washington," because her position as to jvnisdic-
tion was held untenable by a board of arbitrators subse-
quently convened. The decision of even an International
Tribunal cannot put an evil intent in the mind of the
person doing an act ex post facto.

At one o'clock the Commissioners took recess.

At half-past two o'clock the Commissioners resumed

their seats.

Mr. Dickinson: — I desire to recur briefly to the sugges-
tions made by the learned Commissioner for Her Majesty
as to the (iteneva tribunal and the effec*^ of the award
against prospective catch. As I understoou this sugges-
tion or query of your Honor, to which I did not make as
full an answer as I would like, it was, whether that being
a case of damage for the consecpience of a consequence,
60 and therefore the damage not the direct act of Great
Britain, the rule then adopted against prospective profits
might apply only to just such a condition as that. In
reply I desire to make this further answer:

Her Majesty's learnod counsel before the Geneva trib-
unal presented every position possibly tenable, and all tliu

^^mmm

995

(Mr. Dickinson's Closing Argument.)

authorities there were ajjainst prospective catch or profits
as damages, in their exhaustive argument hefore that
trihunal against those elements of damages as then
strongly urged for the United States. They cited all the
cases which we cite here up to the period of the hearing
before the tribunal at Geneva, both American and English
and international. The leading case wliirh they cited
10 there as controlling was the leading British case which
we cite here, " The Columbus," and they rested their
argument as we do here, upon this position, that such
damages are too remote, contingent or speculative, and
not estimable, and that that principle being common to
the jurisprudence of all civilized nations, and especially
of these two nations, is adopted by international law.
They say:

" It is on this principle, limited l)y these considerations, that the
" courts of common law and of admiralty, as well as the prize courts,
20 " both in England and America, have awarded damagus in cases of ool-
" lision, ciiplun; and others of a like nature."

Capture and collision are here placed on common
grounds. They also declare that the true rule of law as
adopted by Dr. Lushingtouin "'The Columbus "case, is:

" To calculate the value of the property destroyed at the time of the
" loss and to pay it to the owners as a full indemnity to them for all
" that may have happened, without entering for a moment into any
" other consideration. If the i)riuciple to the contrary contended
" for by the owners of the smack in this case were once admitted, I see
S'^ " no limit in this application to the diflicnlties which would be im-
" posed upon the Court. It would extend to almost endless ramiiica-
" tion, and in every case I might be called upon to determine not only
" the value of the ship but the profits to be derived on the voyage in
" which she might be engaged."

They also quote Story, in the case of the " Lively," on
pros])ective profits, reported in Gallison:

" The calculation would i)roooed upon contingencies, and would re-
" quire a knowledge of foreign markets to an exactness in point of
,„ " time and value which would sometimes present embarrassing ob-
^ " stacles."

The " Columbus" was a fishing case, and the whole doc-
trine, up to the conclusion of the Geneva Arbitration urged
by tlie British counsel then was this:

" In them (the claims for prospective catch] exist all those elements
" of uncertainty, remoteness and difficulty which would undoubtedly
" lead the courts, both in America and England, to reject the claims
"altogether."

i;o Now, the counsel for the American Government was pre-
senting arguments in favor of piospective catch before the
(leneva Tribunal, urging eveiy conceivable ground, and
|)resumably, then, in contesting the American position
Her Majesty's counsel exhaustively examined all the law
and principles which would apply against prospective
catch and presented them to that tribunal.

If the doctrine of a consequence upon a consequence,
or the doctrine now advanced by my leained friends on
the other side as to a supposed distinction between a

6() direct act and an indirect tort was a doctrine known
to the law, or was tenable for one instant, or had
ever been suggested by any one, I assume that Her
Majesty's counsel in then- industry and resourcefulness to
contest the claims of the United States for prospective
catch, would have made the point that this was not a

\\ I I

996

(Mr. Dickinson's Closing Argument.)

dire(!t injury by Great Britain, and that, therefore, slio
could not be liahlo for prospective catch. Tlioy woulil
have made that point tiiere, and there was nothinj^ in tli.'
whole domain of jurisprudence — there was no priiiciplo
known to the law, and no analogy known to the law
bearing in their favor that was not urged. I tliinU K
must be presumed tliat Her Majesty's learned counsel lie

ID fore the (leneva Tribunal wouUl have pi-esented tiiat pdsi-
tion on principle, by analogy, or by authority in dcfcii^o
on this point if it was of any value, for that was a rase in
which it came up— that is to say, the distinction, if tin ro
was a distinction, between the direct act of the tort feasor
and the consequences of negligence— both torts— was
squarely, unmistakably, iminessively, there. But tiu'
point was not made by Her Majesty's counsel at (ieiicva
from beginning to end, and presumably, I say, if tiierc is
anything in the learning of the civilized world on wlijch

20 they could stand, as my learned friends here stand, mak-
ing that distinction -that would absolve Great Britain
from liability for prospective catch — they would have
stood upon it — else they were ignorant of the principle, if
it be a principle, and ignorant of any decision or analogy
if there were one that could be presented in the case, for
they did not niake the point or suggest or hint at it. It is
made in this tribunal before your Honors for the first
time in the history of jurisprudence. No one has ever
made the distinction in damages in an action of tort be-

3otween a tort by negligence and a tort by activity. The
only element of difference is when you reach aggravated
or punitive damages when an evil motive, or its e(|uiva-
lent, gross negligence, is concerned. Suffice it is to say
that if the distinction here made, that prospective profits
were not allowed in the Geneva Tribunal because the act of
Great Britain was an act of negligence instead of an active
act. Her Majesty's learned counsel who presented the case
before that tribunal did not know of such a point, as tiioy
did not make it. On the contrary, they stood upon the

40 principle in active capture and in cases of negligence—
precisely upon the principle that we stand upon hcie.
And we cite the very cases, and the leading cases tliey
rested upon, on which we stand here, that the reason that
prospective profits cannot be allowed is that the law-
will not tolerate the consideration of jirospective profits
because they are speculative and uncertain and legally in-
estimable, in the nature of things. And the learned
Tribunal, of course, not going outside to find some other
excuse than the arguments and authorities cited l)y lior

50 Majesty's counsel in the exhaustive presentation of the
case, ruled, as a matter of international law, that under
the authorities of both governments, such damages could
not be allowed— not because the action of Great Britain
was indirect in the case, but because the familiar doctrine
must be held to be universal— that such profits depend in
their nature on future and uncertain contingencies.

In the long dissenting opinion of the learned and great
Chief Justice, and Her Majesty's arbitrator, as well as in
the most exhaustive argument of Her Majesty's counsel

60 before that Tribunal, contesting the claim for prospective
catch at every stage, it appears that neither court or coun-
sel ever discovered the rule for which contention is made
here — which, if it be a rule, would have been conclusive
against the United States at Geneva. If the point
bad been made there that there was a distinction

!t{>7

(Ml'. Dickinson's CI<"^iiiK Arji;uiiicnt. )

between injuries direct and injuries resultint? fioni
negligence, it seems to me that it should still he
held conclusive here that the award did specify the j^roiind
of tlie ruliiifj; against it and ])ut it not on tii;it, hut on the
same old ground, that such damages could not he allowed,
because no rule of law permitted them, on the ground that
they were contingent and spt.'culative.

,0 There is no s\ich distinction made then at Geneva, any
more than there had been in other cdurts. between a case
of negligent collision and a case of capture.

1 have cited the authorities used at (Jeneva, and the
position ft Gen(!va, and I have cited all their authorities
under the head of prospective catch, which will be found
on reference to my argument. Other international trib-
unals have made the s-ame ruling, and there are none the
other way. 1 have referred to them all, taking the
" Canada. " of conr.se, with others, because it rules against

20 prospective catch, the ruling being placed upon the old
ground, that it was too contingent -the vessel might have
been lost.

1 have also taken up the case of (Jreat Britain against
tiermany, where the Hritish Committee and Kegistiar re-
viewed the authorities reported by Sir jjouis Mallet and
Lord li,ntield, and rested the decisien in that case upon i^r.
Lusbinglon's leading case, the " Cohnnbus"'— -that the in-
jured t'amiot bi' entitled to piospective profits for the
same reason. The same ride was laid down by the

jot'onnnissioners as to conmn'ssions, which might have been
realized in the "Hiawatha" case -Commission of 1871,
cited in my Itrief. i>age los; and the authorities in the
United States I cited at page lo'.t of my l)rief.

To the^e we add the case in Kit! United States lleiH.rts,
ji. 404, a case of total loss - the " Umbria " It was the
steamship" Umbria'"of the Canard line— the other ship
was ( ut completely in two, and therefore it was a case
of tot li loss. 1 (juote:

"En or is niso allo^^cil in tlio refusal of the Court of A]>i)cals to

• allow as au item of damage the probable profits of a oliarter party,
' made October '27, IHHH, about a fortuifjlit before the eollision under
' wliieh the " Iberia." deseril)ed as then beiuK on a vo_vaj?e from Aden

• to New York, was to proeeed to Cadiz, in Spain, with a car^'o of to-
' liai'co. Tliere was clearly no error in rejeetinn this item. Tliero is
■ nothing in the peculiar facts of the case to take it out of the general
' rule that, in cases of total loss liv collision, damages are limited to

the value of the vessel, with interest tlierecm, and the net freight
liending at the time of the collision. The proliable net profits of a
' cliarter may be considered incases of dehiy, occasioned by a |>artial
' loss, where the (inestiou is as to the value of the use of the vessel,
' jvending her rei>airs. In such cases the net profits of a charter,
' whii'h she would have perfiu'uied except for the delay, may bo
' treated as a liasis for estimating the value of her use."

Cases of partial loss are here cited, one of which is cited
by my learned friends here, Williamson against Barrett,
li; Howard, U'l, and the Couit goes on: •'But in cases of
Idtiil loss the claims are always rejected."' The cases of
ihe "Anuable .Nancy" and the "Cohnnbus" are re-
Icried to as the K'ading American and English cases.

After a review of the authorities, citing ami distiiigui.sh-
iiig the "Star of India " case, which my fiKMids have also
6(i(ited, as a case of partial loss, and stating that, in addi-
tion to demurrage the vessel wa-< also allowed for chart er-
party — this beiiigaca.se of contract— the judgment pro-
ceeds:

••This does not ditt'er materially from the rule in this country. So,
'■ loo, in the case of the 'Cousett,' 5 P. I)., '2'i\), the vessel was injured

Olts

I,'

i'.

•1

|( !

i i

(Mr. Dickinson's Closing Argument.)

" by f(>lli»iou aud fomiu'Ui'il to i>ut into port to ri>iiair. Tlii! rc|mir,
" oc'cnpieil so long a time that it wan not poHsible for her to tullil
" a chartt-r into which she hail entercil, and so was allowed damaj;cs
" for its loss."

In the cases of total loss tlie pi-obable proHts arc always
rejected- is the decision of the Court, and they were ic
jecteii in that case. Is liiere any distinction, such as [<
j^niade hy my learneii friends, in the standard aiitlioriiir-
m England, or has it never before been discovered; Tlir
genera! iheorv as stated by Mdrsdcii on Colli.sitiu. a
standard authority in Kngland now. Chapter a, treatint;
on the sul)ject of damages— and it is universal —is as bil
lows:

"Tho wronf^docr in u collision is liable for all the reasonable ooiisc-
" iiuoucos of his uo^jliKcuce. ■ such damages as How directly and in
" tut' usual course of thin;.;s from his wr Jugful act.' "

Now, does it make any difference whether the tort wn^
20 oiu' of negligence or of activity? This is the result, even
wiiere it is willful. At page 2'.t Marsden says:

'• Where, as sonietinieH iuii)|)eus. one ship is wilfully aud nialicioush
" driven against another, the wrongdoer would probably be held liulilc
" f(U' tlie entire loss, notwithstanding negligence in the other sliip in
'■ not avoiding the collision."

Tills is a disti *ion from the ordinary case of iie<>li-
gen(e oidy in this — that in a case of negligence in an or
dinary collision, if the other ship suffers from her own
negligence also, the loss shall be divided between them.

3° Now. the only distinction that Marsden makes in cases nl
willful collision is, I hat if the other ship is guilty of ne;^li
gence, and thus contributes to the injury, the ordinary
rule for divisions of loss shall not reduce the nmount of
damages, and the ship that did it willfidly and maiiciouslv
shall lie responsible for the entire loss, which even in tli;it
case is o"'y the value of the ship.

The Conmiissioner on the pint of the United Stales:
The Snpreme Court hav(> gon<> further, and they have licM
that where the .second ship was guilty of mei'ely supcr-

4'^vening negligence, that is, where she saw the iiegligcnrc
of the other ship and did not avoid it, she would not lit'
respoiisihlt; for any damages.

Mr. Dickinson: — I am taking the extreme case of will
fully running into another ship.

Now. Mar.sden may be searched, and the writings dj
publicists may h<> searched, and the decisions between
nations, and you will find no lule laid down or any c.\
ception taken and made to the docrine here contended loi
by the United States. The rule is as to the mea-^urenii lit

5°ot damages, and it turns upon that — you cannot give any
thing else for the vessel itself or for the |)ropeity itself
than the value of it. I add this, that in cases wliciv
wantonness is shown and a malicious act is shown ;iii
evil motive — something may be added in the way nf
punishment, variously called aggravated, punitory en
vindii live damages, but never are any damages given lui
the thing itself except its value, and never under aii\
circumstances have prospective profits been allowed as to
personal property, nor is any authoritative couit fouml,
even in dictum, that it can he allowed.

In the case of the '• Lively," Judge Story, 1st Gailisoii.
after reviewing the authorities, even at that time, says-
independent, however, of all authorities:

"I am satistied upon principle that an allowance of damages u|"iii
" tho basis of a calculation of profits is inadtuissible. The nilo

}»!'!>

'Ill

(Mr. Dickiiibon's Closing Aiguinent.)

" would be in tbo LighcHt dej^n'e unfnvorablt' to the iuterests of the
" community; the subject would bo involved in uttor uncertainty."

Thoii ho goes into the contingencies, very many more
contingencies appearing in tiie case at har tlian in that
case, or in any case ever leporled.

I liave given your Honors decisions of the Supreme
Court of the United States, and now we iiave the judg-
'°ment in the " City of Rome" case, wiiicli rests upon tiie
doctrine iilentical with tliat in the "Columhus" case, the
doctrine of the English courts and the last authoritative
statement of it; Lord Hannen said, in giving judgment:

" When I first a|)i>lied my mind to this case I was favorably in-
" cliued toward au appeal on the ({round that this appeared to ^)e bo
" near the cud of the venture that it occurred to me that this amount
" of i)ro»pective gain niijfht have been taken into account by the
" Registrar. Hut the result of further consideration and hearing the
" arguments lead me to the conclusion that no distinction can be
2Q " drawn between this ciiso and the case of a longer venture, such

" as a senliiii) of
" collision "

wlniliiiij ri)i/(iyr, which might be put au end to by

Tl)e matter of seahng voyages was tiien familiar to tiie
courts. This decision was rendered in 1S87 and the claims
of these sealers here had heen made according to my
friends, and they liad heen presented to Her Majesty's
Government.

The Commissioner on the part of the United States: —
Sir James Hannen was counsel for the British Govern-
30n;ent in "The Washington " case.

Mr. Dickinson:— Yes, inider the Mi.xed Convention of
1H.')3, and lie was also aihitrator at Paris for Her Majesty's
Goveinment in the B'ur Seal Arbitration in 1M1»3. Let ns
bear that in mind for a little while; I continue tiie read-
ing fiom his judgment of 1887:

" There is a difficulty, jf course, in arriving at a conclusion as to
" what will adequately compensate the owner of a vessel which has
" been run down for the loss which he has sustained. But as has
" been pointed out by Ur. Lusliington, some definite rules must be
40" ailoi)ted by courts as their guide, and he had laid down with his
" usual clearness and force, the rule which guided him, and which,
" so far as I can see, has contiuued to guide his successors in their
" judgments."

Of course he refers to the "Columbus" case, the lead-
ing case on the subject in Great Britain.

" And I cannot adopt the suggesticm of Dr. Stubbs, that two or
" three deliberate decisions of Dr. Lushiugtou's have become ob-
" solete, because some cases which are apparently inconsistent have
" been decided in the Registry, and it is remarkable, that when
50 " the strongest of those cases comes to be sifted " (no doubt therefer-
" ence here made is to the ' Hisxitiita ' cited by my learned friends), " it
" turns out to be no authority at all, being a case uot of tctal loss, but
" of partial loss. 1 consider the matter as concluded by authority
" that where there is a total loss the (juestion of the value of the
" things lost at that time is what is to be taken into account, without
" I'eference to the (luestion what a vessel would have earned if she had
" gone on a longer or a shorter time."

The appeal was dismissed, with costs.
Now, Sir Charles Hibbert Tupper said in presenting this
judgment to your Honors (of which we had a mumoran-
'^"'diini, not as full as this one, when we came here):

" I was about to explain what we have in connection with that case.
" We have obtained from Mr. Marsdeu the notes — and in the notes the
" judgment of Lonl Hannen seem*! to be very fully and literally given,
' ' although the case has not V)eeu veijorted. 1 take it, although I am not
" speaking with any authority, that the reason that the decision is not

1:11

U:;i

' ' wBS

•^%

lOOO
(Mr. Dickinson's Closing Argunient.)

'• reported i« tlmt it wonlil iiitt linve iin.v ver^v urciit weight or iutcri-^t
" iiotwitliHtiindiiif; tlmt it i'iiiiu> from no diHtiiiKuiHht'il ii jiulni' as I,c,i-,i
" tliiuiu'ii ; bi'i'ftUSL' it was anterior to tlie eiiHe of the ' ArKiiilino '
" The ' Arj?eiitiiio' case was th'eided liy tlie HoUHe of LoviIn, and I., r.i
" Haniieu could not have decided as he did in the ease of the 'Cilv i.|
•• Home' with the ' Arneutino ' ease liefore him. The 'Citv of ]{, i,,,,-
" case is not reported, liiit I shall lay tho notes liefore vonr lloiinix. '

Mr. I'ftci.s:— I may say that sinct.- Sir Charles niaile tlio-i-
'rcniarivs. I have ha<i a letter from Mr. Kiiss«'li who edin
municateii witii the joint editor of that hcKik, '• Marsdcn
ill! C'olhsion,"" and wjio states that he has no donlif ih.u
that is the reason that it was not reported and refeirni i,,
afteiwards. It was considi'ied that it was overruled \,\
the " Argentine) '" ease.

Mr. Dickinson: — Who wrote that it was overruled;

Mr. I'eters:-! say that we wrote, asking' why this (,,><>
had not heen fully reported. We telegraphed to .Mr.
2oHnssell. who tried to cdinninnicate witli Marsden. WC
had formeily written to Marsden, and wc got thai tcle-
grain and sniisecjuently received a sei-ond eomnuiniciitinn.
and the infoimation we then got was that Mr. Rnsscjl IkhI
comniunieated with the joint ediroi' of Mai.sdeu (>u Cul
lisiou"^, who slated that so far as ho knew, that the ie;isiiii
tlie ease iiad not heen reported was, that it must have la'tii
considered as overruled hy the " Aigenlino" case.

Mr. Dickin.^on:— The "Argentino"' was ruled distiiKtiy
hy the Houi-e of Lords. Itecause of a provision in the coii-
30tia t, and it was put expressly on that ground

1 also have a coinmuniiation as to why the "Cilv of
Koine" was not regnlaily leported. it was delivered ni
ISM by the late Loid Hannen, hut I will not state, to yo
upiMi record, the contents of an informal conmuniii atiou
upon such a subject. 1 merely submit legal argument
that the •• City of Kome " case is in accord with ail the
authoiities of international courts and of the courts of
tireat Britain upon voyages at sea and collisions at sea
and tishing in the sea and in accord with the courts of tlie
40L'iiite(l States, cited with approval in the courts of (iieat
Britain, and that there is not a single decision in conflict
with the conclusion of Lord Hannen in the courts of either
i-ountry, in the writings of publicists, or in the dicta of
Judges.

The judgment in the " Argentino " case, in the language
of Lor(i Hersciiell. is s()uarely based upon this conditKui:

" It does not U]ijiear to nie to lie out of the ordinary course of tliiiifis
50 " that a steamship, whilst prosecutiiiK her vovatje, s/ionlil Imre sunnil
" riiililiii/mmt for 'iiiolliiT iiilrfiiliire. \ui\ i/' ill l/ie liiilf iif n nJlisidi, ll,.
•' (/inii'ii/'il r: sail Ihii/ III, liiiiifi/ .-iinli nn I'liiiui/i'iiieiil tor an onlinarv iiiiiri-
" time adventure, the loss of the fair and ordinary earniuKs of such :(
" vessel on such an adventure appear to nie to lie the direct and iia-
" tural consc(|Uince of the collision."

*«« »*«»»»

■' Where no claim is made in respect of loss arising from the owner

■' having been deprived of the earnings <if a vovafje which was in cun-

" temptation, ami the euuaKement for which had liocn secured, it

" woul.i lie riKht, ami is no doubt the usual course, to award daniiips

uiuler the name of demnrranein respect of the lossof earninns wliicli

it must reastuiably have been anticipated would ensue during' tlic

time <if detention. Hut where such a claim is nuide as in the present

cas(>. the ow uer cannot, I think, be alhiwed in addition, as a separate

item, demurrage in respe<'t of the time the vessel was under repiiir.

If he obtains as llama^?es the loss which he has sustained owiiif,' la

the loss of the employment he Inul secured he is put in the same

position as if there had been no detention.

60..

1001

(Mr. Dickinson's Closing ArKm'i'''it)

" There would of conrsc Imvo to be takou into ai'i-ouiit, liowever,
" that if till- Hhiiiownt-r loHt the I'ontfiiipliitcd vovujjc, he Imd tlio use
" of the vtwHol as kooii as the rejmirs were eoiiiph'ted for auv other
" i»iir|)ONe, and wiint lie earned, or rather what he eoiild have earned
" ui)on anv other adventure during; the time he would otherwise have
" iM'en euf;aged upon the eonteinplated voyage, must lie Net against
" the sum allowed hiui iu respect of the loss of that voyage."

Mr. I'eteis:— We liavo written to Mr. Kiissell with ref-
' ' ference to the " Argenlino" case, and we have received a
reply statinj; that he connnnnicated with the pnhlishers of
Marsden's, and they understand that the reason tliat the
opinion of Lord Haiuian was not puhlished was hecause
it was overruled l)y the " Aigentiiio" case.

Mr. Dickini^on:— Let us see. Both of these cases had
heen long decided when the learned autiiority, Mr.
Marsden, issued this puhlication with his own preface on
the i:Uh of Fehruary, IS'.tl. This is some years after tlie
decision, which was in lSs7. atter the " Argent ino" case
-iiadhcen decided, and we find him in his text s(|uarely
distinguishing tlie " Argentino" case thus (p. I'io):

" The 'Argentino,' at the date of the collision, was under an eugage-
" nient to fake in a i-argo at Antwerj) for liatouni, taking the place of
" one of a line of ships advertiseil to sail between Antwerj) and llatouui.
" It was held liy the House of Lords, atlinning the decision of IJoweu
'• and Liudley. L. J J. (diss. Lord Esher, M. K.), that there should be
" allowed as damages by the collision ' the ordinary and fair earnings
•• of such a ship as 'The Argentino,' having regard to the fact that
• she was put up as one of W. and L. 's line of steamers trading to the
" lilack Sea, and advertised as such.'
.^' ' •' A tishiug smack recovered, licsides the value of her nets and
•• gear which she was obliged to cut adrift, the aniouut she might
" reasonably have exjiccted to earn diiriiig the rest of the season. Jiiit
" it was held by Hir.). Hannen in a recent ease that, where the boat
" is totally lost (m the case before the Court she was a Frelicli boc'
'• sunk by collision on the banks of Newt'ouiidland), the prospect'.
■' catch of fish could not be recovered, and th(> djimagos were contined
•• to the value of the boat and gear." — Jlarsden, iid Kil.. jip. 120, I'il.

Thus the learned autiior i»y name tlistinguished the
cases ill IMU, without a woid ahout one overriding the
<ithei four years after. The claims ot (ireat Britain
iigainst the L'nited States, including claims for jirospi ctive
latch, were pending ahout this time, by I he way.

Afterwards, in IMU, when Mr. Marsden issued this
hook, he had not found out that tiie "Argentino" case
overrided the "City of Kome" case, and we won't go into
any informal coirespondence in view of his statement ni
his own text. There it is, and moreover, with liis own
annotations in his own notes added. It is curious that
the judgment of Lord Ilannen, the suhsecpieiit aibitiator
.-,at I'aris, when Great Britain claimed prospective catch,
''^ svas only repotted in the (hizvtte as it was and not in any
icport to which access is usually had in the libraiies.

Warnings.

Now we take up the cases of Warnings, and admit
ilamages in the nature of demurrage, keeping in con-
>ideration the distinction, however, l)etween the ride in
partial loss and the rule in total loss. We treat that in
1 iir brief and cite all the case.«, including Dr. Lushington,
C'OlM. Twiss, Loid Stoweil and others.

In the case of the " Clyde'' Dr. Lushington quotes Dr,
I wiss as relerring to the case of the " (Jazelle," and say ■
iiig that a party was in a better situation who receives
(Illy partial damage, than one whose property is totally
(Itstroyed.

10(12

■sir

I; I'vW >,4

i. 1 ., ,

■ '. M

' 1!^

(Mr. Dickinson's Closiiiy Arniinicnt.)

Tli»' sanu' fiiticisin ii.is lit'cn niadt' in cascH of injury t..
|ici sons on a liiilwiiy, tli.it tlioy ^iot iarp'r diinuij^c^ i',,:
(K'lsonal injuries tiian arc awardt'd for tho actual dciih
and dcslinction of tlic |ii'rson. Dr. Lushin^ton. in tli.
cast' of tilt! "Clydtf" says. '•Tliisis undonhtftlly true,
hut it docs not afft'ct llio i)rinci|)le." Hnt never in mn
case lias the doctrine t)f prospective catch as ct)nt<!ntlcd fiii

10 here hcen ailniitted as a measure of damages even in ca^i -
of partial loss.

'I'lie case of lladley r. Haxendale, !• Exchequer KN'pDit^.
341. was a case of s|>eci;dcontiact. The "Nt)ttinnllill '" civ,.
was a case t)f delay hy collision, which resulleil in the cin
celation of .i i harter-party. the chaiter actually hi cs.s, .
and tiiert) were tianiam's for delay. The case of the "Cl.n
ence." ',\ Wni. Kob.. :is;{. was also a case of collisiDn and
detention. It was attenipted ti> prove, as in this case. tli(
loss hy evidence of the averago earnings of other ve.'^.'^els,

20anil tiie Ctinrt said:

"TIk" (lui'stiou wliifli I liavo to dotorinino in not tlio rate at wliii h
" siu'li a vi'sst'l as the ' C'lurcni't" ' iiiif?lit lin liirt'tl out, Imt liow nnnh
"till' coiiijiiiny liavi' ai'tually lost l>v her ilctcutiou wliiist uiulcr rc-
" iiair. * * *

.. « » • j„ ordj,]. t„ (>ntitl<> a party to lit' indi'iniiitii'd for what U
" tcrnu'tl iu this court a ooiisj'(|u«'iitial loss, liointt for tho dctoutioii df
" his vessel, two things are alisolutcly nt'cosHary, actual loss autl rca-
" soualih' jiriiof of the ainonut. * * *

"The ohjectiou. it a])|iears to inc. lias licen founded ujiou a niisup-
" iireheheiisitui of the jiriiiciple upon which a court proceeds in as-
,g " sessiiig the amount of daniajic. It does uot follow, as a matlir ..f
" ncecssity, that anything; is duo for the detention of tiie vessel wliiUt
" under rejiair. I'lider some circunistances, nndonlitedly. such u
" conse(iueiice will ftdlow, as, for exiimi)lc, where a fishinj; vovatic is
" lost or wliere a vessel would have lieen lieneficially i>nijiloye(f. Tin'
" onus of jiroviiiK lior loss rests with the plaiutitt', and this iinu-.
" has not been disehar(j:ed nixili the jiresent occasion. Had th<' owners
" of the ' Clarence ' |)rovcd that the vessel would have earned fieij.'lit.
"and that such freight was lost hy the collision, the cast! wouhl haM>
" fallen within the principle to which I have last ailvcrted."

I liave citcil the .American anil English castas, inakini;
40 distinct ions in the measure of damages, and your Honnis
will sec from the conclusion leacht^il, on a full exainina-
tit)n of the cases, that not one allows prospective prdiils
or i)rospective cati:h as such, or permits any sucli rulf,
and protits as a measure of ilamaj^es in cases of tort or
contract have never been .dlowed a.s such, savt; where at
the time of the toit or of the breach of contract evitlence
conltl he adduced of a certain ciiaracter in the nature nl a
definite and certain amount to he realized if the breacli or
delay from tort had not ticcurred. We submit, with (nn-

5ofidence, of all the cases cited by my learned friends upon
the dtK'trine t)f prospective catch, that there is not out! in
point on their contention here.

The case in 1 Peake, 27i>, was not a case wiierc any
profits were allowed. It was referred to arbitration, and
it does nt)t appear what was allowed, and it was a case of
tort, and the tpiestion before the court was whetiiec tln'
declaration would sustain the action. It chargtxl vaiioiis
things in the declaration, and it came up on denun rer. .\
charge of conspiracy with an overt act is analogous.

60 The "Risohito,"H P. D., 110, was never cited by any
Court authority. It is not an appeal case, and, of course,
is not authority against the " Columbus." It was a suit
for damages for delay or detention, and was not a case of
total loss.
The "Gleaner," 3 Asp. Mar. Cas., N. S., 582, is not an

KIOH

(Mr. Dickinson's Closit)}^ Aif^utncnt.)

authoiity. TIh' ' Arp-ntino" we have consiilored. Tlie
cast) of IMiillips r. liOiulon & Noithwcstcrn Railway
Company was tlio caso of the Hurgt-on, wiiicli I have al-
ready considered.

And. now, tny learned friends still insist that the For-
tune Kay eases are aiitiiorily for them on prospective
catch, and I have somethinti more to say aliunt the matter.

iqIh the Hiitish and Foreif,'n Stat<' Papers, isso si, Vol. '-2,
there is a much fidler statement than my friend's citation
from the Hln<! Hook of the record in this case. It is Hrit-
iah authority, and 1 nst> it instead of the American report.
At pafie 12S-2 it appears that 22 vessels were enf^ayed, and
that thepaities were seining when the tort was connnit ted;
that they were ((impelled l>y a lai|;e and violent nioh of
inhahitants of Newfomidland to take up their seines and
discharge the fish already enclosed: that these seines were
heing used in the interest of all the -J-J United States ves-

,Qsels waiting for caigoes in the harhor. and that the citdi,
undisturbed, would have heen suHicient to load all of thetn
with protitahlc! cargoes. At page liisn of the same rejiort
it appears again that the catch which the I'liitiMl States
fishing fleet had on this occasion ihIikiI/i/ n'(ili:iil
was exceptionally large, and would have supplii'd
profitahle caigoo* for all of them. The vessels
were com|>elled to riilurn home in hill.ist. tltc.
The United States (Jovernnieut pf« sented ;i
claim, including interest, of sl-jit.oiio. it apiKMr- that the

.Q British (ioveriunent, through Lord ( Ir.iuville. .idvi-ed its
minister at Washington that they woidd imt look too nar-
rowly at the intrinsic value of the(laim-. Imt h.ive regard
more to the geiieial principle involved. It appears hy the
cori-es|)on(lerr(je, however', that (ircat Hrilam invt sti;;ated.
and took testimony as to the value of the claims hefore
making an offer, for' they did make an otfer. It does ap-
peal', as stated hy my leairred fiieiid. Mi-. I'eters. that the
\es.sels, bec.'a use their catch was gone, did set out in their
dairus and schedrrles that their piotits if they had heen
allowfd to retain the tisli, would he as scheduled, iir addi-
tion to other damages. The value of their (ish wer'e
scheduled as stated hy hiru at varioirs sums. One vessel
at ^2,(KtO, anotlrei' at i*:5,.'')()o, another at s;i,(M((i. another at
?i2, !HH>, and so through the wdiole lists of ships. After
making various reductions that are made irr the claim for
these estimates, we find that the sum of claims for esti-
mated profits included in the S120,un0 was s4.").2Sl. Now
we find by a singular coinciilt'iice in tigirres, that after
the exatuination which the Hrilislr (ioverriment made into
the case, they made an offer, which was accepted by the
I'nited States, of ^7r),000. There rrover was a decision in
the case; it was a comproirrise for ST."), nun, and
str-ange to =■>;', the anrount accepted was just the
amount claimed, less the amount clairued as pr-os-
|)ective profits, withiir .^2>sl The whole amorrnt claimed
was 6l^<*."*'". tbe amouirt r-eceived was ^7r»,liU(», a differ-
ence of $4r),(>00, within $i2Sl of what was dairrred as pros-
ju'ctive profits. This, ruay it please yorrr Honors, is au
authority almost as conclusive against the United States as
the " Costa liica " case! Not quite. Because the fishermen,
under their own employment, got an attorney to draw up
their claim, and therein claimed prospective profits, and
those claims so scheduled and presented, although never
paid and never allowed, are cited as authoi'ity against the
United States on this law question of prospective profits!

M-

Eft ■

f i|6

II ; J

lon4

(Ml. I )ifkin8<nr8 Closing Ai'Kiununt.)

VV'i'll, HO miicli for tlint. Tlio matter wuh never in .mv
court; hotli piiities investiK-'iteil on their own iiccoiint : tin
United States |)reseiite(l the Hciiedule tlit; men li.iil |ii.
pared, iind (ireiit Mritain, atter exainiiiation, made ,111
(id'er of )i<7.">,ooo. We did not net any pro-nieclive |irn|is.
nnd liy II hin^nlar eoiiicidence the snni total (laiinrd fni
prospective catch was the amount actually thrown out \n
10 tile British (loverinneut. At all events, thei«t wjih no pas
in^ upon the tpiestion ol prospective protits.

Now my friends next say on this (piestion of daina, c-,
that they wish prospective prolits on the ni'<»iindof aj;;ir,i
vated damages in somu way. And in their ori|rinal Iniet thiv
claim vindictive damages, and cite authorities. That w.i-
logical enough; if we can he found or treated as guilty ni
wanton acts with evil motive, had faith, or had inalicimi.
motives. This is where they plant tliem.selves under the
2oliead of measure of damages (British Argument in C'liii I
p. lit):

"' (l>) Wlirii tin' iliiiiukgf I'laiincil Ih fdundcil on a tiirt, tlu> ciiIimM,.
" 'aiiiiiMiH of till' wronn-iloor I'oiiHtitutcM iiii cleiiu'iit of thi' i|iii'Htiiiij u|'
" 'iluiiiiit;t'. Ill Hiicli ciist's tlu' injiirt'il i>iirtv iit I'utitk'il to (liiiiiii^riH
"'bc'voud flu- iiiiiouut of actiinl Iohh, iu tliu nature of uxi'inpian^.r
" 'i>nuitivo ilainiiKi'H.'"

And this is cited for the doctrine (Iil., p. '21):

" 'In fact,' sov» Mavnt', 'if any other rule I'xistt'd, a nmn of liiij;p
" 'fortuno MiiK'la. l>y a ci-rtjiin outlay, purchaNc tlio i'i(,'lit of licinj,' u
" ' puMif tormentor. He might eopy the exam|ile<if theyonn^ KoMiau
" ' uoblo nientionutl liv Oililion, who used to run along flic Finiiiii.
" ' Htriking every one lie met upon the check, while a HJave follnucii
" ' with a jiurNc making a legal tender of the statutory shilling.' '

Mr. I'etiis;— That is not the statement of our positioii,
hut a quotation from the American lounsel Ijcforc tlic
Geneva Tr.huiial.

Mr. Dickinson: - 1 lieg your pardon, IsupiKisedyou (pKiiiil
tliese caMS as an authority to sustain yoiu- jiositioii, .uiii
1 am not imstakeii. I ipK^te now from page '20:

" 'rhi> acts in respect of which damages are claimed were e(|uivaliiit
" to an unwarranted invasion of the territory of a friendly )Ki\vcr m
" time of peace. They constituted an insult t" the Hag of (iii iii
" liritain, re|icated from time to time, accom|ianied hy the sei/iiir :iii,l
" contlHcation of valualile proiun'ty, in the face of contiuueil jikp-
" tests, and even after the acts and dcclaratiims of the United .Stati s
" Ooverument had given uu implied assiu'auce to the contrary. "
* » ♦ » * » # »'»

" The injuries, therefore, which were inflicted were the result nf n

" wrong unprecedented in its character, designedly perpetrated, v itli-

" out notice, ujiou innocent persons carrying on a lawful occupation,

50 "executed iu a most arbitrary manner, and accompanied with circuiu-

" stances of great hardshii) and sutl'ering.

"The damages thus caused have been i///7/'(/r<//(v/ by the fact tlial
" for many years the United States have dis])uted their liability, sliilt-
" ing their grouiul from time to time from one untenable ])ositi()n Id
"another equally unsouml, during the whole of which jieriod tiny
" have failed to make any reparation whatever to the ])artieH who hi r'i>
" the direct sutl'erers from their acts and pretensions.

'■ It having now been deterniined beyond queHtiou, that there was
" no foundation iu international law for the assertion of any of llic
"claims put I'orwartl by the United States, the ordinary practice
" among nations recpiires that Die danrnges should be assessed u|iiiii :i
Co " scale Ko liberal as to leave no room for doubt that any form or class
" of injury sustained has been left without a full ami just rei>aratiiiii. '

Then my friends proceed to state tiie rule of damages, as
I have just read lri)m page '21 of their Argument in L'liicl,
from tiie Ameiican Argument at Uenevo, as to whiih I

I<MI,%

(Mr. DickiiiHon'H CloHiii^ Atpiiiit'iit.)

slinll have suiiii'tliinj; to say liitt-r, Itiil lie <lui>s nav, after
citing tlit'sc cxtracls, ami iiiiiiii'diatt'l.v follnwiii^ tht'^tntiig
illiistiatiiiii Inmi Maviit', as n-ad; " 'I In- Inn' ns nhmi'
euiniciitlfil is Hiiitiiitrlid hi) innfniililvil nnlliiirihi" (|i. 21).
So aftri'iitiii^ tliis tnnii tlif Aiin'ricaii lirift in tht- (ii'iicvii
case, my loiini<'*l Iricml on tli*' otlu-r Hiili> <li><>s ailopt it in
all its Htatt'DU'iits aw a riilc of cxt'inpiaiy oi' luiiiitivo daiii-
lagos for thin case. iiuliHliiij; tli»' »asi« of (Jibiions' yoimn
UoiiKiii iiol)lo who ran aloii^ the Korinu strikiiiK t>very ono
he mot upon tin- cheek, llftlieii refers to "Siitlieriuiulon
Damages," as a standard authority, and j;<)e8 on to say,—

" When' tliiTO \H & fniiiil or (itlicr liiii'iilinnid in-nnii, tliiTc ist not the
" Himic Htricliu'HH to cxcluiU' rt'iuoto luid niiourtaiii tluiimguH, oven
" wbtTo imuitivo iluiimgcH iini uot iiivolvnl."

And then my friend goes on and (|iioteH Sutherland,
I'othier, an<l the Code Nanoleon, and tjm Civil Law, and
I all of these under the head of .Measure of |)ania>;es, every-
one of whicii are cases of e.xeniplary or punitive damaj^es
from heginniiig to end of his chapter on Measure of Dam
ages. Now we are not disputing the proposiliori that an
injury (-ond)iued with evil motive, with an intent to do
MUsihief, a wanton act, will warrant ixemplary damages.
This same class of autlioiities are cited now in the oral
aigument as healing on the ipnstion nf intent, and 1 pro-
po>e to call attention to my learned friend's citation from
which he deduces his light to some adilitional damages
..because of intent, and .see if they are not the same class of
cases that he cites in his original hrief.

The case in Criilihc. of Unlsltm v. The Sl<ih' li/tjhis \n
cited on the (piestion (d' intent. It is a case of willlnl col-
lision hy one steamship wilUully innning into anothei'.
" a slt?and)oat of gieat strength andspecil, aimed with an
•• ite breaker — with great force mid violence, hv means
•' whereof the ' Limueiis ' was struck just ahaft the wliet^l
" on the starboard side, and received great damage." The
charge was that Capt. Allen itUeiitionally ran into the

• Liimu'us" with a view of disalding her, and to prevent, her
contimiing to navigate the river as hy l,iw she was entitled
to do. It was designated hy the Coiut as a gross o-jtrage.
So that we see that the case is nothing less than our old
liiend punitory damages for a malii ions act. The Court
says:

'• TttkiuK tlio I'uots of tliis cnso to bo at* tlic \vitn(>ss<'s Jmvc tcstifiod,
" aud 1 ciiu liiivf no other knowli'd^jc of tlioni, 1 do i.ot hoc liow the
" inloroni'O oim l)o iivoidod, that at loust as to tlio atl'aiis of tiio tliir-
"tioth of May and tiio thirteo-itli of .fuiio. tlio attaclvs iijioii tlie
" 'LinuiouH' woro willful and nialii'iouH, and a most nnjustitialilo use
" (111 tho part of Captain Alien, of HUi)orior power, to injure and erush
"a weaker rival. If sueli wi're not tlie fair and unavoidable iledue-
•• tion from the cireumstaueos of the several trausaetions, the express
'■ doelaratiouH of Captain Allen would removn all doubt on the sub-
" jeet. He never seems to have suunht to shelter himself under any
•■ ai)ology from accident, or the necessity of his position."

»♦•*•*«

"Again, it is said in the ease of collision of vessels, there can be
■' 11(1 recovery lieyonil the actual damage. This may bo true in cases

• (if venal negligence, or a want of due skill and care by which the
'■ injury occurred, Imt can hardly lie ap])lied to a case of willful aud

malicious assault upon the property and rights of another, with n
(liroct view to profit and gain. The injustice is manifest, of putting

'• such a case uptm the same footing with one of mere wont of care

•■ami skill."

The Court says, following the case of the '• Amiable
IS.Hicy," that where there was absolute ignorance on the

I I

i I

1000

(Mr. Dickinson's Closing Argument.)

part of tlie owners of the conduct of their captain, tli n
he will not subject them to this measure of (lainaj;v
But suppose the owners liad been on the ship, lie wouhl
have done it by liis reasoning, and the damages would \\n\r
bren of the punitory cliaracter; because the owners, bdu
ever, were never cognizant of the act, and tlius not guiliv
of evil motive, tlie Court of course was not (Msposed t,,

lo inflict upon tliem vindictive damages, noi' to make an
extravagant estimate of them. The Court Hnally ( n
ters a decree against tlie owners for damages for th,.
cost, it is true, hut on the claim of $10,000 made Im
all these injuries, awards the sum of i^LTtO. j dmrt
know how my distinction could be more clearly made.
But we see that the doctrine of intent from the citalinn.
and stated in the oral argument of the Mritish counsel, i-.
the same proposition and nothing else, that of e.xenipLu \
or punitive (iamages stated in their first printed argiiiiuiii.

20'rhe dec ision of S\v .lustice Story in the case of \V^illi,i'n
Mooney and others ({si Givllison, page 'M'>). is also cittd \,\
my learneil friends, but Chief Justice Story siys in that
case this:

" In oonsidoriufi. liowovor. thi> |)ropi>r luciisuro of diimiiptcs, I uiu
" not iiwart' tliiit tlii'ro ever liiis Ih'ou ivllowod imy vindii'tivf cumi-
" )>onsati(iii, unlt'ss whoro the luiscomluct liiis lu>ea riTi/ iji:>s!< uud l.ft
" desfitutf of nil iii>oloj;;y."

This is cited as to the new doctrine of intent, and I am
30 merely showing your Honois that it is our old (lifinl,
vindictive ;iMd punitory damages on a gros.s outrage or
evil motive. .\t page lliil the leained Judge says,

" In oiiscs wlii're tlio vcssol luid cnrno have Itcou ciiiilmvtl, an,! nfLr-
" wai'dH lost to till' owiii'i', till! Snprt'iiic C!onrt of the I'liitcil Slatis
" liavi' oontincd tlifnisclvcs to tlic in-iino valii« thon'of and iiilrnst
" tlii'ivoii to till! judgment; although in tlicsi" casos they adjiwlmd,
" that tluTt- was no |irol)alih' caiiso of capturi". And a rnh' sul)staiitiallv
" thi' sanit' was adopted in a i'asi> markoil witli ^rcat iniiiio|ii'ii'ty, .inil
" in a cast' of j,'ross ilh'}j;ality, and in wliiidi the courts wcio dispoM ,1
" to animadvert witli considoralilc severity, tliey contined the diuii-
40 •' ajreH to dcninrrane and interest on the ]iriucipal of the captiind
" j)roi>erty.

•• In cases of a similar character, I should certainly foci niysilf
" bound to adhere to these decisions."

This is ;m interesting case that is cit(>d by my learned
friend on the (|Ui'stion of intiMit, bei'ause the .lodge has
stated therein what my learned friend contemls for. that
there may be cases where vindictive or exemplaiy dam-
ages may l)e allowed, but this was a case of caiiture 111
-QSfead of a case of negligence, ;iiid I suppose a caiPtiiic
' without intent to capture would be (|uitf rare! Inanoihcr
part of his opinion he states, and this 1 especially com
mend to my friencl's consideration:

" The di.nmtje sustaine<l liy the owner, as to loss of pr " will lio
" the same, wlietlier the caiitnre he through mere mistai. IvstiiKitc

" niiilice; and to attempt a discrimination as to the cases will he el'tou
" illusory, ami sonu'times injurious.

" Upon the whole 1 am well satislied that the profitH upon tin' sup-

" position of a prosperous termination of the voyage, ouKht not in iiny

" case to coiiBtitnte an item of damapfc. In easo of a total loss, the

60 " invoice jirice and interest, as adopted by the Hnpreme Court, in u

•' fair and reasonable comi)eUHation."

Abstracts from opinions radically moditied by the con-
text are not safe authoritv.

1007

1 ": IT.

If/, mill iift> r-

Tuitcil Sliiti's

mill lutrrcst

sulistiiiitiallv

fiiol lllVS.'lf

mv Ifiinn'il

ids tor. tliiit

It'ciailv ctiin

upon till' sup-
light not ill iiiiy
total loss, till'
i' Court, is li

(Mr. Dickinson's Closing Argumnnt.)

In Otli Wheaton. also, thoro is a jiidgniont by Chief
Justice Stoi-y at page 'M\'2, "The Apollon ":

" Tho iirobiiblt' protlta of a voyugp oithor upon tlio oiirffoor frpiplit
" do not form an ituui for tlio oompiitntiou of diuirnxoH lu oiihos of ma-
" riuo torts."

This was a case of capture, iuul the first consideration
_by Chief Justice Stoiy was. whetlier there was justitiahle
cause for tiie capture; and among otiier things lie states:

" Tlie iirri'»t of tho offending vosscl must lie rest ruined to ])lnoes
•' wlioro our jurisdii'tion is coniph'ti'. to our own wators, or to the
" ocean, the eommou highway of all niitions."

He discussed the claitn for prohaltle profits in cases of
capture, and held tiiat the iiile of dainages in such cases
is, the vahie of the vessel, in cases wliicli did not call for
"aggravated or vindictive" liainages. Ilo held in this
case, th;it the proceedings and tlu> delay in the adjudiea-

-'^tion upon the rights of these parties was entirely unjiisti-
tiahle. 1 may say in passing, that the proposilion to
which I reteried yesterday is laid down by Mr. Justice
Story in this case: that a decree and a proceeding /// rem
without a certificate of |)robable cause of sei/ure, and not
appealed from with etft'ct, is conclusive on I'vcry impiiry
before evi'ry other loiut.

My learned friends also <ile tlie case of Dciniis vs. J/a.r-
/;'«7t/, reported in \0 Allen's M<iss(trluif<i'lls Rc/Kirts, p. l;?S.
It was a case of a written contract by which (lie master of

''^ a whaling ship was employed, jiioviding that lie should
have a certain " lay " or interest in the prolitsof a vovage,
and also an additional compensation depending upon tiu-
anioimt of the cargo, and he was wrongfully discharged
by the owners before the e.xpiralion of tlie contract. He
may recover, as a jiart of bis damages, his share of the
earnings of the ship both before and alter his removal.
Hilt in that case the ship proceeded on ber vovagi>.
It was a case of the wrongful dischaigi' of a man with
eai ning capacity, and tlie(|uestion was what damages he

■^' could recover. Chief Justice Higelow said:

" The plaiutitThas a riglit to recover iis daiiiut,'i's the amount which
•' is lawfully due to him under the stipiihitioiis liy which his com-
" pensation for tticse services was to lie regulated and f^overned."

.V clear case of contract and so dislingnished:

" This includes the wages which in' liad eanicil previous to his re-
■ tuoval, as well as those which he was preveiiteil Inuii earning liy his
'■ v.rongful discharge. 'J'he hreach of the euiilniit by the delendants

• has created only one <-ause of action in favnr of the plainlitV His
^" '• conipciisation for this hreacli necessarily ciiihiaco all that he ia

" entitled to recover under the I'onlract. Indeed, his right to recover
'• anything, as well that which was earned liefon' as that which would

• have been earned if he had not been discharged, depends on tho
" iiuestion whether lie has performed his part of the contract. A party
" cannot si'ver a claim for damages arising under one contract so as to
" make two distinct and snb.stantivi' causes of action. We are there-
" fore all of oiiinion that the sum due to the plaintilV prior to his dis-
'■ charge, when it shall have been ascertaiiii'd by an assessor, ought
" to be added to tl'.e amoicit of the verdict.

'• We tliiuk it eiiuaily clear that the plaintilV is entitled to recover in

■ this action his shaio or proportion of tho future profits or earuiugs
" of the vessel after his disch.irge by the defendants. These coiisti-
•' tute a valid claim for da'nage:4, bi'cause the jiartics have expressly

■ stipulated that profits sliouul be the basis on which a portion of the
" plaintitt's coiupensatioti for services should be reckoned. These
'• onmings or profits were therefore within the direct contemplation

" of .ho parties when the cinitract was entered into. They are un-

■ doubtedly iu their nature .Miutingent and siieculativeaiid iliflicult of

fxi

!'l

1008

.' I

(Mr. Dickinson's Closing Argument.)

" estiniatiou; but, beinp mad(> by express aRreoinent of tbe parties of
" the essenco of the <'outract, we do not see how they can be exobiilci
" iu aHcortaiuiug the eompeusation to which the plaintiff is entitli'il."

The case of Brown vs. Siiiith, ropoited in 12 Ciislu'in/, is
the case of ;i master of a wiiahng vessel who iiliandonld ^i
voyage and wrongfully sold the property of the owuii ,
on Imard. Helil, that subsequent return by him of p.-m
'°of the proiveds of such sale is no bar to the action agaiiNi
him for bieakiiig up the voyage, hut it reduces the dain-
ages. This was an action against the master for a vci \
grave violation of his contract

Now, what kind of intent is referred to in this rule on
damages^ In looking at Sedgwick we find no intent
treated of as affecting the measure of damages, exc(]i|
this kind of evil intent or malicious motive which is re-
ferred to in the hooks which my learned friend has citid;
and Sedgwi(;k, at Section ;5('>;{, treats of that whole suljjiLt,
^° under the title of " E.xemplaiy Damages."

This is our familiar friend, variously called exemplar v
aggravated, vindictive and punitive d; . lages thiougliniii
the books— and here is the oidy i)li!c li all of Sedgwick
where you will find the question ' m: " treated. And
what kind of intents

" Tlie justitication of exemplary damages lies in the evil intent of
" the defendant; and the allowance of such damages is therefoic le
" Btricted to cases of wanton injury. There must be some wioni'
" motive acconipauving the wrongful act."
30

Actual malice and the commission of a wrongful act is
a case for exemplary damages, and the whole subject c if
intent is treated of in that comiection, as a basis nf
exemplary damages, variously called exemplary, pmiitdry
and so on. The same class of dam;igi's is given in ai'cnid-
anci' with the Knglish and American authorities for giuss
negligence, as shown in Sect ion ;itW of Setlgwick — when
he cites Knglish and American authorities in the mitcs.
Gross negligence, amounting to a conscious indiflV'reiiceio
40conse(]uences, entails precisely tl'.e same rule of ilania^;es
as evil motive. 1 take the following from '-'eiiivwv k.
paragraph 'MS:

3(W. '• For gross negligence. -In Wilson r.v. Hrett. lit)!'.', il, said
"that he eoulil wee no <lilVeicnco between .■(•i/Zif/nii- bm. //ci.-,-, ».'(///.
" r/fiirr ; that it was the same thing with the aii litiou of ti • •! iih' mtive
" "epitliet, and this observation has been quoted \ith appro 1 I in h;', r
" eases."

"In Jiailroad Vo. vn. Loekwood, Mr. .Tustice Bradley, iiit< i .i.iiai},'
" the distinctions comnionlv drawn lietween slight, onliimrv ;iinl
" gross negligence, suid: 'In each case the negligence, wliiilivi r
50 " ei)ithot we give it. is failure to bestow the care anil skill wliicli ihr
" situation demands; and hence it is more strictly accurate ]icrlm|is to
" call it simply "negligi'nce. " And this seems to be the leudeiu v ;.f
" modern authorities.'

" In these cases, however, the ipiestion was not considered witli
" referenci' to exemplary danniges, but to the amount of csre ilue l.din
" the defendants in their res|iective situations."

Whether little or great care is due, » li' Hciien from
that amount is. in each ca,se, negligen.> wd creates;;
liability, but one upon whom a duty is in))" i Piay i ill;i
6olittle (ir far bel(»w tin* line dividing liability fion impunity,
and it is not ''^proper. Alien the latter is the case, in
apply the leu 'gros's' io the defendant's derelictinn
in resptict of d >'ii;>ges, liiving reference, however, ineivjy
to the character 01 his ,1 I -. md not to his liabiUty. The
allowance 01 e,\v;;:!;)I,tiy damages depends upon the had

1009

(Mr. Dickinson's Closing Argument.)

motive of the vviong-doer as exhibited by his acts. On
the whole careful review of the cases the statciuient I
have nriade is borne out as follows:

" Where, therefore, the acts fall short of willful iniseoniluct, or that
" entire want of care which would raise the presuinijtiou of u cou-
" scions iuditteronce to consequences, exemplary damages should not
" be given.
^ " Cxross negligence, so fur as ri(/ht «/ nctiim is concerned, is, as
" Rolfe, B., said, only negligence with a vituperative epithet ; as a
" malicious wrong, so far as right of action goes, does not differ from
" any other wrong. Hut as malice, thongh not making the act legally
" more wrongful, may be a ground for exemplar}' damages, so may
" grossness of negligence in the sense explained above ; and the term
" so explained is open to no objection, and accords with its use in
" common speech.

" Grost' negligence, then, in the seLse of culpable indifference to
" conseciuences, is usually held to be a good ground for the allowance
" of exemi)lary damages ; in this sense it is therefore such negligence
" OS evinces a conscious indifference to consecpiences. "

-o And here it is in Admiralty as well, may it please your
Honors, in cases of marine tort — Sedgwick, Sec. Hr)2- -
citing, Mr. Justice Story in 2 Mason, page Hit, of illegal
captures, and quoting many other judgments.
Section ;$J:7 of Sedgwick says:

"In actions of tort, when gros-i fraud, malice or oppression ap-
" pears, the jui'y are not bound ti adhere to the strict line of compeu-
" sation, but may, by a sevi>rer verdict, at once impose a punishment '
" on the defendant, and hold him up as an example to the commu-
" nity. It might be said, indeed, that the malicious chai-acter of the
" defendant's intent does, in fact, increase the injury, and the doc-
s'^ " trine of exemplary damages might thus be reconciled with the
" strict notion of compensation; but it will appear from the cases we
" now proceed to examine that the idea of compensation is abandoned,
" and that of punishment introduced. Damages assessed upon this
" principle are called 'exemplary or vindictive damages.'

"348. Origin of the doctrine of exemplary damages. — The term
" ' examplory damages ' seems to have owed its origin to Lord ("am-
" den, the first reported case in which !t occurs being that of Huckle
" r. Monev."

note to Sec. 347, page 502, the learned

In the foot
author says:

"Other terms sometimes used are 'punitory ' or 'punitive' damages
" and 'smart money.' These terms are usually employed indifferently
" in describing these damages.'"

In McKeon vs. The Citizens R. R. Co., reported in 42
Missouri, iit i)age 7!*, it was attempted to make a distinc-
tion between exemplary and punitive damages, but the
cases were soon overruled. Id.

The j)hrase, aggravated damages, also necesarily in-
volves the presumption of evil and malicious intent and is

5o\ised by the writers and by Justice Story as synonymous
with exemplary or vindictive damages in the case of
"Tlie Apollon " in It VVheaton.

But in no case does the question of evil intent give any
aildeu measure of actual damages. It is only damages
added to actual damages put upon the defendant as u
punishment for evil intent or wanton mischief.

[ liave thus taken the pains to go through the old doc-
trine of exemplary and punitory damages because my
ic ..ned friends have brought into this case this novel

(lopt )position— that if it be shown that there is an intent to
destroy or injure, not an evil or malicious intent, but a
mere mtent to do the thing witli all its natural conse-
(|Uences, then we have a new measurenieut of damages,
and they dwell on it as if that would be a ground for giv-
ing prospective i)rotits as damages.

' : •: I

1(110

(Mr. Dickinson's Closing Argument.)

I have endeavored to sho;v that the question of intern
cuts no fi}i;ure in any case, except it he an evil intent, an.l
after all your Honors are hron^ht to the consideration ot
the question of wliether the United States could he hcM
responsihie in the cases at har, as frankly claimed in niv
friends' original printed argument, not on this new ddr
trine of the oral argument, but under the rule of punitory

loand vindictive damages, as for wanton mischief, as tni
had faith and malicious motive. That is all there is of it.
because no case has been cited and none can be cittil
where any such measurement of added damages is givci:,
even between private persons on any other ground.

Now, my friend said that the American counsel cited
this doctrine of vindictive damages at Ueneva. It w,is
cited, but it was not on the question of prospective catcii,
neither was it for the purpose obtaining anything in addi
tion by way of actual damages. It was cited to tiie po-,!

20ti(m that one aspect of that case called for punitory
damages.

It was cited on this proposition— and the position of tlie
American counsel was speedily disapproved by the Boaid
of Arbitiation— that they claimed to have shown in theii
case, and in their argument as presented, (and all the .■
cases on damages which my learned friend has cited in
the brief, were presented in the original argument with
the American case at Geneva) unhappily, that Great
Britain did the things complained of with actual

30 evil intent to injure. That is, where they
placed them.selves there. Actual hostile intent; that was
frankly claimed at Geneva; and 1 refer to it here meicly
to show how the doctrine of exemplary damages canic
to he frankly in that argument which is quoted in the
British brief here. It was not considered or discussed mi-
der the head of personal damages to citizens in the Aniei-
ican argument, but it was cited under claim for
general damages from Great Biitain, such a-;
for driving our shipping from the se.is and

40 increased cost of the war and other dama;;es
that could not be estimated. As to these claims and the
supporting charge of bad faith necessary to go with tliein,
actually made in the American argument in that case, the
British counsel distinctly refused to enter into the discus-
sion, and stated in their reply that claims like that had
rarely ever been made, and had, if made, never been con
ceded or recognized in an international court. T(» that
point alone, so made by the American ounsel, was the
rule of exemplary and vindictive damages cited and nsed

50 at Geneva, and not as my learned friend would have it.
on anv claim for damages suffered by citizens of the
United States on which damages were asked or awarded.
This feature of the American case was eliminated liy
the arbitrators themselves, and it was not even consid-
ered, because Great Britain proposed to retire from the
arbitration if it were even urged. Thus that pait of the
controversy ended and went out of the case, and with it
all the contentions and citations on vindicative daniajics
that my learned friend, Mr. Peters, has cited in his

^o brief.

It is absurd to contend, it seems to me, that in a casi- of
this kind, where there is a conflicting claim of right hy
both and a dispute between nations, ultimately settled hv
friendly agieement and arbitration, where each paity
claims against the other, that acts involving damages have

loll

(Mr. Dickinson's Closing Argument.)

been done by eacb and recovery of one or the other,
all depending however upon a decision on the question of
jurisdiction and dominion, disputed in good faith, there
should be any question of wantonness, bad faitli, or evil in-
tent. That if it be decided one way, that one party would be
liable for damages, and if decided the other way the other
party would be iialsle for damages and it does seem to me

louot to he supposed that it could be contemplated thaf
either paity would be liable for damages in the nature of
exemplary, punitive or aggravated damages, or that if
the decision at Paris (as a.ssumed possible in the treaty)
had been the other way that the United States would be
here insisting against Great Britain that her acts were
willful, wanton and with evil intent in injuring our prop-
erty rights in Beting Sea.

The true doctrine I have cited from the same authority
that my learned friends have brought here— fioin 1 1 Michi-

jogan— Chandler r.s. Anderson, that if a thing is done under
color of right, the doctrine of exemplary damages can
have no application. In such a case the damages can
never even be discretionary with a jury.

You will find the authorities under the proper heads in
mv brief.

Commencing at page 138 of my brief and argument, I
have called attention to other claims conventions under
which extravagant damages have been presented, not for

^ the purpose especially of stigmatizing a particular class
of claims, but to illustrate what is set down as a universal
rule by no less authority than Chief Justice Cockburn,
and by British authorities repeatedly, as in the German
Claims case often referred to, and in the British argument
repeatedly at Geneva— the commonly accepted rule— that
gieat caution should be used in considering the estimates of
persons on their own claims. It is recognized that as to
claims of this sort against governments the tendency to
exaggerate is universal. For this reason I have shown by
instances and citations how enormously claims have been
exaggerated before other and all Claims Conventions.
For instance, the audited claims in the hands of the British
Government under the Convention of 1W71, which had been
brought in and were considered worthy of presentation by
that nation against the United States. There were !ii!t6,-
(100,000 of claims so presented, and something over
^1.000,000 was the result as allowed— I think $1,800,000—
idthough Great Britain had presumably sifted them before.

-The claims of American citizens presented before that same
Commission against Great Britain in like manner were
about $1,000,000 and nothing was finally allowed on them.
Before the Spanish and United States Commissi(m $30,000,-
(100 were presented and $1,000,000 allowed. $470,000,000
were presented under the Convention with Mexico and
$3.(»00,000 were allowed. In the case of the " Montijo,"
which is cited in our brief from the British and B'oreign
State Papers, the amount claimed for our citizen by the
I'nited States was llt-i,0O0, and that compensation

^was cut by the American arbitrator himself to
^33,000. The claims against Prussia, audited by Great
iiritain herself, shows the enormous difference be-
tween what is right and what claimants will present.
One of the most interesting cases referred to in the books
on this matter, to which publicists refer, not to cens'pe,

H-

1012

(Mr. Dickinson's Closing Argument.)

but to inculcate caution in the consideration of claims Ik,-
fore Claims Conventions, or claims pressed for inteni.i-
tional grievances, is a case which is often referred to in
the colleges as bearing upon this very question, that of the
British subject in (Greece, in 1K80, who invoked liis
nation's protection, alleging that he had been damagcil
by an attack on his property to the amount of some l';ii.

loOOO and odd. Great Britain acted on the claim, and
taking up the cause, made reprisals and seized an im-
mense amount of (Jreek property, when Kussia in-
tervened and remonstrated. Through the mediation of
France, the controversy was referred to Commissioiieis
for further investigation, and the actual damages as
shown on this claim of over $1100,000 or £21,000, after nil
this trouble and international turmoil, turned out to be
but £'ir)0 as the total damage to that citi?" •.. (S'.'e 1.
Baker's Halleck, p 472 note). This whole sul._ .>ct is dis-

20 cussed by Chief justice Cockburn in the Geneva case, as
cited in my brief, and I need not go over it again. The
whole question as to padding and exaggeration in fact
here has been gone into by my associates. The exorbitant
character of the claims, we will say for warnings, as one
instance in this case, are al lost beyond belief. There is
not a single ship here for which claim is not made for
from five to twenty times her value. In the matter of
warnings, the testimony has been analyzed correctly by
the counsel for the United States, and we submit that it

30 lias been fairly presented in the argument of the junior
counsel.

1 have discussed the claims for false imprisonment in
my biief; only those, however, set down and referred
to you under the British Schedule, pages 1 to 60. Com-
paring them with the case of Captain Carpenter in the
"Costa Rica " case, I submit that there is no such ground
for allowing damages. Damages in that case were
punitory or exemplary, besides the actual expense and de-
tention with loss of wages. The men in tliis case were

40 not put in cells or abused; they were detained; and
they should be paid for their time, 1 have no
doubt, if improperly detained. But as for adding
anything as for malicious prosecution, gross outrage,
maliciously false imprisonment in the way of exemplary
damages, as in Carpenter's case, it is absurd. The cliiof
persons who make these claims were for the time actually
employed by the United States, and were paid for their
time generously, what they asked, by tiie United States
Government.

jO Now my fiiends have said that they are entitled to
charge for logai services of lawyers in preparing these
claims. It is not so. Your Honors have seen from
what I have quoted from Sedgwick that if they actually
expended the money in and al)OUt their release, yes; luit
they cannot put in as a part of a general charge so inncli
for what they may intend to pay a lawyer; they cannot
do that in any case; and cannot put in whatever a lawyer
may chaige. No one testified at Victoria as to the value
of the services.

60 The Commissioner on the part of the United States:— Uo
I understand you that, according to the practice in this class
of cases, they would not be entitled to add a reasonal)le
amount for legal expenses in making up and presenting
their claims?
Mr. Dickinson:— Whatever is reasonable; as shown by

I ■■ ir\

iiif

101?.

(Mr. Dickinson's Closing Argument.)

evidence, yes; an arbitrary svitn. no; but for presenting
their claims at Paris they cannot claim anvtbiii^.

The Commissioner on the part of the United States: — I
mean with our own government.

Mr. Dickinson:— I have said they could for defending in
Court in our brief; but they have lumped in a lot of money
without proving that they over paid it out, or that the ser-
10 vices were wortb it. Take for instance the testimony
upon the Belyea services, who came down to Ottawa, and
the witness Munsie, at page ;?40 of our argument:

" Q. The contract with Mr. Bolyoa was not in writing, I think? A.
" No, not in writing.

" Q. It was wadi' up at tlie time thouf^h? A. It was made at the
" time he undertook to look after the case.

'■ Q. You ai'o hound to pay him i?7.")()y A. If I do not get the claim
" I might not jiay liim ; I might object to it.

" Q. But you agreed to pay him SToO. at all events, for his services? A.
" There might liave been a condition,
-in " ^' ^^'*'' there? We don't want any statement as to what might
" be, but what is. A. I won't state positively," an ' so on.

Can a man put down a sum of money on a piece of
jiaper and succe^^sftdly claim it^ No sucli tiling was ever
allowed in a court of admiralty.

Mr. Peters: -We distinctly do not dain) for that. You
will find Mr. Munsie in evidence goes on to state that, at
the time that agreement was made, no such thing as a
Convention of this kind w;is thought of at all. It would
be utterly improper to claim it.
30 Mr. Dickinson: — It was for services in pre|)aring claims
against the United States at Ottawa and i-Isewlieie. But
the whole mattei is disposed liy a ret'erence to Sedgwick,
sections i';]4- "J;!"). it Wheatoii. s's That this class of dam-
ages for services in seeking to rivover are added oidy as
jjunitory or vindictive damages. And see Story as cited
and Sedgwick in the sections cited.

I submit what I have bad to say, in addition to what had
been .said by my learned associates on the value of seal
4oskins, at pages 141-142 of my brief as to the standard of
value. If there was a market at Victoria, that fixes the
standard of value. We show beyond (piestion a market
at Victoria, and the standard of value is the place of
sale, and not the stock market in London, any more
than the standard of value of wheat on a contract
for delivery in the West is to be stock or market cpiota
tions in the City of New York. Tlu'i'e is abundant evi-
dence of a market at Victoria and at San Francisco, ami we
never have been able to see bow evidence of London

josales could be competent. The claims originally set
down in the .schedule presented at Paris were in
terms based on the Victoria market, and with the
exception of a sale by Mr. Munsie the Victoria prices
were set down in the British schedule at Paris. The cases
we have analyzed as to the measure of damages for per-
sonal property would invariably exclude the London
market as a measure of value. Wherever such claims for
d:images are f)iesented as to cargo, on the basis of the
highest market somewhere, in cases of marine tort or con-

60 tract, such claims have been invariably ruled against.
The time of the measure of value in such cases is the date
of the seizure. The place of the measure of value of
cargo in capture is invariably the port of departure, if a
market exists there, or, if not, the nearest market. In this
case the measure claimed is neither the port of departure or

Jbj^OMi

■ i

1014

(Mr. Dickinson's Closing Argument.)

the port of destinntion of the ship, hut the highest market
anywhere on the face of the eai'th. Such a market mav
he the ultimate market of a cargo after passing tluoiifrh
dealers and various intervening hands, hut that ultimate
market never fixes a measure of value for the first handler
of a cargo, or the carriers of it.

10 Interest.

Now, may it please yoiu- Honors, I have devoted somo
time to the question of interest in my hrief. My friomls
have charged interest upon everything, and I suhmit that
hy the rule of international law in any case interest is luit
ailovvahle as a matter of light. I have no doubt of tlio
power of the Court to allow interest at some rate, hut
there is no accepted rule tiiat interest should be allowed.
hut quite the contraiy. I do not see how it is po.ssible fur

2oiuteit'st to be allowed hack of the time that they pic-
sented tlieir claims at Paris. There never was a time
before when the United States could i)ay them or could
know the claims. It has been shown by the com;-
spondence in my learned friends' hrief that they never
presented the claims to the United States, that they said
they had not been audited, and they were never presented
or shown to the United States until they were presented
at Paris. Now the universal rule I have discussed is
against interest, as a rule of international law, and it is so

30 held hy British authorities especially. There is no sucli
thing as interest to be allowed as a matter of right, and
never in the way of damages for delay. I have notiiiiigto
add to what I have set down in my brief, where. I tiiink,
the subject is fairly and exhaustively treated. I assume
that my work there will receive consideration, without
needlessly repeating it here (see Brief, p. 143 et se<i.).
At half-past four o'clock the Commissioners rose.

■i:': ;

Commissioners under the Convention of February 8,

1896, between the United States of

America and Great Britain.

Legislative Council Chamber, Provincial Building,
At Halifax, September 25, 1897.

'o At 10.30 A. M. the Commissioners took their seats
"Say ward" Costs.

Mr. Dickinson:— I now take np the " Say ward " costs.
My position as to that question is, that this High Coni-
mis'sion has no juiisdiction of the claim. It is one of the
most serious matters in the Kecord, in our opinion,
because the consideiati;/.i of it may involve and imperil
the Convention itself, if we are right in our conten-

,Qtion. The claim for the "Saywaid" costs is for the
disbursements of Great Britain, as a nation, in employing
counsel in the case of Cooper, decided in 14;? United
States, to which reference has been made. There is no
dispute about that. It is not contended tiiat it is a claim
of any person, but is admitted fully on th(( Kecord that
it is a claim of Great Britain in that nation's own behalf,
for the expenses of a vain attempt to get a writ of pro-
hibition down from the Supreme Court of the United
States. My learned friends say in their brief, and they

,Q reiterate it in their reply and in their oral argument,

■' " The facts are, therefore, that this particular ilaini was
formulated and placed before the Paris Tribunal, it was
not then objected to as a fair matter for coiisideiation."

I now proceed to show to the Court, to a demonstration,
that the claim was not before the Tribunal of Arbitration
at Paris, that it <fas promptly objected toon every ground,
and that the Tribunal of Arbitration decided against con-
sidering it as l)efore it. In the tirst place, yoin- Honors
will find that it is not in the schedule of the British case
at all. That .schedule of claims presented by Great
Britain before the Tribunal of Arbitration at Paris,
in respect of which findings were made, was presented on
September 6, 181*2 (Vol. 1, Am. Print., p. Th a limitation
of time fixed under the treaty of February 2!>, 1802, and
the British schedule so filed is before you in the original,
and is also found in Volume 4, American Reprint, page
133. That is the schedule of the British case, pp. 1 to 60,
showing the claims of Great Britain, the consideration of
which was before the Paris Tril)unal. Nothing was

c^evei' heard of this claim foi' disbursements until three
months thereafter, when on the extrenje last page of the
British counter case, immediately before the index and
after the " conclusion," this statement was made at page
315; marginal page, 260 (see Am. Reprint, Vol. 8):

• ' With reference to the clnim for damages mentioneil at p. 12 of the
•' British case, and the particulars set out in the sclieilule thereto,
'• Great Britain will claiui, in addition to the amount there stated, the
• • sum of 862,847. 12, the amount of expenses incurred by the Govern-
" ment of Canada in connection with the ])roceediuga before the
" Hupreme Court of the United States, with the view of establishing
6o " the illegality of the seizure of the 'Say ward,' and the arbitrators
" will be asked to find that such exijonses wore incurred, and should
•' be included in the amount of damages which Great Britain is entitled
■' to cloim."

My friend says that this was before the Paris Tribunal
without objection, and was considei-ed. I now address

l(»l«

'■ ! ■,( '.

;"' f

(Mr. Dickinson's Closing Aiguinont )

myself to what I'ollowi'fl on its iippoarance in that trihiinal.
As appiMi's liy tiic lirst vohnno of tin* Anioiicin Ucpriiii.
as i-arly as I'lotocttl ill. of Mio I'aiis '''lilinnal, tlii) I nil.ii
States, in a motion which a|>poars in that i)rol(i((i|,
nii>voil —

" to (lismiHH from tlio iirbitriition r.o much of the (U>inanil of tlic
" (Jovi'niiiit'nt of (ircat Mritaiii n-. rclati's to tht> siiiii Htatcd uihui pii^'i;
•O" 315 of the coiintt'i- casi' of -.lid (iovi'i'iiiiioiit to liav(( lit'oii iiu'iincd
" oil m'l'oiiiit of «'X|i('Uh('s iii ('(miii'i'tiou with tlit) iiroi-eciliiigH bcf no
" tliu Huprt'iiu^ Court of the Uiiitml HtatuH."

That motion was ma'^i' promptly on its appearanco on
April 4tli, IslKi, at tiio t.i.licst timo it could Ins ina<le allci-
the Ti'ihimal oij^anizcil So iliat it was objocttMl to at the
outset. On Ai)iil 7lh, IS!»;5, the .American counsel, .Mr.
Phelps, as ap|)eais hy \'olumeXI.. paji<' 14!t, called up Ihe
nioti<^n to stiiki; this item out, as I'ollows:

" Mr. Plu'lps: —I lii'f,' to roiuind the Trilmual of another motion that

" has lu'cn tiled hy tlic ,\K<'ut of the United States, to strike out from

" tlie ease certain claims for daniajjes and certain evidence. We await,

" of course, the pleasure of the 'l'ril)unal as to the time when it slunild

" be heard. Tim hour for adjournment has nearly come. 1 wish imlv

" to sa.v that at some time, at the convenience of tlu^ Tribunal, anil ln"-

" fore the argument on the merits comnieuces, we ch'sire to have an

" opiiortunity to jiresent this motion, so that wo may know at the he-

" Biuning of the argument ir/m/ r/:iimK nml ii-lint I'l-iiifun' nrr nynvi/i''/ /n/

'* ///« '/)'i/innii' f/s /■' /f/f rifst', iitiil anhjt'rt Itt ri)itsitlfi'iiliutt,

"Sir Hichanl \Vid)ster:— My learned friend, the Attorney -(Icnciul

" has asked me to deal with these matters. They are so snuill that t

3*^" am perfectly willing thi^y shouhl l>e discussed at any time the 'I'ri-

" bunal thiuli convenient. We did understand the Tribunal to smv

" the other day that -and I read the wonls — "they consider that tins

" 'other motion must lie reserved to a later stage of the pmceid-

" ' ings.' "

So it was called up ou April 7th, and a heai'itifj; asked
for. On April l:.'th, as appears by Protocol VII., Vuliiiinj
1, page 'I'l, the matter was called up formally hefoic tlie
Tribunal, and this action was taken:

40 " It is ordered that the argument and consideration of the niotinn
" made liy tlie United States of .\merica, on the 4th day of .\|iril, |.S'.),t,
" to strike out certain parts of the counter case and proofs of the (inv-
" ernnient of (ireat liritaiu, be postponed until such time as may l)e
" hereafter indicated by the Tribunal."

.Now. that was on April l:.'th. On May Pth. as will
appear by Volume {•>, " .American Reprint," pafj;e 4:.'."). tiio
matter havinj; i)een postponed to tlie beai'ingof the main
case, Mr. Coudert says (.and this <;itation should be abided

to tho.se in ni ,' brief):

'•There is also a new element of damagen assorted here, that of tlie
" 'Sayward ' case. Tliat wi> object to /» liflu, because it is not in tlie
'• bill'of iiartienlars, and this Court has no jiower now to examine new
" matters now brought U]), and of which we were not notilied in
'• season. This claim llrst ajipears in the counter case. Jbit even
" if it were otherwise I shouhl say upon lis face that claim caiiiml be
" Riistained. The learned counsel for (Jreat JSritaiu selected its own
" triluinal. It went bcfort? the Suiireme Ciourt of the United States
" to ask for relief, and it failed to get it. It is estopped, therefore,
" from denying that the decision was a just decision. Is there any
" precedent for holding that a defeated party, ofter liaviug been de-

60"feated in the tribunal of Ids own choice, can call U|)on the other
" party to jia.v all its expenses for the preparation and argument of
" his case? I submit there is no such precedent, ami that this claim
" must be at once dismissed, and that it should be found as a fact
" that Oreat Britain having gone to this Court, the Supreme Court of
" the United States, of its own option and volition, cannot now make
" auv' claim upon the United States.

1017

ti'ilitiiiiil.
K«'j)i'iiil,

anil (if till'
1 il|iiiii |iii^;i:
I'll llU'iirird
liiigH be 1' 11-0

iraiH.'t' mi
ladt! iil'ti'i'
I til fit tile
inst'l. Mr.
led u|i llu'

motion tlmt
ki' out from
, Wi'iiwait,
I'll it sliiiuM
1 wisli only
mil, iiiiil ln'-
' to Imvr lui

W lit the li.'-

' ri'ijiirth'<t In/

uev-CioiiiTiil
MiiiiU tliat r
line till' Ti'i-
luiial to siiv
lor that this
tlio iH'oiTcd-

■iiif^ asUi'il
., X'liluiiii'
iK't'oic Uk'

f till' iiioliiiu
April, l.H'.K!,

i of till' (iov-
UH liiiiv bu

1, as will
;i' 4L'r). th'!
tilt' main
lie aildi'il

tlmt of tlio

is not ill tlio

'xiimiiic now

uotilifil ill

Jiut ovi'u

1 I'lUiiiiil bo
;toil its owu
;uiti'il States
il, tlieiefore,
[s there iiiiv
ug lieeu lie-
Ill tlie other
art^uiiu'iit of
it thin I'liiiiu
ml as II fiu't
line (!oui't of
it now make

(Mr. Dickinson's Cloying Argument.)

"The cinim (or the money paitl to British HclioonerB is for mouovs
" pa' \ I think, aftor the subniission. At all uvents, it in only in the
'• conntcr easu, and it Iuih eomo too late."

Now, then, the Higii Coniinissioners scf tliat uiy
learned friends tire mistaken in saying tiieie nevei- was
any objection made to its eonsidonition liet'oie the Paris
Ti'il)unal. They are also mistaken as to the matter having

10 been received bet'oio the Tribmial. The British connsel
never asked for its consideration in their argtimont at all,
and the next otiicial act touching this claim, it having
been designated l)y the British counsel as a matter of
small importance, was on May HI, 1K!»;{. in I'rotocoj XXX.,
Vol. 1, page X\, which is conclusive as to the withdrawal
by the liritish coinisel of this claim from consideration.
On May 31st the matter having last ajjpeared before the
Tribunal on May }»th, as seen, and noliiing having V)een
heard of it from the British counsel after that time, Sir

:o Charles Russell, as appears by Protocol XXX., jiresented
to the Tribunal the following paper:

" The British Ooverument having submitted to tlio arbitrators cor-
" tain questions of faet us involveil in the claims for damage set forth
" in the schedule to the llri/is/i Case, pni/ct 1 In 6'W inclusive, ask for
" the following findings thereon, namely:"

Then follows the finding rcrhafiiii et literatim as sub-
sequently adopted so far as they go e.\ce|it the formal
parts. Of coinso that disposes of' the cliim for the '* Say-
,yWard" costs, as Sir Charles Uussell asked for considera-
■^ tion by the Paiis Tribunal of claims between 1 ami tiO,
inclusive, and did not urge the " S;iyward "' cik^s at all.
thus throwing out by his own act the ""Saywanl " costs.
and withdrawing ami e.xciuding that cljiim. That had
been the insistent coiitenlioii of the Anieiican counsel
that nothing could be presented to tiii' tribunal exct?pt
claims 1 to tin, inclusive, in the oii,i;inal British case. It
was therefore never received by and iievei pa^.sed upon by
the Paris Triliunal To conclude the Paris history, the
.^tribunal itself, upon the proposition suliinitti'd in writing
by Sir Charles liussell on August l.">tli following, made
the findings of fact, and found the cliiims befoie \] nw,
in respect of wiiich findings of fact weiv leiiniiv 1 to
1)0 only those between i)ages 1 to do, inclusive, of the
original British case, thus formally excluding this claim
by the act of the tribunal itself as one iifit " before " it.

Now, may it please the Coiut, tiie only pretense of

standing the item "'Say ward" costs would have before

thia tribunal is that it appears under this cajition of the

-Q schedule which is found on page 7 o* !^e pamphlet of

' this claims convention. Appendix t' i.'fi'ired to in the

convention, referred to in Article I., is tlius entitled,

"Appendix of Claims." '* Claims submitted to the

Tribunal of Arbitration at Paris." Then follows the list

of vessels and personal claims for ISSO and ISST, and then

below, "Costs in the ' Say ward' Case "; then follow the

' Additional Claims " for the " Wanderer," the " Winni-

fred," the "Henrietta" and the "Oscar and Hattie."

The claim of costs in the "Sayvvard" case not having

(3(, been submitted to or considered by the tribunal at Paris,

but excluded by it, is not one of the claims under

Article I. that acu be considered, and the item " Costs in

' Say ward ' Case " was interpolated in the appendix by

mistake, no doubt, and cannot be considered in this case.

The matter of attaching schedules to statutes is a com-

'■■ a

lOlH

(Mr. DickiiiHou'H Closing AiKunient.)

mon nmctioti enoiiKh in the legiHlution of both countries
1(1 tl

lo canons of coMHtniction iih to tlii'ni are porfectly
ettled. Thu anthoritieH hearing niton this nnestioii

ani

well settled, i'liu anthonties heainig npon mis qnesnoii
are cited nt page 152 of our brief. The rule is this, that if
there is anything in a schedule attached to the statute, re-
pugnant to the provisions of the statute, of course the
schedule goes down so far as it is repugnaii^. Wo have

loseon that the rules of construction of treaties are the saiim
as of statutes.

Now, then, take up the careful delimitation of the con-
vention itself. Your lienors have seen by the drafts pio
posed back and forth in the negotiation, that it was at tirsi
proposed to include all Hi itish claims, and then all claiiiiH
of every description, and then to include claims attaclicd
— I quote: " including those attached in the schedule " (ir
again including those that were referred to in the Tails
Award. Forms were interchanged back and forth, and it

20 was finally decided that the claims to ho submitted to tills
convention should lie only th(> claims tluu. were in tlit)
finding of the Paris Award. The words that would taku
in anything claimed outside of the finiling were pro|i(ist(i
and lejec tedj and thus the claims to be ccmsidercd wcin
delimitated. Those added afterwards werocarefully speci-
fied in Artich^ 1 referring hack to the fifth preaiuhle ,is
Additional Claims.

Now. then, the costs in the "Sayward" case were ex-
cluded in terms by the convention itself. By Article I it is

30 provided that " all claims on account ttf injmies sustained
" l»y persons in whose behalf G "^ Britain is entitled to
" claim (Ompensation from the ed States, and arising'

" by virtue of tlit^ treaty afores ■ award and the liiid-

" ings of the said tribunal of arltuiation, as also Ihc adili-
" iiinntl rhtiiii.s s^iccifu'tl in lite /ifth paraifiaplt iif (he jirc-
" (iiiihle livnld.'" Tt is made absolutely certain thai, all ntlur
things were excluded. After naming the findings of .said
Tribunal at Paris, as claims that were referred to the con
veiition, they only admit such additional claims as aio

40 specified in tht- fifth i)aragrapli of the preamble. Now. it
is a common canon of construction that if anytliinj;
specific is named, it excludes everything else; that if a
specific inclusion is put in it is exclusive of eveiylliing
else. So that in order to get in anything additional it lie
comes necessary tos[)ecify the additional claims, and your
Honors will see clearly, therefore, that the costs in tlio
" Bay ward '' case w;M-e not within the general specific in-
clusion embraced in the findings of the Paris Tri()uiial. he
cause they were excluded from the consideration of tiiat

50 arbitration, and excluded, as f think I have demonstrated,
on the objection of the United States; that the inclusion
of arything else is carefully limited to additional claiiiis,
carefully listed, and so both governments carefully e.x
eluded everything else as to which there were not findinga
of fact in the Scliedule of the British case from pages
1-60 inclusive, within the covers of which you do not liud
costs in the "Sayward " case.

Were they in the additional claims specified in the
fifth paragraph of the preambled The fifth paragraj)h names

60 as the only claims outside of the Paris findings that can
be considered by the convention, the " Winnifred," the
" Henrietta " and the "Oscar and Hattie," and this list-
ing of them in the convention itself, excludes the case of
the "Sayward " costs as an additional claim, even if they
appear in an appendix, as, of course, the provisions of the

1' Tl

1019

(Mr. Dickinson's Closing Argument.)

convention control and oliminute anything attached in a
Bchednlfl that is ropn^nant.

Ev»>n if the matter were not ahsolutely concluded on
the ({uestion of jurisdiction, the counsel of the United
States are unaware of any principle hy which the legal
expenses of a defeated party, incurred in a case wherein
he has vainly invoked the wrong judicial jurisdiction for
10 relief, can ho allowed him. The rule is otherwise if the
party has appealed to the proper jurisdiction by appeal, as
we have seen.

In the schedule of tlm British case there is $1,800
charged as Cooper's own legal expenses, hut that is not
this claim.

We submit further that no rec^lamation can bo made
against a government upon judicial acts in its courts,
unless the proceeding complained of has been sanctioned
by the court of last r»*sort in the judicial system of the
20 country complained of, or there is a legal excuse for the
failure to appeal.

It is not true, as intimated in the British argument,
that the application for a writ of prohiltition was a con-
sent proceeding.

As showu in my brief, it was vigorously contested by
the United States, and the note rerlxile of the Secretary
of State, referred to in the British argument, recognizes the
fact that regular appeal proceedings had been taken in the
"Say ward" case by Cn per, and, of course, has no lefer-
3oence to the applicatif>n tor a writ of prohibition of years
later. The costs in the "Say ward " case in the litigation
so "appealed" might, on amicable adjustment, be in-
cluded in the convention, and they wore.

Finally, the owner of the "Say ward." the clain)ant, as
has been seen, is a civil citizen of the United States.
Thomas H. Cooper is the sole owner of the " Say ward,"
and is the sole claimant within the findings of fact of the
Paris Tribunal. Hence this claim takes the title of
" ' Say ward ' Co.sts," It further appears conclusively that
40 Cooper appeared in the United States Court as a claim-
ant on his ap^)eal, which he did not prosecute.

The Commissioner on the part of the United States: —If
I remember correctly. Cooper was the only party in that
case in the Supreme Court.

Mr. Dickinson:— Oh, yes. He appealed from the Alaska
courts and then applied for a writ of prohibition as owner,
and he presented a sworn claim at Paris as owner.

The Commissi(mer on the part of the United States: —
He was the only party in litigation.
50 Mr. Dickinson:— The only party.

The Commissioner on the pait of the United States: —
At page 153, line 4, by the word " costs," in the " Say-
ward " costs, you mean the expenses incurred at Sitka?

Mr. Dickinson: — In the schedule to the British case hd
charges his legal expenses in his litigation at Sitka and 'he
appeal.

The Commissioner on the part of the United States:--
Does he also charge the costs of taking out the appeal?

Mr. Dickinson:— He charges additional legal expenses,
60 and he did appeal.

Mr. Peters:— Do you allege that t,here is anywhere in
any schedule any claim of Cooper's— any charge whatever
for anything connected with the appeal to the United
States Supreme Court?

Mr. Dickinson: — I do not know; he does not specify.

1020

(Ml. i)irkinson's Closing ArKuinoiit.)

Mr. Peters:— Tliere was no charge whatever in any of
those for any appeal to tlie Supreme Court.

Mr. Dickinson:— Tliere are certainly charges hero whiili
might be in connecti<in with tlie appeal.

Mr. Peters:- That is not in connection with theappcil
to the Supreme Court —tlia* is, in (leleiKling the original
suit at Sitka.
jQ Mr. Dickinson: —In the schedule in the British case it is
set out this way: "Statement of the legal and personal
expenses incurred at Sitka (iiiit t'/scirliere l)y reason of thr
Sei/,ur.> ol the * \V. P. Sayward,' the arrest, and (letentinn
of her Master and Mate and the claims arising thercfnuu "
(Vol. -i, p. IT).')). We assume that he charged for all iiis
legal ex p«uises. and inasnnich as he iipjiealed. v, < should
say that he charged for his expenses of appeal.

ADOITIONAIi Cr,AlMS.

Now as to the " Additional Clainis." I have treated tiieni
quite fully in my hrief at page 1511, and following: I suit
niit that an act of Her Majesty's cruiser is presumed to he
the act of the sovereign on t!'t> high seas or in fonii;!!
waters Kverythiiig done by the conmiander of a coin
missioned shi|) of war is presumed to he by direct autlior-
ity and express order of the State. Tiie act may be dis-
avowed by tlie (Tovernment, but until it is disavowed it is
conclusively the act of the sovereign. This a|)plies to the

30caseof th»> " Winnified." Hear in mind, your Honors, that
the additional claims are not in any respect gov(>riied hv
the lindings of fact at I'aris. It is expressly provided liy
the terms of this conv(>ntion that nothing lomid in die
findings at I'aris shall bind us on these claims, althciiuh
that was attempted in some preliminary but reje( liii
drafts of the convtMitioii. We lind in the .")th preatn-
ble, which is made a part of Article I., that
the United States "admits no liability" as ii>
these .■uMitional claims. The}' are foreign to tlio

40tiii(iiiigs of fact in the I'aris /Vward as not being ijisfoie
that Tribunal. We submit, therefore, that Her Majesty's
naval coiiimander in the I'acitic consented to the taking
of this ship, the " Wiiiiiifred." after she was broiiglit into
Anu'iican waters. That consent was an act of the sover
eigiity of Oreat Mrit.iin and that nation is estopped from
setting up a claim in respect of the taking ami
proseiiition of the vessel thereof. Kurtlierniore. in the
" Winnifred's '" case the claimants stooii upon their de
fense on tlu' merits, and did not raise the (piestioii of tiio

SOaulhority or jurisdiction of the (iovernnient of theriiited
States to seize her, Jind we submit that no International
Court can revise Hie judgment of the court oC a iialioii,
unless that judgment be iiy ilie court of last resort in its
jndici.il system. This rule is established as one of iiiii
ver.sal apidication, to which there can be no exception, un-
less an appeal was prevented by the seizing nation, as
heretofore shown in this argument. It is not coiileiidnl
here that tlie owners were jirevented from taking an ap
peal which wonld make the only exception to the rule,

60 that in order I ) recover damages lor discrimination or in
justice in the courts of a country, the claimant niusi
show that he has appealed to the court of last resmt.
This is the man who, although l-.e claimed to have gone
into the harlior in distress, was ;i(!tually found seiiling in
violation of the Act of (Hreat Britain for the enforceiiieiil

(Mr. Dickinson's Closnig Argnniont.)

tif tlu' modus rirciiili, and also in violation of tiio laws of
the ruiti'd Stat'";-.. It is ratiier strange that if ho went
tiu'ie in (listrt'ss he stjonld |)ioiti'(1 to lower his hoats and
seal. 1 s'.iitniit, therefore, thai there is an old rnle also
tliat her.rs on this qnestion — that a man cannot go into
any coii' t and iccover when he nnist test his case on facts
showing that his coiidnct was against pnhlic policy. II is
loadniitted on all hands that at tlie time he was seized he
was taking seals; and as a matter of fact the dead seals
taken wcie finmd lying on the decks of his ship, taken,
if the Conrt please, in violation of the laws and treaties of
both nations.

rovided !iv

■)"

The " Oscai' a. id Hattie " case has heen presented to yunr
Honors with great fulln<ss. The revers;d of the judgment
in the conrts of Hritish C'ohiniltia hy the conrt of last
joi'*!^<>rt in the Dominion of Canada is the proposition on
which the United St-ues is so\ight to he held responsiide. I
have already contended that the ollicers of the I'nited
States cr\iiser had no discretion hut to seize the ship
wlieii they found on Itoard iiriiiiti fdcii' evidence of the
vii)lation of the British and American Acts of l^'.H, and
the iiiihIiis rimxli.

In (Jreat Britain a treaty is not the law of the land ex-
cept it he fortihed hy an Act of I'arliauienI; hut in the
I'nited States a treaty is tlu? law. The Act of isjtl in
■oGreut Britain provides that if a sealing vessel was found
in t'lie sea with seals and implements on hoard, that made
a pfiiini /iici\' case for seizure. I have said toyonr Honors
I woidd show that the I'liited States' instructions of lMt2
to this elTect were furnished to her Majesty's tioviMinnent.
I am now referring to a matter that youi- Honor the Com-
missioner on the part of the I'nited States has iiupiire*!
about. At the time the case of th(> "Oscar and llattie'
was being argued by my associate on the evidence, your
Honor asked us if the naval instriii'tions to tlu' comman(U>r
of the I'nited States vessel had been connnunicated to
(ireat Britain^

The Connnissioner on the pait of the I'nited States: —I
was anxious to know whether they were connnunicated
to Great Britain,

Mr. Dickinson: — Ves; it will he found in Foreign Rela-
tions of the I'nited States fertile fiscal year ending June,
iSiCJ, page »i;{s and following.

Mr. Feters: — That book \vas certainly not put in evi-
dence.

Mr. Dickinson: — This i '.lirespondonce was all furnished
to von.

Mr. Peters:-Not that.

Mr Dickinson: -Oh, yes; it was.

Mr. l'eters: — VV(( have no correspondence showing that
notice was given to (ireat Britain. Wo had the insti-uc-
lions but we certainly ha<l not these letters to Sir .Inlian
I'auncei'ote.

Mr. Dickinson: If my learned friend (d)jects, I might
ask him why he has put in such a lot of matter in his aigu
Mient that we had not notice of. There are those drafts
of till' convention, for instance, and the (iresham cor-
lespondence.

Mr. Beters: This appears to be a regular publication,
.iiid I have no objection to my learned fiiend reading it.

Mr. Dickinson: -The following is the cnrrespoiidence in

|4i >

(Mv. Diikinson's Closing Aiguriient.)

legaid to the matter, which I wish to submit to your
Honors:

lit' h!"

! / 'Vi

Liiril Siilisbiiry to Sir Julinii Puiiiic/iili:
" (Telegram).

" Apihl '2;Ji), IKirj.

" The Ooveruor-General of Canada wos yesterday iustructcil li\

10 " telegraph to imblish an anuonncemout in the Ofticial Gaz'tti> tlmt

" the iiKiilim rirviiili of last year wouUl bo continued. His Exculloiu y

" was also reiinested to inform the colloetors of eustoms iit thevmidus

" British Columbian ports of the continuation of the inuiliin riivn,!,,

" The British Commander-in-Chief in the Pacific Ocean has been in
" structed by the admiralty to take the necessary action.

" 1 have to request you to convey the foregoing information to tin'
" United States Government, and to state that Her Majesty's (Jovorii-
" ment can have no objection to their taking similar stejjs.

" The necessary order in council will be issued as soon us ]ioHsililc
" after the Queen's return to England. Her Majesty is expected tn
" arrive about the 3d cf May.

Mr. Blaine In Sir Jnlinn Pnunce/nli:

" Depaktment of State,
" Washinoton, April '28th, IH'Vl
" Sir, — I have the honor to transmit to you herewith copies of the
' instructions which have been issued by the Secretary of the Niivv
in pursuance of the Convention of April 18, 1892, relative to tliV
■,!:r„Ois vireiiili respecting Behring Sea.

" This Government would be pleased to receive in exchange copies
of such instructions as may be issued by Her Britannic Majcstvs
Government on the same subject.

" I have, etc.,

James Q. Blaine.'

Mr. Tritcif to Commnnilcr Kraiis.

" Navy Depabtment,
" Washinoton, April '2.'), IKllii,
" Sir,— In pursuance of a convention between the United States ainl
" Great Britain, dated April 18th, 1892, for a iiuhIuk riremli respcctiii;;
" the taking of seal in Behring Sea, you will cause the vessels uiiilir
" your command to warn all American and British vessels they unit
" outside of Behring Sea not to enter the prohibited waters of tliiit mh
" for the pur)>oseof sealing, and you will deposit on board of each vessel
40 " so warned a copy of the convention, of the President's prociaiimliuM,
" dated l'el)ruary 15th, 1892, of the British seal tishery (Behring' Sen 1
" act 1891, and of these instructions. Entry of notice and waruiun will
" be made upon the legister of all vessels notified.

" Any vessel found to be, orto have been, employed in sealing wil Inn
" the prohibited wntors of Behring Sea, whether with or witlicmt
" warning, and any vessel found tliereiu, whether warned or imt,
" having on board implements for taking seal or seal skins or lioilies
" of seals will be seized.

" The prohibited waters include that i)art of Behring Sea east of
" the line of demarcation marked upon Hydrograi)liic ()Hi<'o elunt
" No. ti8.
50 " Tlic commanding offlcer of th.' vessel making tlie seizure will, at
" the time thereof, draw up a dclaratiou in writing, stating the eoii-
" dition of tlie seized vessel, 1 iaire and date of seizure, giving hititiide
'• and longitude and circumstances showing guilt. The seized vessel
" will 1)0 brought or sent in charge of a sutlicieut force to insure <le
'• livery, together with witnesses and proofs and the declaration of tlie
" offloer making the seizure if American, to Sitka, and there iK'liveicil
" to the oflicer of the United States district court at that place, iiinl.
" if Britisli to Unalaska, and there delivered to the senior British naval
" orticer in Behring Sea. The master of the seized vessel, iier mate nr
" boatswain, and such ))ortion of lier crew as can conveniently be I'linieil
" therein, will be sent as prisoners with the vessel to sufl'er tiic iieiiulty
.(3o " of the law.

" A signed and certified list of the papers of the seized vesscU will lie
" delivered to the master thereof, and a duplicate coi)y will be traus-
" mitted with the declaration.

" Verv respectfully,

"B. F. TiiACi,
" Secretary of the Navv."

■ "I

1023

(Mr. Dickinson's Closing Argument.)

(Sir Julian PdUiiCi/ofr In Mr. Bhiine.

" BiuTisH Legation,
" Washinciton, May 11, 1892.
" Sir, — In the memorandum which you placed in my bauds ou the
" '23rd ultimo, respecting the instructions to bo issued to uavnl officers
" charged with the enforcement of the mmlns rimidi in Behring Hea,
" under the convention of the 18th ultimo, it was suggested that seal-
" ing vessels found in Behring Sea in contravention of the convention
" shouhl be seized without the previous warning given last year, owing
JO " to the late date at which the iiunliix tirmili of 1801 was agreed to.
" I transmitted the memorandum to the Manpiiii of Salisbury, and
" I have now received his lordship'-s observations thereon.

" Lord Salisl)urv points out that tlie act of Parliament referred to iu
" the memoruudum throws ou the owner and master of any ship found
" in Behriug's Sea with the enuipmeut specified tlie duty of proving
" innocent intent. The British instructions of last year did not re-
" (piire proof of previous warning l)efore seizure, but authorized the
" naval ofHcers to let a vessel go with warning if they thought the
'• master was acting in ignorance of the prohibition or believed his
" ship to be outside the line of demarcation.

" Her Majesty's Government see no reason for altering that iustruc-
20 " tiou They will take steps to warn the sealing vessels which cleared
" bef(n'e notice was given of the renewal of the mmhis rimnli, and it is
" not likely that many vessels will be left unwarned. But, in their
" opinion, it would seem desirable that, in order to obviate cases of
" hardship which might arise, the United States naval officers should
" receive some discretion similar to that given in the British instrnc-
" tions.

"I have, etc.,

"Julias Pauncefote."

Mr. Blaiiii' III Sir JiiliciK I'^nniofnie.

" Dei'ahtmicnt of State,
30 " Wa.shinoton, May 12, 18',)2.

•' Sin, — I have the honor to acknowledge the receipt of your note of
" vesterday .suggesting that the memorandum which I placed in your
" liands ou the the 2;ird ultimo respecting the instructions to be issued
•' to naval officers charged with the euforcemeut of the hkhIus rin-mli
" iu Behring Sea, under the conveutiou of the 18th ultimo, be modi-
" tied so as to authorize the naval officers to let a vessel go with
" warning if it is tlioiight t' t the master is acting iu iguoniuce of the
" jirohibition or believes li hi)! to bo outside of the line of deuiarca-
" tiou.

" In rej)ly, I have the honor to inform ymi that this Government
" does not think it necessary to modify th. iustructions given to the
40 " naval officers of the United States. If 1 vessel is found in Iti'hriug
" Sea with a sealing outfit, the only safe course to take is t ompel
" her to leave that Sea, and this can only be etl'i .tively dcnu; !■ taking
' her out under convoy. This the United States officers are iliiectid
•' to do, and to turn such British vessels over to the British naval of-
'■ ticer at Ulialaska. 1/ In' rlniimrs In Inlr Ihr rrniiiinxihi'i'i/ iif ri'lrimiiii/
" .•ini// rrssris, llfii il ifi his ritjlil In i/n Sft.

" I have, etc.,

" James (i. Blaine."

Sir Jidi'iii Pnuiiicfiili' III Mr. Blaiin:

'■ BiiiTisH Leoatiox,
" Washixoton, June 2, 1mii2.
" Sir, — With reference to previous correspondence iu rcpiid to the
" enforcement of the mmlns rlri'mli iu Bcliriug Sea, I huvi' :lic honor,
'• in accordance with directions which 1 have received fr<nu tlie Mar-
" cpiis of Salisbury, to transmit to you herewith coi)y of the iustruc-
" tious which have been issued to commanders of Her Majesty's
" vcshoIh in Behring Sea.

" I have, etc.,

" JiLiAN Pauncefote."

(IncloHure.)
" Iiixlriicliotis III N'lrnl Offtf.ers.
CiQ " Proceed to Behring Sea and cruise as may be necessary with the
' object of carrying out order in council of May St, 18112, which renews
■provisions of order iu council of 2'(d June, 18i(l. Before entering
■ the Sea, cruise oft' the p"*"* "U'^ ^'i"" **"'''' pli»<'<'s "nd |)orts of en-
" trance to Sea as you think best, in order to iiitt rcept sealing vessels,
• and send on board copy of convention and a written order informing
' them you are instructed that, if found hunting seals or preparing

T|T7!

l(»L>-i

(Mr. Dickinson's Closing Argument.)

to ilo so iu Behi-in); Sea, they will be seized. Use utmost eudeavovH
' to carry out this duty. After currying out above proceed into tlic
' Sea and cruise there, as uecessnrv to enforce convention, Heizin^,
' whether warned or cot, any vessels fouud offending. British vesHcl'.
' should have sealing equipment confiscated, and. after recording

name of the master and vessel, send ship to Victoria, B. C, to rc-
' port to (Collector of Customs. American vessels should be turned
' over to nearest Americun authority, with necessary proof of offence,
' etc. (^o-operate cordially with American cruisers as much iis
' possible iu arranging above duty."'

The " Pathfindkk " Claim No. 21.

This vessel was found in Neah Bay, in waters within
the exclusive jurisdiction of the United States; she wa-
boaided by the ofticeis of customs, who had l)een advised
that she had escaped from a previous seizure that had hei'ii
made nnder the direction of the Treasnry Department Un-
alleged violation of the laws of the United States.
20 The revenue cuiler without delay towed her to tlie
nearest telegraph station, at Port Townsend. a six houi's
run, and at once comnmnicated hy telegraph with liic
Treasury Depaitment at Washington, whereupon her re-
lease was immediately ordered hy telegraph. She was
detained for a part of one day, and the utmost p()ssihl(>
expedition was used in obtaining authoritative instructions
in regaid to iier case

For this act (ireat Britain brings a claim for " seizure"
and for damages for future catch.
30 It need not i»e argued that the general rule is that all
foreign vessels, and for this purpose even ships of war, are
liable to visitation fiom customs and quarantine ofticeis
of the nation whose jurisdiction they enter (see Bai<ei"s
Halleck, Vol. T., p. 217, notes 5 and (I; and see Hall, pp.
litr)-2O(l-201t).

The United States have statutes, called "lioveiin}>
acts" similar to those of Great Britain, and "ofticeis <<(
revenue cutters are authorized to search, examine and re-
main on board all incoming vessels, domestic or foreij;!!,
40 when within 4 leagues, or 12 miles, of the coast" (K'ev.
Stat. r. S., Sees., 27()(>-2Mt;7-2S«i,S; and Sec. it. (Jeo. 11.,
Chaj>. .$.■)). The existing Englisii law was enacted in !7;>."i;
the American act now in force in 17l»9.

The law as to a vessel, that has put into a foreign pui t
in distress, is perfectly well settled. The privilege of smii
vessel, by the comity of nations, which in this respect has
become international law, is admitted to the fullest extent;
but the exemption does not go to the length of exchidnig
reasonable quarantine or customs inspections. The df-
5otentions for customs inspection may be for a sufticient
time to ascei'tain the character of the ship, and, in case
the distress privilege is claimed, by protest or otherwise,
the authorities are entitled to be reasonably satisfied dl
the good faith of such claim. The privilege itself, so far
as property is concerned, goes only to the exemption of
the ship from the execution of the laws of the jurisdic
tion which, but for the privilege, miglit work forfeiture
of ship or cargo.

There is no doubt whatever, either, that even if the
60 privilege be claimed, but the good faith of the claim is
fairly doubted, that very question may be brought before
the com ts of the nation of the port for trial.

The burden of proving the necessity or distress, which
brought the ship in, is upon the ship ("The Diana," 7
Wall., 3r)4, and see "The Copenhagen," I. C. Rob., 2sitl

1025

(Mr. Dickinson's Closing Argument.)

In any case, however, the privilege must he^asseited
and claimed j>romptly from the authorities of the juris-
diction in person, or l>y a consul of the ship's nation,
otiierwise it does not avail.

In this case, as the Conmiissioners will find on reference
to the Record, the claim now set up on the part of this
vessel that she was in Neah Bay to "fix her rudder," or
10 otherwise from distress, was never made to the visiting
officers at any time, or brought to their attention formally
or informally!

On the long Pacific coast of the United States, which
is especially exposed at all times to offenses against the
revenue laws, or, for that matter, on an\' other of their
coasts washed by the high seas, the proper officers of tiio
customs service may visit a ship, and, upon reasonable
suspicion as to its chara'^ter, detain it for the necessary
time to ask for instructions from their Government.
20 The right and the practice is one of self-protection, and
not one that any nation can surrender. The distiess
theoiy and the bill for damages originated with Munsie,
like many other things, but, all unwittingly, lie did not
fit his proofs to tiie law requiring that the distress priv-
ilege should be promjitly claimed in order to form even a
pretense foi his good hope of avails from a damage claim
against our Government.

The Commissioner on tlie part of ihe United States: —
Yon put the case, Mr. Dickinscm, of a seizure in territor-
30ial waters. It would seem to he one of those cases occur-
ring very frecpiently along the coast, in which the British
Government would naturally say that the vessel had
ample remedy in the Courts of thf United States, and
therefore wouM not take cognizance of it; but does not
the case take on a little different aspect in view of the
fact that it has some connection with what previously
transpired?

Mr. Dickinson: -What did the Collector of Customs
know about that?
40 The Commissioner on the part of the United States: —
I do not know; I am asking the (luestion. These investi-
gations and these seizures are occurring frequently, and
no question is made about them. Assuming it to be an
ordinary seizure, giving it the aspect which the British
Government gives it, hut standing alone disconnected
from what had previously occurred, it (-learly was an
ordinary case, and the British Government might well
say she had ample remedy in our Court; but the question
in my mind is, whether it does not take on a somewhat
Sodirteient aspect in consequence of its connection with
what previously transpired.

Mr. Dickinson: — ! will answer that suggestion, your
Honor, and show, I think, that she could have had no
remedy in any Court under any circumstances. In the first
place no cutter seized her. but the Collector of Customs,
without knowing, as appears by this Record, anything
about what the previous seizure was for, took her over to
the nearest telegraph station to get instructions from his
ibief as to whether he ought to hold her; and when the
^liiited States Government acted, it did not authorize or
latify the act of even detaining her, and the action it did
lake was to piomptly telegraph ordering her release.
He had a rignt to go aboard of her and inspect her.
Hid he have the right to ascertain her character and
whether his Government wanted her? That questiim
will have to be answered, yes, in either country. He was

loar.

I ! '.!'

(Mr. Dickinson's Closing Argument.)

away from a telegrapli station; it was in Neah Bay;
instead of sending a ship to find out whether he ought to
detain her, as would have heen allowable, he took th(>
shi|) right along with him for the six hours run, not for
the puipose of injuring hei', but for getting the quickest
pos8il)le information for her l)enefit, as to whether he
should release her; and when the United States Goverii-

loment acted, it was to promptl)' release her. The (jucs-
tion turns upon this, whether the Collector of Custotns—
not the same revenue officer who knew what she had Ijeen
seized for before— on learning that there was sometliin;,'
suspicious about a vessel, cannot board her, and detain her,
until he gets instructions from his Government.

Tiie Commissioner, on the part of the United States:—
He did more than detain her.

Mr. Dickinson: — But what for? He took her to tlie
nearest port to send his telegram. He was his own nies-

20 sage-bearer to his Government. "Shall I hold this
ve.sselil" Had he better seize her, wait and delay ii(>r
there, and send a small boat for instructions? Which was
more for the benefit of the vessel seized? His duty was
to get instructions from his Government, it will be con-
ceded. Sliould he have iield her right where he seizeil
her and wait tlieie four, five, or six days until he iiad
sent a small boat? Or should he, in the most expeditiou.s
way possible, get information from his Government?
When his Government acted as it did, he released her

30 promptly. Should the Collector be responsible, or iiis
Government for bin), when he did the most expeditious
thing possible - not merely reasonable diligence — tn get
the information he was entitled to, and obtain authority
from his Governments It was not for him to pass on the
question of law, or the question of what his Governmeiit
would or could do; it was a question for his Goverii-
mrnt: he had no discretion. The Government could not
be held any way for the act of a civil official, promptly
disavowed.

Now, may it please your Honors, the " Black Diamond "
and "James Gaudin " claims I have discussed as fully as
I care to.

Asamatter of law, as tothe "Carolena," " Onvviird "and
"Thornton," we submit that they are cases carrying ail
the i-esults of total loss, because the owners tieated tlieiii
as in a case of total loss, and would not have accepted any
return. Here is the evidence. They were seized in isso,
-Qbear in mind, and the s ew sealing season for which tl.ey
claimeil did not commence until the next year in July.
It ajtpears distinctly that the Connnissioner of B'isheries
in Canada, and before that, the Government of Her
Majesty, had been advised by the United States that tiio
vessels would be returned. I show this by the letter of
John Tilton, Deputy Minister of Fisheries, to Mr. Munsie.
found at page iW~ of the Record, commencing at line h>:

" Ottawa, July, 26, IHK7.

" Dear Sii«: — I have to acknowledge receipt of your letter of tlio

gQ " 19th instant, aildresseJ to the Minister of Marine anil FiHhi'ries, in

" which you state: 'Wo have not rt neived a single word from the

" ' United States Government ai)out the release of the vesselN,' ro-

" f erring, of course, to those seized last season.

" On the '2nd April I coniniuuicatcd to you the decision of tho
" President of the United States, in so far as releasing the vesseln,
" etc.. which letter you acknowledged."

r • "

1027

(Mr. Dickinson's Closing Argument.^

It was on the 2d of April, it was communicated from
Ottawa and it was acknowledged by Muusie.

" Have you made any application for the surrender of the vessels,
" or have you reason to suppose the United States Government would
" communicate the action to you by other means than the ordinary
" ofiicial channel ?

" This department lost no time in communicating the decision in
" question to you, with the expectation that you would at once take
'*-' " steps to regain possession of the vessels."

As to the "Thornton," it appears that in Decemher,

1886, by Mr. Warren's testimony, he provided a vessel to
take the place of the "Thornton" in the fleet (Record,
page 1158); and after the seizure of the " Thornton" (page
1181. hne 20), he used the " Mary Taylor" for seaHng on
the coast and Bering Sea for the season of 1SS7.

Now, as to the "Onward," December 30, 188(i, it ap-
pears that Charles Spring and Alexander McLean dis-
20s()lved partnersbij), and in that agreement the "Onward"
is not included as a going vesvsel, but "interest in the
claim against the United States" for the " (inward " ap-
pears. Your Honors will see that the parties, as appears
clearly by the Record, Munsie, Warren and Sf»ring, treated
the vessels as a total loss, and their interest in them as a
claim against the United States tor thcii- loss. For in-
stance, your Honors will remember, without any refer-
ence to the Record, that in 188t'), or early in the spring of

1887, Warren said that it would not pay to take them
30 down to Victoria. That was the .suggestion then made;

but we have them in 1886, not disposed to ask for the
vessels, and when Munsie writes Tilton. he is asking for
information as late as July; and Tilton says: "1 have
advised you that you can get your vessels as early as
April, and I have got your answer to the letter," aud
Munsie has not asked for the vessels from that time until
Tilton WTites him again. Again, in Volume 5 of the
"American Reprint." at page((o, he put in a claim on the
18th of October. 1886. for the value of the "Onward."

40The "Thornton" did the same thing (see the same page)
in October, 1886; and Munsie for the " Carolina" on the
20th of October (page ("ilt). Now, this being so, it is treated
by the parties themselves as a (;ase of capture and loss; and
it is immaterial whether the United States got into com-
munication with their people or not. If the claimants had
got into communication, they would have straightened
out the mistake about the telegram; but it is immaterial
whether they understood each other or not. A tender back
of these ships was legally unnecessary, for a tender would

50 not have been accepted They were always treated as cases
uf total loss to the owners. They were given the oppor-
tunity to ask for them and they never diil ask, but treated
them as claims for damages and value as total losses. I
need not refer to the authorities on this point. The law
does not require a vain thing or an unnecessary thing. A
leading authority is the ca.se of the Arlington estate in
the Supreme Court of the United States, I do not remem-
ber the volume; but this is the doctrine: that where the law
requires a payment of taxes, and the conditions are such

fctliat it appears from the conditions that a tender if made
would not have been accepted a tendei' need not be shown;
in that case the United States had asserted a confiscation
for treason, but they also had a tax title upon the property,
and the question arose as to whether, coming back to the
tax title, the owners of the estate in privity with the

1028

(Mr. Dickinson's Closing Argument.)

Lees, when the law required the payment of ta.xes, clso
title would be t'oifeited, were ()l)liged to show a teiider of
taxes, wlieii it appeared that the United States were in
po^^session at the time claiming title on other grounds, and
thus that they vvoidd not have accepted the tender of taxes
from the original owners.

'° I desire now to i-efer to some things that have lidon
omitted, hefore coming to the scope of the Convention,
which latter subject 1 shall be very brief about, as I have
treated it so fully in the printed argument. 1 refer
to the St. Clair case, 15-1: U. ti., to which your Honor
called attention yesterday, and which was a case of murder
on the high seas. The question arose as to whether the
Court below was right in holding in a criminal case tliat
the registry was sutticient evidence, in the absence
of any proof of othei' nationality of the ship, to sustain
the jurisdiction of the United States; and heio your
Honors will see that the ettect of the registry laws was
precisely like those of Great Britain in their terms. Tlio
learned Judge who delivers the opinion. Justice Harlan,
reviews the registiy laws of the United States, and con-
strues them as follows:

" No vessel shall bo entitled to be regiHtereJ, or, if registered, to
" the benefits of registry, if owneil iu whole or in part by uuy citizen
" of the United States who usually I'esides iu u fonn'gu eoiiutry,
" during the oontinuanee of such residence, unless he be a ctiusul of

30 " the United 8tat<>s, or an agent for and partner in some house of trade
" or eopartnershii) consisting of citizens of the United States actually
" carrying on trade within tlie United States ; and that no vessel sliafl
" be entitled to bo registered as a vessel of tho United States, or, if
" registered, to the benefits of registry, if owned in whole or iu imrt
" by any person naturalized in tho United States, and residing tor
" more "thau one year in the country from which he originated, or fur
" more than two years in any foreign country." * * *

" We are of opinion that the court below (\id not err in holding that
" the certificate of tho vessel's registry, and its carrying the American
" flag was admissible in evidence, and that sucli evidence madi', at
" least, a /i/-/)(/'/ ./Wr/> case of i)roper registry under the laws of tho

40 " United States and of the nationality of the vessel and its owners.
" 'The purpose of a register,' this court has said, 'is to declare the
" nationality of a vessel engaged iu trade with foreign nations, and to
"enable her to assert that nationality wherever found ' (The "Mo-
" hawk,' 3 Wall., !>(!(), 571 1. The object of the above evidence was, no
" doubt to meet any (luestion that might arise as to tho jurisdi<tion
" of a court of the" United States to punish the particular ott'ense
" charged. If the proof was unnecessary for that purpose, it could not
" have i)rejudiced the accused. If necessary it was jiriDin /u' !,■ sutli-
" cieut to establish the nationality of the vessel. A vessel registered
" as a vessel of the United States, is, in many respects, considered as
" a portion of its territory, and ' persons on board are protected and

50 " governed by the laws of the country to which tho vessel belongs."

There is no question whatever about that In luy
opinion a sailor, ov a per.son who articles on an American
registered ship, bearing the American flag, should be con-
clusively held quoad tiie criminal laws to have enlisted on
an American ship, 'i'hat is a different case, may it please
your Honors, than where there is a direct proceeding to
determine the nationality of the ship. The man enlists
on a ship purporting to be an American ship, with all the
, insignia of Aujerican nationality, and, of com-se, he can-
not raise the question of nationality collaterally; I think
that it should not ha prima facie merely, but conclusively
presumed in any collateral proceeding that the ship is
American on the certificate of registry and the flag. This
is a question of criminal jurisdiction in a municipal court.
It is quite a ditfereiit case, however, from a proceed-

<;l»

102!t

(Mr. Dickinson's Closing Argument.)

ing (lirectlv raising the question on tliat as an essen-
tial issue as to what is the nationality of a ship in a
civil proceeding like this. I refer to the ca.se in
2 Wallace, Jr.. which my friends criticise, to show
it was generally considered there ; hut that case
held that tlie register was not even prima
favi". evidence of ownership. I have referied to that inci-

lodentally, hut I have always conti-nded, as I said hioadly
in my hrief, that the Hag and the registry must he held
in any Court and everywhere as j)rima facie evidence of
nationality, and whoever invades the deck invades it at
his peril; hut the question of owneiship may he raised in
a direct proteeding, and necessarily, as nationality follows
ownership, the questicm of nationality in a direct proceed-
ing against the ship is quite a dirt'Hrent thing from per-
mitting it to he raised collaterally hy a sailor, or a chart-
erei', or a consignor.

20 Sir C. H. Tiipper: -There is a recent case in England
holding the same as this St. Clair case in the United
States.

Mr. Dickinson:— I am only referring to criminal cases
to show the distinction as to the effect of the register.
Criminal cases are under municipal law, and the position
of Great Britain is jirecisely the same, that though a ship
is registered, it does not hy any means follow that she
is of the nationality of the registry, as hoth the British
act and ours provide that even if registered, she has not

30 the privileges of a British ship, unless British owned; and
an American ship has not the privileges of an American
ship, even if registered as such, unless she is American
owned, and owned hy naturalized citizens residing in the
United States.

I am clearing up in a somewhat hasty and disconnected

way several matters which I think worthy of mention.

My learned friend has referred to the statement in our

hrief as to tiie greater losses hy citizens of the United

States hy seizures in Bering Sea. In connection with

^°my learned friend's contention that seizures hy the United
States were wanton and willful. I stated that tht> United
States could hardly he hehl to wan^onviess, when tiiey took
the ships of our citizens as well as the ships of Great Britain
when exclusive jurisdiction was claimed in Bering Sea;
and I stated that the losses hy the citizens of the United
St ites in this matter as compared with those of British
snhjects were as a thousand to one. Whereupon my friends
respond tiiat the seizures are very much greater of British
than of American ships. When I referred to the losses

5° as a thousand to one, 1 included hoth seizures and warn-
ings; and I differ from my friends here, and will demon-
strate from their own hooks that the seizurgs and warn-
ings of even 'lominally American ships owned by American
citizens were greater in Bering Sea than those of n<iu)i-
nally British ships. 1 refer, of course, too, to the t^xclusiou of
American citizens from Bering Sea; to the tremendous
losses incurred hy the preparations made in issd and 1SS7
iu San Francisco for the sealhig business, when most of
our American citizens oheyeU the law, kept out of the

'"'Sea, and so lost their investments. But on the matter of
the actual seizures, to say nothing of the immense num-
bers of vessels that would have gone into Beiing Sea,
but were kept out by obeying the law on the side of the
United States, tlie actual seizures and warnings, as shown
hy my learned friends in their case here, show an excess

II I I

r-*^M'

V !i:

ill

i t

(Mr. Dickinson's Closing Argument.)

of seizures iind warnings of United States vessols liv
United States cruisers over tliose of (J teat Britain. I
refer to the statenibMits of the seizures, made hy (irc.it
Britain before the I'aris Tribunal, showing the places dt
seizures and warnings, V^>linne :» of the American He|»rinl.
ap])enilix. commencing with map fl, and 1 find they arr
schedided for l.s.s*;, IHh" and lss!». Of British ships m
lolhM'i. 1H87 and 1hs!>, there were seized and warned !)>• ih..
United States. 17; of United States shi|)s there weie seized
and warned. '21. The next lot of seizures and warnings
of British ships shown was 4."), and of United States sliip>
»!2, All these by United States cruisers. My frieniU
thought I was very nuici) in error, so I have looked l)a( k
to the British case to see whether I was or not. These
ma|ts were put in evidence hy Great Britain at Victoria.

Mv learned friend, Mr. Beiqne, iias statc(i that niv
position at Victoria was, that these were natidnal

2oclaims of Great Britain. Well, 1 am not aware tliat
I have changed my attitude; neither are your Honors
aware of it. Early at Victoria I did think that tiie
claims should all be charged together for the pm-
po.se of shoitening the te.stimony and shortening the
time of the session. I urged then that this fund, when-
ever it was given, although found in separate claims In
the Commissioners, would be given into the hands of Great
Britain to he distributed, of course. We pay not to the
claimants, but to the treasury of Great Britain, not with

Sostanding that your Honors find specific claims; but ur^ed
in connection with what I argued that inasnmch as
nuich of the testimony would necessarily apply to every
case, how nnicli better it would be to open entirely on ail
the British testimony and then let us put in our deieiise. I
submit, in looking back over the ground, considering the
difficulties we have all labored under, and how we had to
mix up the cases on this Record by putting in a piece of
evidence hero and another there, not in any consecutive
Older, and then asking to have it read in, "or coiisideicd

40 ill at somo other jdace also, whether it would not have been
better to have so done. I do uot wish to say now. I told
you so, Lut the difRcuties that did arise were what I liad
in view, and I never took any other position tlian that
tliese were claims of individuals, national only in the sense
that they were jiresented by (ireat Britain, but always
claims of individuals.

My learned friend says that on the Record 1 stated that
there had been no delay by tireat Britain, and that I con-
coded it. That is right. It was not in that connection,

5<' however, but because I was objecting stiennously at the
time to any evidence of the correspondence on any ground.
My friend offered the diplomatic corrosp(mdeiicc between
the two governments in order to show, as he stattnl at Vic-
toria, and states in his original brief, what claims were
to be presented before you, instead of going to the Con-
vention itself, and going to the award and findings of fact
by theParisTribunal. Another ground vvasthathe wanted
to show that the United States had delayed in some way;
another ground was that he wanted to show that Great

60 Britain had been prompt. I objected to the introduction
of the correspondence in this case for the reason
that it v\ as not competent on any of these grounds. But he
saiil he wanted to show that Great Britain had not delayed
in the matter, and I said, as he states, for the purpose of
that argument then, that I was uot making any conten-

lOI'l

iicce of

'ciitivc

isidt'iiMl

vehci'ii

I told

it 1 lia.l

ui that

sense

always

ed tliat
I con-
nection,
at the
;ronnd.
)et\veen
at Vie-
is wt'ie
It' Con-
of fact
vvanteil
le way;
t Great
(Inotioii
reason
But lie
delayed
•pose of
conton-

(Mr. Dickinson's Closing Argumont.)

tion that ftteat Britain had delayed in the matter. The
Court, however, ruled against n)e and a<lniitted all diplo-
matic correspondence oflfered hy CJreat Britain, in spite of
my contentions. I do now contend that, afti-r its admis-
sion, overruling me, that on none of the grounds on which
my friend contended for its admission, does the ividenco
sustain him on the points that either the United States
jodejayed, acted in had faith or that (Jreat Britain was
prompt, or that the correspondence aids in the construction
of the Convention. I do now contend especially that there
is not a word in the correspondence which shows that the
United Statesare guilty of any delay. While I am on that

1)oint I may as well dispose of various statements which
lave heen made as to Mr. Bayaid's position and his delay.
My friends have stated that "although these seizures in
" IHMd were made on the 1st and 2d of August, and althoujOi
" information was furnished to the Secretary of State on

JO" the isth of the same moi.th. and althongh the British
" Government asked on the 27th of September for the i)ar-
" ticulars of the seizures, no intimation as to the cause of
"seizure, nor any particulars relating thereto, could he
" ohtained from the United States Government until the
" 12th of April, 1H87, and not before the 11th of July,
" 1M.S7, did that Government communicate the pieci.se na-
" ture of the proceedings;" and Mr. Beicpie says in iiis
argumont that " nothing was heard from Mr. Bayard in
" legai'd to these .seizures untilJuly is, lH,s7." Now, again,

;o how easy it is to be mistaken. The correspondence does not
show that Mr. Bayard had any information on the isthof
August, lS8t). The correspondence does show that on the
ISth of August, after the seizures, one of the masters of
the American revenue cutters telegraphed the Secretary of
the 'J'reasury that he liad made such seizures, and it appears
that promptly full inCormation was asked for hy the
Treasury for th > use o^ the State Department, when the
Bi itish (jrovernment asked for it on the 27th of September
and opened the correspondence; but it is not the fact that

("it was not until the 12th of April or July 18th, 18S7, that
the requests were responded to by the United States; be-
cause your Honors will see that by Mr. Bayard's letter,
on the question of whether the United States intended to
convey the meaning that no seizures were made in 1SS7,
at page 81 of the Record, it appears that he had written a
full letter to Her Majesty's (rovernment on February 3,
1S87; the controversy arising thereafter in IS'^T, wlien a
seizure was made, was over the construction of Mr. Bay-
ard's letter of February S, 18S7. Furthermore, it is charged

'here that they got no information whatever as to seiz-
ures of IS8(i: How about Mr. Tilton, the Canadian Fish-
eries Minister, wlio got all his information througli Her
.Majesty's Government, writing on July 2<>th that, as early
as the 2d of April, he had received full information from
IbM" Majesty's Government, which had theretofore re-
ceived full and accurate information from the United
States Government, with its position as to these seizures?
Delayed until July, 1887? Delayed until April, 1887?
There is the evidence in Mr. Tilton's letter that as early

'^" IS April 2 the British Government had sometime before
then the information that every ship seized in lH8ti had
lieen ordered to be released. Of course, this matter of
obtaining information from Alaska occupied some time,
lint when that information was obtained it was promptly
tnrnished. In citing examples in the introductory part

II I I

IdH:^

(Mr. Dickinson's CloHJiif? Argument.)

of our Jirgunit'iit in H'ply to the cliaigK of dt'lay, I have
citt'd cxiiinpU's from liotli novt'inmcntH without criticizing.
OovtMiimonts do not niovo so ntpidl)- jis iiidividiialH, cs-
pt'ciiilly as thoy must vrril'y tlie irifornintion on whicii
tiii'y act, and bo caivfnl of picmiscs hcfori' (oming to a
conchisioii.

My learned friends have stated also that we were fur-

lonished the claims, and liave delayed tlieii' payment on
various groMM<ls. constantly shifting them, and ho on.
Nosv the Kecoi'd shows at page r.!> that it was not until
April. iN.ss, that even Her .Majesty's (roveinment ha<l any
statement of the claims at all; they were furnished
through the Tanadian (iovernment, and Her Majesty's
(loveiument never did make any claims against the
United States— verified claims nv otherwise oi suggest
them, until April I'.t, Iss.s, and then Her Majesty's (Jov-
ermneiit stated that they had "hut just ieceived"the

20 particulars of the claim for compensation on account of
Hi'itish sealers seized ami warned off by the United St tius
authorities in Mering Sea. Did tliey ask for jiavment;
Were they del.iyed then to April is. Isms; ^uf at all; he-
cause no claims were |)reseuted. Her Majesty's Govern-
ment go on to say that '• a just assessment of these
" claims appears to them difficult without justification
" and verihcution," up to Ajiril inth. and they therefore
suggest whether the United States wouM he disposed to
agi'ee to aConvention; and negotiations were commenced

30 which resulted in the 'J'reaty of \s\\-2 without the
presentation of any claims whatever. 'I'hen after that
Treaty was there any delay J In tho Treaty it wns
decided that the matter of clainis should he postponed that
the subordinate question of clain)s should no longer deliy
the settlement and deteiniination of the cpiestions in
volved. and so on. Therefor*;. n|» to the time the nego-
tiations commenced, (ireat J3iitain had not presented the
claims, as erroneously stated by my learned friends,
doubtless by a mistake in the constructi(jn of the ( orre-

40spondeiice. It is admitted by the law of nations that he-
fore a claim can be presented by one (iovernment to
another, the claims shall bo first audited and then
presented by the Government of the claimants. The
Government of Great Britain, itself, proposed that they
should enter upon the negotiation which resulted in the
Paris treaty of l^'.>-2, whei'ein it is recited and is conclusive
that the matter of claims should be postponed by agree-
ment until after the disposition of the main question.

And we are charged with delay too, in the printed argu-
-' ment, as if it were delay in ban faith. That I do not refer
to nor di.scuss further than I have done in my brief, al-
though it has been made enough of, even in the oral argu-
ments, to cut a great figure, by three of Her Majesty's
counsel — my learned friends the Senior Counsel, Mr.
Beique and Sir Charles. Now, it appears, when we come
to consider it, that no claim can be based on the corre-
spondence introduced by my learned friends. The only
figure any delay could cut is in lespect of the subject of
interest.

Now, your Honors will find on this Record— and [
put this down as a statement to which there can be
no contradiction, it being a rule of international law that
before claims are presented to a government they must be
audited by the presenting government— that no claim
was presented to the Government of the United States

i'll

lOHU

(Mr. DickiiisoirH Closing ArKumeiit.)

by fireat Hritiiiii until the Paris Triltuiml iiict in IMK(, unti
the statiMuent is itositivoly iinassailabh^on this lit'i-ord.

In issM (Jrwit Britain's "Minister slated that thatOovern-
nient had just received theelainis from the clainiaiils, hut
never presented ili> U); negotiations were continued in the
Tit-aty and tlie consi<ierati')n of claims was jjostponed hy
the Treaty of I'ai is in 1H)»2, ami they weie never shown

lo or suggested to tliu United States in detail or in general,
until laid upon the Kec'ird in the Mritish case at Paris,
pages 1 to tin, inclusive, in IS'.Ki,

But it is said tiiat we have shifted our ground and there-
fore we are to have a sort of rule of exemplary damages!
Lung before the Paris Tribunal your Honors will Hnd the
statenient of the United States, consistent with its state-
ment from beginning to end, as shown by Mr. Carter in
his argument which 1 have le'ferred to in my brief. That
statement was this: We claim a property light in seals

20 and therefore the exclusive jurisdiction of the seal fisheries
and for the protection of seals in Bering Sea, and we
claim also, whatever there is of it, Russia's right
in the Bering Sea in connection with the same
thing. If it was exclusive and a viair clntifmin we
will get that Russian right. They were both claimed and
there was never any departure from both claims. The
Tribunal at Paris bad not sat when the Supreme Court of
the United States in 14H U. S. showed the position of the
United States -without any side lights from the debate at

30 Paris. The position of the United States in isso and Issi)
was that we had property rights in the seals in Bering Sea
and bad as well whatever rights Russia had. And it was
so stated by Mr. Phelps when the controversy was opened
on September 1:ith, 18S8, as shown in Volume :i of the
American Reprint, at page isl of the appendix.

In respect of the " shiftings " of the United States in
this matter, contended for in my learned friends' printed
argument, and in their oral argiunent, for the sole purpose,
I suppose — the only purpose it can be used for—of getting

40 .something in the nature of exemplary damage or to indi-
cate a new way of estimating seal skins and the value of
vessels, I call your Honors' attention to the statement by
Mr. Carter of this same question at page 2!> of N'ohune I)
of the American Reprint, although Great Britain's claim as
to shifting positions was not made at Paris with anything
like the emphasis with which it is made here. But not-
withstanding all this you will find that the point my
friends seek to make is that, given the premise, that hav-
ing furnished particulars of the claims to us, we shifted

?° ground to excuse ourselves and delay payment, and this
is stated in plain cold print in their printed argument,
page 14. line H», and at page IT), line :?u.

My friends have referred to " The Jones" case under the
Convention of isnu. In negotiations between govermuents
there are frequently long delays. I cited, without reHect-
ing upon Great Britain— which we have not done in any
place in the argument or out of it— that Great Britain
delayed in that case three (o three and a half
years before responding to our claim for damages. They
say that is true, but in the ''Jones" case great damages were
given for delay and they piedicate upon that that the
United States must be mulcted for delay here. They say
that in the "Jones" case the awaid was largely increased
over what the American counsel and American Conunis-
sioners contended for and the reason was the delay. My

('K^

ll I

lo:u

(Mr. Dickinson's Closing Argument.)

leaiiied friend is mistaken again abont tliat. In the "Jonos"
case the ship was a valnable one. The amonnt was largely
incieased over what the British counsel arlniitteil. Tlio
value of the ship instead of the price she brought umler
the decree of sale— for wiiich he contended —was given.
It does not appear iiow the claim was presented or th(>
particulars of the claim, but as to the fact that this ship
10 was a very large ship of great tonnage— that fact does ap-
pear. It does appear that British counsel contended that
the less measure of damage should only be given, to wit,
what the ship brought, but a very n)uch larger amount
than tliat contended for by the British counsel was given,
to wit. her value, and what my friend states does not ap-
pear, but tlio contrary.

Vauje of Vessels.

20 Now a word upon the subject of sales of ships as a
measure of values. In regard to the evidence of sales, the
true rule, as I understand it, and as stated by authority, is
that tli(> evidence of market value is the measure in case
of total los.s. And the evidence as to value in Nova Scotia
and elsewhere is only competent as to shipping sailing out
of Victoria in the absence of proof of sales of shii)s of this
class in Victoria sufficient in number to show a market
value there. On the admission of this testimony of cost
of building and of values at Nova Scotia and soon, in Vic-

Sotoria, it was stated from the bench— to my objection
that the market value at Victoria only was propei —
that there was an exception to the rule, and analogies
were drawn from other cases. One case I reniernlier
particularly, referred to by the Couit, where on the
coast of Africa— where there could be said to be no evi-
dence of a market and therefore evidence of the i)rices at
other places was admitted. But on the evidence of value,
sales are the best evidence of market value, and you cannot
go into the question of cost of building and sales elsewhere

40 unless there is absence of evidence of sales to (i.x the
market at the time and j)lace. Cost and other market
sales might be given as secondary evidence in the absence
of best or primary evidence— the evidence of sales bearing
on time and place. But without producing evidence
of sales within reach of the claimants, they contended for
secondary evidence of value, of the cost at Nova Scotia
and the cost of building at Victoria, because there were not
suffirient sales at Victoria to afford a basis. J call your
Honors" attention to the cases of sales wi„hin their power

30 to give evidence upon. I do not refer now to the mere
adjustments like the .adjustment of partnerships between
(Jutinan and his partners, or to the settlement of estates.
These are excluded, but on the face of these regi.stiies at
Victoria put in evidence by Great Britain, your Honors
will tind :{t) sales of this class of vessels at or sailing out
of the port of Victoria, as to which your Honors have not
been furnished with an item of evidence by my learned
friends on the other side.

My friend and learned associate, Mr. Lansing, has called

''^attention to this evidence. The legal effect I apj)ly, and 1
cannot do it any better than by referring your Honors to
an elemental V lulo well stated in the case of the Kelrna
K • h'oad against the United States in UV.t U. S., .^)tiOy.")ti7.
Th.ii is on this point— that even where evidence, either
a.fr . lative or negative, is largely in the hands of one of

hc:,

(Mr. Dickinson's Closing Argument.)

two parties to litigation aufl it is not produced for the
benefit of the Court considering the question, it must he
taken that the evidence, if produced, would he most
strongly against the party failing to produce it. Tt is a
rule of evidence of universal api)licatiou strongly stated
in that case and by the authorities there cited. Here are
thirty-six sales, excluding mere partnership transfers

10 which are not actual sales, shown on these registries, of
this very class of sealing shi|>s and mostly of these very
ships, ar. 1 not a man but was within control of these
clain)ants and within reach of this court. Man after n)an
on the stand, appearing by these re;;istries as party to
these sales, were witnesses for Great Biitain, and not a
word concerning the sales of these vessels was brought
out. To be accurate, the |)arties to these sales, with the
exception of two, were on the stand upon the question of
catch or some othei- question, where this testiiuony could

20 have been gone into, and were on the stand as witnesses
of Great Britain.

40,

"Black Diamond" No 5.

I desire to refer agaii\ to the "Bl<irk Diainoiul " case. I
think my learned friends were not mistaken in the admis-
sion they put in their printeil brief as to the ovvniMship of
the "Black Diamond'' by Frank.

Mr. Peters: -1 propose to show in my reply that we
) were mistaken.

Mr. Dickinson:— This is for the "Black Diamond" of
1880, and against oui- objection there was read into the
Record the correspondence with reference to a compromise
for a lump sum by my learned friends, and among other
claims for ships named by Kir Julian Pauncefote in his
statement or schedule is the " Black Diamond." He saj's
in liis letter as to the " Black Diamond ":

" Black Diamond. "

" (Additional claim siibuiittod In the Manter, Mr. Henry Paxton,
for (Iftuiaptes allrg(!d to liivvo been Nustaiued hy reason of the above
" schoucr liaviuf; been ordered out of Bering Sea in 188(5 by the United
" States authorities.)
" Estiuiated eateh for Auf^ust, 1880, 1,000 hkius at 37.50
" e.ich (the price of wkins at Victoria Juriijf^ the fall
" of 188(i) S7,.')00 00

" Tliis claim was sent in too late for insertion in the general list of
" British claims. In view of the? leufjtli of time that had elai)sed since
" the occurrence of tlie action comiiliuned of, Her Majesty's (iovern-
" meiit deemed it advisable to cause an incjuiry to be made as to the
" reason for tlie delay in iireseutiuf:; the claim. The reason given was
^O " that at tlu' time of the seizure of the vessel, the co-owiiors, who were
" l/ivee ill iiniiihi'r" |l'a>itou had a cajitain's interest of thirteen sharesj
" were doubtful as to how far aii ajipealto the United States (Jovern-
" meut for redress would be entertained. In the following year one
" of the owners was lost at Hea"|that was (iutmanj "and anolher
"left the coiiutrv " [that was Frank] "ami it was only after the
" publication of tlie award that the surviving owner consulted his
" solicitor and was informed that he had a good r.nd ecpiitable claim
" for eompeusatiou. The claim was then drawu uji and iiresented
" at ouue."

The owners were not I'axton and Gutman alone, there-
iiofore. The other and third owner who had left the country^
was a gentleman named Alexander Frank, ofcour.se, and
my friends were right in stating the position of Great
Britain, as Great Britain understood it, that Frank was
that owner. That, as otiierwise .shown, was the truth.
At one o'clock the Commissioners took recess.

103C

i' .*.

'!-,^],'b

(Mr. Dickinson's Closing Argument.)
At half-past two the Commissioners resxuned their seals.

The Scope of the Convention.

Mr. Dickinson: — I now come to the scope of the Con-
vention, which I shall discuses biiefly, because I assume
in the presentation of the oral argument on tlie law,
that your Honors will, inasnuich as the printed brief
is uol discursive, but most carefully condensed, read it
and consider the authorities there cited. I shall not at-
tempt to detain the Court by reading what is set down
there, except as it may be necessary and material to fur-
ther ehicidate the points made, international Law ap-
plies here and applies to these claims. The application of
it to this Convention, and the fact that it governs this
case, is discussed in the brief. Passing over that subjec t,
I come directly to the interi)retution and the scope of the
Convention itself. I call your Honor.s' attentiim to this
"'-'important consideration from Sir Sherston Baker's Hal-
leck. and I shall read from Vattel to the same efi'ect and
from Hall. It is the same doctrine in all the jjublicists
whom 1 have cited.

Regarding treaties like this for the peaceful settlement
of disputes, by Arbitiators or Commissioners, Sir Sher-
ston Baker's Halleck, \'ol. 1. p. 4t>7, says:

" If the contending parties Imve agreed to abide l)y the decision of
" these referees, they are tmnnd to do so, except in cases where tlie
,Q " award is olitaiued liy collusion, nr is mil canjhifd irilliin tlir limlls :./'
" ///(■ siilntiissinii. Jf is I'Sfi'il fit sjierifii, in tlir iii/rfrmrti/ tn itr/ii/rntr, the
" t.enii ijin'sliiiiis irliic/i urn la lie ileiiili'it hii llie urliilni/urs, uni/ if Ihni ,■./'-
" Civil llii'sr jirevisi' Imiiiiils uinl jirulnnl In i/r iilr njinii nllii'r /niinls limn llmsf
" siihniilti'il III lliriil. Ilnir ilrrisiliii is in nil rcsjicci liinilinf/. Thus till'

" award of the l\ing of the Netherlands, (>n reforencc liy treaty, in
" IH'27, of the (piestioii of the uortheasteru boundary of the failed
" States, not being a decision of the <iuestion siibuiitted to him, luit a
" j>r<)])osal for a coniprcunise, was not regarded as l)inding either upon
"the Unites States or Ctreat liritain, and was rejected by both."
-* ■* *

The same rule of interpretation applies to treaties as to

^° statutes, and 1 have cited the rule from Greenleaf as tt>

statutes, and Vattel as to treaties, and some other autluir-

ities following. Vattel says, and I quote from Chitty's

Philadel|)hia Edition ^p. i!T7):

" In order to obviate all ditliculty, it is necessary that the arbitra-
" tioii articles should precisely specify the subject in dis])uti'~ the
" demands of the one, the objections of the other * * ♦ if then
" the sentence be coutiued within these i>rccise grounds the dispu-
" tautH must accpiiesce in it."

50 In my opening remarks submitted to the Court the
other day, I showed the history of arbitration as well as 1
could, the care with whii'h treaties have deliminated siiii-
jects of reference, and definitely described and delincd
them, so that there might be no(loul)t as to the specitic
(luestimis referred, carefully avoiding reference to geneial
(luestioiis or anything under a general head. Hall says.
Fourth Edition, jiage :{7l»:

" The decision liy arbitrators must lie disregarded when the tribunal
f " has clearly exceeded the powers given to it l)y the iustrumeut of
" Bulimission."

Of course, if there is no obscurity in a treaty or a stat-
ute, there can be no reference made to extraneous matter,
but if there is ambiguity and extrancdus matter is to he
referred to, the universal canon for construction is that if

1087

(Mr. Dickinson's Closing Argnnient.)

the treaty or statute itself contains anything to tinow
light upon it, that fhall he tirst referred t.>. I suhinit
further, however, that it is a law of statutory construc-
tion, and of the construction of treaties, that iinytliing re-
ferred to set out by lefereiice in any statute or treaty
is a part of the statute or treaty, as, for instance, in
legislating as to land, if a map or chart is referred to,
10 recorded at any place, and specific reference is made to
the place of record and date, that map or chart becomes
a part of the statute as much as if it was embodied in the
statute itself. Any public document that is referred to
and identified iu a statute or treaty becomes a part of it.
Another canon of construction I have before referred to
is, that the construction of a statute or of a treaty is to be
taken most strongly against the party prei)aiing the clause
upon which the question is raised. To that 1 cite Vattel,
and by |>arity of reasoning, a nation caiuiot enlarge the
2o scope of the clraft.

The authorities unite in declaring that the ordinary rule
of interpretation of contracts and statrrtes applies to the
interpretation of treaties. The rule has added empliasis
wherr the iritcrrratiorial compact in enter-ed into among
natiorrs whose orgarric law icquirt's the ratiHcatioii of the
compact by more than one branch of the (Jovcr rinrerit.

Yoru' Honors will observe that in this Corrverrtion, the
last clause of Article IX., as in ail treaties by tlie ITnited
State.s, proposed tentatively, it is provided that the C'on-
3ovention shall be latitied by Her Hritarniic Majesty and by
the President of the United States of Airrcrica. "by and
with the advice and consent of the Serrate thcieoi." So
thei'e is an added reasoir for' the .strict crrfoicemerrt of the
rule, where ratification is re(piir'ed to he had by another
body tharr tlie executive(le|)artment\vliiih originally signs
the treaty.

Mr. Peters:— I worrld like to ask my learned friend

whetirer- on that ground there shoidd lie a dilfeient rule

of constructioir of a treaty made between Great Britain

40 and the United States, and a treaty irr the same words

between Great Britain and some other- pow^er^

Mr'. Dickinson: — No, and I have not said so; no differ
ence in the rule of corrstruction. I have been unfortu-
nate if I have not stated that 1 am endeavoring to point
out that in the construction the aibitratiorr mrrst be con-
fined strictly to the treaty, and I have said tliat that rule
has an added force when on its fact? it is to i)e r-atilied
by another body than that which negotiated the treaty.
1 am endeavorirrg to point out the danger' if the arbitra-
ge tors shordd go outside of their jurisdiction. My learned
friends cannot be more anxious than I that we should
havean award which does not pass the limitsof thisCon-
vention. We want an award that will be final and con-
clusive, lam endeavoring to point out that airy departur'e
which would pass b(\yond the boundai'y of the jurisdictiorr
of the C'onrmission would eiidairgei' the treaty itself.
Mr'. Peters:— Who is to judge of the jurisdiction?
Mr'. Dickinson: — This Uonrmi.ssion, in the first instance.
Hut 1 am stating an added reason for the rule under the
6i)circumstances. For ir'.stance, to illustrate exactly what I
mean, if I have not urade myself clear. If this ('oirven-
tion shoirld proceed to hear claims for damages for' the
destruction of a vessel in t!>e North Atlairtic, and shoirld
pass judgment upon it, theavvar'tl would birrrl nooire, and
the tiiire when it would be fornrally demonstrated would

1 ;

•"

('■

I'fi'::

1038

(Mr. Dickinson's Closing Argument.)

be when the Congress of the United States shonld come
to make the appropriation to pay the award. On the other
hand, if tlie decision were to be against Great Britain, the
time when it would be apparent would be when Parliament
came to vote the money to pay the award. Tliis question
came up in the construction of the treaty itself in 18!t2,
when it was proposed in making the findings, to find tliat

loGieat Britain on the one side, or the United States on the
other were wrong, as a fact legally concluded, on whitli a
liability might be hung on such finding; it was objected
to and avoided because the Tribunal had no power to find
facts on which a liability or an escape from liability would
follow, and, second, because no representative of the
United States, without concurrence of the Senate, could,
by consent, enlarge the treaty. At page 27 of my brief,
I have cited the colloquy which tooK place in Sir Charles
Russell's argument in the American Reprint, pages 4ti 56.

20 If this is a reference of specific claiins embraced within
certain pages of tiie Re;:or(l, as pointed out. then, if any
other claim is considered, tlie whole award as to the valid
claiM)s will go by the board. That is the danger, if our
contention is riiiht.

Mr. Peters:- We will take the risk.

Mr. Dickinson:- Veiy well, any advocate, when the

forensic sjjirit is hot uiuni him will take chances to win,

but after all, the sober second thought is, when we come

back reveised. we always wish we had not; we wish

30 we had kept within the law when we have to come back
aftt'i- a new trial has been ordered, and our labor has gone
tor nothing.

1 refer m'xt on page 27 to other claims conventions, and
the si)ecific reference of matters carefully deliminated
and defined. By the treaty of Washington, Article
XII., a commission was created to which was refeiied
certain s]tecific claims, no more carefully pointed
out in the Convention than in this, and the
jurisdictional question came up under that act, as it did

40 under the Treaty of 1S.5S It always comes up. The
Alabama Treaty or Convention was siti (jeueris. It i)ro-
vided for just what we have under this convention. Al-
thouiih it provided in one instrument a board of arbitra-
tion at (ieneva, and in the same treaty for giving a lump
sum. it also provided that if the arbitrators did not choose
to give a lumpsum they might refer it to assessors, whose
powers were limited by Article X. of the treaty thus:

"Abticle X. — lu caao tLo tril)unnl flnds that Groat Britaiu has
" failed to fultil any iluty or duties as aforesaid, and does not award

50 " a sum in Rrosi, the hi^h contractiuK parties afjree that a hoard of
" assessors sliall \w appointed to asocrtain and determine what claims
" are valid, and what amount or amounts shall be paid by Great
" Britain to the United States on acpount of the liability arising from
" sneh failure, as to eaeh vessel, according to the extent of such lia-
" V)illty as decided by the arbitrators. * * *

"The members thereof shall severally subscribe a lolemn dcclara-
" tion that they will impartially and carefully examine and decide to
" the best of their judgment, and according to justice and e(iuity, all
" matters submitted to them, and shall forthwith proceed, under sucli
" rules and regulations as they may prescriV)e, to the investigation of
' ' the claims which shall bo presented to thorn by the Ooverument of

60 " the United States, and shall examine and decide upon them in such
" order and manner as they may think proper. * » •

" Tho decision of the assessors shall be given upon each claim in
" writing, and shall be signed by them respectively,"

Now as to the claims to be considered, we submit, and
this is our position: The "claims" are such as are speciti-

' If;

1030

(Mr. Dickinson's Closing Argument.)

cally described as referred to the Commission in and by
the Convention of February 8, 1896, and the "persons in
whose behalf Great Britain is entitled to claim compensa-
tion " are those specifically named in that convention as
the pereons who presented the claims at Paris, unless and
except—
(a.) The United States establish that another person in

loany case is the "actual" owner, who is a citizen of the
United States, an exception provided for in tbe conven-
tion itself.

These are not claims of vessels. These are claims of
persons. Your Honors will find in conventions hereto-
fore where vessels were the subjects of claims, the claims
have always been presented by the owners, and the
crews presenting claims always as persons, and the find-
ings have invariably depended on the personal status
of the claimant. This whole Treaty, taken together, is

2o consistent, and is like all other conventions in that re-
gard.

We have stated that the Convention of February. 1896,
consists of three documents: First, the Convention standing
by itself; second, the treaty signed at Washington, February
9, 1892; third, the award and findings of tiie Pai is Tribunal.
These are found specifically referied to in this Convention
by date and otherwise identified by reference. And you
will find there specified certain Findings of Fact. The
subject matter of the Findings of hacts is the British

3oschedule from pages 1 to 60 inclusive. We find by the
tentative drafts 3 and 4 in the negotiation that it was first
provided that the claims should be for compensation as
claimed to be due from the United States. That is, those
which might be made under the award of the Paris Tri-
bunal without any reference to the Findings of Fact.
The effect of these first drafts was that because the United
States were found not to have jurisdiction in Bering Sea
that any one who was injured in Bering Sea — any one
under British protection might bring a claim against the

40 United States? Then the word " Findings " was put in
as a limitation to the jurisdiction. And we als^o find in-
stead of the words, "claims for injuries sustained and for
the compensation as (;lainu>d to be duo as from tbe
United States under the award of the Tribunal of Arbi-
tration," as proposed, these words were changed in the
next draft to the following: " All claitns sustained by per-
" sons in whose behalf Great Britain is entitled to claim
" compensation from the United States, and arising by
" virtue of the treaty aforesaid, and the award and finu-

50" ings of the said tribunal of arbitration." Then it must
be a claim arising under the treaty and the findings of the
said Tribunal of Arbitration.
The preamble of this Convention leads:

"And whereas, the Agent nf Great Britain did, in accordance with
" the provisioDB of soid Article VIII., submit to the Trilmnal of Arbi-
" tration certain tindings of fact which were agreed to, as proved by
" the Agent of the United States, and tlie arbitrators did unanimously
" find the facts so set forth to be true, as appears by the award of the
" Tiibnnal rendered on the 15th day of August, 1893." * * »

^'o That was specifically referred to by date and identified.
Then the Convention goes on to say :

" And, whereas, in view of the soid findings of fact ond of the decis-
" ion of the Tribunal of Abitrotion concerning the jurisdictional
" rights of the United States in Behring Sea, and the right of proteo-
" tion or property of the United States in the fur seals frequenting the

I ■

i. ti

1040

(Mr. Dickinson's Closing Argument.)

" islands of tbo Uuited States in Behring Sea, the Government
" of the United States is desirous tbat, in ho far as its liability
" is not already fixed and determined by the findings of fact nud the
" decision of said Tribunal of Arbitration, tbo question of sucli lia-
" bility sbould bo definitely and fully settled and determined, and
" compensation made for any injuries tor whicli, in the contemplation
" of the treaty aforesaid, and tbo award and findings of tbo Tribunal
" of Arbitration, compensation may be due to Great Britain from tbo
" United States. "
lO

Tliese words weie afterwards continued in the suhae-
quent drafts until it comes to tlie final treaty wliich
was accepted. Now is anything outside of the fin(lings
of fact to come in? Yes. The "additional claims"
which are specified in the next pieamblo. Addition to
what? The canon of statutory construction is tliat if a
general clause is used, and a s|)ecific clause adding to it is
afterwards used, nothing else can come in except whnt it
specifies. But in order to he sure, these additional claims,

^°bear in mind, are not claims that arose since the Tribunal
of Arbitration convened, but they were claims which
would be governed, if the contention of my learned friend
is correct, by the eflfect of the award, as much as claims
referred to in the findings, because of the statenient
in the preamble that all these additional claims arose
prior to tiie said award. Our friends say they are not
restricted to the claims referred to in the findings. Of
course if the draft had been as first made that all British
claims could be presented for injuries sustained for which

3° compensation is claimed to he due from the United States
under the award of the tribunal, there would have i)een
no need to specify these adilitional claims, because the
award of the tribunal would have determined the liability
of the United States; and yet it is stated, let me re))eat, in the
preamble, that these additional claims stand on precisely
that ground and that they arose prior to the award, and
yet they are named as additional claims. It seems clear
that the additional claims were included by a specific pro-
vision in the convention, because all claims not referred

4° to in Schedule, pi>. 1 to ti(», were excluded by the specific
general clause on which your jurisdictiorr is based.
Article 1 specifies:

" The high contracting i)artieH agree that all claims on account of
" injuries sustained by per.sons in whoso behalf Groat Britain is cu-
" titled to claim compousatiou from the United StatoH, and arising by
" virtue of the treaty aforesaid, the award and tho findings of the
" said tribunal of arbitration."

They have to arise both by the awai-d and tbo findings.
50 Can your Honor's consider that as other than the liririta-
tioui

Under' Article '\ there is referred to you by the conven-
tion "every question of fact not found by the tribunal of
arbitration." Cair your Honors firrd any (juestion of fact
as to any claim which was not in the British Schedule,
from pages 1 to <>0, inclusive, other than as to "the addi-
tional claims"?

Your Honors will see, when you come to construe the
two together — the award and the findings referi-ed to in
60 the convention not being set out, hut identified and made
part of the convention -that the subject matter of all llio
findings is this, as stated in Firrding Number 1. " That tho
" several searches and seizur'es, wliether of ships or goods,
" and the several arrests of masters and crews, i'es|)ect-
" ively mentiorred in the Sclredule to the British Case,

1(141

(Mr. Dickinson's Closing Argument.)

" pages 1 to 6(», inclusive, were made by the authority of
" the United States Government."

And the lindmgs of fact apply to nothing else except
what is hetween pages 1 to (If*, inclusive. I have given
you in the pamphlet your Honors have before you the
award of the Paris tribunal, and the findings of fact at page
22 of that pamphlet, and your Honors will see that in Find-
loing One is the subject matter of all the findings of
fact, and is in respect of only what is within the covers
of the British case, pages 1 to tlu. inclusive. Upon your
Honors is conferred jurisdiction to consider no question
except such (juestions as to these as were not found by the
Tribunal of Arbitration at Paris. For instance, they say in
the findings:

" That the several searches and seizures, whether of ships or goods,
" and the several arrests of masters and crews, respectively mentioned
" in the schedule to the British case,"

Pages 1 to (iu, inclusive, again, your Honors.

Then Aiticle 2 says, "That the seizures aforesaid."
What seizures afore.said? The seiziu-es mentioned in pages
1 to tio, inclusive, of the British case, named in Finding
One, are the aforesaid seizures. The third finding says:
" That the said several searches and seizures." What said
several searches and seizures? Again those referred to in
the Britisii case from pages I to <Hi, inclusive, named in
Finding One.

30 "3. That the said several searches and seizures of vessels were made
" by public armed vessels of the United States, the oommauders of
•' which had, at the several times when they were made, from the ex-
" ecutive department of the government of the United States."

Again the alleged acts or offences for which the said
several sent dies and seizures were made described iu pages
1 to (iO, inclusive.

"Section 5 reads : That the district courts of the United States in
" which any proceedings were had or taken for the purpose of con-
" demning any vessel seized as mentioned in the schedule to the case of
40 " Groat Britain, pages 1 to (H), inclusive, had all the jurisdiction and
" powers of courts of admiralty, including the prize jurisdiction, but
" that in each case the sentence pronounced by the Court was based
" upon the grounds set forth in the libel."

And from the findings of fact, your Honors have to deal
with that schedule and nothing else under the terms of
the convention, Article One. It is identified and your
Honors are referred to it. There is no question of law, fact
or assessment sent down to your Honors except you find
it as to persons and the property of persons within pages
5° 1 to 60, inclusive, of the British schedule.

It follows that, as to everything, except "additional
claims,"' the Convention of ISitti confers jurisdiction upon
the Commissioners for three purposes only:

(1.) To determine the amount of each claim appearing

by the British schedule (pp. 1 to »'.(), inclusive), the amount

being the question on which the finding in express terms

declined to pass.

(2.) To determine as to the liability of the United States

, on account of "each " clnim of each person for injuries.

''°as set down in the British schedule (pp. 1 to(!0, inclusive).

(li.) To determine the (luestion of liability of the United

States, which might be raised on account of " whether the

vessels mentioned in the schedule" (pp. 1 to (10, inclusive),

or any of them, were wholly or in part the actual property

of citizens of the United States.

V'\

\ ■ : !

1042

(Mr. Dickinson's Closing Argument.)

Finding I., last paragraph, clearly points out that tli<'
que.stion for the future negotiations of the govornuK'nts is
only as to the liability of the United States in law ;\nd
fact " to pay the amcMints mentioned in the schedulf to
the British case." Article :< of the Convention provides
that the Commissioners shall hear only questions of fact
not found by the Tribunal of Arbitiation," and, of course,
loto ascertain what was there found, and what is theret()i(>
excluded from the cognizance of the Commissioners, cui
otdy be ascertained by the findings themselves, here again
referied to as a part of the Convention, as has been seen.

The claims, then, referred by the Convention, are no
part of them claims of vessels, hut are claims on account
of ''persons," "arising by the treaty, and award, and the
findings of fact." The word "arise," in pointing the wav
to the description of the particular claims to be referred,
as used in Article I. of the Convention, is clearly used in
20 the sense of " having their originals," " presenting them-
selves," "appearing from."

The only other sense in which the term can be used in
connection with the context would be that of " cause " or
" creation," which would give to the sentence the mean-
ing that the claims for injuries were caused or created hv
the treaty, the award and findings. If that construction
is accepted it is against Great Britain on other accounts

These claims are of persons, as ascertained by the find-
ings by the schedule (pp. 1 to *l(», inclusive) and bv tiic
3oC(mvenlion of ISiMl.

Article I. of the Convention names the claims as
" claims on account of injuries sustained by persons."

Article III. provides that the Commissioner shall de-
termine, &c., in respect of " each claim," and " assess the
compensation if any to be paid on account thereof."

Article VIII. uses this language: "The amount awarded
to Great Britain under this Convention on account of any
claimant, shall be paid, &c."

'J'he schedule of claims of persons presentad before tlie
40 Paris Tribunal, found by the findings, and of the persons
who presented them as claimants, at l>age 87 of my brief
and following is set out, and the list and the nature of tiie
claim of each, as set out in schedule (pp. 1 to 60, inclusive)
of the British case.

The details are omitted of the several items that go to
make u|) the claims, except in one case, which is used
for illustration of every other claim. The amounts are
omitted because the findings did not pass on amounts,
and their assessment was referred, in consequence, to tiu'
50 Commissioners by clause second of Article III. of the Con-
vention.

There is no admission or finding on the part of any one
that any claim existed as of right prior to the award, or
that any claim existed only by reason of the award ami
the findings of fact.

We will now turn to the schedule itself, as to whicli
there is nothing to found an assessment upon, or to attach
a finding to, that is not covered by the findings of fact of
the Paris Tribunal, and I have at page M" of my printcii
^argument set down the persons and their claims just as
they are from the British schedule, giving descriptions of
property as there set out, omitting the amounts, however,
which for assessment are i-eferred to your Honors

Take William Munsie for the "Caro!ena": He is tin'
claimant and sworn owner; he presents a claim for tlii'

H)4:j

(Mr. Dickinson's Closing Argument.)

value of the vessel, value of outfit, insuniiice, wages of
crew, the passage of crew, passage of mate, personal ex-
penses, legal expenses, estimated seal catch for IHHfi, total
claim by owner with interest at 7 percent, to date of pay-
ment. James Douglas Warren, for the "Thornton,"
similar details. Charles Spring, similar details as to the
" Onward " and " Favourite," and so on through the en-

lotire list.

Mr. Peters: -I would like to correct that statement. I
want lo point out that the statement as read hy Mr.
Dickinson at page 'M is not quite correct. I wish
your Honors, if you have the schedule before you,
would look at what I mean. That purpoi ts to be a state-
ment of the ditt'erent items whicii were original!)'
claimed by William Munsie for the schooner " Carolena";
he puts them under these different items. I want to
show why they may be misleading: "Items of claim

20" without amounts as follows: Value of vessel, value of
" outfit, insurance, wages of crow, passage of crew, passage
" of mate, personal expenses, legal expenses, estimated
" seal catch for 188(5. total claim by owner, with interest
"at 7 per cent, to date of payment." Now that is taken,
and my friend will agree with me in this, from the
schedule as presented to the Tribunal at Paris. You will
find at the very first of it what assumes to be a summary
of the claims, and that .schedule contains the following
items at first sight: Value of vessel, va'ue of outfit, in-

30 8uiance, wages of crew, i)assage of crew, passage of
mate, personal expenses, legal expenses, estimated seal
catch for 1H86, just as my friend had got it there; but
there is one thing which makes it misleading. At the
bottom of the claim, as summarized in the original claim,
there is a reduction made for the value consumed during
a full voyage, which makes it appear that tiio amount
charged was for value of outfit. It is simply a cross
entry, and there is no charge at all In that sunmiary
you will notice that there is not a claim made for the

4oestimated catch for the year 1SS7. When you come to
refer to the statement itself, the affidavit itself, the claim
itself, and the schedules to the claim, you will find there
is a specific claim put in for the estimated catch for the
year 1887.

Mr. Dickinson:— He makes it as owner of the claim and
every item of it; that is the point I am making.

Mr. Peters: — Two items he charges there, that is, the
value of the outfit and the wages of the crew, are simply
a cross entry, and ^2,213 is deducted. The other point is

jothat in the body of the claim the claim for 1S87 is clearly
mentioned; therefore, if you take this as a correct sum-
mary of the claims we have put in, you might be misled.

Mr. Dickinson:— Mr. Munsie makes a personal claim for
himself for all he sets out; that is the point; and he is the
only person named in the scl edule. In his testimony he
claimed to have paid the crew, and so on; now I sup|)ose
my friend calls attention to that item of 1887, to make the
point that he claims for some one else besides himself,
that is. that he claims for the crew.

'•o Mr. Peters :~No, I do not.

Mr. Dickinson:— The point I am making is that the
schedule does not point out the name of any other person,
and there is no controversy as to any person except
William Munsie and his claim. But even in the point my
learned friend makes, he will find in Exhibit E of Munsie'a

!•■;

v. .

1044

(Mr. Dickinson's Closing Argument. "i

statement a reference to tlie estimated value nf the
"Carolena" catch for J8H7, less cost of outfit and wam's
of crew and hunters.

Your Honors will find throughout that the owner, as
to whorji only a claim can he made under the tindiii^cs of
fact, as to which tiie findings of fact can he applied to all,
in reference to the " Sayward," "Cilrace." " Anna Heck"

loand "Dolphin,"' is Thomas H. Coo[)er, and your lienors
cannot find that any one else owned these vessels, aii.l
apply the findings of fact sent down to your Honors liy
the convention.

Now, after going through that, to mai;e assurance
douhly sure that every person who had any claim of
which you can take cognizance should be named anil
found within that Biitish schedule, and must be embraced
in the sciiedule in order to have any r.tanding here, 1 call
attention to the last page of the British schedule, distin-

2oguishing the claims of persons for arrests, sufferings and
losses, every possible other thing being given in tiie
schedule of ovviicis' claims — we have David Munro. Mm-
ketich, Guttormsen, Norman. Oglivie, Black, Warren,
lieilly, and so on, who were all on ships for which own-
ers claim. This is exclusive of any possibility tliat any
one else can come in under schedules 1 to <')0 inclusive,
other than the ownersand crews who are named personally.
Next, no claims are made in behalf of any other pei.su'n
at all. In my learned friend's first brief he said that this

30 was done and instanced as examples, the "Lily," the
"Ariel" and the "Triumph,"' but tliose instances are the
only ones where any claim is suggested, and in these you
will see that in the case of Morris Moss, owner of the
"Lily," Burns of the "Triumph," and Bucknam of the
"Ariel," claims are set up in general for the crew and
hunters. It is true; but the crew and hunters are not
named, may it please your Honors, at all; and in the
details of each of thes'i claims in schedule 1 to flo, inclusive,
the claim for these is made by the owner, and is included in

40 the claim of the owner, and so stated and so sworn to, so
the owners are the persons who claim for that item, even
as to the "Lily,"' "Ariel" and "Triumph," and no other
peison is named. No other persons are named as claim-
ants, and no other persons are described or suggested in
the schedule referred to the Commission, or in any jiaper
referred to in the treaty, the award or the findings of fact
of the Convention. Hence there is no jurisdiction of
such claims, here presented for the first time in the whole
history of the subject by the British (iovernment.

50 They ask for a lump sum for persons in general not
named in the schedule, for crews and others whose names
are not mentioned anywhere. We submit that this will
not do under this Convention, and the new position of
Great Britain, advanced at page 5() of the argument, can-
not be maintained.

As I understand the argument of my learned friends,
they have prided themselves on this position that these
are not claims for persons but for ships. Your Honors
will find on examination of the Convention that you will

60 be all at sea, if you put it as a claiu) for ships, and any
such i)osition is carefully avoided in the findings and the
Convention, because it is expressly provided that you have
got to find the claim of each claimant; it is expressly
provided, too, that it is for claims of persons. There never
was a convention yet made up for claims for ships or

1045

St' names

(Mr. Dickinson's ClosiiiR Argument.)

property, and in all llio conventioiiH wIkm is claims ar<» pro-
sentt'd in respect of injury to a ship or on a ship they
have huf'n |»rt'sentt'(l by persons, lu* tln-y frt'ightei', char-
terer, owner, crew or whatever, separately, and the de-
cisions under such conventions have tinned on the poli-
tical or civil status of clainiaint persons.
Sor lething has been said about the award finding that
lothe ships seized were British ships. Tlie finding is:

" Tlmt the Haid sovernl m-ardioM and HeiznroH of veHHi>lH were made
" by public armed vosselH of tliu United 8tato», the commauders of
" which had, at the Hoverul timen when thov wore made, from the
" Executive Dei)artnumt of the Government of the United States, in-
" BtruotioUH, a copy of one of which is annexed In reto. "

And,

"4. That the neveral orders mentioned in the schedule annexed
" hereto and marked (C), warning vessels to leave or not to enter
" Behrin^ Hea, were made by public armed vessels of the United
-O " States, the commanders of which had, at the several times when
" they were given, like instructions as mentioned in finding 3, and
" that the vessels so warned were engaged in sealing or prosecuting
" voyages for that purpose, and that such action was adopted by the
" Government of tlie United States."

Now, in Schedule "C," the only time that the words
"British" vessels appear, the word "British" being
carefully excluded from the Convention it.'^elf, ,as we have
seen, and from the findings themselves, is in that annex
"C" as follows:
30

" The following table shows the names of the IJritish sealing vessels
" seized or warned bv United States revenue crui'^' rs, 188C-18l)0, and
" the approximate distance from laud when seized

That is the familiar schedule referred to previously,
and the finding only uses the schedule to show what the
names of the vessels were, as it states, and it does not pur-
port to find that they were British ves-,els any more than
it purports to find the facts set out in Annex B, which
is the libel used as an example, or the facts found subse-
40 quently in other exhibits referred to in the findings. It
is merely referred to as stated in finding 4 to give the list
of vessels, but does not refer to British vessels.

Mr. Peters, do I understand you to say that even if a
crew are not named— which from our own point of view
would throw the claim out of the case —do 1 understand
you to say tliat you have made claim for the wages of
the crew as such?

Mr. Peters:— This is our claim exactly on that point.
The wages of the crew would be included in the gross es-
se timated catch. The suni that we claim for the crew,
whatever it might be in addition— I think it was put at
$500 each — is a sum for their personal sufferings. The
claim for wages is different.

The Commissioner on the part of the United States:—
As I understand it, the name of each vessel represents
the entire undertaking— everything there is behind it?

Mr. Peters: — Yes, it might be fifty people.

Mr. Dickinson:— I desire to say a tew more words as to
the warning claims:

" Warning Claims."

The " Favorite:'

It is entirely a fictitious claim, tiiere being no founda-
tion in fact for the demand. She was one-half owned by
Alexander McLean, a citizen of the United States. He

^IM

I(i4n

S|^

»'''

^iiy

■1'
■if-

(Mr. Dickiiison'H C'losiiiK Argument. )

wan the cnptain in the voya^je, and t(vstil!o<l that ho l«>ft
th<» Sea. not hecansc of the warning, hut ht'cause lie con-
Kidt'ii'd the season coniplt'tod. She lett the Sea with the
largest catch hut one ever made in the leering Sea.
Tlirre i.s a large claim for proHpectivo catch ht'caiiseof the
warning.

I am now discussing the caF.es wliere they may have
lodiarter value if they had heen damaged hy warning.

The " lihiik DiamoiKl"

This is ohjected to aa not properly hefoto the Commis-
sion. The (.'ommissioii, under the provisions of the Con-
vention, nuist find, it seem» to us, a part ownership in
Alexander Frank, and there can ho no recovery. That is
a case of warning.

The •' Alfiril Adams''
2Q VVa.s half owned hy Alexander Frank, a citizen of the
L'nited States, who is admitti'd hy the counsel lor (ireat
Britain to have heen tquaily interested in the venture.
Tiic cl.iini is one entirely pertaining to the value of the
venture, as no claim is made for the ship or injury to tho
ship.

The little ''Triumph"

Is an entirely fictitious claim. Tho vessel, although
warned het'ore entering the Sea, pro(;eeded to seal the day
after the warning, aiiil continued uninterruptedly until the
3°L'(lth -August, when she left the Sea with her catch on
hoard. The vessel was hut fifteen tons hurthen, and
hunted until the usual close of the sealing sen.son. Her
catch wa" greater in comparison with her equipment than
that of the " Maiy Ellen "—the largest catch ever known
in the Sea.

The "Jnanifx''

Is entitled to her charter value from July ;Ust to August
2(tth or l,'.')th, the close <.f the season, in addition to fhe
40 value of (11!» seal skins taken froni her by officers of the
United States.

The "Pathfinder" iXo. 14).

It is admitted that Andrew J. Bechtel was equally in-
terested in the venture. This is a case of warning. The
claim is entirely for the value of tho venture. The United
States assert that Bechtel was equal owner of the hottom
of the ship. He is admitted to be an American citizen.

The "Black Diaiiioiul" and "Lily."
5° We submit they are entirely owned by Frank, a citizen
of the United States.

The " Miuuie."

Would be entitled to denuirrago from the I7th day of
August to the 2(ith or y.'ith of August, in addition to the
value of 418 seal skins.

The bin " Triumph."
One-third owned by Daniel McLean, a political and
gQ civil citizen of the United States in 1KS9, at the time of the
seizure, and a naturalized citizen of the United States since
18!»2, and a resident of the United States; and therefore up
to and since 1H!»2, and at the time of the Paris treaty and
at the time of the Couvention and since, a United States
citizen.

1047

(Mr. Dickinson's Ciuaing Argumunt.)
The •• Ariel."

An entirely flctitiouH claim. A frnudulont claim was
nia<U) to r«'c'ov«>r for interrnption of tho voyago from the
80th of Jniy, tuid it is now admitted timt siic m«iik>d overy
day possible and was on the ground - called by the counsel
for (ireat Britain the best in Moring Sea— until tht» IHthof
August, when tho captain prc|>aro<l to loavo tho Sea. She
'Omado a full catch. It nhv is entitled to anything after her
owners have made a fraudulent claim, and have sworn to
it; she is entitled to demurrage from August l8th to
August 20th or 25th.

The " Kate.''

Also an entirely fic;titiou9 claim, because to make out
any dem.i:id \*. all a prolonged season to October 1st ia
claimed. This is exce[)tional and a claim siu' ijcueris.
She cannor, recover anything unless, the season lasts to
20 October Ist. 'I'ho testimony referred to in tho oral argu-
ment regarding this claim discloses that the captain and
mate both intended to abandon sealing the last of August.
The vessel sealed every day up to anil incbuiing August
18th. The only dam.ige that could be awarded would bo

demurrage from I8th August to 2t)th or
close of the season.

."itii August, tho

The "i'«//(//Hrfcr"(No. 21).

The claim for seiziue in Neah Bay for thousands of dol-
lars is too ridiculous for serious consideration.

The " Heriiiefta"

Tho United States admit liability for the charter value
of the '* Henrietta" from the titli September. lSit2, until
the 2'M\ day of November, 1S!»3, together with such losses
as tho owner actually sustained.

^^11

11 i I

May it ]ileaRe the Court, I have now discharged a ve-
g[)onsibility which was never sought nor coveted by me —
'^^a responsibility which I endeavoied to lay down lionorably
on my leturn from Victoria, when theie was a change
in the administration of my (iovernment, but as my Gov-
ernment desired me to finish the labors commenced at
Victoria, and the labors which preceded Victoria in mas-
tering the enormous history of the matter, I have re-
mained in the case. I shall bo satisfied aid rewarded suffi-
ciently if in any way I have been able to aid this High
Commission in reaching a conclusion upon the important
questions involved. Little other reward can be expected
5^ except that of a clear conscience for having performed
a laborious duty with some degree of industry.

I desire to say to my friends, the counsel for Great
Britain, that I fully appreciate, and desiie to put on
record, that at no time, from my first entrance into the
case until now, has theie been any cause of embai-rass-
ment or of difficulty on the i)art of the counsel for the
United States that they have not aided to remove; they
never have failed in courtesy and in furnishing to us any-
, thing within their reach, whether it would help or harm.
'°lt is an acknowledgment that is due, and that I make
with the greatest pleasure.

My associate counsel know that they have my grati-
tude for. and my high appreciation of their invaluable
assistance at all times in the course of these pi-oceedings.

1048

(Mr. Dickinson's Closing Argument.)

The High Commissioners have knowledge of their services,
and know that those wordy of mine are well deserved.

Notiiing remains for me but to thank the High Com
missioneis for their courtesy and kind attention during
the long presentation of the case of the United States.

The Commissioner on the part of the United States:~Mr.
Peters, I would be glad if you would state distinctly your
position in reference to the quefstion raised by Mr. Dickin-
son, near the close of his argument, with regard to the in-
terest of the hunters.

Mr. Peters:— I will certainly make myself very plain on
that point.

At lialf-past throe o'clock the Commissioners rose.

Commissioners under the Convention of February 8,

1896, between Great Britain and the

United States of America.

Legislative Council Ciianibers, Proviiuial Building,
At Halifax, N. S , Sept. L>7th, IS'.iT.
10

At l(t.3(> A. M. the Coininissioneis look tlR'ir seats.
Mk. Peteus' Akgument in Kepia'.

Mr. Peters: — Your Honors, in rising to reply to the ar-
guments delivered by tiie (counsel fur the United States, I
f)ropose to take S()ine\.')r>t the coursi! pursued by my
earned friend, Mr. DicUhison, and to l)egin by what he
called clearing away the driftwood, so that we can come

20tlownas quickly as possible to the real questions in dis-
pute. Before proceeding to deal with the (juestions be-
fore the Court let me ren)aik that my learned friend, Mr.
Dickinson, took occasion to refer to certain n)isunder-
standings, which had apparently arisen between counsel,
as to statements in their i»rinted briefs. I am exceedingly
glad that Mr. Dickinson has referred to tiiat matter in the
manner in which be did. and that he has tonseciuently
obliterated any cause of dispute on matters of rather a
pergonal nature. My learned friend's explanation, so far

3° as 1 am concerned, was most satisfactory, and is readily
accepted by us in the generous spirit it is offered.

There are two or three cases of a special nature entirely
difTerent in their circumstances from most of the cases,
which your Honors have before you, and in the process
of clearing away the driftwood 1 propose to take up these
cases first.

"Oscar and Hattie."

I shall begin by making reference to the argmnent of
40 my learned i'riends in regard to the case of the " Oscar and
iiai tie." It stands upon an entirely ditferent footing from
any >ther claim liefore this tribunal. My learned friend,
Mr. VVarien, pointed out what he deemed vvasa misappre-
hension on oiu' part with rt>gai'(l to that case. He said we
had treated it as if it were a prosecution for an offense
against the iiioiliis rircnili of isu-j. when, as a matter of
fact, it was a prosecution under the terms of the Seal
Fisheries Act, ISJU. There is really no ilispute between
us on that point. We all know that the Seal Kislieries Act
:;oof lM>i was passed in conformity with the terms of the
/((o(//(.s of IS'.H, for the purpose of making effectual that
iiKidus, and when we speak of the piosecutioii under the
terms of the iiiudu.'i rirciuli of 1S!Il>, it will be fully under-
stood that we mean the prosecution which had its basis in
the treaty of IKIM; and, of course, had to be carried out
under the act necessary to make thiit treaty alive. The
distinction is a merely technical one, and. we have not
dealt with these matters in a technical way at all.

Let us come at once to tlitonly ([uestion really in dis-
(opute in the case. Our (;ontention has l)een to this effect,
that the offense aimed at l)V both the treaty and the
statute is the hunting or attempting to hunt seals in
Hehring Sea. No person is guilty of an ott'ense against the
terms of the treaty, or against the lernis of the Seal Fish-
eries Act of 1M)1, unless he has either hunted seals in

'ii

Rt^

1050

(Mr. Peters' Argimient in Reply.)

Bt'hring Sea wliilst that act was in force, or lias iiiteuded
or attempted to seal there.

The Coinrni.ssioner on the part of Great Britain: -Theie
is a distinction between the words " intended " and "at-
tempted"?

Mr. Peters: -I did not mean to use the word intemlfd,
vonr Honoi'. His attempting to seal or ills being theie

10 with the intention of seahng; that would be an (itYt

against the Se;d Fisiiery Act (U' agiiinst the treaty. Ti)at
is the position we always took.

Now. we find by the letter from C'onnuander Evnns of
the United States cruiser (which letter har% been so fre-
quently leferred to) that this vessel was seized for three
renstins— the first and .second reasons were for breaches of
the revenue laws— and the third reason was for having on
board seal skins, aims and other imiileincnts that ((Uild
be used in killing seals M jiage ITn of our arguiiK.'nt we
t^oset out the words of that letter as follows:

" (1st.) Violation of the Uuitod States rcvcuuc laws, ns lioiuK ilU'-
•• frally iu the Ihiitetl States ports; (2n(l.) violation of the same law in
" haviut; transferrevl seal skins to ami reeeiving siii)i>lies fnnn the
" ' C'o(initlani;' (lid.) having on board 27() skius and a coini)lete seal-
" ing outfit in viidation of the modus fireiidi."

The first point I wish to call your Floiior's attention to
is this: It is manifest that the first twogrouiids of seizure
were insulficient, and their insutficieiicy is lies! pi > -ed

30 by tlie fact that no steps were ev(>r taken to in tuiy ^^ ay
enforce the seizure upon either the fir.st or second gi.ni.ids
alleged. The third ground is in inifestly insufficient also,
that is if lam correct in stating tliat the offense, iiotli
under the treaty and under the Seal Fishery Act of IsiM,
is not the having on board seal skins or sealing outlit, liut
the sealing or attemjiting to seal.

It therefore follows that the grounds ui)(iu which this
vessel w;is originally seized, were insufficient, and there-
fore the seizure itself was illegal. We .submit that a seiz-

40ure which was originally for insufficient cause, could never
justify a condemnatidii. That is our point.

What does my learned friend answer to tliat^ He an-
swers that the vessel after seizuie l)y the conimander of
the Piiited States cruiser was handed over to Captain Parr
of the British Navy vuider the terms of the modus, that
tiie facts were then known to him, and tiiat if the vessel
was improperly taken over, it was Captain Parr that was
to blame. I submit that it does not appear here by the
Kecord that Captain Parr was informed that the cause of

Soseizure was merely having sealskins and sealing outfit
on board. Thei" is iiothing to show that. If tiiat had
been shown to Captain Parr the assumiition is that he
would have acted in accordance svitli the statnte and the
treaty, and would have followed the instrnctinns which
he had from iiis own (iovernnient, and that he would not
liave taken the vessel over on a charge which did notcoii-
stitnte an ofTeiise eitiier under the statute or the tre;ity.

We therefore start from the point that the grounds for
the seizure, ;is stated by the ofiticers of the United States,

60 were insufficient, and that no matter what happened
afterwards, that seizure could not become the foundation
for an act of condemnation. We contend that not only
was the seizuif^ for an insunicient ground liut also that i.ie
captaia of the " Mohican" at the time of seizure kiK.'W
that no offense had been committed against the Seal

ior>i

(Mr. Peters' Aigument in lieply.)

Fishery Act of 1891, and tiiat lie was convinced at tiiat
time that tlio vessel was tiicrc for an innocent purpose.
We contend tiiat it was tliis knowledge of innocence tliat
induced liini in stating tlie cause of the seizure, to
confine himself to an aili'galitm tiiat slie had on
hoard 2H> seal siiius, wiiereas if lie had heon satisfied
tliat slie was tiiere for an imiiroper purpose lie would
loiiave put ill liis report that siie was seized for some
offense against tlie mixhi^ riveirli, or against tlie Heal
Fishery Act of isni, We say tiiat he seized tiii.s vessel
knowing tliat slie iiad not committed an of1"ense.

Tlie answer from our learned friend is, lliat according
to the instructions given hy tlie United Stales (jovernment
to the commandi'r t)f their cruiser, he had no d'scretion,
but was obliged to s(Mze. These instructions lu.ve been
referred to, and I read them again from page (53i>, Foreign
Relations of the United States:

20 " Any vessel found to be, or to have been, employeu in sealing
" within the prohibited waters of Behring8ea, whether wnh or without
" warning, and any vessel found therein, whether warned or not, hav-
" ing on board imjilements for taking seal or sealskins or bodies of
" seals will be seized."

Upon the face of these instructions it would appear
that the United States had given to their officers no
ojjtion as to whether they would seize the vessel or not. It
appears to be a precise instruction that he should seize
every vessel having sealskins on board. We say that

30 these instructions slu)uld not have been given, and that
they went beyond the terms of the Seal Fisheries Act,
and beyond the terms of the treaty; and that if an officer
of the United States having, in consequence of these in-
structions, made a seizure which he would not have made
had he received instructions telling him to seize for of-
fenses against the Seal Fishery Act of 18!>l, or against
the modus rirctidi of 1892, the United Stat' s Uovern-
nient is responsible. We say that if ju'oper iistructions
had been issued to him, and if a i)roper disc etion had

40 been left to him, as should have been done under the treaty,
he would not have made this seizure. We say, there-
fore, that it is th(! fault of the United States that the
seizure was made, because they have given instructions
that go beyond the treaty, and we .say that they should
bear the consequences and nay the damage. That is our
contention with regard to this point.

When this argument was presented the learned Com-
missioner for the United States suggested that it was pos-
sible that these instructions might have been transmitted

SObythe Government of the United States to the Govern-
ment of Great Britain, and that from a mutual transmis-
sion of the instructions it might be argued that there had
been an agreement as to what construction should be put
upon the statute and upon the treaty. Tho learned Com-
missioner of the United States asked: Had these instruc-
tions been transmitted to the British Government?

It appears that on the '28th April, 1H92. pursuant to a
request from Sir Julian Fauncefote, the instructions were
transmitted to him. But we fiiul that these instructions

fiOwere not entirely agreed to by the British Government,
and, therefore, no inference as to an agieement on con-
struction can be drawn from the fact of their having been
transmitted. I contend that the correspondence slw/wa
tliat wiien the instructions were sent by the United States
to Great Britain, that Government did not consent to the

I I !

so;

1052

(Mr. Peters' Argument in Reply.)

foim of instructions but objected to it, Further, by the
very instructions which she at that time exchanged, slie
showed tiiat sbe objected to the American instructions.
The instructions were submitted to Sir Julian Pauncefote
on the '28th of April, and the letter transmitting them
was ansA'cred by Sir Julian Pauncefote on tbo 11th day
of May, lb'^t2, as follows:

'° Sir Julian Pauncefote to Mr. Blaine:

" British Legation,

" Washinoton, May 11, 1892.
" Sib, — In the memorandum wbioh you placed in my bandH on
" the 23d nltiuio, roapectiug the instructions to be issued to naval
" officers charged with the enforcement of the moitus viveiidi in
" Behring Seo, under the convention of the 18th ultimo, it wns sug-
" gested that sealing vessels found in Behring Sea in coutravimtiou of
" the convention should be seized without the previous warning given
" last year, owing to the late date at which the vtoUiis vivemit of 1891
" was agreed to.
" I transmitted the memorandum to the Marquis of Salisbury, and
I have now received his lordship's observations thereon.
" Lord Salisbury pt)int8 out that the act of Porliament referred to
' in the memorandum throws on the owner and master of any ship
found in Behring Sea with the equipment specified, the duty of
■ proving innocent intent. The British instructions of last year did
' not require proof of previous warning before seizure, 'l)ut au-
thorized the naval officers to let a vessel go with warning if they
thouglit the master was acting in ignorance of the prohibition or
believed his ship to be outside the line of demarcation.
" Her Majesty's (lovernment seo no reason for altering that instruc-
tion. They will take steps to warn the sealing vessels, which cleared
before notice was given of the renewal of the modus vivenili, and it
ia not likely that many vessels will be left unwarned. But, in their
" oi)inion, it would seem desirable that, in order to obviate cases of
" hardship which might arise, the United States Naval Officers should
" receive some discretion similar to that given in the British inatruc-
" tions.

" I have, etc.,

"Julian Pauncefote."

It is explicitly stated there that the British Government
did not assent t<> the form of the American instructions.

Mr. Uickinson: — That is not (piite material here as the
40" Oscar and Ilaliif^" had been warned.

Mr. Peters: -I am .iwan* of that, but I am pointing out
that it cannot be argued that (ireat Britain agreed to the
instructions that the United States were giving to their
otFiccrs. Of course I need iiardly i)oint out tliat neitlier
one (lOvernment nor the other could in any way affect the
form of instructions which would l)e given by one of the
nations to its own oHiccrs. The only objection that could
be insisted upon would be v.hen tht." instructions were ab-
solutt'ly in conflict with tlie tfrnis of the mutual agree-
SOineiit which had been arrived at Ijctwcen the two nations.
To that letter which 1 have read from Sir Julian Paunce-
fote, Mr. Blaine replied ou May 12, 1892, as follows:

Mr. Blaine to Sir Julian Pauncefote:

" Depautment oi' State,

" Washington, May 12, 1892.
" Sm, — I have the honor to acknowledge tlie receipt of your note
" of yesterday suggesting tlint the meuiorandum which I placed in
'• your hands on tbe 2;)d ultimo, respecting the lustructioua to be
" issued to naval officers charged with the enforcement of the modus
6o " fii-midi in Behring Sea, under the convention of the 18th ultimo, be
" modified so as to authorize the naval officers to let a vessel go with
" warning if it is thought that the master is acting in ignorance of
" the prohibition or believes his ship to be outside of the line of de-
" marcation.

" In rei)ly, I have the honor to inform you that this (lovernment
" dooH not think it necessary to modify tlie instructions givMi to the

I ^'

fA .

1053

.itious.
aunce-

1892.
our uote
)laped in
UR to be
le moilits
Itimo, 1)6
go with
ranee of
lie of de-

'ornmont
>i\ to tho

(Mr. Peters' Argunient in Reply.)

" naval ofHcera of tiie Uuitod States. If a vphscI in found in 'Jeliring
" Sea with a Healing outtit, the only Hafc course to take is to compel
" her to leave that sea, aud this can only be oft't'ctivclv done bv taking
" her out under convoy. Tliis the Uuiteil Htiites oflicevH are "directed
" to do, and to turn such British vessels over to the British naval
" oKcer at Uualaska. If he chooses to take the resi»onsibility of re-
" leasing such vessels, then it is his rifjht to do so.

■■ I have, i'c,

" .Tames O. Blaine."

Up to tliis time there is simply a sujigestion on the part of
Great Britain tiiat certain (iistietidii sliould bo given.
But it is also quite plain tliat (tieat Britain did not give
her consent to tiie I'oi'm of the United States instructions.
This letter of Mr. IVaine, for some reason that wo have
no explanation of, does not ajipear to have h(>en entirely
acceiitahle to the autliorities of I he Tnited States them-
selves, because on the 2ist of May, Js'.tzi, Mr. Wharton,
who was the acting Secretary of State at tiiat time, wrote
20to Su' Julian Pauncefote the following letter, which I
contend has the effect of taking hack some of the ideas
expressed in Mr. Blaine's letter:

Mr. Wliarton to Sir Julian Pauncefote:

• ' Depart-mknt op State,

•■ Wamiinoton, JIhv 21st, 1892.
'• Sir:— In the note which I addressed to you ou tho 12th instant, in
" referring to vessels witli sealiiit; outtit which luinht be seized by
" American vessels iu Behring Sea and hauiied over at Unalaska to a
" British naval oflicer, it was not intended to convey tho imjiression
lO " that the Government of the United States would ai)i)rove of the re-
■ ' lease of such seized vessels by the British naval officer, although
" under the orders which your note of the 11th instant indicated such
" ofiScer would receive, he would seem to have the right to do so."

The last clause of Mr. Blaine's letter was that the British
officer to whom a .^eiztd vessel was delivered, if he wished
to take the responsibility of releasing such vessels as were
handed over to him, he would have the light to do so.
That had been written only a few days before the pen-
ning of the letter now being considered in which Mr.
I" Wharton asked it to be understood that the United States
Government does not agree that the British officer shall
have the right to release any vessel that is banded over to
him for prosecution.

" I understand that, iu accordance witli the terms of the modus con-
'• veution of the IHtli ultimo, both governments have jirohibited seal
" killing in Bering Kca ; that the laws enacted to enforce said pro-
" hibitiou make the ])rosence of a vcbhcI in that sea with a sealing
" outfit a pri)iiii/(icif oH'ense ; and that under Article III. of the eon-
" ventiou when seized, it is the duty of the respective naval officers to
., I " hand the vessel over to the authorities which ' shall have jurisdic-
" tion to try the offense and impose the penalties for the same.' "

That is what the United States officials understood, but
that is not what the British Government understood, and
so there was a disagreement as to the real meaning of the
statute and the treaty.

Mr. Dickinson:— Did it result ultimately in disagree-
ment?

Mr. Peter8:--Yes, it ends in a disagreement, and the
two countries have been ajiai't on that point; and it is for
' this Court to decide whicli is right. It is for this Cnurt to
decide whether or not the British Govenunent is right
when they contend that the offense against the treaty
was taking or attempting to take seals, or whether as the
Cnited States contends, it consists in the vessel being iu
'he sea with seal skins or sealing outtit on board,

1054

(Mr. I'ttfis" ArgiiiiH'iil in Ucply.)

nlthough botli tliosoiziiig (idlicoiiUKl tlic pnrty sci/od knew
tliat 110 seals liad hccii taken l)_v tlie vessel in lU'lirin^ Sea
and tliat tliete was no iiitentidn. to take any. Tlie letter
jiiocectls:

" Umlov tlic (■iiciinisliinccs uttciidiii),' the iciiewul of laat yeiir's
■' nioiliiH, witli till' full ussnr.'n'i' received bv the hcuIcih lii>f(iro tliey
•'lint to si'.i tlmt it wiiiiltl lie coiitiiMU'cl in f<ii<'c, it can luiidlv lie

lo " ilainiiHl tlmt anv nl' (l-.'ui i'mnil this season in iirhriiin !Soa ari' ou-
■• titli'd (o u fiirtliti warnint,'. L snliiiiit that the onlv |pi-oi)it ('(lurse
'• for the naval otliccrs to pnvsuc, is, when a vcssi-l has lici'ii sci/ed, to

" dflivi'i' hi'V ovi'i'. in ac rdano' with tlic tciiiis of the convention, to

" the judicial authorities for a Ic^'al delerniination of the facts of the
" case.

" It nia\ not lie iiiopiioitune to recall the fact that, so far as I am
■' adviscil, till onlv seizures made last scumiu in the ISehrinj.; Sea were
"Viy the Anil I'ican naval ollicers, and that the two ISritish vcssel.s
" seiy.id and tiirned over to the Urilish naval ollicers (one of whirli
" baviup lieeu cleared hv the Uritish customs authorities after the
•' pulilicatiou of the niodusi, were releasi'd at Victoria without any

20 " ]i'il''i"l investi^iation. In view of (he fact that hoth f{overniiieut"s
•• have united in the earnest eH'ort to iircvent this season the uniire-
" eedented slant;liter of the seals in Jiehrin^ Sea which occurred last
" year, all sealilii,' vessels found in those watirs should he taken
" therefrom h\ force and delivered over to the judicial authorities.
•' lu no other way can the lU'ohiliition decreed iiy the two nations be
" made effective.

" I have, etc.,

•■ WlLLIA-M F. WlIAllTON,

'• Acting Secretary."

After this coiT(s|ioiuieiK'e hail takni place, the last letter
:^c.of which, as has heen seen, lieing date tl the 21st day of
May, ls()2. Sir .Jidian I'auncefote on 2d June, writes to
Mr. Blaine sending hint a copy of the instriicli(Mis <i,iven
by the (iovernnient of (iriat Ihitain to the coniniandors
of British cruisers, (ireat Britain had objected tu the
form of the I'niied Slates instructions in several parlicu-
lars, then (heal Biitain sent tu llie I'liited States ;i cepy
of the instrmtions which she was giviii};- to lier naval
officers, and the difference between these instrnctions
marks tlie dispute between tlie two j;ovei iiments.
40 Mr. Dii kiiisiiii: (iive the date of these two sets of in-
strtictiens, not of the letter announcin<^ them.

llr. Peters: — The insti iiitiniis given by Mr. Tracy, tb.e
Sfici'etary of the Navy, to Caplain Kvans, lli(> cotnniander
of the "Viiiktiiwn." was dated \\'asbiiiL;t<Hi, 2.'itli April,
1H92. The d.ito of the Britisii nistriictiniis are nut hero,
hut Idoy must have been after the Kth May,18!>2. The
British instructions contained the following:

' Uhb ntnioKt omleavonrs to carry out this duty. After carryiuf,'
" .'ut above proceed into the sea and cruise there, as necesHary to eu-
-Q " force eonveutiou, seiziup, whether warned or not, any v.-isels found
' otleudiui:. "

These are tin- woids of the British insi 1 iictions.

A comparison of the instnictioiis given (o the officers
of the cruisers of the two (lovernnients, clearly sliows the
difference of opinion as to tbf const rnel ion <d" the treaty,
tlie one r.inl.-inling that the mere having certain articles
on board wa- in itself an offense subjecting the vt'ssel to
seizure, whether it was known that she wa< guilty or not,
and the other contending that the offense is being bmud
'"Muinting seals, or preparing to do so, in Behring Sea.

Your Honors nnisl decide upon that point; an<l, if yon
come to tb.e < •Olid union as 1 submit upon reading the ti'caty.
and ujioii rciK,mg tlx- Seal Fishery Act of IMU, you must
com.', that lie construction contended for by us is tin
convrt 1.1 • .lid that the otfeiise is the sealing or attempt

I (lor)

(Mr. Potcjs' Aif^utnout in Hcply.)

ing to soal, in the Si'ii, and not tli(: nicre liavinji,- tlio tilings
witli wliicli yon might seal, or dead simIs on iioard; tlien
wliat i"ollo\vs: as an actual fonscquenco tliia vosst'l has
heon seized for an olTense wliicii is not an offense against
the tieaty. And svlio lias slie heen seizeil by? Hy the
United Stales (iovcinnieut ; and, liieretme, it' liiey were
l)ound iiy tli< ii' treaty ol)liga(iiins to seize for one oft'euBe,

loaud they have seized for anotinT, wiiy siionld tiiey not
pay?

It fitands apparent l)ef'ore tiiis Court tiiat the "Oscar"
and "Ilattio" did net lireak nor intend to lireait the
modus vivciiffi of isjt^, or tlu^ Seal Fisiiei'ies Art of 1891.
She was perlei tly innocent (d' either having hrc.Uen or in-
tending to break that statute oi' treaty; an<l the (piesfion
is, when we find she was seized fdi' the reasun Miat tlie
United Stales liovernnienl hy thel|- iiisli uitions had made
it inipossilde for llieir own ollicers to use the discietion

2owhicli the treaty ically gave them, are they not tlie people
who ought to pay tin damage!' This (jnestion we put
bef )re yon, and it appeals to us to bo a fair one.

it is fnrtiier aigued by my learned friend that the
Supreme Court of Canada has decided that there was a
prima facie cause for seizure, but no cause to condemn.
I refer your Honors to the di'cision given by the Su-
preme Couit of Canada. Justice (Jwynne, at page 258 of
the Exhibits says:

" This appeal must, in my opinion, he allowuil with costs. Orant-
30 " ing that tho sliip haviiin lieon taken witliin the JJering Hca cast
" upon tho appf'Ilaut tlic onus of i)rovin(; that tlie vessel liail not been
" used and oniployoil in taking' soalN in the lieriuf.; Sea, that onns was
" comi)letPly disehargej by the evidence of the officers in charge of
" the vessel, whose veracity was not assailed in tho slightest par-
'■ ticular. The evidence established beyond doubt that the vessel was
" taken almost immediately afiev she had entered the sea on the north
" side of one of the Aleutian islands, which constituted the extreme
" southern lioundary of the Sea where she had entered for water, and
" within two hundred miles of which, as was shown by independent
" testimony, seals had never been known to be taken or seen.

"The rmval ollicer of the United States who too!i the vessel and
40 " handed her over to the authorities for trial entertained no <loubt of
" the truth of the statement made by the captain of the vessel when
" taken, as to tlu^ purjiose for wliicli she had ^'oiu to the north side of
" the island instead of to the soutli, and had so entered tlu^ Hehring
" Hea, namely, the state of tlu' wind at the lime, and the wonder is
" that she should have been taken at all, or lieing taken, should have
" been put upon trial."

There is the opinion of one of the .Judges, in apfieal, and
he distinctly states tiiat tlie oHicer who seized tlie vessel
knew that the vessel was tiiere for an innocent purpose.
j;oTlien, Sir Henry Strong, in giving judgment- and he de-
livered the opinion of the Court

The ('ominissioner on IIk; part of the I'nited States:—
I suppose tiiere were no additional jirnofs allowed in the
Supreme Court?

Ml. Peteis: -No, your Honor. Tho record on appeal
consisted of a r. print of the evidciutt taken before the
court Ix'low. Tht jiidgment of the Chief Justice is at
page 252 of the Kx' ihits. He says:

"The oflfense charged igainst (he ship was therefore that she or
•>0 ■' some of hor eiiuipmeni or crew luul been employed in killing,
" taking, or hunting or i attenii)tiiig to kill or take seals within
" Behriug Sea as detincd bj he onler ui council.''

That is what he says tht? olV.iise was. Ho there refers,
as your Honors see. to the libd laid ag.niist the vessel at

!l I I

:^i

■J
:f

105tj

(Mr. IVt'Ts' ArguiiHMit in Iti'ply.)

Victoria. My position is tins: slie was sci/t'd for having
on board seal skins, wliicli was not an oll'enso, and she
was taken to Victoria and libeilcd for killing, hnnting or
attempting to kill seals. She was seized for an alleged of-
fense, which was not an olTense, and she was libelled for
another otTenso, which, if trne, was an offense.

Mr. Warren:— She was libelled on both charges,
lo Mr. reters:--Th<'n on what gronnd did they put this
new one in?

The only gronnd at all .^uflicient was the on*; Sir
Heiu'y Strong stated, and for that she was not seized.
That being the case.what does the Court tind^ The Court
finds, that in point of fact, the otTense did not exist. I
refer yon again to another passage (page '2'A of the Ex-
hibits, line 40 1. of the Chief Justice's judgment, lie had
been leferring to ct'rtain evidence given in the case by
the officers of the seized vessel, and sa}b:

20 " Then to ret)ut. tliiH testimony, two witnospcH arc called on Viebalf
'• of tlip Crown, liotli of tlieni no ilonlit eiititloil to the utuKwt credit;
" Ciiptaiu Johnson, CVuunmndcr of the United Statea «hi|) ' Mohiean'
"and Eusij^u Harrison, the hoarding oflieer who seized the '( )sear '
" and ' Hattie.' Had these Keiitlemeu, or either of them, eontrailieted
" the testimony of the master in any material jxiint, it might have
" discredited him entirely; hut srj far from material eontrailietioii I
" find in their de|)ositious most material corrohoration of Cnptain
" Tutle's account They slinw that th<'re were no seals witliin two
" hundred miles of Attou Island. They do not, either of them, even
" suggest that there was any circumstances leading to a susjiicion
"that the 'Oscar' and ' Hat*'e ' was intended to go furth<'r into

30 " Behrin;,' Sea for the iMirpose of hunting seals; and Ensign Harrison,
" at least rather coiitirms the ca]>tain's story ahout water, and both
" say that he accounted for his whereahouts in JJehring Sea hy at-
" trilmting it to the failure of his supidy of water. I am therefore
" unable to agre<' with the learned Chief .Justice (Beghie) in his con-
" elusion that this evidence for the Crown atfects the claimant's case
" in the least degree, save to confirm it."

Thus you have the Supreme Court of Canada stating
that the evidei\ce shows that the captain of the " Mohi
can," Ca|)tain Johi\son, and his ofticer, Mr. Harrison, at
the time they made the seizure, had no cause for suspicion.

4° and did not suspect, that this .ship had either broken or
intended to break ihf nioclns riroidi of ISltl or ls!t2. Does
not this all strengthen the position I am taking that the in-
structions given by the United States (lovermnent to
their officers, which instructions I say went beyond the
terms of the modus n'roidi, and beyond the tei tns of tiio
statute, took away fiom their ofticers the discretion which
thev ought to have bad the right to exercise?

While 1 am on this point let us see to what conclusion
the position of (he United States would bring ns. Their

50 construction is thatunderall circunistances, when you fhid
on board one of these ships, seal skins, arms or aimnuni-
tion, you must si'ize; you have no discretion under the
terms of the Act. Let me i)ut this case to your Honors:
Assume that the Uinted States Government, for the ])ur-
poseof ascertaining whether olTenses were being com-
miled against this )ii(>dits or not, liad placed a detective on
board a Biitisb sealer, and that that detective went from
Victoria to Japan, or to the Russian side of Behriiig
Sea in the vessel, and knew t'lat thev fished there all

60 through the season continuously, and after the season
was over, came back and went to Attou Island to Ret
water; that an officer from a United States cruiser then
came and said: '' 1 intend to seize this vessel;"' and
assunii; that the detective, tlieir own employee, went on

1(157

(Mr. Petors' Aigiiiiu'iit in Reply.)

board tlio United States ship, and said to lior captain:
" I know that these men have not coannitled any lireach
of the;(/o(^^s■ virciuli; \ know that the seals that tliey havo
on hoard W(>re(an<;ht on tlie.lapan coist; I know tliey came
in iieie for wati.'r; I know lliat of my own knnwied^;o."
Accoi'ihnjf to my learned fViend'scoiitentioii, althoiij^h the
captain ahsohitelv lielieved the statement ot the detective,

lolie would have no conis(( lo pnisne except lo airest tlie
vessel and send her I'or trial.

Let mti pnt another case, and which nearly happened in
this case. Here is a vessel tishin^ near some of the
Russian Islands -the Copper Islands, and .she ^oes to
Atton Island. As it hap|)ens, if yon look at the evidence
yon will tind tiiat, when she came there, the '' .Mohi'an "
nnist have hecn actnally anchorel in one of the little hai'-
horsof Atton Island; assume that tlie '" .Mohican " actually
saw the vesssl connnj; from the direction of the Copper

20 Isl nids to the pl ice wiiere she was caught; saw her coming
there, get water, and then set sail on her way to Victoria.
Yet he, hefore she got out (d' the part of the Reining Sea in
which they ari> not allowed to seal, knowing that sh(> had
come there, and having sen hei' call, for the piu'pose of
getting water, having watched her get underway and
sail in I lie direction of Victoria, according to my learned
friends' construction, nnist seize her. lie has no dis-
cretion. Is that reasonable?

I say thai your Honors have this inatt"r hefore yon,

30and that it is for you to construe the act. We care not
forth(> instructions. TIk! United Statesaud (rreat Ibitain
were boimd and could only give? instructions which were
in ;iccordani-e with tin; terms of the treaty and of the terms
of the Seal Fi-^hery Act of ISiU. You are asked to choose
bet ween two const ructions of the statute and treaty; one
that will not permit an innocent person, whose innocence
is made ajipaicnt at the time, to bo inlerfereil with, and
the (jther that will compel, not only the otMc(>rs of the
United States but also the ofticers of (!reat Britain, to

40arrest a vessel which they know to bis ii.nocent. Which
construction ought to be jmt upon that treaty and upon
that statute? Could there he any doubt what would h ip-
pen in ordinary litigation? What is th(> rule of construc-
tion applying to statutes in eveiw nialti>r, especially where
it involves a ciiminal chaige? Von are to find out what
was the harm, the wrong to lie prevented: find that out
first, and then put such a construction as will remedy and
prevent the wrong and harm, carry that out. Wiiat was
the object; what liid they want to prevent? Look at the

Sotermsof the Conv(Mition itself; look at the terms of the
VKxhis vivt'iidioi isi>2 and ISitl— they are both the same —
I am reading from page ISD of the British .Argument:

" For tlio jmrposo of iivoidiu^; irritatiujj; ilifforouct's, aud witli a view
"to promote tlie friondlv Hettlcment of iinestions iieudiug lietwoou
" tlie two goveniiiieuts touching their resiiective rights in Hehriiig
'• Sea, and for the im'servation of the seal K])eeies, the tollowing
" attreemeut is made without jjrejtidiee to the rights or claims of
" either party :-

" (1.) Her Majesty's Govornment will jirohibit, until May next, seal
" killing in that part of IJohriug .Sea lying " — so and so, '■ and will
' o " promptly use its best efforts to ensure the ol)servanco of this pro-
" hibitionhy British sulijeets and vessels."

That is what they w(>re to prohihit, and you now have
before you simply a question of construction. You are
asked on the one side to give a construction that will

UK)S

(Mr. Peters" Argument in Heply.

f;.

make it necessaiy that an iiiniKent vessel sliall l)e
taken from wlieie slie is innocently employed ddinj,'
notiiirijj; against any treaty; tiiat she must be taken to
I'lialaska ami tnrneil over to the Hritisli oHicers; tliat tlie
Hiili-<li (tHicers nmst. in tiieir tnrn, hand lier over to lie
trie(l, allhoUKh a tiial (an have no resnlt other than an
ac(inittal. And on the other side to place Hn<li a cnnstnic

lotion that yi-n shall only ^ei/.e a vessel when the sri/in^
oHicer U'lieves she has actually heen gnilty of seahn^ or
atteniptin^i to seal, or at all events has a donht whetlii r
she is i^nilty or not. I do not deny that if there had heen
in the miml of the seizing otlicer a reaxmahle doniit as to
whethei' the statement made at the time hy the Captain
of the " (Jscar" and " Hat tie "' was tine or not, that wmdd
have justitied tin? seiznie; hnt here no snch donht e.\i^tcd;
the seizing ollicer was jieifectly satisfied on that point, .nid
thei'el'oio i say that we are entitled to recovei-.

20 There are one or two other sections 1 wish to read from
the jndt;nient of the Chief .Inslice. I woidd refer you to
page 2r>t5 at the very hottom line, where! he says:

'■ Hiu'rison dooH uot 111 iinv way (•imtnulict C.vptaiii 'riiitlc's stalc-
" iiH'iit. Wlu'ii lu! si'izuil the Hliij) lie had a colli)!!' of Ixiats tii'il tcj
" the Htci'u (if tlii^ vi'SHC'l and one lioat was coiiiiiiK frmii tlio islaiul
•' witli tliri'i' iiH'u. All till" nuns and dtlior a|)i)liaiii'i'H wcrc! on tlic
" si'lioouiT ill tlu'ir ordinary iiositioii. In liin croHs-cxuiiiination he
" says In^ does not tliiiili tlie lioatK weri' tied to tlii" strrn of tin;
" scliooncr for tlic |)nr]iosi' of scaling ; lie docs not Ixdicvc tliiit tlicrc
" are ever any seals around this island of .\ttou. Several witnesses
30 " conlhni the statement that it is not a tishinn |ilaee; that you must
" ]ir(ireed two or three hundred miles further to catch seals. Harrison
" states that he knows there is a suitalili^ idace on Attoii Island
'• where a siijiply id' wati'r I'lili lie hail. He adds : ' there was a heavy
"swell coining in from the northward and westward '—that is the
" excuse why he did not tio to the other side of the island, which
" would have been outside the jiroliiliitod territory — ' ('a|)taiii Turllc
" told them that lie had liecn soaliiifj; for a month around ('(i|i|ii'r
" Islands, lint that he had not lieeu Hcaliiif? in Belirin^; Sea, and that
'he had (jone to (iot/.leli Harlior for the sole jiurpose of ohtainint;
" water, and that the t'lshiiiK season for him was closi'd.

" Comniauder .Tolmson of the ' Mohican ' admits that almost iiiuue-

40" diately after the seizure that he knew that Captain Turtle had liei'ii

" lately sealiun in the neij;hliorhood of Cojiiicr Island, lint cannot

" say whether it was Harrison or Turtle who f,'ave him the information.

" He also states that there aro no neals within '200 miles of Attou.'

So far as this Commission is concerned, that is a jioiii-
wliich we well nndorstandat tlieiiresent time, perhaps he(t
tor than f lie Court who were trying the case of the " O.scar
and Hatlie." It is ai)parent now from what we know
that that was a part of the sea to which vessels never
went to hunt seals.
50 " The evidence of Captain Turtle is also corrohorated
by the evidence of Joseph lirown " itself.

I think these are all the jiarts of the judgment of the
appeal court to which I need call your attention. My
leaiiied friend says that the Supreme Court of Canada
held that there existed prima fucic evidence for seizure,
hut not for condemnation. I would note at this point
that the ciuestion before the Supreme Court of Canada
simply was whether there was ground for condeinuatioii
or not; wli(;ther i\u\ decree of condemiiation should he re-
60 versed or sustained; that that was the only (jueslion they
had before them, and the remark of the Chief Justice
that there wav, prima facie evidence for the seizure was
not at all necessary for the judgment.

Mr. iJickinson:— And "sufficient."

Mr. Peters;— There might have been sufficient evidence,

1061)

If^r l-ri-Vr-

(Mr. Peters' Argument in Heply)

if yon simply liivd the factthnt the arti(.U>H were foiiiid on
boar,!; i)Ml that priiint J'dcic i'v'uU'\\c(> (•oasi'ij to exist wlion
it ajipcars lliat the captain of tlie " Moliican "' was satis-
fied at (he time that tiiere was no improper pnrpose. I
do not know your Honors that it is necessary 1 should
say anvtiiinji fintlier upon the cfiso of the " Oscar and
Hat tie."
10 Mr. Dickinson:— The para^^raph at tiie top of pa^e *253
of the Kxhihits is the essential paraKrapii.

Cask ok thk " Winnikkku."

Ml. I'eters: — Now, I |)ropose to make a few nMnarks
witii regard to the case of the " Winnifivd."' The facts
of the " Winnefrcd " case are vei'v familiar to your Hon-
uis, and it will not he necessary foi' me to do more than to
call your attention to one or two points which have been
referred to hy my learned friends. The jmits of the Kec-

-Oord F wish to refei' to are iiaj;es l.M-t and l.'d."). If your
Honors remendier, the situation of afl'airs proved was this:
The ■' Winnifred ■' was seized on the high .seas outsidf of
the tlueeiniie limit- .some fifteen miles from land. She
was seizoil originally for a hreai'h of the hioihin vimi'li,
\W2, or of the Heal "Fishery Act of jsui, to he e.xact. She
was taken to Unalaska in charge of :i prize crew, and,
while she was thus in charge at L'nalaska, a conference
was liehl between the connnander of the " Jtusli," Captain
Parr, of the British navy, and Cajjtain Hooper, of the

30 United States revenue service.

It will be noticed that up to the time of this conference
the vessel had been .seized and held on one charge only,
and that was a charge of having broken the terms of the
niodits riniidi. That a|)iiears very clearly, and, in fact,
is not disputed. This conference took place on the 27th
day of July, is'.io.

Perhaps, before cotning to this conference. I had better
call your Honors' attention particularly to the evidence
to show what she was seized for. It is at the bottom of

40 page ir>14, and it is the report of Captain Coulson to the
Seci'etary of the Treasury. He re[)orts that on the 20th
of July, ls(t2, be fell in with the schooner " Winnefied "
and he seized her, and he goes on to say :

"Ililaced tlio ves.sc! iu i'liai'p;o of Lieut. DodRO aud foiir mon and
" took lier iu tow aud brought licr to tliiH port " — lie in writin^^ from
Uunlaf'ka— "aud have lior under our oliargp awaiting tlie returii of
"the ' Yorktowu ' witli ("omniauder Evau.s, before turning her over
" to the custody of ('apt. A. H. Cliase, R. N., commanding Her
" Jlajesty'H naval force iu these waters, iu accordance witli the pro-

, " visions of the articles of couveution between the United States aud

'^° " Great Britain."

That settles beyond dispute that she was seized for a
breach of the jihxIii.s rirciidi, was taken in charge of a
prize crew to Unalaska for that breach, and at Unalaska
was being held for the ])urpose of being banded over to
the commandei' of the British navy. Under these circum-
stances the conference alluded to took place and the sub-
stance of what transpired is contained in Captain Coul-
son's report set out at J{ecord, page 15 IT), as follows:

"On July '27tli Commander Evans, U. S. N., aud Captain A. H.
" Chase Parr, R. N., commanding Her Maj"'8ty"s naval force in IJehring
" Sea, met by ai)pointnient ou board the ' Rush,' aud after a full die cua-
" sion of the matter it was agreed " — and I want to call your partitular
attention to this agreement — "on thi> part of Captain Parr that his
' ' government would waive the right of custody of the seized vessel until

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imi)

(Mr. Peters' Argument in Reply.)

" Hhe had been tried 1>t tlio United Stnteg coiirtH for violntion of the U.
" 8. Revenue Lbwh, ))rovided tliat in cane of failure to pouvict her on
" thoHe uharf^es, the vchhoI, her enrKo. outflts, &i'., and inaHter and crew
" were to l)e turned over to HerMBJi'sty'H the Queen of Kn^land'H rep-
" resentativeH at Victoria, U. V., for trial on charge of violation of the
" terms of the existing motiim vive>i(ti."

He alh'ues that lliis agreement was made at that time.

,Q Now it is argued tliat after this arrangement had heen

maile, the schodner was seized again for a charge against

the revenue hiws. Wo siilmiit that there is no evidence

to show that Jiny actual .seizure took place at all.

Mr. Lansing:— The .same letter, Mr. Peters, the las^t
paragraph

Mr. Peters: -I intend to read the letter precisely as it is
The letter says:

"I have therefore made formal seizure of the ' Winifred,' and

"arrested her master O. M. O. Hansen and crew for violntion of the

«« " U. S. Revenue Laws an above cited, and as soon as the necessary

" papers can l>e procured she will be delivered into the custody," anil

so forth.

Hilt tiiis is wliat 1 wish to point out, that there is
niitiiing in the evidence to show that any new seizure
actually was made.

In any case it is clear that the only legal cause of
seizure on the high s-eas was (he breach of Uw iikkIiis, and
if the i»insecntii)n lor this wasalandoiied the vtsst-l having
heen ton ibiy hroiiuht within the jurisdiction foi' a

johieach of the nKidn.s the seizure could not bt? utilized
for any other jirosecution, iKtr could she ho seized again
for another charge.

We must niideistand how the matter stands. Up to
the time of this conference there is no evidence that they
ever io lianded her over to Captain Parr. It seems to ine
that they alleged she had been h.mded ovtM' to Captain
Parr, and that he then handed her hack again that she
should he proceeded against for anything they saw tit.
The very letter I have read here shows that that was

40 ""t the case, because, at this conference, what is alleged
is that after a full discussion of the matter it was agreed
on the part of Captain Parr that he would waive tiie
right of custody of tlie seized vessel until slu^ had l>efii
tried, and so forth, provided, that in case of failure tn
convict her under the charges against the revenue laws,
she should he turned over, showing that she never was,
as a matter of fact, handed over to Captain Parr, and
until she was lianded over to Captain Parr he had nothing
to »lo with her wliatever. What do the facts amount to?

50 The vessel is brought in, having been s«Mzed for a breach
of the niodiis liveiidi. Until she is handed over to Can-
tain Parr, he, as a British ofHcer, had nothing to do
with her whatever. They discuss the matter to-
gether: the officer of the United States tells Cap-
tain Parr that there is n charge against her for
breach of the revenue laws. Captain Parr is not
in a position to know whe^^her the charge is a good one or
a bad one. Ho simply takes it for granted that the
charge is a proper one, and one for whicii the vessel could

60 have been seized at the place she was seized, that is, at
sea; .and he says "all right, prosecute away under your
revenue laws, and, afterwards, if you fail to bring her in,
hand her over to the British officers so that she may be
prosecuted." But she never was handed over. And how
does that leave the United States!

lOti]

}»'"M« ["If

(Mr. Peters' Argument in Reply.)

She wa8 seized for a breacli of the modus virendi; and
we say that is the only matter she could have been seized
for. They have not proceeded under the terms of the
modus Vivendi; they have not taken any steps against
her. I cait* not for what rea.son that was. They were
not prosecuted, and therefore tlie modus vivcudi cannot
bo pleaded as a defense.

lo What other defense have they for tlie seizure in the
open sea? Tlie only defense is that tliei-o was some imag-
inary oflfence against their revenut* laws. Can any one
imagine an offense against the revenue laws that would
justify such a seizure^ Tin? seizure staiuls, as it appears
to me, without justirication. They stand in thi; position
that they have taken our vessel; she is absolutely lost to
us; and when the reason is asked, they have none to give.
It is no answer to say that she was condenuied by a court,
and that we should have .ippealed from the decision;

20 what does that amount to when the fact is that the was
seized outside the Jurisdiction of the Tnited States,
forcibly brought within the jurisdiction, and then arrested
and tried for an offense that she could not be seized for
outside of that jurisdiction? Nothing that ever could be
donti would have the elTect of waiving that objec tion.

Mr. Warren: -In order that tlie position taken with
reference to the " Winnifred "' may be understood by the
Counsel for Ureat Britain, 1 may e.xplain that oui' posi-
tion is that the vessel was tendered to the captain in the

3oharbo'''it Una tska, and be refused, and she was seized
ther..

Mr. Peters:— The tender is imni.iterial. I s.iy that by a
statement iriade to Captain I'arr they induct-d him to be-
lieve that there was some other proper cbarg'- upon which
she was liabl«« to condenniation, and that statement was
not correct. I do not mean that llu»y made it with an
improper purjviae. Captain Pair bad no means of judg-
ing whether they w<>re right or wrong in their .illegation,
and he bad no right to judge it.

40 I want to be understood as refeiiing your Honors back
to the argument made by the cnuusel wlio (halt with this
case on our side. Mr. Heicpie dealt fully with this mat-
ter, and showed that Captain I'arr woulfl havt! no right to
act as judge on this point.

Cask of tiik " Waxokkkh."

I come ne.xt to the case of the " Wanderer," dealt with
by Mr. Warren The facts relating to this ve.ssel have al-
ready been spoken of, and 1 do not wish to do nioie than

so bring your Honors' attention to the objections raised by
my learned friend.

The " Wanderer " belonged to one Pa.xton. She went
sealing in the spring of tlie year 1S8!». In that year a
proclamation was issued by the President of the United
States preventing seal hunting in Bohring Sea, or in that
part to which we always have reference. Captain Pax-
ton hired a crew and began the voyage to Behring Sea.
On that point there is no <loubt whatever. It is set at
rest by the evidence of the witness Bjorre, at page

^^1 1541. My learned friends ask the Court to inter
that in reality Paxton never intended to go to Behring
Sea, and that he is only tiiking advantage of the circum-
stances to make a claim' which i-eally has no foundation—
that in point of fact he only intended that his vessel
should seal in the early spring on the coast of Vancouver

il I I

(Mr. Poters' Ai')^iiirioiit in Kt'ply.)

Islaii'l and then ivtiirn to do trading- That point in set nl
rest by Bjerre at |»ago 1541, line 10, whii-h agrees entirely
with the evidence given l»y Paxton:

"Q. Mr. Ujerro, I lK>li«>vo tliiit yon w«'ro on llm ' WBiidprcr' id IHH97
" A. YeH, Hir.

"Q. Ah innte? A. As iniitr.

"Q. For wlint trip cliil vou fugn^e yourRrlfy A. I eufiraKPd for the
" trip ou tli« ooHHt auil lit'liriiiK Hpb— tlip Healing and hiiutiux trip.

"Q. Did you cUKaKo for liotli the voyaKcou tlicfoaNtaud in BchriuK
" Sea? A. Yen, nir; l>otli.

"Q. At wliat time ilid you en«HK«'V A. Aliout the niiddlo of Fetiru-
" ary.

" Q. I>id tlie veHHel h'ave for l>oth the I'oiint trip and for liehriug H«'ii
'• at that time? A. She h>ft for the round <'r\nMe for the HeaHou.

••(J. What crew liad you? A. Wo had nix eauoeH, Captain I'axtou
" and nivHelf iind the eook.

"O. Vou had an Indian erew, liad yi>n not? A. Ye», wir; we had an
" Indian erew.

" Q. How nniny IndiauN? A. 12 for the eanoeH, but l:t iuehidiu);
" the eook.

" y. Did you then proceed to seal ou the eonstV A. Yen, sir; we
" sealed on the eoast.

•'Q. And in t lie month of May where were yo\iV A. On the eonst of
" Vaneouvi'r Inland, well to the northward.

••Q. What place alioutV A. Wo W4're between Clayoiiuot Souml and
" Cai)e Scott; about the hitter end of the month we readied Cape
"Scott."

" Q. Wt're you on your way to lichrinK S<-a thiuiV A. Yes. nir; wo
" were sealiuK aUing the coant then.

" Q. On your way to Hehrinn Sea? A. On ourwiiv toKehriiiK Sea.

" Q. Did' you continue to go to IJehrinK.Scay A. S'o, sir; wc liud to

turn back."

Then hi- pu'S into tiie renson of their turning bai k. At
another part of liis evidence he e.xplains tliat I^axton j;avc
him a certain amoimt of iinuiev ^Cl") as asortof .soiatiiiiu
for having Inst the voyage. This is at page 1542, line l'O:

•' Q. Whi'ii the vesricl came back liere to Victoria, did you com
'• plain to Captain Paxton of not having gone to the Hchring HeaV .\.
" Yes, sir; I coiiiiilaiucd bcciuiKc he ciime back here.

" l). Did you ask f<u- any indemnityV .\. I did not iiHk him for
'• any, but he gave me sonic.
" i}. What took place? .-V I told him that 1 had lost my season's
work, that I was engaged for the whole trip, and that I had hist it
on account of the Indians not going ; 1 told him I was engaged on
the const as ucll as for flic Hcliriiig Sea. and Captiiin I'lixfon toiil
" me he was sorry, but he was in as bad a box himself as I was. lie
•' gave mo 8'M> over and almve my wages as a kind of indemnity."

Tile allcgatiuii <if the (ithcr side is. yon (Udn't intend tn
go to lit liiiii^ Sea. We answer hy tlu- evideiiccnf Hjcric,
which appeals to me to he most conclusive Tlieii again
it is contended yim li;ive hot acted fairly witli tlie lomt,
because in your oii^;iiial ( ;i-e yon did not maiie it ap
jiear tliat ihe " \V;iiideier"' was eiiiployed liiat same
spiiiig nndei a < liai ter paity to bring down seal
skins from Slmtni^aii Isljiiid to N'iitoiia, under
vviiich cli;iiter party she m:ide a small aniomit of
money. In this coiuiei tioii I refer to a remark, and I
must siiy a ittiiark liMnlly fair. m;iile by tlie counsel of
the I'liited Slates, as follows: •' Hut while talking of the
"evidence of the captain (I'axtoni let me say that
" although the captain emli avored to create and establi^•ll
the belief that this vessel was deprived of the si'ason's
trip, the fact w;is developed by the Tnited Slates
counsel that on the retniii after the intli of May lie
made a charter to Shnmigan Islands, and brought back
a cargo of skins .ind received p;iy for it, and yet the
captain is silent on that, until the United States coinisel

(k) ,,

4i];,

10(53

(Mr. Peters' Argument in Reply.)

" had forced from the witness Williiini Mnnsie" ([ do not
think it <'ame from Munsie) " the fact that the vessel had
" l)een chartered for this purpose." The fact is that
Bjerre gave evidence on Ihis very point.

Mr. Warien: I read the testimony of that witness re-
garding the charter in the oral argument.

Mr. Peters:— Well, this is the idea intended to he con-
loveyed that the claimant kept hack a charter under which
he made money, and that he ought to have made known
that fact, which was hrought out l>y Hjerreat iiiit! .'>."•, page
1542, where the <|nesl ion was put to him hy the counsel
on hehalf of (Jreat Ihitain, as follows:

" Now, uftcr rniiiiuK Imrlt to ViftoriB, did ,vou no out ou any other
" trip ou till' ' Wttuderrr' iu IHHliy A. Yes, Bi'r."

So far from there having been ;uiy desirtf to keep hack
this circumstance, the charter jiarty itself was put in evi-

2odenco and cv»'iy information possible to he given was
given with regard to it.

Now, let us set' where we stand on the «pieslion of law
involvt'd in this ca.se. The (piestion my learned friend
raises hefoie the Commissioners is this: He puts the caso
of a person who merely had in his mind the idea of enter-
ing upon a sealing voiiture, anil who, upon hearing of the
President's proclamation against entering H«'liriiig Sea,
changes his intention and desists from the venture,
and asks is it reasonable that that per.son should ask that

,othe Ignited States pay bim the amount of moiiev that he
would have made if be bad carried his iiiteiitinu out. My
answer is that I do not propose to deal with im;igiuaiy
cases. I would rather deal with the case as we have it
here, and the case we b;ive here is not of a I'PIsou merely
intending to enter upon a sealing vnyage. but it is tlu' case
of a person taking aitive steps and showing liis iuleiition
hy these active steps.

In the tiist place, I'a.xton i>wiis the " W.andeier," and he
is a mail of not a great deal of n> Mils, Hesiys, " I will

.gtake that vessel and go sealing witli an liidian crew." He
goes on the voyage to a certain point be hires suih white
men .is are nipiired and engages an Indian crew and pro-
ceeded as far ;is Cape Scott, and then tlu' trouble takes
place and be is uiialde ti> cany out bis voyage. It is not
merely an iuleiition which be had in bis mind, but an in-
tention !-liown by bis .icts. It is just like the cnse of a
crime where the mere iuteiilioii is not the i rime, but the
overt act must be regarded. I'a.xton showed bisinteiition
by overt acts and by the ex|M'nditiiie of con^iileiable

-Q money.

The next contention of the I'niteil States is that in any
event they cannot be called upon to pay damages unless their
olHceis have actually warned a vessel that in to say, un-
less an olficer of a cruiser bad warned tlieiii. Now let us
test tliat. What ditfereiice is there in the two cases? We
have in this case a prociaiiiation issued and tlie tact that
in instances by no means few -tlu' I'liited States (lovern-
meiit jint that proclamation in force. We have them
making a proclamation with the ability to carry it out

rxjand actually <"arrying it out. Suppose a vessel went so
far as the Uniniak Pass, and when she was there she was
met ity a United States cruiser and an otticer was sent on
board and she was warned and turned hack, and she dues
not go into the Sea and loses her voyage, would my
friend deny that the United States was liable in such a

I 1 1 K

1 1

I ?

10(14

' ? ■

■;■}**

(Mr. Peterw' Arf2;unient in Reply.)

case? I ilo not think so. What is tho difforence hetwcfii
a person wliu, on thti way to Bohring Soa, finds that Ihf
people whom he has eiiiployei) have disciovered al>ont thf
proclamation, and found out that there is dandier of bein^'
seized in the Sea and resolve that they shall not go am
further. Where will you draw the line/ I .suhniit tliat
any person who entered upon a sealing voyage and had ii

loship and provisions (though in this case the captain did
not provision the ship, but had the money to buy the pio
visions and I think said he would buy them at Sand
Point), and by leason of the position taken by the United
States goveriuneiit. be, or the men employed l»y him.
find that there is such danger of being .seized that thtv
are frightened to jtioceed and abaiidoii the voyaue, is en-
titled to u'akf the United Stat(>s liable for damages. 1 do
not say that a mere empty fear in the minds of the men
—a mere suspicion that something might happen, woidd

-obe sullicieiit to entitle a re<ov»'ry, but in this case there
was not only tin- fear, but the fear was based up(»n sui)
stantial grounds. In all human probability tlie *' Wan
derer." if she had |)roceeded on her way to Behiiiig Sea,
would have been seized. My friends say- true, you wcif
prevented from pioceoding with yoiu' first (;rew, but you
ought to have got another crew after you came back to
Victoria, you should have taken white men or other In
dians. What jiosition would the captain have been in tiieii?
Every time he would get a new crew ho would be faced

30 with the same ditiiculty— the same proclamation, which
frightened the jm-vious crew in May. might have friglit-
ened a latt-r crew.

Your Honors remember the reasons tho Indians gave.
They said to the captain, "Are you a rich manf' and he
said, " No." And they asked him, " Are you able to pay
us our wages if the ship is seized^" and he said that that
was doubtftd. Nearly everything be had was invested in
that venture and the Indians, naturally looking after
themselves, said, " If we are going into the Sea to face

40 the probability of seizure we want to be paid." He did
not say he was able to pay them, and, therefore, he could
not have got another <;rew. But, says my learned friend.
" Wiiy did you not take a white crew?'' The consei|uence
of doing so woidd have bt'en that the captain would have
had to buy boats at ^ino each and a large amount of amu-
nition at considerable expense and guns at a high price,
and he would have been compelled to engage in a venture
far more expensive than he intended. Our contention is
that he had a right to go with the crew which he had on

50 hoard the " Wanderer," and he was stopped by the proc-
lamation of the President of the United States— not
merely the proclamation hut the actions of the United
States which had been brought to the notice of his crew.
And it is a very strong piece of evidence to show what
very great pains they must have taken to spread this
notice, for we find that the Indians in this out-of-the-way
place on Vancouver Island knew all about it and were ini-
[)ressed with the danger. I say he was not compelled to
enter upon a new venture with a larger amount of ex-

^"pense and risk. I do submit that if the Court comes to
the conclusion that the facts are true as stated, that this
claim is a reasonable one.

Then let me point out this. It has l)een argued that
wo have no cause of action unless an actual warning took
place. The President's proclamation did not require a

1U65

(Mr. Peters' Argument in lloply.)

warning, and therefore thoy are stating that we ought
not to recover because we were not warned when the
President's proclamation said nothing about a warning,
but said, in etTect, that sei/ure sliuuld take place without
any warning.

There is another point. It was, I think, suggested by
the Commissioner on the part of the United States, that it
lo was possible that wo might liavi* abandoned Behring Sea
and have hunted on the Kairweathor grounds.

The Commissioner on the |,art of the United States:—
I asked the (piestion in anothor connection altogether; it
never occm-red to me that that would bo a specific answer
to a claim.

Mr. Peters:— I thought possibly that it might bo argued
or used in mitigation of damages. If your Honors will
look at the map you will find that a trip t<> the Fair-
weather grounds is a matter of considerable niomont. It
20 is many hundreds of miles before you come to the Fair-
weather gntunds.

The Commissioner om the part of the United States:— It
is said to l)e one thousand miles from Cape Scott to
Behring Sea.

Mr. Peters: -The Fairweather grounds are grounds
hunted on by vessels on the wav to Behring Sea; there is
no evidence on this Record to show that any vessels ever
fitted out for the sole purpose of hunting on the Fair-
weather grounds.
30 Mr. Warren: — The case of the " Winnifred" is specific
on that point.

Mr. Peters:— The learned counsel v/ill remember that
he asked the Court to disbelieve Caj>tain Hansen on that
point. He tried to make it appear that that was a little
stretch of the imagination on the part of Hansen, and that
he always intended to go to Behring Sea, and possibly my
learned friend was correct in his contention. But outside
of that case— the witness in which my learned friend asked
the Court to disbelieve — there is no evidence that any
40 vessel ever fitted out from Victoria to go simply to
Fairweather grounds. There were son etimes, no doubt,
considerable catches made on the Fairweather grounds, but
it was not a place where catches were made with any cer-
tainty. Some vessels might catch forty or fifty seals on
the way up, and some might catch more, but there was
very great uncertainty about it. The consequence was
that you will not find an instance of any vessel being
fitted out to go to the Fairweather grounds only. The ob-
ject of any of these vessels after they had left the coast
50 fishing was to go to Behring Sea as (juickly as pos-
sible, and simply go to the Fairweather grounds on
the way up. And after June they could not get
anything on the Fairweather grounds. Although my
learned friends cross-examined Paxton on many other
points, they never cross-examined him as tc why he did
not g.* to Fairweather grounds. Perhaps the Indians
would not have been willing to go there under the circum-
stances.

The Commissioner on the part of the United States:—

fioDo you understand that it was the general practice of

vessels to take their departure from a certain point for

Behring Sea direct, or was it the usual practice to sail

along the coast?

Mr. Peters: — They nearly all sailed alor<^., the coast.

li I!

VVllH

(Mr. Pet«i«' Ai'(;iiint!nt in R«'|tly.)

Their clcaraiico \vn« >?<'n«'rally for lh«> Nortit Pacific and
B(>liriii)! H«'a

Tlio CiiiiiiiiissidiuM- on tli** part of tli<* ('nih-tl StatoH:—
Your |iro|M)Hitioii is that tli<> Kairw«>allif<- groniHls
not in itst'lf thr (iltjfctivf point, hnt only laki-n on tl
way tip;

Mr. IVtiMs: Yi's. and that no |M'rson would have j^onc

loto tli»' cxpt'iiso of fitting up a vi-ssrl foi' tii*- pinpost; tif
fiHhin); on tin- Kairwoathcr grounds alonr. Il, i h also
natural that tli** Indians, when not willing to n<> to Hi-li-
rinj; Sf.i, would not liav«« hrcn willing to ^o to the Fair
weather ):rounds ,ind turn iiack. This interruption took
plave on the l.^th of Mav. and the lishin^ on tlu; hair
weatliei' grounds would he over in tlie n>onth of ,Iinie. sn
that tliey would only have had ahout a month to do tlieir
sealing; had weather niight have prevented them fruui
getting Ihei'e to ilo any sealing at all. W<.' suhniit, Ihere-

20 fore. Ih.'it the fact that this man I'axton proved that the
United States(!oveinment issued ;i |)ro(lamation, llieetTirt
of which was known to his men, is sutticieut.

lieference has heeu mailo to the instructions given to
the naval ollkers of the I'nited Slates, and my friend
pointed out tliat these instiiK tioas were dated at a <late
later than this vessel turned hack from Cape Scott. That
has nothing to do with the mailer, hecause it isappaivnt
that instrui linns to naval ollicers never could have lieen
known to I'axton They were given to the captains of

3()the cuttt>rs piivately at a time which would enahle them
to a( t ."o scon as the Hehring Sea season opened. The
I'lesideufs pioclamation was |inhlished in March, long
liefore I'axton w.is compelled to turn hack. Our conten-
tion is that when the I'lesideiit's procl.imatiou was made
iwn to the world, it was known that it did not mean

empty words, aiidth.-it it would he (anied oul ; and, then
fore, when we find that the pio( lamatioii fiighteiied the
Indians so that the captain could not c.-n ry out his intended
voyage, it appeals lo us that thecase isagood one without

f (if actual warning

40 proo

CVSK OK TIIK '■ HkNHIKTTA."

Now, as to the case of the " llenriett.i,' which is one of
the atldilional cases. Attheprtsent I'lonient I have not
made u|) my mind that it will lie iiece sar^ lo make any
remarks in addition lo what have ,ihi an / lieeii maile. It,
hefore I close my reply. I find .iiiylhiig is called for, I
shall then make seine oli-ervalions, hut at the present
time it appears that the liahilily lo pay c impensatiou is
5"fnllv iin«l fi.Mikiy admitted hy my friends on the other
si(h', and, Iheretore, it simply comes down toaijueslion
of the aniouni of damages.

• Savw.\hi) Cost.'"

As to the '• Say ward " costs case, it has already heeii so
fidly argued in oin hiief. .ind hy Mr. Hei(|Ue. that I think
the contention on hotli sides is fully hefore the Commis-
sion. I (oiilent myself hy referring to Iheargnmeiil made
by Mr. Heiijne, and the writt«'n argument.

Main .-Vucumknt.

Now, having made these remarks upon tlie special cases,
I wiflh to bring your Honors" attention to the argninenl
presented hy my fiiend, Mi'. Lansing. 1 may say it is my

• rT^ ' 'jri

m\7

(Mr. PetoiH' Aij<»'>i»'"t in H»'|»ly.)

|)Ui'p>>8t^ to (lenl with tli«> qiicstionH of fact first, and then
with tht> (juestions of law.

Th(> tirs't <|ii<>stioii Ml'. l>aiiHiiii;(U'als witli is our nii'thod
of cotii|Mitinf; t'stiiiiatfti catch. In tlio inethoii that
we pr(i|i(i8e tor cstiniatiiig catch, which your Honora
will find at pa^cs 7t* to .^2 of our ai^uniciit. wt> made
tliis ^cncinl statement, that u|)(in looking at all thu ves-

lOrtuls about which w«* had (orrect information as to thoir
catch, and the time they were in tli«' Sea, the only vessel
in regard to which it could he really said that she had
bet'H alile to hunt without intei ruption on account i>f th(>
action of the United States (lovermni'nt w.is the "Mary
Gllfu;" we therefdre said that in attempting to compute
tho estimated catch it was tail' that the " Mary Kllen"
Hhould he taken as a test case. That was our proposition.
The argument that Mr. Lansing lias submitted tu
tliis Tnbunal controvt.ts that proposition, and he

2otak'.mupa great deal of time in arguing that tliat is
an unfair comparison. He takes a great deal of pains,
by tables and diagrams of his own, to lay before yon
various averages anil various statements, and upon them
all he con)es to no conclusion. He says it is iiupossible to
coMie to any conclusion; an<l when asked to show any
better mode than we have proposeii to est imat*' an average
catch that any vessel ought to make, he says: " VViiat I
am here t(t prove is not th.it then' exists any better mode,
but to piove that there is no basis upon which any calcu-

^olation can be made." That is the point h<> attempts to
prove by the complicated tables which be lias pioduced.

Now, in the first place, he calls attention to a table that
we inserted in our argument at page 75. That table was
not put in for the purpose of founding any special calcu-
lation ujton it, but for the puipose of showing coiicisely
certain mformation which we had. concerning the move-
ments <»f the (litTerent vessels. 1 wouM make this state-
n: uit, that it is no easy matter, wbeie there is ilisputed
t( .imony here anil tbete, to make a tabulated statement

(owhich would be absolutely coirect. We li.ive not done it
and Mr. Lansing I, as not done it. It nnist be rememi)ered
that many of the witnesses upon whose evidence the ta-
bles were founded were spejiking from memory, and when
there were discrepancies bet ween persons speaking from
memoiy it was impos-iitle to tell which was correct We
can only get at it appro.ximately. When this matter
came up in Olid aigument 1 made a calculation, which
calculation will lie found set out in the report of my tirst
address. 1 see one or two erroi-s Kor instance, the

;Mcatch of the "Oiiwaid," in my nial argiiinent,
is put at 5()H. whereas, as ,» matter of fact,
it ought to be \H)7. I collected it in reality, Imt
I happened to give my notes to theshorlhand reporter and
he copied it with the mistake in it. 1 made (his calcula-
tion upon the tables contained in our printed argument.
.Mr. Lansing says that the calculation is all wrong. My
lalciilation showed lor boats somewhere between seven
and nine on an average and it showed for canoes about
tour. He contends that is all wrong, and that you cannot

( )niake up any such calculation, and he also says that
our table shows sometimes the first lowering day, and
sometimes the day the ship entered the Sea. and some-
liujes it shows the last lowering day and sometimes the
day the ship left the sea, and therefore the calculation
is not reliable. I am not here to say that we can give

KHIH

. , t

rI-'

(Mr. PoterH* ArKUinunl in R«?|»ly.)

^oii nil t'xnct tnbh) by wliicli you can, tn n m>al, Hay what
18 the avtM-n^t* that a VfHSfl Hhoiild hnvo <;aiiKlit in 1886 or
1887 <tr I8H)». Wf (K) not proiMwo to do that, hnt wo think
we can n'*'«' von ilata from wnicii yon may come to a verv
(rood idea of it. Now. my friend, in ordtM' to correct me,
made np several statement.s. I will refer to one of them
It is what 1 call liiH main tnbh*. lie inserts tiiis table as

lO follows;

" Data relafinn to Healing vessels e(]ui|)|H!d with boatH,"
then comes the following information— the year, tonnage,
nnnd)er of bojits, date of entering tlie Sea.

Tli«' Commissioner on the part of the I'nited States: —
How is that lttter«'d?

Mr. LansJMK: It is what I term, "The (leneral Tabli'
IJelating to Catch."

Mr. Peters: — The one 1 am reading at the jiresent tiim'
is tliu one relating to boats. Tiie information that that

-o table gives ns is as to the vessel, the year, the lunnber of
boats, tonnage and the dale of entering tiio Sea— the last
lowering day, the day of leaving the St-a, the catch, and
then remarks. My friend tiutk pains to tell ns that lliis was
bettor than onr tables, because it not oidy named one wit-
ness, as wo did, bnt all the witnesses who had given evi-
dence on the point. I am not pre])ared to admit tho ac-
curacy of my friend's table, becanso it is not correct, bnt
I dare say it is correct enough for practical purposes.
You will find in one case that he makes a vessel enter the

30 Sea (»n the 24th .)idy and you will find that that vessel had
tho first lowering day on the 20th July, which is impos-
sible.

Mr. Lansing:— Is not that the testimony of tho wit-
nesses?
Mr. Peters: -I am not discussing that point.
Now, I have taken his own table, the table as he makes
it up himself, and let us see Ijow we shall come out on
liis own statement. I have mad«' some simple calcula-
lations based on tiiis table, and I will give your Honors

40 tho result. In 1880, according to Mr. Lansing's table,
there were in Reliving Sea six vessels that carried boats;
the "Mary Ellen," the "Pathfinder," the "Theresa."
the "Thornton," the "Vandeibilt" and the" Adele."
These vessels had between them in all 27 boats, and they
caught, according to my friend's table, 8,.'>7S» seals. So
that every small boat that was in Behring Sea in 1880
caught on an average 817.74 seals. I take this not from
my figures but from his. I follow on, and I find again in
that same year the " Mary Ellen " bad five boats, and she

50 was in the Sea .5.5 «lays. That is 27.5 hunting davs for one
boat. I make the same calculations for each of the others
to find out how many hunting days for one boat each one
of these vessels had. Then I add them all up, and I find
that all of these vessels together had 1236 days in Behring
Sea for one boat. I divide that into the whole nnndier of
catch, and I find, according to their own figures, that
every boat on an average caught per day 0.93 seals. That
is the catch per boat pei- day in that year according to my
friend's own figures. Nearly 7 seals per day; not so very

'''o far from the statement I previously made. By making
similar calculations, and leaving out the vessels that
were seized that year, or interfered with, and the average
per day per boat is 7.32. Now I will make the same
calculations for the canoeu of that year. I find that
in that year there were in the Sea 8 vessels that

(Mr. Pet*'!!*' Ai-giiiiu'tit ill l{»'|>ly.)

had canot'H. They hail hetwt't'ii tlieiii 7(i C!iii<»eH, and they
caught altogethor 10,641 ueals. That is onvh vnmw in thu
Sea that year caught on an av«>i-aKt> ir>'2 H<>alH. HriiiKiiiK it
down to th(! niiiiihci' of working days for oiin caiiot* th«>
combined nuinhur of days in the S<>a for all of tliOHO ves-
Helf for ono canoe would \w 'J,ho4, divido that into the
total nunilwr of neals caiight and yon will ftiid that every

locanoe einployed in the Sea in IbMt caught an avera^n of
3.71* sealrt per canoe per day.

There in another tiling I Hliould point out. The average
catch per canoe of the Neason was i.''>2, and the lowest
catch of any veHsel with caMoes, that remained during the
entire Heason, was ono with 1 1 canoes, which caught l,lfKi
seals, or an average of inu for each canoe. My friend,
Mr. Lansing, hy liis coinpntatioiiH and reasoning, has
proved conclusively that we never caugl.v the nunilier of
seals we did catch; that the number of seals actually

20 caught could not be caught. That is the logical conclusion
of his argument. 1 think one of the remarks before the
Tribunal at Paris by Mr. Coudert was. that give him
figures, and give him a pen, and he could prove anything.
The answer was that Mr. Coudert could do it without a

Een, and that remark niif^ht apply to Mr. Lansing. He
as proved to you conclusively that we caught more seals
than we could by any possibility have caught. Before I
leave this matter of 1M8(( I would like to make this addi-
tional statement. Tlie average catch per boat for the
30 season of 18H«1 was 317.74! The lowest catch of any vessel
that i-emained during the entire season was the " Vander-
bilt," which, with 5 boats caught 1,545, or i*r>{» for each
boat.

Now let me give you the average for 1H8U for the canoes
of vessels that remained in the Seii, and .v<Me not inter-
fered with. There wore M canoes, and they caught alto-
gether 1»,04H. with an average for each canoe of l.'it!, or an
average per canoe per day of :t.t».

Mr. Ijtuising:--! would like to know Iimw you determine
40 which is the correct staiementas to tht; catch, and the cor-
rect statement as to the number of days.

Mr. Peters: — 1 will show you what 1 have dene. In the
first jdace I have not gone liack of the first of July, and I
have counted the sealing season as never extending back
of the first of July. That is what I iiave done originally,
and always have done. In the second place I have adopted
the day of leaving the Sea in every case where it is given.
Where it is not given I have taken the last "lowering
day." As to the number of seals I have allowed in each
50 case, the figures I hav«! adopted will appear by comparing
one with tlie other. The only difference I have made
from your table is in the case of the " Onward." In that
case we have proved, beyond peradventure or a shadow of
a doubt, that the "Onward" had (>()(• seals instead of 500.
It appears from the log book of the " Favourite" that that
nuinber of skins were taken off the " Onward," and were
on the " B^avourite " before seizure.

Now, I take the year ISH7, and from the same tables I
find in i-egard to boats, that in that year there were seven
'^'O vessels that carried boats, and they carried altogether
thirty-four boats. They were the " Allie I. Alger," the
"Favourite," 'Mary Ellen," "Mary Taylor," "Path-
finder," " Penelope," and the " Vanderbilt." They caught
H,}»94 seals, an average for each boat of 264.53. I find also,
bringing that same calculation down to the number of

107i»

(Mr. FoUmh' AiKiinifiit in Koply.)

workiiiK tlayn for onu lioiit in the Sen, that tlH>y liad
iiltogutmn' i73i( working <|jiyH for onu ImuiI. Dividing
thut into till* nunilHM- of hchIh that w«>r«> cmi}j;lit, you will
find thf liontH ciiiiKlit that year an avoraKoof 5. ISpor
boat |H>r (lay. Hringin^ that down to Ihu actnal uv«<r-
a^e of what they i-auKht, you will find that thu avi>r-
ago catch per lioat per seaKon was 'J»I4. Tlu' lowest catch

lo wnH the " Vanderbiit," whoMt> six boats caUKht liftn or an
avra^e of iiOH.\ s«'als each boat.

Now, then, in Ihm7 for canoes— we fhid that thore
were |o v«»jsels that carried altogether H'.\ canoes. They
caiiKbt IHMW s«'als, o' an average of lllt.HT per canoe, j
tind, making th«< same calculation I did before, that there
were 'Jl\H working days for one canoe, and dividing that
into the nundierof seals caught wotdd give an average of
;i.»i4 per canoe per day for 1HS7.

Now I venture to say that this way of making up an

2oaverage is a better test llian to lakt! the av«'rage of any
one vessel. So that that gives you for the year an aver-
age of IIS).:(7 that each canoe caught <U' an average pei
day for each ••aiioe (d' ;i.<'»4. Now it you take that year,
thu vessels (hat were not interfered with, and I call your
Honors to note this particularly, for you will see the big
jump that is taken showing the elfect that interference
had in that sanu> year u|ion the catches of vessels that
were interfered with. Tlieie were four vessels carrying
;k> canoes, and they caught ."s^U:? si-als, or an average of

3i)l7s.|u for each canoe, or an average per «lay per canoe of
5.HH. So that the canoes of vessels not interfered with
caught H.'-'H per day, whil" if you include those
that were int'-rfered with, tlie c;itcli is reduced
to :i.ti4. Nothing would be stronger than this
illiiHtratioii taken from my liarned friend's own
tables. I could go on. and give the same statisticij for
1889, b I I iiave not done so toi' the reason that m jSH!)
tliere > no .so many seizmes and interferences that it is
not fair to take an average of all the vessels. Hut I sub

4on3it you have a right to say that if no interruption had
taken place in IsH!) the catch would have been fully as
good as the averagu nuidu in one of the years belore.
So much in regard to this part of thu table.

Now let me refer your Honors to some of the blue priids
that my learned friend lias fornmlated. You will tind
several of them, but one particularly I want to call your
attention to, and that is the one showing the numbi-r of
"Lowt-ring days" that dilfeient ves.sels had in the Sea.
It is blue print No. 5 and is a comparison of the days

50 when hunting was carii»'d on in Itehring Se.i in IHH(i,
1887 and 18M!t. You will se<' at a glance the remarkable
coincidence in the nmnber of lowering days of ditfereut
vessels in ditferent parts (d' the Sea, and the fact of tlie
weather being tine in tlillerent parts of the Sea at the
same time. Take July, for instance, and the first part
of August, and see how nearly in all those years the
same weather seemed to have prevaile<l everywhere.
That chart demonstrates in the very clearest manner, not
my learned friend's contention, but ours.

Cio I am not going through my friend's argument, where
he attempted to show that the " Mary Ellen's " catch was
not the pro[)er test. When he begins to reckon from the
24th of August backward, and the first of July forward,
it looks all right on paper, but you cannot trust any sncli
general statement as he has given us here. You can

1071

(Mr. IVtoi'H* At-KUinuiit in Ueply.)

flgiiroout alnioHt any rt>Hult IIiIh way nml that way, du-
landing u|Kin tlio tiay yoti Hlart with. I do not think
that much kcmhI can Im got out of it, and it couh'h down
to Mr. Coudert'H r«>niark, that with a |H>n and figures you
can tiguru out ahnoHt any lusult.

At uno o'clock tliu C'oniniisHionorH look roccHs.

At halt-past two o'clock the ConnnissiontTs rcHunied
thoir Hcatu.

Mr. Pet«'rs:--My l«'arn»Ml fiii-nd, Mr. TjinHing. dealt at
length in his argument with llui proposition tliatlhert; are
no dethiite sealing grounds in Mehring Sea; and in hiii
oitening statements he said, stating tint position of tlie
United States here: "Now. vonr Honors, it is«>videiit that
20" the peoplo who undertook this venture are as varied in
" their occupatiouR as the purchasers «>(' lottery tickets,
" and the same spirit which induced !!: persons to invest
" their money in a lottery induced th -i > to go into the
" husin»'ssof sealing.''

I am not prepared to say that tliii! is not a fair com-
parison from Mr. Lansing's poini t vjevx when .ironing
that particidar point, hut in ai voc lo it I <<(iuld refer
yoiu' Honors to liis own t.ihle, compiled lui- the ye.irs l><8«
and IMST, and I would point out th.il in that talile he
3oshows that the catches 01 each one dl the vessels in these
years wert^ «>Mough to >.''ve tliem a veiy i onsidei.iltle pidtit.

If it is to he compared with a hillery. it is ceilainly a
lotterv in which «'very man has a prize. My learsed friend,
Mr. l)i«:kinson, did not <onii»are si-ai tishing to a loiiciy
hut he compared it to whaling, and arguing fioni the
" Costa Hica " and (ieneva cases, he s.iid that whaling ia
afar moriM-ertain occupation than .sealing, i should like
to know vvliere my learned friend, Mr. Dickinson, gets Ins
authority foi' that stalenienl. 1 was jilways disposed to
40think that whaling was a most imcertain an wt-ll as dan-
g»>ri>\is occnp.iti<»n. I should like to see the authoritative
chapter and verse that my learned fiiend ipiulcs when he
says "that sealing is as imcertain as whaling."

In suiting forth his proposition that tliere ar*> no defin-
ite sealing grounds in Hehring Sea, .Mr. hansiiig takes up
several statements that have heen made on Iwhalf of
(treat Hiilain.

lletlealt first with Mr. H(»d well's argument as to the testi-
mony of Laugldan Mclican, where he says that there were
?ohanks in hehring Sea. After (juoting Mr. liodwell's re-
marks. .\lr. Lansing added, "hut he (Mr. Bodwell) does
not tell your Honors where these hanks are to he fttund."
And producing a chart, Mr. Lansing, referring to the
locality des(;rihed hy Mr. Hodwell as peculiarly a sealing
ground, asked that a single point he mentioned in that
area where the water is less than lUMt feet in depth. But
my learned friend, Mr. Lansing, when he puts a cpies-
tion of that kind, d-x • not seem to comprehend what
really represents a tishing hank at sea. Let him go to
(Jothe tishing hanks of Newfoundland and inquire what
depth of water is on them. We know a hank at sea by
the fact that there are soundings, and when you find in
Behring Sea that there are sountlings at a certain place,
you know that they indicate the banks.

I refer your Honoi-s to the following authorities in sup-

W72

...rv

' " ''1m

" : ' ■ ■.r'^\':

- .. ' — ■ ']i^'*-

; Wi

i' Vi(i

• -^ ' m

iv . ii

ij. ' ':i";

■ !•' ■ ;t'

Mi, i?r;

:r,:ii' 4?

(Mr. Peters* Arguinent in Reply.)

port of Mr, Bod well's contention. I will road first from
the United States case at Paris, page 14, Vol. 2:

" A peculiar fuaturo of HcliriuK Hi>a Ih the cxtenHiTC bank of BoanJ
" iogH whiuli Htrct<'li'>H off for 25() or more uiileH from the American
" couHt, n'uili'riun the eaHteru ])urtion of the Sea very shallow. Tb<'
" i-hurts show that throuKhoiit one-tliiril of the Sea the depth of the
" water doeo not Keuernlly exceed Hftv fathomn, and they also hIiow
" that the average depth of the whole Sea is very conHidcralil/ lean
" than that of the adjoining ocean."

At Vol. a, page ll!». speaking of the distance which the
seals wander from the islands (luring the siminier in their
search for food, the case proceeds:

" The great distance of the feeding gronudH from the iHlands is not
" remarkable, as the seals are very rapid nwimmers and (lossess great
" endurance."

•And later on in the same page:

) " that a female could leave the islands, go to the fishing grounds
" a hundred miles distant, and easily return the same day."

At Vol. 7, page 3l>4, Prof. Townshend, in his deposition
attached to the conntercase of the United States, says:

" In the stomachs of many of the seals examined as above stated,
" there were found large quantities of fish, usually ccdflsh."

In speaking of the codfish it says;

" It is found from the shallows along the shore out to the banks
where the tishermcu usually take them."

And again:

" In its freciueut migrations from bank to bank the cod passes over
" tracts of ocean where the water is of profound depth."

Vol. 9, page HIO, United States argnrnent at Paris:

" All the schooners prefer to hunt around the banks where the
" female seals are feeding."

Mr. Condert, in his oral argument at Paris, Vol. 2, page
^o:i5.5, says:

" The facts stated here, that there is this large numlN?r of seals con-
" stautly upon the laud, explains the scarcity :if fish, and it is also
" apparent that there are feeding grounds, that is, places where enor-
" mous masses of tish congregate, and to which the seals resort."

In the United States Counter Case, Vol. 7, pages 107,
los, it is said:

"It must also be recollected in considering this question that the

" sealing captains have each year become more and more familiar with

" the migration route of the seals in the North Pacific and their feod-

50 .< igg grounds in Bchring Sea, which naturally tends to increase an-

" nually the catches in these localities."

Mr. Lansing also refers to Mr. Bodweli's argument
where he contended that the position of the United States
at Paris was tliat the seal industry was in danger of heing
d 'stroyed hy the efforts of the p«'lagic sealers, whereas
now the position is that it was difficult for the sealers
to find seals. He said:

" My learned friend is in error. He dm-s not unilerstand the posi-
" tionof the United States in 1H!)2, or else he has been misinformed
"as to the fricts. The position that we assumed l>efore the Paris
" Tril>uual was, that the seals taken were not so great in number, but
" that for every skin taken two s<>alH wore destroyed; that is, that out
" of every hundred seals killed, but ♦hirty-three were secured by the
•' hunters. That was the first contention of the United States at
" Paris."

1073

(Ml". Peters' Argument in Reply.)

Notwithstanding that, the following is an extract from
the United States written argument at Paris:

*' Offioers from the navy of the United Htates, BritiHh sea captains
" as well as Amoricnn .leiinieu, jouraalistR, untiveH all cunour ns to the
" fearful ileBtrnctiou which in K*'iuK on. It in not poHnible to read the
" teHtiniouy, oven inakiug fur more allownnco for exuKgcration than
" the nature of the uhhb will juntifv, without reachiuft the conclusion
" that pelagic sealing must bo stopped, or all hope of preserving the
'" " herd abandoned."

I refer your Honors also to tlu; United States case. Vol.
2, pages 187, 18HandL'li>; Vol. 5), pages 297, 298 United
States argument at Paris.

At page 199 United States Argument at Paris, Vol. 9,
the following passage occurs:

" But notwithstanding, lot the inquiry how soon the destruction
" will l>e complete proceed, nnd for this purpose let it lie assumed that
" the present magnitude of the pelagic catch and the consequent
20 " destruction of females bo continued."

These quotations will show that our learned friend Mr.
Lansing has made a st.atement before this tribunal, which
is hardly sustained by the Record at Paris.

At page 200 of the oral argument, Mr. Bodwell speaking
of this matter, says:

"Again — and it is a point with which I will have to deal with more
•' fully later — the position assumed by counsel for the United States
" is inconsistent with the whole of their contention from the beginning

,_ " of this coutroveruy. If it is a fact that seal hunting is so un<-ertain;

^ " if it is a fact that the sealing grounds are unknown and that the sea-
" sou is short; how is it that the United States went to Paris and
" asked for regulations upon the tlie^^rv th.'<t the largo industry was
" necessary for the comfort of the iuhaiiitant.i of the world generally,
" and that it was in danger of being destroyed by the efforts of the
" pelagic sealer ?"

At page 29H, Mr. Bodwell refere to the matter again as
follows:

"We take the position that the United States having at one stage of
•■ the controversy made their cose on the ground that sealing was
40 " being conducted so successfully, that the habits of the seal were
" so well known, the places of abode so well defined, tliat the efforts of
" the pelagic sealers were practically destroying the seals herd, I
" say, we assert, that it was not competent for them at another stage
" of the controversy, in order to benefit themselves, to take an entirely
" different and inconsistent position and assert that the former con-
" tention was not correct."

It a|)pear8 to me that the position taken by Mr. Bodwell
is perfectly consistent and that Mr. Lansing has not cor-
rectly stated what Mr. Bodwell's jMisition is.
50 Ml". Lansing:--! took that statement from Mr. Bodwell's
typewritten copy of his address, where he said wo ob-
tained regulations within the prohibited zone.

Mr. Peters:— I wish to point out that when your Honors
come to look at this argument, you will find that the posi-
tion that Mr. Bodwell took is not the position which Mr.
Lansing assumed he took, and therefore Mr. Lansing's
remarks on this point have no relevancy whatever.

Duration of Season.

The next thing dealt with by Mr. Tiansing was the
duration of the sealing seivson. My learned friend has
taken the same pains with regard to this as to other
matters and has attempted to come to an average. I be-
lieve that when my learned friend considers his position

i .'-

i-' !i

1074

(Mr. Peters' Argument in Reply.)

on this matter a second time, he will see tliat we are right
in asking your Honors to be very careful in adopting my
learne i friend's averages as a basis for any computation.

He produced a document marked Number 4 and he
told your Honors that from this document we could cal-
culate the average date of entering and leaving Behring
Sea. My learned friend in making up these averages
lotook the years 1888 and 1890, and declined to take into
consideration any other years. He did that on the ground
that in these years there were no seizures, and presum-
ably he argues that the years in which seizures were not
made would afford the best basis of an average.

Now, although there were no seizures in 1888, many
people tliought there would be seizures, and many pe< pie
who sent their ships to Behring Sea thought tiiero was a
special airangenieiit made under which they would be al-
lowed to fish from the ir»th of July to the 20th of August.
20 That had nothing to do with the supposed action of the
United States, but it was based on the supposed intended
action of tiie Government of Great Britain. Whether
there was any foundation fortius belief or not it is not for
me to say, but those engaged in sealing iiad it in their
minds, and consequently Ks88 would not be a fair year to
take as an average.

Mr. Lansing draws this conclusion:

" We And tlmt in 1H88 tlio avoriiRe date for entering theSoa wns tho
" 14th July, and tho averuKO date for Icaviu):; the Sea wa8 the 26th
30 " August, and tho duration uf the aoasou waH 44 days."

He says also, that in 1S)KI the average day for entering
the Sea was .Inly 12th and the average day for leaving the
Sea was August 27th, making the duration of the season
47 days. He finds the geneial average for these two years
was about 4.5 days, and he applies that average to tlie
schooners seized in 18S»». The manifest absurdity of the
application of that average appears. He says that he has

{)roved beyond doubt that the average season was 45 days
»ut that we are claiming for the " Carolena " 80 days.

Now, as to the " Carolena;" she was seized on the first
of August, and we are claiming that until the end of
August she would have thirty days more to hunt in Behr-
ing Sea. That is all we are claiming. He gets at the
eighty days by taking into his calculation that the "Car-
olena '■ entered the Behring Sea in the early part of June.
Now, as a matter of fact, we all know that June cannot be
counted in at all; and what we are claiming for the " Car-
olena " is that we might have stayed until the end of Au-
50 gust, a claim admitted to be fair.

As regards tho " Thornton," he tries to make out by his
table that we are claiming an umensonable season. We
are only claiming until the end of August, and therefore
my learned friend's calculation has no reference to the
matter at all.

The same remarks would apply to the "Favourite," the
*' Black Diamond " and all the other vessesl for 188(;.

There is another reason why my learned friend's calcu-
lations, as to the average number of days vessels remained
60 in the Sea for the year 1888, is not reliable as a basis. He
states that the " Annie C. Moore " entered Behring Sea
in 1888 on the 20th July; and he takes that date in mak-
ing up his average. Now, after the evidence we have pre-
sented to your Honors in this case, can any one say with
any show of reason that the 20th of July must he taken

1076

(Mr. Peters' Argument in Reply.)

as the opening of the Behring Sen sealing season? In that
same year my learned friend sets forth that the " E. B.
Marvin " entered the Sea on the 10th of July, the
"Ocean Belle" on the 9th of July and the "Favourite"
on the 20th of Julv; and he takes tliose dates in estimat-
ing his average. But it is clear upon the evidence that
this was not the usual tinie for vessels to enter the Sea and
ID that there were special circumstances in this year which
prevented them from coming in earlier.

In 1890 the " Beatrice" entered on the 15th of July and
the " Favourite " on the Idth of July; and the " Sapphire "
on the 12th of July. There must have been special reasons
for those vessels coming in so late; no one who under-
stands the evidence in tliis case can doubt that the first of
July is the usual time for a sealing sciiooner to enter
Behring Sea.

Your Honors must see quite well that the foundation, on

20 which this average of the duration of the season was based

by my learned friend, is altogether wrong. If you take

that calculation out of my learned friend's argument as

regards the sealing season, there will be nothing left of it.

The Commissioner on the part of Her Majesty: — Do you
mean the 15th of June or the 15th of July*

Mr. Peters:— My learned friend Mr. liansing makes the
average day of entering the Sea the 15th of July, and he
says tliat when you come to calculate the length of the
season you have to calculate from the 15th of July.
30 Now, suppose the vessel entered the Sea on the first of
July as many of them did. and if you carry out my learned
friend's calculation of average you will fiml that they
should leave the Sea on the lith of August, which of
course, is quite absurd.

Your Honors will see that Mr. Lansing's calculations if
carried out to tlieii' logical conclusions, reduce themselves
to an absurdity. Any method which brings out such re-
sults as those to which the calculations of my learned
friend would lead, is plainly wrong, and therefore should
40 be completely t u'own to one side.

As I said befoie, if you take that portion from Mr. Lan-
sing's argument on the question of the duration of the
sealing season, his deductions all fail. I do not know that
there is really nnich more than this to be said on that
matter.

He goes very carefully into the question of lowering.,— -
days and all that sort of thing. These matters have-ttsSn
dealt with already by my learned friend. ^JWIritst I am on
the qtiestion of the duration oftJiii-ft-jaTiTig season — and it
50 is ai)phcal)le under all the poiTils which are raised for the
purpose of showing the season is so uncertain--! will say
that any calculation based on the movements of the ves-
sels, alone, cannot be fair, for outside of the fact of the
direct seizires, the knowledge that seizures were about to
be made nuist have had a great effect, both on the time
that vessels would stay in the Sea, and also as to the places
in which vessels would fish and the way in which they
would conduct the voyages. It cannot be said that a per-
son woul<l act as freely and "o about as fearlessly if he was
60 in great danger of being seiz"!!, as he would if lie had no
fear of seizure whatever. The dread of seizure nuist have
had a great influence. Foi' instance, when a vessel was in
the Sea and had a fair catch, it would naturally occur to
the mind of the captain of the vessel: " I have got so many
seals now aud it is better for me to go out with those and

1076

(Mr. Peters' Argument in Reply.)

make so much, than 8tay in, with a chance of making
more, hut run the risk of being seized." Also when lie
was on exceptionally good sealing ground the fear of seiz-
ure doubtless would lead him in many instaiu-es to leave
the spot for some other part of tlie Sea where in hif opin-
ion the cutters would he less likely to find liim. It i . very
difficult to estimate how much these matters lessoned the
loaniount of catch, yet it should have the effect, when your
Honors come to the computation of probable catch, (if in-
ducing you to allow an amount larger than the average
of vessels actually opeiating were shown to have made.

Mr. Dickinson: — You had witnesses on the stand, but
not one of them testified that he went out earlier, except
the " Jnanita," on that account. The theory is all very
well, but you have specific vessels here.

Mr. Peters:-— My learned friend is in error in that re-
respect. Mr. Clarke who was the captain of the " Ju-
2oanita"

Mr. Dickinson: — The "Juanita" I except.

Mr. Peters:— Mr. Clarke said he had this information
that no seizures were to be made from such a day in July
until such a day in August, from Captain Warren, and
Captain Warren said it came from the Custom House
officer; therefore, it may fairly be assumed that every
person who had dealings with the Custom House officer
got the same information as Clarke.

Mr. Dickinson: — But the officers were on the stand;
30 why did they not swear to it in the specific cases?

Mr. Peters: — This fine-drawn argument which my
learned friend makes for the year 1888, was not sug-
gested at Victoria; he never thought of making .such an
argument then. We had very little to do with the
catches of 1888. The matter was not brought be-
fore us in a very clear manner, and the question
of the notice that there would be no seizures,
and that the British Government would protect sealers
between certain dates, only came out from one wit-
4ones&, and I am only bringing it up now to show that
there may have been a reason for these vessels going in
late in 1888. At all events I am entitled to point out the
fact that, for some reason or other, these vessels did not go
in in 1888 until a late date, and to connect that with the
undoubted fact that between the first of July and the 15th,
there was always good fishing in Behring Sea.

Mr. Dickinson:— The time in question was when they
left, 1888; on your argument, as I understand it, and at
Victoria, you did claim for the Warren vessels in 1888 on
50 prospective catch.

Mr. Peters:- We claimed for prospective catch for some
of the vessels for the year 1888, and we gave evidence of
the catches that had been made; but, as there were no
other catches made, we could not give further evidence in
that direction.

Mr. Dickinson:— I did not want to mar the harmony of
your argument; I shall not interrupt ordinarily; hut the
theory was so different from the practice in the matter
that it struck me as a little astonishing.
60 Mr. Peters: — I am just poiinting out that Mr. Lansing's
carefully prepared statement is one that will not hold
water.

Mr. Dickinson: — It was carefully prepared in answer to
your own tables in which you had pursued about the same
course, only your tables were faulty.

1077

1!"

(Mr. Peters' Argument in Keply.)

Mr. Peters:— I do not admit the faultiness of my tables.
You will fliid that Mr. Ljinsing's and mine are not so very
far apart after all; I point out another matter, I always
like to condemn a man out of his own moutii, if I can.

Mr. Dickinson: — Mr. Lansing only went into mathe-
matics because you did.

Mr. Peters: — If my learned friend prepared all tliose
ID blue prints and all those arguments after he came here to
hear this oral argument, he is entitled to a great deal of
credit; however, that is all 1 have to say on that point.

Value of Vessels.

1 como now to another question dealt with by Mr. Lansing,
and that is tho question of the value of vessels. There is
one thing I wish to call your Honors' attention to in the
first instance, as I do not tliink it has been mentioned

20 specially heretofore. At Victoria there was a dis-
pute and a considerable amount of argument between
counsel upon this point. Mr. Dickinson alleged that when
we came to calculate what should be paid for the vessel
itself, the only proper measure of damage was what he
called the market value of vessels. We did not altogether
agree with that proposition, and we also thought that there
were special reasons existing at Vic^toria, establishing that
that was not the proper test; we gave a lot of evidence as
to what it cost to build a vessel, and as to what certain

30 vessels cost to bring from Nova Scotia, and other evi-
dence of that description.

There are four vessels I wish to call your Honors' atten-
tion to particularly, about whici> there can be no dispute
on that pouit, the " Thornton," " Anna Heck," " Dolphin "
and the "Grace." If your Honors will remember, those
vessels were steam schooners— schooners with auxiliary
steam— and they were the only steamers, so far as the
evidence discloses, of that description at Victoria. The
witnesses brought from San Francisco did not mention

.}oany schooners of that description.

'I'hey were vessels particularly and especially built by
Mr. W^arren to carry on a special business, and therefore,
so far as those vessels were concerned, there was no ques-
tion of market value whatever. Tiiey were vessels that
stood in a different position from any others in contro-
versy. I think it should be remarked" that, with regard
to those four vessels, you have to deal with them, no
matter wiiat rule you lay down as to the valuation of ves-
sels, as separate, special and distinct cases. I do not think

30 the remark has been made before, but I would like to call
it to your Honors' attention now. Tliey are built in a
special way and for the special business in (luestion. By the
Paris award, if your Honors remember, it was one oiE the
terms of the regulations that steamers should not be used
in the pursuit of seals and that, of course, would have
the effect of doing away with their use altogether. They
are of a particular value, and should bo paid for at their
cost; and the very fact that legulations were made
against the use of steamers in Beh ring Sea would rather
"jtend to show that the United States Government thought
that these steamers wei-e of peculiar vaUie in regai-d to seal
fishing.

Mr. Lansing:— Again I must correct you. That was a
suggestion of the British Commissioner. We have tho
report before the Paris arbitration.

107H

I •>! 1

(Mr. Peters' Argument in Heply.)

Sir C. H. Tupper:— Tiiey were not British nor United
States. When tlie arguments were conchided, tliose were
rt'gulations of the Judges.

Mr. Lansing:— The only way you can draw any infer-
eiue in the matter is from what suggestion was made by
tlie agent of one government or the other?
Sir C. H. Tupper:— As matter of fact the two British

lo Commissioners diflfered.

Mr. Petei-s:— However, I am not on that point at all.
It would appear that there was some special value at-
tached to those steam schooners for seal fishing, and it
»vas shown that, on account of the regulations, tliey could
no longer he used.

Leaving that point, I will again refer to Mr. Lansing's
argument on the value of vessels — and his very nhle argu-
ment I will say. It is able, hut at the same time it will
not stand investigation; it is plausible, hut not sound.

20 Mr. Lansing says that the market price is the price which
Itiiuls you in this case, and that before you can recover
you nnist show what the market i)rice is, and you nnist
find that market price by thiding out what vessels sold for
ill Victoria.

He goes on to say, "the counsel for Great Britain had
opportunities to prove what the ma;ket price was by reier-
ling to many sales that were made from the years 18H3to
1H!»2." I think he goes as far as that, or 18t»0; that many
sales took place, and that those sales conid have been

30 referred to and proved, so as to show what the market
price in Victoria was. Then he gives a long list, and it
sounded very imposing as my learned friend delivered it;
but when we come to get at what it really amounts to,
wo find that all of the.se sales he spoke of, 36 or 33 in
immber, were with regard to no more than nine vessels.

We have a few remarks to make with regard to tliose
very sales. These are taken, as my friend says, from the
records before us here, and in addition to that all the nine
vessels he referred to in these years IHSfi and 1887, and I

40think 1888 -all the years in dispute— were owned by
people who were using them for sealing, and, therefore,
they were not for sale, and this remark applies to the
whole of them. You see the point is, for what sum could
we on the first of August, 1880, rei)lace the vessel seized?
I take it that is the thing to he arrived at; and how are
you going to help yourselves if you say that in 1884, 1885
or ISitO, the sale of the "Alfred Adams," the "Triumph,"
the " Winnifred," the " Wanderer" or the "Pathfinder"
took place? Every person who had a vessel fit for sealing

scat that time was operating it in .sealing.

Another observation I would like to make. My learned
friend takes up the case of tlie "Alfred Adams," and he
says there is a sale of the " Alfred Adams" on the iid of
January, 188(5; it should have been the 'ilst, and that is a
mere slip. Well, at that sale we do not know what \mce
that vessel brought and it is not very material. It was
before the 1st of August, 188(>- early in the year 1886 —
and liefore they had gone so deeply into the matter of
sealing.

60 Now, then, the "Sayward"; he mentions no less than
hve sales of the "Sayward." To show you the value of this
calculation, I call your attention to the fact that every
one of the.se sales was in 1889 or 1890, and, therefore,
( annot be saitl to be nmch evidence of the value of ships
in 1886. Your Honors will understand that we are not

107»

(Mr. Peters' Argument in Reply.)

claiming for the actual taking of any vessel, except in
some special cases, after 1887. There were no vessels
taken and confiscated in 188!).

Mr. Dickinson: -Your testimony was there oflfered
clear down to 18'.»0, inclusive, as to values of t-hips.

Mr. Peters: — If that is the case, it does appear to me
that the United States have taken a very extraordinary
lo course at the jiresent moment. If I rememher, they bit-
terly fought our putting that evidence in as to isyo.

Mr. Dickinson:— But everything you did get in at Vic-
toria, in spite of us, we have to meet and treat as compe-
tent evidence, of course.

Mr. Peters: — Any way you take it, this is no test, and
several of the sales of the "Kay ward" are not sales at
all, but were transfers, as they appear from the registry
itself.

The next sale he mentions is that of the "Little
20 Triumph," and he has two of her, one in is8t> and one in
1888. The register shows the first sale on the I8th of De-
cember, 188(5; that was a sale by bailiff to Burns. It was
under compulsory process, and, therefore, is no criterion
of value. The sale in 1888 was after the seizures. In
any case, she was a very small vessel.

The " Favourite": Mr. Lansing mentions a s-ale on the
20th of January, 1888. There was a sale on that date
from Charles Spring to Laughlin McLean, one of Spring's
captains; and on the same day McLean conveyed the same
3° property back to Spring. These transactions on their
face show that it was a mode of transfer resorted to for
the purpose of completing the whole title in Charles
Spring, and was not a bargain and sale of property. This
property was owned jointly by Spring and somebody else,
and those two parties conveyed it to Laughlin Mcfjean,
who conveyed the title back to Spring in order to complete
the title in Spring.

He next mentions the " Winnifred," and he calls atten-
tion to eight siles of her, three in 1883, four in 1884 and
40one in 1886. There was no sale whatever in lS8«i and
there was no sale after 188(> until IS'.K), and tlie prices
would have afforded very little information. Besides, the
"Winnifred," as your Honors will remembei-, was a very
small vessel, only 13 tons if I have it correctly. Again
these sales of the " Winnifred" should not be taken into
consideration for this reason: looking at these sales you
will find that thoy took place about the same time, as fol-
lows: There was a sale to a man named Thomson, pilot;
Baker, a pilot; Dyer, a pilot; McDonald, a pilot, and Mc-
S^Ijcod, a pilot, and McLeod and others, pilots. Your
Honors will remember this boat was owned at one time by
pilots.

Mr. Lansing:— That is Edward Crowe Baker.

Mr. Peters: He was one, but not one of those names I
read; although the evidence shows he was Secretary of the
Pilot Board. It is shown by the evidence that these pilots
owned a boat between them and each took so many shares;
and what my friend has got is the transfer of those differ-
ent shares to those different pilots, and he makes out six
60()i> eight sales whereas theie was really only one.

The " Juanita" is the next he mentions, and he makes
her sales December 12, 1883, March 31, 1885, January 9,
1889, October 30, 1889, and May 7, 1890. The two first
sales, in December, 1883, and March, 1885, were before
sealing began — before the value of these vessels became

1080

(Mr. Peters' Argument in Reply.)

as great as it afterwards was. Tlie other sales were long
after ISSC, and I again refer to some of the details of these
sales. Sale (a): That is December 12, 1H83, was to Hall and
Goepel, who, the evidence shows, afterwards continued
to operate the ship as a sealer; consequently she was not
in the market for sale after that date. Sale (h): March
31, lt<85; sale of an interest to Clarke, who, the evidence

loshows, was a master employed by Hall and (Joepel in
sealing operations. Sale (c): January 5>, 1S89; sale to a
man named Melgesen; and Clarke's evidence (Record, i)age
1838, line (in) tihows he was in the sealing venture of Hall
and tioepel in 1881t. This sale, apart from the fact that it
was at too late a dale to be evidence of market value,
would naturally be one surrounded with special conditions
on account of llelgesen embarking as a joint owner with
Hall and tioepel. Sales (d) and (e), October 30, 1889, were
conveyances back from Ilelgesen to Hall and Goepel, he

2ogoingoutof the business and conveying back. Sale (f)
may have been a lioiia jidi' sale, so far as the evidence
goes.

The "Wanderer": Mr. Lansing mentions the following
sales: December 3. 188»(; Jamiary 4, 1887; Juno 13, 1887,
Mid A|)ril 11. 1888; there is only one sal«! there that really
goes into the matter. So far as the sale in 1887 is con-
cerned, these are the purchases tliat were made by Pax-
ton, who was the claimant, and who gave his evidence in
the case. 1 would refer to Mr. BodwelTs argument, page

30 330, line 4(1, where the matter is discussed generally. I
would also i?tate that the " Wanderer " was not large
enough to be taken as a criterion with regard to vessels
much larger.

'1 he "Tiiun)ph '': He mentions five s.iles, two Decem-
ber 7, 1887, December 1(», 1887, October 11, 188J), and De-
ceujber 17, 18!t0. The first sale, December 7, 1887, was
from Daniel McLean to Blackett; the second, of the same
date, is a sale to Joshua Davis. The evidence in the case
discloses that the "Triumph" was purchased in Daniel

40 McLean's name at Shelburne, N. S. ; your Honors will re-
member tiiat he went round and purchased her in 1887.
Mr. Edgar Crowe Baker gives precise and definite infor-
mation as to what that vessel cost landed at Victoria; so
that we want no further evidence than that as to the value
of this vessel. These other sales were to people who took
a share in the vessel almost immediately after she got
there; so there is nothing to l>n inferred from that. This
whole thing is really shown by Mr. Baker's books.

Baker sold to Mi-. Cox in 188;»; not only is the evidence

5oof the sale given, but full particulars are in evidence. It
was proved that she was sold for ^9,(»00 — this will be found
at Record, page 1431, lines 50-()0. Mr. Baker was so dis-
gusted at the action of the United States tJovernment in
wariiing his ship out, and the loss he thereby sustained,
that he sold her almost for a song. That is clearly proved;
so it does not help my learned friend at u\\.

Tlie " Pathfinder"— he mentions two sales, both in 1890,
the 4th of November, 1890. The first was a transfei' to
Wentworth E. Baker, who was known as one of Munsie's

60 ca|>tains. The evidence shows that he was on the " Viva "
at one time and afterwards on the " Pathfinder." Sale
(,b) was to Arthur E. Morgan, and the Commissioners may
assume, although there is no evidence, that he was also
one of Munsie's captains. Anyhow, the sales were a good
while after this transaction took place.

1081

(Mr. Peters' Argument, in Reply.)

I will give the following summary of what Mr. Lansing
has said upon this point. The following are the only sales
in the list which oould under any circumstances whatever
be referred to as establishing the market price:

" Alfrnd AtlaniH,"
" Littlp Triumph,"
" Jiianita,"
" Wanilorer,"
" Triumph,"

Gntman,

liiims,

Hall,

PHXtOD,

Blac-kett,
Davis,

1886.

1880.

188U.

1880 and 1887.

1887.

188'J.

Our contention is that even these piices, if proved,
would not assist the Commissioners tor the following
reasons: The little "Triun)ph" was sold under com-
pulsory process; the " Wanderer" was too small a vessel;
the "Juanita" sold on the 31st of March. 1885, before
the boom in sealing began; the "Triumph *' is better evi-
dence, in the fact tfiat the man who purchased her brought

2oher from the Atlantic coast, and the exact cos^t is given in
detail in the evidence.

Mr. Lansing says there were 36 sales, but in the details
of his notes, as above criticised, the number is only 33.

My friend, Mr. Bodwell, in his original argument, clearly
laid down the proposition that we had to make. I do not
intend to repeat what has been alleged. The point we
submit is this, that under the peculiar circumstances ex-
isting at Victoria, you have to take into consideration
what it would cost to build the ship, and if you have to

30 go outside you have to take the cost at Victoria and add
the cost of bringing the vessel around and putting her in
order for sealing. Our proposition in regard to how the
value of the vessels should be estimated has been clearly
stated before, and I do not think it is necessary to say any-
thing more about it. These 3S) sales that Mr. Lansing
mentioned, become more important and njore necessary
to answer from the reason that Mr. Dickinson in his
closing reniaiks saw fit to emphasize the point Mr. Lan-
sing had taken.

40 The next thing that Mr. Lansing takes up is the special
cases, and I ask your Honors to refer to tlie case of the
" Anna Beck." in my original argument at page 144 of the
argument of Gieat Britain, for the puipose of making
correction in the schedule which will assist your Honors
hereafter. You will find at page 1 14 in the list of the
articles claimed, this item:

" Lint of ntoroB on board at the time of the seizure as per captain's
"recollection, *960.;W,"

joand you will find fuither down the page:
"Sealing boat and outfit, «140.00."

In the first |)lace 1 would ask you to stiike out that
sealing boat item altogether, and I ask you to strike out
the $!>fi().30 and write opposite instead the figures $3!»5,
which is the amou;\t it sliould be. On reference to the
captain's list at page lOfil of the Hecord, it appears that
the boat is included in the Jiit(>0.3(»; $IL'.5 is charged for
the boat and her outfit is charged separately, and as
60 the boat is already charged for it would be improper
to charge it again. It also appears that the $!!Kiu.3(> in-
cludes certain items for |)rovisions and coal which should
not be charged if we get the estimated catch, therefore I
have deducted the.se items, and the list would then amount
to *31».5 instead of ^iXU».

1082

; r.

,:1

fj.;-; :|jf

'i'-.-' «-r#

:'■ ■■ 'iijif

i- ' ' u

•;•' ■ M-

j. '■ ' 'I*

■ i ,

.1 "

"ir.'l

(Mr. Pctors' Argiinient in Reply.)

Mr. WniTon: --There jh a statement in the " Ada" case
that has never l)een corrected. Yonr attention waH called
to it in the written argument— the item of ifil.OOd, we
claim, is iiiHerted twice.

Mr. I'eters:— Yes, a misprint. I will have it corrected
before I conclude.
The Connnisaioner on the part of Her Majesty :--It is

lo very obvious in the case of the " Ada" that this is a mis-
print.

Mr. Bitdwell:— I took it for granted that any one would
see that.

Mr. IVtors:— There is another matter to which I wish
to refer. Voui' Ihmors will understand that a large por-
tion of the argument of Mr. Lansing dealt with the
question of the unceitainty of sealing and the dilticulty
of catching seals, leading one to suppose that it was
almost impossible to catch any. He referred particularly

20 and dealt at some length witti one diflicidty, and that was
the questitJU of fog. He used this argument^he said
that in respect to the vessels that we claimed for— a ma-
jority of them were vessels carrying ("inoes, His conten-
tion was that where Indians were used there was additional
trouble, because Indians were superstitious and refused to
go out in time of fog. For the purpose of proving that
proposition he used the log of the " Favourite," to show
that the Indians did not go out in time of fog, and that
voyages were broken up on account of their supersti-

3otior). He (piotes the log where it is .said: "Indians came
aft in a body and wanted to go home." This should be
read in connection with the entry on the 19th of May |)re-
ceding this, which shows the reason why the Indians
wanted to go home, viz., that the Indian food was all
used uj). Another entry, made on July 8d, shows that
the Indians were not so very su|)erstitious. The entry
describes the death of an Indian from a loathsome
disease resendtliiig smallpox, and shows that the In-
dians behaved well and sewed up and buried the corpse,

40 and the entry then recites the funeral and the subsequent
entries show that the vessel proceeded on her voyage as if
nothing bad liap|)ened. On the 7th of July the Indians
arranged for another steerer to take the place of the one
who died; this shows that the Intlians were not so super-
stitious as Mr. Lansing contends. On the question of fog,
Mr. Lansing quoted page (it, where it is said that the In-
dians were somewhat timid of going out because it was
slightly foggy. The entry there is that the Indian hunt-
ers were somewhat timitl about going out; this was a

50 peculiar case, for in the entry preceding this it appears
that tiiey were out in a light fog and afterwards were out
in a thick fog. We find the captain entering that the
Indians were .somewhat timid to go out in a fog, but it is
plain that tliey were afraid of something happening such
as occurred two days before. It is plain that the Indians
were not afraid of the fog as other entries clearly prove
that. Mr. Bodwell read several entries from page 73 to
page 80 from the log, which I refer to, and I also wish to
reter to some other entries as follows: "June

6odense fog settled down." Wednesday, June 18th,theentry
shows, "light fog, three canoes missing, which did not
reach the ship till 7 P. M." "July 25th, this day begins
with light winds and fog; lowered canoes; * * *
fog thick every day since entering sea. Au-
gust 5tb; this day begins with dense fog; 12

1088

(Mr. Peters' Arguiiiciit in R«|>ly.^

o'clock similar weather, 4 i>. M. fo^ lightoiiine some, fog
set in ag»in H v. M. catch 24 hcuIh." " 2tst Jmy, nowlow-
01*6(1 canoeH, Btill very thick, 4 i>. M. canoeH returning with
22(i. ThJH day heginH with li^ht wind, 10
A. M. fog at tinieH, 4 P. M. «lense fog. July 25tli, this day
begins wiiii iiglit wind, dense fog, tiring hig guns; 5 p. m.
canues returned with 82 seals. July 27th, this day hegins
10 with douse fog. July 28th, this day hegins

Mr. Lansing:— When y«ni say "hegins" iliat means
midnight, does it \wti

Mr. Peters:- I read all the entries of tln' day. "This
" day l)egins with moderate wind and fog.

"August 2d— This day hegins with heavy fog.

"August 8th— This day hegins with calm and dense fog.

"August !tth — Light rain and fog. Keptiloseto vessel.

"August loth— This day hegins with moderate breeze
' ' and fog.
2o "August nth — Light winds and small rain; lowered
" canoes."

So that I think I have effectively shown that the idea
that the Indians will not hunt in foggy weather is not
founded on the evidence of that log, and I think that the
" Favourite " is probably as representative a ship as any
you can get in the whole couise of this evidence.

1 proj)ose now to take into consideration the argument
of my friend Mr. Warren. The first part of his argument,
going so far as page 71 of the typewritten copy that I
30 have, has reference to the special cases with which I have
already dealt. Having already dealt with these questions,
I come to a question that is of very great importance in
this case, namely, the consideiation of the citizenship of
certain persons who, it is alleged, were interested in
the s^'ps on account of which claims were made.

Citizenship.

Mr. Warreu deals with these questions simply from
40 the point of view of fact, leaving the questions of
law to be argued, as they were afterwards argued,
by the senior counsel for the United States. At page 71
of tliis typewritten argument he takes u|) the question
whether or not it is proved that persons alleged to be in-
terested were United States citizens, and if so, whether or
not it is proved that they were really interested in the
ships in question. He first deals with the (piestion of fact
with regard to Cooi)er. Keferiing to the Cooper claims
represented by the "Ciraco," " Dolphin,'' "Anna Beck"
30 and "Say ward." So far as the Cooper claims are con-
cerned, there is no dispute betweiMi us that Coo|)er was
a British subject, and that he was at the time of the
seizure of the vessels in 1SS7, and for that matter up to
the present time, continued to be domiciled in San
Francisco.

The Commissioner on the part of the United States: —

Some time before you finish I would like you to restate

your position about Cooptsr's interest in these vessels.

Mr. Peteis:— I shall deal with them when dealing W'*b

()oMr. Dickinson's argument. I have a very full r ,v.

upon it.

The next person who comes up for consideration in this
connection is Alexander Frank. So far as Alexander
Frank's native bii th is concerned, there is no doubt about
it. He was by birth a citizen of the United States. We

ll)H4

(Mr. PeteiH* AiKiiinriit in liejily.)

alk'KO that Aloxanilt>i' Frank at tli«> tinio of th(> Hcixurn of
t\w vosHols, in which it iH alli>(;«'(l ho whh intoreHtHil, was
doniioilcd at Victoria, and liail his cuinniorcial iloniicil
tht'ro also, and that in- was in ovciy sonHi', hoth coni-
MUMX'ially and ofht-rwiHc, to h" looked npon ns a person
domicili'il in Mritish ti'rrilory. My lenrnod friends, ho
far as I can nnderstand Ihoir arKinni'iit, contest

lothis |iropoHition. Hut I aile)re that the ovidoncu
is conclnsive on this jioint that he was domiciled
at Victoria. 'I'lie hest »>viil(nce that can he not is the (>vi-
donci> of Mr. Frank hiniseir, which is given at the last of
the Hecor<l, page IW.\. I simply refer to iijs evidence.
The evidencfi n'wvn hy him, and, as a matter of fact, the
evidence here and there all throu^j;!) the Uecord, corrolm-
rati'd hy various other witnesses, is that for years hefore
ISSH— as far hack as lSH,'i-when it was allej>;ed that he
went into partnership with (hitman, he w.is resident in

20 Victoria, carrying on hiisiness at Victoria, and at one or
two jilaces along the const of Vaiiconver. That evidence
was given l»y Frank hinisi'lt and hy those other witnesses
wh(» showed where tliese triuhng places were and what
bnsinesB ho was doing. .No other residtMice was attempted
to he given than that he was then resident at Victoria, so
that, taking the doctrnie which my learned friend alleges
and which we admit, that residence is always evidence of
domicil, we have the most complete evidence- at all
events nntil answered -that from IHs.") down to |MS8,

30 v.hen we say his connection with t s matter absolutely
ceased, Frank was a person dom I'd in British terri-
tory. He did not, as a matter of t, , leave Mritish terri
tory nntil late in the year ISH!», when he sold ont every-
thing, got rid of his business and went to San FrancLsco,
where he has since been domiciled. So that, as to his
position, it might be taken for granted that Frank was a
native born citizen of the United States; that in the yeais
iSKCi, 1887. and, if it were material, I88i>, he was domiciled
at Victoria.

40 The ne.xt man that comes up for considiiation in this
coinu'Ction is A. .1. Heciitel. There is an attempt made
hero by my leained friend in his written and oral argu-
mnnt to dispute the propr)sition that Becbtel was domi-
ciled in Victoria. I can oidy refer your Honors, without
going over it again, to the evidence given by Becbtel at
the first of bis examination. That evidence establishes
clearly and plainly that for eighteen years Bechtel bad
been domiciled- living at Victoria -carrying on business
there, mairied there, with a family there— at one time in-

Soterested in the se;ding business, and finally he became a
naturalized citizen of (hvat Britain. So that evidence Is
plain .ind conclusive that he was not only ia l.'^Sfibutin
other years in which it is alleged he had an interest in the
seized vessels, domiciled in British territory, and as vve
say. a subject of Gieat Britain.

The next n)au we havo is .VIexaiider McLean, who was
interested in the "Onward " ami " Favourite." The facts
with regard to him which are in dispute between us are
as follows: It is admitted that he was originally a subject

6oof (ireat Britain. It is proved that he was naturalized in
the United States at a date prior to the event that took
place ill l88t>; it is also proved beyond the shadow of a
doubt, that in issfi, when tlie "Onward " was seized and
the " Favourite " warned, he was domiciled in the City of
Victoria carrying on business there and acting as nia.ster

■ill

1086

(Mr. Pi'tors' Argument in Reply.)

of a vt>s8«>l which wmh triulin^ from (hnt port TImt fact
in not <liHpiit<>(l hy my i)>arn<>(l fritMid. It wuh nft«>r\v(iniH
8tntt>y my It'iirncd friiMid that Iih went hacl< to San Fran-
ciHco, aiitl h<>nim«t (iomicili'd tiu-rt'; ho far as \vt> art* con-
cerned tliu position that we take is that it is jtcitVctly im-
nintorial where he iH'camH <lomi('iled after the act which
in comnlaineii of took place. Onr contention will l)e that

lotlui iiaoiiity of the United States is lo l,e settled liavin};
regard to the state of facts that »'.\isted at tho time the
8«i/ure look place, and it does not matter that ho went
hack to the United States afterwards. If he had the right
to jtnttection at the time of tlie seizure, the claim rests hy
virtue of that right to protect and the seizure. Mis going
back nfterwardtt to his native country would have no
offoct.

Now, with regard to Unniel McLean, 1 explained that
matter fully in my original oral argument and I do not

20 wish to go over it, hut there still seems to he some little
misapprehenHion. I do not think I gave your Honors ref-
erence to a (hx-nment that I should have given. Our alle-
gation i8 that Daniel McLean was jiart owner of the vessel
big "Triumph," seized in lMSi», and we allege that 011
the Kith day of OctolH'r, ISHO, Daniel McLean hecaine a
naturalizeil subject of (heat Britain. He had previously
been naturalized as a citizen of the United States, hut
under the treaty he luul the right to he renaturalized on
complying with the statute, made hy Great Britain, or in

3otb'.« case Canada, which statute required him to go
through certain forms. I refer to Record. ll>r)7, line 40,
where is set out a formal document admitting Daniel
McLean to he naturalized in Great Britain. We therefore
contend that there was no question of his being a United
States citizen, because he had complied with and obtained
a certificate of the Court that he was naturalized in Great
Britain. According to the argument of my friends, which
is pressed especially with regard to a Spanish case cited,
where the Government of Spain was allowed to traveree

40 the fact of naturalization, it is clear that they were granted
only the right toask the production of the order of naturali-
zation, and could not go behind it, upon the ground put by
my learned friend that the certificate of naturalization
granted in a court is a judicial pioceeding and cannot be
inquired into by any collateral proceedings. We have the
fact that Daniel McLean was not a citizen of the United
States. My friend, in his argument, lays down the propo-
sition that, in order to have a right to reclamation, you
must have a domicile in Great Britain at the time of the

Soconvention as well as at the time of seizure, otherwise you
cannot recover. I do not admit that proposition, and I
tliink I will be able to show that I am right. He alleges
that Daniel McLean afterwards became naturalized in Sr.u
B>ancisco.
Mr. Dickinson:— Domiciled and naturalized.
Mr. Peters:— Well. I will r.'fer to that.
Mr. Warren: — In 1892 he made an affidavit that he was
an American citizen. That is the proof of it.

Mr. Peters;— I thought I answered that fully. I have

60 the affidavit here at page 1821 of the Record, line 50.

If my learned friend only relies upon this affidavit for
the purpose of proving that Daniel McLean in 181)2, when
this affidavit was made, was domiciled in San Francisco,
I pay no regard to it at all.

I(t86

if-

(Mr. Peters' Argument in Reply.)

Mr. Warren:— I do not rely on that to prove that point;
■we have positive ovidence that he lived there.

Mr. Peters: — And if he rehes upon it for any other pur-
pose, to show th.-xt he was naturalized in the United
States, he nuist take some other mode of procedure. In
tlie first place, we have Daniel McLean, renatnralized in
1886. In 1887, beyond the shadow of a doubt, he was liv-
loing at Victoria.

Mr. "Warren: — There is no evidence wliatever on that
point that he was living at Victoria.

Mr. Peters:— The evidence is as clear as daylight.

Mr. Warren: — Let us see it.

Mr. Petere: -These are the facts. In 188S), or prior to
that, McLean came— where from, and went where to? To
San Franci.sco? No; from Nova Scotia, and what for? To
purcliase a vessel. He bought the vessel and came hack
to Victoria. He lived in Victoria, sailed that vessel from
20 Victoria, and on the face of that are you to say that he
was living elsewhere^ This was both in 1888 and 1889.
He was sailing a ship from Victoria and he was
swearing that he was a Britisii subject, and he
sweais it when he went to Shelburne to buy the
other ship which he bought. I an? not altogether in
love witii either of the McLean'sand I would not Hke to pay
a great deal of res}>ect to the evidence of eitlier of them,
certainly not Ale.xander— and Daniel seems to have as little
regard for the oath as Alexander. No doubt Daniel makes
30 statements inconsistent with one another. No doubt he
swears with regard to one shij) that lie was a citizen of
Great Britain and had never taken the oath of allegiance
to the United States, and with regard to another one that
he had taken such oath, but had been naturalized. We
have these ditTering affidavits in the first place; but they
are only statements not quite consistent with each other,
and can have no weight as against the solemn record of the
court that on a certain date he was naturalized as a sub-
ject of Great Britain, It should also be noted that
40 Daniel McLean made no attempt to hide his inteiest
in the "Triumph." He let his name go on the register,
which he certainly would not have done if he had again
been naturalized in tiie United States.

Tlio onus of proving that Daniel McLean was a citizen
of the United States was on the United States. We have
made this point plain and clear that in 188(5 he was natural-
ized as a subject of Great Britain; we have no evidence
that he was lenaturalized before 18S{t, when this seizure
took place, and after that we contend that there was no
50 necessity to inquire as to his domicile.

The Commissioner on the part of Her Majesty:— His
aflidavit might raise the old question of admission.

Mr. Peters: — Yes, but the naturalization to be of any
benefit must have been in 1889.

The CUmimissioner on the part of Her Majesty:— Yes, I
undei-staiul that.

Mr. Peters: — It might be an admission, but it would lie
upon them to produce tho naturalization papers. At all
events, we have produced naturalization papers of 1886,
60 th(! seizure being in 1881). We contend that it will lie on
the United States to prove that between 1886 and I88!t
renaturalization took place, if, as a fact, it did. Surely
there is no presumption that a man would chop around in
his naturalization in the short space of three years. In
point of fact, he could not do so under the laws of the

1087

(Mr. Peters' Argument in Reply.)

United States in such a short time. That is the way the
niattor stands so far as the facts are concerned as to whether
these different people who are alleged to have heen citizens
of the United States were or were not eo at the time the
seizures took place.

OWNERSHII'.

lo We come now to another question of fact as to the
interest the United States claim these peojtle had in these
vessels. That becomes a very material question of fact—
a (lucstion of fact upon which we veiy greatly differ.
I am going to make this general remark l)efore dealing
with the evidence. There are two ways in which you
may approach a qnestion of this sort. Mr. Warren
api)roaches the case from this point of view. He takes it
for granted in every instance that these men, Bechtel
and Frank and McLean, had all along an intention

20 and desire to cheat the laws of the United States, and to
cheat the laws of Gieat Britain. 1 do not say that he
used those words, but I say that he approaches the matter
as if he took it for granted that these men were all guilty.
I say tiiat is not the way to approach a matter of this
kind. There is no evidence showing that tiiese men had
any intention of defrauding either the laws of Great
Britain or the laws of the United States. Vou should not
convict a man until the evidence really makes it clear and
plain that he is guilty. Now let me see how this matter

20 st'i'i'li^ t>'i tliat question as to whether or not you should
approach the evidence from that point of view! Take the
greatest sinner of them all, the man that has heen the
most ''ouglily dealt with by my learned friend on the
other side, the man Bechtel. and ask yourself this ques-
tion: In 1885, when it is alleged that he did a certaiu act
to defraud the laws of the United States, could he or uot
have had that iutention in his miiuK

Mr. Warren: — I never contended he did intend to defraud
the laws of the United States, but it was the laws of

40 Great Britain, and he did intend to defraud thisComtnis-
sion.

Mr. Peters:— I am surprised to hear my learned friend
using f'..i argument of that kind, and yet it is an argu-
ment that has been used froni tlie beginning of this trans-
action. As long ago as when the matter was first discussed
by the Senate of the United States, some of the members
of that body put forward the suggestion that these men
were " rt'calcitraiit Yankees," who had gone over to de-
fraud the United States under the British Hag. If that

50 ground fails them, they have no other ground upon which
to stand. Now my learned friend criticises all the evi-
dence from that point of view. What is the fact? In
January, 188.5, and in February, 18sr), and in July, 1885,
the schooner " Carolena " was l)ought, and at that time
there was no proclamation preventing sealing in Behring
Sea, and no person either in the United States nor out of
it knew of any intended prohibition, and Bechtel could
have had no idea of defrauding a law of the United States
of the e-xistenco of which he was ignorant. 1 might

60 further say that at the time this vessel was bought there
was no talk of sending her to Behring Si-a at all. She was
bought for the purpose of trading and sealing on the
coast. Another conclusive proof that the intt'ntion to de-
fraud tlie United States did not exist. The " Pathfinder"
was purchased in 1885, am} the same remarks apply to

1088

'-,ti

::f;vft

1 ,
i

(Mr. Peters' Argument in Reply.)

her. Again the absence of any attempt from the begin-
ning to hide any interest tliese people njigiit have had in
the ships goes to show their honesty of intention. I refer
your Honors to the claim put in by Capt. Warren, on the
9th of December, 1887. For example the "Alfred
Adams."
Tiio first paragraph of the original claim states:

lo " I am tlie duly authorized agent, &c., in this behalf of
" Gutman & Frank, &c., the said tiutnian being owner of
" tlie hereinafter mentioned sch(H)ner " Alfred Adams,'
" and his partner, the Aaid Frank, being equally interested
" with Ciiitmnn in the results of the sealing voyage
" hereinafter referred to." lioference to the other claims
will show the same freedom from any attempt at con-
cealment.

So that you have the fact that there was no attempt to
conceal the interest of these people in the vessels. They

20had no idea that any such question was to be raised.
When you come to think of the matter, heie we are at
this time in 1897 discussing seriously the question whether
there is anything in the point at all, whether if one of
these men was a citizen of the United States it affected
his claim one way or the other, and do we suppose that
these men. away back in 1886 and 1887, were .so good in-
ternational lawyers that they could settle and guard
against these very things which even the lawyers at
Paris could not settle. It is not settled to this day, and

30 you are asked to find that these men knew more than the
lawyers do to-day.

Mr. Dickinson: — It is not so much the question of fraud
as the actual status of the individuals.

Mr. Peters: — I submit that this is a question of fraud.
Let me point to show your Honors that the first time the
question was ever raised was al Paris, and you will find
the reference in Volume 7, " American lieprint," page 131.
It is in the reply of the United States to the British claims
for damages. There for the first time it was alleged that

40 the interest of these different persons, to wit, Boscowitz,
McLean, Bechtel and Frank in these vessels, prevented
them from being entitled to recover. That allegation was
based on the attidavit of T. T. Williams, which was dated
December 12th, 1892.

Mr. Warren:— It was in 1889.

Mr. Peters: — My leained fiieiid is in error. The affi-
davit is dated in 1892, in which he says that he learned
the facts in 1889. and made a report of them,
but it was a private report to the United States Uov-

SOoinineiit or tl e Alaska Fur Conipany for the purpose
of enabling them to arrange certain transactions with the
United States (Government about their lease. No person
ever saw that report, and it was not brought to the notice
of the claimants or the British (Toverimient until 1892. I
am right in stating that the first time that the United
States ever laised the qu(;stion that these vessels were
owned in whole or in part by citizens of the United States
was before the Tribunal at I'aris.
Now, instead of approaching the evidence from the

60 point of view in which Mr. Warren approaches it, namely,
from a solenui belief that everything was done for the
purpose of fraud, let us a|)proacli it from the other point
of view. Take Mr. Bechtel, and wbatare the facts? 'i'hoy
want to prove that Bechtel was not the mortgagee of the
" Carolena," but was in fact a part owner. What are the

1(189

(Mr. Petors' Argument in Reply.)

facts iipoii which thi-j- rely to niovo that statement? In
the first, place, tiiey allege tliat l)ecaiise Hcciitt'l iiappened
to he in a hlacksmiti) sliop wiien ('otsfidd was ciigagt'd hy
Munsie to go as a liunter. tiiat tiicn lore he was interested
in tlie vessel. Thev took a godd (leal of pains and con-
8ideral)le evidence to provt; that Hfchtel was actually

E resent in the hlacksniith shop wiien Cotsford was hired
.„ y Munsie to go on the* " Caiolena '" as a hiuitsman. Ho
was present when t'otsford was hired hy Munsie, and
may have takni part in the conversation. That is
all thai was i)roved at that time Fact No. 2 was
that Bechtel took a trip on the "Carolena" from
Victoria to Kuyo(|Uot, heing on his way to a i)lace
called Alherni, where he had some sort of husine.ssi.
That is tile whole of tiiat fact. Fac t nnndx'r ;? was lie-
cause he took two mortgages on the vt^s.sel. whi( ii on
tlieir theory agrees witli th« cost of a half interest in

2othesliip. That is tlu^ tiiird and last thing alleged. In
other words, tliey say, we claim you honght the vessel for
lf2.0(Hi; you originally hoiight a ci-rtain |)ortion and took a
mortgage, and finally took another mortgage, and each
of these mortgages represented a half interest in what
Munsie had lionghl to this dale; therefore, they ask you
to assume that it was not a mortgage tiausaction. hut wa.s
what lias heeii termed a " whitewash mortgage"; that in-
Btead of heing a mortgage it was really a purchase. Sup-
pose yon hail ail these facts hefore you. and nothing m

joexplanatiou <jf them on the one hand, and on the other
hand yiiu had tiie alt.solnte positive oaths of these two
men. Munsie and Bechtel. thai no mattei' what the thing
looked like, that the |)iircliase w;is not fur thai aMimuit,
but was for a largi-r amount; that the nioilgage was a ri'al
mortgage, for a rash l<ian aftei wards duly paid oil" in cash.
On the one hand, you would have ciicimislances of siis-

fiicion, and on the other hand yon wouhl have the ahso-
ute positive evidence And on this state of the case you
are asked to say that the United Statt's has made out their

40 claim that Bechtel was really half owner in tin; vessel and
nothing else. Now, let me point out a few fads to show
that the ti-ansaction will not hear that construction. The
vessel was hoiight on three dilTeient o<'casions. The first
purchase was January 21, IJOS.'). No attempt was made to
show that B(!chtel had any connection with that first
purchase. On that occasion there was one-third of the
vessel lionght, and there is no allegation that Bechtel had
anything to do with it whatever. Tliesei oiidand third pur-
chases, it is alleged that Bechtel had .something to do with.

50 Now let me see what happened. After the whole thing was
completed in June when the vessel was finally bought, a
mortgage for $1,000 was executed hy Munsie to Bechtel.
According to their theory that was purchase money, and
should have never been paid hack. Accoiding to our
theory that was mortgage money and should have been
paid liack. According to their theory, the money never
would have been paid back, while according to our theory
the money would have been paid hack. What was the
result? The money was paid hack. The result sustains

60 our theory, and does not sustain theirs. Following that
on we find by reference to the Hecord that this mortgage
was afterwards discharged on the Record. The discharge
was recorded on the 8th of November, 1800, and the
receipt for the payment of the money was given on the
7th of Novembei, 1890. This I say is consistent with our

•I

lOHO

■m

(Mr. Peters' Argument in Reply.)

theory, and it is inconsistent vvitli theirs. If it be true
that thiH was a niortnage put on for the purpose of pio-
tecting Beclitel's interest in the " Oarolena," wl)y was the
mortgage ever i)aid? Why was it ever discharged or a
release given?

Mr. Warren: -Because they had new dealings on that
date with the " Maty Taylor."

10 Mr. Peters:- My learned fiiend does not see where he
is coming out If Bechtel wanted to protect his interest
in the ship, that ship was seized by the United States and
had gone to pieces by that time, and if he wanted to ])ro-
tect his claim he would have left that mortgage on, but
instead of that the mortgage was paid and discharged. I
say that is inconsistent with their tliecuy, and it is
consislent with ours. But let us follow this a little fur-
ther. The transaction so far related entirely to the " Caro-
lena." But theie was auolher ship afterwards bought by

20 Mnnsie, the " Pathfinder," and it is alleged that the trans-
actions with regard to the " Pathfinder " were the same
as with regard to the " C'arolcna." Mr. Warien connects
them botli together. He savs this is all one line of decep-
tion from beginning to end; that what we did with re-
gard to the "Carolena" we also did with regard to the
" Pathfinder." Tiie " Pathfinder " was purcha.sed in Nova
Scotia for the sum of $4,428. She was brought ronnd to
Victoiia. and before she got there a mortgage was exe-
cuted by Mnnsie for e.xactiy one-quarter of the amount of

30 the original purchase money. Mnnsie states that the
amount of ninney actually borrowed was $1, 000. Subse-
quently another mortgage was executed to his brother,
M. N. Kechtel. for the same amount, $1,1(»7. Now my
learned friend says tliat this was carrying out tiie same
scheme that they had in regard to the "C'aroiena." Now
it is a rule in criminal cases where you are attempting to
convict a [x-ison by circninstaiitial evidence, that if you
can provt> one circumstance absolutely inconsistent with
the theory set up by the prosecution, that one circum-

40 stance is of more value than all the other circumstances
that go to show the man is guilty. J think that is a plain

Erinciple of criminal law. Now what is the theory of the
hiited States all through these transactions. Their theory
is that they will convict Mnnsie and Bechtel of having
entered into transactions which were not straight; that
Bechtel was the real owner of the ship, and not tlie mort-
gagee; that tlie mortgages were not actual mortgages, but
really represented the value of what was a half interest in
the "Carolena," and that the same deception was

SOpracticed in the case of the "Pathfinder" We are in
luck here in being able to follow the transac-
tion a little further, and being able to show
that whatever suspicious conclusion my learned
friend drew from these acts, there is one circumstanec
clearly i)roved utterly inconsistent with there being any
wrong intention on the part of Bechtel or Munsie with re-
gard to these transactions, witli regard to the interest of
Bechtel in these vessels. What happened with regard to
that^ M. N. Bechtel died. His executor was a man by

"°the name of H. Haines. Mr. Haines also died, but his
books and papers were kept and had been handed over to
Mr. Carne. When this matter came up it will be remem-
bered that it was alleged by Munsie that he, Munsie, had
paid oflf the estate of M. N. Bechtel; that to know whether
that was correct or incorrect, we sent for the gentleman

!■', 1 I

1091

(Mr. Peters' Argument in Reply.)

who had control of tl>e books, and they were produced in
Court, and what did they prove? The very first entry
was $1,000 paid by Munsie to that estate on account of
the schooner " Pathfinder," on the 7th of November, 1890.
I read fiom the Record, page 1.5!)(i, line 40:

" Q. I believe that wben Mr. Haynes went away he left the books of
" the estate with you? A. Yes, sir; that is the book you have there.
lO " Q. And in that estate book, under date of the Hth of November,
" 1890, is an entry of the payment of $1,000 to them by Mr. Munsie?
" A. Yes, sir.

"Q. Whose handwiiting is that in? A. I cannot swear, sir; I snp-
" pose it is Mr. Havnes'. I never saw the book until here just a short
" time ago before he went away.

" Q. That is, you never looked at it? A Never looked at it.

"Q. He left :'t with you for safe custody? A. Yes, sir; as one of
" the guardians of tlie children, it is my iiroperty.

" Q. There is aa entrv here ' Bv cash from William Munsie, account
" schooner " Pathfinder," S!1,000? ' A. Yos, sir.

" Q. That is the whole entry? A. Yes, sir.
2o " Q- And that entry is exactly the same as when you received the
" book, of course? A. Oh, yes, sir.

"Q. This purports to be an account of the M. N. Bechtel estate?
" A. Yes, sir.

" Q. And it purports to show the amounts received and the amounts
"disbursed? A Yes, sir.

"Q. In connection with the estate? A. Y^es, sir.

"Q. And also there appears to bo a division of the estate at the end
" of the book in a sort of ledger account? A. Y'es, sir.

"Q. Was the estate handed over to you? A. To Mr. Munsie and
" myself.

"Q. And there is this entry in the book, 'by cash to Came &
,_ " Munsie, guardians, 32,562.97,' that was handed over to you? A.
3" " Yes, sir.

" Q. You have, since that time, had the handling of whatever assets
" there were ? A. Yes, sir.

" Q. I believe there is some real estate too ? A. Yes, sir ; I have
" charge of all. We were appointed by the court as guardians to the

"children."

» ♦ • » ♦ •

" Q. And this purports to be the account of Oc'o. W. Haynes, ad-
" ministrator of the estate of Myre N. Bechtel, in account with the
" estate ? A. Yes, sir.

" Q. The first entry is, ' 1890, November 8th. To cash received.
"From William Muns'ic, schooner " Pathfinder," 81,000.' This is the
4*-' " account put in by the administration, I believe ? A. Y'es, sir.

" Q. Tins was made up when the estate was handed over to the
" guardians, showing the bulance due ? A. Yes, sir.

" Q. And on that is your receipt and Mr. Munsie's for the balance
" of the estate ? A. Yes, sir. ''

Now in order to i)ut this matter beyond a doubt we were
fortunate enough after tiiis length of time to find the
original check for that $1,000. and this ciieck is produced,
dated November 7, 18ito, on tlie Bank of British Colum-
bia, and is signed by William Munsie, endorsed by Geo.
SoH. Haynes, administrator of M. N. Bechtel. It is un-
doubtedly genuine as it has the stamp of the bank on it,
and it shows that this mortgage was paid on the 11th of
November, 1890.

Now Mr. VV'arrenin referring to this makes the extra-
ordinary statement, a statement in which I think be is
not justified by the evidence, but in his oral argument he
makes a statement to this effect that by some means fair
or false, presumably false, Munsie & Bechtel had made it
appear on paper that the payment of $1,000 had been
6omade by Munsie to Bechtel on a certain day.

That shows the way my learned friend approaches this
evidence. He says the men are guilty, and he starts out
with that assumption, and therefore he looks at every
piece of evidence as presumably false. In order to carry
out his theory what would he auk your Honors to believe?

■ i

1092

(Mr. Peters' Argument in Reply.)

He would ask you to believe tliat this proof of payment is
the result of a conspiracy between Munsie, Bechtel, Haynes,
the executor of M. N. Bechtel, the Bank of British Col-
umbia, and divers other persons unknown. I say if there
is one tliii j^ in this case that is clearly proved, it is the
fact that uiere was a bona jkle mortgage to M. N. Bechtel,
and that that mortgage was paid on the 7tb of November,
IO1890. I have said nothing alfout the evidence of Fred-
erick Carne, wiiose testimony corroborated that of Bech-
tel and Munsie, and who was always looked upon as a
fair and respectable man, and against whom not any
word has ever been said.

Mr. Dickinson: — Unintentionally, I think, you stated
the mortgages were on the vessels. You will remem-
ber they were on a certain number of shares of the ves-
sel.

Mr. Peters:— That is correct, the mortgage on the " Car-
2oolena" was on one-half, or 32 shares of the vessel, and
the mortgage on the "Pathfinder" was on 16 shares.

At 5.15 o'clock the Commissioners rose.

GommiBsioners under the Convention of February 8,

1896, between Great Britain and the

United States of America.

-1:1

Legislative Council Chamber. Provincial Bniltlin^.
At Halifax, September 28, 1807.

At 10.30 A. M. the Commissioners took their seats.

The Commissioner on the part of the United States: -
The Commissioners have concluded to annul the 12th rule
providing for a certificate of the record by the stenograph-
ers, and the Secretaiy will see that the order is entered
upon the protocols.

Also we entered an order on the protocols this morning,
Axing the compensation of the Secretary and the clerKs
for this session, which I will hand down to the Secretary,

20 Mr. Peters:— At the time of the adjournment yesterday
afternoon, I had about completed the discussion of the
transactions relating to the " Carolena " and ** Pathfinder,"
so far as the mortgages and bills of sale were concerned,
and I had also adverted to other matters which were
charged as evidence to prove that Bechtel was not a mort-
gagee, but was an owner. I leave that matter with simply
this remark; you have proved three things I have stated
before, namely, that Bechtel was present at a blacksmith's
shop, when one of the men was hired and perhaps took

30 part in the conversation; that Bechtel took a trip to
Clayoquot in the " Carolena;" and that these two mort-
gage transactions took place. I leave that matter with
this query, that, taking all those facts together and admit-
ting them all to be true, are they inconsistent with the
statements so positively made by Munsio and Bechtel that
Munsie alone held the ship?

Yesterday when I was speaking, my learned friend, Mr.
Warren, interrupted me when I made the statement that
the United States were charging that these men had a

40 fraudulent intention against the United States — against
the laws of the United States and against the laws of
Great Britain. My learned friend made this statement
and I think my friend. Mr. Dickinson, also corroborated
that statement, that they were not on the Question of
fraud at all, but that they were inquiring simply into the
status of these men, irrespective of whether there was
any fraud or not.

Mr Warren: — I stated, Mr. Peters, that my claim in
the argument was that there was fraud against the laws

50 of Great Britain, and now a fraudulent claim here.

Mr. Peters: — I will show my learned friend, then, that,
according to the argument he advances, if that is what he
intended to say, it is not what he has said. He has gone
further, and I will prove it to your Honors. If he aban-
dons that position, that is all right; but I want to show
as a matter of fact that that is the position he has taken.
I find in one part of his argument, where he was dealing
with Gutman and Frank, he says that "Subjects of the
" United States and Great Britain were willing to make

60 " false oaths, and did make false oaths, for the purpose of
" having registered vessels in the names of British subjects
" that were partly owned by citizens of the United States."
Further on he says, referring to the bill of sale given by
the estate of Morritz Gutman: "The reason I now call
" your attention to that Record is this, that on that same

1094

0^')<'y '^

(Mr. Peters' Argument in Reply.)

*' day was recorded a fraudulent bill of sale to Morris Moss
" for the same ship, the ' Black Diamond ' and the ' Lily.'
" Of that fraudulent bill of sale to Morris Moss I will speak
" later; but this fact which comes to my mind as I talk
" shows that there was fraud from the beginning to the end
" in connection with the ownership of Frank, the American,
" in regard to this ' Black Diamond.' " Further on: " The

lo" bill of sale is produced. I will show your Honors that
" this entire transaction between Gutman and Frank is
'' honeycombed with fraud." Again, and he is now talking
about the claim that James D. Warren put in on behalf
of one of the Frank vessels in 1887. He says "that
" James D. Warren knew that if he swore that Alex-
" ander Frank owned one half of the bottom of that
" ship, that Frank's claim would go down." This was
at a time when they did not know that the United States
Government made any such claim. Further on he says:

20 " I claim that there is conclusive evidence of the attempt
" of these men to cover up their tracks," which looks very
much as though he was arguing that there was not only
fraud, but an attempt to hide it. Then he says a little
further 0:1: " I have, in presenting the facts in relation to
*' the fraudulent concealment of the interests of citizens iu
" certain of these claims referred by the Convention to
*' your Honors, thrown aside the pretended claim of Great
" Britain, and considered the claims as those of i)rivate
" individuals." Those statements will at all events make

30 clear this position that, whether my learned friend meant

to — or was carried away

Mr. Dickinson:— There is not the slightest doubt that
we claim that every one of those statements are true, and
stand on them.

Mr. Peters: — Very well, then. As a matter of fact, they
did not and could not know at that time that the United
States were going to take the stand they did take, and
that argument must fall to the ground.

Having made the remarks I did yesterday with refer-

40 ence to the facts in the " Carolena " case, so far as they relate
to the ownership of Bechtel, and connected that with the
" Pathfinder," and made the remarks I did with regard to
her, it is perhaps unnecessary for me to take any further
time regarding the contradictions of matters whereby the
credibility of Munsie, Bechtel and other witnesses has been
attacked; but so many and frequent attacks have been
made upon the credibility ot these two witnesses, that I
deem it my duty to take up very briefly a few of the niain
charges which they make against them, and to prove to

50 your Honors on what little ground they rest. In the first
place, an attempt is made to make it appear that Munsie
was charging ^(>,000 to outfit the vessel; this charge was
made most deliberately. I have already answered that in
my oral argument when we were considering that point,
and I pointed out that we did not charge, and never did
charge, the outfit as against the United States Govern-
ment; and I have pointed out, and I again point out, that
the $6,000. which my learned friends still continued to
argue in their oral argument was for the outfit of the ves-

6o6el, even after it had been fully corrected by me, repre-
sented far moi-e than outfit; so really there is nothing in
that charge whatever. We never did claim the $6,000
against the United States Government; we did not claim
it in 1887, when the claim was put in, as by reference to
that claim will appear, and we do not claim it now. It is

f rip

1095

(Mr. Peters' Argument in Reply.)

therefore incorrect to say that we have attempted to
charee the United States Government with that $6,000.
On that point I would like again to refer your Honors to
vouchers which were set out in our Appendix, Exhihit
B, Exhibit No. 10, Great Britain, vouchers 1 to 60,
which will fully prove the statement I have made as to
this matter.

lo The next ground of attack niade against Mr. Munsie by
Mr. Warren — it was made at Victoria and has been re-
peated here— is this: Mr. Warren takes up vouchers 1 to
50, and he undertakes to show that those vouchers were
fraudulent; and, if I remember correctly, that they were
made within three months of the hearing at Victoria.
Now that is a very serious charge. It is a charge that
Mr. Munsie not only put forward a fraudulent claim, but,
for the purpose of backing up and proving that fraudu-
lent claim, he produced in court and swore to the correct-

zoness of vouchers which were as a matter of fact not bona
fide vouchers. In other words, he is guilty of two crimes;
he is guilty of forgery, and, certainly, he must have been
guilty of perjury; and all this fraud is on the assump-
tion that this was done for the purpose of chargin;^
the United States with the amounts mentioned in
those voucheis. The answer to that charge is
very clear and very plain. Answer number one, which
has already been given, is that the amount of those
voucheis never was and is not now claimed by us, and

30 therefore they could not have been maile up with a fraud-
ulent purpose. Answer number two is, that any person
can look at them and see whether these vouchers present
anything like an appearance of having been made up at
the time, or made up three months before the hearing at
Victoria. I produce, and ask your Honors to look at one
or two of these vouchers without going through them in
detail. If your Honois will look at the voucher of Mr.
Robinson (handing Commissioners voucher). The charge
is that that voucher was made up three months before the

40 trial at Victoria. I am going to take two or three, and
the same remark is made as to them. Here is one of E.
B. Marvin which T will ask your Honors to examine as a
fair sample. I say the charge is reckless and there is no
foundation for it; and I say more, that if my learned
friends really thought that that statement was correct,
the proof of it was right under their hands as to the E. B.
Marvin voucher; E. B. Marvin & Co. carrying on business
at Victoria at the present tinre keep books, and the cor-
rectness of the statement of Munsie could have been tested

50 then and there. Without going through the whole of
these vouchers, let me take some of the names that are
familiar to us. We have here Colonel Piyor; that the
articles were bought from him on a certain day and the
original voucher is produced. We have Kelly & Com-

Eany, who I believe are there yet, although they may not
e, and could easily have been produced. I contend, your
Honors, when this charge is made the answer to it is simple;
to look at those documents and say whether there is not on
their face conclusive evidence that they are original genu-
6oine vouchers. Still the charge is made that they are not
original genuine voucher-s; that they are vouchers made up.
When? Three months before this trial. 1 do not understand
how my learned friend could make such a charge. There is
one piece of evidence before us that proves conclusively
the incoritctness of that statement, and that is, that the

101(6

i ,.',

i I '

ll.

(Mr. Peters' Argument in Reply.)

very claim with regard to the *' Carolena " was sworn to,
at all events, in 18K7, and that in the schedulo to that
claim the very amounts mentioned in these very vouchers
are set out, proving conclusively to my mind that the
vouchers were in existence in 1887. \Vhat other point
can we give in regard to these vouchers? Mr. Munsie
says that when Captain Warren went to Ottawa to make

loup the claim that was to be put in against the United'
States GovernnuMit, these vouchers were sent to Ottawa
with Captain Warren, and Captain Warren says the
same thing. Mr. Munsie also says that at Ottawa Capt.
Warren, or whoever was in charge of these voucliers,
lost some of them, and when he came to make up his
claim on the present occasion, he went to the parties and
got duplicates of them; and, if you will look at his tivi-
deuce where it is given in the ca.se, in his direct-examina-
tion you will find that with regard to each voucher he

20 swears which is duplicate and which is original.

Mr.' Dickinson:— Mr. Peters, you do not pretend that
he had these vouchers from Bechtel on the mortgages, at
Ottawa?

Mr. reter8:--The receipts for interest are a different
thing altogether, which 1 am going to deal with particu-
larly. They are not included in vouchers 1 to 50. I am
speaking now of what we call the vouchers 1 to 60, which
do not include the receipts for interest at all. I am now
dealing with what appears to me to he an extraordinary

30 and unfounded charge made in regard to those
vouchers. It stands out clearly. It is on a
idea I pointed out yesterday, as to
which he approached the evidence
and its consideration. He takes it
for granted that they were guilty of fraud, and everything
he could get his hand on he used as evidence, as thouga
it were a guilty person who made the voucher, and made
it for the purpose of hiding his guilt; and I say in this
criticism he has gone too far. What does he say again}

40 He brought these vouvchers in and he says, *' look at the
paper they are backed with." What does that mean? He
says the paper they are backed with is the same paper,
the same ink, and all that kind of thing. Of course it is.
When we were preparing to bring this matter into Court
we wanted to get these vouchers into good shape so they
could bo easily handled and we simply had covers put on
them. That all was explained at the time. I would not
have been so surprised at my learned friend making these
remarks showing that he had something of the kind in

50 his mind at the time, but this matter was explained at
Victoria, and I am surmised that this statement should be
openly and boldly made, here in oral argument. Another
statement is made here in regard to Mr. Munsie, and that
is, my learned friend charges that Mr. Munsie has made
a positive misstatement as to whether or not the " Caro-
lena " hunted seals or traded on the coast in the spring of
1886; and in order to substantiate that charge he refers you
to the evidence of Serault, whom he alleges proves that
the vessel did go sealing in that spring. Also he read a

60 portion of Munsie's evidence at page 145 of the Record,
and contended that it was a statement by Munsie that the
vessel had not been fitted out to trade in the spring, but
that all of the supplies put on board were for the Behring
Sea voyage. That is the charge he wishes to make. The
object of the statement is this, and it is very plain. What

par with the
the manner in
of these men

rfi

1097

(Mr. Peters' Argument in Reply.)

my friend wialios to argiio principiilly ia that Mnnsie put a
certain amount of piuvisionH, supplies and ammunition on
board that year, and he wants to make it ajipear that
Munsie claimed that those supplies, ammunition and pro-
visions were put on hoard simply and snioly for the Behring
Sea trip, whereas as a matter ot I'aet, they wore put on
board for two trips, thr spring trip and the liohring Sea

lo trip. In order to givo any impitrtancf to the matter at all, ,
you nnist assume tliat Mnnsie was going to eiiarge for
these provisions, whereas hi.' was not ciiarging for them
and did not charge tlit.'m. Again, let me point out that
there imver was any attempt on the part of Mnnsie in his
evidence to hide from this Connnission the fact that part
of the provisions and supplies that went on hoard that
ship, were for the spring trip, whether it was a sejilingtrip
or a trading trip it matteis very little. The best evidence
of that is that Mr. Mnnsie produced the vouchers, and on

20 the face of the vouchers it api)eared that a lot of these
provisions were supplied in February; and no person could
bo charged with attempting to hide a thing when he pro-
duced the vouchers, which, on their face, showed that
these were for the apiing trade.

And, again, I would point out, when you come to the
point as to whether that vessel went on a sealing trip or a
trading trip in thespring, you must remember that the giv-
ing of that evidence was manyyeais after the transaction
took place, and Munsie's state of mind as to what took place

30 that spring was this. He nowhere positively denies that the
vessel was sealing or trading. He says the vessel went
out, he thinks, for the purpose of trading, and that she
bought some skins. Wi)etber she confined her opera-
tions to trading and the buying of skins he is not clear
about. He nowhere makes a positive statement which
would be essential to my learned friend's contention. He
has not made the statement positively. He himself was
in doubt as to how the vessel was employed that spring,
and when the man himself is doubtful on the point, how

40 can you make criticism when some other person comes
in and says. Yes, you were sealing in that year? In order
to show that I am correct in that statement, and to show
the state of mind of Mnnsie on that point, I refer to
Record, 134-13.">, Munsie's cross-examination, line 05:

" y. Aside from the largo items as to which 1 have asked you, there
" is a very large amount of supplies as lo ■which I have not asked
" you ? A. You see the vessel left in February to go to the coast for
•' an Indian crew. They consumed a good deal of stuff on that voy-
" age."

It is attempted lo be shown in the first place that we
were attempting to claim all these provisions for the
Behring Sea trip, whereas here is Munsie's own answer :
•' They consumed a good deal of stuff on that voyage."
Then again :

" Q. But haven't you made a claim against us for it all in the
" «10,000?"

That $10,000 happened to be the sum total of all the
^'O vouchers.

" A. Everything from February to March.

" Q. And you had a coasting license from February to June? A.
" When the vessels go out they must always take a coasting license.

" Q. Yon do a coasting business from February to June? A. The
" captain would.

'■!:;■

■ :vi:-

1008
(Mr. Petors' .Arguniont in Reply.)

"Q. And tbo veNHnl didu't «<> np to nehriDKHo* at all, did she, until
" the oami) back to r«Ht iu May? A. Hho cnmo l)aflk in Maj.

*' Q. And includiHl in hero arc all the Fobruary and Maroh HuppHes
" before she oailod on hur coaHting trip? A. All included there.

That is, iiirlii(]<*(l in tlit> vonctioiH, sliowin^; plainly that
there vvns no dispntt' aiiont it. H« ways that tho provisions
were indndod in the vonc^liers.

" Q. Did the ' (!nrok>nn ' do any trading with the Indians on the
" way up? A. Hho might have done a little; I wouldn't Hay whether
" she did or nt)t."

The Commissioner on tlie part of the United States: — In
that tlie direct examination or tho cross-examination?

Mr. Peters:- It is the crossexaniination, hnt this is tho
first time it came np. Mr. Dickinson very properly
wanted an exi)lanation. and said in effer-t -Did yon
charge all this to the Behring Soa trip? "Oh, no," saicl
2oMnnsie, and lu' then explaiiuMl folly what the vonchers
meant. Yonr Honors will rememher that this course was
taken almost at the suggestion of the Commission, the
idea heing that we were not to go fnlly into the vouchers
until tliert' was somothing challenged. This course was
always followed with regard to the examination of the
vonchers of other ships; there was never any examination
unless some item was challenged.

The witness goes on further:

" Q. Did the 'Carolena' do any trading with the Indiann on the
30 " way up ? A. Hhc might have clone a little; I wouldn't Bay whether
" »h('' did or not.

" Q. What did she have on board to trade with Indians ? A. She
" really did not have anything except tho Hupplies."

You see the charge is that some of these goods might
have heeii used for trailing and that we were keeping
that hack, w hercas hei v is Munsie's answer which is per-
fectly fair. We know well that one of tiie chief articles
of trading with tho Indians was this pilot hread ahout
which wo have heiird so much.

" Q. Were they put on board for her to trade ? A. No, they were
' not.
" Q. What were they |)ut on board of her for? A. To go down
and ]>ro<Mire the itow of Indians, come back here to tit out for
lieliriug Sea supplies enough, provisions for the crew and the In-
diitus,

" Q. Y011 don't know what trading they did ? A. I do not.
" Q. Never -^us reported to you ? A. I don't remember.
" Q. \nv > ,o'/ng done on that trip ? A. I believe she bought from
the iiidinns.

" Q. Aitii b- ought them to you ? A. Yes.

" (). }i-;\f mauy ? A. I don't remember; a few that brought up
Homt rtiiii skins."

Ro that on thcfpiestion as to whether she actually sealed
or not the w itness said in elfect^really at tiiis time of day
I don't rcmemlier. In the face of that to charge that he-
cause Michael Serault swears that she did some sealing —
that therefoi'c Munsie has Ixcn contradicted, and ask you
tohelieve that Munsie has been guilty of swearing what
was false, 1 say is without foundation.
60 'Ihc next charge made is a serious one. There is no
hesitation on my learned friend's part to state holdly the
charges that he makes against Mimsie and Bechtel. The
next charge is that he has brought into court a set of forged
receipts— eleven receipts; the charge is that these receipts
are bogus.

X m

lornt

(Mr. Pt'tors' Argument in Rt'ply.)

Mr. Dickinson: - Tliero is no doubt about that; wo
charge that thi'so are l)ogus rcceipta.

Mr. Petern:— Ho charges that they were not only bogus
but he goes furtlier and ho gives a reaHon for it. He
alleges boldly, with just as nuich force as if he were an
expert in handwriting, and had trained very carefully to
be able to give expert testimony, that these receipts on

lotho face of tlwni show themselves to be written with the
same pen, with the same ink, and by the same hand at
the same time, and be makes that statement just as
boldly as though bu were an expert in bandvriting. I do
not pretend to be an expert in handwriting, and I do not
presume that your Honors pretend to be expo; U in band-
writing, but I contend that if the coiuisel wishes to rely
on a matter of that kind he should have got expert testi-
mony and brought it before your Honors, and not rested
merely upon the assertion of counsel in a case where, like

20 this, you have sworn testimony on one .side that they wore
not made with the same pen or ink, but were made at
ditTerent times. Of course there is no doubt of their all
being written by the same band. Without venturing to
class myself with my learned friend as an expert, I
venture to say that an examination of the receipts
will show to any person, that they were not written
at the fame time, although written by the same
jt'jrson, and not being written at the same time could
hot have been written with the same pen and ink.

30 1 profess to be able to use my eyes a little, and in the
first place. I say that if written by the same person with
the same ink and jien, and at the same time you would
find some similarity with regard to the main letters and
with regard to the wording of the receipts. I am going
to show you that that is not the case. Looking at these
receipts you will find that with regard to the word
" Munsie," it is written with two ditTerent spellings
— two dilTercjnt ways. A man's handwriting naturally
changes from year to year, but these changes will not

40 appear where be is writing the same word twice at the
same time. He will write that in the same way. We
find one receipt " WMIIiam Mimsie, Esquire," and another
one of the receipts be spells Munsie " Monsie," instead of
"Munsie." Again the letter "V," which is used in the
word " Victoria " at the top of each receipt, is written in
three ditTerent ways. A glance at the receipts will show
this, but to make it clear I will give your Honors the
paper I have in my band to show you the difTerence in
the formation of these letters. In the word " mortgage"

5otbe letter "g" occurs twice each time, and that letter
"g" is entirely ditTerent in formation in some of the re-
ceipts from what it is in others. The same remark can
be made as to the letter " g" in "being," which occurs in
the receipts. Now we come to tlie word "sixty," which
appears in every one of the receipts, as that was the
amount of the interest. You will find that there are six
different kinds of s's at the beginning of the word
"sixty." You will also find that with regard to the
figures "6u" that they appear in four ditTerent ways.

60 Again when we (;ome to the signature " A. J. Bechtel,"
the signature is written in four ditTerent ways on these
receipts. All this I am bringing to your Honors'
notice to prove that Mr. Warren's assertion as an
expert witness that these receipts were all written at the
same time, and with the same pen and ink, is not borne

1100

(Mr. Iclors' Argument in Reply.)

out by the looking pt tlie documents themselves. In one
receipt the signature is "A. J. Bechtel," the "A" being
written in the form of a small "a." The next one is
written "A. J. Bechtel," in the peculiar manner appear-
ing I n this paper, whicl) I will hand to your Honors; the
third and fourth are different A's, and the last one is
written "Andrew J. Bechtel." And you are asked to be-

lolieve that all those different signatures on these receipts
were made at the same time, with the same pen and ink.
Then again I venture to say that looking at the receipts
there is notliiiig that induces any one to say; as a matter of
course, that they were all wiitten at the same lime or
that the ink is the same. For instance, one receipt reads
tlms: " Being amount due for interest on mortgage
schooner 'Carolena' to I'.tth of December, 1885," and
the next one is, "being amount interest due, &c.," and
the next one in which there is a difference is, " being in-

2otere8t due," «&c., and the next one is, " Being amount of
interest," &c. All tliese things go to prove that my
learned fiiend has not very much foundation for the
statement he makes that these receipts were all wiitten
at the same time, and by the same pen and ink. Now I
explained to your Honors before, the fact of these being
numbered 1, 2, H. 4, 5.

Tlie Connnissioner on the part of the United States:— I
would like to see the paper you are reading from when
you have finished with it.

30 Mr. Peters:— Certainly. 1 want your Honors to look at
another thing. Tlie charge is that these receipts were all
made at the same time. I ask you to look at receipt
marked No. 4, and look at the word "mortgage." The word
mortgage is tliere written with a sharp pen. Now refer to
the first receipt, and look at the woid mortgage. Is there
anything there that induces the belief that these were
written by the same pen at the same time? I would say
that the contrary conclusion would bo arrived at. I ven
ture to say that there is no evidence to show that these

40 were written at the same time and with the same pen
and ink.

Mr. Dickinson:— Can you i)ick out the duplicates substi-
tuted for the originals?

Mr. Peters:— I am coming to the (juestion of duplicates.
I do not pretend to be expert enough to pick out those
which were duplicates and the others which were not. It
is in evidence that some of these receipts were lost, and it
is in evidence that Munsie got some of the receipts in dupli-
cate, one or two or a few. Mr. Dickinson asks me now

50 whether I can pick out the receipts which are duplicates.
If I remember correctly he did not ask the witness to try
to do that. Ho had both Bechtel and Munsie on the
stand, and if my recollection serves me properly he never
asked the witnesses, and as he did not ask the witnesses
i', 's hardly fair t^ ask me. There is one fact that he relies
'A\ very strongly, and that is the receipts ai-e written on
the same form of receipt. What is there extraordinary
about thati' It is a common form of receipt. Bechtel
evidently had a book of receipts, and that book of receipts

60 would of course contain a number of blanks and what is
there unusual about his having these receipts for some
time? You nmst remember that, with regard to these du-
plicate receipts that were obtained, they were not obtained
lately for the purpose of this enciuiry, but the evidence
sliowb that they were obtained years ago.

(Mr. Peters' Argument in Reply.)

Mr. Dickinson:— Von just stated that the witness was
not asked to pick out the duplicate. Bechtel was asked
distinctly at page 151, where he says:

" Mr. MnnHio at ouo tiiuo askod me to give a r< ceipt, that he had
" lost one or two, luiuhiid tlieiu or Homuthiug; I woiiUl not say what
" ones they were.

" Q. You cannot distinguish them now? A. No; I cannot."

Mr. Peters:— My learned friend is quite in order in his
statement. I spoke only from memory; my recollection
was that he had not heen asked tiiat question. It appears
that Bechtel answered the question that he was unable to
pick them out.

Mr. Dickinson: -It would have been a very serious fault
under cross-examination not to have asked such a ques-
tion.

Mr. Peters:— However, I was referring to the fact of

20 the receipts l)eing on this form, and I say it was a com-
mon form. It might have been peculiar if he had given
these duplicate receipts in lSit7 for the purposes of this
case, and happentiil to have the same form of receipt that
he had away back in 1H88 and 1SS7, but when it appears
that thesis dupUcate receipts were asked foi' some three or
four years ago a ditTerent state of affairs arises altogether,
and there is no conclusion to be drawn from the fact that
he had the same blank forms.

Before I leave the matter of these receipts, I make this

^o statement that the charge made with regard to them is a
statement altogetlier too bold to make with the evidence
that the coimsel had before iiim who made it. It is a
statement of a very serious nature, affecting both Munsie
and Bechtel — which statement, I do sul)mit, sliould not be
made unless there is very strong evidence on which to
base it, and in tiiis purticulai* there is no foundation
for it. My learned friend makes another statement to
this effect. I tiiink your Honors will remember tiie dis-
pute that came up. We alleged that tlie " Carolena " was

^ooriginally bought at tlie price of $l?,8(Ht. On the other
hand, it was alleged on behalf of the United States that
she was not bought for the price of ^1$, 800, but that she was
bought for^2,(K)0, aiu' in answer to that the question came
up as to whether or not tlie ivul transaction was that
Urquba:', who it .".ppears was only part owner of that
ship, bail in re;»lity got $3,800 for the vessel, and only ac-
counted > liicuoy for the sale, as if made at!?'2,000. My
frieiid ventures to say that that suj^gestion is made by
Muufcie - lie bopjd that this suggestio;'. was not made by

[joHie. He said tliat tlie suggestion was made by Munsie,
and '<e hopes it was not made by counsel for (Jieat Britain,
and he was (piite forcible in tiie language that he ii.«'jd,
that if we were to besmirch anybody's character we ought
not to besmiich the charactei ot ;i man who was dead. I
say that the suggestion as to Unpiliart's object in stating
the amount of ^:i,000 as the price for which the schooner
was sold, is not made by us or Munsie, but is the direct re-
sult of Hickey's evidence; it is tiie di'ect statement made
by Hickey. I refer to Kocord, li.age lOi^r), line ti8:

(,,, " y. Now in selling tliivt vcHHc' us von hupposcd you were doing at
" the rate of 82,000 for the whol.i vessel, did you tlien consider or did
" vou not, that the 8'i,000 was her value? A.' I did not consider it was
" her value.

" Q. Will you give me vour opiuiou new ns to what you thought the
" vessel was worth? A. \Vcll, sir, at the time I considered she was
" worth far more than 82,000 to me, but as to her actual value I could
" not 8»" posit' cly.

1J02

(Mr. Peters' Argument in Reply.)

" Q. So that, if I understand you correctly, to a certain extent the
" sale was forced upon you more or less? A. Certainly it was forced
*' upon mo, for I regarded my position, which was worth $150 a month
"to me approximately, my salary was a stated salary of 3140 per
" month, and there was an allowance made to me of my household
" coal, which is usually considered worth something to a man. I cer-
" tainly would not forget that, a yearly salary, for a few thousand dol-
" lars that might be in the venture of a vessel."

«o And also at page 102-t, line 50:

" Q. You did not know whether Mr. Urquhart accounted to you for
" all the proceeds he actually got of the si-hooneror not? A. Idonot
" know. I was of the opinion that he rendered mo an account of the
' ' sale of the complete vessel, but subsequently I have been led to believe
" that he sold only two-thirds of the vessel for that amount of money
" and retained one-third of the vessel which he subsequently sold after-
" ward. But ho rendered me no account of that sale."

Mr. Warren: — ReafI tlie question immediately after that.
Mr. Peters:— Yes, I will.

" Q. What I want to get from you is whether what he paid to you
" was for the first sale that took place in the month of .Tanuary, 1884?
" A. Yes, sir; he never rendered me any statement afterwards."

Mr. Warren: — Read the next question.

Mr. Peters: — Wait a moment and I will do s.-"; J o))j.t'.
to having the continuity of my remarks distu'iM i( b\ ■!)
frequent interruption; I refer to page 1027. lui. S?,, i j
evidence is given in Mr. Dickinson's re-e.xamiiianoa ol the
witness:

" Q. During his lifetime had yon any reason to doubt that Captain
" Urqihr.rt was an honest and upright man? A. Well, sir; I am very
" loth to answer the question."

And yet it is stated in the face of that evi<lence that
Munsio is the iiiaii who gets up this idea and the learned
counsel "hopes it is not tiie counsel for Great Britain."
The person who made the charge and who was very deli-
cate ahout giving Unjuhart tliis character was Mr. Hickey,
who is a witness called for the United States and not by
us, and is a man we had never seen before he came on the
4° stand.

Mr. Dickin.son: -After Munsie had testified — Munsie'a
evidence was printed in the papers — the witness stated
that he had nt;ver heaid of that rutil he saw it in the
pajKirs.

Mr. Warren:— l{i>ad at page 1024, line (>3.

Mr. Peters: — I will.

"Q. And as you now bolii'vo at the time ho rendered you that si.^te-
" nu'iit, he had not sold all tlio vi^hkpI? A. I had not boon given t«j
" nnilcrstaud that, but F luMinl it read in the pajjcrs.
5*-* "Q. Of I'oiirse, wlictlior ho did or did not account to you for all the
" shari's of the vessel, you do not know? A. I don't. "

The conclusion from his evidence is as clear as noon-
day. Ml. lli( key's statement is this, that Mr. Unpihart
made a salt; of the vessel in Jauuaiy, l^.s.5, and he says
that at that time, in .lamiary, IKH.")- and Mr. Uniuhart's
baidc accoiuit shows the same thing -that in January,
\Hsr>, Mr. rr(piliart accounted to him for tin; sale of vvli.ii'
he siii>pos('d to he the whole vessel for $iL',00(» and that I..;
60 never accounted to liim fo'' the siile that was made >i.
Fehriiary, iss.'). lie knew nothing ahout it. He though!
the wholt! vessel was sold in January. The conclusion is
plain, that as l)i>twcen llickc' and Urquhart, Urquhart
oidy accounted to Hickey fo. it; sale ihat took place iu
January. Hickey's oath is c; >',! ;ind plain on that.

1103

I fm\}

i M

(Mr. Peters' Argument in Reply.)

My learned friend refers to his having heard it from
the newspapers. His statement is that he imagined he
had sold the whole of the vessel in January, and he now
hears for the first time that it was not ail sold at tliat
time, but that a part of it was sold later, and for that he
did not account to him. This was the first time that it
had ever lieen told to him.

lo Now. there is a good deal of comment made by my
learned fiiend, because the interest clause in struck out
of the mortgage; Bechtel, and, I think, Munsie, too, made
the statements that tlie rate of interest charged was high,
12i per cent., and Munsie did not want a mortgage on
record with sucli a high rate of interest in it. He did
not want it to api)ear to the outside world that he was
paying such a high rate, and hence it was put in without
interest. With regard to tiiere being no time of payment,
that explains itself, for the mortgage! was on demand.

20 Criticism is made on the form of mortgage, that there is
no time of payment mentioned; I say that there is a time
,of payment, and that it is made payable on demand.
Bechtel says that Munsie had stated that he might want
to pay it oiRf at any time, and therefore it was made pay-
able on demand. As to the power of sale being struck
out, if your Honors will read the foini you will see that
the power of sale, as originally inserted, would not be appli-
cable to a mortgage payable on demand. It reads in this
way : I.William Miuisie, so and so, in consideration of $1 ,000,

30 do, &c., hereby for myself and heirs, etc., do covenant
that I or my heirs will pay to the said .Andrew J. Bechtel
the said sum of $1,000, without interest, on demand.
Tiien tlie form proceeds: Second, if the said principal sum
is not paid then 1 will during that time pay interest at
6uch a rate, and tor a better security to the said Bechtel,
for repayment in maimer aforesaid of the said principal
sum and interest, bereliy mortgaged to the said Bechtel
thirty- two shares of the vessel, and declare this mortgage
shall not be exercised until tlie day of

40 I understood my learned friend to say that the power of
sale in the mortgage was struck out. But now he says
that it was void l)y not having any date put in. As the
mortgage was payable on demand it will be apjiarent that
you could not fix a date for the exercise of tlie power of
sale. Tn order pioperly to provide for " power of sale "
he would li;ive had to provide lor the giving of some
notice or some demand when the money shonld come
due, and tlien a declaration that the jtower of sale should
not be exercised until after the dem;nid or notice should

50 have been inserted. These people weic not lawyers, and
they «iid not know how to do it, and so they left it blank.
The omission of a date when th(> power of sale could be
exercised niiKht have had some effect on tluMjuestion as
to whether that mortgaj^e could liav(! lieen enforced, but
it has no etTecl whatever on the qnestion as to whether it
was a fraudulent oi' honest mortgage.

As to the interest clause being stricken out, the ex-
planation «>f that as given is sufficient. Bechte!, at page
15'2, line 20 of the Hecord, says:

"Q. Mr. Be -'tpl, why wan tliat luortjjraK*' cxproBPcd to lie without
" intorest ? A. Tho iiiortRaKo for »1,(»(M» ?

"Q. Yes. A Well, the rate of iutcrc'sl Mr. Munsie thouf^ht was a
" little too hiRh, ami he did not like to luive his l>usine,ss exposed.

"Q. Wan there a note taken at the same time ? A. Mo, sir; I WM
" advised to take a note afterwards.

1104

K '-

(Mr. Peters' Argument in Reply.)

' ' Q. Was there a note taken for the loan ? A. No, sir.
" Q. Was a note ever taken for the loan ? A. No, sir."

If this man Bechtel really did all these things; if it was
all a fraud, and all a concocted scheme, tiiere is a good
deal of ingenuity displayed in this answer I have just read
as to why interest was not put in. One would hardly
think of such a thing when they were simply concocting
a fraud. So much for the niorfgages.

My learned friend made a statement a little while ago
and I would like to see whether I am correct or not. I stale
that he had said the power of sale clause in the mortgage
was stricken out.

Mr. Warren:— I did so state, but I corrected it after-
wards to the Commissioners.

Commissioner on the part of the United States:— He
did say that it was erased, but afterwards on an inquiry
from me if he meant to say that it was actually erased, or
that that was the effect of it, he said that was the legal
eflect.

Mr. Peters: — I will leave that point then. The charges-
I have dealt with now are the main charges made by my
learned friend on the other side against Munsie. Then
they turned to Bechtel and make several charges against
him of a serious nature. Here is the first charge they
make, referring to a piece of evidence given by Bechtel at
page 1S3 of the Kecord, line 30:

30 " Q. When you went on the ship did you go below? A. No, I did
" not.

" Q. Didn't go below? A. I believe I did go in the cabin.
" Q. Didn't you go below on the tonnage deck — below-decks — to see
" what they had aboard? A. Not in the hold, where they kept their
" supplies.

" Q. What did you go there for? To say good-bye to Captain
" Ogilvie? A. Yes.

" Q. Ever been on her before? A. Oh, yes; I had been on her sev-
" ernl times.

" Q. Just went on to visit the captain? A. Yes, to see the captain;
" that is all."

He says ho had been on her several times, and perhaps
he was on her several times that very year. Now it after-
wards turns out by tlio evidence of one Cotsford that on
the May trip, when she was going on her final trip, Bech-
tel actually went up in the "Carolena" to Clayoqnot, on
his way to .Vlberni, and my learned friend says: "Oh, tiiis
"is a (lireit contradiction of everything Bechtel has said.
" How can you l)t4ieve tlie statement that he went there to
"say good-bye to tiie captain, when he afterwards went in

50 " the shiji to Ciayoquot;"' and then he «) notes, ^'fdlsns in
" luio, falsiis hi (turn thus."' The wliole thing is answered.
My learned fi lend entirely forgot that at N'ictoria, on the
same i)ago of the evidence, Bechtel states that he made
several visits to the vessel during that year. My leained
fiitMid (booses to say that because he paid a visit on one
occasion and wenr, on board to say good-by to the cap-
tain, be was denying that he ever went on a voyage on
the "Carolena." The suggestion that he went up in the
"Caioicna'' was not befoie his mind, or in the mind of

^anybody at that time. Suppose you were asked to find,
as tliey do ask you to find, that in this particular Bechtel
is .'^wearing to what is false, the first (juestion you have to
ask yourselvfs is, Which visit was the man referring to?
Was it the visit in February, when the vessel was outfitted
to go on the spring voyage, or was it in May, when she

1 105

^^^ft^l

(Mr. Pefeis' Argument in Reply.)

was going out on the Bohring Sea voyage? My friend
should have followed that examination up; but instead
of doing that, he leaves the question open and the
date open, and then he asks you to find that it was a
fraud. We say that you should find tiie man
innocent. You never should find a man guilty when
there is a fair and reasonable doubt of liis guilt.

loThat is so in a criminal case. Fiaiid is never to be pre-
sumed, hut is always to be f)roved. Yon cannot assume
fraud, you must prove it, and here where you have a
piece of evidence capable of two constructions, one of
which would make the man guilty of a fraud, and the
other in favor of his honesty, what is your duty? It is to
take that construction of the evidence which establishes
the man's innocence. But suppose that Bechtel did re-
fer to the voyage of the "Carolena"; that he was re-
ferring to the voyage when he did go up, what are you

20 to assume from that? It was a matter of no consequence
to the case; it did not afl:"ect the ownership of the vessel
one way or the other, and therefore it did not affect the
question before this Tribunal one bit. It was imma-
terial, so far as the owneiship of the vessel was con-
cerned, whether Bechtel owned a trading station at Al-
berni or not. His trip on that vessel was entirely imma-
terial. At that time there were no steamers, and they
had to take advantage of such means as were at band to
get to their trading |»osts, and there was nothing at all

30 in the fact that he went on the "Carolena"; so far as
ownership is concerned it was not material. It must be
remembered that Bechtel was speaking twelve years after
the occurrence, and perliaps he miglit mix up the Febxni-
ary trip with some other trip, or mix up the vessels, or it
would not l)e strangt* if he forgot tlie whole transaction.
I venture to say that any one of us would not consider
tliat we had done anything out of tlie way, or l)ioken the
solemnity of an oath, if we should go upon the witness
stand and foiget all about some voyage or trip that had

40 taken place some ten or twelve yeais before I know,
as far as 1 am personally concerned, unless I
had some memoranda, I slionld be conniietely in the
dark. J very nuich doubt if Bechtel had been asked as
to whether be went u|) in the vessel in 188<) he would
have bet'u able to say yes or no. It was |)ure accident
that we hai)p('ned to get another man, Cotsfoni, who
was aboard the 'Carolena"' but once, and could not
therefore make any mistake about it.

Mr. Warren: — There were two other witnesses.

50 Mr. Peters: — Of course, the very moment the fact was
discovered then the other men who were aboard the ves-
sel at that time remembered about it. We do not dispute
the fact that he was on the vessel at that time. All we
.say is that when Bechtel was examined the matter was
not before his mind, n.tr before the counsel's mind, and it
was only ac( idental that the other man happened to re-
member that he was aboard the ship. Tiie question was
never followed up, but stood at that point.
The next suggestion is that Bechtel made :\ false state-

6ouient in this; it appears now by the evidence of Munsie
that Bechtel was intere.sted in the years 1887 and 1889
in the venture of the " Pathfinder " in Behring Sea. He
paid so much money for a half share of the piofits that
vessel wouW make. Counsel for the United States allege
that Bechtel before Munsie made that admission, had gone

1106

(Mr. Peters' Argument in Reply.)

on the witness stand and made statements utterly incon-
sistent with it. They say he made a statement that he had
no interest in the sealing business until 189n, and that this
was untrue. I am going to examine that statement. Let
me make this remark in the first place, that so far as the
"Pathfinder" was concerned in 1887, 1888, and 1889. al-
though Bechtel bought an interest in the profits he liad

ID nothing to do witii the actual business. Munsie transacted
the whole business; Munsie outfitted the vessel and hired
the ciew, and incurred all the expenses, while Bechtel
simply as a speculation invested $2,000, expecting to get
back one-half the net profits of the voyage if the vessel

' was successful. If she was not successful or was lost h(.'
lost his money. I say that that could not, strictly speak-
ing, be termed engaging in the sealing business. Let
me put an example. Supjjose one buys a hundred or a
thousand siiares in a mining company, of which there are

20^0 many floating at the present time for mining in the
Klondyke. Would the fact that you had done so justify
any person in saying that you were in the mining bus!
ness when your real business was that of a doctor, a lawyer
or a merchant. I say No, nor does the admission of Munsie
justify the United States counsel in saying Bechtel was in
the sealing business durinp' >Jie years in question.

At the time the evider.\ I am about to r ad was given,
the point that was before the minds of 11 o witness and
counsel was as to whether Bechtel had an interest in the

30 bottom of ve.«sels:

"Q. Where do yoM reside, Mr. Bechtel? A. Victoria.

"Q. How long have you resided in Victoria? A. About 23 years.

" Q. I believe you are married and settled down here? A. Yes.

" Q. And have a family here? A. Yes.

"Q. And this has been your home for the last 23 years? A. Yes.

" Q. What business are you in now? A. In the sealing business.

" Q. How long have you been engaged in the sealing business —
" about how long? A. I can't say exactly as to a mouth; over three
"years.

"Q About three years, you mean? A. About three years— longer.

" Q. What was your business before that? A. Hotel business.

" Q. You kejjt an hotel hero? Whot was the name of the hotel? A.
'I have kept diflferent hotels.

"Q. You were a hotel keeper in Victoria for how many years? A.
' for about 18 years.

*' Q. Prior to 1880 had you anything to do with the sealing business?
' A. No, sir.

" Q. Had you anything to do with the shipping? A. No, sir.

" Q. Did you know anything about ships up to tL.;t time? A. No,
' sir.

"Q. Had you owned any ship before then? A. No, sir.

"Q. Had you any share or interest in any ships of nuy kind up to
' that time?" A. Not any.

"Q. And, in fact, had you in 188t) any interest in any ship? A.
" Not any.

"Q. Or in 1887? A. No, sir.

"Q. OrinlbaO? A. No, sir.

"Q. And I believe I might also :;ay 1890? A. No, sir; not in 1890.

"Q. Now, in the year 1885 you had a transaction with Mr. Munsie?
" A. Yes, sir.

" Q. He borrowed some money from you? A. Yes, sir."

" Q. You did not enter the sealing business until 1890? A. I think
" it was in 1890 I bought a vessel in San Francisco.
(3(3 "Q. You had no interest in the sealing business before? A. No,
" sir.

" Q. Did you enter the sealing business in 1890 and enter the owner-
" ship of sealing vessels? A. I would not be positive whether it was in
" 1990 or 1891, but I bought the 'City of San Diego 'in San Francisco;
"in 1890 and 1891.

h:- .-!«*•

1107

(Mr. Peters' Argument in Reply.)

He had been examined as to tiie owr.ership of vessels,
and when Mr. Dickinson put the question he answered,
showinf? clearly that the witness was not speaking of any
little venture, but the question was directed, and his
answer was directed as to whether or not he had any
ownership in vessels.
There is another suggestion that my learned friend

ID makes, and it is this. He says that at a certain stage in
the course of the enquiry at Victoria, Munsie became re-
formed. That he had dworn falsely with regard to the
" Carolena," but afterwards had found it was a good
thing to reform, and therefore when he came to deal with
the " Pathfinder," instead of telHng the story as he had
in the case of the " Carolena," and swearing that Bechtel
had no interest in the vessel or venture, he altered
his statement, and admitted that Bechtel had an in-
terest in the venture. My learned friend in his written

20 brief accepts with thanks our ad mission that Bechtel had an
interest in the venture, and argues further that he really had
a interest in the vessel also. The statement that he became
reformed does not amount to much in itself, but tlie sug-
gestion that goes with it is of a serious nature. He says
that Munsie went into the "Carolena" case believing that
it would ruin his case if he admitted that either the ship
was owned by or that Bechtel had any interest in the
cargo or the venture, but that he subsequently found out
that the counsel for Great Britain contended that it did

30 not make any difference if Bechtel owned a share in the
venture. And so they say Munsie concluded to admit
that in the " Pathfinder" venture Bechtel did have an in-
interest. In other words, they say he ought to have ad-
mitted the same thing in the case of the " Carolena," and
that he did not admit it because he did not know what the
law was, but when he came to the case of the " Path-
finder " he had been better informed, and, therefoi'e, made
this statement. Now, that contention assumes two
things. In the first i)lace, that Munsie did not know

40 what the British counsel were contending for before the
"Carolena" case was tried. Is that correct? A very
casual examination of the Record will show that it is not
correct. The pleadings in the case, wliich were drawn
long before tiie case of the " Carolena " had been tried,
and which, of course, were drawn with Munsie as in-
structor, and which Munsie actually saw, contained the
following paragraphs:

[Mr Peters here read paragraph 2 of the United States
answei- and paragraph 4 of the British reply in the " Caro-
5°lena" case (see pp. 3 and 4, Appendix A)|.

Now these as before stated, were well known by Munsie
before he went on the stand in the " Carolena" case, and
the same pleas in exactly the same form are to be found
in the "Pathfinder" case. Those pleas were drawn up
and delivered early in the proceedings, so the very ground-
work and basis and foundation of my friend's sugges-
tion falls. It could not be contended for a moment that
we did not have our instructions in the "Carolena" and
60 "Pathfinder " long before what is called the reformation
took place. I know my learned friends could not have
thought about it in that way, because it is not only a
charge against the witness, but it is also a charge against
the counsel for Great Britain.

Mr. Warren also alleges that a contradiction exists be-

11 OH

(Mr. Peters' Argument in Rt.'ply.)

tween the witness Munsie and the witness Mun^er in re-
spect to the payment of *4(> wa}i;cs which Munsie alleged
ho paid Muiiger and which Munger stated ho was not
paid. Tiiis is Munsio's evidence with regard to that at
page 109, line 2»i, of the Record:

" Q. I have James Mun^^er down bere as having been paiil 940? A.
" There is a balance due him of the difference between 840 and 877. I
lO " will say there is an apimrent balance due them, yet there is not. I
" will explain that. When they came home I told him I was not re-
" sponsible for their wap;es after the time of the seizure. They said
" they were destitute and that if I paid them up, either in full or in
" part, they would give me an assignment of their wages. I madethe
" best terms I could with each of them and these are the amounts I
" paid them, and I took an assignment of their wages.

" Q. So far as this claim is concerned, you stand in their shoes? A.
" Exactly.

" Q. You claimed you were not liable to pav them after the seizure''
"A. Yes.

" Q. Have you got these assignments; they were in writing? A.
20 " They were in writing.

" Q. Have you got them? A. I have not.

" Q. Where are they? A. It appears they went to Ottawa with
" some other papers, and from there to Washington during the time
" Captain Warren was there, and these vouchers that are duplicates
" or some of them also went to Ottawa and wei-e never returned.
"That is one reason, I presume, that I had to get some duplicate
" vouchers. The vouchers all went to Ottawa, and I believe that when
" Captain Warren was at Washington he had them there also.

That evidence shows that there was a dispute between
Munsie and Mnnger as to the wjiges; tliat Munsie paid

3ohini $40; that Mnnger claimed ^77; and that Munsie
took an asnignnient for the wages Mnnger never con-
tradicts that and never states that tliere was not an assign-
ment taken I admit that Mnnger sa5's he was not paid
his wages, hut Mnnger was depending altogether on his
memory, whereas Munsie had made his entries alxut it
severui years hcfoie, and took an assignment, and made
a note of that assignment. Munsie also had the voucheis
for it as far hack ns 1S,S7, ;nid it might he quite jKissihle
that Mnnger was swearing as to the *30 in dispute.

40 Mr. Lauf-ing: He says he was not paid one cent.

Mr. Peters: Munsie swears positively that Mnnger
made the aFsignnient of his wages to Munsie, and this is
not denied. We are not claiming to recover l)ack the
wages, and so far it is immaterial. I liave gone into the
evidence of Munsie and FJechtel at some lengtli, for the
reason that all tlirough the United States brief these two
witnesses are lield nj) as men ntteily unworthy of belief.
There are many suggestions that these men were guilty
of fraud, and 1 deemed it my duty to take up. one by one,

50 the cliarges made against them by the United State.'t
counsel. an<i to show that they were really without suf-
ficient foundation.

Let me say, your Honors, in this connection, that on
the part of onr learned friends the counsel for the United
States there has been altogether too much tendency to
abuse witnesses and to make rash statements concerning
them. Not only does this apply to Mansie and Pechtel,
but it ai)plies to some other witnesses called on behalf of
Great Britain, who are men of the greatest respectability

6oand truth. Take, for instance, what has been said of the
witness Lubbe, the witness Charles Spring, witness Cap-
tain Paxton, witness J D. Warren and the witness Owen
Thomas. I say that not (mly have attacks been made
upon some of these witnesses l)y some of the American
Counsel, but that these attacks have been made in a rash

1 10ft

IO'<

(Mr. Peters' Argument in Reply.)

and reckless way, and without any evidence on the record
to sustain them. Mr. Warren, junior counsel for the
United States, in tlie course oT iiis argument, said:

"I refer to the Record, 2002; we have it on this Kecoril, if your
" Honors ])leaHo. that ho reliable a ){outlemaii as Theodore Liibbo
" owued an interest in the 'Mary Ellen' and ' I-'avoinite, ' and 'On-
" ward,' when he was a citizen of' the United States of America, ond
that these vessels were registered in the name of so estimable a gen-
tleman as William Spring, who necessarily made oath that he was
" the sole owner of the bottom of the shij). 'We have it on this Record
" that Patrick Hiekev was a citizen of the United States, and that he
" owned half of the bottom of the ' Oarolona,' and that she was regis-
" tored in the name of Donald Urquhart, a British subject, who
" necessarily swore that he was the sole owner. We have it on this
" Record that Alexander McLean, a citizen of the United States, was
" the owner of half the bottom of the ' Onward ' and ' Favourite,' and
" Oharlea Spring, a British subject, made oath bef<tro the Paris
" Tribunal that he was the sole owner." *

Here we have u statement ma'le boldly and recklessly

2° by my learned friend Mr. Warren, that these witnesses

put themselves on the registry as owners of these ships,

and swore the oath which was ni'cessary in order to l)e-

come the owner of a British ship.

Now the facts are as follows, as shown by the registry
of these very ships, that not one of these men mentioned
by counsel for the United States made the oath, and were
not required to make the oath, for the reason that while
the American citizenship interest remained the siiips were
not registered in the names of one of these gentlemen.
30 Take for instance the "Onward," where the charge is
made that Alexander McLean and Chailes Spring were
the joint owners, and that Charles Spring nuist necessarily
have sworn so and so. Now the facts are that Charles
Spring and Alexandei' McLenn became owners in 1885 and
they dissolved tlieir partnership in tiie fall of 188(». The
evi lence on the record will show that n\) to the year 1887,
this vessel stood in the name of William Spring, and later
on in the name of the executors of William Spring.
Chailes Spring was not on the registry until after Alex-
4oander McLean parted company with him, and Charles
Spring did not have to make, and never did make any affi-
davit as to ownership in that ship.

Mr. Warren: — Well, if you wish I can read you the
affidavit right here.

Mr. Peters:— My learned friend is referring to another
matter, and I do not wish to be interruptecl. He is re-
ferring to the affidavit put in evidence in the case, and I
am referiing to the registration of the ship. My learned
friend says that these men were the owners of certain
;o ships, and that Chas. Spring must necessarily have sworn
to the oath required by the Merchant Shipping Act; but I
am showing to your Honors that he did riot so swear. Now
take the charge against .Mr. Lubbe, who was a partner of
William Spring & Company, and we tind that Lubbe was
never on the registry of the ship at all. and never was
required to make or maile any atlidavit as alleged.

Mr. Wairen: — Was she never registered in the name of
William Spring when Lubbe was his partnei <

Mr. Peters: — I am answering your aigument, and your
Goiillt^Kfition is that Lubbe himself made tliis atlidavit.

Mr. Warren: -1 never did.

Mr. Peters:--Yes, you did; with reference to Charles
SjjHng. ■

* Mr. Wnrren's Atgiimetit, p. 7B6.

lUO

(Mr. Peters' Aigiimeut in Reply.)

Mr. Warren: — No, VV^illiani Spring.

Mr. Pet ns:- The ship was it-gisUued in tlie name of
Williatn Spring and Peter Franiiis, as far back as 1878, and
it stood in these names until IKSi). There is not a tittle of
evidence to |)r<>ve that in 1878 Jiiibhe had anythii., ; to do
whatever with the jtartnershii of William Spring <Sc
CJonipany.
lo Mr. Dickinson: - Did the changes in the title appear on
the registry?

Mr. Peters: Certainly.

Mr. Dickinson: — Don't you have to have an affidavit
every time yon change?

Mr. Peters: — I am reading the registry and there is no
change in the registry.

On the I'Jth June, 1878, this vessel was registered in
the name of William Spring and Peter Francis, who were
in partnersiiip under the firm name of William Spring &
2o Company.

Mr. Waiien: --Who wafc the other partner of William
Spring & Company?

Mr. looters:— 1 wish my learned friend would not interrupt
(juiteso nmch. If you choose to I will sit down and allow you
to make any remarks you like,and I shall then go on witli ray
argument as if you had not spoken. I am pointing out that
in 1878 the vessel was registereil in the name of William
Spring & Company. There is evidence that Lubbe was in
the firm .at one time, but there is no suggestion and no evi-
3odence that he was in the firm in 1878. Tlie affidavit on
which this ship was registered was made in 1878, and
therefore it is a reckless charge for my learned friend to
say that William Spring or Lubbe or anybody else did
make an aflidavit which was not true in 1878. I again
refer your Honors to some other remarks by the learned
junior counsel to show that our witnesses were dealt with
unfairly, and that there was a slur cast upon their evi-
dence without any reason wliatever. Mr. Warren at
another part of his argument says:

4*-' " Xhe teHtimony of Captain Paxton furnishes the sole basis for this
" claim against the United States, and I ask your consideration of the
" testimony of Captain Paxton."

He was speaking of the claim of the
Mr. Wavren:--! was speaking of

"Wanderer."
Mr. Peters: — Very well, that is immaterial

friend continues in his statement:

' Black Diamond."
the claim of the

My learned

" I call your Honors' attention to this factagain, that Captain Paxton
50 " took the witness stand in Victoria, and testified in regard to these oc-
" currences on the western coast of Vancouver Island, and then left the
' ' City of Victoria without saying a word about this charter party, and
" it was not until such a time Lad elapsed that page 1833 of this
" Record was printed that the United States was allowed after many
" difficult attempts, to examine a copy of this charter party. Is the
" testimony of that man, who we believe, advances a claim before
" this High Commission that is entirely flctitious, to be taken as a
" basis for awarding damages by your Honors."*

The inference which my learned friend wishes your
Honors to draw from that statement is that Captain Pax-
'^°ton, by malice, forethought and intention omitted to tell
your Honors that the vessel was chartered to go to
Shumagin Island, and that Captain Paxton did this for
tlie pui'pose of making his claim larger than it ought to

• Mr. Warren's Arguinont, |(. 70fi.

•Ill

nil

(Mr. Peters' Argument in Koply.)

be. Now, I really fail to aeo whore (?iiptain Paxton did
anything very terrible there. Ah a matter of fact Mr.
Paxton ga\.^ his evidence before this Court, and he gave
it fairly— he gave it well— and there was no sujrgestion
that he was telling anything that was incorreet. Ho was
not asked about this charter party; it was a matter that
he perliaps consideied immaterial. It never was brought

loto his attention in any way whatever, and yet you are
asked on the statement of counsel and without any evi-
dence to sustain it, that this witness was knowingly
guilty of sitp2)ressio rerL which is just as bad as if he
swore to something false. I say that tlicn'O is no evidence
at all on the Record to show that Captain Paxton did not
tell the truth, and there is no reason why he should be
charged with suppressing the truth.

Again, when the learned counsel for the United States,
Mr. Warren, was making some remarks on the evidence

2oof Jaujes D. Warren, in connection with what they call
the Frank claims, he spoke as follows:

"Idonotloae sight of the fact that Warron Hworo that Giitman
" owned the Hchoouer, nor do I cnre what he Bwore to in that re^^ard,
" for James D. Warren know that if he swore that Alexander Frank
" owned one-half of the bottom of that Hhip, that Frank's claim would
" go down."

I say that that is another reckless statement made by
counsel. Upon what evidence does he make that state-
ment? Is it not a fact that the United States themselves

^ did not raise the (juestion of the United States ownei-ahip
until 18!)2, and that the question never was presented to
them until 18S!>. Yet in view of that, you are asked Nj
believe tiiat a statement made by J. L). Warren in 1887,
before the question even arose, was made for the purpose
of helping out the Frank claims, and that he knew that
if he had made any other statement Franks' claims would
go down. When Captain Warren n)ade that statement,
he could not have known that the question of American
citizenship would be raised, and there was no object in

'^ his doing anything but telling the truth. I think we
have the right to complain of remarks of that kind with
regard to our witnesses by the counsel for the United
States. My learned friend, Mr. Warren, also made some
attacks on the credibility of Owen Thomas.

I venture to say that Owen Thomas impressed your
Honors as a witness who told the truth, and told it fear-
lessly and honestly. On the first occasion he appeared in
Court, Owen Thomas was just out of an hospital, and far
more fit to be in his bed than on the witness stand. On

'° the second occasion, he gave his evidence verv '.\A\y and
fairly, and ho turned out to be a witness w ;> r jt only
wanted to tell the truth, but who had a clear recollection
of what had occurred, and whom it was very hard to
puzzle. It seems to me, your Honors, that when any of
our witnesses gave evidence which was strongly against
the case of the United States counsel, their line of conduct
was to :ibuse those witnesses. Now, with reference to
Owen Thomas, Mr. Warren said in his argument:

60 "I desire to call your Honors' attention to who this Owen Thomas
" ia and what we know of him. Owen Thomas is the man whom
" William Munsie brought, when he was an invalid, from the hos-
" pital to the court room, to give testimony concerning the trip of the
" ' Carolena ' on the coast of Vancouver Island in the spring of the
" year 1886. What did William Munsie prodiice this witness for?
" He actually produced him himself, because the testimony shows that

III-.

M 'i

thu

for

2<)

(Mr. Pc'tprs' Argument in Reply.)

" Mr. MuuRitt wi'iit to tho hoHpital utid brouftht TIkiiiiuh from tlioro t
" thi) cimrt room, 'flic witm-HH wiiw proililcnl aiul tOHtitlcil thiit th
" ' (/'iiroli'iia ' tlitl no truilinK on the coiiHt in the H|)rinf( of IHNti, iiuil fo
" tlui purjioMo of cHtiililiHliiiiK tlmt tlioHC Hnpiilii'H put on hoiird tli
" ' Citroli>nii ' were moIcIv fur ii voyiiK" to Ki'lirniK Hni. " *

A}>:<iiii:

" Uw<!n TlioniUH ix ithHolutcIv contriKJicti'd on the niont mittcrinl mat-
ti'r, a» to vvlit'tlinr or not it K''«iit i|Uiintitv of provisionN wore put on
the ' (!aroUnia ' for who in lti-hrinf{ Hva, or for uho on tlm woHt coaBt
" of Vuuconvor Islund in trading or in Honhnjif- " t

Ami amain Mr. VVarien said:

" This captain who in oonviclt'd of k'^''"K fulHu tt'Mtiniony in an-
" other ciiHc putu language on tln> Itei'ord licri- wliicii is not an con-
" oluHivr nn a reliable witnosH could liavc muili' it, Init it Ih concluHivo
" onouKh for our pur|)om'H." |

My Icaiiit'd tricnd, .Mi. W'aricn, (|iH)ti's sonHMjf the evi-
denci' (it Captain Uwcn Thomas, and he (juotes it to sup-
port tiic case of thu United States. Then, again, Mr.
Warren contiuned to make tiiither reckless charf^es. He
.said:

" Tl;is captain, wlio is convicted of swearing falnoly once in a
" while to lu'lp out this nnui Frank, niakcH some reference to Morris

" MOHH." i.

Now, yoMi' Honors, my learned friend tries to make out
tiiat Owen Thomas gave his evidence having some fraud-
ulent pnrpo.-e in view. There is nothing whatever on the

3o]?ecoi(l to show that. 1 say that such cliarges are reckless
and unfounded. 1 say that the .statement n - by my
learned triiiid Mr. W'arien in regard to onr >ses are

reckless. 1 cainiof hetter prove this than I' 'asting

his opinion of Charles Sprnig's t>vidence with iMi'. Dickin-
son's opniimi of the evidence of the same witne.ss and then
leave your Honors to judge hetween them. At page 898
of the Kecoid you will tind that when C'has. Spring's tiist
case, namely, the "()nward'' was heing conducied, my
I'^arued friend .Mr. Dickinson made these remarks about

40 the witness.

" It is ii<>rliaps due to tlie United States to say that the counsel of
'• that (iovernnicut are vcrv greatly iniiircsscd with the good faith and
'• fairness of the claimant in ])reKeuting his claim. Wo shall do little
" more than our duty in i>uttiug in here some inatterH that may aid
" the testimony given Ity this claimant in enabling the Commi.sHionerB
" to arrive at a proper assessment, that is so far as the value of tho
" ship and |)roper\y seized arc concerned. * * * l may aj,j to
" what 1 have stated that it is a matter of regret to tlu^ counsel of the
" United States that this claim cannot be more promptly dispohsd of,
" and the owners, wi<oevcr they arc, as the Commissioners tind, com-
-Q " pensated more pron.ptly than is ))0!.siblo under the cii'oumstances. "

Heie we have Mr. Dickinson standing up, and properly
standing up. and 1 was glad tt; see him do so,
and stating that the witness Charles Spring had made
a very favorable impression on his mind. Mr.
Dickinson told your Honors that he was impressed with
the fair manner in which that claim was ])re.sented and
uiged by Mi'. S|)ring. and yet you have Mr. Dickinson's
associate counsel conung here and saying that Charles
Spring is a man who ought not to be helieved because he
60 made a false oath.

* Mr. Wanin's Aij^iiiir'UI, |i. 76U.
•f .Mr. Wmicn'H Argiiiiii'nI. p. 77o.
t Mr. \\'n,'i('nV ArKUiiR'nt, p. 781.
^ Mr. Wiii-rcirrt .\i'};iiiiiciit, |i. 78('i.

II 1»

(Mr. IV'ters' Argument in Reply.)

Mr. Dickinson:— Charles Spring very frankly tacknowl-
edged that ho nitide this false statement.

Mr. Peters: -This njaj; bo a fitting occasion to apply the
remark vviiich Mr. Dickinson applied to tho British coun-
ael the other day. I might remind him that "a house
divided against itself cannot stand, hut must fall." We
have the senior counsel for the United Htates saying one
lo thing and his associate counsel saying another.

Mr. Warren:—! read Spring's false atlidavit out of
Volume 5, )>ago 60.

Mr. Dickmson:— Mr. Spring frankly explained that, and
when on the stand took those statements hack. That is
the reason I referred to liim in such terms.

Mr. Peters:— I will refer your Honors to what Spring did
Bay with regard to that. If a man makes a statement
here or there that does not quite agree with another state-
ment made later on, it is not right that he should he
20 charged by counsel with perjury. Ono must take all the
facts and circumstances into consideration, and one must
try to find out whether the wrong statement was made
intentionally or not. If a man is to be found fault with
because his statements at one time appear inconsistent
with his statements at another time, then I am afraid a

f|reat many of us would be in trouble in the course of our
ives.
At one o'clock the Commissioners took recess.

At half past two o'clock the Commissionera resumed
their seats.

Mr. Peters: — When the Court adjourned I was about to
refer to a statement made with reg.'rd to Charles Spring.
It is contended by my friend, Mr. Warren, that a contra-
diction exists, or, perhaps, oven more than that, that Mr.
Spring made a misstatement in an affidavit which was
made by him on the 18th day of October, 1886, which will

40 be found in Volume 5 of the American Heprint, page 60.
The affidavit in question was an affidavit which mcluded
both the claini of the schooner "Onward" and the claim
of tho schooner " Favourite." Paragraph 6 of that affida-
vit is the one in question, and that paragraph reads as
follows: "That I liave also paid and incurred liabilities con-
" nected with the arrest of the said vessel and in defense
" of the master and crew for illegal and other expenses
" $1,000; and I also claim ^fi,000 damages because the
" officer in command of the United States schooner

50" 'Corwin' as she passed the 'Favourite' ordered her
" to cease sealing, which she did, and thereby lost her
" season."

My learned friend assumes that that is meant to be a
statement that, immediately after the "Favourite" was
warned, she sto|>ped sealing, and that she never took a
single seal after that date, '"hat I submit to your Honors
is rather a strained construction. In addition to that it
must be remembered tliat Mr. Spring, when making this
affidavit, was simply making the statement second hand.

60 He was not himself on board the "Favourite ;" whatever
information he had nuist have been obtained from the
captain of the "Favourite" and Alexander McLean; and
you must remember that in the books which were pro-
duced by Alexander McLean there is no statement to
show that any seals were caught after the vessel was

.114

(Mr. Peters' Argument in Reply.)

warned. Let nie then refer you to wliat Mr. Spring said
with regard to that affidavit when he was cross-examined
about it hy the counsel for the United States, at page
1309 of the Recoi-d :

" Q. He told vou that he bad taken seals right np to the day he had
" left Behring Sea, did he not? "

IQ The "he" referred to is Captain Alexander McLean.

" A. I don't think so.

" Q. Will you swear that he did not? A. Yes, I will swear that he
" didn't. Yes, 1 feel very positive on that point that he didn't tell me
' ' that he didn't toke seals up to the time of leaving Behring Sea — up to
" the 19th; in fact, so far as dates are concerned, I don't think he said
" anything at all about it.

" Q. Then you do not want to have the Commission understand
" that you are putting Captain McLean in a bad light about that? A.
" No, I wouldn't wish that at all; but^I am speaking as I feel at pres-
" ent.

" Q. He gave vou the entire amount of his catch, as has been testi-
20 " fled to here, did he not? A. Yes, I think so.

" Q. And all you say now is that you do not know that Captain Mc-
" Lean told you that he took seals on the 19th day of August, or any
" other particular day? A. No.

" Q. But he did tell you he took seals after he was warned? A.
" Yes.

" Q. And you know that, do you not? A. Yes.

' ' Q. And Captain Alexander McLean has testified here as to his ex-
" act catch in Behring Sea in the year 1886 on the "Favourite," has he
•' not? A. I think so."

I have siinph' the remark to make that that is but an

3° incident. There is nothing to show that Mr. Spring made
that statement with an improper motive; it is simply a
general statement put in the affidavit. 1 would make this
remark with regard to an affidavit of this kind - and, as a
matter of fact, it applies to every affidavit —the affidavit
is drawn by one person and sworn to by another; that
tlie remark, made time and time again by your Honors
at Victoria, that evidence on affidavits is very seldom
satisfactory, ap|)lics to this case. The question was
perhaps never brought to his mind whetiier or not a few

40 seals, or a number of seals had been caught after the
waining; but when, in cross examination on the jwint,
his attention is clearly brought to that i)articular point,
Mr. Spring has no hesitation whatever in explainingexactly
the position lie took, and shows that Mr. Dickinson was per-
fectly justified in the statement he made at the close of
tlie" Onward " case, that Mi-. Spring was a man who brought
his claim before the Commission fairly and honestly, and
he only wislied he could take some steps to hasten a
prompt settlement of the case. So I think, so far as

?o Spring is concerned. I have sufficiently answered all
charges which have been made by my friend. Mr. War-
ren.

The Commissioner on the part of the United States:—
I do not want to bother you, but there is one thing I in-
tended ti) have asked before and I will do so now; at page
107 of the Brilish aigunient you give credit for 187 seals
taken between the Kith and I'Jth, why should j'ou not give
cre(iit for those taken on the 2d and 3d of August? She
was warned on the 1st.

^O Mr. Beitpie:— The morning of the 2d.

Mr. Warren:— She was warned at iJ o'clock.
The Commissioner on the i)art of the United States: —
On the left hand page you will find, at about line 35,
under date of August 1st, the log shows " mi(hiight an
American steamer spoke us."

^"^^ItTi

i..n»

1115

(Mr. Peters' Argument in Reply.)

Mr. Beiqne: — We claim only from August 4:th.
The Commissioner on the part of the United States: —
You give credit from August 4th.

Mr. Peters: — That is all we claimed for. We only claim
from August 4th.

The Commissioner on the part of the United States: —
I see your point now. Whether your claim is right is an-

lo other thing.

Mr. Peters: — To the present time your Honors will see
I have taken, in the first place, the evidence with regard
to the question as to whether or not Bechtel, Frank and
McLean were, or we "e not. United States citizens, and
then I began to deai with the question, if they were
United States citizens, what interest, if any, had they in
the particular vessels in dispute; and I have to the pres-
ent time dwelt on that portion of the case relating to
Becl'tel. The remarks I have made with regard to the

20 attacks on other witnesses only came up incidentally —
not exactly relating to that point— hut, in connection with
the charges made against Bechtel, I wish to go back to
the original line on which I started, and that was, to
examine the exidence and see whether, as a matter of fact,
American citizens had, or had not, the interest in the ves-
sels the United States alleged they had. I have done with
Bechtel, and I now come to the case of Frank. Our al-
legation is, on the facts, that, with regard to the " Black
Dir.mond " in 1880, Frank had no interest whatever

30 in the ve -sel; nor in her cargo or her ven-
ture. The interest Frank is alleged to have
in that vessel arises from his partnership in the firm of
Gutman and Frank, and our allegation is that, in 1886,
neither Mr. Gutman nor Mr. Frank had any interest
whatever in the "Black Diamond." That is our allega-
tion, and I shall proceed to prove that later on. In the
year 1889 only two vessels were seized, the "Black
Diamond "and the "Lily." We allege that Frank had
no interest whatever in either of those vessels, or in their

40 cargoes, or in their ventures, or in either of them, our
allegation being that all the interest that the firm of Gut-
man & Frank, or Gutman, had was parted with to
Morris Moss— I think on the 8th day of November, 1888
— and that in 1889 B^ank had nothing to do with the ship
at all.

Mr. Warren:— That date is very important, and it had
better be stated coi'rectlv. It is t!>i 10th.

Mr. Peters:— The Sth is the date of the bill of sale, I
think.

50 Mr. Warren: - The 10th, and : Imi. is the evidence in the
Record.

Mr. Peters:- 1 am stating my general position that, in
1889, Frank had no interest whatever in the ships. That
leaves only one other year to be accoiMitod for and that is
1887; and, so fiir as that year is concerned, the ship inter-
fered with was the " AUhmI Adams." So far as sbw is
concerned we allege that in that yeai' Frank was inter-
ested in the venture as one of the firm of Gutman &
Frank, but that he was not interested in, and did not own

6(1 any part of the bottom of the ship. These are the posi-
tions we take on the que.^^tion of fact. I will refei' your
Honors, first, to the (jnestion as to whether in 1889 Frank
had, or hail not, any interest in tlu'se vessels, that is, in
the "Blr.ck Diamond" and the "Lily." This question
turns on the point whether or not o" the 10th of

Al .11

1116

(Mr. Peters' Argument in Reply.)

November, 1888, a sale of the vesssels was made to
Morris Moss. The facts are that these two ships
had been held, as it was alleged, as part of the estate
of Gutnian & Frank. We do not admit that fact al-
together, but it was so alleged. But two ships stood in
the name of Jacob Gutman on the register, after his death.
Frank found himself with certain assets belonging to the

10 firm and with certain liabilities to pay, the liabilities ex-
ceeding the assets, or very nearly equal. Frank desired
to close up the estate and get rid of his own liability for
the debts; and, in order to do tliis, he made an arrange-
ment with the executor of Jacob Gutman, whereby he
agreed to take the whole estate, becoming himself respon-
sible for all the debts. This was the first step; it was
necessary that an arrangement of this kind should receive
the sanction of the court, which sanction would certainly
be granted unless some good cause should be shown against

20 it. Mr. Warren contends, and this is the first point, that
on the 9th of November, 1888, Moritz Gutman, executor
of Jacob Gutman, by a bill of sale, transferred the title of
the two ships, the '" Lily " and the " Black Diamond," to
Alexander Frank; and that the transfer from the executor
of Gutman to Mor.is Moss, being made subsequently to
Frank's bill of sale, was invalid. The answer is that this
assignment to Frank only operated as an agreement to
transfer, oul is perfectly consistent with Frank's s^tory,
which is, that he bought the whole of the assets of the

30 estate and then began to dispose of them as quickly as he
could. Your Honors will see what I mean, when I say
that that agreement between the executor of Jacob Gut-
man's estate and Frank only operated as an agreement to
transfer; that, so far as the transfer of a ship was con-
cerned, it is quite a]»parent that no transfer could be of
any use. to place the ship really at the disposal of tiie
transferee, so that he could deal with it as he liked, unless
it was in conformity with the statue lelating to Merchant
!Shi|)ping, so that it could be legistered as a bill of sale of

40 the ship. Anytliing informal could not be registered; a
transfer of shi|)s not ii' the form required by the Merchant
Shipping Act simply amounted to an agreement to trans-
fer.

Mr. Dickinson: — Are you going to show the document
where Frank agreed to i)ay all the debts?
Mr. Peters: —He swore to it.
Mr. Lansing:— There is no agreement.
Mr. Warren:— Let us see the testimony or the affidavit.
Mr. Petei's:— 1 refer to the testimony of Frank, which

50 1 will read, if there is any doubt about it. It is in the
evidence of Frank; 1 do not say the:e is any affidavit
about it. He was liable for the debia, and what he wanted
to do was to get the assets in order to clear himself of
liability by virtue of being a partner in that firm. I will
come to that in a moment. This is shortly Frank's story:
He says; " I was a paitner in this firm; 1 was, therefore,
liable for the debts, that there were certain assets; the
business had gotten into rather strained circumstances; I
wanted to get rid of that liability, so I bougiit all the

60 assets, became liable lor all the debts, and wanted to wind
the thing up." He wanted to go to San Francisco and go
into other business there and get out of business in Vic-
toria altogether. Now, what does he do first? Here is
tiie evidence my learned friend asks for on the point of

1117

M I

He had uo liabilities; noue
partnerHbip interest? A. So
A. So far as I know.

(Mr. Peters' Argument in Keply.)

the debts, Hecoid, page 10!>7, line ;U, cioss-exainination
of Mr Frank:

"Q. Ami j'ou claim now that vou did not own the 'Lily 'or the
" ' Blai'k Diamond,' or any intei-cst in them, during Jaeol) Gutinan'a
" lifetime, but after his death you set uj) a claim for them? A. The
" estate was insolvent 1 knew at the time, and as I was financially re-
" sponsible for the debts of the (Hincern, to protect my interest I

claimed an interest in them.

" Q. And did you pay all the liabilities of the estate of Jacob Gwt-
" man? A. I paid all the liabilities of the tirm of (jutman it Frank.

" Q. Tiiat was all the estate that Outman had — that interest? And
" all his liabilities were settled too? A.
" came in that I recollect about.

" {). All the estate consisted of this
" far as I know.

" Q. And you paid all the liabilities?

" Q. When did you pay them, prior to November, 1888, or have you
" been payiuff them since? A. I do not know when I paid them. The
" lai-Rcst amount was to the tirm of S. H. Frank & Company, a firm of
" which 1 am a member, and 1 do not know when I paid them. I took
20 " mv own time. l)eeause I was in no hurry to pay them. I could not
" tell wlien 1 did i>ay thom, but I settled with everybody I know.
" There is no claim against the firm of Gutman & Frank, of which I
'' was a mi'Uiber. "

Mr. Lansing: —Where is the agreement, Mr. I'etets, to
pay the liabilities^

Mr. Peters: It is in tiie petition 1 think; we will read it.
Now. what I was getting at is this: Frank's statement is,
that he took over the whole of the estate and he had to
pay all the liabilities, and that he did that, not with tlie

3°intention of going on with the business, but he intended
to get rid of the business altogether. He says that be-
foi'e it was a'tnally closed, before the whole thint;- was
settled up, that he hail made ariangiinents with Morris
Mess to sell the vessels to him. The vessfis stood as
registered in thr name of .lainb (intman; thei'efore in
order to transfer a legal estai in those vessels, ;i l)ill of
sale was necessary, and only ■' w ,is necessary; that was
a bill of sale from the execiilni of .[acob (futman to
Morris Moss.

4° The point we are on now is not wliethci Frank before
1888 had an interest in the vessel, but whether after that
year he had any interest. Mis stoi\- is that, ui order to
close ui) the estate, he made a bargain to take over all the
assets and that his next step wa-^ to dispose of t lie assets
as quickly as he could. In order to dispose of those vessels
it was not possible to take a Inll of sale first to Frank and
then from Frank to Moiris Moss; the only proper mode
was to take a bill of sale direct from the executor of Jacob
Gutman to Morris Moss, and that was done, and that

5^ passed the legal title. Now my learned friend wants the
eviileiice that tlie consideration for a general assignment
was the payment of the liabilities. 1 refer your Honois
to Appendix B, page l'I4 of Kxhibits. which is the petition
of Moritz (intman, the executor of the estate of .Jacob
(lUtnian, asking loi' authority to carry out the;inange-
meut that he had made with Fraid<, and in paragraph 9
of that petition I find the following:

" That I have leceivcd an oft'er from .Vlcxaudcr Frank, the jiartner
" of tlie said J.icob (iutmau, deceased, in tlie said tirm of ' Outnuin &
" Frank.' for tlie purchase of the interest of the said .Jacob Gutman,
" ileoeosed, in the assets of tiie said iirm {excepting thcreo\it the said
" claim of *2(t,4:);i against the United States authorities) which was
" for claims arising prior to 188',t, thi> consideration otl'ered by the
" said i\lexauder Frank for such purchase being the assumption by
" the said Alexander Frank of all the liabilities of the said f^rm."

Ills

(Mr. Peters' Argument in Reply.)

I think that is satisfactory. 1 say that, on the face of
the transaction, on the face of Franit's evidence, it is a
perfectly reasonahle story. If we liad found Frank re-
maining in Victoria foi' years afterwards and going on
with the busine.^s of (lUtnian ct Frank there might be
some groiind for suspicion; hut when we find Frank wind-
ing up every particle of business that the firm of Gutman

IO& Frank had up to that time, winding up the business at
Victoria, and doing it during the year immediate!'- follow-
ing — we know a business cannot be wound up ai once —
winding up tlie dilferent trading stations that he had on
the west coast of Vancouver Island, is it. not a confirma-
tion of his story that he made tliis arrangement for the
purpose of winding up that estate and getting clear of the
liabilities^ The story on its face is reasonable. My learned
friend pi-oceeds further to raise a point of a very technical
nature, namely, that we have no evidence of the bill of sale

20 to Morris Moss, and that the record we produce— that is,
the register we produce — is not priiiid facie evidence that
such sale is valid. Well, my learned friend is in error in
that particular. The Merchant Shipping Act, under
which these acts are recorded, expressly provides that the
entries in the registry shall bnj>riiiia facie evidence; and
all through this case, if your Honors will remember,
whenever they wanted anything further, whenever they
wanted a bill of sale or anything of that kind, if we could
Hud it, we produced it. The act to which I will refer you,

30 the Merchant Shipping Act — I will give the section— Sec-
tion CVII., 1854, settles the point. You see there is a lit-
tle misapprehension here, perhaps, in the words. The
document which we produce here is not merely the regis-
ter that the ship carries when she is at sea, but it is a rec-
ord of all transactions concerning the ship which have
been made since she was first registered, and that is pro-
vided for by the Merchant Shipping Act, Section CVII.,
as follows:

" Every Register of or Doi'laration made iu purHuauce of the Second
' Part of this Act in respect of any British ship may be proved in any
' Court of Justice, or before any Person having by Lav or by Oon-
' sent of Parties Autliority to receive Evidence, either by the Produo-
' tion of the Original, or l>y an examined Copy thereof, or by a Copy
' thereof purjtorting to bo certified under the Hand of the Begistrar
' or other Person having the Charge of the Original; which certified
' Copies he is hereby recjuirod to furnish to any Person applying at a
' reasonable Tiiiic for the same, upon payment of One Shilling for
'each such certitied C!opy; and every such Register or Copy of a
' Register, and also every Certificate of Registry of any British Ship,
' l)urporting to be signed by the lU^gistrar or other proper Officer,
' shall be received in evidence in any Court of Justice or before any
' Person having by Law or by ('ouseut of Parties Authority to receive
" Evidence as priiiiu/ncie Proof of all the Matters contained or recited
" in such Register when the Register or such t!opy is produced, and
" of all the Matters contained iu or endorsed on such Certificate of
" Registry, and purporting to bo aiitheuticated by the Signature of a
" Registrar, when such certificate is produced."

Mr. Lansing: -Excuse me a moment; do you claim that
municipal laws of CJreat Rritain bind an intei-national
court as to priiuii f(tvie evidence*

The Conuuissioner on the part of tiie United States:— It

f)ois well settled so far as the rules of evidence are concerned.

We .'ire proceeding with regard to iiiles of evidence. Was

it (tointed out, Mr. Peters, at \'ict()ria that you relied on

this entry?

Mr. Peters:— Certainly, your Honor. We put this in,

1110

(Mr. Peters' Argument in Reply.)

and wlienever they wanted bills of sale, or anything of
the kind, we produced them if we had them.

The Conmiissioner on the part of the United States: —
Was it pointed out that you relied on this'<

Mr. Peters:— Most unquestionably so, your Honor.

The Commissioner on the i)i)rt of the United States:—
Were you requested to product the bill of sale? Did you
10 read this entry into the Record out there; especially call
attention to it'i

Mr. Peters: -No, I put the whole Record in.

The Comn)is8ioner on the part of the United States: —
But this particular entry you did not put in?

Mr. Peters: — No particular entries I think; but we put
them all in. As a matter of fact I have the bill of sale,
and can produce it if it is wanted. This question Mr.
Warren raises here is a technical question raised for the
first time.
20 The Commissioner on the i>art of the United States: —
What I want to know is, whether this was not the first
time he could raise it; whether he understood out there
that you intended to rely on this entry.

Mr. Peters: — We put it in the whole Record. If they
thought for a moment there was any want of proof of
that kind, they only had to ask for a document, and any
document we had we would produce; and we are willing
to produce it now.

The Commissioner on the part of the United States:—
30 Does that Merchant Shipping Act control the courts of
Canada on rules of evidence?

Mr. Peters:— Certainly, your Honor-. If the Commis-
sioners are desirious of looking at the bill of sale, we can
produce it.

The Commissioner on the pait of the United States: —
I have not the slightest curiosity about it. I want to
understand where the parties are, that is ail. The whole
Record is in evidence. The question we have to consider
is whether we can discredit Mr. Frank.
40 Mr. Peters: — Yes, and I venture to say in an enquiry of
this kind a technical objection of this kind should have
no weight whatever. Ijet us see what evidence there was
on the registry.

The Commissioner on the part of the United States: — I
remember he testified positively that he parted with that
interest.

Mr. Peters:— Absolutely, and his statement was that he
bought that business with the intention of selling it out
as quickly as possible.
50 Tne Commissioner on the part of the United States:—
His testimony was subject to some criticism because he
took rather a peculiar position with reference to the as-
sets. But he testified positively that he parted with these
vessels.

Mr. Peters: — The part that is subject to some criticism
is that part where he says that although he made an aflft-
davit that these vessels belonged to Frank and Gutman,
he said afterwards, as a matter of fact, that they did not
belong to B^-ank and Gutman, but to Gutman alone, but
f>o that he was in that position that he had to get the assets
to p.ay the debts of the firm, and so after the death he
claimed them. Now, we find by this Record, the follow-
ing entry: " Moritz Gutman, November 10th, 1888, at
10 o'clock A. M."— that is the date of the Registry of the
bill of sale, dated 10th of November, 1888- " to Morris

:l:i.'

iiao

(Mr. Peters' Argument in Reply.)

Moss of Victoria, merchant ''—and that, unfU r tlie terms
of the Merchants' Shipping Act, is prima fucic evidence of
the bill of sale mentioned.

Mr. Dickinson:— Did I understand your Honor to say,
as a ruling, that the registry was prima facie evidence?

The Commissioner on the part of the L'nited States: I
did not lule upon it at all; I merely said that we were

10 proceeding upon the rules of evidence, and, of course,
we had to he govei ned by the rules of evidence existing
in some country.

Mr. Dickinson:— VVe have presented authority that hy
the rules of common law tlie register is not evidence of
title; we presented many authorities, including the view
of Lord Stowell in support of our contention.

The Commissioner on the part of the United States:—
But they produce a statute here. The leason the matter
did not attract my attention at Victoria was because we

2ohad the positive evidence of Frank, in which he said that
he got theequitalde title. Tlien came the question whether
he parted with it, and he testified positively that he did
part witli it, so that the matter of registry did not attract
my attention.

Mr. Dickinson:— We tliink, on the other hand, that we
have shown by the Kecord that Frank never parted with it.
Ap regards the title, the bill of sale was in evidence ^how-
ing that the title went to him— confirmed bv the Probate
Court.

30 Mr. Peters:— My learned friend is in error when he says
that the title passed— confirmed by the Probate Court.
The document that was given assigned all the assets of
Frank, an<1 that was registered in one of the registry
offices apjdying to the registration of ordinary personal
property, and had no application whatevei' to the transfer
of the vei^stl, and could by no po.ssibility have been re-
corded in the shipping otrice, and had no more effect than
an agreement. If, for instance, aflei' that document had
been signed, Frank had been a British subject and wanted

40 to get himself pnt on the re)L;istry as owner of that ship,
and Mr. (hitman the executor had refused to execute a
bill of sale, he could not have recorded the original assign-
ment, and would have been obliged to have recourse to
some Court of Chancery to compel Gutman to execute a
proper document in puisuance of tin; first one.

Mr. Dickinson: -But you do not deny that you could
pass property in a ship without registration.

Mr. Peters: -According to your view, you could pass
ownership in a ship by worti of mouth.

50 Mr. Dickinson: -It would be too al)surd to contend that
vou could not pass property in a ship in either country
without registiation.

Mr. Peters:— You cnidd pass a right of action. You
could pass such ;in interest in a ship that would enable
you afterwards, by going into couit. to force the assignor
to give you a title that you (ould lecord. But you could
not pass a legal estate as contradistinguished from an
equitable estate and as against other people. For in-
stance, it is clear that although that assignment to Frank

60 was executed, if the executor, Moiitz (lutman, had one
or two or ten days afterwards exei uted a proper hill of
sale and recordeil it under the terms of the Merchants'
Shipping Act to some third peisoii, that third person
would have taken a c<>mplete and absolute title as against

In*"

1121

I'M

■|ii

■i

(Mr. Peters' Argument in Reply.)

Frank or anybody else— and as they did to Morris Moss in
this case.

Mr. Warren: — Without the authority of the Probate
Court which had formerly ratified the other transfer.

Mr. Peters: — Now, there is a point that the Honorable
Commissioner of the United States called my attention to.
You ask whether this question about production of the
lo bill of sale came up at Victoria. It was called to their
attention. Let me refer to page 1K14 of the Record, at
the top of the page. Mr. Wan-en was putting in the de-
fense in the case of the "Black Diaruond," and he was there
putting in this affidavit of Moritz Gutmau that was made
at the time of this transfer, and to which we have just
refeired. At that time, on page 1814, he makes these
remarks:

" That is dated on the 9th day of November, 1888, and in that con-
" nection we desire in defence to note on the Record that the bill of
20 " sale, which is contained in the rej»ister tendered in evidence by the
" counsel for Great Britain, bears date the 10th of November, 1888,
" and, of course, Mr. Frank, not being a British subject, as has been
" admitted on the Record, the bill of sale could not be made to Mr.
" Frank."

Now, we have the statement that they were taking
notice of the very entry we have in the registry. Surely
it cannot be allowed to them to take objection tliat we
had not put in the bill of sale, when they were objecting
at that time that the bill of .sale was of such a date that

30 the other one was prior to it. We. of coui-se, also con-
tend that the Merchants' Shipping Act fully justifies us
in relying upon that as evidence. I also, without reading,
refer you lo tlie following sections of the Merchants'
Shipping Act, ;58, 40, 42, 44 and 55.

Another conmient that my learned friend makes is that
he says that not only wns that bill of sale to Morris Moss
after the assigimient to Alexander Frank, and therefore
passed no title, but he says also that the application to
confirm the arrangement whereby the assets of the estate

40 were iianded over to Frank was made on the 14th of
November, which was after tlie bill of sale to Moss.
There is notliing in that, as this application was merely
a formal application made to confirm tlie settlement be-
tween Frank and the administrator and would not affect
Moss, as, so far as he was concerned, he was not subject
to the order of tlie Court — tlie only man who was subject
to the order of the Court lieing tlie administrator.
The object of tliis application was clear - here was an
administrat()r with an oi^tate in his bands. He makes

50a lump sale of the whole tiling. He sells the whole
estate in consideration of the liabilities being paid. That
is a transaction whicii, if tlieie were outside creditors
who di(l not get jiaid, might be brought up on review by
them, and it was, to say tlu^ least, prudent that before it
was conii>leted the adni'iiistratorsjiould lay the facts be-
fore the Court and in advance ask assent to the arrange-
ment. I do not know wlietlier that would protect him,
but it was a jirecautionary measure. Frank was no party
to the application. It was an application made solely for

^tlie protection of tlie administrator.

Again, my learned friend contends tiiat the mortgage
given to Gutnam and Frank for sl,:i50, which was given
years before, in some way or otbei' sliows a fraud. He calls
it a fraudulent mortgage. Now, I just point ont that that
is the first time wo hoard anything about that mortgage

I'lHi

1122

Htm.t

(Mr. Peters' Argument in Reply.)

being fraudulent. It does not appear to have any con-
nection with the price of the vessel. A strange fact relat-
ing to it is that Frank was not cross examined about it. It
is only in argument for the first time that we hear any al-
legation that it was a fraudulent mortgage. There is
nothing in the record to show that there was anything in
the slightest degree wrong about that mortgage. Further
10 than that, it appears by the register that that mortgage
was duly paid and discharged.

Mr. Warren:— Do you say that mortgage was not given
at the time of the purchase?

Mr. Petei's: — I say that there is nothing to show that
it had anything to do with the purchase of the ship.

Mr. Warren: — It is dated the same day.

Mr. Peters: — I do not care about that. There is no com-
ment niade on it until they come here in argument.

The Commissioner on the part of the United States: —
20 What attracted my attention to it was that it should ba
allowed to stand on the vessel after it was sold to Morris
Moss.

Mr. Peters:— There is a very clear answer to that. It
appears that the mortgage got lost, and under the Mer-
chant's Shipping Act when a mortgage is lost you have to
get an Order in Council to discharge it, and this one is
discharged by Order in Council after some considerable
delay.

The Comn)issioner on the part of the United States: —
30 What attracted my attention to this was that it was
allowed to lemain there until the vessel was afterwards
sold, and then it Avas discharged.

Mr. Peters: — There is nothing inconsistent in that.
Fiank did not testify that the mortgage was paid off when
he sold the schooners to Moss.

The Commissioner on the jjart of the United States: —
It would attiacc the attention of a lawyer — the fact
that the title was cleaned up on the subsequent sale.

Sir C. H. Tupper:— The probability is that getting the
40 order to discharge it would involve some time.

Mr. Peters: - We are without evidence as to when it
was paid.

Mr. Lansing: — The receipt is dated the 19th day of No-
vember, 1889.

Mr. Warren: — It was not put in the liability of the
estate

Mr. Peters: -What has that got to do with it? That is
of small consequence.

The Conmiiasioner on the part of the United States: —
50 It might be an important circumstance and it might not.

Mr. Peters: — Mr. Frank says, in effect — True, 1 had an
int.;rest in the firm of Ctutman and Frank up to 1888.
I then began to dispose ot the assets and to pay the liabil-
ities, and the first step was to sell the ships, and I sold
them to Morris Moss. Remember, Morris Moss was
not un unlikely person to buy ships. He was handling
vessels constantly. There is nothing strange in tlu' fact
that he should have bouglit it, and bought it subject to a
mortgage, and there is nothing irreconcilable in the
f>ofact that it should be paid oft' when Victor Jacobson
bought it after wauls.

The Commissioner on the part of the United States: —
There is nothing irreconcilable about it, but it is a circum-
stance — that is all.

Mr. Peters:— It is a strong circumstance in connection

1123

(Mr. Peters' Argument in Rtply.)

with this matter that when Frank was on the stand he
was not examined in such a way as to suggest that the
mortgage was not perfectly correct. I take the position
tliat you never can assume a fraud. You must jirove it.
When you come to a (juehtion of the kind now raised, with
respect to that mortgage it lay upon the other side to
prove tiiat in some way it was wrong or fraudulent. It
lo was the duty of our learned friends, when Frank was on
the stand, to cross-e.vamine him to show that tiiere was
something wrong about it. Frank is not asked about it,
and not being asked about it, how canyon presume that
there is anytliing wrong about it? Another point that
,they sought to make is that the old certificate of registry
remained on board the ship. There is no conclusion to be
drawn from that, because it is apparent that they could
take out a new register at any time, and as the vessel was
always kept in the name of a liritish subject, the pos
2oition of affairs would not in any way liave been
altered by taking out a new certificate, whenever
a change in the register occurred. It is more
regidar to do so, but it is not always done, and is certainly
not necessary. Then, again, there is no evidence worthy
of consideration tiiat Frank had anything to do with out-
fitting the vessels, or either of them, in 188l». All that
there is is the evidence that lie took passage in her to
Clayoquot, which is quite consistent with the vessel being
owned by some other person, and that a few skins, which
30 were caught on the coast, weie left at Frank's
place of business on the coast. But that does not prove
anything moi-e than that they took that means of dispos-
ing of skins before setting out for Belning Sea. It cer-
tainly would have been foolish to have taken them into
Behriiig Sea, where they would have been subject to
seizure. For aught we know, Frank .may have bought
them. The circumstance is entirely too cimall to be looked
upon as proof that Frank owned the vessel or had an in-
terest in her ventiue.
40 A point is also made by the United States counsel that
in 18SD one of these vessels in question left f,ome provisions,
not used on the Bebring Sea trip, at F'.anl.'s station at
Clayoquot for which the master says he t.iok a receipt,
and the conclusion is drawn by my learned friend that, be-
cause the master took a receipt, it meant that they were
afterwards to be accounted for to Frank. I can just as
well draw the conclusion that he took the recoiiJt in order
to show to Morris Moss what he did with the provisions.
Again, we show clearly that in 1889 Moss hired the mas-
50 ter. That is proved by the master. It is assumed by my
learned fiiends that lie hired the captain as agtnt for
Frank. That, however, is mere assumption. I'rank's
story from the beginning is that he wished to close the
business out, and in order to do that he had to take time.
His story is that be sold these ships immediately and that
all his business in Victoria after 1888 was simply that of
closing up the old business, a'ld he finally succeeded in
doing this some time in the year IHei). A further attempt
to cast doubt on Frank's evidence is made; he was cross-
do exa mined on this line; he was asked, " Will you swear that
Morris Moss or the estate owns this claim?" Frank says, "I
will not swear anything about it." They say, "Tliat is
most extraordinary:'' What is Frank's story? That he
sold the ships in 1888 to Morris Moss, and that he never
had anything more to do with them and has been living in

, ! f ■ P:

;|f :i;

IIlH

H-i*

(Mr. Peters' Argument in Rei)ly.)

San Francisco ever since. Is it to be supposed lie could
state exactly whether the estate of Moss had a claim in
regard to these vessels. He simply says, "I don't know
anything about it; it is not my business."

J finally say that there is nothing; in the examination of
Frank or in anythinji; that he said upon that point which
throws any doubt upon our contention as to his state-
loment; that is so far as ISHJt is concerned, and, if I am
correct, that disposes of the two vessels seizud in that
year.

Now, let us consider Frank's position in the year ISSO.
Mv friend relies— and I fully admit that he has the riglit to
rely — upon the statement made in our brief, from which it
might be inferred that in 18S<» Frank had an interest in
the ventures of these vessels. I wish, however, before
leaving the point I was just discussing, to say that in ad-
dition to the evidence of Frank upon this point, of the
20 registry, we have the affidavit of Morris Moss, who, if
you remember, was dead, and whose affidavit was lead,
in which he positively swears that the claim belonged to
him.

Mr. Lansing:— Registered owner?

Mr. Peters: -He swears that he is the registered owner
and makes the claim on his own behalf.

Now, coming to the year 188(i, if you turn to page -47 in

my brief you will find the following, and it is partly on

this that my friend relies. I say that that admission was

30 not intended to go, and does not go as far as they contend.

At line 24 the statement referred to is made as follows:

" In tho raso of tlio 'Blnck Diamond,' No. 5, * * * the title
"was in a British subjei't, but the vesHelK were operated for the
" benefit of n trading tirm at Victoria, oomj)ORed of the owner and
" one Alexander Frank, who was a native born citizen of the United
" States."

Now, my leained friend takes that as an admission that
in tS8fi Frank was interested as a member of that firm in
that vessel, and possibly he has some ground for so con-

40 tending, but the evidence— and after all it is the evidence
which must be looked to — does not liyany means bear out
that contention. VV'e do not admit that in the year 1886
Grutman and Frank had any interest whatever in the
" Black Diamond."
I will first give you the entries from the registry. We

find them as follows: " On the Kttb June, 1884 "

Mr. Warren: —You claim that this registry was put in
to prove the title in the '" Black Diamond" case, No. 5. I
would like to see the reference. The testimony was given

50 by Henry I'a.Kton to show who owned the ship.

Mr. Peters:- 1 am not going to foiget any evidence in
the Record. I am perfectly satisfied to read every single
part of the evidence. I wish to point out that this ques-
tion of whether the vessel was or was not owned in part
or whf)lly. actually by a subject of the United States is
part of my leained friend's defense. It was for him to
make it out. It is for us to look at the Record and see
whether he has made it out. We find that he has not. I
find by the Record that on the ll)th June, 1884, the

<^'C" whole of the "Black Diamond" stood in the name of
Joseph Quadros. I find that on February 24, J 886, a bill
of sale dated 16th day of January, 1886, was recorded.
That bill of sale was from Joseph Quadros of 13 shares
to Henry Paxton. We find that there was no other change
of ownershi)), so far as the registrj^ shows, until November

1125

(Mr. Peters' Argiiineiit in Rejtly.)

8, 18S8. when a bill of sale was legisteied, dattMl 3d Janu-
ary, 1887, from Joseph Quadrog to Jacob Gutnian.

Mr. Ijunsin};: — Was Qiiadros a claimant?

Mr. Peters: — Just allow mo to make my position clear.
Do you object to paying Quadros? Then 1 find another
bill of saio registered on Novoniber s, 1H88, and dated
10th January, 1S88, from Henry Paxton to Jacob Gut-
louian, of thirteen shares The point that I wisli to make
is that this record shows that Outman never had
any interest in the ship until the 3d January, 1887, and as
Frank oidy claims to have an interest in this ship as a
partner of Jacob (iutman, it follows that until the 3d
January, 18!S7, Frank had no interest in that ship. That
is the way the niatter stands on the Jiecord.

Mr. Lansing: -Now, Mr. Peters, if you would allow mo
— who is the claimant?

Mr. Peters:- And in confirmation of that point, and to
2o8how its strength, t will point out t(^ you that the claim
for the " Black Diamond " was never treated as belong-
ing to Gutman even by his own e.xecntor I refer your
Honoi-8 to the petition, which I have already referred to, of
Mr. Gutman for the confirmation of tlie sale of the estate
to Frank, which is fouud at page 214 of Appendix B, Sec-
tion 8, of the Petition, is as follows:

" That the said Arm of Outmau & Frank have a rlaim nf^ainst the
" Oovernment of the United StatcB of America for the amount of
" twenty thousand four hundred and forty-threo dollars (!S20,443),
30 " such claim being for the seizure of a certain schooner known of the
" name of the 'Alfred Adams ' and owned by the said firm of Gutman
" & Frauk, and of certain sealskins belonging to the said firm and
" that proceedings have been commenced and are now being pursued
" for the recovery of such damages."

This is the only claim referred to, so that you have the
fact appearing, by the registry of the ship, that she did not
stand in the name of Gutn.an & Frank, and you have the
further fact that, when the schedule of assets is uiade up
by the executor of (iutman, this is not put in as one of the

40 the assets. Now, my learned friends say, that is very
true, but this does not agree with the evidence of Paxton,
because Paxton makes statements l)y which you are bound,
and these statements of 1 'a xton do not agree with your
theory. I say that these statements of Paxton are recon-
cilable. You nmst remember that this vessel did become
— I do not say tlie property of (Tutman & Fiank— but
that Gutman & Frank became interested in the running
of the vessel, and Gutman became inteiested in her in
18k7. and the witness Paxton was examined as to the

Soownersbip of tlie vessel; this is wliat they rely ou, at page
17.')!t, just above line tlO:

"Q. You do not know whether he ever sold anv or not? A. No.

" Q. When did you see Mr. Frank last? A. 1 saw Mr. Frank last
" in 1«>.)1.

" Q. Did you not see him when he wus uj) hero within three
" months? X. No; I have only been here three weeks myself.

" Q. You spoke of Mr. (lUtman as managing owner? A. Yes.

" Q. Who else were you thinking of as owner? A. I am the other
" owner.

" Q. Of the 'Black Diamond'? A. Yes.
60 " Q. At that time? A. At that time."

They were asked about the sales to Frank as far down
as 18t>l.

Mr. Warren:- -Gutnian died in 1887.
Mr. Peters:— I was talking about Frank.

I l'J«l

(Mr. Peters' Arnuineiit in Reply.)

" Q. Whom did voti buy your intert'Ht in tho 'Dlni-k Diamond ' of?

A. A mail uaiiit'd {jimdroH or HomeUiinK-

" y. Wlicrt' did lie livoy A. He livod u|) nortli.

" Q. Nortli wlicro? A. Ou tho northern imrt of the Inlnnd.

" Q. Wliere tlid you buy the boat? A. In Victoria.

" Q. At wliiit tini'eV A." It woh tho latter part of 1885 or the early

part of 1880.

" Q. How niui'h didyou buy? A. Thirteen Hharen.

" Q. When' iloeH thiH man live, or where did he live at the time?

A. At that time he lived here."

il(> tolls tilt' f<torv jii.st as the liecord (Ioph. "1 bought
in l«H»i thiitwii sliiUfH." That is nil ho had. Tho rent of
the interest \v;ih Quailros'. VViien (iutnian came into
the niattt'i he bought the rest, but in IHHO Outman had
not bought. 1 daresay it is quite possible tliat Frank and
Gutnian might have had somotliing to do with helping to
tit the vossel out- doing the business of the vessel. It is
evident that that is what Paxton is referring to; his evi-
2odence is consistent; lie says he bought thirteen shares:

" Q. Where doeR this man live, or where did he live at the time?
"A. At that time he lived here.

" Q. The man from whom you bought? A. Yes.

" Q. Where in he living now? A. lip north.

" Q. Where iH up north — what town? A. Close to Alert Bay.

" Q. What is his first name? A. Joe.

" Q. Did you puy any cash for the shares yon bought? A. Part
" easu — well, the same as cash all through.

" Q. When did Mr. Outman buy his part of the ' Ulaek Diamond?'
" A. Some days after, I think — or before — I think I l)ought my part
■3Q " first. Quadros owed me considerable money and he gave me these
" shares to represent the money."

From Paxton's evidence it appears that he did not know
exactly when Uutman's interest was bought, but wh( ,'
the registry comes to be looked into — and there is no sug-
gestion that there is anything wrong with the registry-
it appears that (iutman did not obtain his interest uiitil
the beginning of the next year, namely, 1887. The wit-
ness is speaking from memory, twelve years after the oc-
.Qcurrence, and he says: "To tell the truth, I do not know
whether he bought before me or after me." So far as the
United States case is concerned, I simply say the onus of
proof was upon them and they have failed.

With legaid to the interest of Alexander McLean and
Daniel jMcLeaii in the ships of which they are respectively
alleged to be the actual owner in part or whole that ques-
tion has been so clearly put before tho Commission that
it is not necessary for me to make any further statement.
And I may say that, except with regard to some few
statements 1 shall make in closing with regard to some
special cases, 1 have very little e' ,. to say with regard to
the evidence.

Mr. Warren:— Can I give two references to the " Black
Diamond " without reading them?

Mr. Peters:— I have no objection.

Mr. Warren: — They are page 1761, line 3, and the rest
of ]>age ITtlc tiiat you did not read.

Coninii.ssioner on tlu^ part of the United States:— To
what ])ointdoes the evidence I'efer?
5o Mr. Warren:— It siiows absolutely that the bill of sale
was from Paxton to Jacob Outman in November, 1886,
and that he sold the whole vessel.

Mr. Peters:— When you come to look at the bill of sale
you will find that the man is a year astray. There was
no reason for making the bill of sale wrong. Paxton was

ii-j:

' I

(Mr. I'fteio' Argument in Ivt-ply.)

not in any difficulty or any tliinj,' of that kind. Th«» bill of
sale from I'uxton to (hitniun is datod .lannary, 1888.

ConimisHioner on the part of the United States:— Mr.
Peters, you a|»parently -idniittetl in your argument that
these vessels wtre operated for (he herietit of the firm.
That was relied >>\t in thearf^innent on helialf of the United
States, and your reply takes no notiee of that. Tliorefore
lo it miKlit he assumed that they relied on that admission,
although what they inferred from it |)eihaps goes a little
beyond the admission Do you wish to withdraw that
admission?

Mr. Peters:-- In so fai as it may he held that Frank had
anything to do with that one vessel in iSKd, I do. 1 fully
admit that in ls,s7 he iiad an interest. 'I hat is what I
stated at the time 1 mad(! my oral arginnenl.

Commissioner on ttie part of the United States:— I think

this is the first time you have foiinally withdrawn it. If

20 there is any objection on the part of the United States,

should you not give some reason for the condition of

things^

The Commissioner on the part of Her Majesty:— I see
that I have this note. Septendier Itlth, Mr. Peters .says
the admission as to the " Black Diamond " is not correct
and desires to withdraw it.

Mr. Peters:— That is the fact. I so stated in my oral
argimient.

Commissioner on the part of the United States:— I had
30 forgotten that you formally withdrew it. Judge King's
memoranda is undoubtedly correct. There was no objec-
tion.

Mr. Peters:- Now 1 want to say a word on the value of
seal skins.

V.M.L'E OK Skins.

Mr. Warren in bis argument (piotes from the evidence
of Munsie, page IT),')!*, line 5.5, where it is shown that
Munsie purchased a portion of the skins brought down in

4ol88i> in the " Wanderer," from Behring Sea, namely, the
catch of the " Allie 1. Alger," and from that ho argued
that Munsie was not a sealer but a dealer in furs. But
this is the only evidence there is tiiat Munsie ever bought
any skins, anil tiie circumstances of this were peculiar,
as that same schooner, the "Wanderer," brought down
his, Munsie's catch, of the " Vivu " and " Pathfinder," and
it is a very small bit of evidence on which to found this
statement; it is clear from all the rest of the evidence that
Munsie's business was that of a sealer and not a dealer in

^ofurs, l.ence Mr. Warren's argument, which he founds on
that, that those engaged in sealing were nt)t shipping to
London, but oidy the dealeis, is very weak and not en-
titled to any ,s(>rious consideration. It does not at all de-
tract from our theory that as early as 1888 individual
sealers were sliipi)ing their catches to London, and had
knowledgt> of the fact that London was the real market
for seal skins. The evidence which he had previously
quoted from page l8S(i, line -i^, shows that Hall, Goepel &,
Co. were shipping in 1S88.

60 Witii reference to Mi'. Warren's argument on page 231
that Morris Moss would not have got the London prices
for the catch of the " fjily " and the " Black Diamond " in
1889, on the grouml that he was buying for Leibes & Co.,
who were buying for the purpose of manufacture, it would
seem that this is a distinction without a ditference, because

112S

(Mr. Peters' Argument, in Reply.)

all the evidence sliovvs that all the skins manufactured
were sent to Loudon to be dressed and dyed before being
brought back to America. It goes tberefore without say-
ing, that any one engaged in the business of buying skins
whethei' for manufacture or resale on tlie London market
would keep himst>U' posted on the London prices, and the
strength of our argument was that Morris Moss being in

lothe trade, and, necessaiily, therefore, having knowledge
of the London market, would not take less for his skins
at Victoria than he could get by shipping to liondon. The
point is not whether his principals were buying for
manufacturing purposes or not, but whether in the or-
dinary course of things he would have the knowledge
which must have been possessed by the trade, and in
view of the fact that all the business of selling, as well as
dressing and dyeing of skins was done in London, it seems
that the irrebutable presum[)tion must arise that the deal

joors in furs would keep themselves posted on the London
price. That would necessarily regulate the |irice which
Lifcbes& Co. would give in Victoria for skins to manufac-
ture. They would not i)ay more than the London i)rice
for skins, because, if a higher sum was asked, he could
buy at Lampson's sales, skins for manufacture just as eas-
ily as he could buy them in Victoria, and would save
freight one way. Therefore, it would only be connnon
business jirudence to keep posted on the London price,
and it must be taken that Morris Moss, their agent, would

30 have all Lampson's catalogues and full inforniation as to
the state of the market, and he would not, in his own
business, whatever he might do for his principals, accept
less than he could get for his skins by dealing directly
with Lampson's in London.

Questions of Law.

I shall now leave the (piestions of fact and take up the
points of the very able argument of my learned friend,
Mr. Dickinson, in which he deals with the (piestions of

'^'-'law. before doing .so, T want to point out that there
were one or two questions that arose in the early part of
the case that no longer exist. At Victoria, it was alleged,
as a matter of law, that no person who had died, since
these cases arose, had any claim bi'I'ore this Commission.
We argued thai that was not so, and the claim has not
been put forward in my learned friend's written brief,
nor in his oral arginneiit. In fact, 1 understand he does
not claim that that piinciplt! applies between nations.
.Another tpiestidu that has (iisajipeared is my learned

i'-' friend's claim that a British subject domii;iled in the
L'nited States could not lie registered as an owner of a
British vessel. That contention has also disappeared.

D.\MACiES NOT EXAGGEkATKI).

Now in dealing with my learned friend's argunit>nt, it
is mv intention to take up tirst the (piestion of damages,
which is distinct anil separate fi'om the otliei- questions,
aiid deal with that very shortly. There have been
Oocharges made, both in the printed brief and in the oral
aigument, that the claims w<' make are e.xtiavagant
claims; that they should be estimated at the lowest pos-
sible amount on" that ground; that they are far larger
than H" value of the vessel. Upon that point 1 would
like to .all vour Honor's attention to what some of these

iion.
not
ief,
oes

112!)

(Mr. Pt?ters' Argument in Roplj'. )

vessels do earn, and did earn in the years we are dis-
puting about. Take tlie " Mary Ellen " in ISSO. Her ad-
mitted catcli was 2.:?!)r»H(>tils, Wliicli at $0.5(1, the juice ad-
mitted l)y the IJinted States, gives tlie value of $l.'),5ti7.
The vessel was sold in issti, aieording to tlie Llnited
States' argument, for 4,r)0U dollars. So that her gross
catcli amounted to;{.4 times her value. Ii, ilie same year,

lotlie "Kavoniite" (niuglit 2.'i.")!t seals, which would he
worth at the United States price, ?(|4.t'>s;{..')0. That, you
must rememher, is up to the 4rh of August; she lett the
Sea August ITtli. At the United States' prices that would
give the value of !t^I4.(i8;5. She was sold, according to the
United States' argunuMit. for !Si'..0(>i). just as shecame from
tlie Sea. So that her catch w;is ('(jual to4.s!) times her
value.

The " I'athlinder" in 1887 was w.irned out on the 17th
of August, She caught ti.UOU seids. which at the United

20 States' price would amount to sil.uoi*. or 1.70 times the
price of the v.due of the ship. The price of the shi|) was
*«,428.

The " Favourite '"of 1SS7, lowest catch mentioned in Mr.
liansing's table was l.(!84 seals, which at $5, So would
amount to .i;(>,'i62. which is over three times the value of
the vessel.

riu^"Viva"in KSHit caught 2, iso seals, and the price
realized was ^W a skin, s-j:5.itso. She cost at '• Vic;-
toria," when new, >;!>,0(io, .so that her catch was 2.<i<) times

30 what she cost new. The pi'ices for this catch are not
im;iginary, hut were taken fiom the actual account of
seals. So that 3'ou have some little idea of the value of
the industry and the amount of money that the vessels
might have made if they had gone on. This one state-
ment is (piiti.' sutTicient to taki; away the charge hy my
leaiiied friend that tlu' claims are greatly e.vaj

iggerate<l.

Intkkkst.

Now leaving that matter 1 come to the question whether
40 or not we ;ire entitled to recover interest. 1 have already
cit(Ml the .luthoritii's usually relied njiou in international
cases on the point that inteiest forms a part of a jusl com-
pensation as hetweeii nations. I have referied to the
(Jeneva casi>. where that principle is e.xpi'e.ssly laid
down, and to the case of the •'Canada." decided hy
Mr. Thornton, the opinions of Mr. Wirt. Attorney-tien-
eral of the United States— these arc all set out in my brief
and fully discussed in my learned friend's brief, so that I
do not propose to go over them again. Hut my learned
50fri«Mid answers our claim for interest in this w.iy. Ho
says you camiot have interest and prospective pi'olits to-
gether; that intei-est. is to he given in [dace of prospective
profits, if pi'ospective profits can he given. With regard
to that (piestion I have to say tliat the very cases 1 havt^
cited absolutely disposes of that conterUion. In the
" Co.sta Uica " cas(> interest was allowed on all the claims,
and tlu) siune irr the case of the •'('anad.i," decided hy
.Mr'. Thor'nion I have already argued this, arrd Mie
authorities arc heforc you. .arrd a cai'etnl readiirg ot those
'''Owill completely dispo-e of tirat corrterrliorr.

Next he .rrgues that at ,all events no irrtercst can he
chai'ged until the<late t he claims were pr'cser. ted; thai they
w(>re rrot, as he clainrs. pr'esented uirtri ISlKi. and, there-
fore, in iuiy event, no irrterest carr he claimed before that
date. Tluit is his contention. Now 1 s.ry in answ(M' to

J 130

(Mr. Peters' Argument in Reply.)

that tliat the correspondence in (>vidence, and quoted in our
brief siiows, that the st>izures were promptly protested
against and compensation claimed.

As a matter of fact, at Victoria, when we first argued
tiie question as to wiiether we should he allowed to
put in evidence the diplomatic correspondence that
took place after the .seizure — the reason I gave for

lo introducing it was that we should he allowed to put the
correspondence in to show that (Jreat Britain had been
guilty of no laches in pressing tiie claims — and Mr. Dickin-
son answeied that n<> such thing was charged, that wo
had pressed the claims piomptly. and without any laches.
I also call your att(Mi(ion to this fact in regard to the
claims of IHSC) and KS87 that they were all presented hy
the claimants to the (ioveinment of Canada, which is
the same thing so far as you are concerned asthedovern-
ment of (ircat liritiiin, hicause that was the chaimel they

20 hail to go through. They wtMe presenied as early as De-
cember i)tli, ISST. Formulated claims were put in, so that so
far as the claimants were concerned there was no laches
on their i)art. 'I'liei-e was only one exception. The
"Black Diamond " of I8><() was not presented until some
time afterwards, but yoiu' Honors will remember that
theie were some s))ecial circumstanci'S connected with that
case. The claims for IS,s|» were all presented in that year
excei)t one which was presented in .Jamiary, 1S!»(>, and with
regard to tbespeci.U claimsortbeadditioual claims, as they

3oaie called, the claims were all i)restMited pronq)tly, the
•'Wanderer'" being the only one as to which any delay
occurred.

It will be admitted that so far as jtre.senting the claims
were concerned, the individual claimants could go no fui'
thertban present th"ir claims to their own (lovermnent,
and that tiie pressing of those clamis r)uist be in the bands
of that ( Jovernment. I submit that after the protests h.id
l)eeu put in bylireat Bii'ain. the position taken by the
I'nited States rendered it .ibsolntely futile to make any

4opi'esentation of the claims in a formal manner. The con-
tention of the I'nited States w.is: we are not liable, and
that was the position they biild im til after the I'aiisaward.
How then has the non-pr(?sentat ion of the claims in for-
mal shape ad'ecli'dlbe claim for interest; 'i'here was no
use delivering tlu-m to the United States (iovernment who
dis|)nted their liability in toto. The formal claims only
consisted in itemized ligures, and th(>se evidently would
not be of any importance until the question of liability
wassettleil. There was no use, I contend, in pi'eseiiting

Sothe paitic iilars of tlie claims until the United Stales had
evidenced their willingni'ss to consider their settlement,
and that willingness they did not evince mitil the main
question in dispute was settled.

I return to my learned friend Mr. Dickinson the words
which he borrowed from a repoit of the Supreme Court of
the United States. " the law will not require any one to
do a thing which is vain and idle." That is all 1 have lo
say with regard to the ([uestion of inteiest. I refer your
Honors to my brief, pages Hr> to H7, where the argmuent

60 on interest is fully set out.

Damaoeh.

Coming to tiie question of damages generally, I may
say that my learned fi'iend Mr. Dickinson to some extent
appears to misunderstand the position we take, and more

1131

^^^^

(Mr. Peter's Aiguineiit in Reply.)

paitioularly does lie riiisunderstand it on the very iinport-
tant question of tlie right to recover for pios))ective catch.
If from anytliiiig we liave said, either in oral or written
argument, that misunderstanding still exists, 1 wish to
put heyond doubt the ground upon which we claim dam-
ages for prospective catch. From the reading 1 liave
given of Mi'. Dickinson's oral and written argument, he

lo seems to think that we {;laim inospective catch under the
head of punitive damages, or what he sometimes culls
Stuart money. That nevei' was our contention, and it is
not oui' (;ontention now. W'c allege that wiien a wrong-
ful act has been done hy one person to anothci', with the
intention of causing a particid.ir kind of damage, and
that jtarticular kind of damage is caused, sucli damage
being tiie result actually int(Mi(led, must in law always be
considered as pro.xiuiate and nevei' too remote. On that
contention we base our claim to I'ecover [irospectivi; dam-

2oages. V\'e do not claim vindictive! damages, which tny
learuiMl fritMid, Mr. Dickinsnu, is very fond of referring
to, nor do we allege evil intent, as Ik; also is fond of say-
ing; but we simply state that the United States seized
our vessels in iMSd. ls,s7 and lS)Si», with the object and in-
tent of i)it'venting us carrying on sealing, and that thev
succeeded in that object ami intent I do not use the
words vindii'tive damages or evil intent, but we content
ourselves with tiie fact that they did intend to stop us
carrying on the sealing business, and that they wc.m suc-

30cessful in so doing. I say that the United States went
therewith the purposi! and with the inti nt of |)reventing
US from cai lying on the sealing business and from making
a catch of seals, and having siieceeijod in I bat intent, the
loss of the (expected catch must he l(,ok(Ml upon as
proximate damages and cannot be too remote.
In short, the fact that the damage which h.is actually
occurred was iniendi'd, removes all (luestion ot remoteness
— that point disappears. I venture lo say that my learned
friend, Mr. Dickinson, has not nut that piopnsitiou which

40I have annoimred in my original argument When 1 was
arguing in tliisc.iseoriginally, I a'-ked my leaiiKMl friend to
point out one antborily. in which it ua- shown that the
intention to stop the caiivingon <ii' a icitain business was
the object with which an ait was done, where; it was held
that the prevent I'd piosjiective prolils coidd not be recov-
ered. My learned trieiid has entirely failed to jiroduce
any such authority. My second proposition is, that when
it becomes clear that the damages are not remote because
tli(!y were inti'uded, then the samc! strictness of interiire-

5otation with regard to certainty is not to Ix; ust'd as in oidi-
nary cases. On this point 1 wish to refer your Honors,
not for thi'iiuiM.ise of criti<ising my learned friend's argu-
ment, hut for the purimse of showing my side of the case
to a cpiotation my friend uses from my original brief. At
page 21 of my brief 1 niakt! a (piotatiou from "Sutherland
on Damages," showing that where there is a fraud or
other intentional wrong there is not the sam(> strictness
to exclude remott? ancl uncertain damages, even when
the punitive damages are not involved.

60 I call your Honors' attention to this (piotation, he-
cause my learned friend Mr. Dickinson, (pioting that in
his printed brief, has taken rather a wrong impression
from it, and has not n>ade the (piotatiou in full, hut
leaves out the important words, " oven where punitive
damages are not involved," I do not mention this to cfist

ins

(Mr. Poters' Aif^iinioiit in Reply.)

any reflt'ctioi) upon my loaincil I'l iond. but simply to jtoint
out that those words wliich my learned Ciieiid hus omitted
in his written argument, havt; a stronfi; heatirif;- on our
cast^ The gist of thi' \vh(>le (juotation is that where thero
is an intentional wrong, yon aic not to look so elosely
into the (piestion of certainty of damages as in a ciso
where theii> is a meic accidental wrong, and this (piite

lo independently of the cpiestion of punitive damages. I
point out to my learned friend this mistake he has fallen
mto, both in his oral an<l written argument The person
who with intent has ciused an uncertain loss is respon-
sible for the uncerlainty which he has caused. .My learned
friend .Mr. l>ickinson cannot say: 'I'ruj'. 1 injured you
very badly, and stopped you from catciiing tiiese seals;
.and true, 1 intended to do it, hut at the same tiuK? Lush-
ington said a good many years ago in such and such a
case of Admiralty, " )ou caimot g»^t anything but the

20 value of the ship." Mr. Dickinson argues that in all cases
where the vessel was destroyed you can get the value of
the ship and nothing more, but 1 think your Honors will
conclude that in a c.isc wiieic intent was shown, that is no
measure of damages. My leai'ned friend, .Mr. Dickiu-son's
argmruMrt amomrts to this: although we .lest royed a ship
worth *4, .")(>(>. which ship could hav(> e;u'ned, as is
shown by the evidence tlnee times its value, and although
we stopjied you from cu'rying on yoiu' business and from
reali/ing thiee times the vahn; of the ship, yet you are to

30get nothing nior-e than the e.Nacl value of the ship. I think
yoru- Honors will setf that that is neither- (Common scMrse
noi' law. 1 a-^ked my lear'ued friend, Mr. Dickinson, for
his authority for such air aigimrent. ami I suiimit that he
failed to show mc ;rrry.

Now, yoni' Horrors, \ rcfiM' yon to that ))ai't of my
learned friend's written argmneiit where he ([Uott'd my
citation frorrr Sutherland, but where In; omitted to (piote
the words "• where purritive damages arc not involved."
1 do not say (hat nry ieairretl friend did not interrd to

4oquote the iangiiage per-fectly coir-cctiy, but Iris (|nota-
tion without tiiose wtuds might mislead your Honors.
.At }>age l;!l of his arginnent he makes a citation from
my brief, but he leaves out the woi-ds '• whei'»; pimitive
damages are not i rvoived."

Mr. Dickinson:- -The (piestion of fraud is the point I
was makirrg there.

Mr. I'eteis: -That does not irrvolv*^ the (piestion of
fraud. This was irrteirtioiral wrong in a .sense that they
irrtended doing an act. which they did do, and the ivsult

50 of the act was to cairs(> loss.

Ml'. Dickinsorr: D > you think that Sutlierland meant
evil inleirt ?

Mr. I'eters: 1 certainly do rrot think he meant evil
intent, aird he diaw^ tin- disiinctron by usirrg tluj words
"even where pnrrrtivc danrages arc not involved." Of
course, we all know that punitive damagi'S are involved,
where the evil intent is shown ;ind vindictive damages
and smart money may be involved there, but not in this
case. 1 will qrrote yoiii' Horrors one passage from Siither-

6oland. which 1 do rr<il thiirk is ipjoted m rrry written brief,
arrd I quote it in answer- to what my learned fiiiMid says:
.At pages 17:i and 17:J of Sutherland, \'ol. I.

" Any Huch iirt, wliicli directly ivtt'cctM, iiijnriouHly, 1111 i'Mtal)lislie<l
" ImHini'sH, lis liy dcHtnu'tiou of tin' Ixiiiiliiif; 111 which it is cendiictt'd;
" <)l)strnctiii({ the aiU'Voaclii's iioci'ssiin to it; fraudulontly ilivcrtiu){

(Mr. Peters' Argument in lieply.)

" custom where thore was a thity to luaiutiiiu the good will; by ciitic-
" ing away servantH, or l>y Hlaudor, or tlio briMich of any iinr.'oiuout
" of which the protitH of a ImHiuoHH are the couHidoratioii or iuduce-
" ment, may require the entimate of a very uncertain losn; hut the
" party whoHe uiiHcouduet or default Iuih iieeesHitated thi^ iu(iuiry.
"cannot object to it, on the (i;round of the uncertainty, though a
" court will, in such a case, proceed with caution, and not award
" damages iipon more conjecture."

lo There is no (luestion of punitive daniages tliere.

, My learned friend has not ans\\'(>red my arf;innent. I
have never said tliat there was any necessity for what lie
calls tivil intent oi punitive dauiaj;es or anything of that
kind, hut lie has replied always on the hasis that I did so.
All I say is, you intended the consetjuences which followed;
you had no right to have such intention, hut you caused
the damage you intended to cause, and therefoie you
must nay coini)ensation. My learned friend in his oral,
as well as his written argument, relied on a large numher

20of cases drawn from the Admiralty courts, hut in every
one of those cases which he cited, tliere was wanting; the
very i)rinciple which is present in this case, natnely, the
intention to cause the damage which did happen, and the
intention to interfere with business. My learned friend
relied on certain prize cases, hut I pointed out with regard
to these prize cases that the same distinction existed,
and that there was no ([uestion of intention in them. I
went to the very same Admiralty courts where my learned
friend got his inspiration, and 1 found that in mery case

30 where damages had heen allowed the tjuestion of intent, en-
tered into su<h case, in the measure of damages allowed. I
cited international law in the (Jeneva case and the " (^osta
Rica" case, and I showeti that the Ueneva case was not in-
consistent with our present position. I showed that the in-
tention there did not exist to do any damage, and I showed
that Chief Justice (^ickhurn, who was the arbitrator for
Great Britain, in giving his reasons .against prospective
catch, showed that damages mider that head weie only
asked hy the United States on the ground of omission to do

40 a certain thing— they were not asked on the grounds that
Great Britain had committed certain acts. I showed that
counsel for the United States in that v(>ry Geneva Argu-
ment, although th»'y deliberately stated that (Jreat Bri-
tain had heen only cidpahly negligent, they did not charge
Great Britain witli having done these acts for the pur|)ose
of making a gain to herself. The United States counsel
claimed there, that they should recover because the fear of
these cruisers had the effect of causing .i transfer of
American commerce to the British flag. They claimed

50 damages for that, hut they said: we do not charge that
(Jreat Britain did these acts for the purpose of getting
gain for hei self, but nevertheless it has been the coiise
quence of her acts. Now. your Honors, in the piesent
case we have the fact that the United States cruisers in-
tended to prevent us from sealing, and they did prevent
us from sealing, in order that they might enjoy sealing
themselves, and be left to seal in their own way. I pro
pose, as briefly as I can. to answer the criticism which my
learned fiiend. Mr. Dickinson, has made upon some— 1

60 will not deal with all-authorities which we have cited
in our brief,

Fir-st, taking the case of the "Costa iiica," which we
relied upon to a considerable' extent. Mr. Dickmson'scon-
tentiovi shortly is, that in that case prospective ciamage was
not allowed, and that the "Costa Hica "' case is an authority

'1 I

1134

(Mr. Peters' Argument in Reply.)

against prospective damages, and not in favor of it. I
subnn't, your Honois tliat my learned friend's contention
in that respect is not corit'ct.

My learned friend sjiys that tlie claims wiiich are set
out at page 19 of tiie " Costa Rica " case for theoHicers and
crew included nothing for prosftective catch. Well, your
Honors, a glance at this claim will show that there was

lono other item in it, and therefore it follows that if any
sum was allowed on account of that claim it must have
been for piospective catch, and as a matter of fact the
sum of €1,6(10 was allowed for the officers and crew, and
it could not have been for anything else than prospective
catch, because that is all that was claimed. My learned
friend criticises the claim of the owners in that case— that
(!laini consisted of loss of the vessel, .£}?,588. The amount
realized at sale, including sundries sold, was ,tl,3!)5. My
learned friend therefore says that they were not found to

2obe entitled to prospective catch. On \»hat groiuid does
my learned friend say that? Which part of tlie claim was
for the forced sale of the vessel? Tlie arbitrator on that
|)oint says that he did not allow anything for the loss of
the sale of the ve.^sel, and I have no doubt he was justi-
fied in doing so. He says:

" Whereas, on the other haud, Mr. Carpenter, on being net free was

"in a position to have returned on hoard the ship 'Oosta Rica'

" packet in January, 1892, at the latest, and whereas no conclusive

" proof has been produced by him to show that he was obliged to

, " leave the ship until Ai)ril, 1892, in the Port of Ternate without a

3 " master, or, still less,. to sell her at a reduced price."

He says there that the sale of the vessel was unneces-
sary, and be gives no damage for it. The only item that
the owneis claimed for was £3,577 for some expenses in-
curred, and it is absuid to say that all of these expenses
were allowed on account of the 20 days delay of the vessel.
They awarded the owners £3,800, and that must have
been for prospective catch in some degree. The arbitrator
says:

40 " Whereas the unjustifiable detention of (Captain Carpenter caused
" him to miss the best part of the whale flshing season."

Now, your Honors, that is one reason why the arbitrator
thought Carpenter should have damages; and then he
gives the reason why he should not give as much as Mr.
Carpentei- was asking:

" Whereas, on the other hand, Mr. Carpenter, on being set free, was
" in a position to have returned on board the ship 'Costa Rica'
" packet in January, 1892, at the latest, and whereas no conclusive
" proof has been prodticed by him to show that he was obliged to
50 ''leave his ship until April, 1892, in the Port of Ternate without a
" master, or, still less, to sell her at a reduced price."

The arbitrator iei this case gives both sides. He gives
the reason why he should give some damages, and he
gives the reason why he should not give the full amount
claimed. If your Honors refer to the recital, you will see
that he especially refers to prospective cati;h, and if he
gave nothing for prospective catch it would be very extraor-
dmary why be should make such a careful statement about
prospective* catch in the recital of the facts. The arbitra-
^"^tor, it is quite clear, luidertook to settle the anjount of
damages apart from the expert testimony altogether
which apparently he thought be could not rely on. I do
not think my learned friend, Mr. Dickinson, can argue that
the "Costa Rica" case decides against prospective catch
—and I believe that any one who reads that case carefully

1135

(Mr. Peters' Argument in Reply.)

from cover to cover will find it is a case which decides
that prospective catch can bo allowed. Your Honors will
see that the " Costa Rica" case comes within the class of
cases where intention was .ipparent. because in the "Costa
Rica " case warning was given at time of arrest that the
consequence would be the loss of the whaling season. On
that ground it comes within the cases where intent is

lo evident, because notice was given that if such a thing was
done certain loss would ensue, an»l in that way the ques-
tion of remoteneness was removed and with it tlie ques-
tion of uncertainty. I leave that case in your Honors'
hands to decide if it is not an authority in our favor.

Mr. Dickinson: — Tiie full case has been furnished to the
Court.

Mr. Peters: — Yes. My learned friend stated that we did
not set out the " Costa Rica " case in full in our reply. We
set out such parts of it as from our point of view seemed

20 material, and although we had only one copy, which I sent
to my learned friend, Mr. Dickinson, in order to avoid
misunderstanding, we sent to England and got other
copies in order that the full case might be within the
cognizance of the Court. I think now, and I have always
thought, that we inserted sufficient of the "Costa Rica"
case to explain our argument.

It is now ,5 o'clock your Honors, but if you will permit
me, there is one other case which I wish to refer to.
We cited in our argument the " Bay of Fortune" cases,

30 and we contended that in those cases a large portion of
the claims made on behalf of the United States were made
for prospective catch. We have dealt very fully in respect
to those cases in our brief and in the reply. It w^as con-
tended by my learned friend, Mr. Dickinson, that this
was not an authority for prospective catch. We allege
that £15,000 was paid in compensation to the United
States, and that that included prospective catch. My
learned friend, Mr. Dickinson, makes a most ingenious
mistake in his consideration of that case. My learned

40 friend, Mr. Dickinson, says that the whole claim was
$120,000, including interest, and he says that by a pecu-
liar coincidence the exact amount claimed for prospective
catch was $45,000— and if you deduct that $45,000 from
the $120,000 which was claimed, you will have just the
amount that Great Britain paid -and therefore he in-
geniously asks your Honors to come to the conclusion that
Great Britain asked to have the prospective catch stricken
out, and consented to pay the balance. Why, your Honors,
my learned friend's argument is altogether fallacious.

50 The original claim, without interest, was $105,000, which
included $45,000 for prospective catch. If the payment of
the prospective catch was objected to, it would have been
deducted from the 1105,000 and not from the $lt>0,000 which
included interest on the $45,000 which was prospective
catch. Included in that $120,000 was $15,000 interest, so
that if my learned friend is ri^ht, that they intended to
take off prospective catch and just pay the balance, they
would have taken $105,000, the original amount, and de-
ducted the $45,000 from that, and tliat would have left a

60 balance of $tiO,000, which is all they would have calculated
interest on. I wonder, in view of that, how my learned
friend, Mr. Dickinson, got his figures?

Mr. Dickinson: — Oh, that is all very fuimy, but if you
figure it for yourself, you will find that they deducted the
interest too.

llHti

(Mr. Peters' Arguiiu'iit in Reply.)

Mr. Poters:~WeIl, I have flguretl it out very carefully,
and I fltid that they did not deduct the interest.

Mr. Peters:— My learned friend does not think it is an
autliority, hut I tiiink it is, and it is an authority that the
United States claimed and got [)aid for prospective catch.

If your Honoia will read the corros|)ondence from be-
ginning to end, you will see that no such proposition is
lolaid down as that Great Britain objected to that claim on
the ground of prospective catch being asked.

At 6.15 o'clock the Commissioners rose.

Commissioners under the Convention of February 8,

1896, between the United States of America

and Great Britain.

!l :f

S :*

Legislative Council Chamber, Provincial Building,
At Halifax, September 29, 1807.

At 10.30 A. M. the Commissioners took their seats.

The Commissioner on the pai-t of the United States: —
The Commissioners are clearly of opinion that there is no
possiltility of a lapse of the Commission by any failure to
adjourn formally, but in order to avoid a suspicion of a
question of anythiufj; of that character, they deem it ad-
visiblo to have the following order made, which order the
stenographer will take down and embody in his notes of
20 the proceedings and the Secretary will enter:

"Tlie Commissioners, whether an adjournment shall
have been made to a |)articular place or for a particular
time, or in the event of no such adjournment, may meet
at any times or places as to them shall seem fit. And in
such case, in the event of the proposed session being in-
tended to be an open session, shall give such reasonable
notice as to them may seem proper, of such proposed
meeting by letter posted to the respective addresses of
the respective senior counsel, as entered with the Secre-
30tary."

Mr. Peters: — When we adjourned yesterday afternoon,
I had been making a few remarks anent the Bay of For-
tune cases, in answer to the argument put forward by my
friend Mr. Dickinson. I iiad attempted to show, and I
think did show, to your Honors that my friends made a
calculation with regard to the Bay of Fortune cases which
is not quite correct. In confirmation of that statement I
find that some time ago -in the year 1895— a report was
sent down to the British House of Commons by Lord
40 Salisbury. This matter happened to come up, and I find
a refeience to a report made by one Judge Bennet, whom
I presume, though I may be in error, was the person who
had to do with the distribution.

The Commissioner on tiie part of the United States: —
E. H. Bennet?

Mr. Peters:--The initials are not given. I presume that
he was tiie person who liad to do witii the distribution of
this fund that was paid. At all events, he evidently had
something to do with it, because he made a report, and the
50 page that is referred to in Lord Salisbury's memorandum
of report of Judge Bennet is '• Keport of C. 1362-1883."

Mr. Dickinson:— I have not seen this before.

Mr. Peters: — Nor have 1 until last evening. It is a
memoiandum referring not to the Bay of Fortune cases,
but to the Behiing Sea question, and more particularly to
the i)hase of the case as it stcod when the approval of the
lump sum was refused by the Senate. He says:

" That not more than 81,400 of the amount claimed was for the
" Talue of property actually destroyed."

Mr. Dickinson: — What is the date of this reference?

Mr. Peters: — It is Si'ptembei-, 180.5, at the time when the
lump sum matter had fallen through and when they were
on the question of the formation of this treaty. The total
amount of $103,000 claimed by the United States— that

1138

(Mr. Peters' Argument in Reply.)

was about the amount without interest— claimed b) the
United States in that case, only i?l,4()(t was for actual de-
struction of proi'orty. For that he cites the report of
Judge Beinu't. I give this to your Honors as a further
answer to my learned fri<'nd'rt argument; the report says
that the actual amount of daniage to property clnimed "is
oidy :t<l,40(), and all the other items were for damage in
loaddition to the value of the property. He hiiugs out

firominently the very small amount of money claimed for
he property destroyed.

Mr. Dickinson:— if you take I he s?t.'),0()0 actually figured
for prospective catch from the -i^K'iS.ood -without niterest
— you will get a jiroximate amount.

Mr. IVteis:— It is a matter of figures and can be calcu-
lated.

Ml'. Dickinson: —1 will look at this repoit, and if there
is anything 1 wish to say about it, I will.

20 Mr. I'eters: So nuicli for the Hay of Fortune cases.

I would like to add to what 1 siiid with regard to the
cases at (ieiieva, tiiat this clearly appeared, that a sum of
money had been given in addition to the value of the
pro])erty destroyed and something in addition was given
that represented profits. A distinction was attempted to
be taken by my learned friend with legard to the (J(>neva
cases. He says that some of them were cases for partial
loss. That is true. I contend that there is no distinction so
far as these cases were concerned, between partial and total

3olo,ss. But the argument isof no value tohini, forthe rea.son
that some of the ca.ses were of total loss, and tbeictoie the
rule is not good unless it applies to every one of the cases.
Now, my learned friend, during the course of his argu-
ment, refers to a large mimber of cases that we have
cited. With regard to a nund)er of these cases 1 do not
intend to say anything more, because we have alieady
discussed them fully in brief and in oral argument. But
there is one case in his oral argument that he relies on,
about which I do not think anything has been said on our

40 part. I refer to what I call the German cases. These
were cases in which during the Franco-German war, cer-
tain vessels on the Seine, 1 tbiiik, loaded with coal, were
destroyed by the German Government, under the direc-
tion of their militaiy authorities. Mr. Dickinson cites
that in favor of his conti'iition in respect to prospective
profits. These cases are entirely dissimilar. It was a
matter of war and it was necessary in order to carry on
war that these vessels should be destroyed and compensa-
tion was ))roinptly made for them. These vessels were

50 there in time of war and they nec«'ssarily lan the danger
that existed in time (jf war, and there was no intention
then to do anything more than take a step that was neces-
sary in the conduct of the campaign.

He also refers to the " Umhria," which was a case of
collision with another vessel, and in which case damages
were claimed for the loss of some earnings which the
sunken steamer might have made. In that case the Su-
preme Court of the United States did not allow the earn-
ings, but the case is of no importance whatever so far as

60 we are concerned, when this retnark, made by the
Judges of the Supreme Court in giving judgment, is
considered: "We come to the conclusion that there
"is nothing in the peculiar facts of that case to take it out
"of the general rule." 1 am not here to deny that ac-
cording to the general rule in collision cases damages of

11 Hit

(Mr. Peters' Argument in Reply.)

this kind would not he recovered, hut 1 am hero to con-
tend that the general rule as laid down hy Lnshiiigton
and Storey has exceptions and that tlie case wo have he-
fore us is one of these exceptions — and that is all that the
Judges of the Sni)i"enie Court held in the case of tlio
" Unihria." They say, tlieie is a general rule and if you
wai't to take yourself out of tini general nde you must

loshow a particular circuinstance entitling you to tills. In
the present cas<' you liave not done so, therefoie we abide
by the general rule.

Now, my learned fiiend has contended that there is
nothing whatever in this ''new tangled" idea of inten-
tion — which according to hiui was ncvir heard of till now.
I am (|uite willing that my learned f .'ixl should call it a
"now tangled" idea, hul at tlif saiih' time I could refer
him to tilt; fad that at all events the idea is as old as the
time of liOrd Keiiyon, and no (hadit a good deal older.

2oHe says that the ITnited States iiad no evil intention;
that the United States went there under a claim of right,
and did these acts under a claim of right, and that when
an act is done, as he savs, under a bona Jidf claim of
right, you are nevei- to get exemplary damages or |)iini-
tive damages. That may he all right; it is not necessary
for me to controvert that. We are not seeking punitive
damage.s. We are only seeking the damages that actually
happened, t'unitive damages mean the getting of dam-
ages more than actually occuried. For instance, in cases

30of assault where a man can show that the injury only cost
him a five cent hit of sticking plaster and a little hit of
pain— the actual damage would he trifling — so small that
you could hardly compensate for it liii it might he done
under circumstances which nught induct; a jury to give
▼ery large damages. You, in that case, give damages more
than occurred. But in this case we are claiming dam.i'^es
that actually occurred. We say, whether we are eutiiled
to recover or not— that we actually did lose prospective
catch. We are not claiming a thing that we did not lose.

40 We are not claiming it on the ground of punitive damage
or for sniart money, hut we claim the damage that actually
occurred. There is where the distinction comes in. I do
not think the case he i)uts as to contract and tort (exists at
all as to measure of damage. Let me bring it down to the
case of a contract that is made, that a man will not carry
on business in a certain place. The contract is broken.
Suppose the contract is broken with the idea that what he
did was not a breacli of the contract. The actii>n is brought
for damages. The man broke the contract imder a claim

50 that he was right in doing so, but you give damages.
What damages? The actual damages that occurred.

Mr. Dickinson: — The distinction is clearly laid down in
the "Argentine " case between contract and tort. Perhaps
you would tell me the old case in which Lord Kenyon takes
the position you as.sert.

Mr. Peters: — The case of Tarleton against McGorrey.
In the case I am putting, the man would be entitled to
recover the damages that actually occurred, and that is all
the damage lie would be entitled to. If it were done with

60 malicious motive, such as the intention to run him out of
business — it might be possible to give him more damage.
That would be punitive damage. But in either case,
whether done with good or bad intention, you would be
entitled to recover damage sustained, and this outside the
question of punitive damage altogether. You can imagine

U4o

(Mr. Peters' Argument in IJcply.)

many cnHos wlicri! that principlf would Jioply. My Iciirned
frit'iul tiiki'S tlu> oiiso of realty and Im drawH a jj;i'«iit dis-
tinction ht'twi'iMi damages to realty and damages to per-
sonal property. Ho says tiiat realty can never he
destroyed -tlierefort* it i.s always a case of partial
loss- hut HO far as those eases are concerned,
ther(« is no distinction hetween partial and total

10 loss, although there is a distinction in certain other
cases. Kealty, he says, camiot he destroyed, and there-
fore you always have to treat it as a case of partial loss.
That might he one reason for it, hut it does not got over this
point that the real ohjecfion th«iy raise to our recovering
this damage is, that tlie damages are so uncertain that you
camiot make a calculation upon it. That applies to every
kind of profit that you have to assess. If you are going
to assess loss if vour real projierty was to ho taken —
you have to look at the past rental and other consi<Iera-

20tions. Ov take the cise of injury hy railway (Collision.
Tin- loss of protit that the injured man could make in the
future is always a question of douht and uncertainty, hut
that does not shut it out, if the first ohjection is removed,
that the damage is too remote, hecause, as Sedgwick
says, when the (piestion of remoteness is removed, you do
not so carefully look into t\\v (piestion as to whetlier t'io
damage is of an imceitain or certain nature. Now, I
think if your Honors will as 1 am sure you will— take
the argument that has been presented orally on this jiart

30of tlii^ case, you will have before you sufficient to enaltlo
you to fully understand the contention of the two parties
on this important (piestion of prospective catch, and there-
fore I do not think it necessary to follow the matter any
further. 1 have gone over my friend's argument— read
it very carefully -and I find on reading that argument
over as it is reported, and as I listened to it myself, that
after all the issues between us are clearly drawn, and I
do not think 1 shall give any more assistance to your
Honois by following this any further.

40 I wish, however, before leaving the question of measure
of damages to refer to my written argument, and correct
what appears to be a niisappreheiision that my learned
friend has fallen into.

In our ])rinted argument, wo began at page iJO with
a chapter headed, "The Measure of Damage," and then
we proceeded at jiage 2u with another chapter headed,
" Loss of (,'atcli," making two separate subjects of them.
At page iio we set forth a number of facts leading up to
the proposition which is stated at line 30, on page 20, that

SO proposition was:

" It bnving now been determined beyond question, that there was
" no foundation in intoruutioual law tor the aHHortion of any of the
" clainiH jmt forward liy the United States, the ordinary practice
" aniou^ nations reiiuircH that the daniaKOH shouhl be aHSOssed upon a
" Bcahj HO liberal aw to leave? no room for doubt that any form or clasB
" of injury wuHtaiued has been left without a full and just reparation."

It was to support that proposition that we stated the
facts immediately before it in our argument. My friend
takes it for granted that we were arguing that we should
Ooget prospective catch on account of the manner in which
the thing was done, and that this chapter applied to the
prospective catch, but this chapter applies to the measure
of damages generally. The proiiosition we lay down
there is the proposition we stand by now— that in compu-
tation of damages they should bo computed on so liberal a

1141

(Mr. Fotei'h' Arguiiit'iit in Hiply.i

Hculo tliiit every pcrHoii iiijtiriMl wniiM lie liilly coiniioii-
HUttul. Tliiit iipplifs also Willi pailiriilar ami Hpi-dai force
to Mil' (|iitNti((ii yuu will prt'sciiily have Ui coii>i(lt'r in (.oiu-
puling what anidunt ot <laniag*'s wnnld Id- allovvt'd to
tliuHu parlies who wt)i«' ari't'stctl and inipiisoiied and pro-
secuted what anionnt ol dainagi's yon :ii(^ Koing lo give
tliein. [n considering a (pu-stioii oi that kind yuii will

lohave to take into coiiBidtration the ciicunistunces sur-
rounding the urresl and iinprisonnient the way it
waH done, and with regard to that we any that
the tiieasuie of damages should he on a liheral
scale. This (piestion liad nothing to do with the (piestioii
of prospective catch which was taken up in a sepaiuto
chapter. My friend Ic >k the remarks we made in the first
chapter and seemed to construe them as if they a|)phe(l
particularly to the (luestion of prospective catch, wliich
they did not. 1 think we havt; now put ht^loreyour Honors

20 this (jueslion of prospective catch fully, and these (pies-
tiuiis of damage so far as 1 need put them.

DosiKiMi:.

Now, if your Honors please, I will come to another
question and that is the (jiu'stioii of the effect of domicile
of these claimants. Heiore dealing with the general
que,-,tion 1 would like to refer yoiir lioiiois to the I'liited
Stales hiief at page 87, as I think it advisable that this
question should he cleared up. At page M7, at the hottoiii
30of ihe page, the loUowing proposition is lai<l down l)y niy
learned fiieiid:

"It mny lit' Htatcd in tliis conui'otion an tlio rule in rucIi (laseH, to
" wliich tUiTc liuvi! lii'tMi no oxeeptious under prior coniniiHHidus, and
" aH a propoHition which cariics ilH uwn iliMnouHtration, that tu entitle
" that nation to iiiiikc rci'hmiation fur any oun um ' a person in whose
" bohalf (Ireal Itritiiin ih entitled to elaiin eoiupenHation from the
" United States,' the l)urdon is upon that nation at the very outset to
" eBtahliHh two things:

" l''irst, and before all elHo, that at the time of the l!onvontiou and
" of the presentation of the elaim the claimant was under the jirotec-
._ " tion of Oreat Hritain as a citizen, with a le^^al domicilo in the
^ " dominiouH of that nation, or not in the United States;

" And second, it must also he estalilished that at tho time of the
" injury of which complaint is made the persim was under the i»rotec-
" tion of Oreat liritaiu as a citiztm, and ilomiciled within her domin-
" ionH, or not in tho Unitod States, or, as the t'(|nivaleut of domicile
" and citizenship, wos on hoard a ship, as one ot the ollicers or crew,
" owned by a Britisli subject in British territory or on the high seas."

To put the question shortly, my learned friend contends,
that to he a claununl here you must, holli at tiie time of
the injury and at tho liiin' of the Convention, have a
50 domicile in Great Britain or under her protection, or at all
events 3'ou iniisl not he in the United Htates at either of
these periods. He ha>^ea that contention upon an argu-
ment wliich 1 think is not sound. He bases it upon tlie
word " is," in the Claims Convention.

Mr. Dickinson:— 1 have not based it on the word '"is";
I based it on that wholi' clause.

Mr. I'ctt'is: — Well, I will put forward my coulention.
This is the clause; 1 say that he must base it on the word
"is":

" The High Contracting Parties agree that all claims on account of
" injuries sustained by any person in whose liehalf Great liritaiu isen-
" titled to claim compensation from tho Unitod States, etc., etc."

" The high contracting parties agree that all claims on
account of injuries sustained by persons in whose behalf

1142

(Mr. Peters' Argument in Reply.)

Grout Britain is entitled to (•Jiiin)." Now my learned
friend elaims tiiat tiiat means persons who are entitled to
claim at 11, ;• date of tlie Convention. Now on helialf of
Aviiat pers(.ns was (ireat Britain entitled toelaim at the
date of the Convention? The answer is. she is entitled to
claim for e\eiy person who at the time of the injui'V was
under her |)rote(tion. 'I'liat is the i)luin answer to that
io(|nestioii. and it seems to n)v. it is a clear and concise an-
swer to the point taki'u. Tin; riji'lit to claim compensation
arose when the injury was done, and that right never
c<ndd he taken away from (iieat Britain. My learned
fi'ieii.'.'s conti'ntiiin goes to this exteid. that if any person
who was injured, a natmal horn British subject at the
time of the injuiy, if, between that time, and the making
of the Convention, lie went to the I'nited States, and was
there domiciled, that would take away the I'ight of (Jreat
Britain to claim compi'usation on his behalf. We say the
2oclaim became vested so soon as tlie injury was done. I
think if you carry ut my friend's argument to its legiti-
mate ciinclusioii ii .irings him into that position.

Till' Commissioner on the jiait of the United States: —
Snppo-e he became ;i naturalized citizen. 1 thiid< the
piactice of conventions and of mixed commissions has
lieeu the other way. 'i'lieic seems to be some difficulty
in (ireat l-!ritain recovering fi'om the United States
States ,•) fund to be disi riliu ted among t'ilizens domiciled m
the I'nited States at the tnne when the distribution takes
30 place. 1 do not, nii'an to say that 1 have , any views aiiout
it. but tbeieseem to be practical ilitticulties.

Mr, i^'ters:-- j submit that there is no real ditticnlty
about it. The claim is put toiward by (ireat Britain iuid
to a certain extent as a national claim, a claim that be-
came vested at the time the injury took place, it is a
laile (d' Law, practically clear and plain, I submit, that even
naturalization is in no respects retrospective. 'I'hat is laid
down by several authorities, that if you becom(> natiual-
ized it has im ellect on acts that have occui'red before the
4onatui'.ilizatioii, I contend under this case th.it there is no
dilHculty in the matter.

.Now theie is another matter which I wish to call atten-
tion to. ( hi page Kl of the argiuneut my fi'ieud is on the
question as to the effectof a citizen of the United States
being partly interi'sted in the ship, lie says:

" It follows, that if (ireat Pritain shall shift from the Rround here-
" tofoie taktMi. that owiH'rHlii)) in that riatioiiV ixjlitioal Hul)j(?('ts is
" coucIikIccI liy showiiit; a ship's rcyfistcr, and now claim the ri(/ht to
" protect .Vnicncau I'itizciiH as against their own i-ouiitrv hocaii.se of
-Q " their ilnmicile la ,)ropiiHition ni'ver heard of before except in the ar-
■* " K'lnient here), the ehaiijje should start from the postulate as to them,
" that their domieili' )i.v residence has lietn eonelusively shown, Ixith
"at the time of the seizure, ami at tin- tinui of tho treaty and pre-
" Hentatn)U of the elaiins.

" The ipiestiuM remains as to the eflfeot of part owuerahii) by an
" American citizen with a liritish suSjeet. If joint owners or partners,
" the wliide (daim must fail l>ey(Uid (juestiou.

" \ recovery cannot in such casc> he had for a moiety by the rule of
" international or common law,

" Whatever the rule, however, on this aubjoet, the United Statee
^. " desires to nr^'e it only as a^rainst those persons who have suireroj
^^ " their nanu's to be used by American citizens, or have permitt(!il the
" investments of American citizens, with them jointly, havint? the
" object in view to aid such citizens to violate the laws of their
" country under cover of suidi arrangements, and havt- befouled their
" consciences in the elVort to sustain the frau<l8."

1143

„1L.

(Mr. Peters' Argiiiiient in Keply.)

I do not understiind liini in liis oral argument to make
the distinction tiiat lie inai<es lier >. I tliink your Honors
may make a mental note of the f;ic't tliat that statement
in his written argiiiiK^nt goes a long way to support tiie
contention i was making that tliey were i)utting tiiese
cltiims on the giound that I'nited States citizens ac([uired
vessels tor the purpose of defrauding the United States

10 law. Because he says it is not urged hy tiie Tnited States
against the owners of tlie "Tiiumph " oi- tlie "Onward."
Finally, he says that the (piestion of jurisdiction remains
for the Conmiissiouers to decide, hut that, as far as counsel
are concerned, they urge it only against tliosc who have
aided the (;iti/ens of the I'nited States to violate the law,
and so forth.

My learned fiiend, \v lien at Victoria, when the " On-
ward" case was closed, said the ohjection as to American
ownership only seemed to api)ly to one moiety "f this

20claiin. If. my lea rni'd friend is correct in his ])ri>pfisition
that hi' only wishes to urge it in such lU'^es, ilicn that
ai)|ilies to the " Carolena " ;is nuu'li as to any case he has
mentioned. However, T suhmit to the Cdurl, as a m;Ut(!r
of law, that there is no donlit ahout it whatever, even if
there wns anything at ;dl in the (piestion of I'nited States
citizenship, it coulfl not he held to apply to anything more
than the interest that was held hy :i ( iiizen of the I'nited
States. It never could he held to take away the interest
of a f'.il' hlooded British suhject, even though a cili/en of

30the United States happened to he a part owner in the
shi|). The (piestion presents itself in this way: take the
case of a Ihitish suhject who owiit d a part of a ship, and
hetakesa )iartner with him whom hebelievesto hea citizen
of tireat Britain, hut it turns out attei waid that he was
a citizen of tlu' Uniti'd States. Sup|)ose the vessel is
seized. Is it to he supposed that the nian. innocent of
any idea thai there was a United States citizen with him,
shtiuld he punished to the extent of the loss of his share
in tiie vessel.

40 Now 1 come to the general (juestion of the etfect of dom-
i'lie on the rights of (ireat Britain to jiresent claims. My
learned fiiend, Mr Dickinson, has argued this (piestion at
very great length, and many of the principles he lays
down tliere is no dispiit(> about in the lirst part of his
argument he examim s the (p^e^tll)ll as to whether, pre-
vious to the provisions of the 'i'reaty of 187<i, tlie citizens
of either country wen^ allowed to sever their original alle-
giance. Tiiere is no dispute whatever iietween us on that
point; not the slightest. Although 1 listened with great

5oi)leasure to my learned friend's liistoiical sketch from the
time of Cicero down to that date, I lit re was no dispute be-
tween us on that point whatever, 'i'lie consi(l(Mation of
this (]uestion, we submit, is not involved in the present
case. We further admit that under the Treaty of 1870,
whether subjects or citizens of either country are allowed
to renounce their original allegiance, does not mateiially
affect the controversy between us. Now, having !>ia(1e
bis historical sketcli, lie proceeds to deal with the (pies-
tion of allegiance as ai)plicable to the picseiit inquiry, and

60 tlie position he has taken renders it necessary that we
should very clearly lay down our position in contrast with
the position he takes here, that your Honors may be fully
charged with the dilTerence between counsel on this im-
portant matter. Mr. Dickinson's propositions are best

1144

(Mr. I'etor'd Argument in Repl\'.)

taken from Ins printed brief. On page 14 he lays liown
tliese pi inciples:

"A foreigner i>onnnnpntly (loniiinltHl iu tlio United StateH like the
" cliiimiiut Cuojier, nlllioiigli uuiiiitiu'nlizeil, owoh during the duration
" of bin doiiiicili' nlli'giiiiui> to tlii'ir (ioverumont, obedience to their
" nuiuicipai lawn, umi cspeoiallv to tiieir national aHuertion of what
" is variously termed dominion, novereiguty, or jurisdiction."
+ •:^ * * •>:• » *

And on paj;*' 15 is this doctrine asserted;

'• A citizen of the United Htates, wherever resident or domiciled,
" until he becomes natm'alized in tireat Britain, is atill bound to his
" original alle;,'i,inee to the United States in respect of —

" {a. I Their ussertum of jurisdiction and Bovereiguty over territory
" or j)roiierty.

" ( /i.) All municipal luws having an exterritorial ettect. "

These ate the two propositions which lu; lay.s before
yon. A'ow, W(; sid)nnt that both of these propositions are

2o entirely too liroad. Take the second proposition, and we
find it is distinctly contros't'rted by the lv<>zta case, and
also by the Worth and 8chreil)er cases cited in our brief.
Kow. as to tile JCozta case, Mr. Dickinson draws attention
to the fact that in t lie Taussig case, Mr. iVlarcy did not iiold
the same view that he di<l in the Kozta case.

The facts in the Kozta case are liebue yor.r Honors.
Kozta, an Austrian by i)irth, was dmniciled in the United
States; he was seized in 'I'urkisli territory by Anstri;,'!;
ofticers. Now, this case is remarked n|)on in the book ni"

30 learned friend cites so often, Cockburn on iN'aiionality.
C'ockburii, at page 122, says in a note;

" Hotli jiiirties were e(|iially in ttu" wrong. The .Vustrians had no
" j)reteMsi' oi right for seizing Kozta on Turkish tenitory. T'ho argu-
" ments of Mr. .Marcy on tliaV point, whicli are to l)t^ found in Law-
" rence's note to Wheat on n^liitive to this case, but which are too
" long to lie inserted liere, seem cnnclusivi- jn this ])oint. On the
" otiier liaiul, tlie .\iiierican autlmrities iiad no rigid to claim Ivozta as
" an American suliject, as lie had not liecome naturalized. T'he |)a'-tv
" really entitleil to complain was the Ottoman (iovernment, which
" refused the application ol the Awstriaus for leave to arrest Kozta,
^Q " and [irotcsted against tlie outrage oll'ered to their authority, but
"whose protest does not api)ear to liavo been heeded."

So that it seems, according to this learned author, the
Ottoman Ciovernment had the light, a rio;ht that was im-
propeily refused, to [irotect Kozta even against the
Austiiaii (iiyverniiKMit, the govermneiit of his original
birth, so that position, if coriect, controverts myieaiiied
friend's secmul proposition. It does not controvert it
altogethei'. but it shows that his |iroposition is too broad,
that the proposition is not true unless it has eombiiied with

5oit certain (pMlilications. And when yon tiiid him laying
down a proposition uiiicli is too liroad, it reiiuires a care-
ful inspucticni to see bow lar that proposition ought really
to go.

iNow, if your Honors will tenienibir, my leariuMl friend
strongly dilfered with .ludgi' b'ayiior m the ca.se of Worth,
cited by lis, and be slateil that Hay nor, when aiiotlu'icaso
came up involving the same point, had abandoned the po-
sition that he took before as not correct. Mow, as a mat-
ter of fact, 1 want to point out to tlieCoiU't with reference

6oto the Schreiher case, said to he inconsistent with the
Worth case, that there is 110 such incoiisisteiicy; ;iii(i that
Judge Kaynor ditl not iihandoii the position he took in the
former case As ;i matter of fact the .lodges who gav<»
their jiidgineiit in the Scbieiber case adopted the rt'ason-
iiig used ni the otlii.'r judgment. I will leter your Honors

lUii

"^^1

(Mr. Peters' Argumont in Reply.)

to tl)o judgment in flint case. I find it in the Senate docu-
ments, ^■()s. 21-1(1, -Jd Session, 44 Congress, page 110:

" A fort'ifjiior iiiiiy lio ('iititlcd to nroteotioii oitlior as trp Iuh ijorson
" or as to his proix'rtv, or liotli. If Ik? in within tliiH i'(nintrv orou the
" (lock of (iiic of our vessels his person and liis |iroi)(>rtv with him are
" nnder oni- protection. .Vml if liis pro|ierty alone is within this cmui-
" try it is iMititled to and everywhere receives the Kaine iirotection as
"the pro)ierty of citizens; and so of the i)ro|ierty of an alien noii-
^ " resilient upon the sens in an ,\niericaii vessel, this (iov<'rniiient has
" always i'\tenileil t>< it the same protection as to that of cil 'ens.

" W(! think the lanf,'ua(j;e of this clause oi the act exactly adapted
" to a state iif facts like the present, anil tl'at (Jonjrress meant
" to say. ' Whenever, under the circunistaic's of the case, the jier-
" sou or property of any chiimant was so situated as to be entitled
"to the protection of the I'liited States, you shall a vard to such
" claimant indc-mnity fur loss; hut you shall have r ■ijanl to the
" power a>;ainst whom protei'limi is' claimed. If a el limant who
" eithei' in his ]ierson or his (irojicrty mif^lit otherwise Iwive liei'U eii-
" titled to our protci'tion. was a native horn subject if Juifjland,
" thron^rh whose ne)^litj;etici' thc.ie losses occurred, you '.viil not f^rant
20 " liiiii vedri'Ss. We did not eiif,'ajj:e to protect him as i.^xainst the acts
" of his own f^overnineut, even tlKUi^h as a-^ainst all thf icst of the
" world he «as entitled to and would receive protection."

* -;- ■;-*■**** v

" The only other objection to the recovery by the claimants in this
" case arises out of the faei that Meyer hail aipjilicd for and been ad-
" mitted to the |>rivilei;i>s ota liritish subject in India. It is claimed
" that he coni<>s within the case of the Ihitish subject excluded by
" foi'iner decisions of tins Court.

" Meyer was not a mitive biun Mritish subject, as has i)een the case
" of every one heretofore rejecte.l. He was never naturalized iu
" Kni;land. I'he ipialitied naturalization which he obtained ^'avo
.30" lam no ri^htsof a Ihitish born subject inKnt,danil. It only entitled
" him to the enjoyment of certain privilcLres in liritish India. He did
" not renounce his alleniance to liis native country, nor did he ac-
" (luire the rij;ht of protection fron; (ireat Britain. exce|)t as to his
" person and i)roperty while within the jurisdiction of the colony
" which f^ave him the naturalization. I'lion his return to his native
"country he niinht lawfully bear arms a(iainst (ireat Uritain."

My leaiiicd IVieinl lias made some leiiiaiks as fo tlie
standing of .liidge l\ayni>r. I'eiSDiially, 1 kiow nofliiiig
alien f liim, nor aiiytliiiig altoiif flie .Judges tiiattumsli tilted
4otliat court, hut my le.iined friend is in error when lie states
tliat tliey are not entitled to he called Judges or to lie called
a court. As a inatfer of fact the very statute under whioli
they were a|)poiiite(| designated them asacoorf. lie says
it was only constituted for one year, hut as I r<'a<l it it
states it WHS for two years.

Jt was deliherately decided that (hey we>re a court in the
case of Schieiher, at page l'J4 of the volume 1 have just
re.ad from.

" The Court of Commissioners of Alabama Claims was, by the act of
50 " 23d .rune. 1H7I, constituted a court, not in form merely, but in every
" essential attribute of a court. It is called a court, and its mem-
" bers are desi(riiated as .Tudges. It is rei|iiired to meet and orpiiiize
•' as a court. It is emiiowered to compel the attendance of parties
" and witnesstvs, to administer oaths, to preserve order, to punish
" for contemjits, and to enforce the production of books and papers.
" It is rei|iiii(Hl to hear ami consider the allegations and |iroofs of the
" parties, to keep a record of its procecdintjs, to enter jiidnmcuts,
" and to exercise, for certain purposes, the powers possessed by tllO
" t'ircuil and District Courts of the United States."

Now, I would refer you to t'ockhuin on Nationality,
6opages i;io and i:*.',*, siiowing that Sei-refaiies Seward and
(.,'ass reallirmed the doctrines of iirotectiou against the
country of original allegiance. I do not tiiinU it would he
worth niy whih" to detain the Court hy reading those
pages, hut I .1111 sure your Honors will do so. Our con-
tention is thiit it shows that these two Secretaries of State

1140

(Mr. Peters' Argument in Reply.)

reaftiiDiiMl the doctrine of protection, even against the
country of oiigin;)! allegiance.

Now, my learned friend put sonie illustrations as to the
invasion of territory. I think one of them was suggested
by tiie Commissioner on the part of the United States, in a
case of su|)posei! taking from some part of New Bruns-
wick by the (lo vernment of tiie United States of some
aocitizen of the United States, would such citi/en have the
right to piotection? My learned friend, aftei' he had con-
sidei'cd the matter some time, had to admit tliat in that
case his doctrine would not apply; that Great Britain
would have IIk^ rigid, to protect, even against the country
of original allegiance. So that again shows that the prop-
osition laid down by him is too broad.

Again, let us see if there are not other cases before this
Court where my learned friend has to admit that his d(Kv
trines were too broad; that tbeie are cases where the
20country of domicil can claim a right to jirotect i)eople,
even as against the country of original allegiaucc. Take
the Tient case, wbei'e Mason and Sliilell were taken by
force of arms from otf a British ship, .-md 1 i)ut this
proposition: Assunung that Mason and Sjidell jiad on their
persons a large sum of money and the Unitwl States
took it aw.ay from them, is it to be assumed for one mo-
ment that (ireat iiritain would bavi' Ikmhi satisfied with-
out having that money returned? Assuming that they
had any [)roperty taken from them, is it to be presumed
3othat Creat Britam would have been satisfied until that
property was returned? Not at all. (ireat Bi'itain re-
(piired those two men to be put back Just where they were.
'Jbose two men were citizens of tiie Unittid States. (Jreat
Britain was not satisfied until tliey \V(>re restoicd to their
oiiginal position, and if they had had prop(irty taken
away fiom them they ceitainly would have re()uired that
it be lestoit'd to them.

Mr. J)ickinson:--Bear in mind tii.at the belligerency of
tlu' Southern Conft'devacy had been recognized.
40 Mr. Peters:— I am aware of that. It had been recog-
nized by Great Biitain, but had not been recognized by
the United States.

Mr. Dickinson:— Well, practically.

The Commissioner on the part of the United States: —
The Supreme Court have pretty well settled that it was a
state of belligerency though never formally recogiuzed.

Mr. Peters: — That does not alter my position. We will
admit that (ireat Britain acknowledged a state of belliger-
ency at that time. I draw your Honors" attention fuither
50 to the fact that in tb.at particular case; Mason and Slidell
were not only citizens of liie United States, but also were
citizens of the United States in active opi)osil ion against
the (JovermniMit of the United St.ites. So the case is still
stronger in our favor, Notwithst.inding that fact. Great
Bi'itain says we have the light toi>rotert you because you
wereon board of our ship, which is part of ourpropeity,
and therefore when you were taki'u olf even by the Tnitud
States, against whose sovereignty you are now iigbting,
we uHist demand that you lie put back. It seems to me
60 that the itro])osition of Mr. Dickinson thai the State can
never protect as against tlie country of origin, is alto-
getlu'r too broad a proposition.

Take the case of tin' " \'irginius"; the " V'irginms" was a
United States ship with a United States legist ry, anl hav-
ing a certilicate of nationality she Hew the American flag.

iu:

(Mr. Peters' Argument in Reply.)

As a niattei of fact the whole of the " Virginiiis" was
owned hy a Spaniard. It was proved to the satisfaction
of the Attorney-General of th(i United States— that
the papers which she held from the United States
(Jovernment had heen obtained by the t;rossest frand.
That vessel was seized and some of the men on hoard were
taken on shore and were shot. My learned friend says

lothat that has not anythinji to do at all with the taking of
the ship, because they were taken on shore and th.'re
without a trial and against th.n laws of civili/ed countries
these people were shot, and for that compimsation was
demanded. Hut my learned friend loses sight of this
fact that inune(hatt>ly the United States insisted that the
vessel, although admittedly owned hy a Spaniard, should
he I'etiu'ned to the United States ( iovcrnnuMit ; and mark,
youi' llonois, they also insisted that the people who were
not shot by them, both the passengers and crew, should

20 be returned on board the " N'irginins "" to the United
States (iovernmenl. A glai\co at the list of survivors will
show that a veiy large nnndier of them were citizens of
Spain. You will find a list of them in Mxecutivii Docu-
ment No. 'M>. 4.'i Congress, pages l,s7 and ISS. 1 refer you
to that list to show how it proves my i>osition. A mere
glance at it will show in tiiatcase, although tlie vessel was
really owned by a Spanianl, and although the crew and
])assengers were nearly all Spaniards, the L'nited States
were not satistied with a mere comi)ensation for shooting

30 the men, but she demanded and successfully demanded a
return of th(i vess(>l and the crew.

Let me point this out. Vour Honors will remember
that thei'e were a certain mnuber of people on board the
" X'irginius" who W(>r(! British subject'^, and some of
these peopk^ were taken on shore and shot. (ilreat
Britain made ;i den)aud on the Spanish (iovernmeut
for comj>ensation for her subjects who were shot. Great
Britain did not contend .so strongly that the seizure of
tlie " VMrginius" was wrong, as they thought possibly it

40 might be justified on the ground of self jueservation, but
Great Brit.iin said whether it was right or wrong to seize
the " Virginius," yet^ as some of her citizens were shot at
San idego de Cuba, after a mere sham tiial, sl-.e de-
manded damages for them. At page 4'_', Foreign State
Papers of Great Biitain, LXXVI , the British Minister
reports to Lord Granville on Decend)er \i, ls73:

" Tlii> ooi>v of till' S|mnisli ciri'uliir to iirovincial autliontii'H iu wliich
" it i« stntt'ii till' iliH[mti' with tlio Unitoil Stiiti's laini'il by tlu' caiiture
" of tlir ' Viif^iiiiiis ' has Iuimi aiiaut^i'il in a iiiaiiiiin- hif^hly lumoiable
CO " to lioth romitrioH. Tho Oovirnmi'iit of tlu' Hi'inililic will jrive uj)
"the steaiiicr 'Virniuins' and thi> snrrirorx tif' Ilit' creir to the United
" States."

J^oyd's Wlu'aton, paragraph PJ4, i)age lit',), says the ma-
jority of the passengers and crew were Cidians.

In the Senate E.xecntive Document, No. 3(i, page 185,
Mr. Hall writes to Mr. Fish stating that the total number
on bo.u'd the " \irginius '' was J.'i.'^i—,");} were executed, 1
released and lol were still held as prisoners. As to the
"N'irginins'" surviving crew being returned, I refer your
CoHonors to the proclamation of the Governor of Uuba, page
Iti'J, where he says on December 1!, 1873:

" Meantiino by tlio law of ueoessity ami tho order of the Oovcrn-
" nii'nt of tlu'Siiaiiish Ht'imblic. \et ns ti'tnrn with her surviviu^ I'rcw
" till' sti'anuu' • \ irnitini^i,' whii'li had ahriidy coniiiu'tod and was
" ttboiit to fouiliu't munitious of war iiud oUii'i'l'.s and uu'U to the camiis
" of our cncmit's."

1U8

(Mr. Peters' Argument in Rei)ly.)

President Grant's message on January 5, 1874, pages 2
and 3, Ex. Doc. Number 30, refers to the—

" surrender of the vobhoI and the Rtirvivors to the juriHdietion of the
" trilmnnls of the United States, and also tlie prisoners who survived
" the niassaeres were surrendered at San Diego do Cuba on the 18th
" ultimo, and reaehed the port of New York in safety."

The ndditioual fact ai)])ears that as to tlio British sub-
jects taken on hoanl tliat ship and who were not shot, the
Spanish novciiinient (hd not dcHvci" them to the British
Government, hut dclivei'ed them to the United States
Govcinnicnt, npnn \ho ground that tliey wer<' taken from
a vessel that «as regislered as an .American shiji and ilew
the Ar)ieiican Ha^-. That ceit;iinly sliows tliat tlie con-
tentinn lit' inyleameii friend is aUogether too geneial a
proposition iind loo liroail.

Mr. Dickinson: d-)o yon mean to say that tlie (piestion
2„of the natmah/cd citizensinp of the ])eoph* who weie shot
was not CNtalihshcd?

Mr. I'eteis: — Tiiere were some natuiah/Anl citi/AMis of
course.

i\ir. Dickinson: — All of tliem?

]\!i. Peteis: ~ I do not take that to he the case with re-
gard to ail of them.

Ml-. J)ickiiisoii:— You can sec the wliok; corres])ondence
with r«'feience to the matter. The controversy continued
later until it was h(^ld that yiiu could not go behind the
^ naturalization certilicatcs.

"'' Mr. I'ereis: Cooper was a natural horn British subject.
Again at anotlier point Mr. Lear, the iiiitish ^Minister at
Madrid, i(>poits to Lord (iianville, iS'ovemher 2'.*, 1873,
that tlie British subjects foiniiug part of the passengers
and crew ol tlie '" Virginius" are at the disjio.sal of the
United States Government because they were captured on
board the said American vessel. The Spanish Govern-
ment g;ne as a reason for giving hack these British sub-
jects to the United States, that they were captur»'d on
board a vt-ssel heloiiging to the United States, and being
there, thfj weie entitled to the full protection of tlu; flag
of tlie Uutted States. We admit, as stated in Cock burn,
and (juotiijg from Story, page 84 of his hook on " Nation-
ality":

" Jlr. Justice ;itory, ' iin oniiiient Anienean,' holds that every nation
" has lithe'-io '.issunied it as clear that its laws extend to and bind
'■ uatr.ral oon. snbjciets ut all times and in all plaees,' yet Her Majes-
" ty's Coveriinieut did not dissent from the oi)iuiou of tlie same
" learned .1 kIkc, thai • in Kpeakiug of the right of a State to bind itu
"own iiati'e snbjeets everywhere, we speak only of its own claim
50 " and exer.'iHo of sovereignty over them, and not of its right to com-
" pel or equire obedience to such laws, on the part of other na-
" tions;' and Her Majesty's Government concurred with Mr. .lustice
" (Story in imtiutaining tiuit m'urji mtlion han an exiiiiaire rif/lit li> I'eijiiliite
" persmiK mid ijthnia irilhin iln uirn territory uccordiiig to ilK own sover-
" ei;/i/ will (Did ]iolili/."

Now, your Hon'ors, I call your alti'iition to these words:
"Power to regulate persons aiul things within its own
teriitoiy according to its own sovereign will iind polity."

We fully .agree with that proposition. Where (here are
gQgfxids belonging to citizens of the- United States within
tlie Lcrritorv of (Jieat Britain, (rreat Britain claims the
right to j)r<>i.wt; thesp goods Mieie. Mv learned friend,
Mr. Dickiiis..'!. ^tat'^i 'fibat our position with regard to
Coofier is imoiisisteait with our position as regards [I'raiik.
T say that as ('iii*^ .Jiwtiee (Jockbuin lays down the prop-

1149

(Mr. Peters' Argument in Reply.)

osition, our position is perfectly consistent. No other
position could be taken by Great Britain, ami it is the po-
sition sbe lias taken ail thioufib this niattei'.

In otiier words, this doctrine applies only as between
the nation and its subjects and (ixclusively in relations be-
tween themselves alone; it in no way extends to claims
presented as national claims, and the reason is, that
10 such claims are i)resented not so much on behalf or in
the interest of the ])erson ag^i'^^'t'd against his
own nation, as in r(3paration for a national injuiy and in
discharge of the duties of protection due to such person.
Thei'e is our position. \Ve stand ui)on broa:l ground -
and we submit that the ground we stand on cai.not l)e suc-
cessfully assailed. We stand upon the ground that the
vessels were British vessels, and as such they were con-
sidered as forming paitof Br'itish territory; that the asser-
tion of the sovereignty of the United States could not ex-
20 tend over such territ( ry or vessel and that Great Britain
i' entitled to i>rotect nil parties on such vessels, who were
iiJterested in them or their voyage. In other words that
the seizures in question amount to an invasion of teiri-
tory .

It cannot l»e denied that whether the United States were
asserting lln'ir sovereignty or not, (iitat Britain would
have had the right to demand at the mouth of the camiou
the return of the ve.;s(^ls seized, and unless it is asserted
here that this Commission does not run in parallel lines
30 with the rights of Gieat Britain, as twi-^ting at tlie time of
the seizure, our position is uncpiestionabltv

Now, let me put it in this way: would the fact that the
seizuies were made by th(^ United States in assertion of
territoi'ial or extra territorial lights, or that the owners of
the vessels weie domiciled in the United States, or that
persons interested in their voyage were United States
citizens domiciled in British teriitory, have cut any figure
in the right or action of Great Brit;iin in retaking posses-
sion of the vessels seized^
40 That cpiestion is a fair one to argue, and that is a ques-
tion that my learned frit>nd, Mr. Dickinson, has not
answered in any aigument that he has {)laced 1)6-
fore the tribunal. Up to the present timt; we
say that our learned friend draws his deductions
from propositions that aiv too broad, and having started
with those too broad pro|)ositions, he comes to most start-
ling conclusions, 1 ask wlure aiv the rules of international
law permitting the United States to seize British vessels
on the high seas under color of exercising a propiit'tary
50 right in fur bearing animals, whether such vessel was
actually owned or not by a Biitisii snbj(M't domicileil in
the United States^ I liave already asked that (piestion,
and 1 fail to see tiiat any answer has been given to it.
Such a startling proposition is laid down by my learned
friend the counsi! for the United States, and I say it is
incumbent njxtn 1. in to produce some authority in favor of
it. It is incumbent • \)ou him to show that it has become in-
ternational law and tratthe nations haveconsented to it, be-
cau.so it is the found, t^ion of international law, as put by
60 Lord Russell in bis or, ' aigument before the Paris tribu-
nal, where he s,\id the . hole i|U( stion turned on the ipies-
tion of pluriiitiw ijcutihii.s. Wiiere is the iuithority that
will show that eitlifr Grtat Biitain or the United States
ever consented tint a proposition of that kind became
part of international law; a pio|)osition that a pioperly

11. -.0

(Mr. Peters' Argument in Reply.)

registered Britisli vessel, and i)r()|ieily flying the British
flag should be coiideinned? We iiave the right to ask
for some autiioiity on tlie (juestion of international law
to su]>|)ort that jiroposition. On tiie contrary every
authority on the subject of international law admits that
every comitry has the light and tlio sole right to protect
its own vessels, to look after its own flag, and as some

lo writers put it to act as a police ovei' their own commerce.
The proposition that Mr. Dickinson laid down is the very
opposite of that. England, the I'nited States, France
and every coimtry of Europe maintain that over its own
flag, anil over its own commerce, every country has the
sole right to act a« police. My leai'ned friend, Mr. Dick-
inson, in making this contention started from a basis thcit
is too broad, and he never can come to a light conclusion
from such a basis.

My learned friend goes on the idea that L'nited States

20 citizens, eilhei' by domicil or by biith, in the case wlu're
they are domiciled in (ireat Mriiain, and peisons who were
domicileil in the rniteil Slates, who were original subjects
of Great Britain, have set themselves up to undertake to
break and disi(>gai(l the law and the sovereignty of the
United St.ires. We denied that Cooper's domicile in the
United States made any of the vessels in question Ameri-
can properly, any more than it would have made a piece
of real estah' on Hritish teriitory, owned by him, Amer-
ican jiroperly. The shii)ping laws in each country are

30 no doubt municipal laws, but having under the iiiles
of international law the effect as following and protect-
ing on the high seas the vessel registered under such
laws.

We go fuifher, and v <• say that it is a fallacy to argue
that either Hritish subjects or citizens of the United States,
fishing in Hehiing Sea at the lime of the seizures in ([ues-
tion, were violating the laws of the United States. J sub-
mit that in \ssi',, lss7 and 1SS!» theie was no law in the
United States that prevented any one from hunting fur

40Beals in Behring Sea. I contend further there was no law
to prevent eitbei an American citizen or a citizen of tireat
Britain from doing so. It is a fallacy to pretend that in
1^86, 1887 or 188!> the law of the United States prevented
any person, either its own subjects or the citizens of Great
Britain, from catching seals! in Behring Sea. It niitjht
have been so if such laws, to wit, Section lsi.56 of the Ke-
vised Statutes had in terms or of its own force and effect
covered Behring Sea. But that was not the case. The
proof of it is that Section I'.thO has remained in

SOexistence as it was, and that now it in no svay prevents fish-
ing in said Sea. Through an erroneous assumption on
the part of the Executive, it was for the time supposed
that Section 1056 extended in its effecc over Behring Sea,
but as the result of the award of the Paris Tribunal the
error has been ascertained and acknowledged. This er-
roneous assumption did not make the law different from
what it now is. and the Paris award did not and could not
change the Uiw; it merely declares what the law was.
That IS what my learned friend Mr. Beique meant when

^he was discussing the question to prove that the Paris
award had retroactive effect.

The Uomniissioner on the part of the Uniied States: —
That is the way I understami him.

Mr. Peters:— I shall make that clear. If I understood
Mr. Dickinson correctly, he argued that Mr. Beique had

ll.M

r'S,

(Mr. Peters' Arj^unient in Ifcply.)

contended tliattlie " La Ninfa" case had some retroactive
effect. We did not make any such contention. We con-
tend that the Pari.s award iiad the effect of declaring
what tiie law was in 1HS((, iss7 and IHS'.t, and in that way
was retroactive and in no other way.

The Connnissioner on the jwut of the United States: —
Mr. Bei«]ne made hims(>]f i)erfe(tly clear to me.

lo Mr Peters:- If you remeniher, Mr. Dickinson made some
sugf^estion about that.

Mr. Dickinson:— I made no suggestion at all as to it be-
ing retroactive; that came from the Hencii.

Mr. Peters: —At all events there seemed to bo some ob-
scuricy as to the meaning, and I wisbcul to have that
cleared away. Kven if it were true, which we do not ad-
mit, that imtil the Paris award was ren<lered, tlu' judiciary
of tiie United States wen; bound by the erroneous
position taken by the Kxecutive or political depart-

20ment, and that as a conse(iuence the persons aggrieved
by the seizures would liave been unable to recuvei', this
assuniptiou of the Ext'cntive has proved to be tnei'ely a
temporary and accidental obstacle which iias now l)een
removed. And it is only in tliis connection that we have
cited the " La Ninfa" case, as ai'knowledging that as the
result of the Paris award, the judiciary is no more bound
by assumption which has been removed, and that Section
li»56 never extended over Behiing Sea. Tb(! proposition
Ave make will Iw made more apparent if it be supposed

30 that after the seizure of a vessel belonging to a citizen of
the Lnited States, the proceecMugs bad Ik'i n suspended
until after the rendeiing of the Paris award Can it be
supposed by this Commission, appointed to giv(\ effect to
that very award, that the vessel could have been c(ni-
demned; There is a proposition which proves itself.

We further contend that, under the L'nited States Con-
stitution, whether the construction |>laced upon a statute
by the Executive in matters of assertion of territory be
binding or not upon the Judic'iary. is a matter entirely

40 municipal in its character, and can have no influence
whatever on this Commission. If the position was re-
ver.sed and a law siniilar to Section l!t.")ti had been enacted
by (rreat Britain, the courts in the latter country would
have been free, and it must be assumed that their decision
would have been from the outset m accordance with the
Paris award, and that therefore the law (similar to Section
lit56) would hav(> l)een iield as not applying to Behring
Sea.

I am willing to admit that a law might have been passed

50 by the United States wliich would have made it il-
legal, notwithstanding the Paris award, for any of
their citizens to fish in Behring Sea, but no such
law was ever passed. My learned friend, Mr. Dickinson,
told the Commissioners that there is a rule that a person
domiciled in the United States has no right to ask
the countiy of his allegiance for protection as against the
Governmeiit of the United States, because in the United
States they have a magniticent system of courts, and my
learned friend, Mr. Dickinson, spoke very eloquently on

6otliat point and said that these subjects of the foreign
power slioukl apply to the courts of tiie country they lived
in before they could api)ly to a foreign power to protect
them against the U uited States. We contend that the ne-
cessity of having recourse to the courts of the United
States does not apply as against the tortious acts of the

ii:.-_'

(Mr. I't'fiis' ArKiiiiuMit in K'cply.^

(ii)vi rnint'iit itself. Hall in his hook on lnlt>rnation:il Law,
at jiap' -'7.'>, states as foiious:

"HtatcH ixmscss u rifilit of pnitivtiiin tlit-ir H\iliji>i'fH iiliroad wliicli in
" I'd-ri'lativi' to tlit'ir rc'spdiisiliilitv in rfspocl of iiijiiriKs intlicti'd
" upon foii'innt'iN witliin their iliiMiinidiiM."

Mr. Hail calls atti'iitidn to t lie fact that tlie ri^ilil of pro-

lotcctinn is CO iclativc to tlicir icsiionsihilitics in n's|i('ct to
injmu's iiitliclcil on persons witliin tlieii' dominions. They
have the right, thai is to say, to e.xact reparation for inai-
treatinent of their snhjects hy the administrative aj^enls
of a foreign power, if no nieansof ohtainin}^ le};al redress
throngh the trilmnals of the coinitry exist, or if sncli
nie.nis as e.xist have heeii e.\hans|e<l in vain; and they
have the riyhl to iciinire that as helwt'en their snhjects
and other jnivate individnals the jiroleclion of the State
and the justice of the coni'ts shall lie alVoi'ded eipially and

2othat conipensalioii shall he made if the eonrts. fi'oni cor-
rnption or from prejndices itrothei' like courses, are guilty
of serious acts of injustice.

.Mr. Hall there points ouf that when it l»e<'onies a tpies-
tion hi't ween a citizen of (iieat Britain and the govern-
ment of tlie ((inntry in which he is domiciled, where ho
has no means of applying to thei'ourtsof that coiudry for
redress, then his lonnlry of origin can a'so protect him.
My learned friend. Mr. Hickinsou. lays ilowu an entirely
dih'erent luoposition. He lays down the proposition that

30whena dispute arises hetweiMi a domiciled citizen and a
native horn citizen the country of domicil has a ligiit
to send the>etwo men to the same com ts and lo say that
they sliall he treated e()ually and in the same manner.
But that principle does not apply when it is a dispute nt)t
hetween private imiividuals hut .i domiciled citizen, and
the country where he is domiciled, hecause as against that
country he has not any means of ri'dress I lull says:
" I^ioadly, all persons entering a foi'eign country nnist
" suhmit to the laws of that country; provided that the

40 " laws are fairly administered they cannot as a rnlt; com-
" plain of tin- effects u|>on themselves, however great may
" i)e the practical injustice which ma.y result to them. It
"is only when those laws im not fairly administered or
" when they ])rovide no remedy for wrongs or when they
" are such as might happen in very excei)tional cases as to
"constitute grievous oi)|)ression. then that the Statt; to
" which the individual helongs has the right to interfere in
"his behalf." Now, I call yoiu- Honors' attention to this
passage: " When an mjury or injustic(> is committed l)y

50 " the tioverimieiit itsi-lf, it is often idle to appeal to the
" comts." That fine (plot at ion ought to settlt^ the argumont
of my leai'ued friend. Jn this case the citizetis could not
be told to go to the courts of the Uinted Stat(>s for redress,
because the United States did not admit that there was
any giievance. and it certainly would ht^ futile to appeal
to their courts. We say that the courts of the United
States were tied by tins action of the KxeciUive. and that
there was no couri. open to our subjects to get justice in.
It was stated by Sir t'harles Tiipper in his argument that

60 there had been a change of ground on the part of the
United States upon this matter, because at Paris they did
not take this point with regard to Copper, and as a matter
of fact they never did take it until they presented their
printed argument.

I wish to point out to your Honors that Mr. Dickinson

II.-.:!

(Mr, PcttMs' Aigiimcnt in Ifcply.)

>?AVt> an a rtMsmi wliy it wmw imt ciiiisidcii'ii ;it r.uis. Ili,»t
ht'furt' tilt' I'ai is 'ri'iliiiiiiil tlu'V (ini not Invc anv i'\ iilciico
to sliow that ('()i)|i('r was (loiiiicilt'd in t lie riiilfii Slates;
that (|iit'sti()ii was not hel'oic thcif niiiiils liccau^i' ihi- tact
had not lii't'ii provi'tl to lht>iu. Now, I wisli to poinl out.
to your Honors tlial they hail lit't'ort> the I'aiis 'rrilinn.il
(•om|i!t'tt' t'vidcnct" on thi' point that ("oopfi' was doniitaicd
loin tlio Unitt'd States. I lefer to Volume Tot the .\nieric.in
Itoprint, at paj;es H-JUand ;i'JI. where tliere is set out. not ai\
iitViilavit. ifyoin' llonois wiji rernenilier, hut a st;itenient
which is taken verl)aily t'roni Mr. ("ooper in ,inswer to
questions put to him l)y counsel tor tliel'niled States;
and the counsel askinu; the ipiest ions was Mr. liMUsinj.;,
who is preHtMit heri>. and he put the tollowin^ ijiu'slionH ;

" Q. Wliiit iH your iiiiinc", iip>, ri'Miili'iicc iiixl in'ciiinitiduV \. My
" mum' IH 'I'lioimis II. Cooiu'r ; ii^i'. .^^i ; rcHidfiicc. noi'ihciiHl i'diiiit ef
" liiiiu'ct luid Hiii'iiiir 'iitu sti't'cts, Han KriiiiciHce ; miMi|mtinM, l)|iii'k-

20 " Nlllltll.

" t^. How loUK tiavc you liccu a n'sidciit of San KnmriHi'o V A.
" Tliirty-lhvi>i' years.

" Q. Arc yon an .Xincririin citi/i'n ? A. No, Hir.
" Q. Have you lii'i'ii nalnralizi'd ? A. Never."

There was I he com pli>te evidence het'oie tiieiii 1 1 i;it showed
Cooper's precise position; and I would refer your Honors
to this fait that as far ii.ick as the time when the Cooper
case was hefore the Suireme Court ol the Ciiited Slati

till the information with reo-,ird to ( '001

slaiiilin^' was

30 hefore that ti ibiiiial and it w,'is r.illieraii extraordinary
thing', when you tiiid a case arj;iieii on one side i»y the .At
torney (ieiu'ial ol t lie I niled States, and mi the other sido
by such altle counsel as were employed hy (ire.it Hrilain,
Mr. Clioate and Mr. Carlyle, hrl'ore a Court like tli«
Sii|)rem(> ( oiirt of the I'liiled Sl.ites, that Cooper's (loiiii-

cile in llie I'liitcd Stati

's never came up.

Mr. Hickiii'^on: Do ymi seriously contend. ;is a lawyer
having- cei tain ohligatioiis, t hat mere residence constitutes
domicili^^
40 Mr. lA'tiMs: I do not conleiid at all that ineie residiiico
niak(!s a coiutlusive case of domicile; hiifi I do coiileiul
that residoiice for thirty years is at all events, as all the

books show, piiniaj'acir evidence of iloii

11c

1 in f;

lit

18 really more

Mr. Dickinso

than /

nnitii liic/c.

No domicile should he found, it was

investigated .at \ictoria. I take exception that it had
anything to do with the appeal to the Suprenu^ Court of
tilt) Unileil States, or that the domicile appeared or even
the length of domicile .aiipeareil in the Ivecortl.

50 Mr. Peters: 'I'liere is no doulit alioiit its appt>ariiig ht)-
forti tli,^ ParisTrihuniil as ,1 matter of fact; if you w.ant it
I will give a reference to show tli.if the lads of tliti casc^
relating to Cooper's tlomicile wenNilsi> hefore the Supreme
Court of the I'nited States.

Mr. Dickinson: Tilt! fact that he lived at San Francisco
appearetl. The f.act of his tavil tlomicile was not im-
fiortant, aiitl ilid not appear as a matter of fact in th.it
litigatit)n.

Mr. I'etors:- I make the assertion that all along tlit>se

60 facts were practically known to the United States; they
wert! ctM'tainly known before the I'aris Trihiiiial. Mr.
Lansing went to San Kr.ancisco for tlit; purpose of invt sti-
gatiiig this very ipiestion, anil hy a most ciireful examina-
tion of Mr. Coopi-r fouml out all the fat:ts.

! 1 1*'

! 1

IMAGE EVALUATION
TEST TARGET (MT-3)

/,/

^ A

1.0

1.1

1^121 125
Jf Bi 122
iM 12.0

IL25 HI 1.4

1.6

Hiotographic

Sciences

Corporation

23 WiSi; iVMN STRIET

WEBSTER, N.Y. 14SM

(716) •73-4S03

1154

(Mr. Peters' Argument iu Reply.)

We submit, and (his applies t<> the Cooper case particu-
larly, that under Artifle III. of the convention, where you
find tlie words that tlie (loveriunent of the United States
shall have the rijjjht to raise the <|uestion of its liahility
before tiic Coniinissioners in any case where it shall he
proved that the vessel was wholly or in part the a<'tual
property of a citizen of the United States, the words
lo" citizen of the United States" mean a citizen, not
merely by domicile, hut a full citizen of the United States
either by birth or naturaliziition.

Commercial Domicii.k.

Mr. Bod well has suggested that there is another jKtint
that you must take into consideration, and that is that
there'is such a thing as conunercial domicile, which he
has fully described; and I wish to make a few remarks in
continuation and support of Mr. Bodwell's cctntention on

2otliat question, as my friend Mr. Dickinson has challenged
the conclusion arrived at by .Mr. Hodwell. My friend Mr.
Dickinson claims that tlu're is a distinction between com-
mercial domicile and ( ivil domicile; and, if I understood
his argument corrt'ctly. he has come to this conclusion
that, so far as conunercial domicile is concerned, it is a
doctrme relating to a state of war and a state of war only,
and he cites on that point Dicey. Whilst w»f admit the
proposition th.it when a state of war exists the effect of
commercial doinicde may Ite ditferent from the effect of

3° civil domicile, we do not by any means admit that in time
ot peace theie is no such thing as commercial domicile.
There is commercial domicile both in time of peace and in
time of war. The difference and distinction between
them < omes out wutiv clearly in time of war, but they may
both e.xist all the tinif either in peace or war. This point
has been argued by Mr. Hodwell in his oral argument. I
refer your Honors to pages 177 to lit4 of his argument
where he discusses It. It has there been shown that the
doctrine of the nationalization of property by rea.son of

40 the commrrcial domicile of the person, is a rule not only
of prize courts obtaining in time of war, but also applies
in civil action when the same question arises in time of
peace.

In our printed argument, at |»age,52, we have referred,
among other authorities, lo the case of the "Matchless."
This case was also mentioned by Mr. Dickinson in his oral
argument, and it is an authority directly in point as to
the application of the <loctrine of commercial domicile in
time of i)eace.

50 The statute in question in that case provided that "no
" alien shall exercise the trade or occupation of a factor or
" merchant in the plantations." In the judgment of Lord
Stowell, i)age 97, he sets out the facts of the case as fol-
lows:

" A neizure wan miido of a cargo on board t't.ifl vengel, entering the
" harl>orof8t. JoIiuh, Nowfoiiudlauil, bv tkeCuHtoniH HuuHe offlrera of
" that port on tlie ground of unlawful importution into that settle-
" ment."

6q It will be seen at once that no principle of decision
which relates exclusively to time of war entered into the
consideration of this case.

The goods were libelled and claims were made for the
goods on behalf of different owners. Among the claim-
ants was Mr. Millidge —

1166

8H."

to
in

(Mr. Peters' Ar^iunient in Jioply.)

" Described as late of Ht. Johns in this island, at present residing at
" Boston, in the United States."

The question to lie decided was wliether Mr. Milliige
was an alien oi' not, by reason of the fact that he was
cairyiiiK on trade in the United States, althoufrli in other
respects a British subject. In dis|>osinK of thiit part of
the case. Lord Stowell used the language ((noted by us at
'Opage .52 of our printed argument.

In addition to the quotation so ni.ide, the following ex-
tract from his judgment, at page 104 of the Report 1
Haggord may ho referred to:

" An ancient statute, passed after the principles of commerce began
" to be cnltivatod and favored, the 14 and 15 Hen., 8 C. 4, evidences
" a regard to this rule. The enactment itself goes only to the )>a7-
" ment of dues, but the preamble goes much further, tending to a
" recognition of an alien character belonging to u Hritish merchant
'* carrying on trade in a foreign country, without being a luenibe-r
"of a' British factory there, and preserving to him, under certain

20 41 ordin, nces, the lH>neflt of an entire Hritish character.

" VariotiB strong authoritic-s, both in diirtu and deciHiims, incline
"the same wav. Lord Alvauley, in a case reported in BoHancjuet
" and Puller, declared that it had been held that a liritiHli subject,
" resident in a foreign county , is entitled tn nil the privileges of the
" neutral nation whilst he resides in it. Lord Keuyou has also de-
" clared that persons residing in this country must, for the purposes
"of trade, be considered as belougiug to this country. In the still
" stronger case of V .non and Marryat it won settled that a liritish
" born SI- .iject residing in America might trad(> to the East Indies,
" thoutiii a British subject could not, and surely if the uciiuired resi.
" dence takes of the British incapacities he has no right to com))laiu

30 " if it fixes upon him some disabilities of its own. Under the shelter
" of these authorities, I should iui^line to hold, if I were compelled
" to face the general question, that a Hritish merchant resident in a
" foreign country must part with some cnuimcrcial privileges which
" he would preserve if resident at home, whilst he ucipiires others
" by residence abroad. Hut it is not uecessary for me to go farther
" than to deliver the result of my consideration of the present mutter,
" which is, that Mr. Millidge must in this transaction be taken as an
" American, and not as a British merchant. If so. it is clear that he
" can do whatever an American merchant can do, and clearly not
" more."

40 VVc submit that that authority is directly in our favor.

In Mr. Dickinson's argument he takes the ground that
the doctrine of conunertial domicile is one of war alone,
and he (juotes fioui Dicey's (.'unHict of Laws from the
paragraph which is heacled " Conmiercial Domicile iu
time of War."

It is perfectly plain, however, that Mr. Dicey does not
intend to lay down a rule opposed to the decisions which
are referred to by Lord Stowell in the rase of the " Match-
less," and in the other authorities which we have quoted.
50 It is not denied by us that coininercial domicile is a doc-
trine of war which has been univeisally applied in prize
courts. It has been already shown in Mr. Bodwell's argu-
ment that the point comes up for discussion more fre-
quently in prize courts than in other actions, because it is
seldom that the character of property, as distinguished
from civil status of the individual, becomes of great im-
portance except in time of war.

It has been, however, also concluHively demonstrated by
authority that when the question does arise in time uf
60 peace the same rule applies. The quotation which has
lust been lead from Lord Stowoll's argument shows that
It was a rule laid down in England in the time of Henry
Vlll., " after the principles of commeice began to be cul-
tivated and favored."

At that part of Dicey's Conflict of Laws which Mr.

1150

i . $ ■

(Mr. Peters' Argument in Reply.)

Dickinson was reading from, the author defines civil domi-
cile and coniinercial domicile, and in ho doing uses this
language:

" When a perHon's civil domidle ii in queHtion, the matter to he de-
" termined \h whether he has or has not ho Hetthnl in a given country
" aa to have made it in lionie. Wlieu a ]icr«on'H commercial domicile
" is in queHtion, the matter to )« determined iH whether he is or is not
lo" renident in n given couutrv with the intention of continuing to trade
" there."

It is plain tliat by residence for the purpose of trade, ia
meant the jxi.ssession of a trading establishment, a house
of biisines.^, as distinguished from a domestic abode. That
projxisition 1 may say is supported by some of the other
authors who state plainly that a man may have com-
mercial domicile in two or three countries at the same
time.
Our trontention has been, and is. that the question to be

20determiMtMl before this Commission is the commercial
domicile of certain persons, and that the protection which
we assert Great Britain is entitled to extend, is over the
property acciuired by those persons in connection with
then' commercial domicile. To add one word to that, we
contend that the right to protect exists so long as that
projH)ity is in British territory or in what is equivalent to
British territory, the high seas, under her flag. It has
been already argued that when a nation extends to cer-
tain pei-sons privileges by reason of comnitrcial domicile,

30 and |M!rn.its such persons to ac(piire property in connec-
tion with such domicile, it engages to uphold these per-
sons in the assertion of those piivileges, and to protect
that property whenevei- it is in danger from the acts of
another nation.

When the (piestion arises, the point to be determined is
one of fact, namely, is the protection invoked in respect
of such privileges and in aid of such property, or is it
sought in connection with the peisonal right of the indi-
vidual, founded upon his political or civil status?

40 In the present case it is not denied that the United
States have seized and forfeited certain property. It must
l)e admitted that that nation cannot, for any alleged vio-
lation of their laws or sovereignty, forfeit British prop-
erty either in liiitish territory or on the high seas.

It will be seen, therefore, that it (Contuses the argument
at this stige to speak of the personal obligation, of any sub-
ject, civil or otherwise, of the United States, to obey, while
within the territory of that nation, the laws of the United
States or to recognize the assertion of its sovereignty; for

50 such is not the (juestion.

An important point for this Commission to determine is,
can the United States, on any groumi which has been ad-
vanced respecting their aaseition of sovereignty, forfeit
the property which is now the subject of discussion?

Upon the authorities which we have quote<l, we assert
that by tha rides of international law this property he-
came, while in a British |w)rt, a part of the commerce of
that nation, by reason of the commercial domicile of the
owner. We further contend that it maintained such

6ociiaracter upon the high seas, because it departed from a

British port, under the British flag. While it remained

thus nationalized, it was taken from the possession of

Great Britain, and was without right forfeited by the

authorities of the United States.

I have, as you Honors will see, taken pains to put this

115:

(Mr. Peters' Argument in Reply.)

almost in tho form of writinfi, so tliat I might put our
views upon this matter more concisely than if I simply re-
lied upon rough notes, and I think that covers oin- arjju-
ment on the poiut of coiiunercial domicile, and that pomt
your Honors will see atf»;cts both the Cooper cases and
the case of those people who were <lomiciIeil in British
territory, that is the American citizens; Cooper, granting

lothat he had a domicile in the L'nited States-a civil dom-
icile-had also a commercial domicile and owned connner-
cial pr(»peity at Victoria. These other men. McLean and
Frank, living at Victoria, stand in this position: ihey had
the right to protecrtion, whatever it may lie. that their
civil domicile gavetluni; they also had th«- right of pro-
tection that the connneniai domic ile gives them; so that
they had hoth. Coojier had one and either is suHi( ient.

Now 1 have argued this point at some considerahle
length and I have argued these jioints of law as applying

20 hoth to the Cooper cases ami to the case of citizens of the
United States who are domiciled at Victoria. I have gone at
this length in the argument out of respect I or the great labor
my learned friend has taken in aiguingthvse points, not
because 1 think they have any hearing on the Cooper case
at all. I say that the Cooper case does not come witiiin
thenj at all. We have another ground which takes the
Cooper case out of every |)oint raised by my learned
friends. Therefore it should be understood that while I
have argued these (|uestion3 as referring to the Cooper

30 case, I have only done so because my learned friend has
gone to so much labor t<» try to show that bis line of ar-
gument a(fe(;ted the Cooper claims particulaily. I have a
statement here as to how tiie Cooper case actually stands
and when you listen to that statement [ am satisfied that
your Honors will come to the conclusion that tht^ (,'oo|)er
case does not <'ome within this at all. What are tlie facts?
Cooper was a British subject by birth; i.e was at the time
of seizing and now is domiciled at San Fianci.sco; for many
years he had l)een there, I think some thirty years; be was

40a brother-in-law of J. 1). Warren. In the year iss,-, Warren,
theownerof the "Grace," "Anna Heck," "Sayward"and
"Dolphin," got into financial ditticulties and was
compelled to assign to one (iriftiths, a British sub-
ject, domiciled at Victoria for the benefit of bis
(Warren's) creditors. Amongst other assets the ve.'jsels
mentioned were included in the a.'isignment; the
vessels were at the time of assignment mortgaged
to Joseph Boscowitz, and in order to jiay these off
it was absolutely necessary that, the vesst*ls should be kept

Soemployed piofitably. an<l the circumstances were such as
in the opinion of everybody interested except one creditor
that the actual working of the vessels should be entrusted
to Warren who was a man of great experience in such
business. The (tbjection raised by the one creditor ujade
it difficult for the assignee to act as he would have liked
to, and therefoie, in order to get over the objection, the
vessels were put up for sale tmder the Bo.scowitz mort-
gages; the sale duly took place and the vessels were
Bought in by Ctioper. He paid no money, but after the

6osale e.xecute'd new mortgages to Boscowitz. His evidence
cited in our brief shows clearly that be did this solely for
the benefit of Warren. He then gave Warr(>n a power of
attorney to transact all the business— this power of at-
torney is .set out in the exhibits, the page I have not at
hand at this moment, but I will state it in the notes. And

ii:.s

O fi >1

(Mr. IVters' Argument in lifply.)

from tliiit dat*' to tliis lie took no part in tlit' nianagcnit'iit
of the vcsM'Is. leiH'iveii no sliaro of tlicir earnings, and
a'ted fioni lieginniiig to end as a mere tiiiste*'; so that the
tints are tliat Coopiiisa registered owner, hut is simply
a trustee for Warren; there is no contradiction or dispute
whatsoever as to this point: it stands alleged and [troved
on the one side and not denied on the other. It isohje( ted

lothat MO reclamation can he made, on the ground that
Cooper, being domiciled in the United States, is not a per-
son on whose Itehalf (ireat Mritain can claim. This tjues-
tion was not even mooted at Victoria; it was hinted there
that Cooper might leally he a nalinalized ci'i/eu of the
United States, and to set this at rest (Jreat Mritain called
him as a witness -1 may say at consideral)le expense,
for we had to s«'nd to San Francisco for him; hut
when we in our aiginnent jioiuted out that the ipiestion
of domicile of certain United States citizens living at Vic-

-otoria had a hearing, and that (iieat Hritain had a protect-
ing right over them, the connsel for the United States for
the tirst time claimed in their lirief that Cooper's domicile
cut a ligine. Up to that time? Hoscowitz only was aimed
at and time and money was e.xpended in incpiiring into
the status of Boscowitz, who now has disappeared from
the scene.

To this, even assuming land this we do not admit hut
alisolutely deny) that there is anything at all in the ohjec-
tion, we answer in the tirsi place, that iucording to the

SOfontention of the United States, the (piestion to he solved
is, who was the a( tu.il owner, and that the whole evidence
shows that the answer to this (piestion shonid he that
Cooper was not the real owner, hutth.it Warren, a British
sul)j»'ct. resident in N'ictoriii, ^vas. Warren is a British
sul)ject, domiciled and reside], i, -.t Victoria and therefore
certainly can cl.iiin. even according to their own conten-
tions -and it follows that the ohjeittion has no foundation
in fact. So that our liist answer is that theii' contention
has no foundation in fact; that the real owner is beyond

40all shadow of doubt a person entitled to the protection of
(Jieat Britain.

To this my friend Mr. Dickinson answers that Cooper
has stated that he was own(>r, put in a claim and made ,an
affid.ivit, and therefore is estopped from now denying or
taking up any other position. And he claims that Wairen
has also made an atlidavit in ]iutting in the claim as iittor-
ney for Coojier, wiii<h is correct. As a matter of fact
there was no allidavit of Cooj)er when the claim was put
in, and 1 will show what the anidavit ( i Warren was.

50 This is what Wairen swore to; you will tind it in the
dechiration of tlu' claim in any one of the Coopei' vessels.
I am reailiig from the claim of the "(Jrace": " 1 am
" the duly a ithorized agent of Thom.-is H. Cooper of the ( 'ity
" of San FiJincisco !iu(l State of California in the United
" Statt'sof America, theowiierof the hereinafter mentioned
•■ sihooner ' (Jrace' by |)ower of attorney, bearing date the
" 4th day " of so and so. Ho does not assert or allege that
the claim belongs to him or to whom it belongs. He as-
serts and alleges that Cooper w.is the registered owner of

<''0 the ship, which he was. The answer I give to Mr. Dick-
inson's claim that we ;ire estopped now from saying that
anyotlier person was interested in that ship is: Cooper is
not the person before this Conuni ision at all. Tiie per.son
wlio is before this Commission is the C^neeii, and it can-
not be alleged that any question of estoppel can arise in her

nr>i»

(Mr. Peters' Argument in Uoply.)

cast*. Tlit'W iM'isoMH aio to bo protected Itecauso property
wliidi tlu* Queen had a riglit to protect has Ituon takon,
and the question is: Was that tlie fact or notf And no
question of estopnel can prevent lier from finding out
wiiether tliat is tlie case or not. But apart from tiiat
question, the only ground on wliicli estoppel could arise is
tliat (^toper coidd not l>e allowed to set up a claim incon-

losistent with some other claim prc-jously asserted hy him,
if the settling np of his present (.-laim had in some way
caused the pi'rson claiming the estoppel to hav(> changed
his position hy rea.son of the setting up of the original
claim.

In the present ("ase no such facts exist. There is noth-
ing inconsistent in the position taken hy (^)oper; he has
always alleged that he was the duly registered (i..ner of
the vessels; he now says that is true, hut he says I have
also always hehl them as trustee for Warren. No person,

20 especially the United States, has heen injured Ity this
position. It is one <;onsiantly occupied hy persons as to
personalty and real e.state. The question of estoppel does
not really arise. The parties hefore this Commission are
(treat Britain and the L'nited Slates, and not Cooper or
Warren, (ireat Britain is claiming to protect every per-
son who, according to international law. she has a right to
protect; and so far as this <)iiestion is concerned it is a mere
matter of evidence to show whether the person actually
owningthe vessel isa citizen of the United States, tireat

30 Britain cannot be estopped by action of any person in this
respect.

The facts slutw that all the vessels in cpiestion were
registered at Victoria, were operated from there, and that
Victoria w;!8 their homo port in every seus(( of the word.
The vessels therefore were British vessels, lawfully en-
titled to carry a British flag and register, forming part of
the commerce of Great Britain, in full conformity with her
laws and with the consent and assent of her constituted
authorities and entirely under the a-gis of her protecting

40 power. My learned friend seems to think that we are
putting forward some doctrine Great Britain never con-
tended for. I venture to say that Great Britain would
never admit a doctrine which would allow a vessel duly
registered hy one of her own citizens— duly registered in
every respect and duly entitled to fly her flag — which
would allow the United States, orany other foreign power,
when that vessel was t>n th«> high seas t(t si'ize her for a
breach of some of its municipal laws or for alleged viola-
tion of the sovereignty of the United States. If that was

5odone on the high seas, I ventui'o to .say that that doctrine
would never have received the assent of Great Britain, nor
of the United Slates either, if the ca.se was put to I hem.
The doctrine my learned friends now assert against (Jreat
Britain may to-morrow he asserted against the United
States, and I venture to say if asserted against the United
States, you would find that they would themselves very
soon he found stating that, with regard to a vessel legally
owned and registered b}- one of theircitizens, no other na-
tion has a right to takt^ that vessel on the high seas for

60 breach of its own nnmicipal laws. The proposition of the
United States is that because a registered owner of the
ship happens to be domiciled in the United Stai >s. that
therefore the United States can at any time, in time of
peace, on the high seas, seize her; and when comnensaticn
18 demanded, not hy Cooper or by the domiciled citizen,

1(1

11(10

(Mr. Peters' Argument in Reply, i

but by Gr«'nt Britain on bis bebalf. can answci' Oc»oper is
not a person for wboni you are entitled ti> rliiiin conifjen-
sation. I state tbat before your Honors are askeil tc de-
ci(U' any sucb questions as tbat, it is incumbent upon 'he
person alleging tbat to be international law. to produco
some biniling autbority wlieie it is sbovvn tbat sucb a doc-
trine lias ever Iteen acted on bv any tribunal cbarged with
lotbe tliity of deciding matters of iiUernational law.

M one o'clock the Commissioners took recess.

.At baif-past two o'clock tbe Commissioners resumed
tbeir seats.

Mr. Peteis: - In presenting bis oral argimient to your
Honors (111 tbe (|uestion3 1 bave been dealing witb, my
2ole,Hiie<l fiiend. .Mr. Dickinson, referred to two pages in
" Cockliiiin on Nationality," on«' at page ;!S:

" It iii>|ii'nrM, lunvcvor, timt in 18(15 tho oiiiniou of tlu? law offloors of
•• the Crown wits tnkoii on tlii« Hulijcct, anil tlmt, ii<-cor<1inK to their
" view. II f(irfi>{M<'i', ilulv naturulizoil in a RritiHli colony, in entitlfd,
"us 11 siil)ji>i-t of the t^ufon in that colony, to tlut pro'tiH-tiou of tho
'• Hritish (iovcrnuiciit in i-vciy other State lint tlmt in which ho was
" liorn. ftiiil to wliidi he owch a natural alluxianco."

[ wish to say that at tbis point tbe autbor refers to
tbe •' Keport of Connnissioners. Judicature Law Courts'
30 Naturalization and Allegiance," Volume t>5. If your
Honors will look at tbat report, tbe meaning of Cock-
burn will ;ipp( ar. and you will see tbat tbe te.\t is no
autbority for tbe contention of my learned friend. I read
from Appendi.x, page !•»•:

" .\ (jnestion haviii); ariHcn a» to tho oflTcct of certificates of natiiral-
" izatiou );ntnteil liy tlie Senate of tho Ionian iHlamlH, I am diroctcil
" liy Ijord .1. Unssell to aci|iuiint yon that Much <'i>rtiflcateH do not
" iniiily tliat tlie iiorHons to wlioin they are ({ranted are entitled to
" British protection in tlieconntrioH to which tlieir national allcKianuo

.Q " is <lue.

^ •' You will bear this in mind in all cases of claims to British protec-
" tion niiide liv persons fn virtue of certiHcites of naturalization
" );ranttid to them liy loniiin Senate."

■• Earl Itussell's attention huvinf; been fre(jUontly drawn ti- cases in
'• whicli fiireiffners, naturalized in Britisli ColonieH, i-laim Br tisii iiro-
" toclion from Her Slajesty's representatives and Consuls abroi 1, I am
" directed by liis Lordship to .state to you that tho mere fiiv-t of a
" forei|i{iier having boon naturalized in a British Colony does not e'ltitlc
" such foreiguor to Hritish protection out of the colony in whicii tho
" cortittcate of naturalization may have been Kranted, nor does it en-
" title him to claim a British pii.ssport.

, •■ I am told to add that Her Majesty's Secretarv of State for t.jo

5^ •' Colonies will instruct the 'tovornors <it British ('olonies to make the
'• above principle dearly understood iu gri^ntinK certitlcates of
" naturalization."

So your Honors will note tbat wliat they were speaking
about was tbe rigbt to protect tbe person naturali/ed under
the circumstances in the coimtry of his original birth.
These are tbe opinions upon which tiiis pas^^age is founded,
and tbis passage in Cockbiuu imtst be rtvid in the light of
these opinions. He was not treating witb the pomt that
5q we are considering.

Mr. Dickinson:— He did not agr«e witli them there.

Mr. Peters:— Tbat maybe. Now, there is another ref-
erence on page 1 II of Cockburn:

" Moreover, it is conceded that as against any other power except
" one to which allegiance in due by reason of the aecond nationality,

1101

(Mr. Petei-H* Argiimei)t in Rt'i»Iy.)

" ihcv wonhl lie entitled to |troterti(in; ho t'.mt it cuiinot Iw nnitl that
" their eliarufter of UritiHli BudjoctM in eoatiiu .1 to liritiHh territory."

That (|iiotati(m also must Im read in view of the matter
whicli 1m' was then discns.sinjr, and yon cannot get the real
m<>.'tning of that ((notation nnless yon go hack to pago l)>{)
and see with what matter lie was then dcaHng; at page
inji he says:

•' ActiuK on tlie rule nilopted l>v hin predecoHnor in ofHce, the Earl
"of MnluiHliury, in a diM|iutch written Hhortly iifterwiirdH (March 13,
" IH-Vt), to Kurl Cowly, ou the huiiio Hulgeet, olmerveH:

"If a perHoii had been liorn in Franee, of liritiHli pareutH, and had
" voluntarily returned to Franco, he would have been a BritiHh Hub-
" ject in England, but he would not have been entitled to Itritifih
" )irivih!((eH or protection in France, an agaiuHt the country of bis
" actual birth and douiicil."

Scope ok Coxvkntion.

2Q Now, having made tlicse remarks on that part of thecase,
there is one other niatter whicli I wish to refer to, as to the
scope of the (,'onveiilioii. So far as the scope of the Con-
vention is concerned. I intend to ask your Honors to read
the argument presented hv my learned associate. Mr.
Bei<|ne. and I propose to rest the case entirely upon his
argument, and the remarks incideiitallv made hy other
counsel upon that same suhject

Mr. Dickinson, hoth in his printed argument and oral
argument here, has laid down this proposition — he says

,Qthat there is a peculiarity in the Constitution of the United
States, whi(;li is that a treaty (htes not heconie hinding
until it is assciiteil to hy the Senate of the United States;
and if 1 apprehend his argument correctly, he says that
the construction attempteil to he placed on the treaty hy,
the counsel for (treat Britain is a menace to the Conven-
tion itsel"

Now, e stand upon this ground, that so far as the
construction of this treaty is concerned, the fact that
the Sciiat*' may or may not he asked to agree to the

,Q treaty, in the first instance, or afterwards, to agree, or
find that the arhitratois were rij;ht or wrong, has noth-
ing to do with how this treaty should he construed.
Your Honors are hound to consirue this Convention be-
tween (Jreat Britain and the United States upon precisely
the same rules that you would have to construe a treaty
between (Jreat Britain and Spain, France, or any otlier
country, and that provisions of the Constitution of the
United States, as to the |trovisions of making a treaty or
for carrying into effect the treaty, have nothing to do with

CQ the construction of this treaty by your Honors. On this
(jue.stion the two powers have joined together in commit-
ting to yon the task, not only of deciding each case that is
properly brought before you under the treaty, but also of
deciding whetTier certain cases are within your jurisdic-
tion. Take the cjises that arose under the Cominissions of
IH.53 and 1W71; there was in every case that came up be-
fore th«)8e Commissioners a preliminary (piestion which
aflfecte<l the jurisdiction of the Commission, whether or
not the claimant was a British subject. They had to de-

(5Qcide that question. It was committed to them by the
powers that made the treaty under which the Commission
sat, and they had to decide whether they had jurisdiction
over certain cases or not.

I submit that the argument put forth by my learned
friend is almost an argument iu tenorem. He says:

lit;:>

(Mr. Pelers" Ar.4iirni>i)t in Wcply.)

" You must be very careful wliat you do, Itecause Home
''action might he taken hy the Senate and they might re-
'• fuse to ratifv your decision." We say that is an argu-
ment that ougfit not to have any weight.

The case of the "Indian Cliief," H Itohinson, 12, was
referred to hy my learned friend, Mr. Dickiuson, as a case
where the queslion of war was not involved and where

10 the vessel seized, heing American owned, was held to he
an American vessel. The nationality of the ship followed
the residence of the owner.

A reference to this case, however, shows it was a case
of prixe. The ship had been taken in 1795 as the property
of a British subject liable to conflscation for b(*it:^ en-
gaged in trading with the enemy. The ship was claimed
on behalf of Mr. .lohnson as an American subject, hut it
was contended that, as the property of an American sub-
ject empl(»yed in a trade from the colonies of the enemy

20 to ports not of his own country, nor to ports of Kngland,
tilt slii|)s would be still liable as bavin;.,' been engaged in an
illegal commerce (see p. 12. Argument of King's Advocate).
Sir W. Scott ip. 17) referred to the vessel sailing with
American documents, saying if the owner really resided
here such pa|iers could not protect his ves.sel. If the
owner was resident in England and the voyage such as an
English merchant could not engage in, an American resid-
ing here and carrying on trade, could not protect his ship
merely by putting American documents on board. His

30 interest must stand or fall according to the determination
which the Court shall make on the national character t^f
such person (p. 17).

At page 19, Sir William Scott said if Johnson had re-
.mained resident in England at the time of sailing it nuist
be considered a British transaction, and therefoie a crim-
inal transaction on the common principle that it is illegal
in any person owing allegiance, though temporary, to
trade with a public enemy.
Finally Sir William Scott held that the adventitious

40cbaracter of a British subject, acquired by Johnson, was
kist by putting himself in motion to quit the country,
sine auiiiio revertemU, pages 20-21, and he ordered the
ship to be restored to Johnson as an American subject.
The cargo was claimed by Miller, an asserted American
subject, page 22, 3 liob., hut Sir William Scott held that
at the time of the transaction he was resident in a British
country in actual receipt of the benefit of protection for
his personal property and commerce by British arms and
British laws. At page 33 he says:

^ " Ab suck he uuRttake tbe Hituation with all itn duties and amongHt
" these duties tbe duty of not trading with the enemies of his country.
" I am of opinion, therefore, he must l)e considered as a British mer-
" chant, and his property as the property of a British merchant taken
" in trading with the enemy is liable to contiscation. "

Visit and Seakch. Flag and Registry.

My learned friend Mr. Dickinson sugge.sted that the
British argument on this subject consisted of an attempt
to contrast the views of American statesmen with those
60 of the American jurists, in other words political views as
opposed to legal views. When it is remembered that the
British argument refers to such authorities as Webster,
Laurence and Attorney-General Williams, this position
cannot be sustained. It was said that Mr. Laurence's
work and couclusions were published before the conclusion

no:)

lOD

ce'8
lion

(Mr. IVteis' Aiguinont in I?»'ply.)

of tlio corre8|K)n<1<>ii('e l»etwo«'ii tliu two governments. Mr.
Lniircncc'H conclusions, he sayH, with in 1H5H, and tlie
conclusion of the coircspontlenct' in iH5!>. At any mte
Mr. liiiui'i-nce's hook was not pnhlished until th«> British
Government, in lisr>s, had unnouufed in I'nrliament the
altundonment of any claim to visit or search vessels Hying
the Aiiieritan fla^;. and had puhlicly stated that the in-
to st ructions to Kiif^lish cruisers liad heen suspended "until
the negotiation proceeds further," and that the British
Governmt'ut had issued orders to "cruisers on that coast
to respe<'t the Amei'ican fla^ under any circumstancea '
(p. IMS. LauriMice). Before Mr. Laurence's hook was pub-
hshetl, Mr. Kit/.^erald, speak in^ for the BriMsh (Jovern-
ment, Jiuie is, Ih:,s, Hansard, 101, paf^e 4«. i>nnounced:

" • * • In rofiTcnct' to thin rinht of viHitntinn it \k no doiiht •
" puHitivK miiiriM' of irritation iM'twfcn tlit* two coiintripH, auil what-
" ever may liiivt> Im>oii the |ira<'tico of |ir<>ct>ilinK OovornincutH of this
20 " country, the ri^lit of iHiunlinK I'or vchhuIh Iuih never lieen eouoedod
" liy Auieriea. ('onMiijuontly it Imx-ohh-h our duty, in the fare of
" eiri'unistanoeH ho neriouH, to iiHcortain what our ViKhtH roiillv are ;
" whether we are preimroil to Hland liy theui, and if not, candidly to
" aeknowh'dKe our intention of K>vinK*th«m up. Her MuieMty'H (j>ov-
" erunieut have, tlierefore, taken the advice of the Law Onicei-M of the
" (!ro«n upon the whole (|ueHtion. It in their decided opinion that hr
" the international law, in timoR of peace, wo have no right of Hearcb
" or viHitation whatever, and that lieinx the ca^e, wo think we Hhould
" lie acting in a luanuer unworthy of the liritinh (}<iverninout if we de-
" layed one minute couiniuuicating that in formation."

30 The question dehated between England and the United
States up to that time concerned the African coast. The
corres|M)ndence in 18r>H-,59, to which Mr. Dickinson alluded,
occurred in connection with riuban waters, and Sir Charles
H. Tupper referred to this discussion as well as to the
peiiiMl dealt with by Mr. Laurence.

The following reference to the correspondence 1858-59,
Vol. XXXIX. Accounts & Pajwrs, Navy 57/58, Vol. L.
State I'apers, British and H'oreign, contaniing some addi-
tional papers mentioned by my learned friend, Mr. Dick-

4oin8on, serve to show the position of the United States,
finally assented to by Great Britain, to he that tliere was
no right in time of peace for a national ship to visit any
ship on the high seas flying the Hag of another nationality.
And having established that principle without any (qualifi-
cation the correspondence further shows the position of
the United States to have amounted to this: "Such being
" the admitted state of the question of right, we are
" willing for certain purposes, and under certain cir-
" cumstances, not to complain of the violation of this

50 "right"; or in the language of General Cass, Vol.
XXXIX., page 7, of correspondence on the question of
right of visit:

" ll it otie Ihinii to ilo a Ihimj nroirnilty iUff/al ami excuse it hi/ the iiUend-
" inq ciroim.itiinves, unit it in mtollii'V mill quite a differi-itt thin;/ to claim a
" riijhl of iiclion, <mil tlii- rii/lit alto iif deter-iniiiinij when, and how and to
" what extent it tif ill he ejcerciteil."

In other words, you may visit a ship flying the United
States flag at your peril. In such a case no matter what
.^the facts as to the ship, we have the strict right to claim
that you have violated the law of nations and have
illegally interfered w^ith that ship, but tve will not
complain where you Hnd in your effort to sup-
press the slave trade, that the ship flying tne
United States flag is not certiHcated as a United

(Mr. Pi'ti'is' Ai'KiinH'iit ill |{t|ily. I

States sliip, but as n iiiatter of fact lu'lon^s to tli*> ooin-
rotrc-t' of (Ji'«>at Britain or to coiiiitri<>K witli which (hoat
Britain has tri-aty ri};htH coiictMliii}; the ri^ht of visit and
R(;arch, Ac.

(JiMioral Castt' letter of April lo. iH.Vs, referred to hy
Mr. I)ickins«)n and from which the i|ii<itation above ih
made, contains a para);rapli at bottom of pa^e <t and

lotop of pa^e "i. which was th«' paragraph the British
(Sovernment '.lid hold of in briii};iiiK tlH> I'niled States
to the posilinii where she conceded practically the privi-
lege, not tiie riKht, to ascert.iiii by (h(> papers the
national i<l«'iitity of a vessel, but as will Ik* seen, the
Treaty of isdii. carefully limited this concession to the
case of ships in specilic waters, and for the pin pose of sup-
pressing; the slave trade only. Nevei theless. as will be
seen, tliis para^iapli contains the sentence already quoted
drawing the distinction bttweeii tlit! illegality of an act

20 excused by attending; '•ircninstances, and the claim of
right to do an act illegal. 'I'be fdllowing is the para-
graph relied on by .Mr. Dickinson:

** Uiutdulttcillv, if a vi'HNfl iiKHUini' 11 nitliiiiiiil fiinriiftfr to which hIip
" it< not ciititlfil, iinil in Huiliii^ uii<li>r fulNt> I'ohn-H, nIii> ciinnot !>(< pro-
" ti'cti'tl \t\ till' iiHMiiiii|itii>ii of a iiiitioiinlilv, to whicliHhi' ImH iiocliiim.
•• .\h tlir iilfiifitv of II pcrKoii muHt li.- ili-torniiiD'il l>v tlif ollh'i'r lii'iir-
" iiiK H proct'sN for Ins iirrcNt, iiii.l ili'tt'i'iiiini'il iit tlio risk of Htich
" otHriT, »o iiiiiHt tlic nutioniil ii|<>iitit y of u vckkpI lie (U'tcriiiincil, ut 11
" likt< ha/itril to him who. iloiiMiiiK th(> thi^ hIio iliH)ihiyH, Ht'iirchcH
" her to usi'i'rtiiin hiT tnu- chHroftcr. Thrri', no iloiilit. umy he rir-

10 " •'iiniHtani'fH, which wonhl ^o far to moilify the roniplaiutH a nation
•• would liavi' a rijiht to niaki- for mich a violation of its Novcrcijjnty.
" if the lioardiiiK otliccr hail jiiNt k)'ouii(1h for HiiKpicion. and deported
" hiniwelf ivitli jiropriety in the perforniaiieo of liiH tiiHk, doiii>{ no iu-
" jury, and iieaiealiiy returiiinj; wlien Hatinfh'd of hit* error, no nation
" would make siifli an aet the Huhjeet of HcrioUH reelaiiiation. It in
" one tliiliK to do a deed avowetlly ille);al, and ex'-UHo it by the attend-
" in(! oircnniNtaiireH. und is another and ipiite a dilVerent tiling to
" elaim a ri^ht of action. . d the ri^ht alHO of determining when, and
" liow, and to what exteiil, it Khali lie cxereiHed. And this is no lia'Ti-n
" distinction, sn far as the interest of this country is involved, luit it
" is closely coiinected with all oliject dear to the .Vmerii'an pi'ople —

^O " t'"' freedom of their citizens upon the fji-eat highway of the world."

So Lord Malinsbury writing to Lord Xapier Juih' II,
If^.'is, observes, page :is:

" Her Majesty's (iovernnu-iit reoonni/e as sound those Jirinciples of
" International law which have lieen laid down liy Oeneral Casn in his
* note ot tl'.e loth of .\pril to your lordHliip. principles which he Hup-
" jiorts liy the authority of Lord JStowell and the Duke of \Vellin){toD,
" and Her Majesty's (iovernment are also aware that nothing in their
" Treaty of |M42 with the I'liited States supersedes that law.

" Her Majesty's (iovernment. however, think it most iiidiHitrnnnble

50 •■ to civilization and the pidice of the hi^li seas, that there slionld
" exist, practii-ally. a liniiteil power of verifyiiiK the nationality of
" vessels suspected, on ({ood grounds, of earrviiin false colors.

" It is acknowledged on all sides that this fraud has been exorcised
" by pirates of every country, but that the flan of those iintioHH, with
" whom (ireat Hritaiii has no .Slave TrenticM, ih the most often prosti-
" tuted by these enemies of mankind.

" The .Vnierican tiun has, therefore, constantly been desecrated to
•' jirotect the nefarious practices of suidi men, and if the United Htates
" (Government Khould insist upon an inexorable adherence to the letter
" of International law, ami that this deterniiuatiou becomeM known to
" tlie world, the I'nited States flan will then be the only one to which

60 " these malefactors will hav«' renource for Kccnrity, and the si^ht and
" approach of that new honored banner on the hif(li seas would,
" eventually, become the cause of just HURpieiou and alarm to the law'-
" ful but defenseless trader. Hut the United StateH Oovornment can-
" not d(>sire such a c<msuniniation. Both passaRea in General CasR's
" able note," and the practice of the wor novy of America, iiiduce Her
" Majesty's ( iovernment to believe that the veriileation of nationality

ii)i:>

(Mr. PttciH' ArgiiiDfiit in |{<|>ly.)

' iiin,v l»' olitnini'il liv mmn mulinil 'irrtinii^miHt in r<>){iiril to prm-oocl-
' iiiKH to 1)0 <'xi>oiitc<l liv llii'ir ri-H|ii>i'tivf oDIimtn, wliirli may Ih' found
' etTiM-tivi' without liciiiK on't>ii»ivi<.

" Yon will thcroforu iirKc iipoii (iciioriil < 'hnh tH ' aHKoiiiK
' fnr to iiioilify tin- <'oiii|iluiiil u uution would linvt' tlir rl^lit to uiitke
' for willful violutioii of NovcrriKiity.'

" 'I'lic vii'w luki'ii of till- i|u<'Ntiou liy Ailuiirul iiiiiiwlin, itHfoiniuuiii-
' rat<'<l to iiH* II Hliort tiiiit' imo liy tin- l''ri>iii'h ('linrx« il'AlTiiii'i'x, in.
' tlint ill tiiiii' of |i)'ikri>, till- ri)(lit to uHrrrtuiii tin' uationitl i'liiirii>'t<>r
' of tt forci)(ii iiiori'liiiul vi'hkoI hIiouIiI, fxccpt uiiiIit |>ciMiliar ciDMiiii-
' Htitiici'H ikiiil urK<'Ut iK'ct'HHity, In- ri'xti-ictfil in itn i-xi>rri><i' to i'i>y\.
' |i(i||iii^ u III) i-cliuut vt'HHi'l to hIiow its colorM; thill in ri-rtiiin caHvii
' Hucli II vi'HHi'l limy lie M|>iiki'ii with, iivoiiliiiK, |iow<'Vt>r, niiy iiiti'rru|i-
' tion of itM coiirHi'; iinil tliitt in onliT to wiirrniit lionnlini^ 11 vi-hhuI
' uiuliT Kmii'li rolors, llic |iroi'i>i'iliii((M of mu'Ii vfuwl kIioiiIiI lie Hiich
' iiH to iiD'oril ri'iiHoiiulilc );roiinclN of MiH|iicioii.

'• TliiH, to II rrrliiin ili'urcf. Ih 11 siTiirity iiKniiiHt tin- friiuiluli'Ul use
' of colorN, iinil if Her Miiji'Mly'M tiovriiiiM nt ■!<' not foiiHidor it aa
' I'tTi'ftivi' II |ii-oci'SM UN lliry I'ould w mil hIioiiIii ' ■ "xcrriHi'il, uikI to
' whirh th)'y would In- I'ciiily ri'fi|ii'iii-iilly to kuIiji' . • i' IIh^ of Oroat
' liritiiin, it in ut IcHNt 11 Hufi'^uiiril ii^itiiiMt tlii' occniii uco of hiii'Ii itt'ts
' iiH till' rniti'd Stnlfs (iovrriiiiii'iit i'oiii|i|iiiii of, nrid roHtrict.4 the diii-
' orction of oniccrM within iiiti'lli^'ililc liiiiitx."

(it'iu'iul Cass iiplies to tliis mi
follows:

Ullf ;<Otll, 'Sns, H8

"Till' I'ri'Midi'iit dcHiri'H tliiit von would rx|iri"i«'- lo i,..rd Maliimlinry
" IiIh ^riitillciitioi- lit tliit MiitiHtiictoiy ti'iiniiiiit' ,. of tlii' controVfrHy
" whirh liiiH (;ivi«n ho nnifh trouldf to oiii rt'H|M'i'iivi> (lori'ninu-iitit

30 " ''oui'i'riiiiiK lli<> cliiini if 11 riitlit in lichiilf of 11 HritiNli criiiKi-r, in
" tiiiir of iM'iicr. to Hi'iirch of visit Anii'ricun iiii-ri'liuiil vrHHi>lH u|iou
" tliv oroiiii. Hit llritiuinir MiijoNty'H (loNiTuniciit has diHchiiniod
" this |ir<'tcnsion."

■ • » » » 'I'Ik- I'l'i'Midriil iH iiwiirt' of the uliUNfH to which thofriiudii-
'• lent iiNHuni|ition of tin- IIiik of one I'liwi-r liy tin- riti/i'iiH or Hulijcots
" of Hiiothcr, limy jjivi' risi'. iind lii'diTply ri'uri'ts that tln' lliin of the
" I'liitrd Htiiti'H liiiM lii'iMi )>roHtitiit<'d to unworthy |inr|iosi'M liy Kiich a
" r<'|MrhciiKili|(' iii'oi-fi'diiif;. At till' siinir tinif In- fiiliTtiiiuH a Htrong
' " convii'tion timt the oci-iisioniil uIhihi' of tin' Au)i of any nation is an
" I'vil li'HH to 111' di'prrniti'd timii woulil In- tin" t-NtaliliHliini'iit of a |>r<*-
" ti'iiHioii liki' this, \%hii'h is inroni))iitiMi' with tin- fri'i'doni of the soaH.

aq" Hut wliili> iivowiiiK this I'onvirtion, lii> instriK'ts nir to siiy that the
" I'niti'd Sfiiti's iiri! not leKssoliritoustlmn (ireat Itritaiii that it rcnii'dy
" hIioiiIiI lit- found for this fiilst- ciniiloyint'nt of imtiuiial colours, to
" which liord AInlinsliiiry refers in just terms of condi'iiiimtion. And
" till' I'rcsidciit, though not |irc)iiircd to niiikc any suiincstion on the
" subject, is yet ready t 1 receive iiny |>ro|ioHitions which the liritish
" (lovi-riimeiit limy feel dis|iosed to make, and to coiisiiler them with
" an earnest hope that the oliject niiiy lie safely and Hiitisfactorily at-
" tained.

"Hilt while comuiunicatiuK to his Lordship these favouralile senti-
" liioiitH of the President, it is due to the occasion to say that there are
" ffrave diHiciiltii's in the way of reconciling any kind of exiimiuatiou,

jQ " looking' to the detention of vessels, with tliat entire iiiiniiinity which

' " is so dear to the people of the I'nited States and so iinportiint to all
" commori'ial nations. H is a practical i|uestion whose solution re-
" quires much cautiout: consideration, and all the .■issiirance that cau
" lie given l>v this (ioverninent is, that it shall lie discussed with
" an earnest liesire that it may lie so adjuHted as to prevent the evil to
" lie complained of, while, at the same time, the ocean shall he left
" free to the inoreliant vi'ssels of all nations, eaoli maintaining its own
" police without the interference <f others."

Tlio cont'siioinltMice then pioroedeil iotichiii^ nicans to
secuii' pioiKT vcriticatioii of flaj; as.-'U.' ed l>y iiici'cliant
6oves8«ds (I^oi'd Maliiu'!<lniry to Loid NapitT, July 2Sr(t, IS58,
page 35).

So l/ifd Napier disoisscs in a li'ttt-r to Cass, Fflnu-

ary 3rd, IH.V.*, liic conrst' wiiicli might ho prt'sciihed to the

■ coinmaiideis of vessels of war in the veritieation of the

nationality of merchniit vessels on the high seas, hoth

lUiO

(Mr. IVteis' Argument in lieply.)

with reference to the enforcement of the exiiihition of
colours and as to tlit; aKcertaiiiingof the right of the vessel
to wear them (page ftSi.

In a lett«'r froru Lord Napier '. - Lord Maimesbury,
March 2, 1859, he says (page 55):

" The riKlit of a vchspI of war to compel a morchant vessel to display
" colors was then nilvcrtfd to. Such a right was not distinctly recog-
"^ " nized by General Cass, but he went so far as to say that the simple
" fact of refusing to exhibit colors was so high a ground of suspicion
" that it might seem to sanction boarding and further inquiry, and
" that even if such an inciuiry were not justitted by the result, the
" Oovernment of the United States tntuttl nut demntnl redress/or itn act
" of tisil execuleU iiiiiler tlioKe circiivisliinees."

And Lord Lyons, writing to Lord Mahiiesbury April 25,
lS5lt, said (page tUt):

" With respect to the special (jucstion which was propounded by the
, " British and French (.tovernnients respecting the steps to be taken in
' " the case of a vessel refusing to show any colors at nil, (Jeneral Cass
" told me that he could have no difficulty in nsseuting to the proposal
" that a boat should be permittt'd to go alongside; and, further, that
" his own private o]>inion ',vas that in case a ship refused to show her
" colors, it might be deiermiued that the oflScer of a cruiser boarding
•' her should incur no reHi«)UHil>ility by so doing; but there might be
"objections to this which did not at the moment occur to him. Ho
•' said that the Executive might issue orders on the sul)ject to the
" collectors at the ports in the Union and to the otticers in command
" of United Htntes criiisers, desiring them to urge masters of American
" ships to show their colors upon all proper occasions; but that the
" President had no power, without an act of the Legislature, to impose
30 " penalties upon masters of vessels who should, notwithstanding, ne-
" gleet or refuse to do so.

" General t'ass proceeded to remark that there were now few or no
" points of difference between the Gaveruments of Great Britain, the
" United States and France upon the slave trade; all now admitted
" that cruisers liad no right to board vessels of a foreign nation; all
" were agreed that if the grounds of suspicion against a ship were
" serious and reasonable no government should raise a complaint if
" she should be boarded by mistake bv a foreign cruiser, provided that
" the ])rocecdings vere conducted with i)roper precautions and due
•' courtesy. He concluded by repeating that he should in a few days
" be prepared to enter upon the whole matter with me."
40

Independently of the Treaty of I8t!2, a reference to the
case of the *• Cortez," referred to by (leneral Ca.ss as late as
June 5th, 18.5!), show how careful the (ilovernment of the
United States was not to tolerate, under any circum-
stances, interference with a vessel on the high seas in time
of pence if she had United States papers. I'age 13 of the
corres|)ondeiice above, same volume. General Cass says:

" Whatever may have been the true objects ot the voyage of the
" ' Cortez,' if -"he had papers showing her American character she was

50 " suhjecl neilhertii searc/i tmr cdiitiire hi/ it Uritish criiiter."

Lord Maimesbury, June 7th, 1858. page '25 of the cor-
respondence above, refers to information before him to the
etfect that the "C'orte/" possessed neither colors nor
papers when boarded and taken, and he adds:

" General Cass, in his note of the 12th Mav, a copy of which vou
" have sent me, observes, that ' whatever may Lave been the real object
" of the voyage of the "Cortez " if she had papers showing her Ameri-
" con character, she was subject neither to search or capture by »
(^ " British cruiser;' from «hich declaration I infer that his Excellency
" would admit her liability to such proceedings if neither her papers
" nor her colors were forthcoming. "

The following paragraphs in this letter of Lord Napier,
March 2nd, 1859, page 55, indicateat once the point taken in
connection with General Cass's letter of April 10th, namely,

1167

(Mr. Peters' Argiimont in Reply.)

that having estahhslied the iinrnunity of tlie flag, the
United States were williiitj itnder certain circnmstances to
ieclnu'cal violation of that right to n)ake no complaint;
but it is only in connection with the Slave Trade:

" In the Rourse of my conversation with General Cass yeaterdav
" forenoon, he alluded to the debate in the House of LordH on the 14tu
" of February, in which your Lordnhip is reported to have remarked

10 " that the Governments of Fjtiglaud and France had nKreed upon a ror-
" tain code of instructiouH to be issued to tlieir respective commanders
" at sea, with a view to enforce the exhibition of colors by merchant
" vessels, as well as for the purpose of ascertaining the right of the
*' merchant vessel to wear the flag displayed, and tbat this code had
" been submitted to the consideration of the Government of the United
"States."

" The right of a vessel of war to compel a merchant vessel to display
" colors was then adverted to. Hnch a right was not distinctly recognized
" by General Cass, but he went so far as to say that the simple fact of
" refusing to exhibit <>olors was so high a ground of suspicion that it
" might seem to sanction boarding and further incpiiry, and that oven

20 " i' "wh an inqtiiry were not justitted by the result, the Government
" of the United States trauld not tlmiiiiml redress fur tm act of visit executed
" iintler those circumstances,"

.he

J' as

)r-
he
or

■ou
ect
sri-

>■ »
Ley

Compare with these paragraphs, the following from
General Cass to Count de Sartiges, January 2.'), is,">',), page
72:

" To agree upon any plan of veriflcotion which would change the
" rule of International law, and authorize in advance the commission
" of trespass, is a very different thing from merely assenting to certain
" modes of proceeding as being ;°easonablo and ftroper in a given case.
30 " The former would be alike objectionable, I am persuaded, to the
" United States and to France. The latter would be far less objec-
" tionablo, and, as I have already saiil, the precautionary instructions
" of different nations to their naval commanders respectively, viould
" not probably be very dissimilar in their general features."

Following these nogotiationy (Jeneral Cass transmits to
Lord Lyons, July 18, IH.'iy (B. & F. State Papers, Vol. .50,
page y7H), extracts from the instinctions of the (>tli July,
1859, given by the Navy lV]>artinent to Ca|tt. William
Innian in command of the squadron of the United States

40 on the African station. The.so instructions are contined
to duties in suppressing the slair trade. Mr. Dickinson
referred to these instructions, where it is said the flag
which the vessel wears is priiiitt facie, although it is not
conclusive proof of nationality. It is a meie emblem, and
it loses its true character when it is worn by those who
Imve no right to wear it (page {t74, M B. & K. State
Papers). The context of these instructions shows that
the prima facie character is (juoad cruisers of the nation
whose flag is shown, for tiie instructions proceed in the

50 sai, :e paragraph :

" Any vessel that displavs the American flag, claims to be an
" American, and may therefore be rightfully boarded and examined
" by an American cruiser, if there bo any circumstances attending
" her to suggest suspicion that she is not what she professes to be,
" but this privilege does not extend to the cruisers of any other
" nation."

These instructions, after dealing with the case of a dis-
play of coloii3 of a foreign nation, anil to a well grounded
gQ suspicion of frautlulent assumption of those colors, say:

"In such case it would be a reasonable course, after due notice of
" your intention, to send a boat to her for veriflcation of her na-
" tionality. If she exhibits the requisite authentic documents to
" establish her foreign nationality, you will neither board her nor
" detain her " (page 975).

11 r.8

(Mr. Peters' Argument in Keply.)

The instrnctiona given to British cruisers referred to by
Mr. Dickinson (page 7H8, «5() H. & F. State papers), were
proposed instructions in April 2nd, ls.->)». They refer to
provisional arrangements, and, in conseijuence of the cor-
respondence already referred to, indicated the circum-
■*ances and the manner in which the colors of a vessel
might In; veritiefl. Clause fi of these legulations has the
lo following significant paragraph:

"The veriflontion will consiHt in tho oxamination of the papers estab-
" liHhing tho imtionalitT of n ve.ssel. Nothing can be claimed beyond
" the exhibition of these documents."

These instructions not permitting any step in the veri-
fication of colors, otiier than the exhihition of the ship's
papers, on July 8. 1859. Lord Kussell writes to Lord Lyons
(!»72 B. & V. State papers, .")(•), pointing out that tho alnise
of the flag having been dealt with as above, a difficulty
jghad aiisen from the covering (>f this abuse by the produc-
tion of shi|>'s papers whicli are in reality fraudulent. So
a memo, svas forwarded Feb. 2sth. 1H«5U, by Lord Lyons
to General Cass on the abuse of the American flag by
vessels fraudulently a.ssutniug it, and calling attention to
the fact —

" That there is no authority competent to take cognizance of the
" abuse of the .\mi'rican Hag, whether by vesNcls really American or
" by ves.fcls frauiluleutly assuuiiug the nag, as there are no United
" States cruisers on the eastern coast of Africo."

3° Notwithstanding these representations, tho most the
United States would allow F^nglish cruisers to <lo is .shown
by the Treaty of \xi\2. which is set out in Sir Charles Top-
per's argunient.

That concludes the whole history down to the making
of the Treaty of I8»i2, and contains all the correspondence
in di.>ipute as to the right of visit and search. There are a
few remarks I wish to make with regard to some authori-
ties cited by my learned friend. Mr. Dickinson, bearing on
this question. He refers to Mr. Dana in very laudablo
40 terms, and |)iobably they may i»e justified.

Mr. Dickinson: — I'robably;

Mr. Peters:— I say probably they may be justified. They
are justified, we will say. He referred to .\lr. Dana in his
notes on Wheaton; auil he refers to him as a distinguished
coiuitryman. Those are the words .Mr. Dickinson used.
I do not know that Mr. Dana is iui authority sf) over-
whelming that, after all, he can be taken as an absolute
authority when he comes to differ from men who are also
authorities -for example, Mr. liawrence.
50 1 find that that is not the opinion held of Mr. Dana by
son)e very distinguished counsel in the United States. I
read from the written argument of the United States at
Paris; which I presume was |»r«'|mred i»y Mr. Phelps,
j)ages l.W and 1.">1. where it is said: "Mr. Dana, wiio
" published an edition of Wheaton, with notes, which, so
" far as they were his own, did not add to its value."
" There is bis statement that in bis o|)inion in the decision
" of Church and Hubbard. Chief Justice Marshall and his
" eminent as.sociates were mistaken, and this remark is
'^ " cited in the British case. Mr. Dana has no such repute
" as makes iiiui an authority, especially wlien be under-
" takes to oveirule the greatest of American Judges and
■' the reneated decisions of the Supreme Court of the
" United States. No other writer or Judge, so far as wo
" are aware, has ever shared his opinion, and, as has been

(Mr. Peters' Arnmiu'iit in Ho|tly.')

" seen, tlin decision of Chief Justice Marsliiili has received
" the apjuoval of very j^reat lawyers. A little latei. re-
" ferrin^ to Hose r. Hiniely, Mr. Dana mistakes that case
" ill sayiny that it was there decided that the j-eiznrc of a
" vessel outside the territorial .jnrisdi( lion is nnwar-
" ranted, and he mistakes the Hudson case, in which the
"contrary is distinctly held to he the law, Chief .Justice
lo" Marshall concurring;,"

Mr. Dickinson: —I am quite well aware of the statement
made in that argument, and I have hut one word to add
in relation to it, that the statement is made hy Mr.|Phelps,
also of New England.

Mr. Peters:—! would like on that juiint to refer to
Dana's edition of Wheaton, and that contains the preface
to the third edition, which was hy the author himself,
and he gives his opinion on tiie very point we have under
discussion. It is dated Berlin, Novemher, IH45. It is
20 page XXIII.

1 ask your Honors to refer also to the same hook, pages
231. 25(n 2.5!>. ii«() and 425, where you will find complete
references to the matter we are <liscussing, and which I
think will illustrate tiie matter more than the reference
my learned friend gives.

With regard to Lawrence, whom my learned friend
seems to look upon as a man of lint IHtle autlioritv, I find
Mr. Lawrence was in 1S28 cliaige d'alTaires ;it London.
This same gentleman edited an edition of Wheaton as lute
3oas 1863 Your Honors will mark that the edition of
Wheaton he edited was a year after the treaty of 1802,
which was the upshot of the (lis|>ute as to visitation niicl
search and all those |>oints, and in the preface of that
edition you will lind at pages 4 and .*) that lie was assisted
in tile preparation of that edition hy no less a |)erson than
General Cass; so it may lie assumed that he had very good
authority for the statenu'iits he made. 1 refer yon alsi>to
page 2<>r) of Mr. Lawrence's notes to Wheaton, edition of
18(i3:

^ "In anRwer to reclanintinnH nmile bv the American Minister in Lon-
" (Ion, for the seizure anil detention of vossek liolouRinR to citizenB of
" the United States, Lord Pahnerston, under date of August '27, 1841,
" explii'itly elainied a right, and which he avowed the intention of his
" Government to continue to exercise, for British cruisers to examine
" o\ir vessels, with a view to ascertain by au inspection of pajiers their
" nationality ; and that they meant tliat the United States fliipr sliould
" only exempt a vessel from search, when that vessel is ])rovided with
" papers entitling her to wear that flag and i>roving her to be United
" States property and navigated according to law."

50 Further down on the same page:

" Mr. Stevenson remarks in his answer of October 21, 1841, that the
" claim asserted by Lord Palmerston made the commander of every
" British cruiser the exclusive judge whether American vessels were
" ' properly provided with papers entitling them to the protection of
" the fla;T tliey wear, and proving them to bo United States property
" and navigating the ocean according to law.' In Lord Aberdeen's
" answer, which was addressed to Mr. Everett, under the date of De-
" cember 20, 1841, he attempted to mako the distinction between visit
" and search. The right of search, he sa. t, 'is not couflned to veriii-
" cation of the nationality of the vessel but also extends to the object
of the voyage, and the nature of the cargo. The sole purpose of
the British cruisers is to ascertain whether the vessels they meet
" with are really Americans.'"

Page 268 of the .same hook, Mr. Lawrence takes up the
subject at the point whore his book referred to— Lawrence
on Visitation and Search— left it. It will he remembered

60 .<

1170

(Mr. Peters' Argument in Heply.)

that Ml'. Lawrence's IkkiIc was written in 1858, and what
took place between 1S58 and 18(»2, when the treaty was
made, he takes up and considers.

Mr. Dickinson :— Does he dilTer f'lom Mr. Daua'a notes?

Sir C. H. Topper:— Consideiahly.

Mr. Peters:— I'age 208, hottoiu of the page:

*'Wlion al>au(loiiiiif; tlio claim of right, Grout liritain asked that
" there Hhould bo hoiuo nrrangeuieut among the maritime Htnten as to
" how far their ottleers might go to verify the uuture of the flag."

I will refer you also to what ho says at page 2GJ) and

pag(( 270. At the bottom of page 273 there is a short note

I would like to read, as follows:

"The seeoiul edition of Druilx dfs Nulions Neiilren, piililished after
" the renuueiation l>.v England, in 1858, of the right of vimtation, con-
" demned any eonveutional arrangement that might be ])ropo8ed, even
" for the verifloatiou of the nationality of the flag in peace, as a con-
" ceHRion of the right of j)olice over its flag, which every nation ought
"to preserve intact."

Another point that was niaile by my friend, Mr. Dick-
inson: He leterred to some diplom.itic correspondence
from Lord Salisbmy in which he said, in regard to this
very niattei', when negotiating the treaty, that ho distinctly
declined to become responsible for acts of vt's.sels Hying the
British Hag, and he argues from that that some way
or otiicr the Hag was not conclnsiv«> and did not show the
nationality of the sliip; bnt the objection taken bj' Lord

30 Salisbmy goes on a ddferent groimd altogetlu'r anO it was
this: VVhilst (ireat Ihitain will hold itself respansible for
everything thai its nal'onai ships may do, its men of war,
people acting under their authority, she dcciin,'s to become
responsible for the ads of people who simi)ly aii> her
citizens wheicvcr they go- the wrongful acts ot citizens.
Nations arc not liable and nmcr have been so held, e.xcept
in extraordinary cases, for the mere wrongful a(;ts of any
one of their citizens. Tiie language used by Sir Julian
Pauncefote in his letter dated August 2»'i, isyi, to Mr.

40 Wharton, Volume 2, American Reprint, page 3150, is as
follows: '■ My government are unable to accept the form
'• of clause proposed by the President because it appears to
" them, taken in connection with your note of the 23d
" ultimo, to imply an adnussion im their jiart of a doc-
*' trine respecting the liability of governments for the
"acts of their nationals or other persons .sailing under
" their Hag on the high seas, which is not warranted by
" international law, and to which they cannot subscribe."
That was simply on the idea that (ireat Britain was not

50 held to bo liable for every fraudulent act that every one
of their nationals everywhere did.

I think 1 have already referred to the cases— I did so by
way of interrupting my learned friend— on the Merchant
Shipping Act, which show that a ship is forfeited from
the time an impro|)er register is put in.

Now the L'ommisHioner for the United States asked me
a few days ago to restate the |)osition I take with regard
to all people on board of the siiip being entitled to make a
claim. 1 think the best answer to that question is to refer

60 your Honors to the Record, where the matter was fully
discussed at Victoria. 1 do not think I have anything to
add to the statement there made. It came up for
the first time at page 11S>8, and what we said on that
occasion was restated at page 1202 and following of
the Record, and I do not think that I can add anything

1171

(Mr. PoUts' Ai-guinent in Hoply.)

to thitt stattjiiu'iit. To inulurstaiul tlio contention made,
your Honors shouM lefer to pam* IIWS. and then to
page 1202 at tlie liottoin of the page.

There is one matter tliat I want to call your Honors' at-
tention to briefly. In tlie case of the " F^avourito," p. H(i9
of the brief of the United States, in connection with the
amount of sealskins she caught in liehring Sea that year.

loTlie matter got into confusidu. It was originully stated
that having taken 2,25!) sealskins, UTr) being taken after
the warning, siie sailed for Victoria. A correct i(m waH
afterwards made iiy my learned friends an<i they inserted
the figures 2,874 ami tliey made the other figure 68.5. The
correcti«)n was ma<le on iiccnunt of evidence given l)y Mr.
Sprmg, and that evidence is found at Wecord, page IHlHat

. the bottom, and top of page i;$M». 'I'bese were the facts:
Mr. Spring had obtained s<»me books that had Ix'eii origin-
ally mane by Ale.xander Mc J x>an, and during the course

20of his exammation, which tuok place som«> time before, it
was found out that Mr. Spring batl these books. Of course
Mr. Spring *iid not make the books and was not respon-
8d)le for their corriH-tness, but it bavuig been as»'ertained
that he bad them, he was asked to produce Ibeni, and on
this day he did produce them and was e.xanuned upon
them by Mr. VVarrcu. This is tlie eviilence —

Mr. Warren:— |)o you state that is troiii Mr. Mdjcan's
books? Does Mr. Spruig id«'ntiry the books?

Mr. Peters:- Very well I witlubaw that. He produced

30 a statement and this is bis e.xamiuatidii:

" Q. I heliovp .villi Imve uciw iirodiu-t'd iiHtntonii'iit of tlic total oatch
" of the ' Favourito' iiH nwouuttMl to yon liv ('uptniii Alcxiiiult^r Mo-
" Lean, have you, Mr. Siiringy A. Tliat is tlit' HtatciiK'ut.

" y. The onu 1 liolil in my hanilv A. Yoh.

" Cj. I will read thiHintotlio notes, and if I read it i>orr)>ctlv you will
"say bo: ' The catch of Hcalw of the Ncliooncr " Favoiiriti'"' for 1H86,
" coast catch, 414; IJelirinK Sea catch. 'J.HSl; total, H,'2'.t5 'V A. Yes.

" Q. The al)ovc total includes .'>07 seals delivered to the 'Favourite '
" Ity the ' Onward ' V A. That is rinht.

"\i. The 2,8H1, then, Mr. Hpriun, includes 5(17 taken from the ' On-
,Q " ward '? A. Yes, sir.

" Q. The total catch in Behring Hea of the ' Favourite ' for that year
" would be 2,374? A. Yes.

»»«»♦»»

" y. And, of course, those figures include the catch from Kyu(iuot
" up to Behring sea as well us in Hehring Sea? A. Yes."

On that evidence my learned fiieiid askt'd to correct,
and did correct, and put 2, 374 in lieu of 2,2.')i». As a
matter of fact, the very evidence to which tlivy refer
states specitically that the tigiue 2,;{74 included the num-
50 her of seals that they got on the way u|» from Kyuquot to
Behring Sea.

Mr. Warren: — What is the 414 you have just read?

Mr. Peters: -The 414 is plainly explained as the coast
catcli which was landed at Victoria or Kyu(|Uot, or wher-
ever it Wcis, before they started for Behring Sea at all.

Mr. Lansing:— In your computation you use the figures
2,374; tliey appear in your taldes, followed by you all the
way through until the present t'uuv.

Mr. Peters:— To settle that point, I refer your Honors
60 to page 1322 of the Kecord, line 1, where be goes on fur-
ther. This is redirect-exanunatioii by Mr. Beique:

" Q. Yon have given to Mr. Warren a stateinont as to the catch of
" the ' Favourite ' iu 1HH6, from which he has read, and in this state-
" ment is the following: '(.Joast catch, 414; Behring Hea oatoh, 2,881.'
" Is this statement taken from your books? A. Yes.

llTi'

lo.

(,Mi'. Potfis' Argmneiit in Koply />

"Q, An> the wonlM • i'o««t ontoh ' or ' BehriiiK 8«»« ' »'»t<<h in your
■ l>ook? A. No; it in not pnt in timt form »>xiiftly.

••{). In wlml form iM ity A. What m ohIUxI coiiHt i>i»t>h thi'ri< would
• ii|<|i<>iir in luy book un ■ i»kiuH brouKht in liy Iho " FBvourilf." '

•' (). Snrli iiiul Niu'li II |mrly chitrKetl up with bo nmny okintt, iu that
' form ? A. Yes.

" (,). An>l from lli«< ilatoit thnt thoi«> i>kin» w»>r«> lirou^''^ i" jou in-
' ft-rri'il it wti» II const I'litcli ? A Yos.

•' y. Auil it iMfortliiit rniHon tlmt vou linvo futcroil it nii tiuoh in

tliix lucmoriuiiliim ? A. 'I'hiit i» it, fiir tho iiur|>oHt' of lioiug lu'tter
•■ uiiilcrHtootl III oourt.

•• (,>. Auil tin- w(ir«i» ■ Hfhrin^ Son ciitcli ' ar«< wortin of your own,
" nscil (or tlif first tini<> ht'ri> lo-iliiy for tin- imrpoiic of oonvonii-uce?
•' A. Kxiiftly, in foiirt lii-ro.

" (,). Hut you Hi'osiitiHtioil tlmt •J.8W1, Icnh W>7, r«>i>r«>Bont the oatob
•• of tin- ' Fii'vonriti' ' iiftt-r she nrrivinl Mftt>r ht>r Itohriug S«»» trip V A.
YVb. "

Of i-ourso fliat iiu'liuli'il what sho caiiglit on tlio way
up. 'I'lu'if arc two »listiiict ami scpaialo lumibcfs of soals
2on>i>i\lioiioil luMc, 414 on tlic spiiiig trip, wliicli would end
sonii" tinii' in May. auti in' iviiow Itv liu' tiati's tiiey wt>re
landt'il ln'foif slic ^tartiil loi lioi Hi'ltring Soa tiip at all.
Il(< tisiit-d on tilt- way up and caught sonic s«>als, and tlie
total ainonnl of catcii on llic way up and in Hchiing Sea
was '-M<74, wiiicli included s« alsc.uigiit outside of Heiuing
Sea. Tiiciefoic my learned friend in eorrecting the notes,
as he does in tiial very piece of evidence of Mr. Spring's,
is making a coriectiou which 1 hardly tliink tiie evidence
wairaids. and I think the tignies sliould stand as it was
before.

Mr. Waireii:— In tlie lirst place 1 did not correct it as
based on Mr. Spring's testimony, but on tiie testimony of
tile captain, and I read ins t«'stimi>ny wiiere lie added 110
to it. to llit> L'.-_'.'>!t.

.Mr. i'etei-s: It lias lueii called to my attention liy my
leained friend that tiiere are some ciirrections wiiicii they
allege in their brief, and somt* deduction should be
made iiere and there that we iiav»> not taken any notice
if. Tliere may lie one or tw«) corrections which prop-

•QCily should be made I do not propose to go into that
lieie. lint 1 propose, if 1 liml it necessary, lo write my
learned friends staling what they are, ami infoiiuing the
ComniissioiuMs liial sucli and such items we do not claim.
1 think tlial would be the mote conveuieiil vvay.

Thai, your llonotB, is all 1 have {o bring before vou, so
far as I am concerned. I have now couiplel»>d tlie tiisk
imposed upon me in the conduct of liiis iiupiiiy. The
woik has necessarily been nmst lalioiious, involving a^' it
has the cousideiation of a vast amount of detail, and many

co<l"*'^li*">t^ <'• b'g;>l tlispulaliou. So tar as our work is con-
cerned 1 desire to stale that the learned gentlemen who
have been associated with me liave on all tncasions per-
foittied tiieir full share. Every tiling that has lieen done
must be considered as tlie result of joint etftn't ffoiu the
beginning to llie end, and even where we liave divided
the work of .ictiial argument, that aigument is the result
of joint consultation and leseaich, in wliicli every one of
my assoiiales willingly took part. My learned friemi,
Mr. Dickinson, has referred in apt and graceful words to

Motile spirit of kii..iliness whii li has all through tiiese pro-
ceedings marked the relations of opposing coinisel. 1 liope
I may i>e permitted to say that this is in a very grent
degree due to the uniform courtesy witii which he has
always treated us.

Before dosing permit me to join my learned friend Mr.

117«

Olr. Peti'i-t. Aiguinetit in IJoply^.

Dii-kiiisoii in i>x|ii-i>ssiu^ our warm appioi'iatiiMi of tlie
great (-oiirt(>»<y, patitMU'c and tirnuuss (iisplavt'd bv your
HoiioiM nil through this long and IimIious in*|uii y.

Mr. Dickinson I havo a won! to say in regard to tho
citation of IjJiwrtMU'o, lS»t3. 'I'lu' (luostion was introdui'od
by my loaruetl frionds in prosiMiting tlu> corn'spondonce

"'in reference to the slavery «]uestion, in which it became
most ini)>ortant. All the corr»>spondence prior to tho
treaty was on the question of geniM'al inteiMiationnl law
aiid the conclusions to which the I'liited States (Jovern-
ment came weiv embodiiHl in instructions to our own
ships. As to that matter there is no ditTerence between
the Lawrence edition of Wheaton and the notes, and the
Dnna edition of Wheaton with the single exception that
liHwrence. owing to the 'I'reaty of |S»>'_». which, of «'ourse,
made a change in inttMiiational law. as treaties always do,

-^inserted a clause that he had omitted all comment on the
instructions issuetl to om- navies, tor the reason that the
matter was adjusted by treaty. The instructions issuetl
to the r'especliv»> navies, of couise. (>nibodied the views of
the two (iovermnents upon inleriiational law irres|KH'tive
of the treaty, and tln> edition i>f Lawrence here coiitirms
what I liave shown.

30 The Commissioner on the part of (iie.it Hrilain: - Before
separating. I desii«> to say a few words by way of paying
heartful tribute lo the unvarying con^iih'ration extended
to us by counsel from the time ol our lirst meeting to the
pn'sent; and also to expu'ss warm ap|ireciation t>f their
work which has thiougbout been markid by learning,
research and ability of the highest onlt r. Tbe.><e high
(pialitii's distinguish the work of each of the learut'd coun-
sel whether in examination of proof or in argument, and
it is a privilege for me to have opptulunity io say this

40nuich.

The Commissioner on the part of the I'nited States:— I
join most heartily in wliat my a-so( iate lias said, but I
tliink it suitable that 1 should make a f«>w geneial
observations. 1 was entirely aware on account vf the
very ct)nsith'rable acquaintance 1 have bad tbrougliout
Canada, that our meetings tbeie would b»< marked by the
official and unotlicial hospitality whicii we havt> received,

tQaiul that the circuujstances of «>ur proceedings would
Ih' altogether |)leasant. But of c«uuse 1 could not foresee
the great satisfactii>n which wi> have r»>ceivt>d fr-om the
support t»f the conscientiotjs and clean hearted gentlenuui
on each side, who have shown by their skill andat tent ion
in these proceedings their altility, experienc*' and fidelity
as jurists. I could not, moreover, foresee that the favt)r-
able sentiments which 1 would form for my learned asso-
ciate would be far stronger than he has anv possible esti-
mate of; nor could I anticipate the strength of my desira

ggthat tlie friendship which has lu-en formed between us
siiould c«)ntinue si» buig as we both shall live.

Ti.b« conference will mark a step in a«lvance or a step
backwards in the matter of international arbitration.
So far as we have gone, I feel confident that it marks a
long step in advance; and the basis of my conndeiue is

1174

■'mi

<l>^

(Mr. Petei's' ArKUiiieut in Reply.)

that it haH been on the line of ordinary arbitrations
in important causoH. Wo have liad no formalities except
those wliich were necessary for the orderly conduct of
our business. We have lunf, so far as I am advised and
now recollect, for the ttret time, an opportunity in an
international arhitration for the general examination of
witnesses orally, subject to cross-examination. The Com-
10 mission which sat nntler the 12th Article of the Treaty
of Wfishinnton, li;id the benefit of written cross-ex-
amination, but it did not have that which we all
know is so important, the presence of leading witnesses
before the tribunal which is to piuss on the credibility
and effect of their testimony. We have seen in this very

f)roceeding how uncertain, and in some instances, mis-
eading with reference to particular and specific topics,
are the e.f p(i/7e affidavits upon which international arbi-
trations must for the mpst'p«i't rely; although we know,

2oof course, that there are certain ouestions with refer-
ence to which altidavits are all that can be procured
or desired. You will excuse me for again referring
to counsel, but I may say tiiat we have also had
before us an example of the most friendly relations
existing hetween them. We have their own testimony
as to those relations, and we have also recognized the
fact from our own observation. We have, indeed, had
what is of very gr»'at assistance in investigations of this
nature, have had such relations of counsel the same as

30 they would have been if they had all been of the same
nationahy, practicing before the highest courts of judica-
ture in Great Britain or in her colonies, or in the United
States of America.

Some of the questions we have had to consider have
been of the most interesting and important character, and
all of them, so far as the Commissioners can now pass
judgment upon them, we are bound to accept from the
standpoint of counsel, as worthy of the careful investiga-
tion which has been given them. I doubt very much

40 whether the rulings of this Commission, whatever they
may be, I doubt whether the rulings of a Commission so
modest and unpretentious as this is made by the treaty
which constituted it, will have the effect in settling any
rule of International law, which counsel on one side or
the other have from time to time intimated they may.
But, however that may be, the questions which we are
called on to consider, we are bound to investigate
with all the same care, and all the same fidelity, as
though our rulings wei-e to settle, once and for all, l)e-

ioitween these great nations, the law bore involved. It
wis on that ground, but mainly by reason of the fact
that we have taken the testimony orally, that our
sittings have been so long. But for the fact that we have
had the advantage of taking our proofs orally, our work
would have commenced, with the exception of one or
more formal sittings, five weeks ago, inst 4 of extending
through the winter season. However that maybe, we all
bear witness to the extraordinary diligence and zeal which
have inspired everyone who has assisted this Commission.

60 We must also consider that a proceeding of this nature
has a certain international effect in a field which we have
not particularly spoken of. The Commissioners cannot
escape notice of the fact that the Governments are rep-
resented here by gentlemen on my right hand and on mjr
left who have had large influence in forming public senti-

1175

(Mr. Petera' Argument in Reply.)

ment, each in his own country, and who are liable to have
even larger influence in the future. It cannot but be to
the advantage of both countries that, by meeting here in
honorable contest before a tribunal of this character,
gentlemen on either side are able to appreciate the good
qualities of the other, and to excuse those things which
they find opposite them to criticise.
10 By the blessings of Providence, we have been spared any
break in our ranks during the periods we have been to-

§ ether. It is our earnest hope that these blessings, and
ae friendships here formed, may continue for many, very
many years.

At 4.16 o'clock p. M. the^fStik^issiouers adjoi!l|ned.

*f^

'fi^-f^

18027SI