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British Columbia Historical Books Collection
Fur seal arbitration
Bering Sea Tribunal of Arbitration
"Fur-seal arbitration. Oral arguments of counsel on case and counter-case" -- First page "([United States] 53d Cong., 2d sess. Senate. Ex. doc. 177, pts. 1-16)" -- Lowther, B. J., & Laing, M. (1968). A bibliography of British Columbia: Laying the foundations, 1849-1899. Victoria, BC: University of Victoria, p. 126.
426 pages ; 24 cm
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FUR SEAL ARBITRATION. PROCEEDINGS Tribunal of Arbitration, CONVENED AT PARIS . TREATY BETWEEN THE UNITED STATES OF AMERICA AND GREAT BRITAIN CONCLUDED AT WASHINGTON FEBRUARY 20, 1893, DETERMINATION OF QUESTIONS BETWEEN THE TWO GOVERNMENTS CONCERNING THE JURISDICTIONAL RIGHTS OF THE UNITED STATES WATERS OF BERING SEA. VOLUME XII. WASHINGTON": QOVBENMENT PRINTING OFFICE. 1895. FUR-SEAL ARBITRATION. ORAL ARGUMENTS Off COUNSEL ON CASE AND COUNTER-CASE. FUR-SEAL ARBITRATION. ORAL ARGUMENT JAMES 0. CARTER, ESQ., ON BEHALF OF THE UNITED STATES. L ORAL ARGUMENT OF MR. CARTER. SEVENTH DAY, APRIL 12™, 1893. Mr. Carter.. Mr. President: it would be evidence of insensibility on my part if in opening the discussion upon the important questions with, which we are to deal I should fail to express my sense of the novelty, the importance, and the dignity of the case, and of the high character of the Tribunal which it is my privilege to address. You, Mr. President, in acknowledging the honor conferred upon you by your election as President, expressed in appropriate language those aspirations and hopes which are excited and gratified by so signal an attempt as this to remove all occasion for the employment of force between nations by the substitution of reason in the settlement of controversies. I beg to express my concurrence in those sentiments. Nor should I omit a grateful recognition of the extreme kindness with which the agent and counsel on the part of the United States Government have been received. Not only has this magnificent building with all its appliances been freely offered for the deliberations of the Tribunal itself, but every aid and assistance which we as counsel could desire have been freely extended to us. We recognize in this a fine and generous hospitality, worthy of France and her great capital— the fair and beautiful capital of the world. Mr. President, in reference to the statement which was made by my learned friend, Sir Charles Russell, as to the order of proceeding which counsel have agreed to adopt, subject to the approval of the Tribunal, I have only this to say; we do not admit that there is any special onus probandi resting upon the United States to substantiate its own contention in reference to the questions in dispute. Those questions, in our view, are submitted to the Tribunal for examination and decision, and it is for the counsel on each side alike, to make good their respective contentions. Our own views in respect to the circumstances which make it proper that the affirmative should be taken by the United States are that they are the party seeking for the affirmative action of the Tribunal in their favor. I have no more to add in reference to that, and there is no essential point of difference between us. Touching the suggestion which you, Mr. President, have just made respecting the importance of observing a separation between the questions of right, and those which concern regulations, I shall endeavor to exactly comply with that recommendation. It will not be entirely possible altogether to separate those questions, but the direct discussion of them I shall keep entirely separate. Certain considerations concerning the question of regulations will arise and become material and important upon the argument of the question of property, but I shall deal with the question of regulations in the argument of the 6 ORAL ARGUMENT OF JAMES C. CARTER, ESQ. question of property to the extent only to which it seems to me that it may be pertinent to that subject. The general and direct discussion of the question of regulations I shall .endeavor carefully to separate from the rest of my argument. In the discussion, Mr. President, of the questions which the Tribunal is to determine it seems to me that it will be important in the first place that the arbitrators should have before them some sketch, as brief and concise as possible, of the subject matter of the controversy, of the particular occasions out of which it grew, and the successive steps through which it has from time to time passed, Until it has reached the stage at which we now find it. The learned arbitrators will, I think, thus be able to breathe the atmosphere, as it were, of the case; to approach the questions as the parties themselves approached them, and thus be able to better understand and appreciate their respective contentions. This, therefore, will be my apology, if apology were needed, for endeavoring to lay before you an outline as concise as I shall be able to make it, of the controversy from the beginning, before proceeding to discuss the particular questions which are to be submitted to you for decision. The case has reference to the great fur-sealing interests which are centered in Bering Sea and in the waters which adjoin that sea. Those interests began to assume importance something like a century ago. During most of the 18th century, as all are aware, the efforts and ambitions of various European powers were directed towards the taking possession, the settlement, and the colonization of the temperate and tropical parts of the American continent. In those efforts, Russia seems to have taken a comparatively small part, if any part at all. Her enterprise and ambition were attracted to these Northern seas—seas which border upon the coast- which in part she already possessed—the Siberian coast of Bering Sea. From that coast explorations were made by enterprising navigators belonging to that nation, until the whole of Bering Sea was discovered and the coasts on all its sides explored. The Aleutian Islands, forming its southern boundary, were discovered and explored, and a part of what is called the Northwest Coast of the American continent, south of the Alaskan Peninsula, and reaching south as far as the 54th or 50th degree of north latitude was also visited by Russian navigators and establishments were formed upon it in certain places. The great object of Russia in these enterprises and explorations was to reap for herself the sole profit and the sole benefit which could be derived from these remote and ice-bound regions; namely, that of the fur-bearing animals which inhabited them and which were gathered by the native inhabitants. To obtain for herself the benefit of those animals and of the trade with the natives who were engaged in gathering them constituted the main object of the original enterprises prosecuted by Russian navigators. They had at a very early period discovered what we call the Commander Islands on the western side of the Bering Sea, which were then as they are now, one of the principal resorts and breeding places of the fur-seals. They were carrying on a very large, or a considerable, industry in connection with those animals upon those islands. Prior to the year 1787 one of their navigators, Capt. Pribilof, had observed very numerous bodies of fur-seals making their way northward through the passes of the Aleutian chain. Whither they were going he knew not; but, from his knowledge of the habits of the seals in the region of the Commander Islands, he could not but suppose that ORAL ARGUMENT OF JAMES C. CARTER, ESQ. 7 there was, somewhere, north of the Aleutian chain in the Bering Sea another great breeding place and resort for these animals. He. therefore, expended much labor in endeavoring to discover these resorts and in the year 1786,1 think it was, on one of his voyages, he suddenly found himself in the presence of that tremendous roar—a roar almost like that of Niagara, it is said—which proceeds from the countless multitudes of those animals upon the islands. He knew then that the object for which he was seeking had been attained; and, waiting until the fog had lifted, he discovered before him the islands to which his name was afterwards given. That was in 1786. Immediately following that discovery many Russians, sometimes individually and sometimes associated in companies, resorted to those islands, which were uninhabited, and made large captures of seals from them. The mode of taking them was by an indiscriminate slaughter of males and females; and of course it was not long before the disastrous effects of that method became apparent. They were greatly reduced in numbers, and at one or more times seemed to be upon the point almost of commercial extermination. By degrees those engaged in this pursuit learned what the laws of nature were in respect to the preservation of such a race of animals. They learned that they were highly polygamous in their nature, and that a certain draft could be taken from the superfluous males without sensibly depreciating the enormous numbers of the herd. Learning those facts, they gradually established an industry upon the islands, removed thither a considerable number of the population of one or more of the Aleutian Islands and kept them permanently there for the purpose of guarding the seals upon the islands, and taking at the time suitable for that purpose such a number of superfluous males as the knowledge they had acquired taught them could be safely taken. Finally the system which they established grew step by step more regular and precise; and sometime, I think I may say, in the neighborhood of 1845, they had adopted a regular system which absolutely forbade the slaughter of females and confined the taking to young males under certain ages and to a certain annual number. Under that reasonable system, conforming to natural laws, the existence of the herd was perpetuated and its numbers even largely increased; so that at the time when it passed into the possession of the United States I think I may say it was true that the numbers of the herd were then equal to, if not greater than, ever had been known since the Islands were first discovered. A similar system had been pursued by the Russians with similar effect upon the Commander Islands, possessions of their own on the western side of the Bering Sea. The advantage of these results, so beneficial to Russia, so beneficial to mankind, may be more easily perceived by comparing them with the results which have flowed from the discovery of other homes of the fur-seal in other seas. It is well known that south of the equator and near the southern extremity of the South American continent there were other islands, Masafuera, Juan Fernandez, the Falkland Islands and other places, where there were seals in almost equal multitudes. They were on uninhabited islands. They were in places where no protection could be extended against the capture of them. They were in places where no system of regulations limiting drafts which might be made upon them could be established; and the consequence was that in a few short years they were practically exterminated from every one of such haunts, and have remained ever since practically, in a commercial point of view, exterminated, except 8 ORAL ARGUMENT OF JAMES C. CARTER, ESQ. in some few places over which the authority of some power has been exercised, and where regulations have been adopted more or less resembling those adopted upon the Pribilof Islands, and by which means the race has, to a certain extent, although comparatively small, been preserved. That was the condition of things when these islands passed into the possession in the United States under the treaty between that Government and Russia of 1867. At first, upon the acquisition by the United States Government, its authority was not immediately established; and, consequently, this herd of seals was exposed to the indiscriminate ravages of individuals who might be tempted thither by their hope of gaining a profit; and the result was that in the first year something like 240,000 seals were taken, and although some discrimination was attempted and an effort was made to confine the taking as far as possible to males only, yet those efforts were not in every respect successful. That great draft thus irregularly and indiscriminately made upon them had undoubtedly a very unfavorable effect; but the following year the United States succeeded in establishing its authority and at once re-adopted the system which bad been up to that time pursued by Russia and which had been followed by such advantageous results. In addition to that, and for the purpose of further insuring the preservation of the herd, the United States Government resorted to national legislation. Laws were passed, the first of them as early as the year 1870, designed to protect the seal and other fur-bearing animals in Bering Sea, and the other possessions recently acquired from Russia. At a later period this statute—with others that had been subsequently passed—was revised, I think in the year 1873, when a general revision of the statutes of the United States was made. They were revised and made more stringent. It was made a criminal offence to kill any female seal ; and the taking of any seals at all except in pursuance of the authority of the United States and under such regulations as it might adopt was made a criminal offence. Any vessel engaged in the taking of female seals "in the waters of Alaska," according to the phrase used in the statute, was made liable to seizure and confiscation; and in this way it was hoped and expected that the fur-seals would be preserved in the future as completely as they had been in the past and that this herd would continue to be still as productive as before, and if possible made more productive. That system thus initiated by the United States in the year 1870 produced the same result as had followed the regulations established by Russia. The United States Government was enabled even to take a larger draft than Russia had prior to that time made upon the herd. Russia had limited herself at an early period to the taking of somewhere between thirty and forty-thousand seals annually, not solely perhaps for the reason that no more could be safely taken from the herd, but also for the reason, as I gather from the evidence, that at that time the demand for seals was not so great as to justify the putting of a larger number of skins upon the market. At a later period of the occupation by Russia, her drafts were increased. At the time when the occupation was transferred to the United States, I think they amounted to somewhere between 50,000 and 70,000 annually. The United States, as I say, took 100,000 from the beginning, and continued to make those annual drafts of 100,000 down to the year 1890. That is a period of something like 19 years. The taking of this number of 100,000 did not, at first, appear to lead ORAL ARGUMENT OF JAMES C. CARTER, ESQ. 9 to any diminution in the numbers of the herd; and it was only in the year 1890, or a few years prior to that time, that a diminution in the numbers of the herd was first observed. This diminution was at that time attributed to causes of which I shall presently say something. Such was the industry established by the United States. It was a very beneficial industry—beneficial, in the first instance, to herself. She had adopted the practice of leasing these islands upon long terms—twenty years—to a private corporation; and those leases contained an obligation to pay a large annual sum in the shape of a revenue tax, and a gross sum of some $60,000 as rent. In addition to that, the lessees were required by the terms of the lease to pay to the United States Government a certain sum upon every seal captured by them, which of course resulted in the enjoyment by the United States of a still larger revenue. It was bénéficiai to the lessees, for it is to be supposed, and such is the fact, that they were enabled to make a profit, notwithstanding the large sums they were compelled to pay to the United States Government, upon the sealskins secured by them. But while it was profitable to the United States and profitable to the lessees, I may say—and this is what at all times I wish to impress upon this Tribunal—it was still more important and beneficial to the world at large. The fur-seal is one of the bounties of Providence, bestowed, as all the bounties of Providence are, upon mankind in general, not for the benefit of this particular nation, or that particular nation, but for the benefit of all; and all the benefit, of course, which mankind can get from that blessing is to secure the annual taking, use and enjoyment of the increase of the animal. That is all they can obtain from it. If they seek to obtain more, it is an abuse of the blessing, involving destruction, necessary destruction, and they soon deprive themselves of the benefit altogether. This, therefore, was the benefit to mankind which was made possible, and which was enjoyed by mankind by this particular mode of dealing with the fur-seals which had been established and carried on upon the Pribilof Islands. Mankind received the benefit of the entire annual increase, and at the same time the stock was perpetually preserved and kept from any sort of peril; and in that benefit the citizens of the United States enjoyed, of course, no advantage over the rest of the world. The whole product of the herd was contributed at once to commerce, and through the instrumentality of commerce was carried all over the world to those who desired the sealskins; wherever they might be on the faee of the globe, and whatever nation they might inhabit; and they got them upon the same terms upon which the citizens of the United States enjoyed them. This contribution of the annual product to the purposes of commerce, to be dealt with as commerce deals with one of its subjects, of course amounted substantially to putting it up at auction, and it was awarded to the highest bidder, wherever he might dwell. The effect of this was, also, as we shall have occasion to see in the course of this discussion, to build up and maintain an important industry in Great Britain. It was there that the sealskins were manufactured and prepared for sale in the market, and thousands of people were engaged in that industry, many more, indeed, than were engaged in the industry of gathering the seals upon the Pribilof Islands. That particular benefit was secured to Great Britain in consequence of this industry. In the few years preceding 1890, the Government of the United States was made aware of a peril to the industry which had thus been estais 10 ORAL ARGUMENT OF JAMES C. CARTER, ESQ. lished, and which it was in the enjoyment of—a peril to the preservation of this race of seals—a peril, not proceeding from what may be called natural causes, such as the killing by whales and other animals which prey upon the seals in the water, but a peril proceeding from the hand of man. It was found that the practice of pelagic sealing, which had for many years, and indeed from the earliest knowledge of these regions, been carried on to a very limited extent by the Indians who inhabited the coasts for the purpose of obtaining food for themselves and skins for their clothing, and which had made a limited draft upon the herds in that way—it was found that this practice was beginning to be extended so as to be carried on by whites, and in large vessels capable of proceeding long distances from the shore, of encountering the roughest weather, and of carrying boats and boatmen and hunters, armed with every appliance for taking and slaughtering the seals upon their passage through the seas. That practice began, I think, in the year 1876, but at first its. extent was small. The vessels were fitted out mostly from a port in British Columbia, and confined their enterprise to the North Pacific Ocean, not entering Bering Sea at all; and their drafts upon the seals, even in the North Pacific Ocean, were at first extremely small, only a few thousands each year. But the business was found to be a profitable one, and, of course, as its profit was perceived, more and more were tempted to engage in it, and a larger and larger investment of capital was made in it. More and more vessels prosecuted the fishery in the North Pacific Ocean, and in 1883, for the first time, a vessel ventured to enter Bering Sea. The learned arbitrators will perceive that up to this time, during the whole of the Russian, and the whole of the American, occupation of these islands, there had been no such thing as pelagic sealing, except in the insignificant way already mentioned by the Indians. Those two nations had enjoyed the full benefit of this property, the full benefit of these herds of seals, in as complete a degree as if they had been recognized as the sole proprietors of them, and as if a title in them, not only while they were ashore and upon the breeding islands, but while they were absent upon their migrations, had been recognized in them during that whole period ; or as if there had been some regulation among the nations absolutely prohibiting all pelagic sealing. Up to the period when pelagic sealing began to be extended those advantages were exclusively enjoyed by Russia and the United States; and at first, as I have said, this pelagic sealing did not extend into Bering Sea, but was carried on in the North Pacific Ocean, and south and east of the Aleutian chain. Why Bering Sea was thus carefully abstained from, it may perhaps be difficult at the present time altogether to say. It may be for the reason that it was farther off, more difficult to reach. It may be for the reason that the pelagic sealers did not at first suppose that they had a right to enter Bering Sea and take the seals there, for it was well known that during the whole of the Russian occupation, Russia did assert for herself an exclusive right to all the products of that region of the globe; and it was also well known to all Governments, and to these pelagic sealers, that the United States had, when they acceded to the sovereignty over these islands, asserted a similar right, and made the practice of pelagic sealing, in Bering Sea at least—perhaps farther, but in Bering Sea, at least—a criminal offence under their law. But from whatever cause, it was not until the year 1883 that any pelagic sealers ventured into Bering Sea. During that year a single vessel did enter there, took a large catch, was very successful, and was not called during the succeeding years by many repetitions o prise. The extent to which pelagic sealing -\ vas thus cai Sea, its probable consequences upon the herds which upon the Pribilof Islands, was not at fi rst apprécia United States, or by the lessees of the J slands. Th by which they could easily find out how i nany vessels sions, and they did not at first seem tc suppose tl were particularly threatened by it. Con three years no notice seems to have been taken of th the Government of the United States, although it them. But in 1886, this practice of ta king seals largely extended that it excited apprel ensions for observable in the condition of the here I some dam consequence of that pursuit of them by sea. The attention of the United States having been called to the practice, that Government determined to previ-nt it, and the first method to which it resorted was an attempt to enforce the laws upon its statute- book, which prohibited the practice and subjected all vessels engaged in it to seizure and confiscation. Instructions were accordingly given to the cruisers of the United States to suppress the practice, and to enforce those laws. The result was that in the year 1886 three British vessels and some American vessels were taken while engaged in the pursuit illegally under the laws of the United States. They were carried in and condemned. These seizures were in 1886. They were followed by protest on the part of Great Britain and that protest was made by a note addressed by Sir Lionel Sackville West to Mr. Bayard. Sir Charles Russell. Give us the reference, Mr. Carter, please, as you go along. Mr. Carter. It is on page 153, Vol. 1 of the Appendix to the American Case: Sir L. S. Sackville West to Mr. Bayard. by the United States revenue request to be furnished with a may possess relative to this oc I have etc., ny particulars which the t nited Stat L. S. SACin That was the first note sequence of these seizures it called only for informs addressed by the Britis and, as the learned art tion. Mr. Bayard, who h Govern >itrators -v was thei could not give therequisi d not immediately rest te information. Thelo< ond to th ,ality, as ceive, is exceedingly re with it could only be had note from Washington on rare occasions. The opportun voidable, that a very con the United States could p îiderable period of tim rocure the information i would e lesired b upon to consider questions that would thuB be likely to s determm* ORAL ARGUMENT OF JAMES C. CARTER, ESQ. the course it would be best to pursue in reference to those it was thus confronted, •ied on by Russia, before fourths of a century. It wenty years, and contin- and to the world which at first : ■ pelagi c sealing-^ tion of thm ng, and what were ' ugh it will subse- n; but right upon at, I would like to questions—to consider the < What was it? Here had bt™, ^ —- the acquisition by the United States, f< had been continued by the United Sta ued with all the benefits to the United I have mentioned. It was threatened idly extending itself, of pelagic s for that was the thing F1*' United States Government—wnat was peuigiu ae<*j its obvious and its necessary consequences? I must say a word or two upon that point, alth quently form a subject of more extended discussn its face, pelagic sealing appeared to be, as it undoi a rapid method of destroying the race of seals. Senator Morgan. Before you proceed to argue t ask a question about the sealers in Bering Sea. Mr. Carter. Certainly. Senator Morgan. I find a table in this Appendix to the Case of the United States, which states that the "City of San Diego", a schooner, was seized by the American Government on July 17th, and it was an American ship. Mr. Carter. Yes. Senator Morgan. And then the Thornton, the Carolina, and the Onward were seized subsequently, on August first and second, and they were British. Is that the proper statement as you understand it? Mr. Carter. I so understand it. The first seizures that were made were both American and British. Senator Morgan. The first seizure that was made, according to this table—and that is the reason I call your attention to it—was an American ship, on July 17th, and then the next seizure was August 1st of British vessels. Mr. Carter. Doubtless that is correct. I have not carried in my mind the fact that the first seizure made was of an American vessel. It would appear to be so by the statement which was read by the learned arbitrator. I have said that pelagic sealing seemed to be simply destruction. It was destruction because it was not regulated. It was destruction because it proceeded in defiance of the obvious and well known laws which govern the protection and preservation of the race of seals. If it continued it seemed to the United States that it would as surely result in the destruction of the seals as the indiscriminate slaughter of them on the islands of the southern ocean had resulted in the destruction of the herds in that quarter of the globe. They could not imagine that that could be right. They could not imagine that it was right or proper for any nation, or any men anywhere upon the globe, on the sea or on the land, to sweep out of existence one of the bounties of Providence. They could not imagine that, when there was an industry established and in full operation and which had been in operation for nearly a century, by. which the whole benefit of this race of animals was secured, and permanently secured to man, without any peril to the stock, any man or any nation could rightfully, on the sea, or anywhere else, come in and by an indiscriminate and destructive pursuit of the animal take away that benefit forever from mankind. So it seemed to them, and so, therefore, they had no hesitation in giving "™ instructions which resulted in the seizure of these vessels; and e seizures resulted in the demand which I have just read. the j ORAL ARGUMENT OF JAMES C. CARTER, ESQ. 13 I have said that there was no immediate answer to this call of the British Government, because owing to the remoteness of the locality the necessary information could not be procured. It was followed up, therefore, very properly by Her Majesty's representative, and on the 21st of October, 1886, he addressed to Mr. Bayard another note, which will also be found on page 153 of the same volume, as follows: Sir L. S. Sackville West to Mr. Bayard. "Washington, Octoler Zl, 1886. (Received October 22.) Sib: With reference to my note of the 27th ultimo, requesting to be furnished with any particulars which the United States Government may possess relative to the seizure in the North Pacific waters of three British Columbian seal schooners by the United States revenue cruiser Corioin, and to which I am without reply, 1 have the honor to inform you that I am now instructed by the Earl of Iddesleigh, Her Majesty's principal secretary of State for foreign affairs, to protest in the name of Her Majesty's Government against such seizure, and to reserve all rights to compen- I have, etc., L. S. Sackvilije West. The state of mind in which the representatives of the British Government appear to be at this time is exhibited by a note from the Earl of Iddesleigh to Sir Lionel Sackville West, which preceded the sending of the note which I have last mentioned. This was written on the 30th of October 1886. It begins with mentioning the fact that Her Majesty's Government was still awaiting the result of the application to the United States for information. Sir Charles. Russell. It did not precede the other. It is later. Mr. Carter. Yes, it is a later note. I am much obliged to you. It is a later note, dated October 30th : Earl of Iddesleigh to Sir L. S. Sackville West. Foreign Office, October SO, 1886. Sib : Her Majesty's Government aTe still awaiting a report on the result of application which you were directed by my dispatch No. —181, of the 9th ultimo, to make to the Government of the United States for information in regard to the reported seizure by the United States revenue cutter Corioin of three Canadian schooners while engaged in the pursuit of seals in Bearing's Sea. In the meanwhile further details in regard to these seizures have been sent to this country, and Her Majesty's Government now consider it incumbent on them to bring to the notice of the United States Government the facts of the case as they have reached them from British sources. It seems the British Government had obtained some information which they had expected from the Government of the United States. This note proceeds thus : It appears that three schooners, named respectively the Carolina, Onward and the ^Thornton -were fitted out in Victoria, British Columbia, for the capture of seals in the waters of the Northern Pacific Ocean adjacent to Vancouver's Island, Queen Charlotte Islands and Alaska. According to the deposition enclosed herewith from some of the officers and men these vessels were engaged in the capture of seals in the open sea, out of sight of land, when they were taken possession of, on or about the 1st of August last, by the United States revenue cutter Corivin—the Carolina in latitude 55 degrees 50 minutes North, Longitude 168 degrees 53 minutes West; the Onward in latitude 50 degrees 52 minutes North and Longitude 167 degrees 55 minutes West; and the Thornton in about the same latitude and longitude. They were all at a distance of more than sixty miles from the nearest land at the time of their seizure, and on being captured were towed by the Corwin to Ounalaska, where they are «till detained. The crews of the Carolina and Thornton, with the exception of the Captain and one man of each vessel detained at that port, were, it appears, sent by .the steamer St. Paul to San Francisco, Cal., and then turned adrift, while the crew of the Onward were kept at Ounalaska. 14 ORAL ARGUMENT OF JAMES C. CARTER, ESQ. At the time of their seizure the Carolina had 686 seal-skins on board, the Thornton, 404 and the Onward 900, and these were detained, and would appear to be still kept at Ounalaska along with the schooners, by the United States authorities. According to information given in the "Alaskan" a newspaper published at Sitka, in the territory of Alaska, and dated the 4th of September 1886, it is reported: 1) That the master and mate of the schooner Thornton were brought for trial before Judge Dawson in the United States District Court at Sitka, on the 30th of August 2) That the evidence given by the officers of the United States revenue cutter Corwin went to show that the Thornton was seized while in Bering Sea, about 60 or 70 miles Southeast of St. George Island, for the offence of hunting and killing seals within that part of Bering Sea, which (it was alleged by the Alaska newspaper), was ceded to the United States by Russia in 1867. 3) That the Judge in his charge to the jury, after quoting the first article of the treaty of the 30th of March, 1867, between Russia and the United States, in which the Western boundary of Alaska is defined, went on to say: Then he gives an extract from the Judge's charge. 4) That the jury brought in a verdict of guilty against the prisoners, in accord- ance with which the Master of the Thornton, Hans Guttonson, was sentenced to imprisonment for thirty days and to pay a fine of $500 ; and the mate of the Thornton, Norman, was sentenced to imprisonment for thirty days and to pay a fine of $300; which terms of imprisonment are presumably being now carried into effect. There is also reason to believe that the masters and mates of the Onward and Carolina have since been tried and sentenced to undergo penalties similar to those now being inflicted on the master and mate of the Thornton. Sir Charles Russell. I would be glad, if it is not inconvenient to my friend, if he would read the grounds of the Judge's charge. Mr. Carter. Certainly. Sir Charles Russell. Beginning with the words "All the waters". Mr. Carter. This is the part quoted from the Judge's charge: All the waters within the boundary set forth in this treaty to the Western end of the Aleutian Archipelago and chain of islands are to be considered as comprised within the waters of Alaska, and all the penalties prescribed by law against the killing of fur-bearing animals must, therefore, attach against any violation of law within the limits heretofore described. If, therefore, the j ury believe from the evidence, that the defendants by themselves or in conjunction with others, did, on or about the time charged in the information, kill any otter, mink, marten, sable or fur-seal, or other fur-bearing animal or animals, on the shores of Alaska or in the Behring Sea east of 193 degrees of west longitude, the jury should find the defendants guilty. That is the boundary in the Treaty—the western boundary named in the Treaty of cession to the United States from Russia. , The jury should find the defendants guilty, and assess their punishment separately at a fine of not less than $200 nor more than $1,000, or imprisonment not more than six months, or by both such fine (within the limits herein set forth) and imprisonme ' Lord Iddesleigh continues : You will observe from the facts given above, that the authorities of the United States appear to lay claim to the sole sovereigntv of that part of Behring Sea lying J east of the westerly boundary of Alaska, as defined in the first article of the treaty 1 concluded between the United States and Russia in 1867, by which Alaska was ceded. 1 to the United States, and which includes a stretch of sea extending in its widest part I some 600 or 700 miles easterly (westerly?) from the mainland of Alaska. In support of this claim, those authorities are alleged to have interfered with the J peaceful and lawful occupation of Canadian citizens on the high seas, to have taken 1 possession of their ships, to have subjected their property to forfeiture, and to have J visited upon their persons the indignity of imprisonment. Such proceedings, if correctly reported, would appear to have been in violation! of the admitted principles of international law. I request that you will, on the receipt of this dispatch, seek an interview with 1 Mr. Bayard, and make him acquainted with the nature of the information with I which Her Majesty's Government has been furnished respecting this matter, and I state to him that they do not doubt that, if on inquiry it should prove to be correct 1 the Government of the.United States will, with their well known sense of justice'! at once admit the illegality of the proceedings resorted to against the British vessels! L ORAL ARGUMENT OF JAMES C. CARTER, ESQ. 15 and the British subjects above mentioned, and will cause reasonable reparation to be made for the wrongs to-which they have been subjected and for the losses which they have sustained. Should Mr. Bayard desire it, you are authorized to leave with him a copy of this dispatch. I am, etc., Iddesleigh. The learned arbitrators will thus perceive the ground which the British Government were at first disposed to take—and a copy of this dispatch was eventually communicated, no doubt, and therefore they did take this ground originally—that this business of pelagic sealing was a peaceful and lawful occupation on the high seas, and that, being such, it could not be interfered with, nor could those who were engaged in it be taken and their property confiscated, by the action of the American Government. The ground was, that these seizures by the American Government were made at a greater distance than three miles from the shore, outside of its jurisdiction, and were, therefore, unauthorized and unlawful. The grounds are two : First, that the occupation of pelagic sealing is a peaceful and lawful one; second, that outside, upon the high seas, the Government of the United States has no authority to arrest British vessels. These requests from the representative of the Government of Great Britain upon Mr. Bayard for information were from time to time repeated during the delay which occurred, and which was made necessary, by the great remoteness of the scene of the difficulties from the city of Washington ; and on the 4th of April 1887, the following note was addressed to Mr. Bayard, which will be found on page 159 of the first volume of the Appendix to the American Case : Sir L. S. Sackville West to Mr. Bayard. Washington, Jpril 4,1887. (Received April 4.) Sir: In view of the approaching fishing season in Behring Sea and the fitting out of vessels for fishing operations in those waters, Her Majesty's Government have requested me to inquire whether the owners of such vessels may rely on being unmolested by the cruisers of the United States when not near land. Her Majesty's Government also desires to know whether the documents referred to in your note of the 3d of February last connected with the seizure of certain British vessels beyond the three-mile limit and legal proceedings connected therewith have been received. And I have the honor therefore to request you to be good enough to enable me to reply to these inquiries on the part of Her Majesty's Government with as little delay as possible. I have, etc., L. S. Sackville West. In.that note, as you will perceive, two points are made; first, that some instructions should be given to United States cruisers, so that British sealers should not be molested in the forthcoming season; and, second, an inquiry whether the information desired had been received. On the 12th of April, Mr. Bayard replies to that note as follows; Mr. Bayard to Sir L. S. Sackville West. Department op State, Washington, April IS, 1887. Sir: I have the honor to acknowledge your note of the 4th instant relative to the fisheries in Behring Sea, and inquiring whether the documents referred to in my note of February 3, relating to the cases of seizure in those waters of vessels charged with violating the laws of the United States regulating the killing of fur-seals, had been received. The records of the judicial proceedings in the cases referred to, were only received at this Department o The remoteness of the scene of the fur-seal fisheries and the special peculiaritiei of that industry have unavoidably delayed the Treasury officials in framing appro priate regulations and issuing orders to United States vessels to police the Alaskai ORAL ARGUMENT OF JAMES C. CARTER, ESQ. in the Revised Statutes oe for upwards of seven- lgle infraction is known The question o'f instructions to Government vessels in regard to preventing the indiscriminate killing of fur seals is now being considered, and I will inform you at the earliest day possible what has been decided, so that British and other vessels I have, etc., ^ ^ Batak]d That was followed by a note from the British Minister to Mr. Bayard, on July 8th : Sir: With reference to your note of the 12th April, stating that the records of the judicial proceedings in the cases of the British vessels seized in the Behring Sea had been received, I have the honor to inform you that the Marquis of Salisbury has instructed me to request you to be good enough to furnish me with a copy of the same for the information of Her Majesty's Government. Mr. Bayard addresses a note on the 11th of July to Sir Lionel Sackville West as follows : Sir: Complying with the request contained in your note of the 8th instant, conveyed to me under the instructions of your Government, I have the honor to enclose you two printed copies of the judicial proceedings in the United States district court for the District of Alaska in the several cases of libel against the schooners Onward, Carolina and Thornton, for killing fur-seals in Alaskan waters. The furnishing of these records to the representative of the British Government, containing a full report of the proceedings in the district court of Alaska of course conveyed full information of the grounds upon which vessels of that nation had been seized and carried in and condemned. Upon the receipt of those records by the British minister they were transmitted to Lord Salisbury, and upon examination of them, and upon acquiring full knowledge, as he then did, of the grounds upon which the vessels had been seized and condemned, he addressed a note to the British Minister in Washington, of which a copy was to be furnished to the American Government. He considers those grounds and states the attitude of the British Government in relation to them. That letter was written on the 10th of September, 1887. Something like a year had elapsed, the learned arbitrators will perceive, from the time of the original seizures, which time had been occupied, presumably, in the endeavor to obtain this information. The Marquis of Salisbury writes : Foreign Office, September 10,1887. were reported to have taken place in the United States district court were correctly described the United States Government would admit their illegality, and would cause reasonable reparation to be made to the British subjects for the wrongs to By a previous dispatch of the 9th September, you had been desired to ask to be furnished with any particulars which the United States Government might possess relative to the seizures in question; and on the 10th October you were instructed to enter a protest on behalf of Her Majesty's Government, and reserve for consideration hereafter all rights to compensation. Nearly four months having elapsed without any definite information being furnished by the United States Government as to the grounds of the seizures my predecessor instructed you, on the 8th of June [January!] last, to express to Mr. Bayard attention of the United States Government to the action'of the American authorities m therr treatment of these vessels and of their masters and orews. ORAL ARGUMENT OF JAMES C. CARTER, ESQ. 1 February Mr. Bayard informed you that the'record of the judicial pn ich he had called for was shortly expected to reach Washington, an 'all i s under a: 58, the aPr( >u inquired of Mr. Bayard, in , whetherthe owners of British lolested by the cruisers of the d of the judicial proceedings referred to, and the release of all p" Onthe4thof April, under instr view of the approaching fishing season in Behring vessels might rely when not near land on bein United States, and you again asked when the might be expected. Mr. Bayard informed you, in reply (12th April), that the papers referred to had reached him and were being examined; that there had been unavoidable delay in framing appropriate regulations. and issuing orders to the United States vessels to police the Alaskan waters ; that the Revised Statutes relating to Alaska, sections 1956 and 1971, contained the laws of the United States in relation to the matter; and that the regulations were being considered, and he would inform you at the earliest day possible what had been decided, so that British and other vessels might govern themselves accordingly. In view of the statements made by Mr. Bayard in his note of the 3d February, to which I have referred above, Her Majesty's Government assumed that, pending a conclusion of the discussion between the two Governments on the general question involved, no further similar seizures of British vessels would be made by order of the United States Government. They learn, however, from the contents of Mr. Bayard's note of the 13th ultimo, inclosed in your dispatch, No. 245, of the 15th ultimo, that such was not the meaning which he intended should be attached to his communication of the 3d February; and they deeply regret to find a proof of their misinterpretation of the intentions of the United States Government from an announcement recently received from the commander-in-chief of Her Majesty's naval forces in the Pacific, that several more British vessels engaged in seal hunting in Behring's Sea have been seized when a long distance from land by an American revenue vessel. Her Majesty's Government have carefully considered the transcript record of the judicial proceedings in the United States district court in the several cases of the schooners Carolina, Onward, and Thornton, which were communicated to you in July, and were transmitted to me in your dispatch, No. 196, of the 12th of that month, and they can not find in them any justification for the condemnation of those vessels. The libels of information allege that they were seized for killing fur seal within the limits of Alaska Territory, and in the waters thereof, in violation of section 1956 of the Revised Statutes of the United States; and the United States Naval Commander Abbey certainly affirmed that the vessels were seized within the waters of Alaska and the Territory of Alaska, but according to his own evidence, they were seized 75, 115, and 70 miles, respectively, south-southwest of St. George's Island. It is not disputed, therefore, that the seizures in question were effected at a distance from land far in excess of the limit of maritime jurisdiction, which any nation can claim by international law, and it is hardly necessary te add that such limit can not be enlarged by any municipal law. The claim thus set up appears to be founded on the exceptional title said to have been conveyed to the United States by Russia at the time of the cession of the Alaska Territory. The pretention which the Russian Government at one time put forward to exclusive jurisdiction over the whole of Behring Sea was, however, never admitted either by this country or-the United States of America. On the contrary, it was strenuously resisted, as I shall presently show, and the American Government can hardly claim to have received from Russia rights which they declared to be inadmissible when asserted by the Russian Government. Nor does it appear from the text of the treaty of 1867 that Russia either intended or purported to make any such grant, for by Article I of that instrument Russia agreed to cede to the United States all the territory and dominion then possessed by Russia " on the continent of America and in the adjacent islands" within certain geographical limits described, and no mention was made of any exclusive right over the waters of Behring Sea. Moreover, whatever rights as regards their respective subjects : be reciprocally conferred on the Russian and American Governments lations, the subjects of Her Majesty can not be thereby affected, e arrangement with this country. . . With regard to the exclusive claims advanced in times past by Russia, 1 trai to you documents communicated to the United States Congress i the view taken by the American Government of these pretentions. In 1821 the Emperor of Bussia had issued an edict establishing "rules for the limits of navigation and order of communication along the coast of tbo eastern B S, PT XII -2 nd citizens may by treaty stipn- coept by special which show y, and great fa >r an explanatio he Eussian Mini aining how Em me since, a nofthegr. ■ssia liad'ac nd that he ounds upon •eply, dated ;quired her > the 45th degree. mends all the cond , and the Russian accise upon this sea r, that the Russian posses- of America from Behring's )osite side of Asia and the 18 ORAL ARGUMENT OF JAMES C. CARTER, ESQ. Siberia, the northwestern' coast of America, and the Aleutian, Kurile, and other islands." The first section of the edict said: .. '■» ■• The pursuit of commerce, whaling, and fishing, and of all other industry on all islands, ports, and gulfs, including the whole of the northwest coast of America, beginning from Behring Straits to the 51st degree of northern latitude; also from the Aleutian Islands to the eastern coast of Siberia, as well as along the Kurile Islands from Behring Straits to the south cape of the island of Urup, viz, to the 45° 50' of northern latitude, is exclusively granted to Russian subjects. Lord Salisbury then proceeds: (I desire to save readinj possible) to state that copies of these regulations were con to the American Secretary of State, at that time Mr. Jc Adams, of great repute in " ' asked the Eussian Governn which such action was base the 28th of February, afte possessions in North Amer I ought, in the last place, to r attached to shut seas {"mers ferm quently judge itself authorized t and especially that of entirely interdicting the entran ferred only asserting its essential rights without taking advantage of localities. That is the explanation given by the Eussian Minister. Lord Salisbury continues : On the 30th March Mr. Adams replied to the explanations given by the Russian ' minister. He stated that, with respect to the pretension advanced in regard to territory, it must be considered not only with reference to the question of territorial rights, but also to that prohibition to the vessels of other nations, including those of the United States, to approach within 100 Italian miles of the coasts. That from the period of the existence of the United States as an independent nation their vessels had freely navigated these seas, the right to navigate them being a part of that independence; and with regard to the suggestion that "the Russian Government might have justified the exercise of sovereignty over the Pacific Ocean as a close sea, 'because it claims territory both on its American and Asiatic shores,'it may suffice to say that the distance from shore to shore on this sea, in latitude 51° north, is not less than 90° of longitude or 4000 miles." Mr. Adams concluded as follows. The President is persuaded that the citizens of this Union will remain unmolested in the prosecution of their lawful commerce, and that no effect will be given to an interdiction manifestly incompatible with their rights. The convention between the United States of America and Russia of the 17th April, 1824, put an end to any further pretension on the part of Russia to restrict naviga- stipulation in the convention between this country and Russia in the following year (15th May, 1825), put an end as regarded British subjects to the pretensions of Russia to which I have referred, and which had been entirely repudiated by Her Majesty's • Government of the United States will admit that the seizure and condemnation of these British vessels and the imprisonment of their masters and crews were not warranted by the circumstances, and that they will be ready to afford reasonable ORAL ARGUMENT OF JAM . CARTER, ESQ. Lord Salisbury thus reiterated the position which had been taken that the United States Government had no authority to enforce its municipal laws upon any part of the seas outside of the ordinary three mile limit; and in support of that position he referred to the action of the American Government in 1822 protesting against pretensions on the part of Eussia to exercise what the United States Government then seemed to think were acts of sovereignty over these same seas; and his argument was, that the United States Government would hardly pretend now to exercise jurisdictional rights which, when asserted by Eussia so many years ago, they protested against so vigorously. It will be observed that in this letter Lord Salisbury makes no allusion to any supposed question of property. He makes no allusion to the industry carried on upon the Pribilof Islands of guarding these seals, and preserving them for the uses of commerce. He makes no allusion to the question whether pelagic sealing is right or wrong in itself; but seems to consider that, whether right or wrong, and whether there is any property interest or not, the United States had no right to capture a vessel upon the high seas, because that would be an attempt to enforce their municipal laws there. He puts himself upon the ground— not an unnatural one at all under the circumstances, in view of this record of an American Tribunal of a libel upon a British vessel based upon an asserted violation of American law—that American municipal law, which is the sole ground, as he supposes, of the taking of the vessels, cannot be enforced upon the high seas, and has no authority there, and he cites in favor of that position the prior action of the American Government. At this time, information of the facts having reached both Governments, and the British Government having made a demand, and Lord Salisbury having put himself upon this ground, the question arose with the American G overnment what it was best to do. What was the situation? Here was its property, its industry, as it supposed—carried on for a century in the face of the whole world, and hitherto unmolested by the world—an industry beneficial to itself, and equally beneficial to the rest of mankind; that industry and the herd of seals upon which it rested were threatened with certain destruction, as it was viewed by the American Government, by this practice of pelagic sealing. Efforts had been made to arrest it by an enforcement of the American statute, which effort had been exerted against both American and British vessels. They were met, so far as Great Britain was concerned, with protest, on the ground that it was an exercise of authority which the United States did not have over the high seas. What was the United States Government to do under those circumstances? There was this complete and perfect property, as it supposed, in the seals. There was this destructive character of pelagic sealing, a manifest, indisputable wrong in itself, as it appeared to the Government of the United States, and a wrong, too, destructive of one of its own interests, and, therefore, there must be a right, somewhere and somehow, to arrest the further progress of that wrong. The steps 'taken to do it had excited this protest upon the part of Great Britain, and undoubtedly did involve the exercise of an exceptional authority on the high seas. The exigency might have been met in various ways. Mr. Bayard might have asserted the authority of the United States to repress this 20 ORAL ARGUMENT OF JAMES C. CARTER, ESQ. practice at once, and continued to assert that authority, ta1"' consequences. It position, once take j what tba ghtha ha The ;ake side, by Great Britain, could not perhaps 1 the result of that, as the cause of the co irritation were present at all times, won would be continually repeated, and would Another course wa led from the sour that the : the edi£ objected was so manifestly inju wrong, that all Governments w< and thus the difficulty would be Mr. Bayard did not believe, c pelagic sealing was a right on believe, that any civilized natim his view; but the course which perhaps, a good deal governed 1 Mr. Bayard, I need not say, is character and the most humane rence for war than he. No ma mode of adjusting international upon which, as he viewed it, th enlightened men, there would be ment of the United States in so hostilities even probable. His c tory one. He determined to £ Great Britain, b practice of e could not ;. That was ibe nations, put the matter and come sealing—such an agreement as would t. seals—without any resort to irri right. That position of Mr. Ba; deliberate character respecting tl on page 168 of the volume to which I ] ticular note is one from him to Mr. Vi to the American Ministers in Germs den and Norway and Japan. Sir Charles Eussell. I think a copy of this was not sent to Great Britain. Mr. Garter. I think it was. Sir Charles Eussell. I think not. Mr. Carter. That is my impression. Mr. Foster. Yes, Mr. Carter. I will read this note: , and invite th< >m to consider the is taken by tl atterwhichhe-* [ have been ref «rmination of the îpon questions of îe first note of a vrote. It is found my, Great Bri1 ;ain, Eussia, Swe- No. 256.] Depa tment of State, Washington, A ra the attention of this Départe u you—to attujn the c ORAL ARGUMENT OF JAMES C. CARTER, ESQ. 21 It is well known that the unregulated and indiscriminate killing of seals in many parts of the world has driven them from place to place, and, by breaking up their habitual resorts, has greatly reduced their nmnber. Under these circumstances, and in view of the common interest of all nations iD preventing the indiscriminate destruction and consequent extermination of an animal which contributes so importantly to the commercial wealth and general use of mankind, you are hereby instructed to draw the attention of the Government to which yon are accredited to the subject, and to invite it to enter into such an arrangement with the Government of the United States as will prevent the citizens of either country from killing seal in Behring Sea at such times and places, and by such methods as at present are pursued, and which threaten the speedy extermination of those animals and consequent serious loss to mankind. The ministers of the United States to Germany, Sweden and Norway, Russia, Japan, and Great Britain have been each similarly addressed on the subject referred to in this instruction. I am, etc., T. F. Bayakd. That was the attitude first taken by Mr. Bayard towards other nations. He refers, in the first place, to the peculiar character of the property in question; and in referring to the peculiar character of the property he means that it is an animal that passes part of its life on the land and part in the sea. He refers, next, to the exceptional marine jurisdiction which the United States might claim to exercise for the purpose of protecting a piece of property so peculiar in its character. He expresses a desire to avoid discussion of those subjects, and he makes his appeal generally to those who are in charge of the interests of mankind to come to some international agreement by which an animal so important in its benefits as the seal is may be effectually preserved. That was the attitude taken by Mr. Bayard, characteristic of the man, conciliatory, and, as it seems to me, the one which an enlightened statesman should have taken under the circumstances. The nations, other than Great Britain, who were 'thus addressed answered this note, I believe I am correct in saying, in rather a formal way, to the effect that they were not specially interested in the subject- matter of the controversy, but would take the suggestions into serious consideration and await such discussion as might be had. So far as Great Britain is concerned, I think I may say that the suggestions thus made by Mr. Bayard were communicated to Lord Salisbury by the American representative in England at that time, my associate Mr. Phelps, and were at once accepted by him in the spirit in which they were offered. Senator Morgan. Mr. Carter, if you will allow me, I think that the diplomatic correspondence shows that Japan and Eussia coincided with the proposition of the United States, and Norway and Sweden expressed their concurrence in the ideas presented in the note of Mr. Bayard, but said that that Government was not at present interested in the question, and suggested that the convention should be so framed as to admit other powers to join subsequently, if they saw proper. Mr. Carter. I should have observed that Japan and Eussia made a favorable response to these suggestions; but other nations not particularly interested answered, I think, in the way I suggested. But what I had particularly in mind to impress upon the Tribunal was-what I think will prove to be true; namely, that when these conciliatory suggestions were made to Lord Salisbury they were accepted by him in the spirit in which they were tendered. The first note, which I shall read upon that point is that of Mr. Phelps to Mr. Bayard, which was dated in London, 12th November 1887; the letter of Mr. Bayard having been dated 19th of August. Mr. Phelps says: 22 ORAL ARGUMENT OF (N°. 618.) I have, etc., E. J. Phelps. I assume from this that Mr. Phelps communicated the instructions . he had received from Mr. Bayard, and that in that way the note of Mr. Bayard was communicated to the Government of Great Britain. Sir Charles Eussell. That is correct, substantially. Mr. Carter. And the learned arbitrators will perceive from this that in carrying out the instructions which he had received from Mr. Bayard, Mr. Phelps proposed to Lord Salisbury the establishment of a code of regulations for the restriction of pelagic sealing by citizens of either country during certain times. The idea Avas a code of regulations establishing what was called a "close time"; and to that suggestion, which was designed to carry out Mr. Bayard's object of preserving the seals by international agreement, a prompt assent was given by Lord Salisbury. What was awaited, therefore, was the framing by the United States of a code of regulations sufficient to carry out the object iu view. Mr. Phelps upon receiving that communication, presumably at least,—perhaps his letter may be somewhere printed, but I do not know that it is—informed Mr. Bayard of this fact, and then Mr. Bayard addresses a further communication to him. This is found on page 175. The President. Mr. Carter, I would suggest that before we begin this new question we might rest a while. The Tribunal thereupon took a recess for a short time. After re-assembling. The President, said: Mr. Carter, will you proceed? Mr. Carter. Mr. President, when the Tribunal rose for its recess, I was calling the attention of the learned Arbitrators to the course of the correspondence which arose in reference to the seizures of British vessels. I had stated the conciliatory action which Mr. Bayard the American Secretary of State had chosen to take, the sending of 'communications by him to the American Ministers to the various maritime nations, and the response which had been received to the communication thus made from Lord Salisbury, the British xMinister of Foreign Affairs. 1 had read, as showing that response, the note of Mr. Phelps to Mr. Bayard of November 12,1887. ORAL ARGUMENT Mr. Bayard having received t fied at the prospect of an ami addressed this note to Mr. Phe I am, etc., T. F. Bayard. Ton will remember that Mr. Phelps requested of Mr. Bayard a proposed Code of Eegulations. On the 7th of February, 1888, Mr. Bayard again addresses Mr. Phelps, and in his communication gives the principal features of a proposed Code, and it is somewhat important to consider them. I read from the note: Mr. Bayard to Mr. Phelps. No. 782.] Department op State, Washington, February 7,1S88. Sir: I have received your No. 618, of the 12th of November last containing an account of your interview with Lord Salisbury of the preceding day, in which his lordship expressed acquiescence in my proposal of an agreement between the United States and Great Britain in regard to the adoption of concurrent regulations for the preservation of fur-seals in Behring Sea from extermination by destruction at improper seasons and by improper methods by the citizens of either country. In response to his lordship's suggestion that this Government submit a sketch of a system of regulations for the purpose indicated, it may be expedient, before making a definite proposition, to describe some of the conditions of seal life; and for this purpose it is believed that a concise statement as to that part of the life of the seal which is spent in Behring Sea will be sufficient. All those who have made a study of the seals in Behring Sea are agreed that, on an average, from five to six months, that is to say, from the middle or toward the end of spring till the middle or end of October, are spent by them in those waters in breeding and in rearing their young. During this time they have their rookeries on the islands of St. Paul and St. George, which constitute the Pribilof group and belong to the United States, and on the Commander Islands, which belong to Russia. But the number of animals resorting to the latter group is small in comparison with that resorting to the former. The rest of the year they are supposed to spend in the open sea south of the Aleutian Islands. Their migration northward, which has been stated as taking place during the spring and till the middle of June, is made through the numerous passes in the long chain of the Aleutian Islands, above which the courses of their travel converge chiefly to the Pribilof group. During this migration the female seals are so advanced in pregnancy that they generally give birth to their young, which are commonly called pups, within two weeks after reaching the rookeries. Between the time of the birth of the pups and of the emigration of the seals from the islands in the autumn the females are occupied in suckling their young; and by far the largest part of the seals found at a distance from the islands in Behring Sea during the summer and early autumn are females in search of food, which is made doubly necessary to enable them to suckle their young as well as to support a condition of renewed pregnancy, which begins in a week or a little more after their delivery. The male seals, or bulls, as they are commonly caUed, require little food while on the islands, where they remain guarding their harems, watching the rookeries, and months. Moreover, it is impossible to distinguish the male from the female seals in the permit the destruction of the seals by the use of Areas means in Behring Sea would result in the speedy here appears to be no difference of opinion on this he fact is so clearly and forcibly stated in the report • British Columbia of the 31st of December, 1886, that iwing pertinent passage : 24 ORAL ARGUMENT OF JAMES C. CARTER, ESQ. There were killed this year, so far, from 40,000 to 50,000 fnr-seals,.which have been taken by schooners from San Francisco and Victoria. The greater number were killed in Behring Sea, and were nearly all cows or female seals, lhis enormous eaten, with the increase which will take place when the vessels fitting up every year are ready, will I am afraid, soon deplete our fur-seal fishery, and it is a great pity that such a valuable industry could not in some way be protected. (Report of Thomas Mowat, inspector of fisheries for British Columbia; Sessional Papers, Vol. 15, No. lb, p. 268: Ottawa, 1887.) . . . The only way of obviating the lamentable result above predicted appears to be by the United States, Great Britain, and other interested powers taking concerted action destructive weapons, north of 50° of north latitude, and between 160° of longitude west and 170° of longitude east from Greenwich, during the period intervening between April 15 and November 1. The area thus described by Mr. Bayard is that between the 160th degree of longitude West and 170 of longitude Bast from Greenwich. Here is longitude 170 (indicating on map) East, and here is longitude 160 West. There is the 50th degree of latitude. It is, therefore, from this point 170 East to 160 West (indicating on map). All North of that parallel of 50 degrees of latitude, and between 160 East and 170 West longitude, was the proposed area of exclusion, thus including the whole of Behring Sea, substantially, and a considerable part of the North Pacific Ocean south of Behring Sea. Sir Charles Eussell. That will exclude, I think, the Commander Islands? Mr. Carter. Apparently it would exclude the Commander Islands. bulls are the first to reach the islands, v As the young bulls arrive they are drh of the islands, by themselves. And thes there killed by clubbing, so that the ski resulted in completely breaking up extensive rookeries. At the present time it is estimated that out-of an aggregate yearly yield of 185,00 seals from all parts of the globe, over 130,000, or more than two-thirds are obtainei from the rookeries on the American and Russian islands in Behring Sea. Of th remainder, the larger part are taken in Behring Sea, although such taking at leas on such a scale, in that quarter is a comparatively recent thing. But if the kilTini of the fur-seal there with firearms, nets, and other destructive implements wer permitted, hunters would abandon other and exhausted places of pursuit for th more productive field of Behring Sea, where extermination of this valuable anima would also rapidly ensue. It is manifestly for the interests of all nations that so deplorable a thing shonli not be allowed to occur. As has already been stated, on the Pribilof Islands thi Government strictly limits the number of seals that may be killed under its owi lease to an American company; and citizens of the United States have, during th past year, been arrested and ten American vessels seized for killing fur seals L Behring Sea. ORAL ARGUMENT OF JAMES C. CARTER, ESQ. tnat winch she must feel in preventing the extermination of an animal which contributes so much to the gain and comfort of her people. Nearly all undressed fur- seal skins are sent to London, where they are dressed and dyed for the market, and where many of them are sold. It is stated that at least 10,000 people in that city find profitable employment in this work; far more than the total number of people engaged in hunting the fur-seal in every part of the world. At the Pribilof Islands it is believed that there are not more than 400 persons so engaged; at Commander Islands, not more than 300; in the Northwest coast fishery, not more than 525 Indian hunters and 100 whites; and in the Capo Horn fishery, not more than 400 persons, of whom perhaps 300 are Chileans. Great Britain, therefore, in cooperating with the United States to prevent the destruction of fur seals in Behring Sea would also be perpetuating an extensive and valuable industry in which her own citizens have the most lucrative share. I inclose for your information copy of a memorandum on the fur.seal fisheries of the world, prepared by Mr. A. Howard Clark, in response to a request made by this Department to the U. S. Fish Commissioner. I inclose also, for your further "information, copy of a letter to me, dated December 3d last, from Mr. Henry W. Elliott, who has spent much time in Alaska, engaged in the study of seal life, upon which he is well known as an authority. I desire to call your especial attention to what is said by Mr. Elliott in respect to the new method of catching the seals with nets. As the subject of this dispatch is one of great importance and of immediate urgency, I will ask that you give it as early attention as possible, T. F. Bayard. That was Mr. Bayard's number 782. Mr. Phelps acknowledges this letter on the 18th of February 1888, thus : Mr. Phelps to Mr. Bayard. No. 690.] Legation of the United States, London, February 18, 1888. (Received February 28.) Sir: I received yesterday your instruction No. 782, under date of February 7, relative to the AlaRkan seal fisheries. I immediately addressed a note to Lord Salisbury, inclosing for his perusal one of the printed copies of the instruction, and requesting an appointment for an early interview on the subject. I also sent a note to the Russian ambassador, and an interview with him is arranged for the 21st instant. The whole matter will receive my immediate and thorough atteu tion and I hope for a favorable result. Meanwhile 1 would ask your consideration of the manner in which you would propose to carry out the regulations of the fisheries that may be agreed upon by the countries interested. Would not legislation be necessary; and, if so, is there any hope of obtaining it on the part of Congress? I have, etc., • E. J. Phelps. Subsequently, on the 25th of February, he again addresses Mr. Bayard, and this is his note: Mr. Phelps to Mr. Bayard. [Extrac No. 692 1 Legation of the United States, London, February 35, 1888. (Received March 6.) Sir: Referring to your instructions, numbered 782, of February 7, 1888, in reference to the Alaska seal fisheries, and to my reply thereto, numbered 690, of February 18, I have the honor to inform you that I have since had interviews on the subject with Lord Salisbury and with M. de Staal, the Russian ambassador. Lord Salisbury assents to your proposition to establish, by mutual arrangement between the governments interested, a close time for fur seals, between Apr-1 1 November 1, and between 160° of longitude west and 170° of longitude eai Behring Sea. • . He will also join the United States Government m any preventive measures « may be thought best to adopt, by orders issued to the naval vessels in that region of the respective governments. , . . ,. I have this morning telegraphed you for additional printed copies of instructions 782 for the use of Her Majesty's Government. 26 ORAL ARGUMENT OF JAMES C. CARTER, ESQ. The Russian ambassador concurs, so fax as his personal opinion is concerned, in the propriety of the proposed measures for the protection of the seals, and has promised to communicate at once with his Government in regard to it. I have furnished him with copies of instructions 782 for the use of his Government. I have, etc., „ , „ E. J. Phelps. The learned Arbitrators will perceive from Mr. Phelps' note that the proposed close time extending over the area between 170 East longitude and 160 West longitude, and beginning at the 50th parallel of latitude, and including everything North, was at once assented to, and that pelagic sealing within that area was to be prohibited between April 15th and November 1st. Of course, I do not understand from this note that Mr. Phelps intimated that the agreement was absolutely final, so that it might be put in the form of a treaty or convention : but only that the proposition of Mr. Bayard containing that measure of restriction was at once assented to by Lord Salisbury without objection, although further communications might be needful before the measure was put in the shape of a treaty; nor do I mean to intimate that Mr. Phelps states that the agreement was an absolute one, precluding any withdrawal from it. Mr. Bayard again addresses Mr. Phelps on the 2nd of March, 1888, and in this communication he acknowledges the receipt, not of the last letter that I read, but of the one prior to that, of February 18,1888: Mr. Bayard to Mr. Phelps. N°. 810.] Department of State, Washington, March S, 1888. Sir: I have to acknowledge the Teceipt of your No. 690, of the 18th ultimo, in relation to the Alaskan seal fisheries, and have pleasure in observing the promptitude with which the business has been conducted. It is hoped that Lord Salisbury will give it favorable consideration, as there can be no doubt of the importance of preserving the seal fisheries in Behring Sea, and it is also desirable that this should be done by an arrangement between the governments interested, without the United States being called upon to consider what special measures of its own the exceptional character of the property in question might require it to take in case of the refusal of foreign powers to give their coop- "Whether legislation would be necessary to enable the United States and Great Britain to carry out measures for the protection of the seals would depend much upon the character of the regulations; but it is probable that legislation would be required. The manner of protecting the seals would depend upon the kind of arrangement which Great Britain would be willing to make with the United States for the policing of the seas and for the trial of British subjects violating the regulations which the two Governments may agree upon for such protection. As it appears to this Government, the commerce carried on in and about Behring Sea is so limited in variety and extent that the present efforts of this Government to protect the seals need not be complicated by considerations which are of great importance in highways of commerce and render the interference by the officers of one Government with the merchant vessels of another on the high seas inadmissible. But even in regard to those parts of the globe where commerce is extensively carried on, the United States and Great Britain have, for a common purpose, abated in a measure their objection to such interference and agreed that it might be made by the naval vessels of either country. Reference is made to the treaty concluded at Washington on the 7th of April, 1862, between the United States and Great Britain for the suppression of the slave trade, under which the joint policing of the seas by the naval vessels of the contracting parties was provided for. In this convention no limitation was imposed as to the part of the high seas of the world in which visitation and search of the merchant vessels of one of the contracting parties might be made by a naval vessel of the other party. In the present case, however, the range within which visitation and search would be required is so limited, and the commerce there carried on so insignificant, that it is scarcely thought necessary to refer to the slave-trade convention for a precedent, nor is it deemed necessary that the performance of police duty sfeould be by the naval vessels of the contracting parties. posed regulations was requested by Mr. Phelps from Mr. Bayard, in Lord Salisbury. Having obtained a draft of the proposed regulations, which provided for a close season over an area which I have already described, that was submitted to Lord Salisbury and met with his prompt assent. That, it will be perceived, made a "close period» between April 15 and November 1st. It was shortly after this, and if I am correct in my recollection, on or about the 5th of April, 1888, that Mr. Phelps left London and went to the United States for a while, and the affairs of the mission in London were left in charge of Mr. White. There are some letters from Mr. White to Mr. Bayard which show the further progress of the negotiations. Mr.White, on the 7th of April, 1888, addresses Mr. Bayard. This is a telegram. Mr. White stated that on the following Thursday he was to meet Lord Salisbury and M. de StaaL etc: Mr. Whit» to Mr. Bayard. Mr. White stated t On the same day he addresses this letter to Mr. Bayard: Mr. White to Mr. Bayard. No. 720.] Legation of the United St/ ORAL ARGUMENT OF JAMES C. CARTER, ESQ. i the 20th of April,.1888, Mr. White again writes Mr. Bayard: Mr. White to Mr. Bayard. No. 725.] London, April ZO, Sir: Referring t patches Nos. 618 i discussing with tl the details of the ] M. de Staal expr o your Instruct ciill.'d'atthefo jroposed conven ons Nos. 685, 782, reign office on the 1 isbury and M. de SI hers of seals, who Sea. He also urged th at measures be 1 'threatened in the ay as those in Behring clause in the proposed ing Robben Island, he suggested that, besides the whole of Behring Sea, those portions of the Sea of Okhotsk and of the Pacific Ocean north of north latitude 47° should be included in the proposed arrangement. This suggestion of Lord Salisbury's, therefore, carried the protected area further South. Mr. Phelps. The suggestion of M. de Staal, you mean. Mr. Carter. No, of Lord Salisbury. Lord Salisbury's suggestion carried the protected area further South from the 50th parallel of latitude down as far as the point upon which my pointer rests (indicating on map), and to include the whole of that part of the Pacific Ocean, so as to embrace not only the Commander Islands, but also Eobben Island in the Sea of Okotsk. His Lordship (that is Lord Salisbury) intimated further that the period proposed by the United States for a close time from April 15th to November 1st might interfere with the trade longer than absolutely necessary for the protection of the seals, etc. The learned Arbitrators will perceive that at this point the communicating diplomats were so far agreed upon the subject that it was conceived by Lord Salisbury to be in a condition for the preparation of a draft convention. Afterwards, on the first of May, Mr. Bayard addresses Mr. White: and it is in answer to the last note of Mr. White, which I have just read : Mr. Bayard to Mr. White. Department of State, Washington, May 1,1888. As you have already been instructed, the Department does not object to the inclusion of the Sea of Okhotsk, or so much of it as may be necessary, in the arrangement for the protection of the seals. Nor is it thought absolutely necessary to insist on the extension of the close season till the 1st of November. th0?17 SnCh a period is deair?d M mav be requisite for the end in view. But in order the protection of the seals, it seems advisable to take the 15th of October instead of the 1st as the date of the close season, although, as I am now advised, the 1st of November would be safer. ORAL ARGUMENT OF JAMES C. CARTER, ESQ. 29 Mr. Bayard now suggests that it be made the 15th of October, splitting the difference, although he says the first of November would be safer. Mr. White, in his next note to Mr. Bayard mentions a further stage which the matter had then reached. On the 20th of June, 1888, he thus writes: Mr. White to Mr. Bayard. No. 786.] Legation of the United States, London, June ZO, 1888. (Received June 30.) Sir: I have the honor to inform vou that I availed myself of an early opportunity to acquaint the Marquis of Salisbury and the Russian ambassador of the receipt of your instructions numbered 864, of May 3, and shortly afterwards (May 16) his exeeBency and I called together at the foreign office for the purpose of discussing with his lordship the terms of the proposed convention for the protection of seals in Behring Sea. Unfortunately Lord Salisbury had just received a communication from the Canadian Government stating that a memorandum on the subject would shortly be forwarded to London, and expressing a hope that pending the arrival of that document no further steps would be taken in the matter by Her Majesty's Government. Under these circumstances Lord Salisbury felt bound to await the Canadian memorandum before proceeding to draft the convention. I have inquired several times whether this communication from Canada had been received, but it has not yet come to hand. I was informed to-day by Lord Salisbury that an urgent telegram had been sent to Canada a week ago with respect to the delay in its expedition and that a reply had been received by the secretary of state for the colonies stating that the matter would be taken up immediately. I hope, therefore, that shortly after Mr. Phelps's return this Government will be in a condition to agree upon the terms of the proposed convention. I have the honor to inclose for your information the copy of a question asked by Mr. Gourley and answered by Sir James Fergusson in behalf of the British Government with respect to the seal fishing in Behring Sea. I have, etc., Henry White. ieth Congress, second session, At this point an obstacle was for the first time interposed in the progress of the negotiations which otherwise would in all probability have resulted in a final agreement between the two countries for the preservation of the seals by establishing a close season over the area mentioned, from the first of April to the 15th of October. Whether that protection would have been adequate is another question which I do not stop now to discuss ; but that the convention would, except for the obstacle mentioned, have been concluded substantially securing those terms it seems to me there can be no reasonable doubt. The obstacle to it arose from a protest on the part of Canada. Lord Salisbury had—very properly, undoubtedly, as the Canadian people were more interested in the prosecution of pelagic sealing than others— sent some communication to the colonial Government in reference to the matter, and had received in response a statement, so far as we can gather from this letter of Mr. White, simply objecting to the final conclusion of any such proposed arrangement. I think it may be worth . while, in noting this response of Canada, to take a glance at the terms in which Lord Salisbury made the communication to the Canadian Government, which will be found in the Appendix, Vol. 3 of the British Case, p. 196 : The Marquis of Salisbury to Sir JR. MoHer. No. 121.] ■ Foreign Office, April 16, 1888. Sir: The Russian Ambassador and the United States Chargé d'Affaires called upon me this afternoon to discuss the question of the seal fisheries in Behring's Sea, which had beon brought into prominence by the recent action of the United States. The United States Government had expressed a desire that some agreement should be arrived at between the three Governments for the purpose of prohibiting the 30 ORAL ARGUMENT OP JAMES C. CARTER, ESQ. slaughter of the seals during the time of breeding; and at my request, M. de Staal had obtained instructions from his Government on that question. At this preliminary discussion it was decided provisionally, in order to furnish a basis for negotiation, and without definitively pledging our Governments, that the space to be covered by the proposed Convention should be the sea between America and Russia north of the 47th degree of latitude; that the close time should extend from the 15th April to the 1st November; that during that time the slaughter of all seals should be forbidden ; and vessels engaged in it should be liable to seizure by the cruizers of any of the three powers, and should be taken to the port of their own nationality for condemnation; that the traffic in arms, alcohol, and powder should be prohibited in all the islands of those seas; and that, as soon as the three Powers had concluded a Convention, they should join in submitting it for the assent of the other Maratime Powers of the northern seas. The United States Chargé d'Affaires was exceedingly earnest in pressing on us the importance of dispatch on account of the inconceivable slaughter that had been.and was still going on in these seas. He stated that, in addition to the vast quantity brought to market, it was a common practice for those engaged in the trade to shoot aU seals they might meet in the open sea, and that of these a great number sank, so that their skins could not be recovered. I am, etc., Salisbury. The learned Arbitrators will now see the manner in which the negotiations pending between the two Governments was notified to the Canadian Government. Sir Charles Eussell. That was to Sir Eobert Morier. That was to Eussia, not to Canada. The President. Sir Eobert Morier was in St. Petersburg. Mr. Foster. A copy of the same note was sent to Sir Lionel Sackville West. Mr. Carter. What Sir Charles Eussell says may be true ; but a copy of the same note was sent to Sir Lionel Sackville West at Washington. Sir Charles Eussell. Yes; it was sent to Washington, not to Canada. The President. That is not a communication made to Canada. Tou spoke of a communication to the Canadian Government. Sir Lionel Sackville West was in Washinton. Mr. Carter. Yes; he was in Washington; but the evidence that the communication was sent to Canada is not derived from this note of Salisbury to Morier, and which was also sent to Sir Lionel Sackville West. I am in error in stating, if I did state, that that was the form in which Canada was apprised of the state of negotiations; but that at this, time Canada was so apprised is stated in the communications which I have read. Mr. Justice Harlan. You will find on page 199 of the British Case, Appendix, Vol. Ill, the letter from the Colonial Office to the Foreign Office, in which Lord Knutsford acknowledges the receipt of the letter of the 20th, transmitting a copy of a dispatch addressed to Her Majesty's Ambassador at St. Petersburg. The President. That is the same dispatch that was sent to the Canadian Government. Mr. Justice Harlan. The answer of the Canadian Government is on page 212 of that volume. Mr. Carter. On page 199 of the third volume of the Appendix to the British Case, is found the following communication from the British Colonial Office to the Foreign Office: Colonial Office to Foreign Office. No. 128.] Downing Street, April 35, 1888. (Received April 26.) Sir, I am directed by Lord Knutsford to acknowledge the receipt of your letter of the 20th instant, transmitting a copy of a dispatch addressed to Her Majesty's Ambassador at St. Petersburg respecting the proposed establishment of a close time for seals in Behring's Sea. ORAL ARGUMENT OP JAMES C. CARTER, ESQ. 31 And that dispatch is the same as the one from the Marquis of Salisbury to Sir Eobert Morier, so that it did get from the Foreign Office of the British Government to the Colonial Office and the receipt of it is thus acknowledged. The dispatch continues : In reply, I am to inclose, for the information of the Marquis of Salisbury, a copy I am also to inclose a copy of a dispatch from Lord Lansdowne, in the two concluding paragraphs of which he points out that the probable effect of the proposed close time on the operations of the Canadian sealers would be to exclude them completely from the rights which they have until lately enjoyed without question or , it is probable that the United States proposals may not >e accepted by Canada without reserve, and Lord Knutsford would suggest that, >ending the receipt of the observations of the Domini" " Robert G. W. Herbert. Lord Knutsford to the Marquis of Lansdowne. [Inolosure 1 in N» 128.] Downing Street, April Zl, 1888. My Lord, I have the honour to acquaint you that I have this day telegraphed to you, with reference to your dispatch of the 9th instant, that negotiations are proceeding between Russia, the United States, and Great Britain with regard to the establishment of a close time, during which it would be unlawful to kill seals at sea, in any manner, to the north of the 47th paraUel of latitude between the coasts of Russia and America, and inquired whether your Government was aware of an;<- objection to the proposed arrangement. I added that, of course, as regards Canadian waters, Canadian legislation would be necessary. I have, etc., Knutsford. We now perceive that the conclusion of the negotiations— Sir Charles Eussell. I beg pardon; but the dispatch referred to from Lord Lansdowne was on the 9th of .April. Mr. Carter. Would you like to have me read it? Sir Charles Eussell. It precedes the one you have read in point of time. I do not wish, however, to put you to any inconvenience. Mr. Carter. This is the enclosure from Lord Lansdowne who was the head of the Colonial Office in London : The Marquis of Lansdowne to Lord Knutsford. [Inclosure 2 in X° 128—Extract.] Government House, Ottawa, April 9,1888. In reference to my despatch of the 29th March, I have the honour to inclose herewith copy of a telegram, dated the 5th instant, from the Attorney-General of British 'nting him that my telegram, of which a h, had been published in the provincial hat there was reason to believe that these ion thus given, ceased to arm themselves ? a telegram received from Sir L. fuizers during the present season, Colum bia to, Sir John Macdon ild, acqua copy w -ou in the abc to sealing-ve ssels, and t vessels had, in cor sequence of 1 for the purpose of resisting the cruizers of I ha ve forwarded to you by this mail Westi a reference to the probab and of addressed to lim by me I ob erve that ;he informati 6th ins is the same as that comn ely to the efl è'ctthafn States 'or the cap ure of Britis point < ut that th is is not equivalent to a 32 ORAL ARGUMENT OF JAMES C. CARTER, ESQ. molested except when found within the 3-mile limit, anu that we are not informed whether any orders which have been already issued in this connection are or are not still in force. That is in reference to another topic, the request of Great Britain that instructions should be issued by the United States Government to its cruisers in the Bering Sea not to interfere with British vessels. He passes from that : I need scarcely point out that the close time for seals, referred to in your telegram, is created under a Statute of the United States, which is not obligatory except upon the subjects of that Power. The proposal contained in the inclosure to your Confidential despatch of the 8th March, 1888, for the adoption of a similar close season by British fishermen is at present receiving the careful consideration of my Government. Such a close time could obviously not be imposed upon our fishermen without.notice or without a fuller discussion than it has yet undergone. You are aware that, during the close time enforced by the United States Statute, the seals, although protected from slaughter by the use of firearms, may be killed in great numbers on their breeding grounds by the persons who enjoy the monopoly of the trade under Concessions be little if excluded In maki at aU curtai rom the righ ag this obser animals of the Pac tion such as that suddenly and arbi fic°c whic It will now be perceived, let me repeat, that the negotiation entered into between the United States and Great Britain, with every prospect at first of a favorable termination, had been arrested in consequence of protest having been received from the Canadian Government. I do not complain of that, or suggest its impropriety; I am merely stating the fact that it was arrested £t that point and in consequence of that protest. The business continued in a condition of suspense in consequence of that for a very considerable time; although, if I rightly remember, the United States on more than one occasion during the interim rather pressed the British Government to give a decided answer; but the next we hear of it—which is to the point I am engaged upon—is contained iu Mr. Phelps' letter to Mr. Bayard of September 12th, 1888. Mr. Phelps had returned from his absence in the United States and again taken charge of the American embassy in London, and his communication is as follows to Mr. Bayard: Mr. Phelps to Mr. Bayard. N°. 825.] Legation of the United States, London, September IZth, 1888. (Received September 22.) Sir : Referring to the subject of the Alaskan seal fisheries, and to the previous correspondence on the subject between the Department and this legation, I have now the honor to acquaint you with the purport of a conversation which I held with Lord Salisbury in regard to it on the 13th August. Illness, which has incapacitated me from business during most of the interval, has prevented my laying it before you earlier. One of the objects of the interview I then sought with his lordship was to urge the completion of the convention between the United States, Great Britain, and Ruseia, which under your instructions bad previously been the subject of discussion ORAL ARGUMENT OF JAMES C. CARTER, ESQ. 33 between the secretary for foreign affairs, the Russian ambassador, and myself. This convention, as I have before advised you, had been virtuaUy agreed on verbally except in its details ; and the Russian as well as the United States Government were desirous to have it completed. The consideration of it had been suspended for communication by the British Government with the Canadian Government, for which purpose an interval of several months had been allowed to elapse. During this time the attention of Lord Salisbury had been repeatedly recaUed to the subject by this legation, and on those occasions the answer received from him was that no reply from the Canadian authorities had arrived. In the conversation on the 13th, above mentioned, I again pressed for the completion of the convention, as the extermination of the seals by Canadian vessels was understood to be rapidly proceeding. His lordship in reply did not question the propriety or the importance of taking measures to prevent the wanton destruction of so valuable an industry, in which as he remarked, England had a large interest of its own, but said that the Canadian Government objected to any suoh restrictions, and that until its consent could be obtained rr~~ > ing to enter into the convention ; that tin* and that meanwhile the convention must w It is very apparent to me that the British Government wiU not execute the desired convention without the concurrence of Canada. And it is equally apparent that the concurrence of Canada in any such arrangement is not to be reasonably expected. Certain Canadian vessels are making a profit out of the destruction of the seal in the breeding season in the waters in question, inhuman and wasteful as it is. .That it leads to the speedy extermination of the animal is no loss to Canada, because no part of these seal fisheries belong to that country; and the only profit open to it in connection with them is by destroying the seal in the open sea during the breeding time, although many of the animals killed in that way are lost, and those saved are worth much less than when killed at the proper time. Under these circumstances, the Government of the United States must, in my opinion, either submit to have these valuable fisheries destroyed or must take measures to prevent their destruction by capturing the vessels employed in it. Between these alternatives it does not appear to me there should be the slightest hesitation. Much learning has been expended upon the discussion of the abstract question of the right of mare clausuni. I do not conceive it to be applicable to the present case. Here is a valuable fishery, and a large and, if properly managed, permanent industry, the property of the nations on whose shores it is carried on. It is proposed by the colony of a foreign nation, in defiance of the joint remonstrance of all the countries interested, to destroy this business by the indiscriminate slaughter and extermination of the animals in question, in the open neighboring sea, during the period of gestation, when the common dictates of humanity ought to protect thei there no interest at all involved. And it is suggested that v defending ourselves against such depredations because the se from the coast is free. The same line of argument would take under its protection piracy and the slave trade, when prosecuted in the open sea, or would justify one nation in destroying the commerce of another by placing dangerous "obstructions and derelicts in the open sea near its coasts. There are many things that can not be .allowed to be done on the open sea with impunity, and against which every sea is mare elausum. And the right of self defense as to person and property prevail there as fully as elsewhere. If the fish upon the Canadian coasts could be destroyed by scattering poison in the open sea adjacent, with spme small profit to those engaged in it, would Canada, upon the just principles of international law, be held defenseless in such a case? Yet that process would be no more destructive, inhuman, and wanton than this ' If precedents are wanting for a defense so necessary and so proper i precedents for such a course of conduct are likewise unknown. The best international law has arisen fromprecedents that have been established when the just occasion for them arose, undeterred by the discussion of abstract and inadequate rules. ' Especially should there be no hesitation in taking this course with the vessels of a colony which has for three years harassed the fisheries of our country with constant captures of vessels engaged in no violation of treaty or legal rights. The comity of nations has not deterred Canada from the persistent obstruction of justifiable and legitimate fishing by American vessels near its coast. What principle of reciprocity precludes us from putting an end to a pursuit of the seal by Canadian ships which is unjustifiable and illegitimate Î I earnestly recommend, therefore, that the vessels that have been already seized while engaged in this business be firmly held, and that measures be taken to capture and hold every one hereafter found concerned in it. If further legislation is necessary, it can doubtless be readily obtained. • There need be no fear but that a resolute stand on this subject will at once put an end to the mischief complained of. It is not to be reasonably expected that Great B S, PT XII 3 34 ORAL ARGUMENT OF JAMES C. CARTER, ESQ. Britain will either encourage or sustain her colonies in conduct which she herself concedes to be wrong and which is detrimental to her own interests as well as to ours. More than 10,000 people are engaged in London alone in the preparation of seal skins. And it is understood that the British Government has requested that clearances should not be issued in Canada for vessels employed in this business ; but the request has been disregarded. I have, etc., F. J. Phelps. The learned Arbitrators will perceive that Mr. Phelps, at least, came to the conclusion at this moment that the further progress of the negotiation and any successful conclusion of it were impossible; and impossible in consequence of the intervention of Canada; and that any assent to regulations which might be proposed, and which would be effective for the purpose, would never be given by the Canadian Government. Whether he was right or wrong in that opinion upon his part is not to my present purpose. It will perhaps be the subject ^f future discussion ; but it is safe to conclude from the correspondence that I have read to the Tribunal that the consummation of the negotiation was arrested, at this point—arrested by the intervention of Canada, and T do not find anywhere in this correspondence any suggestion on the part of Canada of another, or different, or modified, scheme designed to accomplish the purpose of preserving the seals. I think there is no evidence that Canada had ever submitted any proposition of that sort. This brings us to the conclusion of what, I think, may properly enough be called the first stage of this controversy. It is a stage which embraces these leading features: the capture by the cruisers of the United States of British vessels engaged in pelagic sealing; the objection and the protest of the British Government, the ground of objection being that it was an attempt to enforce a municipal law of the United States upon the high seas ; an avoidance of any discussion of that question by Mr. Bayard; a suggestion by him that the case was one of a peculiar property interest, and a case for the exercise of an exceptional marine jurisdiction ; but that it would be wisest and best to avoid a useless, and perhaps an irritating and abortive discussion, upon the questions of right, if the attention of nations could be called to the great fact that here was a useful race of animals, an important blessing to mankind, threatened with extermination by certain practices, and that, therefore, it should be the duty, as it was certainly the interest, of all nations to join pacifically in regulations designed to prevent the mischief. It includes the further feature that negotiations were set on foot for the purpose of carrying out these pacific intentions of the American Minister; that they were received promptly in the most friendly manner and in the same spirit by Lord Salisbury, British Secretary for Foreign Affairs; that an agreement was substantially concluded between those parties which would have been carried into effect but for the objection interposed by Canada, a dependency of the British empire, which was most deeply interested in the carrying on of this pelagic sealing; that, so far as appears, no different scheme, no modified suggestion, designed to carry out the same object was ever formulated by the Government of Canada, but that Canada remained in its condition of simple protest and objection to any scheme of prohibition such as had been presented; and the cessation, apparently final, of the negotiation in consequence of that objection. ORAL ARGUMENT OF JAMES C. CARTER, ESQ. 35 Those are the principal features of what I have thought fit to call the first stage in this controversy. Now let me pass to the second. Senator Morgan. Mr. Carter, do you understand that a British subject residing in Canada has the right, in a diplomatic sense, an international sense, to the protection of two Governments? Mr. Carter. Canadian and British? Senator Morgan. Canadian and Biitish. Mr. Carter. I never thought of that; and any opinion I might give upon it would be of little value now. In the course of such reflections as I have given to these questions, it has not yet occurred to me that that was material. Senator Morgan. The difficulty, I would suggest, that occurs to my mind is this: I can very well understand how a British subject is entitled to the protection of the British Crown and Government in respect to his national relations; but I do not understand how the Canadian Government, as a Government, can interpose to protect British subjects within Canada, against an avowed policy of the British Government. Mr. Carter. I had not supposed that the Canadian Government was such a Government as could, in any sovereign capacity, or diplomatically, communicate with other Governments, or assert any rights in respect to other Governments. I had supposed that the colonies of the British Empire occupied substantially some such position as the States of the American Union occupy towards the United States Government, and that the citizens of Canada in reference to any defence which they might desire to make against the acts of other Governments, would be obliged to appeal to the imperial authority; that their own colonial Government was not able to give them any protection. They might appeal to their own Government in the first instance, but that Government, I suppose, would have, in turn, to appeal to the imperial authority. That is what I should suppose the state of the case was; but I may be in error about that. Sir John Thompson. Like most British subjects Canadians have a right to express their opinfon on matters affecting their own interests; and the Canadian Government has the means of expressing that opinion to the British Government. Mr. Carter.—I should suppose so ; yes. A citizen of Canada has the right of every subject of Great Britain to express his opinion upon all subjects of British policy, I suppose, if any such policy should happen to bear heavily upon him; and his own Government furnishes, doubtless, an instrumentality through which he can communicate that expression. Sir John Thompson. By which he can claim the protection of the British Government. Mr. Carter. By which he can claim the protection. I should suppose that. There were some incidental matters connected with this first stage of the controversy, and which occurred during the discussionsin relation to it, which make a figure, but an unimportant figure, in it. For instance, there were claims for damages made by the British Government growing out of the seizures, and those claims were persisted in, and from time to time made the subject of demand and of diplomatic communication. In the next place there were further seizures made in the year 1888 ; but the vessels which were seized in 1888 were all released from seizure with the exception of one, which was the W. P. Sayward. Sir Eichard Webster. You mean 1887, not 1888. [ 36 ORAL ARGUMENT OF JAMES C. CARTER, ESQ. Mr. Carter. I mean 1887. In 1887 there were several—five I think— British vessels seized. All of them were released. Upon what grounds they were released, whether technical, or for the reason that it was thought the pending negotiation would be better advanced if causes of irritation were removed, I will not undertake to say. They were in fact released. Sir Charles Eussell. There were seven seizures. Mr. Carter. Seven seizures. My statement was true that they were all released but one. I think that one was the W. P. Say ward. She was carried in, libeled at Sitka, I suppose, aud condemned; and from the decree condemning her an appeal was taken to the Supreme Court of the United States ; and the question of the rightfulness of the seizure was sought to be raised there. It was not an appeal that was taken. I am in error in stating that an appeal was taken. The time for appealing had been allowed to pass, and no appeal could be taken ; but counsel thereupon resorted to another method which they thought might be effective to raise the question whether these seizures were rightful or not, and determine it as a judicial question. They took the ground that the seizures beiug outside of the municipal jurisdiction of the United States, and standing upon a law of the United States, the court was without jurisdiction, and therefore they applied to the Supreme Court of the United States for a writ of prohibition upon the inferior tribunal to prevent it from executing the decree which had been made. The application to the United States Supreme Court for this writ of prohibition was denied, and thus that Court disaffirmed the right of this applicant to raise this question in such a way. It is unnecessary for me to go particularly into the grounds upon which the opinion was based, especially as one of the learned Arbitrators happened to be one of the Justices sitting on the Supreme Court Bench at that time and participated in the decision, so that he can, of course, fully acquaint the learned Arbitrators with the grounds on which the action of the Supreme Court was had. And, finally, in stating the features of this first stage of the contro- Britain and the United States were concerned, the attempt at an accommodation by means of an agreed system of regulations failed, yet all parties were at all times agreed upon the prime necessity and obligation, as it were, of both governments, to take some measure or other which should have the effect of preserving the seals from destruction. Now let me pass to the second stage of the controversy. On the 4th of March, 1889 Mr. Harrison succeeded Mr. Cleveland in the office of President, and, of course, as happens on these occasions in America, there was a sort of revolution in the administration of the various Departments. Mr. Bayard was succeeded in the State Department by Mr. Blaine, and there was a new American Minister to London. President Harrison, as required by the Statutes of the United States, very soon after his inauguration, made a general proclamation prohibiting all pursuit of seals in the waters of Alaska, and, presumably instructions were also given to the United States cruisers to put the provisions of the law into force. It will be recollected that some two years had now elapsed since the beginning of negotiations upon this subject nearly two years. They were initiated in the summer of 1887 and the spring of 1889 had now arrived. The proclamation having been made and instructions given, there followed, early in the sealing season, the ORAL ARGUMENT OF JAMES C. CARTER, ESQ. 37 arrest of British sealers again, and that action was followed by renewed protests on the part of the British Government. I call the attention of the Tribunal to the letter of Mr. Edwardes to Mr. Blaine. Mr. Edwardes was then in charge of the British mission at Washington. He was actually at Bar Harbor. The letter is on page 195, in the first volume of the Appendix of the American Case. Mr. Edwardes to Mr. Blaine. Bar Harbor, August Z4r 1889. Sir: In accordance with instructions which I have received from Her Majesty's Principal Secretary of State for Foreign Affairs, I have the honor to state to you that repeated rumors have of late reached Her Majesty's Government that United States cruisers have stopped, searched, and even seized British vessels in Behring Sea outside of the three:mile limit from the nearest land. Although no official confirmation of these rumors has reached Her Majesty's Government, there appears to be no reason to doubt their authenticity. I am desired by the Marquis of Salisbury to inquire whether the United States Government are in possession of similar information, and further, to ask that stringent instructions may be sent by the United States Government, at the earliest moment, to their officers, with the view to prevent the possibility of such occurrences taking place. In continuation of my instruction I have Majesty's Government received vei„ that time Secretary of State, that pending the issue no further interference should take pla( In conclusion, the Marquis of Salisbm "■ fote, Her Majesty's Minister, will be pr< autumn to discuss the whole question, a out to the United States Government th any measures of force which may be resi I have, etc., The learned Arbitrators will see what the situation was at this particular time. The vessels which had been seized in 1S87, with the exception of one, the " Say ward", which I have mentioned, had been released. The negotiations were pending and during 1888 no new seizures had been made. What that was in consequence of, it is not important to state. It may have been that such a course was thought on the part of the American Government to be likely to cause irritation which would tend to prevent the adjustment which they sought of the question. At all events, none were made in 1888. Mr. Cleveland and Mr. Bayard, his Secretary of State, under whose auspices that policy of conciliation had been adopted and pursued, Avere now out of office. They were succeeded by President Harrison and Mr. Blaine as Secretary of State, of course under the obligation to enforce the laws and policy of the United States. The negotiation for a settlement appeared to be in a state of suspended animation, and with no particular prospect of being renewed; and, therefore, the course of the United States under these circumstances was to re-adopt the policy of enforcing the prohibition of pelagic sealing. That brought the subject again to the attention of the British Government and led to protests on its part. Those protests included the suggestion that assurances had formerly been given by Mr. Bayard that no further seizures would be made pending the discussion. It is not important to my purpose here, but I must remark that it is denied that such assurances were given, and I do not think there is any evidence of them. Lord Salisbury doubtless thought so. In the next place the request of the British Government was that instructions should be given to prevent any recurrence of those seizures. This suggestion could not very well be made in the then existing state ive the honor to reinii d you that Her ces las m Mr. Ba yard, at the dis of the ge tions at lace wi ;h Brit sh vessels in Behr desires ay that S Paunce- ired on his rei urn to W ashingtoi l in the Her M ent wish a settle an not but be hindered bv ed to b f-the U uited Stat H. G. Edwardes- 38 ORAL ARGUMENT OF JAMES C. CARTER, ESQ. of business, without the expression of some desire or in reopening the negotiations for the adjus ' fore the letter also contained this: "Th me to say that Sir Julian Pauncefote, prepared on his return to Washington •whole question, and Her Majesty's Gov United States Government that the set by any measures of force which may States". The business was new to Mr. Blaine, and the whole su doubtless new to him. He answered Mr. Edwardes. His ; short: t of the matter, an irquis of Salisbury Majesty's Minister dt de lere- 11 be ent wish to point o ant cannot but be 1 ssorted to by the at to the indered United the President believes that the responsibility for delay in the adjustment can not the Government of the United States learns that Sir Julian Pauncefote, Her Majesty's Minister, will be prepared, on his return to Washington in the autumn, to discuss the whole question. It gives me pleasure to assure you that the Government of. the capable of prompt adjustment on a basis entirely honorable to both. I have, etc., James G. Blaine. But Mr. Edwardes pressed for a more categorical answer to his note. On the 12th of September he writes: Mr. Edwardes to Mr. Blaine. Washington, September IS, 1889. My Dear Mr. Blaine: I should be very much obliged if you would kindly let which I had the honor of communicating to you in my note of the 24th of August' that instructions may be sent to Alaska to prevent the possibility of the seizure of Canada. I remain, etc., H. G. Edwardes. Mr. Blaine answers that : Mr. Blaine to Mr. Edwardes. 3ent to Alaska to prevent the possibility of the seizure of British ships in Bet ORAL ARGUMENT OF JAMES C. CARTER, ES Government for an answer, I have the honor to inform you that a categorical response would have been and still is impracticable—unjust to this Government and misleading to the Government of Her Majesty. It was therefore the iudtrmént of the President that the whole subject could more wisely be remanded to the formal dis cussion so near at hand which Her Majesty's Government has proposed, and to which the Government of the United States has cordially assented. It is proper, however, to add that any instruction sent to Behring Sea at the time of your original request, upon the 24th of August, would have failid to reach those waters before the proposed departure of the vessels of the United States. J. have, etc., James G. Blaine. These letters, it will certainly be agreed, are diplomatic—one party pressing for an answer to a question, and the other gently deferring it and looking to a period when a more satisfactory discussion should be brought on. Sir Charles Eussell. The next letter from Lord Salisbury is important. Mr. Carter. I have not marked it as important, but if you think so Sir Charles, I will be glad to read it. Sir Charles Eussell. I wish you would. It is on the same page, Mr. Carter. I will do so. It is from Lord Salisbury to Mr. Edwardes and a copy was left at the Department of State. The Marquis of Salisbury to Mr. Edwardes. [Left at the Department of State by Mr. Edwardes]. Foreign Office, October Z, 1889. Sir: At the time when the seizures of British ships hunting seals in Bearing's Sea during the years 1886 and 1887 were the subjects of discussion the Minister of the United States made certain overtures to Her Majesty's Government with respect to the institution of a close time for the seal fishery, for the purpose of preventing the extirpation of the species in'that part of the world. Without in any way admitting that considerations of this order could justify the seizure of vessels which were transgressing no rule of international law, Her Majesty's Government were very ready to agree that the subject was one deserving of the gravest attention on the part of all the governments interested in those waters. The Russian Government was disposed to join in the proposed negotiations, but they were suspended for a time in consequence of objections raised by the Dominion of Canada and of doubts thrown on the physical data on which any restrictive legislation must have been based. Her Majesty's Government are fully sensible of the importance of this question, and of the great value which will attach to an international agreement in respect to it, and Her Majesty's representative will be furnished with the requisite instructions in case the Secretary of State should be willing to enter upon the discussion. You wiB read this dispatch and my dispatch No. 205, of this date, to the Seoretary of State, and, if he should desire it, you are authorized to give him copies of them. I am, etc., Salisbury. Yes, it is quite important, and I am obliged to my learned friend for the suggestion that it be read. These demands by the British Government, occasioned by the new seizures, and this sort of diplomatic correspondence having been begun, during which preliminaries the new Government of the United States was occupied in considering the proper attitude to be taken, Mr. Blaine, finally, on the 22nd of January, 1890, addressed Sir Julian Pauncefote 40 ORAL ARGUMENT OF JAMES C. CARTER, ESQ. and delivered to him the result of the consideration and reflection which President Harrison had given to the subject. This is on the 22nd of January, 1890. Sir Charles Eussell. If you will pardon me one moment you have only read one of those two despatches to which I referred. One was the one I requested, and the other immediately followed it. Mr. Carter. I did not intend to read it unless you desired it. Sir Charles Eussell. Not at all. Do not go to that trouble. Mr. Carter. I now read the letter of Mr. Blaine, January 22,1890: Mr. Blaine to Sir Julian Pauncefote. Department of State, Washington, January ZZ, 1890. Sir : Several weeks have elapsed since I had the honor to receive through the hands of Mr. Edwardes copies of two dispatches from Lord Salisbury complaining of the course of the United States revenue-cutter Bush in intercepting Canadian vessels sailing under the British flag and engaged in taking fur seals in the waters of the Behring Sea. . Subjects which could not be postponed have engaged tne attention of this Department and have rendered it impossible to give a formal answer to Lord Salisbury until the present time. In the opinion of the President, the Canadian vessels arrested and detained in the Behring Sea were engaged in a pursuit that was in itself contra bonos mores, a pursuit which of necessity involves a serious and permanent injury to the rights of the Government and people of the United States. To establish this ground it is not necessary to argue the question of the extent and nature of the sovereignty of this Government over the waters of the Behring Sea; it is not necessary to explain, certainly not to define, the powers and privileges ceded by His Imperial Majesty the Emperor of Russia in the treaty by which the Alaskan territory was transferred to the United States. The weighty considerations growing out of the acquisition of that territory, with all thé rights on land and sea inseparably connected therewith, may be safely left out of view, while the grounds are set forth upon which this Government rests its justification for the action complained of by Her Majesty's Government. It can not be unknown to Her Majesty's Government that one of the most valuable sources of revenue from the Alaskan possessions is the fur-seal fisheries of the Behring Sea. Those fisheries had been exclusively controlled by the Government of Russia, without interference—or without question, from their original discovery until the cession of Alaska to the United States in 1867. From 1867 to 1886 the possession in which Russia had been undisturbed was enjoyed by this Government also. There was no interruption and no intrusion from any source. Vessels from other nations passing from time to time through Behring Sea to the Arctic Ocean in pursuit of whales had always abstained from taking part in the capture of seals. This uniform avoidance of all attempts to take fur seal in those waters had been a constant recognition of the right held and exercised first by Russia and subsequently by this Government. It has also been the recognition of a fact now held beyond denial or doubt that the taking of seals in the open sea rapidly leads to their extinction. This is not only the well-known opinion of experts, both British and American, based upon prolonged observation and investigation, but the fact had also been demonstrated in a wide sense by the well-nigh total destruction of all seal fisheries except the one in the Behring Sea, which the Government of the United States is now striving to preserve, not altogether for the use of the American people but for the use of the world at large. • The killing of seals in the open sea involves the destruction of the female in common with the male. The slaughter of the female seal is reckoned as an immediate loss of three seals, besides the future loss of the whole number which the bearing seal may produce in the successive years of life. The destruction which results from killing seals in the open sea proceeds, therefore, by a ratio which constantly and rapidly increases, and insures the total extermination of the species within a very " brief period. It has thus become known that the only proper time for the slaughter of seals is at the season when they betake themselves to the land, because the land is the only place where the necessary discrimination can be made as to the age and sex of the seal. It would seem, then, by fair reasoning, that nations not possessing the territory upon which seals can increase their numbers by natural growth, and thus afford an annual supply of skins for the use of mankind, should refrain from the slaughter in open sea where the destruction of the species is sure and swift. After the acquisition of Alaska the Government of the United States, through competent agents working under the direction of the best experts, gave careful ORAL ARGUMENT OF JAMES C. CARTER, ESQ. l to the improvement of the seal fisheries. Proceedine bv a clo to the 1 the Govern mei respondingly s of intelligent i tered was fixée States; and, last of all, profitably to a large body of English laborers who had constant employment and received good wages. This, in brief, was the condition of the Alaska fur-seal fisheries down to the year 1886. The precedents, customs, and rights had been established and enjoyed, either by Russia or the United States, for nearly a century. The two nations were the only powers that owned a foot of land on the continents that bordered, or on the Islands included within, the Behring waters where the seals resort to breed. Into this peaceful and secluded field of labor, whose benefits were so equitably shared by the native Aleuts of the Pribilof Islands, by the United States, and by England, certain Canadian vessels in 1886 asserted their right to enter, and by their ruthless course to destroy the fisheries and with them to destroy also the resulting industries which are so valuable. The Government of the United States at once proceeded to check this movement, which, unchecked, was sure to do great and irreparable harm. It was cause of unfeigned surprise to the United States that Her Majesty's Government should immediately interfere to defend and encourage (surely to encourage by defending) the course of the Canadians in disturbing an industry which had been carefully developed for more than ninety years under the flags of Russia and the United States—developed in such a manner as not to interfere with the public rights or the private industries of any other people or any other person. Whence did the ships of Canada derive the right to do in 1886 that which they had refrained from doing for more than ninety years? Upon what grounds did her Majesty's Government defend in the year 1886 a course of conduct in the Behring Sea which she had carefully avoided ever since the discovery of that sea? By what reasoning did Her Majesty's Government conclude that an act may be committed with impunity against the rights of the United States which had never been attempted against the same rights when held by the Russian Empire? So great has been the injury to the fisheries from the irregular and destructive slaughter of seals in the open waters of the Behring Sea by Canadian vessels, that whereas the Government had allowed 100,000 to be taken annually for a series of years, it is now compelled to reduce the number to 60,000. If four years of this violation of natural law and neighbor's rights has reduced the annual slaughter of seal by 40 per cent, it is easy to see how short a period will be required to work the total destruction of the fisheries. The ground upon which Her Majesty's Government justifies, or at least defends the course of the Canadian vessels, rests upon the fact that they are committing their acts of destruction on the high seas, viz, more than 3 marine miles from the shore line. It is doubtful whether Her Majesty's Government would abide by this rule if the attempt were made to interfere with the pearl fisheries of Ceylon, which extend more than 20 miles from the shore line and have been enjoyed by England without molestation ever since their acquisition. So well recognized is the British ownership of those fisheries, regardless of the limit of the three-mile line, that Her Majesty's Government feels authorized to sell the pearl-fishing right from year to year to the highest bidder. Nor is it credible that modes of fishing on the Grand Banks, altogether practicable but highly destructive, would be justified or even permitted by Great Britain on the plea that the vicious acts were committed more than 3 miles from shore. , There are, according to scientific authority, "great colonies of fish" on the 'Newfoundland banks." These colonies resemble the seats of great populations on land. They remain stationary, having a limited range of water in which to live and die. In these great " colonies " it is, according to expert judgment, comparatively easy to at temporary and immora 1 gain may be 'ment of dynamite on the h could be accomplished ht assuredly result. Does w of nations is powerless o prevent such 42 ORAL ARGUMENT OF JAMES C. CARTER, ESQ. explode dynamite or giant powder in such manner as to kill vast quantities of fish, and at the same time destroy countless numbers of eggs. Stringent laws have been necessary to prevent the taking of fish by the use of dynamite in many of the rivers and lake's of the United States. The same mode of fishing could readily be adopted with effect on the more shallow parts of the banks, but the destruction of fish in proportion to the catch, says a high authority, might be as great as ten thousand to one. Would Her Majesty's Government think that so wicked an act could not be prevented and its perpetrators punished simply because it had been committed outside of the 3 mile line? Why are not the two cases parallel? The Canadian vessols are engaged in the taking of fur seal in a manner that destroys the power of reproduction and insures the extermination of the species. In exterminating the species an article useful to diminution of a valuable food for m Government seriousl y maintain thai violation of the common rights of man? Are the supporters of justice in all nations to be declared incompetent to prevent wrongs so odious and so destructive? In the judgment of this Government the law of the sea is not lawlessness. Nor can the law of the sea and the liberty which it confers and which it protects be perverted to justify acts which are immoral in themselves, which inevitably tend to results against the interests and against the welfare of mankind. One step beyond that which Her Majesty's Government has taken in this contention, and piracy finds its justification. The President does not conceive it possible that Her Majesty's Government could in fact be less indifferent to these evil results than is the Government of the United States. But he hopes that Her Majesty's Government will, after this frank expression of views, more readily comprehend the position of the Government of the United States touching this serious question. This Government has been ready to concede much in order to adjust all differences of view, and has, in the judgment of the President, already proposed a solution not only equitable but generous. Thus far Her Majesty's Government has declined to accept the proposal of the United States. The President now awaits with deep interest, not unmixed with solicitude, any proposition for reasonable adjustment which Her Majesty's Government may submit. The forcible resistance to which this Government is constrained in the Behring Sea is, in the President's judgment, demanded not only by the necessity of defending the traditional and long-established rights of the United States, but also the rights of good government and of good morals the world over. In this contention the Government of the United States has no occasion and no desire to withdraw or modify the positions which it has at any time maintained against the claims of the Imperial Government of Russia. The United States wiU not withhold from any nation the privileges which it demanded for itself when Alaska was part of the Russian Empire. Nor is the Government of the United States disposed to exercise in those possessions any less power or authority than it was willing to concede to the Imperial Government of Russia when its sovereignty extended over them. The President is persuaded that all friendly nations will concede to the United States the same rights and privileges on the lands and in the waters of Alaska which the same friendly nations always conceded to the Empire of I have, etc., James G. Blaine. The President. If you please, Mr. Carter, you may continue your argument to-morrow. Tribunal adjourned until Thursday, April 13th at 11.30 a. m. EIGHTH DAY, APRIL i3TH, 1893. The Tribunal met pursuant to adjournment. The President. Mr. Carter, when you are ready to continue your argument, we will hear you with pleasure. Mr. Carter. Mr. President, when the Tribunal adjourned yesterday I was engaged in explaining the leading features of what I called the second stage of the controversy; which commenced with the beginning of the administration of President Harrison. I had in substance brought out, or endeavored to bring out, these features: that for a considerable period of time prior to the accession of President Harri- ORAL ARGUMENT OF JAMES C. CARTER, ESQ. 43 son the negotiations which had been entered into between the two Governments had been interrupted in consequence of the objection of Canada, and they were in a state of suspended animation, so to speak, with no immediate prospect of their being renewed; that under these circumstances President Harrison felt it his duty to issue the proclamation required of him by law, forbidding all pelagic sealing in the waters of Alaska; that that proclamation was followed by additional seizures, and those seizures brought renewed protests from the British Government, and thus the controversy was renewed; that the demands of the British Government consequent upon the seizures were repeated from time to time, and some' pressure was exerted upon the United States for the purpose of inducing the Government to issue instructions to prevent the further interference with British vessels engaged in pelagic sealing; that while this was going on, the Government of President Harrison took the whole subject into consideration, and finally the views of the Government were expressed in a note by Mr. Blaine to Sir Julian Pauncefote, with the reading of which the session of yesterday was concluded. The Tribunal will have observed that Mr. Blaine in this quite long note stated rather fully the substantial ground upon which the Government of the United States placed itself. Those grounds had not been theretofore stated. They had been hinted at and intimated by Mr. Secretary Bayard in his instructions to the American Ministers at foreign Governments designed to call the attention of those Governments to the subject with the view that some amicable adjustment of the matter might be made without any resort to discussions upon which differences of opinion might be entertained. He avoided, in other words, all discussion of the grounds of right upon which the United States placed itself. That discussion of the grounds of right, that statement of the attitude and position of the United States Government was made for the first time by Mr. Blaine in the note which I read just at the close of yesterday's session. In substance those grounds were that the United States was carrying on an industry in connection with these seals, caring for them, cherishing them, taking the natural increase from the herd and preserving the stock on the Pribilof Islands ; that tliis was an industry advantageous not only to its lessees but, what was of much more importance, advantageous to mankind; that the pursuit of pelagic sealing threatened that industry with destruction, destruction not only to the interests of the United States and its citizens, but also to the larger interests of mankind; that it was essentially and absolutely wrong, and should not be permitted; and therefore that the United States had a right to prevent it, when, added to its essentially destructive and illegitimate character, it had this injurious effect upon a special industry and right of the United States. Those were the grounds upon which the case of the United States was put by Mr. Blaine, and put by him, as I have already said, for the first time in that full and complete form. After the receipt of that note by Sir Julian, he addressed the following brief communication to Mr. Blaine, which is found on page 204 of the American Appendix: Sir Julian Pauncefote to Mr. Blaine. Washington, February 10,1890. Sir- Her Maiesty's Government have had for sometime under their consideration the suggestion made in the course of our interviews on the question of the seal fisheries in Behrino-'s Sea, that it might expedite a settlement of the controversy if the tripartite negotiation respecting the establishment of a close time for those fisheries 44 ORAL ARGUMENT OF JAMES C. CARTER, ESQ. which were commenced in London in 1888, but was suspended owing to various I now have the honor to inform you that Her Majesty's Government are willing to adopt this suggestion, and if agreeable to your Government will take steps concurrently with them to invite the participation of Russia in the renewed negotiations. Julian Pauncefote. Here we find a suggestion from the Government of Great Britain that the original negotiations, which had been interrupted from various causes, should be renewed in the city of Washington and that suggestion was accepted by Mr. Blaine. After that it appears that some personal communications had taken place in Washington between Mr. Blaine and Sir Julian respecting the resumption of the negotiations, and the probability, or possibility, that they might be brought to a successful issue. Mr. Blaine had suggested in the course of those communications that he thought it quite improbable that the assent of Canada would ever be obtained to any regulations, or to any settlement, which would have the effect of protecting the seals from extermination. I presume—it seems fairly presumable—that Sir Julian had answered those suggestions by intimating that he was of a contrary omepi oposHdonL1 ect. This tiat would, d whi îh he migl it suppose and con- addres 29th, ses Mr. Bl I think. have been aine, thus: Sir Charles Eussell. The dat< Mr. Carter. The 29th. Sir Julian Pauncefote to Mr. Blaine. Washington, April —, 1890. (Received April 30.) I Dear Mr. Blaine : At the last sitting of the Conference on the Behring Sea Fish- '. eries question, you expressed doubts, after reading the memorandum of the Canadian i Minister of Marine and Fisheries, which by your courtesy has since been printed, I You observed that the proposals of the United States had now been two years I before Her Majesty's Government, that there was nothing further to urge in support of it ; and you invited me to make a counter proposal on their behalf. To that task I have most earnestly applied myself, and while fully sensible of its great difficulty, J owing to the conflict of opinion and of testimony which has manifested itself in the \ satisfactory to all the Governments concerned. It has been admitted, from the com- I mencement, that the sole object of the negotiation is the preservation of the fur-seal s species for the benefit of mankind, and that no considerations of advantage to any particular nation, or of benefit to any private interest, should enter into the question. I I call the attention of the Arbitrators particularly to the last sentences. They are golden words and rightly express what should have been, and what should be at all times, the main purpose and the main object in any discussion of these questions, or in any effort to bring about an accommodation. Such being the basis of negotiation, it would be strange indeed if we should fail I to devise the means of solving the difficulties which have unfortunately arisen. I \ will proceed to explain by what method this result can, in my judgment, be attained, j The great divergence of views which exists as to whether any restrictions on pelagic 1 sealing are necessary for the preservation of the fur seal species, and if so, as to the I character and extent of such restrictions, renders it impossible in my opinion to J arrive at any solution which would satisfy public opinion either in Canada or Great | Britain, or in any country which may be invited to accede to the proposed arrangement, without a full inquiry by a mixed commission of experts, the result of whose labors and investigations, in the region of the seal fishery, would probably dispose ot all the points in dispute. y ORAL ARGUMENT OF JAMES C. CARTER, ESQ. 45 As regards the immediate necessities of the case I am prepared to recommend to my Government for their approval and acceptance certain measures of precaution which might be adopted provisionally and without prejudice to the ultimate decision on the points to be investigated by the commission. Those measures which I wiU explain later on, would effectually remove all reasonable apprehension of any depletion of the fur-seal species, at all events, pending the report of the commission It is important, in this relation, to note that while it has been contended on the part of the United States Government that the depiction of the fur-seal species has already commenced, and that even the extermination of the species is threatened within a measurable space of time, the latest reports of the United States agent, Mr. Tingle, are such as to dissipate all such alarms. Mr. Tingle, in 1887, reported that the vast number of seals was on the increase, and that the condition of all the rookeries could not be better. In his later report, dated July 31, 1888, he wrote as follows : "I am happy to be able to report that, although late landing, the breeding rookeries are fiUed out to the lines of measurement heretofore made, and some of them much beyond those lines, showing conclusively that seal life is not being depleted, but is fully up to the estimate given in my report of 1887." Mr. Elliott, who is frequently appealed to as a great authority on the subject, affirms that, such is the natural increase of the fur seal species that these animals, were they not preyed upon by killer whales {Orca Gladiator), sharks and other submarine foes would multiply to such an extent that "Behring Sea itself could not contain them." The Honorable Mr. Tupper has shown in his memorandum that the destruction of seals caused by pelagic sealing is insignificant in comparison with that caused by their natural enemies, and gives figures exhibiting the marvelous increase of seals in spite of the depredations complained of. Again the destructive nature of the modes of killing seals by spears and firearms has apparently been greatly exaggerated as may be seen from the affidavits of practical seal hunters which 1 annex to this letter, together with a confirmatory extract from a paper upon the "Fur-Seal Fisheries of the Pacific Coast and Alaska," pre- pared'and published in San Francisco and designed for the information of Eastern United States Senators and Congressmen. The Canadian Government estimate the percentage of seals so wounded or killed and not recovered at 6 per cent. In view of the facts above stated, it is improbable that pending the result of the inquiry, which I have suggested, any appreciable diminution of the fur seal species should take place, even if the existing conditions of pelagic sealing were to remain unchanged. But in order to qniet all apprehension on that score, I would propose the following provisional regulations. 1. That pelagic sealing should be prohibited in the Behring Sea, the Sea of Okhotsk, and the adjoining waters, during the months of May and June, and during the months of October, November, and December, which may be termed the "migration periods" of the fur seal. 2. That all sealing vessels should be prohibited from approaching the breeding islands within a radius of 10 miles. These regulations would put a stop to the two practices complained of as tending to exterminate the species; firstly, the slaughter of female seals with young during the migration periods, especially in the narrow passes of the Aleutian Islands ; secondly, the destruction of female seals by marauders surreptitiously landing on the breeding islands under cover of the dense fogs which almost continuously prevail in that locality during the summer. Mr. Taylor, another agent of the United States Government asserts that the female seals (called cows) go out from the breeding islands every day for food. The following is an extract from his evidence: "These cows go 10 and 15 miles, and even farther. I do not know the average of it—and they are going and coming all the morning and evening. The sea is black with them round about the islands. If there is a little fog and they get out half a mile from shore we can not see a vessel 100 yards even. The vessels themselves lay around the islands there where they pick up a good many seal, and there is where the killing of cows occurs when they go ashore/' Whether the female seals go any distance from the islands in quest of food and it so, to what distance, are questions in dispute, but pending their solution the regulation which I propose against the approach of sealing vessels within 10 miles of the islands for the prevention of surreptitious landing practically meets Mr. Taylor's complaint, be it well founded or not, to the fullest extent; for, owing to the prevalence of fogs, the risk of capture within a radius of 10 miles will keep vessels off at a much greater distance. This regulation if accepted by Her Majesty's Government would certainly manifest a friendly desire on their part to cooperate with your Government and that of 46 ORAL ARGUMENT OF JAMES C. CARTER, ESQ. Russia in the protection of their rookeries and in the prevention of any violation of the laws applicable thereto. I have the honor to inclose a draft of a preliminary convention which I have prepared, providing for the appointment of a mixed commission who are to report on certain specified questions within two years. The draft embodies the temporary regulations above described together, with other clauses which appear to me necessary to give proper effect to them. Although I believe that it would be sufficient during the "migration periods" to prevent all sealing within a specified distance from the passes of the Aleutian Islands I have out of a deference to your views and to the wishes of the Russian Minister, adopted the fishery line described in Article V, and which was suggested by you at the outset of our negotiation. The draft, of course, contemplates the conclusion of a further convention after full examination of the report of the mixed commission. It also makes provision for the ultimate settlement by arbitration of any differences which the report of the commission may still fail to adjust, whereby the important element of finality is secured, and in order to give to the proposed arrangement the widest international basis, the draft provides that the other powers shall be invited to accede to it. The above proposals are, of course, submitted ad referendum, and it only now remains for me to commend them to your favorable consideration and to that of the Russian Minister. They have been framed by me in a spirit of justice and conciliation, and with the most earnest desire to terminate the controversy in a manner honorable to all parties and worthy of the three great nations concerned. I have, etc., Julian Pauncefote. (For in closures see House Ex. Doc. No. 450, pp. 54-60.) That letter, the learned Arbitrators will perceive, brings forward a somewhat new aspect of the matter. It is designed to lead to a renewal of the negotiations. It proceeds upon the expressed belief that the great object of all parties should be the preservation of the seals for the benefit of mankind, and that any particular interest should not be allowed to stand in the way of the accomplishment of that prime end. He then suggests that pending the negotiations some provisional arrangements should be entered into for the purpose of protecting, in the meanwhile, the seals from the destructive pursuit. He suggests— and it was the first time that any such suggestion was made to the American Government by the British Government,—that there were great differences of opinion as to the facts, and consequently great differences of opinion as to the extent of the protection which was necessary. These differences of opinion as to the facts—which, I say, were thus intimated for the first time—were based in part upon evidence which had beeu submitted by Sir Julian Pauncefote to Mr. Blaine in the shape of quite a series of documents on the 9th of March preceding. I read now a letter from Sir Julian Pauncefote to Mr. Blaine which is contained in Executive Document, House of Eepresentatives, 51st Cong., First Session, No. 450. The letter' is found on page 26 of that document, and is as follows : Sir Julian Pauncefote to Mr. Blaine. [Extract.] British Legation, Washington, D. C, March 9,1890. Dear Mr. Blaine : I have the pleasure to send you herewith the memorandum prepared by Mr. Tupper on the seal fishery question, to which he has appended a note by Mr. Dawson, an eminent Canadian official. Believe me, etc., Julian Pauncefote. That letter is very likely somewhere in the correspondence contained in the British Appendices, but I do not happen to find it. Mr. Foster. The memorandum accompanying the letter is found in the British Appendix, No. 3, p. 436. Mr. Carter. The memorandum is found in the British Case at the place stated by Gen. Foster, and the documents themselves thus furnished are all contained in the third volume of the Appendix to the British Case, p. 436; and it is necessary also to say, U. S. No. 2,1890. ORAL ARGUMENT OF JAMES C. CARTER, ESQ. 47 Those documents are too long for me to read and it is not important that I should read them, but I can briefly state their general nature. They contain a great deal of evidence designed to make it appear that the destructive nature of pelagic sealing is not as great as it had some times been represented to be, and also some matter designed to show that the destruction of seals is owing to the practices pursued on the Pribilof Islands by the United States Government in relation to the herd. All that matter which, I presume, proceeded from officials of the Canadian Government, is calculated to show that no extreme measures of protection were necessary. This communication of documents to the American Government by Sir Julian Pauncefote on March 9, 1890 was, I think I am safe in saying, the first intimation ever received by the Government of the United States that the original measure of prevention suggested by Mr. Phelps to the Marquis of Salisbury and accepted provisionally by him, was too extreme a measure. More than two years had elapsed since that proposition had been submitted and thus provisionally accepted by the Marquis of Salisbury, and during all of that time, although it was known that the adoption of the measure had been arrested in consequence of the objection of Canada, no different measure had been suggested as coming from Canada, and no criticism on the part of Canada upon the character of that proposed restriction had been offered. On the 9th of March, however, evidence showing differences of opinion in respect to the effect of pelagic sealing was placed before the United States Government. Presumably it came from Canada. It is to the differences of opinion expressed in these documents that Sir Julian refers when he says: The great divergence of views which exist as to whether any restrictions of pelagic sealing are necessary for the preservation of the fur-seal species, and, if so, as to the character and extent of such restrictions, renders it impossible in my opinion to arrive at a solution which would satisfy public opinion either in Canada or Great Britain, or in any country which might be invited to accede to the proposed arrangement, without a full inquiry by a mixed commission of experts, the result of whose labors and whose investigations in the region of the seal fishery would probably dispose of all the points in dispute. The point, therefore, of Sir Julian is this: "We have now arrived at a difference of view in reference to matters of fact connected with seal life and with pelagic sealing. Those differences of view which now exist between us are irreconcilable upon any evidence which is before us. Our object is however, a common one, the preservation of the seal species for the benefit of mankind. What is needed in order to enable us to come to some arrangement which will accomplish that prime object is that we should be thoroughly informed of the facts, and in a manner which will leave no room for doubt. When we ascertain the truth upon those points, then, presumably, at least, we shall find no difficuliy in coming to an agreement. We must recognize the truth as it shall finally be discovered. Whatever measures of protection the truth thus ascertained shall point out as necessary are the ones to be adopted." The instrumentality which he suggests—and it is the first suggestion of a method of removiug all doubts and ascertaining what the real truth about the matter was—was a mixed commission of experts; and, in saying that they were to be experts, of course it was understood that they should be gentlemen perfectly competent to deal with all the questions which arose in connection with that subject, and with the question of natural history as well; in other words, that they should be men of science, should act under the obligations which attach to men of science, should have no object in view except the ascertainment of 48 ORAL ARGUMENT OF JAMES C. CARTER, ESQ. the truth itself; and that when the report was received from such gentlemen, its conclusions should be absolutely relied upon by the two Governments as the basis of their action. This is his suggestion. He further says in this note : . I have the honor to enclose the draft of a preliminary convention which I have prepared, providing for the appointment of a mixed commission, who are to report on certain specific questions within two years. This matter has been alluded to already in the long debate heretofore had before you upon the motion to reject the supplementary report of the Commissioners of Great Britain. It is important, however, that I should briefly allude to it now. The draft convention which he proposed is contained in the same part of Volume Three, Appendix to the British Case, page 457 : The North American Seal Fishery Convention. preamble. The Governments of Russia and of the United States having represented to the Government of Great Britain the urgency of regulating, by means of an international agreement, the fur-seal fishery in Behring Sea, the Sea of Ochotsk, and the adjoining waters, for the preservation of the fur-seal species in the North Pacific Ocean ; and differences of opinion having arisen as to the necessity for the proposed agreement, in consequence whereof the three Governments have resolved to institute a full inquiry into the subject, and pending the result of such inquiry, to adopt temporary measures for the restriction of the killing of seals during the breeding season, without prejudice to the ultimate decision of the questions in difference in relation to the said fishery. The said three Governments have appointed as Who, after having exchanged their full powei and due form, have agreed upon the following ar Article I. MIXED COMMISSION OF EXPERTS The High Contracting Parties agree to appoint a mixed commission of experts who shall inquire fully into the subject and report to the High Contracting Parties within two years from the date of this convention, the result of their investigations, together with their opinions and recommendations on the following questions: 1 ) Whether regulations properly enforced upon the breeding islands (Robin Island in the Sea of Ochotsk and the Commander Islands and the Pribilov Islands in the Behring Sea) and in the territorial waters surrounding those islands are sufficient for the preservation of the fur-seal species ? 2) If not, how far from the islands is it necessary that such regulations should be enforced in order to preserve the species? 3) In either of the above cases, what should such regulations provide? 4) If a close season is required on the breeding islands and territorial waters, what 5) If a close season is necessary outside of the breeding islands as well, what extent On receipt of the report of the Commission and of any separate reports which may be made by individual commissioners, the High Contracting Parties will proceed forthwith to determine what international regulations, if anv, are necessary for the purpose aforesaid, and any regulations so agreed upon shall be embodied in a further Convention to which the accession of the other, power shall be invited. ORAL ARGUMENT OF JAMES C. CARTER, ESQ. 49 Article III. In case the High Contracting Parties should be unable to agree npon the regulations to be adopted, the questions in difference shall be referred to the arbitration of an impartial government, who shall duly consider the reports hereinbefore mentioned, and whose award shall be final, and shall determine the conditions of the further Convention. Article IT. provisional regulations. Pending the report of the Commission and for six months after the date of such report, the High Contracting Parties agree to adopt and put in force as a temporary measure and without prejudice to the ultimate decision of any of the questions in difference in relation to the said fishery, the regulations contained in the next following articles Nos. 5 to 10 inclusive. Article V. SEAL FISHERY LINE. A line of demarcation to be called the "seal fishery line" shall be drawn as follows: From Point Anival at the southern extremity of the Island of Saghalien in the Sea of Ochotsk to the point of intersection of the 50th parallel of north latitude with the 160th meridian of longitude east from Greenwich, thence eastward along the said 50th paraUel to its point of intersection with the 160th meridian of longitude west from Greenwich. Article VI. The subjects and citizens of the High Contracting Parties shall be prohibited from engaging in the fur-seal fishery and the taking of seals by land or sea north of the seal fishery line from the 1st of May to the 30th of June, and also from the 1st of October to the 30th of December. During the intervening period in order more effectively landing of maraudera on the said breeding islands, vess fishery and belonging to the subjects and citizens of the shall be prohibited from approaching the said islands y FURTHER PROVISIONAL REGULATIONS. The High Contracting Parties may, pending the report of the c its recommendation or otherwise, make such further temporary i be deemed by them expedient for better carrying out the provisic tion and the purposes thereof. Article IX. PENALTY FOR VIOLATION OF PROVISIO] Every vessel which shall be found engaged in the fur-seal fishery contrary to the prohibitions provided for in articles 6 and 7, or in violation of any regulation made under article 8, shall, together with her apparel, equipment, and contents, be liable to forfeiture and confiscation, and the master and crew of such vessel, and every person belonging thereto, shall be liable to fine and imprisonment. Article X. SEIZURE FOR BREACH OF PROVISIONAL REGULATIONS. TRIAL OF OFFENCES. Every such offending vessel or person may be seized and detained by the naval or other duly commissioned oflicers of any of the High Contracting Parties, but they shall be handed over as soon as practicable to the authorities of the nation to which ■they respectively belong, who shall alono have jurisdiction to try the offence and B S, PT XII 4 50 ORAL ARGUMENT OF JAMES C. CARTER, ESQ. impose the penalties for the same. The witnesses and proofs necessary to establish the offence shall also be sent with them and the court adjudicating upon the case may order such portion, of the fines imposed or of the proceeds of the condemned vessel to be applied in payment of the .expenses occasioned thereby. RATIFICATION. COMMENCEMENT AND DURATION OF CONVENTION. This convention shall be ratified and the ratifications shall be exchanged at in six months from the date thereof or sooner if possible. It shall take effect on such day as shall be agreed upon by the High Contracting Parties, and shall remain in force until the expiration of six months after the date of the report of the Commission of experts to be appointed under Article I ; but its duration may be extended by consent. Article XII. The High Contracting Parties agree to invite the accession of the other powers to the present convention. To put it briefly, Sir Julian's scheme was to obtain this report of a mixed commission of experts, which, in his view, would, presumably, make it possible for the two Governments to enter into a final convention upon the subject which would accomplish the desired object: that if they should not be able to come to an agreement upon receiving that report, then the points of difference should be referred to the arbitration of an impartial Government. The scheme had, therefore, two aspects. First, to settle the differences by treaty; failing that, by a reference to arbitration. That is what Sir Julian Pauncefote expresses in one part of his letter : The draft, of course, contemplates the conclusion of a further Convention, after full examination of the Report of the Mixed Commission. It also makes provision for the ultimate settlement by arbitration of any difference which the Report of the Commission may still fail to adjust, whereby the important element of finality is secured; and in order to give to the proposed arrangement the widest international basis, the draft provided that the other Powers shaU be invited to accede to it. There is one feature of the proposal of Sir Julian to which I should call attention; and that is the measure of interim protection. I read again from his letter : 1. That pelagic sealing should be prohibited in the Behring Sea, the Sea of Okhotsk, and the adjoining waters, during the months of May and June, and during the months of October, November, and December, which may be termed the "migration periods" of the fur-seal. 2. That aU sealing yes slands within a radius o: It suggested a protective zone of that width. While these negotiations were going on, including these suggestions by Sir Julian of a renewal of the interrupted negotiations on the basis proposed by him, Lord Salisbury had under consideration the note of Mr. Blaine to Sir Julian which I read at the close of yesterday's session and which made a full statement of the position of the United States. On the 22nd of May. 1890, Lord Salisbury sends to Sir Julian his answer, a copy of which was left with Mr. Blaine. That will be found on page 207 of the first volume of the Appendix of the American Case. The Marquis of Salisbury to Sir Julian Pauncefote. [Left at the Department of State on June 5 by Sir Julian Pauncefote.] No-106-] Foreign Office, May ZZd, 1890. SlR:ÂT6C™V6-d !n d?e c^n,rse your disPatcl1 No. 9, of the 23d January, inclosing I copy of Mr. Blame's note of the 22d of that month, in answer to the protest made on behalf of Her Majesty's Government on the 12th October last, against the seizure of Canaan WWfo ty til© Untfefl States revenue-cutter fimb jn Bçhrjng Se», * ORAL ARGUMENT OF JAMES C. CART The importance of the subject necessitated a reference to 1 tiations which have taken place between Mr. Blaine and youi to hope that the difficulties attending this question are ii adjustment which will be satisfactory to both Governments. . 2) That the fisheries had been in the undisturbed possession and under the exclusive control of Russia from their discovery until the cession of Alaska to the United States in 1867, and that from this date onwards until 1886 they had also 3) That it is a fact now held beyond denial or doubt that the taking of seals in the open sea rapidly leads to the extinction of the species, and that therefore nations not possessing the territory upon which seals can increase their numbers by natural Mr. Blaine further argues that thelaw of the sea and the liberty which it confers do not justify acts which are immoral in themselves, and which inevitably tend to results against the interests and against the welfare of mankind; and he proceeds to justify the forcible resistance of the United Stages Government by the necessity of defending not only their own traditional and long-established rights, but also the rights of good morals and of good government the world over. He declares that while the United States will not withhold from any nation the privileges which they demanded for themselves, when Alaska was part of the Russian Empire, they are not disposed to exercise in the possessions acquired from Russia any less power or authority than they were wiUing to concede to the Imperial Gov- ernnientof Russiawhenits sovereignty extended overthem. He claimsfrom friendly nations a recognition of the same rights and privileges on the lands and in the waters of Alaska which the same friendly nations always conceded to the Empire of Russia. With regard, to the first of these arguments, namely, that the seizure of the Cana- in a pursuit that is in itself contra bonos mores—a' pursuit which of necessity involves a serious and permanent injury to the rights of the Government and people of the United States", it is obvious that two questions are involved: first, whether the pursuit and killing of fur-seals in certain parts of the open sea is, from the point of view of international morality, an offense contra bonos mores; and secondly, whether, if such be the case, this fact justifies the seizure on the high seas and subsequent It is an axiom of'international maritime law that such action is only admissible ciple has been universally admitted by jurists, and was very distinctly laid down by President Tyler in his special message to Congress, dated the 27th February, 1843, when, after acknowledging the right to detain and search a vessel on suspicion of piracy, he goes on to say: "With this single exception, no nation has, in time of peace, any authority to detain the ships of another upon the high seas, on any pretext whatever, outside the territorial jurisdiction". hitherto been considered as piracy by any civilized state. Nor, even if the United States had gone so far as to make the killing of fur-seals piracy by their municipal by any persons other than their own citizens outside the territorial jurisdiction of the United States. In the case of the slave trade, a practice which the civilized world has agreed to 52 ORAL ARGUMENT OF JAMES C. CARTER, ESQ. Her Majesty's Government would deeply regret that the pursuit of fur-seals on the high seas by British vessels should involve even the slightest injury to the people of the United States. If the case be proved, they will be ready to consider what measures can be properly taken for the remedy of such injury, but they would be unable on that ground to depart from a principle on which free commerce on the high seas depends. . The second argument advanced by Mr. Blaine is that the "fur-seal fisheries of Behring Sea had been exclusively controlled by the Government of Russia, without interference and without question, from their original discovery until the cession of Alaska to the United States in 1867," and that " from 1867 to 1886 the possession, in , which Russia had been undisturbed, was enjoyed by the United States Government also without interruption or intrusion from any source". I will deal with these two periods separately. First, as to the alleged exclusive monopoly of Russia. After Russia, at the instance of the Russian American Fur Company, claimed in 1821 the pursuits of commerce, whaling, and fishing from Bering Straits to the fifty-first degree of north latitude, and not only prohibited aU foreign vessels from landing on the coasts and islands of the above waters, but also prevented them from approaching within 100 miles thereof, Mr. Quincy Adams wrote as follows to the United States Minister in Russia: " The United States can admit no part of these claims ; their right of navigation and fishing is perfect, and has been in constant exercise from the earliest times throughout the whole extent of the Southern Ocean, subject only to the ordinary exceptions and exclusions of the territorial jurisdictions." That the right of fishing thus asserted included the right of killing fur-bearing animals is shown by the case of the United States brig Loriot. That vessel proceeded to the waters over which Russia claimed exclusive jurisdiction for the purpose of hunting the sea otter, the killing of which is now prohibited by the United States statutes applicable to the fur-seal, and was forced to abandon her voyage and leave the waters in question by an armed vessel of the Russian Navy. Mr. Forsythe, writing on the case to the American Minister at St. Petersburg on the 4th of May, 1837, said: " It is a violation of the rights of the citizens of the United States immemorially exercised and secured to them as well by the law of nations as by the stipulations of the first article of the convention of 1824, to fish in those seas, and to resort to the coast for the prosecution of their lawful commerce upon points not already occupied." From the speech of Mr. Sumner, when introducing the question of the purchase of Alaska to Congress, it is equally clear that the United States Government did not regard themselves as purchasing a monopoly. Having dealt with fur-bearing animals, he went on to treat of fisheries, and after alluding to the presence of different species of whales in the vicinity of the Aleutians, said : "No sea is now mare clausum; all of these may be pursued by a ship under any flag, except directly on the coast or within its territorial limit." I now come to the statement that from 1867 to 1886 the possession was enjoyed by the United States with no interruption and no intrusion from any source. Her Majesty's Government can not but think that Mr. Blaine has been misinformed as to the history of the operations in Behring Sea during that period. The instances recorded in inclosure 1 in this dispatch are sufficient to prove from official United States sources that from 1867 to 1886 British vessels were engaged at intervals in the fur-seal fisheries with the cognizance of the United States Government. I will here by way of example quote but one. In 1872 Collector Phelps reported the fitting out of expeditions in Australia and Victoria for the purpose of taking seals in Behring Sea, while passing to and from their rookeries on St. Paul and St. George Islands, and recommended that a steam cutter should be sent to the region of Unimak Pass and the islands of St. Paul and St. George. Mr. Secretary Bontwell informed him, in reply, that he did not consider it expedient to send a cutter to interfere with the operations of foreigners, and stated : "In addition, I do not see that the United States would have the jurisdiction or power to drive off parties going up there for that purpose, unless they made such attempt within a marine league of the shore". Before leaving this part of Mr. Blaine's argument, I would allude to his remark that "vessels from other nations passing from time to time through Behring Sea to the Arctic Ocean in pursuit of whales have always abstained from taking part in the capture of seals", which he holds to be proof of the recognition of rights held and exercised first by Russia and then by the United States. Even if the facts are as stated, it is not remarkable that vessels pushing on for the short season in which whales can be captured in the Arctic Ocean, and being fitted especially for the whale fisheries, neglected to carry boats and hunters for fur-seals or to engage in an entirely different pursuit. The whalers, moreover, pass through Behring Sea for the fishing grounds in the Arctic Ocean in April and May as soon as the ice breaks up, while the great bulk of ARGUMENT OP JAMES C. CARTER, ESQ. e Pribilof Islands till June, let ing agai icyond denial or doubt that the biking cails to their extinction " would admit of reply, mid need on the other side. But as it is proposed that >e examined by a committee to be appointed by tho sary that I should deal with it here, lot deny that if all sealing were stopped in Behring lession of the lessees of the United States, the seal even more extraordinary rate than at present, and r' become a monopoly of increasing value ; but they lent ground to justify the United (States in forcibly iare in this industry in waters which, by the recog- ivtrain from replying specifically to the subsidiary •rward by Mr. Blaine. Till the views of the two is attaching, on grounds either of morality or neees- iment in this matter, have been brought into closer ipear needlessly to extend a controversy which Her is to keep within reasonable limits, rried on at Washington prove the readiness of Her sr whether any special international agreement is the fur-sealing industry. In its absence they are t forward on behalf of the United states affords any :cible action already taken by them against peace- aged in lawful operations on the high seas, line, "is persuaded that all friendly nations will same rights and privileges on the lands and in the ited to them, the 1 ead this dispatch 1 In 1872 h of taking i In 1874,. "Ithavi at Port To liv reported to this Department by the collector <: foah Bay, that British vessels from Victoria crosi age in taking fur-seals (which he represents an on our immediate coast) to the great injury of o •ou will give such proper attention to the examinatio the Dei oyoj Za] (Dii f, March 15,187 al trade of the British Columbia « Seven vessels were then engaged in the fishery, of which the greater nnml in 1886 and 1887, seized by the United States Government in Behring Sea. In 1884 Daniel and Alexander MoLean, both British su* * in 1886, from Victoria, with the Mary LIU» and the Ftuou i, took t 54 ORAL ARGUMENT OF JAMES C. CARTER, ESQ. Tliere is the answer of tlie Government of Great Britian, and the only answer contained in this diplomatic correspondence, to the full statement of the grounds of right relied upon by the United States as contained in the note of Mr. Blaine; and, although I am not going into the discussion now of the merits, it is proper for me to call the attention of the learned arbitrators to the manner in which the positions were met. Lord Salisbury states very briefly, and fairly enough, the grounds upon which Mr. Blaine placed his contention. He puts them thus: Mr. Blaine's note defends the acts complained of by Her Majesty's Government on the following grounds: 1. That "the Canadian vessels arrested and detained in the Behring Sea were engaged in a pursuit that is in itself contra bonos mores—a pursuit which of necessity involves a serious and permanent injury to the rights of the Government and people of the United States." 2. That the fisheries had been in the undisturbed possession and under the exclusive control of Russia from their discovery until the cession of Alaska to the United States in 1867, and that from this date onwards until 1886 they had also remained in the undisturbed possession of the United States Government. 3. That it is a fact now held beyond denial or doubt that the taking of seals in the open sea rapidly leads to the extinction of the species; and that therefore nations not possessing the territory upon which seals can increase their numbers by natural growth should refrain from the slaughter of them in the open sea. Mr. Blainefurther argues that the law of the sea and the liberty which it confers do not justify acts which are immoral in themselves, and which inevitably tend to results against the interests and against the welfare of mankind; and he proceeds to justify the forcible resistance of the United States Government by the necessity of defending not only their own traditional and long established rights, but also the rights of good morals and'of good government the world over. There is perhaps a touch of irony in this observation of Lord Salisbury imputing to the United States the assumption of a jurisdiction for the protection of good government and good morals the world over. That imputation was hardly justified by anything which Mr. Blaine had said. His ground was that the pursuit of pelagic fishing was contra bonos mores; in other words it was essentially, and upon fundamental principles, an indefensible wrong. That, of itself, did not give the Government of the United States the right to interfere. Mr. Blaine made no such pretention; but, when it was at the same time injurious, to a most valuable and lawful interest of the United States, that circumstance gave, as he insisted, the authority to the United States Government to interfere and prevent the doing of an injury to its own interests by acts which were, in themselves, indefensible wrongs. Lord Salisbury, further considering the point put forth by Mr. Blaine that pelagic sealing was an offence contra bonos mores, says that two questions are involved here: first, whether the pursuit and killing of fur-seals in certain parts of the open sea are, from the point of view of international morality, an offence contra bonos mores. .This is extremely well stated; and second, whether, if such be the case, this fact justifies the seizure on the high seas and subsequent confiscation in time of peace, of the private vessels of a friendly nation. Nothing could be better stated than that. The position taken by Mr. Blaine did raise those two questions exactly. First, whether, from the point of view of international morality, pelagic sealing is right or wrong. Second, whether if, from the point of view of international morality, it is declared to be wrong, that circumstance furnishes to the United States a ground upon which in time of peace to arrest and carry in for condemnation a vessel engaged in the practice. What is Lord Salisbury's argument? First, it is this: Suppose it to be contra bonos mores; suppose it to be against international morality; ORAL ARGUMENT OF JAMES C. CARTER, ESQ. 55 suppose it to be an indefensible wrong; that does not give the United States any right to arrest a vessel engaged in the practice. Why? Because, it is in time of peace; that is to say, the proposition of Lord Salisbury is that, in time of peace, no matter what injury an indefensible act of wrong by the citizens of a foreign power may inflict upon the United States Government, or its citizens, no vessel engaged in the infliction of that wrong can be arrested and detained when she is upon the high seas. I am not going to argue that question now; but I will say that he makes a pretty happy use of the argument ad hominem; and he cites from an American President, John Tyler, a pretty square recognition of that doctrine in a special message communicated to Congress in reference, as I assume from the date, to negotiations concerning the suppression of the slave trade. I am now reading from page 208 of the Appendix. President Tyler says : | With this single exception (that of piracy,) no nation has in time of peace any authority to detain the ships of another on the high seas on any pretext whatever outside of the territorial jurisdiction." President Tyler was an American in high official position; but his authority is not binding here, unless it expresses the truth; and this position taken by him we shall show at another stage in the debate to be wholly without foundation. Lord Salisbury must at the time have failed to bear in mind the circumstance that there had been for a century on the statute books of his own nation laws against "hovering" and laws in relation to quarantine, prescribing rules and regulations purporting to bind foreign vessels as well as national vessels, a violation of which upon the high seas, according to the British statutes, would be followed by arrest and condemnation. There are many other instances which we shall hereafter refer to in the argument. This is a very brief suggestion in answer to Mr. Blaine and it does not seem to be very satisfactory. I might add further upon the merits of the case, that the ground is that even if pelagic sealing were contra bonos mores it does not amount to piracy. If it did, any Government might suppress it, and suppress it upon the high seas: but, it is insisted, because it does not amount to piracy none can. Why can any Government suppress piracy upon the high seas? Because it is wrong; because it is an indefensible wrong, and a wrong against all nations; and so great a wrong that by a tacit agreement every power is permitted to take measures to suppress it. I cannot perceive the force of. the argument which is based upon a supposed distinction between wrongs against nations. If wrongs against all nations maybe suppressed byall nations, one wrong may be suppressed as well as another, and certainly when the commission of the wrong happens to work especial injury to the interest of a particular state, that state may suppress it. Lord Salisbury, in coming to the other branch of the argument of Mr. Blaine, as he states it, namely, that the practice is contra bonos mores, makes his answer very brief, and it amounts to this : "No, it is not contra bonos mores, because nations have never agreed that it was contra bonos mores. They have agreed that piracy was such ; they have agreed, in part, that the slave trade was such; but they never have agreed that pelagic sealing was contra bonos mores"! Is it true that whether a thing is right or wrong, whether a thing is contra bonos mores, or not, depends upon the circumstance whether nations have-come together and agreed that it is so? I had supposed that the distinctions between right and wrong were deeper by far than that. I had supposed too that neither piracy, nor the slave trade, would ever have been by agreement between nations regarded as wrong, 56 ORAL ARGUMENT OF JAMES C. CARTER, ESQ. instead of right, unless by their essential nature before the agreement was reached, they were so. In that exceedingly brief manner Lord Salisbury disposes of the long contention of Mr. Blaine which condemned pelagic sealing on the ground that it was contra bonos mores and destructive of a race of animals useful and essential to the United States, and useful to mankind. I cannot help thinking that he rather avoided, than answered, the argument. He could not have answered the argument without dealing with the nature of that pursuit—its real, essential nature—inquiring whether it was, in fact, actually destructive of a useful race of animals, and if so, whether it could in any form be defended. I am not to anticipate the argument which I shall hereafter make to this Tribunal; but I cannot help thinking that the position of Mr. Blaine was rather evaded than answered by Lord Salisbury. He much prefers to display his power by dealing with the argument which rests upon the pretentions of Eussia; and therefore he comes to consider that part of the argument of Mr. Blaine. He says : "The second argument advanced by Mr. Blaine is that the 'fur-seal fisheries of Behring Sea had been, exclusively controlled by the Government of Eussia, without interference and without question, from their original discovery until the cession of Alaska to the United States in 1867', and that 'from 1867 to 1886 the possession, in which Eussia had been undisturbed, was enjoyed by the United States Government also without interruption or intrusion from any source.'" The arbitrators will perceive that the contention of Mr. Blaine as thus stated, did not rest upon any assertion that Eussia had an original right to defend its exclusive enjoyment of the fur-seal fisheries in Behring Sea by exercising jurisdiction over that sea. It was not an assertion of that character. It was an assertion that, in point of fact, she had enjoyed that right without interruption, and without interference by other Governments during the whole period of her occupation, and that the United States, since it had acquired the territory of Alaska from Eussia, had in a similar manner enjoyed, as a matter of fact, without interruption from other nations, the exclusive right of fur- seal fishery in Bering Sea. Lord Salisbury's answer does not meet that aspect of the question at all. His answer to it is this : He says that when in 1821 Eussia, by the celebrated Ukase of that year, attempted to assert a sovereign jurisdiction over Bering Sea and to exclude the vessels of all other nations from an area of one hundred miles around the islands, foreign Governments did not assent to it, but protested against it, and that, among others, the United States protested against it; and he cites the language of Mr. John Quincy Adams who was then the American Secretary of State, protesting against those pretentions of Eussia. It will be remembered that Lord Salisbury had at an earlier stage of the controversy referred to this same matter, and had endeavored to maintain that the United States Government had no authority to do the acts they had done in Behring Sea, and that they had by their own acts shown that they had no such authority, because they had protested against similar pretentions when made by Eussia. But I must again remark that the argument of Mr. Blaine did not put forward the verbal pretentions of the Eussian Government; but it put forward the matter of 'fact of the exclusive possession of these fisheries by Russia, and by the United States. Lord Salisbury towards the conclusion of his note further observes : "Her Majesty's Government do not deny that if all sealing were; ORAL ARGUMENT OF JAMES C. CARTER, ESQ. 57 stopped in Behring Sea except on the islands in possession of the lessees of the United States, the seal may increase and multiply at an even more extraordinary rate than at present, and the seal fishery on the island may become a monopoly of increasing value; but they can not admit that this is sufficient ground to justify the United States in forcibly depriving other nations of any share in this industry in waters which, by the recognized law of nations, are now free to all the world." That is another implied assertion that where the waters of the sea are free to the world—that is, the high seas anywhere—all nations, and the citizens of all nations, are free to act upon them as they please: a proposition which seems to me to stand refuted upon its mere assertion, but which I shall have occasion hereafter to deal with more particularly. What I have now said describes the position taken by Great Britain in answer to the note of Mr. Blaine which fully set forth upon its merits the attitude of the United States in reference to pelagic sealing: and my general observation is that while the note is drawn up with exceeding ingenuity and ability, it rather avoids than answers the argument to which it was addressed. In the course of this correspondence Mr. Blaine already had before him the proposition of Sir Julian Pauncefote for a mixed Commission, Avhich also (tarried with it a proposal for an interim period of protection, protecting seals during the months of May and June, October, November and December. Senator Morgan. Mr. Carter, are you referring now to the draft convention which you have just been reading from? Mr. Carter. That is what I refer to : the draft convention. He still had that before him, and had not answered it. While he had it before him he receives further protest from Sir Julian Pauncefote in reference to seizures. This is found on page 212 of the Appendix to our Case. Sir Julian Pauncefote to Mr. Blaine. Washington, May 23,1890. Sir: I have the honor to inform you that a statement having appeared in the newspapers to the effect that the United States revenue cruisers have received orders to proceed to Behring Sea for the purpose of preventing the exercise of the seal fishery by foreign vessels in non-territorial waters, and that statement having been confirmed yesterday by you, I am instructed by the Marquis of Salisbury to state to you that a formal protest by Her Majesty's Government against any such interference with British vessels will be forwarded to you without delay. I have, etc., Joxian Pauncefote. Now, then, the situation which confronted Mr. Blaine was this : President Harrison had felt obliged to take methods for suppressing pelagic sealing in the Bering Sea, the negotiations having failed. Those measures for its suppression caused seizures and the seizures caused protests. There were suggestions contained in the correspondence which I have read of renewed efforts for an accommodation; but nothing had been determined upon. The only proposition which was up for consideration was that which accompanied the note of Sir Julian Pauncefote to Mr. Blaine which I have already mentioned. The question was what should be done with that. The situation before Mr. Blaine was this. Two years, and more than two years, had elapsed since the negotiations were originally entered upon which at first promised to be so speedily - successful. The failure of those negotiations was a disappointment, a great disappointment, to the Government of the United States. It had felt obliged to proceed with the enforcement of measures designed to suppress pelagic sealing, and now another proposition for negotiation J 58 ORAL ARGUMENT OF JAMES C. CARTER, ESQ. came in with another suggested measure of interim protection. And what was that? I presume Mr. Blaine naturally expected that, any measure of interim protection would be as broad and effective as the one which had been originally proposed by the British Government for final and permanent protection. He had expected that; but now he had this proposition from Sir Julian Pauncefote; and what was it? To appoint a mixed commission of experts who were to report at the expiration of a period of two years ! Upon their report being made to the two Governments an effort was to be made to come to an agreement upon it through the means of a convention which would take, no one knew how long. The correspondence which had already occurred had stretched through years. If the effort to come to an agreement by convention should fail, the suggestion was of a reference to the abitration of some impartial Government. And how long that would take, of course, nobody could say. At all events the proposition carried with it the probability that measures designed to settle the controversy and to preserve the fur-seals from extermination would be in progress of adjustment for a period of at least five to ten years; and in the meantime the only suggestion for the interim protection of the fur-seals was a protection of them during the months of May and June, October, November and December, leaving them exposed to capture and extermination during the most important months of July, August and September. Well, in his view—it seems to me a not unreasonable one—this proposition carried with it a certainty almost that the whole race would be exterminated before the end of the negotiation was reached; and when Mr. Blaine came to answer it, he answered it with some measure of impatience and irritation. That answer is contained in his letter of May 29, 1890, as it is found on page 212. It is too long to read, and it is not sufficiently important to be read; but I must summarize the contents as well as I may. It contains the recital of the various steps which up to that time had been taken in the effort to bring the two countries to an agreement. Then on p. 215 it deals with the proposition of Sir Julian : . When you, Mr. Minister, arrived in this country a year ago, there seemed the best prospect for a settlement of this question, but the Russian minister andthe American Secretary of State have had the.experiences of Mr. Phelps and the Russian ambassador in London repeated. In our early interviews there seemed to be as ready a disposition on your part to come to a reasonable and friendly adjustment as there has always been on our part to offer one. You will not forget an interview between yourself, the Russian minister, and myself, in which the lines for a close season in the Behring Sea laid down by Lord Salisbury were almost exactly repeated by yourself, and were inscribed on maps which were before us, a copy of which is in the possession of the Russian minister, and a copy also in my possession, A prompt adjustment seemed practicable—an adj ustment which I am sure would have been honorable to all the countries interested. No obstacles were presented on the American side of the question. No insistence was made upon the Behring Sea as mare elausum ; no objection was interposed to the entrance of British ships at all times on all commercial errands through all the waters of the Behring Sea. But our negotiations, as in London, were suddenly broken off for many weeks by the interposition of Canada. When correspondence was resumed on the last day of April, you made an offer for a mixed commission of experts to decide the questions at issue.' Tour proposition is that pelagic sealing should be prohibited in the Behring Sea during the months of May, June, October, November, and December, and that there should be no prohibition during the months of July, August, and September. Your proposition involved the condition that British vessels should be allowed to kill seals within 10 miles of the coast of the Pribilof Islands. Lord Salisbury's proposition" of 1888 was that during the same months, for which the 10>-mile privilege is now demanded, no British vessel hunting seals should come nearer to the Pribilof Islands than the 47th parallel of north latitude, about 600 miles. The open season which you thus select for killing is the one when the areas around the breeding islands are most crowded with seals, and especially crowded with female shores There This ai e determined by one of Her Majesty's provinces. This proposition was received by Mr. Blaine with some considerable degree of impatience, as will be observed. He seemed to feel that he Avas confronted at all times with the objection of Canada, and that the objection of Canada was in all instances perfectly effective to prevent the approach to any accommodation. For my own part I see no objection whatever why Great Britain, before she should come to an arrangement of this sort, should consult Canada; because Canada was the province which was more immediately interested. I see no reason for complaint upon that score. It is a little different, however, when we come to consider the circumstance that originally, when the proposition made by Mr. Phelps was provisionally accepted by Lord Salisbury, it was not stated that it would be dependent upon the wishes of Canada, ' or dependent upon the result of investigations made after Canada had been consulted. Had that been stated at that time it would have prevented the raising of expectations only to be disappointed. These observations, of course, do not relate to the merits. They are designed to explain the progress of the negotiations and the sentiments of the negotiators from time to time; and, at this point of time it is very observable that there was on the part of Mr. Blaine a feeling of great impatience, as if he had been in some manner wronged. Senator Morgan. Mr. Carter, what is the date of that letter, if you please, that you are reading from Mr. Blaine? Mr. Carter. May 29,1890. Senator Morgan. If it would not disturb you I would like to call your attention to page 461 of vol. 3 of the Appendix to the British Case, to a note from the Marquis of Salisbury to Sir Julian Pauncefote. Its number is 332. Mr. Carter. I have it. Senator Morgan. It is very short, and for the purpose of calling your attention to the particular language of it I will read it: 60 ORAL ARGUMENT OF JAMES C. CARTER, ESQ. The point as it seems to me there, is that there is a wide distinction between the grounds taken by Sir Julian Pauncefote in his note in which he represents the British Government, and which is approved, and the terms of the draft convention. Mr. Carter. Is it the suggestion of the learned Arbitrator that the terms of the draft convention proposed by Sir Julian Pauncefote had received the approval of Her Majesty's Government? Senator Morgan. No, sir. It had received the approval of the Canadian Government, as was expressed to Lord Salisbury; but the terms of the note from Sir Julian Pauncefote to the United States Government had been approved by the British Government. Sir John Thompson. That note referred to there was the note of Sir Julian Pauncefote laying it before Mr. Blaine. Senator Morgan. Yes; I refer to the discrepancy between that note and the draft convention. Sir Charles Eussell. There is no discrepancy. Senator Morgan. We differ about that. Mr. Carter. I had assumed that the note from Sir Julian Pauncefote to Mr. Blaine containing the draft convention proposed by him was agreeable to the Government of Canada, and that, because it was agreeable to the Government of Canada, it was approved by the Government of Her Majesty. Sir Charles Eussell. May I point out, with the permission of my friend, that this is a matter in which my learned friend and I will not differ. The Government of Canada was controlled by the Imperial Government of Her Majesty. The Government of Canada approved of the convention and the Government of Her Imperial Majesty is the only Government which diplomatically could convey the matter to the United States Government. Senator Morgan. I comprehend that. Sir Charles Eussell. And indeed it was necessary to convey, and only necessary to convey, the fact that the Imperial Government had approved it. Senator Morgan. I certainly comprehend that; but if in this cautious note of Lord Salisbury he says the Government of Canada has approved of a dr.affc convention and the Government of Her Majesty has approved Sir Julian's note to Mr. Blaine, and then if there is a material and wide discrepancy between the arguments and the statements in Sir Julian Pauncefote's note and those found in the draft convention, why I suppose that it was intended that while the note of Sir Julian with its doctrines and statements was approved by the Government of Her Majesty, the draft convention had been approved and consented to only by Canada. Of course, that was enough for the British Government. Mr. Carter. There may be more in this than I have perceived; but I have understood the note of Lord Salisbury to Sir Julian Pauucefote as designed to approve of his conduct in transmitting his note with the draft convention to the Government of the United States. Sir Charles Eussell. Quite so. Mr. Carter. And, in thus approving of his conduct in transmitting in the way he did that draft convention to the Government of the United States, it amounts to an approval of the convention itself. Senator Morgan. But it is an approval based on the consent of Canada. Mr. Carter. That is undoubtedly one of the reasons—perhaps the only reason. It was an approval which had been moved, which was ORAL ARGUMENT OF JAMES C. CARTER, ESQ. SI based upon, if you please, the approval of the Government of Canada. I suppose it is quite manifest all along here that the approval of the Government of Great Britain to any measures of restriction upon pelagic sealing were kept dependent upon the wishes of the Government of Canada. That is the fact which made Mr. Blaine somewhat impatient. I do not argue now whether he was properly or improperly impatient; but it was the fact. The President. We have only before us in this matter the British Government. We are not to enter into a consideration of the motives upon which the British Government decided what course to adopt. Whether the Canadian Government has an influence upon the decisions of the Imperial Government is a matter of interior consideration by the British Government itself; but we have as a party only the British Government. Mr. Carter. That is quite true. I am not giving any material consequence to the consideration whether the Government of Great Britain awaited the action of the Government of Canada, or made its own action dependent upon the Government of Canada, except in this point of view, so far as it explains the temper, the disposition of the corresponding diplomats, and the grounds and reasons why one side may have thought that they had a complaint against the other for delay. It is pertinent in that point of view, and in that point of view alone, as I conceive. Senator Morgan. I beg leave to say this in defence of my position : Mr. Carter read with great emphasis this clause from the letter of Sir Julian to Mr. Blaine on page 455 : "It has been admitted from the commencement that the sole object of the negotiation is the preservation of the fur-seal species for the benefit of mankind, and that no considerations of advantage to any particular nation or of benefit to any private interest should enter into the question." And then the learned counsel was proceeding to argue that under the terms of this convention the fur-seals in Bering Sea resorting to the Pribilof Islands were exposed during the most dangerous period of the year to extermination by the Canadian sealers. He, as I understood, inferred from that that Her Majesty's Government had changed its ground upon the question of the duty of both Governments to preserve the seal herds from extermination. Mr. Carter. I beg pardon ; I did not intend to so argue. I see no evidence here that the Government of Great Britain at any time changed, at least, its avowed ground, that the prime object of these negotiations was to preserve the fur-seal from extinction. That ground as avowed by them at first continued to be avowed until the last. Whether the measures which they actually suggested, or the measures which they were willing to accede to, were such as we might expect from a Government which took that ground, and made that avowal, is a matter about which different opinions may be entertained; but that they ever changed their ground in reference to the necessity of protecting the fur-seal I do not think. It is very far from any intention of mine to make any such assertion. I make the contrary assertion, in reference to the avowed ground of the British Government. Mr. Blaine, after this letter from which I have read extracts, of May 29th, addresses another letter to Sir Julian Pauncefote before he had received a reply, which was this: ORAL ARGUMENT OF JAMES C. CARTER, ESQ. 'ment of State, Washington, June Z, 1890. prolonged interview with the President on linly and most promptly t The two Governments now appear to have come to a decided difference respecting the measures which they were prepared to assent to providing for an interim preservation of the seal. We have a communication here from Sir Julian that Lord Salisbury thinks, that the measure proposed in 1888, and provisionally accepted by him, was too extreme a measure. He is not prepared to assent to it, and suggests a further difficulty, namely, that, in the absence of legislation by Parliament, the Government would not be enabled to enforce it upon British vessels. In answer to the suggestion of an inability to execute such a restrictive provision without an act of Parliament, I will say, without reading the correspondence, that Mr. Blaine suggested that the United States Government would be satisfied if, without an act of Parliament, the Government of Great Britain would issue a proclamation forbidding pelagic sealing, or requesting vessels to abstain from it. That proposal was answered by Sir Julian on the 27th of June. I read from page 223 of the first volume of the American Appendix: Washington, June Z7,1890. II. Tha t, pendi ng the absolu tel III. Th at the I on the qu legal r they may Such a Majesty's Govern nent, th As rega rds the ompeng ORAL ARGUMENT OF JAMES C. CARTER, ESQ. 63 and injuries sustained by British subjects by reason of the action of the United . States Government against British sealing vessels in the Behring Sea durin»- the years 1886, 1887, and 1889, I have already informed Lord Salisbury of your assurance that the United States Government would not let that claim stand in the way of an amicable adjustment of the controversy, and I trust that the reply which by- direction of Lord Salisbury, I have now the honor to return to the President's inquiry, may facilitate,the attainment of that object for which we have so Ion"- and so earnestly labored. I have, etc., Julian Pauncefote. The President. If you have come to the end of a branch of this subject, I think it would be well to interrupt here. [The Tribunal thereupon took a recess.] On reassembling The President said: Mr. Carter, will you resume your argument? Mr. Carter. I had just read Sir Julian Pauncefote's note to Mr. Blaine, in which he conveys the terms under which Lord Salisbury was prepared to accede to Mr. Blaine's request that the British Government would, by proclamation, request an abstention from pelagic sealing in Bering Sea during the then coming season, or present season. The Arbitrators will observe that Lord Salisbury stated that there were grave constitutional difficulties in the way of taking the course suggested, and that the British Government could not adopt such a course as that unless there were a very complete justification for it: that it created a responsibility which the Government was not prepared to assume unless there was very great occasion for it, but intimated that if three conditions were complied-with, they would, notwithstanding, make that request. Those conditions were that the two Governments should forthwith agree to submit to arbitration the question of the legality of the action of the United States Government in making the seizures; that, pending the award, all interference with British vessels by the United States should cease; and third, that the United States Government, if the award should be adverse to it on the question of legal right, would compensate British subjects for their losses. The learned Arbitrators will observe—of course, they, cannot fail to observe—throughout this correspondence the play of diplomatic skill and ability on the part of each side in dealing with the other, and it is observable in these views of Lord Salisbury. He found that the Government of the United States were extremely anxious to prevent pelagic sealing in Bering Sea during the coming season: that, unable to get anything better, they would content themselves with a request from the British Government by proclamation that such sealing should not be engaged in. Finding that they were so anxious upon that score, he thought that by acceding to their views in that particular he might gain certain advantages : first, absolute non-interference with British sealing vessels during the pendency of the negotiation, and, second, a reference to arbitration, which should include, not only a determination upon the questions of right, but also a determination upon questions of alleged damages sustained by British vessels. The Arbitrators will here perceive the first direct suggestion of the scheme of an arbitration upon the questions of right. That is the principal feature of this letter. It is true that an arbitration had been at an anterior period suggested by Sir Julian Pauncefote; but it was to be the arbitration of a friendly Government, in case the two Governments should not find themselves able to agree upon the question of regulations, after they had received the report of the proposed mixed Commission of experts: and the arbitration thus suggested by Sir Julian Pauncefote was, you will perceive, only upon Itoe pest/io» of regulation, The arbitration hero suggested 64 ORAL ARGUMENT OF JAMES C. CARTER, ESQ. by Lord Salisbury is one upon the question of legal right, and also upon the question of damages. We find here, therefore, the first germ of that final submission of the matters in dispute to arbitration which eventually grew into the treaty under which our present proceedings are had. I may at once refer, although it is not in the order which I had adopted, to the answer of Mr. Blaine to this proposal. It is found in his letter of July 2,1890, on page 239. v, July Z, 1890. ' to the friendly Salisbury refused to a accept a formal arbitr; The President's reqi basis of agreement, e responsive to his sug desired. British arbitral The learned Arbitrators will remen time ago, before the recess, from Mr. written perhaps under some measure to be the unreasonable delays of G ground by her in respect to interim i letter the Marquis of Salisbury wri designed to be an answer, to Sir Julie June, 1890. As it does not raise a m will not read it, unless my friends oi essential; but I will attempt a summi Appendix to the American Case. The points that he endeavors to n that the agreement which was origin Phelps in reference to the close sea only, not designed to be final; and tl States were hardly justified in conceit says that it was dependent upon the tain,of it, although he does not sta Mr. Phelps, or otherwise in such i American Government, that it was. conditional upon any acceptance of it by Canada; and he says that if the United States were not at first apprised of this, they were at a subsequent period, which, indeed, is true, although it was not until after a considerable delay. In the next place, he says that the delay of two years which has been occasioned was not solely in consequence of the objections of Canada, but that it was made necessary in consequence of a divergence of views between rtl tB tel ati rit£ ett at which I read some lulian Pauncefote, what he supposed ad the shifting of sures of pr otection. To that ri a tie of a ir r ni an nee t. it ade fo It er etv or writes a note on the 20th day of l the discussion, I le should deem it on page 236 of the abstantially these: ceen him and Mr. f to £ îsional agreement s that the United nal one. He then tha ; h ' tl ch îat tnada might enter- the time, stated to would reach the ORAL ARGUMENT OF JAMES C. CARTER, ESQ. 65 the two Governments in respect to the necessity of a measure so stringent as that for the preservation of the fur-seals; and that owing to the remoteness of the region from which information was obtainable a long period of time had necessarily elapsed in the effort to gain information upon which the government could intelligently act. He intimates, besides, that some delay, at least, was chargeable to political emergencies in the United States, meaning, I suppose, the change of administration from that of President Cleveland to that of President Harrison. That is, I believe, a fair statement of the points sought to be made by Lord Salisbury in this note. The next feature in this stage of the controversy to which I call the attention of the Tribunal is the letter of Mr. Blaine to Sir Julian . Pauncefote of June 30th, 1890, which is found on page 224 of the American Appendix. This letter of Mr. Blaine is important, inasmuch as it takes up the argument upon the questions in dispute, as that argument was left by Lord Salisbury's reply to Mr. Blaine's letter, in which he fully set forth the position of the United States. The Arbitrators will remember that I read Lord Salisbury's reply and briefly commented upon it, pointing out, what appeared upon the face of it, that it was rather an attempt to avoid the ground taken by Mr. Blaine than to really answer it; to pass over the ground of Mr. Blaine and again rely upon the attitude taken by the United States in 1822, protesting against the pretensions of Eussia to an exceptional marine jurisdiction in Bering Sea. The disposition of Lord Salisbury, I remarked, seemed to me to be to draw away the discussion from the substantial ground taken by Mr. Blaine, that of inherent and essential right, and to engage him in a discussion in reference to the validity of Eussian pretensions in Behring Sea. If I were permitted, and if it were worth while, to criticise the position of Mr. Blaine as a controversionalist, or a negotiator, I should say that he took an unwise step in responding to this suggestion of Lord Salisbury and suffering himself to be drawn away from the impregnable attitude on which he stood—impregnable, as it seems to me—and which Lord Salisbury had undertaken, as I think, to avoid—and pass over to that region of controversy to which Lord Salisbury had invited hjm. That was an imprudent step, as it seems to me. The wiser course would have been to have said to Lord Salisbury: "I do not think you have answered the positions which 1 have taken; and the positions which I have taken are the grounds, the main grounds, upon which the United States' bases its contentions; and I shall expect a further and more satisfactory answer to them if it can be made ". But he did accept the invitation of Lord Salisbury, and he took up this question of the Eussian assumptions of authority in Behring Sea and wrote a long letter in relation to it. That letter, again, is too long to be read, and not of sufficient importance to be read. The only importance that it has in the aspect of the controversy which I am now presenting to the Tribunal is that it exhibits a stage in the discussion of this question of Eussian pretensions in Behring Sea. It is the answer on the part of the United States Government, and the first answer that the United States Government ever made, to the argument of Great Britain that Eussia had originally made pretensions similar to the one then made by the United States ; and that these pretensions, when made by Eussia m 1821, were resisted by the United States Government upon the same grounds upon which Great Britain was now resisting the pretensions of the United States. That was the argument of Lord Salisbury, and Mr. Blaine makes an answer to it here. B S, pt xn 5 66 ORAL ARGUMENT OF JAMES C. CARTER, ESQ. I must attempt to summarize that answer of Mr. Blaine, without reading the letter, which is very long, and which I assume, of course, the learned Arbitrators will themselves carefully read. I must endeavor to present a summary of it, and it is this: Mr. Blaine's argument is that long prior to the year 1821, Eussia had, by prior discovery and prior occupation, gained an absolute title to all the territory surrounding Bering Sea; that upon the Siberian coast she had no rival whatever, and had complete possession of the whole territory from Bering Straits down to the 47th parallel of latitude, or in that vicinity : that she had pushed her discoveries on the American coast of Bering Sea also, and had a recognized title to all the territory from Bering Straits down, to the 54th degree of latitude, at least, and that she had discovered, and asserted her title to, the whole chain of the Aleutian Islands: that all that was long prior to the year 1821, indeed prior to 1800: that in the year 1821 she issued her celebrated ukase, the principal point of which was that she asserted an exclusive right to all the products of this whole region, to all the trade of the whole region, and for the purpose of protecting that product and that trade, a right to exclude the vessels of all nations from a belt 100 miles from the shore along all the islands and coasts of the sea. That was her assumption by the ukase. The governments of Great Britain and the United States objected to those claims; but the principal ground of their objection was not to any assumption of authority over the sea, nor to any assumption of authority over the shores of Bering Sea, as to which the whole world admitted that the title of Eussia was exclusive, but to the extension of her assertions of exclusive dominion on the coast from about the parallel of 54 North la of 51. The point of Mr. Blaine was that tl the ukase in the eyes of both Great Britain • the assumption of exclusive territorial sovei the southern part of Alaska down over a : had been familiarly called in commerce an gators who were engaged in trade there th was the theatre of tlie rival enterprises of s commerce. Merchants in the United States had a large trade up there. Great Britain had a large trade there, and Eussia had a very considerable trade up there. The President. And Spain also. Mr. Carter. And Spain also had some, although I do not know how much it amounted to commercially. She had made pretensions, of course, as we all know, which were subsequently transferred to the United States. The President. On account of the possession of San Francisco, on that coast. Mr. Carter. Ah, lower down, of course, Spain had great pretensions; but San Francisco, I think, was rather below what was commonly termed the Northwest Coast. Spain claimed to parallel 60, I know; but I am speaking of the extent of commerce which she actually had up there. I do not think it was very considerable. Her claims extended up there, that we know. I am speaking of the fact that this Northwest Coast, so called, was the theatre of a very extensive trade, lown to th e parallel ctionable feature of e United S tates was over this c oast, from rage of co 1st which îerchants and navi- thwest Coast". It different i îations in principally carried on by thr States and Eussia. Mr. Blai t powers, Great Britain, the United jument was that the principal point ments was the sovereignty assumed iccessfully maintained by her, would , United States from the benefit of of contention between these by Eussia over that coast, wh exclude both Great Britain < that trade. ch,ifs tud th< ORAL ARGUMENT OF JAMES C. CARTER, ESQ. 6? According to Mr. Blaine—this was his argument—that contention was settled between the United States and Eussia by the treaty of 1824, and between Great Britain and Eussia by the treaty of 1825, and that the ukase of 1821, except so far as it was modified and' displaced by ■fliese treaties, continued to stand. That was his main proposition.; that to a certain extent the pretensions asserted by the ukase of 1821 were yielded and surrendered by those two treaties, and so far as they were not thus yielded and surrendered, they continued to stand. Now, according to his argument, the only particulars in which those pretensions were surrendered were these: a boundary line was established—a southern boundary to the pretensions of Eussia, and that was 54°, 40'. The territory in dispute, which was between 60° and 51° was thus divided, you may say, in two parts. 54°, 40' was taken as the dividing line. Down to that dividing line, by this treaty, the sovereignty of Eussia was recognized as complete and perfect; and south of that boundary, the sovereignty of Eussia was excluded by her agreement not to make any more settlements south of it. In the course of this whole discussion, no pretension was ever made, by either Great Britain, or the United States, to any trade in these Bering Sea regions, or to any interests in these regions at all. Great Britain and the United States made no assertions of any interest in these regions of Beiing Sea at all. They had none atthattime. Everything embraced by those regions was in the undisputed possession of Eussia. There was no desire to interfere with it, and, consequently—this was the conclusion of Mr. Blaine.— The President. You speak of the coasts only. Mr. Carter. Well, I speak now of the sea as well. I am giving Mr. Blaine's argument now. Lord Hannen. It is not yours—you do not adopt it? Mr. Carter. I am not now adopting it. Whether I will adopt it or not, and how far I adopt it, will be seen at a later stage in the argument. But this is his argument, that all the pretensions of Eussia, whether upon the sea, or'upon the land, North of the 60th degree, and including all the islands in Bering Sea and the peninsula of Alaska which constituted the Southern boundary of Bering Sea, were recog- - nized as the undisputed possessions of Eussia, and no contention was made in reference to them. Sir Charles Eussell. North of 54°, 40' you mean? Mr. Carter. No: north of 60°, I mean, at the time when the protests were made,.and the negotiations were entered into. Everything North of 60° was undisputably the property of Eussia, and no contention was made on the part of either Government in reference to it. The region of controversy was South of that, between that, and latitude 51°. The whole controversy was in reference to that region, and the adjustment affected that region alone. It did not affect, and was not designed to affect—it could not have affected—the undisputed part of the territory. So the final conclusion of Mr. Blaine was that the pretentions of Eussia asserted by the ukase of 1821, so far as respected. Bering Sea and the islands in Bering Sea, and so far as respected land and water both, were unaffected by the treaties of 1824 and 1825, and therefore they stood not only unaffected by those treaties, but, because they were left unaffected by those treaties, admitted by those two powers to be valid and legitimate. That is his argument. How far that argument may be sound, and where it maybe weak, if it is weak at all, will form the subject of a brief discussion, upon which I shall enter at a subsequent stage. I am now merely presenting the argument contained in this letter of Mr. Blame's. 68 ORAL ARGUMENT OF JAMES C. CARTER, ESQ. The arguments between these diplomatists kept varying, all along during this correspondence, sometimes dealing with the real questions in the controversy, and sometimes discussing the question which party was responsible for the delays and difficulties which attended the progress of the negotiations. A letter of the latter character, found on page 240,1 will next notice. This is a letter from Mr. Blaine to Sir Julian Pauncefote, and is designed to be an answer to Lord Salisbury's note which I have heretofore read, in which he endeavored to throw off from the shoulders of Great Britain the responsibility for the delays which had occurred in the negotiation and which succeeded the abortive attempt between Mr. Phelps and Lord Salisbury. I am not going to read that letter either. The President. You mean the failure of the draft convention? Mr. Carter. No: I mean the general failure from the beginning. You will remember that Mr. Blaine had written a note to Sir Julian Pauncefote marked by something of acerbity, in which he complained of the delays and difficulties attending the settlement of this question chargeable upon the conduct of Great Britain, and mainly occasioned, by the fact that Great Britain was constantly governing her action according to the views and wishes of Canada. Of course whatever may be the necessities, the difficulties, attending the settlement of .a diplomatic controversy on the part of a power like Great Britain—and I can easily see that there are very serious difficulties attending such a settlement—another power finding that the Government with which it is dealing is governed in its own action by the wishes, real or supposed, of one of its dependencies, will naturally come to feel some uneasiness : and that was the feeling in which Mr. Blaine had written his letter; and he had again referred to the period when Mr. Phelps communicated his original proposition to Lord Salisbury, which was promptly accepted by Lord Salisbury under circumstances which led the Government of the United States to suppose that the final determination of the controversy was at hand. He had referred to the fact that the negotiations were first interrupted, then suspended for a long time, then finally retired from in consequence of the action of the Canadian Government. Lord Salisbury undertook to defend the British Government from those charges. This is the reply of Mr. Blaine designed to show that that defence was not a sufficient one, and that his original complaints of delays were well founded. On the second of August, 1892 (page 242 of the American Appendix), Lord Salisbury having succeeded in drawing Mr. Blaine into a controversy respecting these Eussian pretensions and the effect of the Treaties of 1824 and 1825 respecting them, and having received Mr. Blaine's argument upon that point, replies to it at great length. The reply commences on page 242 and extends with its notes to page 263. Of course it is wholly impracticable to read it here, and all I can do, and all it is necessary to do, is to briefly summarize it. Lord Salisbury's argument is this: that the publication of the ukase of 1821 was the first notice which Great Britain had ever received, or other Governments had ever received, of any pretensions by Eussia over the waters of Bering Sea and over the Northwest Coast. He states that the pretentions of Eussia made by that ukase were to a sovereignty over the waters from Bering Straits down to latitude 51° on the American shore, and down to latitude 47° on the Asiatic shore, thus asserting a sovereignty, not only over Bering Sea, but over a large part of the ocean south of that sea : and he insists that the principal point of the objection of Great Britain to this pretention on the part of ORAL ARGUMENT OF JAMES C. CARTER, ESQ. 09 Eussia was, not the matter of sovereignty on the Northwest Coas which Mr. Blaine conceived it to be, but the assertion of maritime dominion over the high seas. He insists that that was the principal point complained of by Great Britain; and he says that that was squarely abandoned by the treaty concluded between Eussia and Great Britain in 1825; that the principal assertion was one of complete dominion over the sea, and that that assertion was abandoned by the express terms of the treaty. I now read from the first article of the treaty between Great Britain and Eussia of 1825, which is found on page 39 of the first volume of the Appendix to the American Case, for the purpose of showing what the argument of Lord Salisbury was. That first article is: I. It is agreed that the respective subjects of the high Contracting Parties shall not be troubled or molested, in any part of the ocean, commonly called the Pacific Ocean, either in navigating the same, in fishing therein, or in landing at such parts of the coast as shall not have been already occupied, in order to trade with the natives, under the restrictions and conditions specified in the following articles. Mr. Blaine's argument had been that the words "Pacific Ocean" as used in that first article of the treaty did not include Bering Sea, but only the ocean South of that sea. Lord Salisbury's argument now is that " Pacific Ocean" did include the whole of Bering Sea; and the controversy between those two diplomatists, now became substantially confined to that particular point, whether the term "Pacific Ocean", as used in the first article of the treaty between Eussia and Great Britain, and the similar term of the first article of the treaty between Eussia and the United States, was really intended to embrace Bering Sea, or only the waters south of that sea. This debate upon the question of the pretentions of Eussia came finally to concentrate itself very much upon that particular point, and Lord Salisbury's argument was a very full one, designed to show that " Pacific Ocean" was intended to include the whole of Bering Sea. The President. Mr. Carter, I must call your attention to this fact, that the original text is, a French text and that what you read was the English verson, which is not of an official character. There is a certain difference which I remark in the French text and in the English text, or in the English version which you have read. Mr. Carter. When I come to the discussion of the question.— The President. You do not discuss that at present? Mr. Carter. No. When I come to discuss the merits of the question I will'say something as to the text of the treaty which we must accept in our discussions. At this point, unless the learned President thinks there is something particularly material about it, I will not discuss it. The President. Your translation bears only on the ocean commonly called the Pacific Ocean. I think that would be quite material. Mr. Carter. Those considerations have relation to the merits of the controversy: and when I come to discuss the merits I will say something upon that point; but I will not discuss it now. I wish now to speak of this letter of Mr. Blaine to Lord Salisbury on the 17th of December, 1890. It will be found at page 263. He re-iterated his positions there in a very long letter, a letter written with very great ability sustaining his contention that the term "Pacific Ocean " did not include the Bering Sea, At this time Mr. Blaine, gradually becoming more and more interested in this discussion, and giving, I suppose, more and more attention to it, became more and more convinced of the solidity of the ground upon which he stood, and seemed to be almost ready to surrender every other ground in the case and put the issue of the con- TO ORAL ARGUMENT OF JAMES C. CARTER, ESQ. troversy upon this. He was not very cautious in that particular, and allowed an expression to fall from him which the quickness of my learned friend Sir Charles Eussell seized upon the other day. It is dated the 17th of December, 1890, and in it he says this: Sir Charles Eussell. Are you going to.read this at length? Mr. Carter. No, I am not. Sir Charles Eussell. If so, it will be necessary to read the others. Mr. Carter. Oh no: far from it. I am only going to read a few lines. This is the passage to which I designed to call the attention of the arbitrators : If Great Britain can maintain her position that the Behring Sea at the time of the treaties with Russia of 1824 and 1825 was included in the Pacific Ocean, tLe Government of the United States has no well-grounded complaint against her. If, on the other hai.d, this Government can prove beyond all doubt that the Behring Sea, at the date of the treaties, was understood by the three signatory Powers to be a separate body of water, and was not included in the phrase " Pacific Ocean," then the American Case against Great Britain is complete and undeniable. The extraordinary thing in that observation and what I desire to call to the attention of the learned Arbitrators is this: Mr. Blaine in his first note to Sir Julian Pauncefote stating the position which the United States took in reference to this controversy and the grounds upon which it based its claims to prohibit pelagic sealing in Bering Sea, dismissed from consideration altogether this question of Eussian authority and Eussian pretentions, or any right derived by the United States from Eussian authority or Eussian pretensions. He then proceeded to put the controversy upon grounds of essential right, setting forth the lawful and useful character of the industry carried on by the United States upon the Pribilof Islands—an industry useful to themselves and useful to mankind—setting forth the destructive nature of pelagic sealing as carried on by these Canadian sealers and its indefensibility upon moral grounds, that it was an indisputable wrong, and, being injurious to property interests of the United States, that the latter power was clothed with full authority to prevent the commission of that wrong. Those were his grounds. Here, somewhat incautiously, he has abandoned that view, and chooses to say now that if the Government of Great Britain can maintain its position in respect to the meaning of "Pacific Ocean", then the United States has no well grounded complaint against her. Senator Morgan. Mr. Carter, if you will allow me to interrupt you just there, I think Mr. Blaine deserves some vindication. Mr. Carter. I am going to vindicate him. Senator Morgan. I hope you will. On the 29th day of April 1890, preceding by several months this letter from which you have been reading, written by Mr. Blaine, the British Government, through Sir Julian Pauncefote, sent to Mr. Blaine a draft convention, from which I will read the preamble: The Government of Russia and of the United States having represented to the Government of Great Britain the urgency of regulating by means of an international agreement the fur-seal fishery in Behring sea, the sea of Okhotsk and the adjoining waters for the preservation of the fur-seal species in the North Pacific Ocean. Making a distinction there between Bering Sea and the Sea of Okhotsk and North Pacitic Ocean. I will not read the whole preamble, but it seems to me that Mr. Blaine had at the time he wrote the letter upon which you are commenting an acknowledgment from the British Government that there was a distinction between the Bering Sea and the Sea'of Okhotsk and the North Pacific Ocean; but I think he was not ORAL ARGUMENT OF JAMES C. CARTER, ES< 71 quite out of the line of reason, to say the least of it, in claiming that there was a distinction which had been maintained perhaps for manv years. Mr. Carter. It may be that the British Government had acknowledged the difference of the character in question ; but I hardly think the Government of Great Britain intended to acknowledge any such difference as that. I do not so interpret it. But, in the next place whether they acknowledged it or not, I think it was if I may be so bold as to offer a criticism—I ought, perhaps, not to but nevertheless it seems to me it was—a piece of imprudence in Mr. Blaine to abandon the ground which he at first assumed, in consequence of the confidence which he felt in the new position he was taking upon this question of the pretensions to Bering Sea. He might have argued the question of the rights of the United States as acquired from Eussia. It would not have affected that argument at all. There was no occasion whatever for an apparent abandonment of the ground which he had already taken in- his first letter to Sir Julian Pauncefote. Singularly enough, however, in this very same letter, towards the end of it, he again re-asserts his original ground. Near the close of the letter, in the last paragraph, on page 286, Mr. Blaine thus writes: The repeated assertion a th it the Gov era ment of the Uni the Behring Sea be prone 3d mare da ment has never claimed It exprë same time the United S1 lack abi nda ablest exponents of into for holdi Sea for the protection of Controll of water for that one sp is by no mare clausum. No obstruction as Great Bri law of t The Près long postponement whic on of legs limore and Kent would lve. He inds his Phelps, our late minister toE ngland, w with Great Britain touch the seal ii meries, h communication to his ow nG "Much learning has been e xpendedu the right of mare clausun i. I "Here is a valuable ishe ry, and a industry, the property ol the nations on whose sh ores itisc by the colony of aforeign tries interested, to destrc mioation of the animals of gestation, when the t onn ion dictât es of hun >y 0Tlg there no interest at all Lved. Anc ed ths defending ourselves agai se the from the coast is free. "The same line of arg t would t protec trade when prosecuted in the open sea, or would ifyon commerce of another by t near its coasts. There a em any things that car no be a/ open sea with impunity, and against w hich ever j se lis ma d property 'prevails the adjacent with some smal principles of- internation would be no more destrn "If precedents are wa precedents for such a cour law has arisen from prec eder teïhafha ?<?52* S for them arose, undeterr I have the honor to be, >db with the : ughèst°co nsid eratw1 72 ORAL ARGUMENT OF JAMES C. CARTER, ESQ. The learned Arbitrators will there perceive that Mr. Blaine comes back to his original ground and puts the case upon the question of property, and of essential right, and of a right to defend property interests on the high seas against acts which are themselves contra bonos mores. I am obliged to admit that these two attitudes taken by Mr. Blaine in this letter, one at the beginning and the other at the end, are inconsistent and self-contradictory; but it is, nevertheless, true that, inasmuch as the last attitude is taken at the end of his letter, the position of the United States as heretofore assumed was not by this letter, as it never had been by any other, substantially, or in any respect indeed, changed. Lord Salisbury had the last word on this subject. He rejoined to Mr. Blaine in a letter dated February 21,1891. Sir Charles Eussell. That is comparatively short. Mr. Carter. Comparatively short, but not short enough for me to read it. Nor is it necessary for me to describe it, or to say anything of it, except that it was a reiteration of his original positions and a respectful statement that the argument of Mr. Blaine on the other side was not satisfactory; closing, I believe, as is usual, with these polite gentlemen, with some conciliatory observations, and also containing some discussion of the points of the proposed arbitration ; for the arbitrators will remember that while this discussion upon the merits of the controversy was going on, another discussion was also going on between the parties, pari passu, concerning the features of the arbitration, towards which the correspondence and the negotiation were gradually tending. There was a good deal of correspondence after this, but it contains very little —nothing—which imports into the controversy any special new feature which it is important for me to bring to your attention at this time. The debate was exhausted; the disputants had stated their views, and they had not approached an agreement at all upon any of the questions in controversy. The necessity for some mode of adjustment in order to prevent a very lamentable result became more and more apparent to each party, and approaches were gradually made to a final agreement for an arbitration. Much discussion took place in reference to the points which should be submitted; but there was not very great difficulty experienced in coming to an agreement. The remaining discussion, therefore, embraces the controversy concerning the shape which the arbitration should take, and all it is necessary for me to say in reference to it is this: as finally agreed upon it still presented its original aspect of a scheme with two alternative features, one contemplating that there should be a mixed commission of experts which should make inquiries in relation to seal life and pelagic sealing, and as to what regulations were necessary to preserve the seals, and report upon that; that if the two Governments upon receiving that report should find themselves able to agree upon a scheme of regulations, the arbitration would become unnecessary. That was not expressed, but it was an implied feature all along. It was borrowed from the original suggestion of Sir Julian Pauncefote. But if there was a failure to agree, then, of course, it would be necessary that the arbitration should proceed, and when it did proceed, it was to embrace all the questions in relation to the original pretensions of Eussia, and to the rights which the United States may have derived from Eussia grounded upon those pretensions; next, the question of the property interest of the United States in the seals, and in the industry which was maintained in respect to those animals upon the Pribilof Islands; and then, if the determination of the Tribunal upon ORAL ARGUMENT OF JAMES C. CARTER, ESQ. 1$ those questions which are properly called by my learned friend Sir Charles "questions of right", should leave the subject in a condition where the concurrence of Great Britain was necessary to the establishment of regulations for the preservation of the fur-seal, the arbitrators should consider what regulations were necessary. The President. In that contingency? Mr. Carter. In that "contingency", yes; and only in that contingency. The duty of the arbitrators is most plainly specified here as to what they are to do, and the times at which they are to do it. The question of what evidence they are to act upon, and when that is to be submitted, has heretofore been-argued; and I shall say nothing further about it. When the parties were brought to a substantial agreement upon these points, the agreement for the arbitration and the agreement for the mixed commission of experts, were drawn up separately and signed separately on the 18th of December, 1891; and, in accordance with the design of settling the matters by a convention upon the basis of a joint report, the Commissioners were at once appointed on the part of Great Britain and proceeded to Bering Sea for the purpose of making their investigations long before the treaty was finally drawn up and signed; but in February, 1892, these two agreements, thus far kept separate, were finally consolidated in the treaty, and the treaty was signed and ratified. That concludes the second stage of the controversy. In a word or two, allow me to recapitulate the principal features of this second stage of the controversy. It opens with the acts of the administration of President Harrison; proclamations designed to prohibit; pelagic sealing, instructions to cruisers to enforce the law; seizure of" British vessels and consequent renewal of protests by Great Britain.. Next the consideration by President Harrison and his Secretary of State, Mr. Blaine, of the grounds upon which the United States: defended their action in making these seizures upon Bering Sea, and the setting forth of those grounds in their full extent. The next step» in this stage was a renewal of the negotiation for a settlement between, the two Governments, the proposal by Sir Julian of a draft convention,, which contained the germ of a qualified and limited arbitration; next, the answer of Lord Salisbury to the arguments upon which Mr. Blaine had defended the conduct of the United States, and an attempt by him, as I have styled it,—perhaps that will not be agreed to by my learned friends on the other side—but an attempt, as 1 think, to avoid a discussion of the grounds upon which Mr. Blaine had undertaken to defend the position of the United States; next the introduction of this mattter of Eussian pretensions in Bering Sea; the Ukase of 1821; the treaties of 1824 and 1S25 ; and the question of what was meant by, and how much was included by,the phrase "Pacific Ocean", as it is used in both those treaties. Next the carrying forward of theproposal for arbitration and the reduction of the suggestion of a joint commission to distinct points, and an agreement in reference to them; and, last, a consolidation of the agreements into the treaty, creating this arbitration; the signing of that treaty, and its ratification by both powers. There is still another stage, but it is a very short one and briefly told. That is the third stage of the controversy, and has reference to the action of the two Governments under the treaty. The Commissioners were appointed upon both sides. They visited Bering Sea. They examined the condition of the rookeries there. They made such investigations as they chose to make, and were able to make, concernmg seal life. They, or some of them—the British. Commissioners, at least— 74 ORAL ARGUMENT OF JAMES C. CARTER, ESQ. went over to the sealing islands of Eussia on the Asiatic shore, and they examined the business of pelagic sealing, its nature, its tendencies, etc. The two sets of Commissioners came together; they attempted to agree; but they found themselves unable to agree, except upon one or two limited conclusions. They were agreed in this, that the numbers of the herd of seals which made its home upon the Pribilof Islands were in the course of diminution ; that such diminution was cumulative, that is, it was increasing, and that it was in consequence of the hand of man. There they stopped, and were unable to go any further. What the causes were which prevented them from being able to go an£ further in harmony are to my mind very plain, but this is not the moment at which I should state that. It is enough for the present purpose to say that upon all other matters they disagreed, and therefore the hopes of the two Governments of being able to unite in a convention in respect to regulations based upon an agreeing joint report of these commissioners, were disappointed, and it became necessary that the Arbitrators should be called together. This disappointment of hopes occurred a considerable period before the time when any step' was requisite in reference to the arbitration by either party. But this failure having occurred the arbitrators were appointed. The parties proceeded to frame their Cases and their Counter Cases and to exchange them, and to prepare their arguments for submission to the Tribunal; and here we are. . That, gentlemen, is, as well as I can state it, a concise account, although it has been a rather long one, of the various stages of this controversy, and I hope it will have tended in some degree to enable you to view the controversy in the lights in which, from time to time, the parties themselves have viewed it; and, therefore, to understand the precise questions which arise, the precise difficulties which are presented, better than you otherwise would. I shall, therefore, proceed with the next step in the argument of the Case. Senator Morgan. Mr. Carter, before you proceed, will you allow me to call your attention to some dates about which, possibly, there is some misunderstanding. I understand that these commissioners were in fact appointed before any convention was signed. Mr. Carter. Yes. Senator Morgan. They entered upon their Work and completed it so far as the investigation was concerned, before any convention was signed ; and when they made their report a convention had been signed, but it had not been ratified by either Government, and ratifications had not been exchanged. Mr. Carter. I am not able now to say what the fact was in that particular as to dates. Senator Morgan. I desire to present that, because it is in my judgment an important fact. I know it is a fact because the record shows it. Mr. Foster. They adjourned on the 4th of March, and the convention was ratified by the Senate on the 29th of March. Senator Morgan. The Commissioners completed their labors making their joint report and a separate report to each Government before the Senate of the United States acted upon that convention, and before ratifications were exchanged. Mr. Carter. I believe that to be so, but I "have not the dates. ORAL ARGUMENT OF JAMES C. CARTER, ESQ. " 75 Senator Morgan. Therefore, there was no treaty at the time they made that report. The President. But there was an arrangement between the Governments—precisely the arrangement which was signed afterwards, on the 18th of December, 1891. There was an arrangement made in June, 1891, if I remember, which you read us a few days ago, an arrangement in seven articles, providing for the joint commission to be sent out. That was not signed but it was an arrangement between the Governments. It was not signed or ratified, since it had not been submitted to the American Senate. Senator Morgan. The President does not seem to apprehend exactly that no arrangement made between the diplomatic functionaries of the United States and any other Government of the character mentioned here, has any effect whatsoever upon the laws of the United States until it has been ratified by the Senate; and the ratification took place not only after the arrangement was made, but after the report was made. The President. The 7th of May, 1892. Mr. Justice Harlan. The separate report of the British Commissioners was made June 1st, 1892, and the exchange of ratifications occurred May 7th, 1892. Senator Morgan. I refer to the joint report, after which, as I understand it, the Commission, as a Commission, was dissolved. And each of the Commissioners went on,whether rightfully or wrongfully, I am not prepared to say, to make subsequent thereto, their separate reports to their respective Governments. The President. That is perfectly correct. Mr. Carter. The statement by the learned Arbitrator is entirely correct. Senator Morgan. The Commission finally adjourned on the 4th of March. The ratification of the treaty was had on April 22d. Mr. Justice Harlan. The ratification ? Senator Morgan. The ratification by the Senate. Mr. Foster. It was proclaimed May 9th. Mr. Carter (reading). "Concluded at Washington, February 29th, 1892; ratification advised by the Senate, March 29th, 1892; ratified by the President, April 22d, 1892; ratifications exchanged, May 7th, 1892; proclaimed, May 9th, 1892". That is on the first page of volume I of the Appendix. Senator Morgan. It was proclaimed by the United States as an amended treaty, putting the treaty as originally ratified by the Senate and the modus vivendi which came in as a supplementary treaty or an amendment of a former treaty together, and constituting one instrument to be construed in pari materia. The President. That had no legal force, I suppose, before it was proclaimed in the United States. Mr. Carter. None at all. It could not have had, either in Great Britain or the United States. Mr. Phelps. There were also other amendments added by the Senate. Senator Morgan. There were two amendments of a distinct character, each to a subject not entirely foreign to, but independent of, the modus vivendi. Mr. Carter. In the view I had taken of it, the circumstances under which this Commission was appointed and proceeded to its labors prior to the ratification of the Treaty, is not of material importance. Senator Morgan. May be not. 76 ORAL ARGUMENT OF JAMES C. CARTER, ESQ. Mr. Carter. In the view I take of it, it may, or may not, be that that action was without strict authority. Whatever the truth is, however, this must be true—that the diplomatic representatives of the Governments had come to a formal agreement that this should be done. They had come to an agreement also in writing that this should be done, although that writing was not in a form making it a treaty. That is plain enough. It Was highly important that all of this preliminary work should be done as soon as possible. It was necessary in order to carry out the scheme contemplated by the treaty. It was all done by the parties in good faith, and I should hope that it would be allowed to be considered as having effect according to the intent of the parties. I should, indeed, myself be inclined to argue that the ratifications having been exchanged between the Governments with full knowledge that these proceedings had already been had beforehand, and that it was the design of the pending treaty that they should be had, that the ratifications of the treaty would have an effect, as we lawyers say, by relation, and go back and make good these prior proceedings which otherwise might have been invalid. Senator Morgan. If the learned counsel will allow me, that is precisely the view I take of the matter, that the subsequent ratification of these treaties, whether there are two or whether there is one, relating to the action of the Commissioners authorized by that diplomatic correspondence, is an adoption of what those Commissioners had done; but that operates upon what they had done, as I conceive, and it did not operate to give them any authority in future Mr. Carter. Oh no ; I should suppose not. But the view ' which is suggested by the learned Arbitrator is entirely in accordance with my own. I now pass to the next matter which, as it seems to me, in the order I have prescribed, it is proper for me to consider. This also is a question, somewhat preliminary to the argument of the main questions in controversy, but upon which it seems to me important that I should address a few observations to the Tribunal; and that question is as to the law which is to govern it in its deliberations. This is a Tribunal composed of the citizens of different nations, part belonging to the nations between whom the controversy subsists, and part coming from other nations. They are sitting under no municipal law whatever. The authority of the courts of Great Britain, the authority of the courts of the United States, as authority, are as nothing here. This is an international Tribunal. Then, too, there is no international legislature which has adopted any law in relation to these or any other subjects which can be administered or applied. Therefore, in a certain sense, and in the sense in which we speak of law when we are engaged in a controversy before municipal tribunals, there is no settled law at all. Yet we cannot suppose that questions of this sort are to be discussed, debated, and determined by this Tribunal, without its being bound by some rule or some system of law. What then is the law which is to govern us? I suppose I might appeal with entire confidence to the conscience and the immediate conviction of each one of the members of this Tribunal, that the decision of the controversy is to be governed by some rule of right. What that particular jrule may be, and where it is to be found, is another question; but the decision is to be governed by some rule of right. I heard with infinite pleasure my learned friend, Sir Charles Eussell, when he was addressing you upon one of the preliminary questions say that the first five questions mentioned in the treaty were what he might properly enough ORAL ARGUMENT OF JAMES C. CARTER, ESQ. 77 call, he thought, questions of right, and that they were questions of right which must be decided by the members of this Tribunal as jurists. I concur in that view of those questions thus taken by him and anticipate, indeed, that it will never be receded from by him. How else could it be? This is called an arbitration; but very plainly it is not an arbitration of that character which very frequently takes place between man and man. Oftentimes in controversies between individuals it is of far higher importance that the particular dispute should be in some manner settled and the parties left at peace, than low it shall be settled; and therefore in such cases the decision is often reached by some reciprocal process of concession, giving a little on one side and conceding a little on the other, and so on, until finally an agreement is reached without a resort to any particular principle. That is not the way to deal with this controversy. It is of a totally different character. If it could have been disposed of by mutual compromise and concession it would never have been brought to this Arbitration. The parties themselves could have settled it. They are quite competent to say how much they will be willing to yield, in order, by mutual compromise and concession, to finally reach a point upon which they can agree. But the difficulty in this case is that the parties were in difference in respect to their rights, and they could never come to an agreement upon them. They differed as to the question of the powers a nation may exercise upon the high seas in defence of its admitted rights of property in time of peace. They differed on the question whether the United States has a property interest in these seals, and in the industry which has been carried on in respect to them on the Pribilof Islands. Those differences they have never been able to reconcile. At variance with each other in respect to them at the start, subsequent discussion between the two parties has had the effect only of more widely separating them; and it is that controversy upon those questions of right which they have committed to your decision. The constitution of this Tribunal also imports that the questions are those of right. Why should a tribunal have been called together constituted of eminent jurists from several distinct nations unless it was intended that the rules of right should be applied? Why should provision have been made for counsel supposed to be learned in the law, and learned in the fundamental principles upon which the law is founded, unless it was supposed necessary to bring before the tribunal considerations of right in order to enable its members to make a decision. Indeed, how could counsel address this Tribunal unless it was supposed that there was a standard of right, acknowledged both by it and the counsel who address it, to which the latter could appeal and upon which they could endeavor to pursuade the Tribunal ? It is therefore very clear, as it seems to me, that the decision of this Tribunal is to be governed by some rule such as we understand to be a rule of right. Any other rule, I assume, would not be satisfactory to either party. It certainly would not be satisfactory to the United States. I think I may safely say that, however valuable this seal herd may be to the Government and to the people of the United States, a decision affirming their full and exclusive right to it made by this Tribunal, unless it were made upon grounds of right, would not be acceptable. It is of far greater importance to the United States, as it must be to every nation, that the decision of any controversies to which it may be a party should be determined upon principles of right, than it is to gain any mere temporary advantage not based upon such principles. 78 ORAL ARGUMENT OF JAMES C. CARTER, ESQ. There is another consideration : the principles which are involved in the controversy affect the most permanent, enduring, and wide-spread interests. Gertainly nothing can be more important than a determination of the question of the power which one nation may exercise against the citizens and the property of another nation upon the high seas in time of peace. This is a question—some aspects of it well enough settled, but other aspects of it quite novel—requiring additional exploration, additional elucidation, and additional determination. It is a question of the gravest and most important character, upon which differences of opinion may arise likely to embroil nations in hostilities and to break up the peace of the world. Then, again, that other question, the circumstances under which a nation may assert a right of property in animals that resort to the seas for a greater or less time during the year, and therefore an animal which at different times may place itself under the power of citizens belonging to different nations of the earth—what question of greater importance can there be than that which involves the principles upon which such conflicting claims maybe resolved—the fundamental principles upon which the institution of property itself stands? These are questions, the permanent importance of which far outweighs the particular interests of the contending parties to this controversy; and I must therefore express the hope that they will be settled as my learned friend says they ought to be settled, by this Tribunal, looking to them as jurists, and feeling the responsibilities of jurists. The judgment awaited from this Tribunal will be, or ought to be, a monument, or rather an oracle, to which present and future times may appeal as furnishing indisputable evidence of the law of the world. Therefore, I think myself justified on this occasion in appealing to each member of this Tribunal—I think it is not unbecoming in me to make that appeal—to discharge and dismiss from his breast every sentiment of partiality, and even of patriotism, and to look upon this question as if he were a citizen, not of this country, or of that country, but a citizen of the world, having in charge, and having only in charge, the general interests of mankind. The promptings of patriotism, everywhere else to be heeded, should be silenced here, and nothing should be obeyed except the voice, the supreme voice, of justice and the law. But while it is to be a rule of right that is to govern the determination of this Tribunal, what is that rule of right, and where is it to be found? In saying that it is to be a rule of right, it is assumed—it is indeed declared—that it must be a moral rule; that is to say, it must be a rule adopted by the moral sense; for there are no rules of right except moral rules. Eight and wrong have to do with morality and with morality alone. The law, whether it be international law, or municipal law, is but a part of the general domain of ethics. It may not include the whole of that domain, but the centres of each system coincide, although the circumference of one may extend beyond the boundaries of the other. When I say that the rule must be a moral rule, that is to say, a rule dictated by the moral sense, I do not mean, of course, that it is the moral sense of any individual man, or of any individual nation, because there are differences in the moral convictions of different men and of different nations. It is a controversy between nations. We cannot apply to it the moral standard, either of one, or bf the other, or of any particular natipn. Where, then, can we find it? I submit to you that we must find the rule in that general moral standard upon which all civilized nations, and the Deople of all civilized nations, are agreed. >RAL ARGUMENT OF JAMES C. CARTER, ESQ. 79 We cannot take the opinions of one; we cannot take the opinions of another. We must take that standard upon which all civilized nations are agreed ; and that there is such a standard there can be no manner of doubt. This whole proceeding would be out of place if there were not. I could not with any propriety stand up and address an argument to this Tribunal unless there was some agreed standard between it and me to which I could appeal, and upon which I can hope to convince. There is, therefore, an agreed standard of morality and of right, of justice and of law, agreed upon among all civilized nations and among the people of all civilized nations. It is just, as it is in municipal law. There is a standard there. When controversies are brought before a municipal tribunal, it is most generally the case that there is no particular statutory law which governs the decisions; and it is very often, and perhaps generally, the fact that there is no particular prior decision, or precedent, which will serve as a rule of decision; and yet the courts make a decison. How are they enabled to reach it? They reach it through the exercise by the judges of their function as judicial experts whose business it is to ascertain the general standard of justice of their own country and to apply it to the controversies which are brought before them. The general standard of justice in a municipal society is so much of the general rules of morality and ethics as that particular society chooses to enforce upon its members. So, also, in the larger society of nations, there is a similar rule. There is a general international standard which embraces so much of the principles of morality rnd ethics as the nations of the world agree shall be binding upon them. That is international law, founded upon morality, founded upon that sentiment of right and wrong implanted in the breasts of men wherever they are. It is this alone which enables them to live in society with each other; it is this alone which enables them to live at peace with each other; and, therefore, the rule which this Tribunal is to adopt is the general standard of justice recognized by the nations of the world, which! conceive to be only another term for international law. The President. Mr. Carter, if you please, we will continue tomorrow. Before rising, I beg leave to state that the Tribunal intends taking a somewhat longer recess to-morrow. It will take its recess from one o'clock until two, which is an exception to our usual practice. [The Tribunal thereupon adjourned until to-morrow, April 14,1893, at 11.30 o'clock a. in.] NINTH DAY, APRIL 14™, 1803. [The Tribunal met pursuant to adjournment.] The President. Mr. Carter, if you will continue your argument we will be pleased to hear you. Mr. Carter. Mr. President, at the close of the sitting yesterday, I was speaking tp the point of what law shall govern the deliberations and the determination of this Tribunal, and I had, in the course of my argument upon that point, undertaken to show that the rule which should govern must be some rule of right, and therefore a moral rule, founded upon moral considerations; not necessarily the moral rule which governs the jurisprudence of England and the United States, even if they should happen to coincide, but that moral rule which is generally recognized by the civilized nations of the world; that general standard of justice—that international standard of justice—which is universally recognized, and which is only another name for international law. International law, therefore, is the rule which is to govern the deliberations of this Tribunal and to determine its decision. What are the sources to which we are to look for this international law? For the most part international law is derived from, and is determined by, what is called the law of nature, a term very common with the writers on international law. It is called the law of nature, partly because it is a code, so far as it may be called a code, not derived from legislation, having no origin in any sovereign legislature—for there is no such legislature— not derived from human institution at all, but founded in the nature of man and in the environment in which he is placed. It is an absolute necessity of human society, without which it could not exist, that there should be a moral rule by which the actions of its individual members in relation to each other should be governed. This is true of all municipal states, and it is equally true of the larger society of nations. There could be no intercourse among nations; there could be no intercourse between individuals of different nations, unless there was some rule, some law, which would be recognized by them and by which their transactions with each other should be governed. And in respect of the great society of nations which is subject to no sovereign power, that law or rule is, for the most part, what is commonly called the law of nature. This is, indeed, the foundation, not only of international law, but it is the foundation of all law, municipal as well. All municipal codes are but attempts on the part of particular societies of men to draw precepts and rules from the law of nature, and re-enact them for the guidance of its individual members; and in those countries which are not governed wholly by codes or by statutory enactments; in those countries like England and America, where the great body of jurisprudence is unwritten, still the decisions of the tribunals which constitute the sources and the evidence from which the law is ascertained, are derived in great part from the law of nature. ORAL ARGUMENT OF JAMES C. CARTER, ESQ. 81 I must fortify what I say in this particular by a reference to some of the highest authorities on the subject. I shall read a quotation from the celebrated disquisition of Sir James Macintosh on the Law of Nature and Nations. He says: The science which teaches the rights and duties of men and of states bas in modern times been styled "the Law of Nature and Nations." Under this comprehensive title are included the rules of morality, as they prescribe the conduct of private men towards each other in all the various relations of human life; as they regulate both the obedience of citizens to the laws, and the authority of the magistrate°in farming laws and administering governments: and as thev modify the intercourse of independent commonwealths in peace and prescribe limits to their hostility in war. This important science comprehends only that part of private ethics which is capable of being reduced to fixed and general rules. He thus points out the law of nature as the source of all human jurisprudence, whether municipal or international; and Lord Bacon had before expressed the same truth; he says: For there are in nature certain fountains of justice, whence all civil laws are derived but as streams, and like as waters do take tinctures and tastes from the soils through which they run, so do civil laws vary according to the regions and governments where they are planted, though they proceed from the same fountain. This law of nature, as it is styled, is sometimes designated by different terms. Sometimes as natural law; sometimes as natural justice; sometimes as the dictates of right reason; but by whatever name it is described, the same thing is always intended; and it means, in short, those rules and principles of right and wrong, implanted in every human breast and which men recognize in their intercourse with each other, because they are men, having a moral nature and are brought into relations with each other which compel the application of moral rules. I may cite a great authority which all English lawyers are compelled to study at the very beginning of their instruction. That is Blackstone. He says: This law of nature being coeval with mankind, and dictated by God himself, is, of course, superior in obligation to any other. It is binding over the globe, in all countries, and at all times ; no humau laws are of any validity if contrary to this, and such of them as are valid derive all their force and all their authority, mediately or immediately, from this original. (Comm. Book I, p. 41.) And the dependency of all law upon the law of nature is very happily and clearly illustrated by those three great maxims which constitute the basis of the jurisprudence of the Boman law, sometimes called the Ulpianic precepts. They amount simply to a reduction to their simplest form of the dictates of natural justice, or of natural law,— and they are fchus familiar to every lawyer : " Juris prœcepta sunt hœc : 'honeste vivere, alterum non lœdere, suum cuique tribuereP Some writers have been sometimes inclined to dispute the authority of this law of nature, on the ground that there is no supreme power capable of enforcing its precepts; they say that nations are themselves supreme; and being supreme and sovereign there is no power over them; and no power, therefore, to enforce the dictates of this law, as there is to enforce thé rules of municipal law upon the individual members of a municipal state. But that notion, I think, is a mistake, and has generally been agreed to be a mistake. It does not follow because there is no supreme authority to enforce the dictates of this law that it is any the less binding. There are plenty of considerations which do enforce it. It is enforced, in the first instance, by the sense of right an d wrong which dwells in the breasts of nations, as it does in the breasts of individuals. The very sense of obligation is of itself a means of enforcing the law. It is enforced, in the next place, by the public 82 ORAL ARGUMENT OF JAMES C. CARTER, ESQ. opinion of mankind, which holds to a strict account every nation that undertakes to depart from, or violate, its dictates; and it is enforced, in the next place,"by the disastrous consequences which nature herself has ordained and made certain to follow from any disobedience of her precepts. This has been well expressed by- a distinguished English writer upon international law. I refer to Sir Eobert Phillimore. He says: It is sometimes said that there can be no law between nations, because they acknowledge no common superior authority, no international executive capable of enforcing the precepts of international law. This objection admits of various answers : First, it is a matter of fact that states and nations recognize the existence and independence of each other, and out of a recognized society of nations, as out of a society of individuals, law must necessarily spring. The common rules of right approved by nations as regulating their intercourse are of themselves, as has been shown, such a law. Secondly, the contrary position confounds two distinct things, namely, the physical sanction which law derives from being enforced by superior power, and the moral sanction conferred on it by the fundamental principle of right; the error is similar in kind to that which has led jurists to divide moral obligations into perfect and imperfect. All moral obligations are equally perfect, though the means of compelling their performance is, hninanly speaking, more or less perfect, as they more or less fall under the cognizance of human law. In like manner, international justice would not be less deserving of that appellation if the sanctions of it were wholly incapable of being enforced. But irrespectively of any such means of enforcement the law must remain. God has willed the society of States as He has willed the society of individuals. The dictates of the conscience of both may be violated on earth, but to the national as to the individual conscience, the language of a profound philosopher is applicable: " Had it strength as it had right, had it power as it has manifest authority, it would absolutely govern the world". Lastly, it may be observed on this head, that the history of the world, and especially of modern times, has been but incuriously and unprofitably read by him who has not perceived the certain Nemesis which overtakes the transgressors of international justice; for, to take but one instance, what an " Iliad of woes" did the precedent of the first partition of Poland open to the kingdoms who participated in that grievous infraction of international law ! The Roman law nobly expresses a great moral truth in the maxim, " Jurisjurandi contempta religio satis Deum habet nlto- rem". The commentary of a wise and learned French jurist upon these words is remarkable and may not inaptly close this first part of the work : " Paroles (he says) qu'on peut appliquer également à toute infraction des lois naturelles. La justice de l'Auteur de ces lois n'est pas moins armée contre ceux qui les transgressent que contre les violateurs du serment, qui n'ajoute rien à l'obligation de les observer, ni à la force de nos engagements, et qui ne sert qu'à nous rappeler le souvenir de cette justice inexorable." (Phillimore's International Law, Third Edition, London, 1879, vol. I, section lx.) And let me cite another extract which I had noted from Sir James Macintosh, and from the same disquisition to which I have already referred : The duties of men, of subjects, of princes, of lawgivers, of magistrates, and of states, are all parts of one consistent system of universal morality. Between the most abstract and elementary maxims of moral philosophy, and the most complicated controversies of civil and public law there subsists a connection. The principle of justice deeply rooted in the nature and interests of man pervades the whole system and is discoverable in every part of it, even to the minutest ramification in a legal formality or in the construction of an article in a treaty.—(Sir James Macintosh, Discourse on the Law of Nature and Nations, sub fine.) And Mr. Justice Story says in his book on the Conflict of Laws, Oh. II, Sec. 35: The true foundation on which the administration of international law must rest is that the rules which are to govern are those which arise from mutual interest and utility, from a sense of the inconveniences which would result from a contrary doctrine, and from a sort of moral necessity to do justice in order that justice may be done to us in return. ORAL ARGUMENT OF JAMES C. CARTER, ESQ. 83 The same great authority when sitting as a judge in the case of La Jeune Eugénie, in the second of Mason's Eeports, p. 449, says: , But I think it may be unequivocally affirmed that every doctrine that mav be S^^mOTalJbM^n^nïfeSScâe'right? aBd d!ltt?8 of nations and the and, unless it be relaxed or waived by the consent of nations1) wMch^ma^be'erf- denced by their general practice and custom, it may be enforced by a court of justice The main foundation of international law is, therefore, the law of nature, and it is a system not evidenced by any written code, but is a body of moral rules. But it is a body of moral rules, at the same time, as to all the particulars of which men are not absolutely agreed. There are differences in the moral convictions of different men, and there are differences m the moral convictions of the same people and the same nation at different periods of time. Law is a progressive system advancing step by step with human progress, and it is constantly aspiring, as it were, to reach a more complete harmony with theoretical moral rules. We cannot, therefore, in applying international law apply those moral rules which we ourselves may deduce from our study of moral precepts. Others may not agree with us; but still there is a great body of plain and simple moral rules to which all men, and all nations, may safely be presumed to agree, and to that extent we may enforce them. It is, nevertheless, true that in human jurisprudence the actual doctrines which are enforced upon the individuals of a municipal state, or which are yielded to and recoguized by nations, do not always come up to the elevated standard of the law of nature. That is a system of very high standards, not at all times actually recognized in the practice of men. Where these standards do thus stand above the actual practice of men, what we have to enforce,—as we can enforce only what is agreed upon,—is the rules so far as they are actually recognized. That truth has been rather strikingly illustrated in the case of the slave trade. Very few enlightened men could be found who would not say that the slave trade was essentially and absolutely wrong. Very few could be found who would not say that it was absolutely contrary to the law of nature; but is it against human law? Few of the nations of the world had, until recently, so far recognized the pure and true, principles of natural law as to carry them out to the consequence of forbidding the slave trade. That question has arisen judicially before several tribunals. It arose in the Supreme Court of the United States, and called for the consideration of Chief Justice Marshall. The question was whether the Supreme Court of the United States could execute a municipal law, which declared the slave trade to be piracy, as against the citizens of another nation. He held that the slave trade was undoubtedly against the law of nature, but at the same time, taking into consideration the extent to which the nations of the earth had been addicted to the practice, he said it was impossible to declare that it was against the law of nations ; and he, therefore, held that a municipal law of the United States declaring the slave trade to be piracy could not be executed against the citizens of another nation. A similar decision upon similar grounds was made by a distinguished English judge, equally illustrious. I refer to Lord Stowell. Where, then, are we to look for the evidence which is to enable us to ascertain what the law of nations is in any particular case? First, let me say, to the actual practice and usages of nations; for the practice and usages of nations must evidence the points upon which they are agreed; and where the practice and usages pf nations speak we need 84 ORAL ARGUMENT OF JAMES C. CARTER, ESQ. look no further. But the practice and usages of nations speak in bul a comparatively few cases. They really cover but à very small part ol the questions which arise, and of the still larger number of questions which, by possibility, may arise, and which at sometime or other certainly will arise, in the intercourse of nations. In the municipal law oi states the case is otherwise. Particular states have a regular establishment of courts. They employ a regular body of experts called judges. The controversies between man and man are innumerable, and they have been arising for thousands of years. Therefore, the science oi justice and the law of nature, so far as it is applicable to the relations between individual men, have been so assiduously cultivated in municipal law that we may say there is scarcely a point which remains still to be determined. In international law it is otherwise. The points in which nations come into connection with each other, or into collision with each other, are comparatively few, and therefore the occasions for the study, the development and the application of the law of nations have, in the course of history, been comparatively few. For the most part, therefore, when new questions arise we are referred at once to the law oi nature, which is the true source upon which the whole system of the law of nations rests; and there we are entitled to look to and to take as law, the plain deductions of right reason from admitted principles, unless we find that those plain deductions have, somewhere or somehow, been disavowed by the nations of the earth in their actual intercourse with each other. I desire to read one or two more extracts from writers of eminence upon international law, in corroboration of the views which I have just expressed. I read a passage from Mr. Pomeroy, a distinguished American writer, once the head of the law school.of the University of California. He says (Lectures on International Law, ed. 1886, ch. I) : Sec. 29.—(3) What is called international law in its general sense, Ï would term international morality. It consists of those rules founded upon justice and equity, and deduced by right reason, according to which independent states are accustomed to regulate their mutual intercourse, and to which they conform their mutual relations. These rules have no binding force in themselves as law; but states are more and more impelled to observe them by a deference to the general public opinion of Christendom, by a conviction that they are right in themselves, or at least expedient, or by fear of provoking hostilities. This moral sanction is so strong and is so constantly increasing in its power and effect, that we may with propriety say these rules create rights and corresponding duties which belong to and devolve upon independent states in their corporate political capacities. Sec. 30.—"We thus reach the conclusion that a large portion of international law is rather a branch of ethics than of positive human jurisprudence. This fact, however, affords no ground for the jurist or the student of jurisprudence to neglect the science. Indeed, there is the greater advantage in its study. Its rules are based upon abstract justice; they are in conformity with the deductions of right reason; having no positive human sanction they appeal to a higher sanction than do the precepts of municipal codes. All these features clothe them with a nobler character than that of the ordinary civil jurisprudence, as God's law is more perfect than human legislation. The observations of Mr. Pomeroy that these rules have no binding force in themselves as law is not a very correct statement. In my view they have in themselves a binding effect as law at all times and all places; and as Mr. Justice Blackstone says, greater in one sense, at least, than any human law. This view was taken by the Government of Great Britain in a celebrated paper, drawn up, I think, by Lord Mansfield himself, which was a response to a memorial by the Prussian Government, a paper which was pronounced by Montesquieu to be ORAL ARGUMENT OF JAMES C. CARTER, ESQ. 85 réponse sans réplique, and has been generally recognized as a very just statement. I am reading now from the 12tli page of my argument: The law of nations is said to be founded upon justice, equity, convenience, and the reason of the thing and confirmed by long usage. And Chancellor Kent has spoken to the same point with great clearness (Comm., part I, lect. 1, p. 2-4) : The most useful and practical part of the law of nations is, no doubt, instituted or positive law, founden on usage, consent, and agreement. But it would be improper to separate this law entirely from natural jurisprudence and not to consider it as deriving much of its force and dignity from the same principles of right reason, the same views of the nature and constitution of man, and the same sanction of divine revelation, as those from which the science of morality is deduced. There is a natural and a positive law of nations. By the former every state, in its relations with other states, is bound to conduct itself with justice, good faith, and benevolence; and this application of the law of nature has been called by Vattel the necessary law of nations, because nations are bound by the law of nature to observe it; and it is termed by others the internal law of nations, because it is obligatory upon them in point of conscience. We ought not, therefore, to separate the science of public law from that of ethics, nor encourage the dangerous suggestion that governments are not so strictly bound by the obligations of truth, justice, and humanity, in relation to other powers, as they are in the management of their own local concerns. States or bodies politic are to be considered as moral persons, having a public will, capable and free to do right and wrong, inasmuch as they are collections of individuals, each of whom carries with him into the service of the community the same binding law of morality and religion which ought to control his conduct in private life. The law of nations is a complex system, composed of various ingredients. It consists of general principles of right and justice, equally suitable to the government of individuals in a state of natural equality and to the relations and conduct of nations; of a collection of usages, customs, and opinions, the growth of civilization and commerce, and of a code of conventional or positive law. In the absence of these latter regulations, the intercourse and conduct of nations are to be governed by principles fairly to be deduced from the rights and duties of nations and the nature of moral obligation; and we have the authority of the lawyers of antiquity, and of some of the first masters in the modern school of public law, for placing the moral obligation of nations and of individuals on similar grounds, and for considering individual and national morality as parts of one and the same The law of nation equally binding in e1 And a French writer, Hautefeuille, has spoken to the same point (Des Droits et des Devoirs des Nations Neutres en Temps de Guerre Maritime, 1848, vol. I, Translation) : He (God) has given to nations and to those who govern them a law which they are to observe towards each other, an unwritten law, it is true, but a law which He has taken care to engrave in indelible characters in the heart of every man, a law which causes every human being to distinguish what is true from what is false, what is just from what is unjust, and what is beautiful from what is not beautiful. It is the divine or natural law ; it constitutes what I shall call primitive law. This law is the only basis and the only source of international law. By going back to it, and by carefully studying it, we may succeed in retracing the rights of nations with accuracy. Every other way leads infallibly to error, to grave, nay, deplorable error, since its immediate result is to blind nations and their rulers, to lead them to misunderstand their duties, to violate them, and too often to shed torrents of human blood in order to uphold unjust pretensions. The divine law is not written, it has never been formulated in any human language, it has never been promulgated by any legislator; in fact, this has never been possible, because such legislator, being man and belonging to a nation, was from that very fact without any authority over other nations, and had no power to dictate laws to them. International law is, therefore, based upon the divine and primitive law ; it is all derived from this source. By the aid of this single law, I firmly believe that it is not only possible, but even easy, to regulate all relations that exist or may exist among the nations of the universe. This common and positive law contains all the rules of justice; it exists independently of all legislation, of all human institutions, and it is one for all nations. It governs peace and war, and traces the rights and duties of every position. The rights which it gives are clear, positive, and absolute; L 86 ORAL ARGUMENT OF JAMES C. CARTER, ESQ. they are of Such a nature as to reciprocally limit each other without ever coming into collision or contradiction with each other; they are correlative to each other, and are coordinated and linked with the most perfect hannony. It can not be otherwise. He who has arranged all the parts of the universe in so admirable a manner, the Creator of the world, could not contradict himself. And a learned Dutch writer, Ferguson, has spoken very much to the point. He says (Manual of International Law, 1884, vol. I, part I, ch. Ill, sec. 21): Investigating thus this spirit of law, we find the definition of international law to consist in certain rules of conduct which reason, prompted by conscience, deduces as consonant to justice, with such limitations and modifications as may be established by general consent, to meet the exigencies of the present state of society as existing among nations and which modern civilized stales regard as binding them in their relations with one another, with a force comparable in nature and degree to that binding the conscientious person to obey the laws of his country. And I remember, although I have not cited here, the way in which the same question has been regarded by the English philosopher, John Locke, illustrious all over the world, in his treatise on Civil Government. He had occasion to consider what the law of nature is, and he defines it to be that law which men would observe and enforce uponeach other if they lived in a state of nature, and without any human government whatever. In such a government as that, he says, and anterior to human governments, men still enforced against each other a law. They could not appeal to any supreme authority to enforce it against others, and the consequence was they enforced it themselves. If the rights of a man living in such a condition were violated, he asserted his rights and defended himself by his own arm. That might be said to be the employment of force and to be held divorced from right; but not quite so. The man who has justice on his side always has a supreme advantage, and, therefore, if there is no supreme authority over him to which he can appeal for justice against his neighbor he may be permitted to enforce it himself, and does enforce it himself. A very large part of the enforcement of that sort of justice still remains among men, notwithstanding the societies into which they have entered. The right of self-defence is an instance. If I am attacked by a man I have a right to defend myself, and I do so. If a man intrudes upon my property I have a right by my own arm, without appealing to any tribunal, to thrust him off it, and I do so. Those are the same modes of enforcing justice and protecting rights which men Avould exercise if there were no governments at all. Mr. Locke then deals with the suggestion, which, he says, will be made, that this state of nature is a mere imagination which never has existed, and never is likely to exist, and that consequently it is idle to inquire what rights men would have in a state of nature, or what means they would t have of enforcing them. To which he makes the pertinent answer that all princes, kings, and sovereign states are now, and ever have been, and always must be, living in a state of nature, and have no other way of enforcing justice or determining rights than individuals would have if there were no government over them. These observations all tend to show, and I think, conclusively, show, that there is an unwritten law everywhere in operation which enables us to determine in any given case what the rights of nations are as between each other in respect to property, or in respect to any other relation which may be drawn in question, a law which "though not written upon tables of stone, or promulgated amid the thunders of Sinai, is nevertheless binding upon the conduct and consciences of nations and of men." ORAL ARGUMENT OF JAMES C. CARTER, ESQ. 87 When we look to the more particular sources from which we are to derive knowledge of that law, I think they are these: First, the actual practice and usages of nations; and these are to be learned from history, in the modes in which the relations and intercourse of nations with one another are conducted, in the acts commonly done by them without objection from other nations, in the treaties which they make with each other—although these should be considered with some degree of caution, for they are sometimes exacted by a more powerful from a weaker nation, and do not always contain the elements of justice. And this practice and these usages are also to be found in the diplomatic correspondence between nations, which assert principles on one side that meet with acquiescence on the other. Another source from which we may ascertain the actual practice and usages of nations is from the judgments of those courts which profess to administer the laws of nations,—such as prize tribunals, which are sometimes called international tribunals, although, strictly speaking, they are not such. When these sources fail to discover the rule by which we are to be bound, we must look to the great source from which all law flows; that is to say, natural law, the dictates of right reason, or what is best termed, perhaps, the law of nature. Let me call attention to one most useful source to which we may look for ascertaining what the law of nature is, and which is not so commonly pointed out, I think, by writers. I mean the municipal law. If we want to know what the law of nature is upon any given subject, the municipal law is a prime source of information; and it is so because municipal law is founded upon the law of nature, and has been cultivated in every civilized state, as I have endeavored to point out, most assiduously for a thousand years by learned experts, either jurisconsults, or judges. The efforts of such men extending over such along period of time, in inquiring and determining what justice is in multitudes of cases, are a mode of cultivating the system of the law of nature. We know what rules are prescribed by the law of nature from the results of their inquiries; and, therefore, when any question of right arises between nations similar to those questions of right which arise in municipal jurisprudence, the municipal jurisprudence of the several states of the world, so far at least as it is concurring, seems to me to be a prime source of knowledge. And, finally, in all cases where we are to seek a knowledge of the dictates of the law of nature, the authority of the jurists, from Grotius, the great master of the science, down through succeeding writers, to those of the present day—a very numerous body of very illustrious men, given to ethical studies and to a consideration of the great relations of independent states with each other—constitutes a source of information always respected by judicial tribunals. That, Mr. President, closes what I have to say in reference to the law which is to govern the determination of the Tribunal; and I am -happy to believe that upon this branch of the controversy, at least, I am to anticipate no substantial disagreement from my learned friends upon the other side. I think the subject hardly admits of a difference of opinion; and from what has already fallen from some of them, I anticipate a concurrence. Sir Charles Eussell. My learned friend must not assume that. Mr. Carter. Then let that be considered as unsaid. I am apprised that there may be differences, and I shall listen with some degree of interest to a statement of what those differences are, and to the grounds upon which they may be based. 88 ORAL ARGUMENT OF JAMES C. CARTER, ESQ. I now approach the consideration of that question which, in the order adopted by the Treaty, seems properly to be the first to engage our attention, That has reference to the rights which may have been gained by Eussia over the regions in connection with which this controversy has arisen, and the rights which consequently the United States may have derived from the act of cession of the Alaskan territory by Eussia to the United States. When I was giving a historical sketch of the origin of this controversy I very briefly alluded to the region of Bering Sea and to the early discoveries and acquisitions of Eussia in that quarter of the globe, but I ought, perhaps; to call attention to some of the details which it was not important for me then to give. The maritime enterprise and ambition of Eussia, withholding its exercise from the more fruitful and agreeable quarters of the globe, . were exerted in these high northern latitudes on the coasts of Asia and North America. The discoveries of Eussian navigators in that region began at a very early period. As early as 1648 a voyage was made from the Arctic Ocean, from the northern shores of Siberia, around through Bering Straits, and along the eastern coast of Siberia. That was as early as 1648, and at about the same time there was a discovery of the North American continent near the mouth of the Tukon Eiver, on the other side of Bering Sea. The President. Was not Siberia in possession of Eussia? Mr. Carter. So far as it could be in the possession of any power, I think it can be said that as early as that period it was in the possession of Eussia. In the year 1728 Bering made his voyage through the Straits to which his name was afterwards given. He made a second voyage in 1741, and in that voyage he discovered the eastern shore of the Sea, and also a large number of the Aleutian Islands. He discovered also the Commander Islands, which are the breeding place of the Eussian seals; and it was upon one of those islands that he was shipwrecked. This discovery of the Commander Islands by Eussia gave them a knowledge of the herd of fur-seals which visited that spot, and enabled them to turn that source of wealth to the benefit of man. During this period, and subsequent to the voyages which I have mentioned, there were other very numerous Eussian voyages in Bering Sea and along the Aleutian chain, and in the course of them it was discovered that there were vast bodies of seals at certain periods of the year migrating North, and at certain other periods migrating South. Their migrations North were more noticeable, because it is in those migrations that they are more together; and from the knowledge the. Eussians had already acquired of the habits of seals around the Commander Islands, they had every reason to believe that there was, North of the Aleutian Islands, through the passes of which they saw them taking their course, some remote region which they made their breeding ground. As I had occasion to state, the discovery of that unknown region was one of the great purposes of Pribilof, an enterprising Eussian navigator, and he finally, after many attempts, made the discovery. The President. You mean to say Pribilof's expedition was mainly designed on account of the seals,—that he, at that period, was looking out for the seals ? Mr. Carter. He was. He had been looking out for the breeding place of those seals which he had observed making these migrations to the northward. It was a distinct object with him, and he finally satisfied his ambition and made the discovery. ORAL ARGUMENT OF JAMES C. CARTER, ESQ. 89 At a later period, Eussian navigators also explored the region south of the peninsula of Alaska, and down as far, certainly, as the 54th degree .of latitude, and as the Eussian authorities at the time claimed, down -as far as the 51st degree of latitude ; along this coast (here indicating on the map), which I call the Northwest Coast. When I speak of the "Northwest Coast", without saying more, I mean that particular coast .south of the '60th degree of North latitude, and extending down over the whole of the Eussian possessions, and of British America. A few words as to the characteristics of those regions. In the first place, they were one and all absolutely incapable of agriculture. No- such pursuit was possible upon them. In the next place, they were at that time almost uninhabited. Scattered tribes of natives, Esquimaux,, were to be found nearly as high up as the Bering Straits; and I suppose, also, at other places farther South. Some of the Aleutian Islands were inhabited by native races called Aleutians, and this more southern! shore and the islands were inhabited to a still greater extent by several different tribes of Indians. On the Siberian coast there were very few inhabitants, I mean in its more Northern parts. As there were no agricultural products, we may ask what other products were there. They were rich in one thing, and in only one thing,. ' and that was fur-bearing animals. There were sea otters^ seals, and many other animals, valuable for their skins, and at this early period,, that was substantially the only product of these whole regions which was of any value to man. Subsequently, of course, fisheries were developed; but at that early period there was no product of these regions valuable to man except animals, which were valuable on account of their skins. How could this sole product of that region be gathered and turned to human purposes? It was only by employing the instrumentality of the natives who were from time to time engaged in the pursuit of these animals, and visiting them upon frequent, or upon stated, occasions for the purpose of taking such store of the skins as they had previously gathered, and giving by way of exchange and return such articles as the natives might be in need of. That was the only way in which the only product of these regions could be turned to human account; and that involved the necessity of having trading establishments at various points along the coast, and the furnishing of a certain number of vessels sufficient to carry the subjects of the commerce backwards and forwards. It required, also, the protecting arm of the Eussian Government to defend the trading establishments thus formed. Such establishments were principally—and the largest of them—on the islands and shore of this Northwest Coast. There is where the most important of them were first placed. There was at an early period at least one establishment as high to the northward as where the pointer rests now (indicating on map), and perhaps others along that coast; but as I now remember, I think not at that very early period. The Pribilof Islands were not inhabited for a very considerable time after their discovery. They were uninhabited when found. The population finally inhabiting them was carried thither from some of the Aleutian Islands. Let me, in the next place, remark that according to the ideas of that age and of that time, prior discovery gave to a nation the right and title to the new regions which it had discovered. Ever since the discovery of Columbus had revealed to the European nations the existence of a new world, the ambitions of the different nations of the world, or of many of the different nations of the world, were greatly excited in turning these various discoveries to account. There were likely to be, 90 ORAL ARGUMENT OF JAMES C. CARTER, ESQ. and there were, as we know from history very well, conflicting claims arising out of an asserted priority of right; and those conflicting claims were often the subject of discussion between different Governments. It was necessary that some rule should be established by which priority of right should be determined; and the rule eventually established was the one which men would necessarily recognise if there was no other thing to give priority,—and that was priority'of discovery. That came to be universally recognized as a just foundation for a right. If, indeed, the prior discovery were subsequently abandoned, it might go for nothing; but unless it was abandoned, if discovery had been made, if an assertion of title had accompanied it, and an intention to appropriate the region— The President. And taking possession? Mr. Carter. And intention to take possession. It was not necessary to take actual possession, at first. That would not be possible in many cases; but if the intention existed to take actual possession, and that intention were carried out within a reasonable period, and not abandoned, the full and complete foundation of a right was laid. How far did such a right extend? A nation discovers some part of the Atlantic Coast of the United States. Could it claim the whole Atlantic Coast upon the basis of that mere discovery? How great a strip of the coast does a discovery of one particular part of it entitle the nation which has made the discovery to claim? Could she say: "I will coast with vessels along this shore for a thousand miles or two thousand miles, and claim the whole of it on the strength of that?" That was one of the questions. Then again: How far inland does the right thus founded upon prior discovery extend? That was another question. Could a nation that had seen and observed a particular point on the coast of a continent extend its title indefinitely to the interior and perhaps to the ocean on the other side of it? Those questions were never fully settled ; but there was an approach to a settlement, and I think it was generally recognized that so much of a coast could be claimed by a discovering nation as it was in the power of that nation to fairly occupy. So much for the coast. Then as to the interior. A discovering nation was entitled to carry back her claim into the interior as far as the rivers which emptied upon the coast to which she was entitled could be followed. That was a sort of general rule, having some recommendations in point of reason, which was asserted and to a certain extent recognised by the nations at the time. Of course, the right of a nation in respect to the extent of territory which it could claim title to could not be limited to the mere pointwhich it had discovered. Great Britain asserted that she had discovered the whole Atlantic Coast of the North American continent, from Nova Scotia at the North, down to Florida at the South. I leave out of view now the controversy between Great Britain and Holland which affected that portion of the coast in which New York is situated, the title of Great Britain being finally vindicated to that. But she claimed, you may say, the whole Atlantic Coast in virtue of the right of prior discovery. Had she many establishments upon that coast at an early period ? No ; not half a dozen of them. That whole space, an extent of 3,000 miles or more, was asserted by Great Britain to be hers in virtue of no other title than a right of first discovery, and an occupation in half a dozen different places along the coast. Eussia, in making her discoveries of both shores of the Bering Sea, of the islands of the Bering Sea, and of the Northwest Coast down to the 54th or 50th degree of north latitude claimed and asserted a sovereign right and dominion to the whole of the territories thus discovered, Alaskan shore of Bering Sea^everal ofThmnm" the NorLw^tGoasL south of the peninsula of Alaska, and more or less of them — I do not know how many—upon the Siberian coast. Her title, therefore, was based upon an undisputed prior discovery, and upon an undisputed occupation, so far as those few establishments could give an occupation of the whole region. Did they give a fair occupation of that whole region? That is a question which it is proper to consider here. Was this a reasonable assertion by her of dominion over that vast region? Could she fairly claim to exclude other nations of the globe from a participation in the benefits of that discovery on the ground of her prior discovery, and the limited occupation which she had thus made? Was that a fair and reasonable claim? Possession of everything must, of course, correspond to the nature of the thing. If a nation had discovered somevery fruitful part of the globe,—the West Indies,for instance, the more southern parts of the United States,—and had attempted to lay a claim to a thousand miles of the coast, upon thé mere basis of an occupation at one point, it might be deemed very unreasonable. Other nations might come in, and say: "You are not fairly improving the discovery you have made. Here is a coast capable of cultivation, capable of extensive settlements, capable of supporting a numerous population, capable of enormous production. You are not putting.it to the uses and purposes for which nature intended it; you are leaving it in a wild and desolate condition; you are improving only a small portion of it; and yet you assume to shut out the rest of mankind from the benefits of it on the basis of that very small and limited occupation. That is not just or right, and you shall not be permitted to do it." Assertions of that character were made at this time, and the justice of them was quite apparent. How was it with this northern region? It had, as I have already said, but one product, and that was these fur- bearing animals. That one product was extremely limited, exhaustible in its character, and could be fully reaped and gathered by one ' nation. All that it was'necessary to do to gather the product of this enormous region was to establish a few trading posts, which should be the centres of commercial establishments, and out from which vessels could go along the coast, from time to time, to gather from the natives the stores of skins they had collected. In that way the entire product of this whole region could be reaped easily by one power, and there was not enough for more than one. The President. If you please, we will rise here, and resume the hearing at 2 o'clock. [The Tribunal thereupon took a recess for an hour.] Mr. Carter. I was speaking, Mr. President, at the time the Tri-. bunal rose in reference to the nature of the occupation which it was -necessary that a nation should take in order to make good the title founded upon first discovery of a new region. And I had said that the nature of that occupation must depend upon the nature of the of the globe might be sufficient to make good a titleto but a very limited portion, in other portions of the globe they might be sufficient to make a title to a very considerable region of the earth. Now, I wish to apply those views to this Bering Sea region, which was the great : theatre of Eussian enterprise, and to show, upon all the prinerplearee- 92 ORAL ARGUMENT OF JAMES C. CARTER, ESQ. ognized in that age, that her exclusive title to all, or nearly all, of this region is very fully made out. And, in the first place, let me again bring to your attention here that thé sole product of this region was substantially fur-bearing animals and other animals useful for their skins, and that the gathering of that product was the sole benefit that mankind could derive from that portion of the globe at the time. And, next, there was only enough for one power, and that one power was abundantly competent to reap the entire harvest. There was not enough for two. Several nations might, indeed, contend for the benefits of this trade in fur-bearing animals, but if they did, there would not be enough for all of them, whilst the Eussian trade would be impoverished; and that would be of no advantage to the other nations of the earth: they would make investments in it which would not be remunerated, it would be best, therefore, for the countries immediately concerned that the reaping of the entire harvest should be left to one. But, in the next place, it would be better for the interests of mankind; and that is the important consideration here. By leaving the monopoly of the fur trade and of the other animals to Eussia alone the trade would be regular; the world would be regularly furnished by the product of this region; it would be furnished at the smallest expenditure in money and labor, and it would be furnished, therefore, at the lowest price. And, consequently, all interests—those of rival nations and of the whole world itself—would be best served by confining the trade to the one Power. The bounty was easily exhaustible, and wherever a product of Nature is exhaustible, it is better to leave the whole to be exploited by the few, or the one, who can successfully do it. Now, acting upon these views, Eussia made a perfectly good title according to the ideas of that age and according to a principle entirely defensible: she established trading stations on the coast of Siberia, on the coast of Alaska and on Bering Sea, and still others along this north-west coast. It is true that along the north-west coast she met with the rivalry of other nations, and they made similar establishments along that coast, although not to such an extent as Eussia did. But all north of the 60th degree of latitude was left exclusively to her. The President. Did you say 60th or 62nd? Mr. Carter. I say the 60th. It is sometimes called the 61st. The line which separated the unquestioned part of Eussian possessions from those which were questioned was sometimes styled the 60th, and sometimes 61st degree of north latitude, the line being somewhat indefinite. Now that was a title which Eussia had asserted upon the ground of prior discovery, earlier than the j'ear 1800; that occupation •she had made earlier than 1800. She had, in her own view—and I think justly—done every act necessary to secure to her a complete and exclusive title upon all the shores and all the islands of that sea, and to the Aleutian Islands, which bounded it on the southern side. In 1799, acting upon the assumption that she had thus acquired an exclusive title, she made a grant of the exclusive privilege of that trade to a corporation existing under her laws, and that was by what is called the Ukase of 1799, or, perhaps more correctly, the charter of the American Company. It is found on page 14 of the first volume of the Appendix to the American Case. [Mr. Carter here read the first four sections of the Ukase. ] These extracts from that Ukase will be sufficient to convey an idea of the nature and extent of this grant by the Eussian Government. It was not a public fact notified to all the other nations of the world; ORAL ARGUMENT OF JAMES C. CARTER, ESQ. 93 and the criticism is on this ground made by the learned Counsel for Great Britain in their Case that it was a concession only in favor of certain Eussian subjects, and was not leveled against other nations, and therefore no evidence of an exclusive right against other nations. But that seems not to be a correct view. It was on the face of it an assumption of property and complete dominion by Eussia over the whole region. The act would have had no significance unless Eussia had entertained the view that she was the sole proprietor, against all other nations, of that region and of those products. And, except upon that view, it would have operated, not in favor of Eussian citizens, as it was designed to operate, but against them. If it were allowed that it was simply designed as a concession in favor of certain Eussian subjects to the exclusion of others, its effect would have been to extend the privilege to all nations and relieve them very largely of Eussian competition. Of course, such could not have been its intention. The design was, not to prompt other nations to interfere with that trade, but to secure the whole of it for the benefit of Eussia alone. That, I think, is very clearly the proper interpretation of that Act. And it is to be observed, in the next place, that part of its design proceeded upon the notion that the products of this region were few, limited, and exhaustible, and that therefore it was not wise that there should continue to be, even among Eussian subjects, a disastrous competition for the purpose of reaping the benefits of that region. A trade of this nature, if engaged in by many Eussian subjects, would be a source of loss, and it was better to confine it to one proprietor. These were the motives upon which the Charter of 1799 was based. In order to show the view entertained by Eussia at this time, I may read a quotation which appears on page 15 of our Counter-Case, from a letter from the Eussian- American Company to the Eussian Minister of Finance (quoting) : The exclusive right granted to the Company in the year 1799 imposed the prohibition to trade in those regions, not only upon foreigners, but also upon Russian subjects not belonging to the company. This prohibition was again affirmed and more clearly defined in the new privileges granted in the year 1821, and in the regulations concerning the limits of navigation. Now the next public act of Eussia in relation to this region was the celebrated Ukase of 1821,' which cuts such a figure in this controversy. This Ukase was of a different character in one particular: it purported to be levelled against other nations and to prohibit their interference with this trade. It will be found on page 16 of the first volume of the Appendix to the American Case. The substance of it consists of rules relating to the navigation and trade of these northern regions, and the first three sections of those rules are the ones which more nearly concern us. They are as follows : Sec. 1.—The pursuits of commerce, whaling, and fishery, and of all other industry on all islands, ports, and gulfs, including the whole of the northwest coast of America, beginning from Bearing's Straits to the 51° of northern latitude, also from the Aleutian Islands to the eastern coast of Siberia, as well as along the Kurile Islands from Behring's Straits to the South Cape of the Island of Urup, viz., to the 45° 50' northern latitude, is exclusively granted to Russian subjects. Sec. 2.—It is therefore prohibited to all foreign vessels not only to land on the coasts and islands belonging to Russia as stated above, but also to approach them within less than a hundred Italian miles. The transgressor's vessel is subject to confiscation along with the whole cargo. Sec. 3—An exception to this rule is to be made in favor of vessels carried thither bv heavy gales or real want of provisions, and unable to make any other shore but such as belongs to Russia. In these cases they are obliged to produce convincing proofs of actual reason for such an exception. Ships of friendly governments merely on discoveries are likewise exempt from the foregoing rule (Sec. 2). In this case, however, they must previously be provided with passports from th* Russian Minister of the Navy. 94 ORAL ARGUMENT OF JAMES C. CARTER, ESQ. Then follows an elaborate series of rules designed to operate upon foreign vessels, and to apply to cases where there are any infractions of these prohibitions, and, where seizures and confiscations shall follow, providing how the confiscations shall be made. [Quoting again at the request of Sir Charles Eussell] : Sec. 14.—It is likewise interdicted to foreign ships to carry on any traffic or barter with the natives of the islands, and of the northwest coast of America, in the whole extent hereabove mentioned. A ship convicted of this trade shall be confiscated. Now here was an assertion of sovereignty over the whole shore on the Asiatic Coast, from Bering Straits down to the Island of Urup, which is about where the pointer now is [indicating the position on the map], and near the 47th degree of north latitude, and it extended on the American Coast of Bering Straits down to the 51st degree of north latitude, thus carrying the Eussians further south on the American coast than they were carried by the Charter of 1799, which limited them to 55°. The character, therefore, of that public Act of Eussia, so far as the shores were concerned, was unmistakable. It assumed absolute and entire sovereignty over them, and, as I have already pointed out, it was perfectly well supported by her title, which had been acquired and established over those regions, a title just in itself and entirely acceded to in that age of discovery. What was the character of that assertion in respect to the sea, for that is the important question before us? Was it an assumption of dominion on the part of Russia over the whole of Bering Sea, and to that part of the Pacific Ocean embraced within those boundaries ? Did it assume, did it purport, to be an assumption of dominion on the part of Russia over the whole of Bering Sea and of the North Pacific Ocean along these lines? I do not think that there is any evidence whatever that that was the nature or intention of the Ukase—none at all. ' An assumption of that kind would have been tantamount to saying that that vast extent of sea was. Eussia's property and included within her territory, and therefore subject to her dominion and laws as such. But there is nothing in this Ukase of 1821 importing that the intention of Eussia was to make any such pretension as that in the way of authority over the sea. She said this : Sec. 1.—The pursuits of commerce, whaling, and fishery, and of all other industry on all islands, ports, and gulfs, including the whole of the northwest coast of America, beginning from Bering's Straits to the 51° of northern latitude, also from the Aleutian Islands to the eastern coast of Siberia, as well as along the Kurile Islands from Bering's Straits to the South Cape of the Island of Urup, viz, to the 45° 50' northern latitude, is exclusively granted to Russian subjects. That was a grant of colonial trade, and of colonial trade alone; that is all. And that is what Eussia, according to the doctrines of that age, had a perfect right to do. Nothing was more clearly admitted at that time, than that every nation had a right to arrogate to itself the exclusive benefits of trade with its colonies, and to prohibit every other nation from, engaging in such trade, and to take such measures as might be necessary to enforce the exclusion of other nations. What did Russia next do? Did she assert anything of the nature of sovereign dominion over the sea? Nothing of the kind. Sec. 2.—It is therefore prohibited to all foreign vessels not only to land on the coasts and islands belonging to Russia as stated above, but also to approach them within less than a hundred Italian miles. The transgressor's vessel is subject to confiscation along with the whole cargo. Mr. Justice Harlan. That is not an absolute doctrine now. Mr. Carter. It is an admitted doctrine now. Every nation has a right to claim for itself the benefits of its colonial trade. Now all that ORAL ARGUMENT OF JAMES C. CARTER, ESQ. 95 Eussia undertook to do was to protect an exclusive grant of its colonial trade; and it adopted the measure—a familiar one in that age—of interdicting tha approach of a foreign vessel within a certain line of the coast. Now what was the reason of that? The general rule of international law which limited the sovereignty of a nation to a strip of the sea three miles in width and along its coast, was not as well known and acknowledged in that age as it is now, but it was nearly so. It was perfectly familiar at that time to the statesmen, jurists, and legislators of the world; not perhaps so perfectly established as now— for the freedom of the seas was subject to more limitations then than now—but still it was a recognized doctrine at that time. But of course the territorial limit of a nation could not be the limit beyond which it could not exercise any power at all for the purpose of protecting an interest attached to the shore ; it would be permissible for a nation to preserve the right to its colonial trade by interdicting the^pproach of foreign vessels within a much greater width than three miles. If a foreign vessel could come to within a short distance though more than three miles at a favorable moment for its purposes, all the benefits of the colonial trade of a nation could not be secured to that nation. A nation must be permitted to prevent vessels from hovering on the coast. The President. Do you mean in reference to offences involving confiscation? Mr. Carter. What I mean to say is that the offences which involve confiscation could be committed by coming within one hundred miles. The President. But could that be if committed outside the three mile limit? Mr. Carter. I say not only beyond the three mile limit, but even beyond the hundred mile limit. The ukase is silent upon that point, but that is one of the sections of the prohibition. Now, in order to show what measures were usually resorted to for the purpose of protecting colonial trade, and what measures were sanctioned, I may refer the learned Arbitrators to a decision of Chief Justice Marshall of the Supreme Court of the United States in the case of Church against.. Hubbart, which is reported in the second of Cranch's Eeports, page 187. Mr. Chief Justice Marshall in that case says : That the law of nations prohibits the exercise of any act of authority over a vessel maritime trespass not within the exception, cannot be admitted. To reason from the extent of the protection a nation will afford to foreigners, to the extent of the means it may use for its own security, does not seem to be perfectly correct. It is opposed by principles which are universally acknowledged. The authority of a nation within its own territory is absolute and exclusive. The seizure of a vessel within the range of its cannon by a foreign force is an in' is a hostile act which it is its duty to repel. But its powe) may certainly be exercised beyond the limits of its territory. Upon this principle, the right of a belligerent to search a neutral vessel on the high seas for contraband of war is universally admitted, because the belligerent has a . right to prevent the injury done to himself by the assistance intended for his enemy. So too, a nation has a right to prohibit any commerce with its colonies. Any attempt to violate the laws made to protect this right is an injury to itself which it may prevent, and it has a right to use the means necessary" for its prevention. Tliese means do not appear to be limited within any certain marked boundaries, which remain the same at aU times and in all situations. If they are such as unnecessarily to vex and harass foreign lawful commerce, foreign nations will resist their exercise. ' If they are such as are reasonable and necessary to secure their laws from violation, they will be submitted to. .*..,. In different seas and on different coasts a wider or more contracted range in which to exercise the vigilance of the Government will be assented to. Thus in the Channel where a very great part of the commerce to and from all the north of Europe a, the seizure of vessels on suspicion of attempting be restricted to very narrow limits; but on the coast 96 ORAL ARGUMENT OF JAMES C. CARTER, ESQ. of South America, seldom frequented by vessels but for the purpose of illicit trade, the vigilance of the Government may be extended somewhat further, and foreign nations submit to such regulations as are reasonable in themselves and are really necessary to secure that monopoly of colonial commerce, which is claimed by all nations holding distant possessions. If this right be extended too far, the exercise of it will be resisted. It has occasioned long and frequent contests wnich have sometimes ended in open war. The English, it will be well recollected, complained of the right claimed by Spain to search their vessels on the high seas, which was carried so far that the Guarda Costas of that nation seized vessels not in the neighborhood of their coasts. This practice was the subject of long and fruitless negotiations, and at length of open war. The right of the Spaniards was supposed to be exercised unreasonably and vexatiously, but it never was contended that it could only be exercised within the range of the cannon from their batteries. Indeed, the right given to our own revenue cutters to visit vessels four leagues from our coasts is a declaration that in the opinion of the American Government no such principle as that contended for has a real existence. Nothing, then, is to be drawn from the laws or the usages of nations, which gives to this part of the contract before the couft the very limited construction which the plaintiff insists on, or which proves that the seizure of the Aurora by the Portuguese governor was an act of lawless violence. The Aurora was on the high seas at that time. This was a case upon a" policy of marine insurance, and the policy contained a warranty that the vessel should not engage in prohibited trade. The vessel had been taken by a Portuguese force as having been engaged in a trade prohibited by the law of Portugal, and she was captured far outside the three-mile limit and for an offence committed outside the three-mile limit. The President. In time of peace? Mr. Carter. In time of peace. This vessel had, it was alleged, come within this limit—I do not remember the limit—but it was much more than three miles. The vessel had, as was alleged, committed an offence against thatlaw of Portugal designed to protect her trade; and having committed that offence, the Portuguese cruiser, or some other Portuguese force seized her, and the insurance companies set that up as a defence against their liability. The argument was, on the part of the plaintiff in the suit, that she was not engaged in prohibited trade, and that if she were, she could not be captured by a Portuguese cruiser in the manner in which she had been; and that no nation had any authority to say that a vessel should not come within a certain distance greater than the three miles. Mr. Chief Justice Marshall was of a different opinion, as appears from the passage I have just read. Mr. Justice Harlan. What is the date of that decision? Mr. Carter. 1804 or 1805, perhaps, I do not remember. Mr. Phelps. This opinion is printed on page '181 of our Argument. The President (to Mr. Carter). Is it your contention that this principle prevails at the present day in international law? Mr. Carter. It is our contention, and we suppose that there could be no dispute on that point. Sir Charles Eussell. It may be open to observation. Mr. Carter. When the other side come to make their observations they will have, if they question this decision, to upset the opinion of Lord Chief Justice Coburn in Begina v. Kehn, a case decided not long ago. That case engaged the attention of a large number of judges in Great Britain. Chief Justice Marshall's decision was quoted by Lord Chief Justice Coburn with entire approbation. Now then, what was the character of this assertion of authority by Eussia? Was it an assertion of general dominion over the seas, of an extension of her territory over all the Bering Sea and part of tlie Pacific Ocean—of a right to legislate against foreign nations in respect to these seas—of a right ORAL ARGUMENT OF JAMES C. CARTER, ESQ. 97 to exclude other nations from them—was that the nature of the pretension set up? Not at all. There was a grant to a private company of the exclusive privilege of colonial trade to which Eussia had a perfect title; and it was designed to prohibit any interference with that trade by other nations. It is apparent on the face of it. It says : "We therefore interdict," that is, because we have made this grant, and for the purpose of protecting such grant. Now, that interdiction may have been reasonable or unreasonable; but the doctrine upon which it was founded is justified, not only by the practice of nations, but by every rule of international law, and it stands as good to-day as in that time. I have said it may have been reasonable or unreasonable. I may say that it was in the highest degree reasonable. You will remember the decision of Chief Justice Marshall, just read, that such an exclusion of the vessels of a nation on a frequented coast, the general pathway of commerce, would be unreasonable, and would not be submitted to by other nations. It would interfere with their commerce too much. But in a distant and remote sea, a larger exclusion might be justifiable. For, what purpose could a vessel other than Eussian entering Bering Sea in 1821 have? Whaling was at that time very little, if at all, carried on. The probabilities were that if any vessel were found in those seas it was for the purpose of engaging in trade connected with the shores, and therefore the probability was that she was engaged in an illicit trade. The very circumstance that she was in that Eussian Sea was a suspicious circumstance, and justified her being treated as being engaged in suspicious business. The President. You mean if the ship had been engaged in whaling? Mr. Carter. It would have applied undoubtedly to a vessel if her object had been whaling. It was not the intention of Eussia to assume general dominion over those seas. A vessel might be whaling and be within one hundred miles of the shore without exposing herself to any suspicion of unjustifiable trade; but whaling was substantially unknown at that time. The President. Whaling is the first item mentioned. Mr. Carter. Yes. The President. You establish a difference between whaling and fishing. Mr. Carter. I think the fair interpretation of that grant does not include whaling. The President. But fishing in the open sea would not be interdicted? Mr. Carter. I think the interdict is confined to what is done on the coasts (quoting Sec. 1.—The pursuits of commerce, whaling, and fishery, and of all other industry on all islands, ports, and gulfs including the whole of the northwest coast of America, beginning from Behring's Straits to the 51° of northern latitude, also from the Aleutian Islands to the eastern coast of Siberia, as well as along the Kurile Islands from Behring's Straits to the South Cape of the Island of Urup, viz, to the 45° 50' northern latitude, is exclusively granted to Russian subjects. That is a grant to the exclusive pursuit of commerce, whaling, fishery, and all other industries on all islands, ports, and gulfs. The President. The hundred-mile limit is for the hovering? Mr. Carter. The hundred-mile limit is for the purpose of preventing infractions. The President. But they must come to the coasts? Mr. Carter. The mere coming within one hundred miles would be an infraction. But you must separate the grant from the measure of protection which was contrived for the purpose of securing the grant. 98 ORAL ARGUMENT OF JAMES C. CARTER, ESQ. The grant is one thing, the measure is another. Mere presence th ere is a violation. Now, I have said that upon the face of this Ukase it does not purport to assume dominion over any part of the sea ; it purports only to establish a defensive and self-protecting regulation which is to operate over one hundred miles of the sea. And let me say right here, as it appears to be interesting the Arbitrators, that such things were extremely common and are found at the present day. For instance, every nation has its custom laws, and there are often carried on operations in violation of those laws; and one manner of doing this is for a vessel having a cargo of goods on board to come and hover on the coast of a nation until another vessel comes out and transships her cargo. Now, a nation must have the privilege of preventing this in some way; and if a nation were not permitted to exclude the smuggler for more than three miles from the coast, she would be almost defenceless against it. And therefore nations must have some manner of preventing vessels from coming within sight of the shore. Justice Harlan. Is your argument to the first and third points of the Articles of the Treaty? Mr. Carter. My point is confined to an explanation of the real nature of this prohibition contained in the Eussian Ukase of 1821. Justice Harlan. I am speaking of the first point of Article VI of the Treaty ; it does not require attention from the Arbitrators, because it relates to Eussia. Mr. Carter. Well, it is a part of my argument not only to show that Eussia did assert the exercise of a self defensive power, but also the rightfulness of the assertion. It is not important to urge it, but it is a fair part of the discussion. It may be well contended that not only did Eussia make this assertion, but that it was a rightful one. For the purpose of showing that, let me speak of the hovering acts. The laws and statutes of Great Britain— Mr. Phelps. And France. Mr. Carter. And France as well, for the prevention of smuggling, forbid a vessel from hovering on the coast. They prohibited any vessel, foreign or other, from hovering there; and the penalty for hovering within four miles is capture and confiscation. Sir Charles Eussell. Four leagues. Mr. Carter. Four leagues—the penalty is capture and confiscation. It is the universal penalty. So, also, there are quarantine, laws, which under certain circumstances require vessels at certain times to come to at a distance from the shore much further out than three miles, and await a boarding vessel there; and the penalty for a violation of such enactments is always capture and confiscation. So that this instance of an exercise of authority by Eussia operative over a belt of the sea beyond, the limits of three miles is not an exceptional exercise of authority, but one commonly resorted to, and always resorted to when there is the necessity for a defensive and protective measure of that character. I will not go any further into that discussion at this time. What I have thus far said goes to show that that is the nature of this regulation on the face of it. I have now to point out to the learned Arbitrators that that was the view taken of it by Eussia at the time; for when it was protested against by Mr. John Quincy Adams, then- Secretary of State of the United States, this was the explanation, or part of the explanation, given by the Eussian Government; I read from the note of M. de Poletica to Mr. A Appendix: ORAL ARGUMENT OF JAMES C. CARTER ESQ. 99 «a page 133, Volume first of the American the sea, but only to d( i invasions of it by fore . Middleton, the Ameri fair interpretation of the Ukase itself, but the ie Eussian Government, that this prohibition ssels within 100 miles along the shores of this igned as an assertion of sovereign dominion defend the colonial trade of Eussia against iMii which the Eussian Government had in view in making the declaration of this Ukase. I read an extract from a letter of Mr. Middleton to Mr. Adams, found on page 135 of the first volume of our Appendix: The President. Is there any evidence that y Eussians at any time previously to that correspo the right of mare clausum, the right of sovereignl Mr. Carter. None whatever, neither before m unless this Ukase constitutes an assertion of auth; The President. It was a position which they : but it seems they state that they do not assert it. 100 ORAL ARGUMENT OF JAMES C. CARTER, ESQ. Mr. Carter. Yes, they suggested that they had the right to assert it. But they protest that they have not asserted it in fact. Having described this Ukase of 1821, and the nature of it such as it appears to be from a fair interpretation of the face of it, and from the declarations made by the Eussian Government in reference to it, it is next in order to call the attention of the Arbitrators to the notice which was taken of it by the American and the British Governments. But before I enter upon this I desire to occupy a few moments in dealing more particularly with the question of the real rights of Eussia in or over Bering Sea and its shores, what they were, and the place which they fill in argument here, and in the questions. submitted to the Tribunal. We see what the claim of Eussia was by this Ukase of 1821; that it was an assertion, not of the right of sovereignty, but of the right to establish a protective regulation, operative indeed at a greater distance than three miles from the shore. I have, in the course of pointing that out, somewhat briefly alluded to the distinction between the exercise of full and sovereign dominion of a nation over the sea, or over land, as far as that goes, and the exercise of a self-protecting power, such as a defensive regulation of this sort is. I wish to follow up those observations a little further, for the purpose of fixing in the minds of the Arbitrators the real nature of these two things and of their essential differences. What is full dominion or sovereignty such as is exercised by a nation ? What is it? A full right of sovereignty includes, of course, a full right of property over all the territory to which that sovereignty extends. When I say a full right of property, I mean of absolute property in the territory over which it extends. That is included in the idea of sovereignty; and it includes in the next place— The President. You do not mean property in the civil sense? Mr. Carter. I do mean property in the civil sense; but I ought perhaps to explain that. Take the private property in the land of any- particular country. Writers on the law of property separate property interests into two parts. One of them they call the dominium utile, and the other the dominium eminens. The dominium utile is the right to use and enjoy; and it is that, and that only, which is vested in private individuals. The dominium eminens means the absolute property, by an exercise of which a nation can at any time displace the individual right. That dominium eminens is vested in the sovereign power alone, in the Government; and it is that sovereign right of property which I mean when I say that sovereignty embraces the full property right in the territory over which it extends. In the next place, it embraces the right of legislation over the whole territory, the right of legislation in respect to persons and things, and consequently the power of excluding .any foreign nation or its citizens from any part of the domain which it covers. It embraces the full right of Government; and that is necessarily exclusive of every other Government. No other Government can make a single regulation which has any binding force upon the territory of a foreign power. This right of sovereignty, embracing both property and the right of legislation, is necessarily limited by a rigid boundary line. That is one characteristic of sovereignty; it must be limited by a rigid boundary line. Property cannot exist unless it is specified'and described; and, of course, the limits of the laws of a Government must be absolutely and precisely known ; they cannot shift and vary according to circumstances. It is, therefore, the characteristic of this full sovereignty ORAL ARGUMENT OF JAMES C. CARTER, ESQ. 101 which a nation possesses over its territory that it is limited rigidly by a boundary line, and that right of sovereignty is possessed by the nation as a Government, as an organized community engaged in the business of administering the laws and welfare of the territory over which it extends. There is another class of rights which a nation may enjoy and does enjoy, not thus rigidly limited by a boundary line, but which it may exercise wherever it goes in its capacity as an individual. First let me mention the great right of self-defence that accompanies a nation wherever it goes and may be exercised by a nation, not because it is a Government, but because it is an individual. It exercises this right of self-defence much as an individual exercises it. All of us have the same right of self-defence, not because we have any Governmental power, but because we are persons who have rights, and that is one of them. Just so it is with nations; wherever they have a right to be, there they can exercise those powers which are necessary to protect them as persons. In addition to protecting themselves as persons they may protect their property. Nations being corporate persons, not natural persons, can scarcely be touched outside the limits of their territory except in the way of touching their property. I say those rights of self-protection may be exercised by a nation wherever the nation has a right to be ; and a nation has a right to be anywhere upon the high seas. A nation goes wherever its property goes, from one end of the world to the other, and it exists as a nation until it reaches the boundaries of some other nation. It cannot pass those. But on the high seas all the nations of the world exist together. They are citizens together upon those seas. Their commerce goes upon those seas, and wherever their citizens and their commerce go, there the nation goes, there its power goes, as an individual. There, if its property is attacked or its citizens are attacked, it has a right to defend them. It has the great right of self- defence, and it has a right to use just such means and methods and weapons as are necessary fully and perfectly to protect itself. That is not because it is a government, but because it is an individual. It has a right to be on the great highway of nations, to go there with its interests, and if it could not protect its interests; how could they be protected at all? Take the case of a fleet of American merchantmen which might be convoyed by an American man-of-war. Suppose it should be attacked somewhere on the high seas. Can itnotbe defended ? What is the man-of-war convoying them for, except for the purposes of defence? Wherever upon the seas a nation's property is, if that property is in any manner assailed, it must protect it. Commerce could not exist; the intercourse of nations could not subsist, except upon these principles. Let it be supposed that the citizens of some foreign nation should commit a trespass upon the property of citizens of the United States somewhere upon the high seas, and the owners of that property should make complaint to their own Government, and that Government should go to the nation to which the trespassers belonged, and complain and say: "The citizens of your nation have been injuring the property of our citizens on the high seas; we ask you to make redress". The answer would be: " Can you not protect your own citizens. Have you not j ust as much power to protect your citizens on the high seas as we have? If a trespass was attempted against them, why did they not resist and beat off the trespassers, and if they were not able to do that they may resort to the courts of any nation in the world to obtain their redress ". 102 ORAL ARGUMENT OF JAMES C. CARTER, ESQ. But these principles do not rest upon any theoretic statement. They have been universally admitted in the practice of nations; and it is absolutely true—there is no sort of qualification to the proposition— that wherever a nation finds it necessary to employ acts of force upon the high seas in order to protect its own rights or the rights of its citizens, it has the right to employ such acts of force. There are many illustrations of this. Many of them arise—because that is where the occasion most frequently arises—under belligerent conditions. Suppose there is a war between the United States and Great Britain, and a port of the United States is blockaded, and a British vessel finds a vessel belonging to France attempting to enter that blockaded port. What does she do? She captures her and carries her in for condemnation. Why? Here is a French vessel, friendly to both powers, not designing to injure either one of them, engaged in peaceful commerce, not directly aiding or assisting the belligerents ; and yet when she attempts to enter the port of one of them with whom she is a friend, the other who is also a friend, takes her and captures her. How is that to be defended? It is defended on the ground of necessity. Great Britain says: "I am carrying on a war with the United States; I am endeavoring to subdue the United States, and to compel her to come to peace with me. I have a right to reduce her to extremity; and here you are carrying in provisions, or what not, and thus helping to prolong the war and prevent me from subduing my enemy,—which I have right to do—and, therefore, I take you and capture you on the high seas." The case of contraband goods is the same. A vessel is found on the high seas, not attempting to enter any blockaded port, but bound to one of the belligerent ports and having on board contraband of war. Whatisdone? She is taken and captured because it is necessary. She is attempting to assist an enemy. That is, she is doing acts which would amount to an assistance and which render the operations of one of the belligerent parties less effective. It is admitted in international law that when two nations are at war their rights-in certain particulars are supreme over other nations, and they have a right to do these acts upon the high seas because they are necessary for self-defence and self-protection. I speak here of belligerent conditions; let me pass to other conditions—peaceful conditions— some of those to which I have already alluded, a defence of colonial trade. The territory of a nation does not extend more than three miles beyond its coast. We know that. A nation cannot extend its system of law beyond that three miles. We know that; but nevertheless it has a right, as a person, to exert any power of self-defence against threatened invasion of its interests by other persons, and it has a right to do all acts which are necessary for that purpose. The line up to which it may exercise its authority is not a boundary line upon the earth's surface, but it is a line limited by necessity, and by necessity alone. The right is created by necessity, and of course has no other limit than the necessity which creates it. The same is the case with all those municipal laws of various nations designed to prevent smuggling. They are enforced the world over, have been enforced for centuries, and are to-day. They purport to be municipal regulations, municipal laws. They are municipal laws in every sense of the word. The hovering statutes of Great Britain, forbidding a vessel to hover within four leagues of her coast, are binding upon her own citizens because they are laws. Are they binding upon other nations because they are laws? No, they are binding upon other ORAL ARGUMENT OF JAMES C. CARTER, ESQ. 103 nations because they are defensive acts of force which she has a right to exert. She would be quite right to exert them even if the laws had not been passed. If Great Britain had no hovering law upon her statute book, she would have a right to give instructions to her cruisers to prevent vessels hovering upon her coast under circumstances calculated to excite suspicion that they were engaged in smuggling; and if other powers should complain of that, the only question would be whether it was reasonable or not. Great Britain, being a constitutional Government, of course cannot very well capture vessels upon the high seas, carry them in and libel them in her courts for condemnation, without a system of municipal, law providing for it. Neither can the United States. In such countries, not under an absolute Government, it is, necessary to have enactments of municipal law for the purpose of governing seizures in the ease of condemnation. These methods are all prescribed by municipal laws. These municipal laws are perfectly valid and binding—valid and binding as laws upon the citizens of the nation enacting them, valid and binding upon citizens of other states, not as laws, but because they are reasonable exertions of a self-defensive power. . The circumstance that they are enacted into laws does not, of course, take away from them their validity. It only serves to render them more reasonable, because it subjects foreign citizens only to the same rule to which the citizens of the country themselves are subjected. Quarantine regulations are of the same character. A nation must have the right to protect itself against the entrance of contagious disease. No people in the world, on the ground that the seas are free, have a right to bring disease into dangerous proximity to the coasts of another nation; and if for the purpose of keeping infection clear of coasts, it were necessary to keep vessels 100 miles off the coast, the-right to do it would exist. There is no such thing as universal rules in international law, or in respect to the freedom of the seas, as there are no universal rules in respect to anything. Everything in the world depends upon circumstances. Whatever right, whatever acts of power, it is necessary for a nation to assert upon the high seas in order to protect its own essential interests, if they are fair, if they are moderate, if they are reasonable, if they are suited to the exigencies of the case, if they do not transcend the necessity which creates them, they are valid, and all other nations in the world are bound to respect them. The President. If I understand you aright, your contention would be that the action of nations on the high seas is founded on the same principles in time of war as in time of peace? Mr. Carter. Precisely. My position cannot be better stated than that. What gives these extraordinary rights to nations in times of war, is necessity—the necessity of self defence. The same necessity can arise in times of peace just as well, and whenever it does arise, it demands the same remedies, and the same remedies are applied. The President. Would you like to rest awhile, Mr. Carter? Mr. Carter. No, I am not at all tired. The President. The manner in which you express your views interests us very highly. Mr. Carter. I thank you. This right of self-defence, which I assert and which is so entirely different from the right of sovereign jurisdiction, does not militate at all against the freedom of the seas. It asserts the freedom of the seas. 104 ORAL ARGUMENT OF JAMES C. CARTER, ESQ. It is exceptional in its character. It asserts the general rule of the freedom of the seas, but says, notwithstanding that freedom, there are instances in which all nations are subjected to certain necessities, and those necessities beget and create the authority to use reasonable measures of defense and protection. All reasonable nations will accede to them, and do accede to them, aud, consequently, they have had their place in all time on the statute books of nations, and have never yet led to contention except in cases where they were really unreasonable, or supposed to be so. Senator Morgan. Mr. Carter, I believe that you have not as yet read that part of the correspondence between the two Governments relating to the question of an assumption of damages in this treaty for trespasses alleged to have been committed against the Government of the United States. Mr. Carter. No; I have not. Senator Morgan. I wanted to ask you if, in the correspondence that led up to this treaty, Great Britain did not refuse to admit her liability for any trespasses by her nationals upon the property of the United States? Mr. Carter. Well, perhaps she did. Sir Charles Eussell. Certainly she did. . Senator Morgan. She did refuse? Sir Charles Eussell. Certainly. Senator Morgan. And that was the reason why a claim for damages on the part of the United States was excluded from this treaty. Mr. Carter. At a later stage in my argument I shall deal with that matter ; but it does not seem to me to be especially relevant here. Senator Morgan. It seems to my mind to be exactly in point, if you will allow me. Therefore, I ask the question; if Great Britain refuses such responsibility for trespasses by her nationals on the high seas must it not follow if the United States were the owners of this property, and if Great Britain has refused to become responsible for the trespass by her subjects or nationals, the United States may prevent the trespass and the consequent damage which they would otherwise suffer. Mr. Carter. In my judgment the United States has the power to prevent the trespass and the consequent damage, whether Great Britain is willing to answer for the damages or not. Senator Morgan. In this case I am trying to get at the history of it. That matter had been under discussion, and Great Britain had refused to become responsible for the trespasses of her nationals. Sir Charles Eussell. She denied that there was any trespass upon the property of the United States. Senator Morgan. I understand that. My question is predicated upon the supposition that there was a trespass. It was the property of the United States, and if there was a trespass, has not Great Britain in this very negotiation refused to become responsible, and excluded it from this treaty on that account? That is the point I wanted to get at. Mr. Carter. I believe that to have been the case. Senator Morgan. I think that is pertinent. Mr. Carter. In my view it is not among those things which in my mind are pertinent to the present discussion; and, of course, I cannot very well argue myself, except by employing those grounds and reasons which in my mind seem to be material. Senator Morgan. I was only claiming the right to have the difficulty in my mind cleared up. The President. Perhaps the counsel on either side will clear the matter up later on. ORAL ARGUMENT OF Senator Mor gan. I trn st I am not too earlv witl the su ti because it is a n importai it matt ci in the casç, and I shall îxpect to hear argument upon it on both side Mr. Carter. I will give to that question the attei ition wl ich from the interrogate ry of the le arned Ai bitrator, it seems ve. ' I have said tl iat this pos ition, wh ich I am seeking't in, of the right to self-pr otection as distinguished from anv as sertion eignty, is not ii i conflict w ith the c rdinary doctrine < >f the fr eedoin of the seas in an. T particular . It ad nits that doctrine , stand* upon it, )tional, jt istiliable in cases sity, and then justifiable only up to the extei t of that necessiti ?> but, : n respect to the freedom of the seas the posi tion which we mai' >es assert one thing, with positivenei as. That is, that however : ree the seas may be in the just sense of t lie word,' ihey are not free anywhe ■e in any quarter of the globe, at a ny distal ice from the short i— three miles or three hundred miles—for the con imission of wrong and v> hether a thing is wrong or not whe i commit fced on the high sea s is just as easily determinable a. i it would 1 e if the dominion of some munici lal power extended over i t. In othe r words, our position is tha t there of the globe, on the sea or on the 1 md, that is not un der the dominion of law, and un der the do ninion o " a law which the courts of every nation will tak( , notice of, even the municipal tribuna Is, and i inder the dominion of a law which this Tri bunal, as an inter nation a one, will particularly take notice of. I have been thus explicit upon this subject, and have devoted to it the attention I have, for the reason that I think there has been considerable confusion about it. There is a confusion in relation to it in the opinions of writers upon international law. They have not, as a general rule, pointed out these two distinct and different species of authority which a nation may exercise. They have not clearly defined them. They have not placed upon them the limitations which clearly attach to them. There is a confusion about them in the discussions of diplomatists. There is a good deal of confusion on those two subjects in the diplomatic communications between Great Britain and America in respect to the subjects of this controversy. That confusion has found its way into the terms of the Treaty itself, and will be found in the phraseology of the questions which are submitted to this Tribunal. That confusion has arisen to a very considerable extent from the use of an ambiguous word, "jurisdiction," to characterize and define both things. Both these species of authority are spoken of by jurists, by lawyers, in text books and elsewhere, under the general name of jurisdiction, and thus that word has become one of ambiguous import. The word "jurisdiction " has sometimes been used, when we speak of the jurisdiction of a nation, in a certain narrow and rigid sense as describing the sovereign right of legislation; that is to say, as describing that authority the exercise of which is necessarily limited by a boundary line. It has been used sometimes in that narrow sense, and at other times it has been used to describe any act of authority which a nation might perform, whether within that line or outside of it. A similar ambiguity is found in the use of the word "jurisdiction" in relation to matters of municipal law. We sometimes speak of a court having jurisdiction in a particular controversy. That means that it has just authority to inquire into the merits of the controversy and to dispose Of those merits by a definitive judgment It means that generally; but we sometimes say, also, that a court has jurisdiction tow a 106 ORAL ARGUMENT OF JAMES c. carter, esq. certain thing, meaning by it that it has the potoer to do a certain thing. We sometimes speak of the jurisdiction of a municipal officer merely to describe the power of the officer. We say that a taxing officer has the jurisdiction to assess persons for taxation. We mean that he has the power to do it, and that is all we mean. " Jurisdiction " has no proper application to such an authority as that; and it is from this ambiguous use of this word that much of the doubt and difficulty respecting the subject have arisen. What has been the claim of the United States in the course of this controversy in respect to the nature of the authority acquired by Eussia- in Bering Sea, and of the rights which Eussia had gained in that sea, and the rights the United States has, consequently, gained by the acquisition of Alaska from her? Has the United States ever maintained at any time in the course of this controversy that Eussia had acquired a dominion over Bering Sea, as if that sea were a part of her territory and that the United States had, in consequence, as the successor of Eussia, acquired such right as that? Has the United States ever made any such claim as that? Never. At no time in the course of this controversy has it ever made any claim of that sort, or hinted a claim of that sort. It has alwavs put its case upon other and very different grounds; namely, that Eussia had property interests- interests in the nature of colonial trade and other industries—carried on on the shores of Bering Sea, which gave her a right to adopt protective measures which might be operative, indeed, over a reasonable extent of the sea as defensive measures; and that such a right as that the United States has also, not because it acquired it from Eussia— because it would have it without any such acquisition; the only aid that it has asserted as having been derived from Eussia was the fact that Eussia had established these protective regulations in Bering Sea, and that other nations of the world, including Great Britain, had acquiesced in them; and that Great Britain was not now in a condition to complain of them. It has been, however, the effort—I say the effort; I suppose it has been the belief—of the learned counsel who have had the interests of Great Britain in charge, to impute to the United States the position of asserting that they had. derived from Eussia a dominion in Bering Sea,— a sovereign dominion over that sea. That position has been imputed to the United States in the Case of Great Britain, and industriously imputed to it. I do not think there has ever been any good foundation for that. In the Case of Great Britain, page 134, there is a quite formal statement of the several positions which, according to that Case, the United States have taken in reference to this controversy. I read from that: The facts stated in this chapter show thatthe original ground upon which the vessels seized in 1886 and 1887 were condemned, was that Behring Sea was a mare clausum, an inland sea, and as such had been conveyed in part by Russia to the United States: that this ground was subsequently entirelyabandoned, but a claim was then made to exclusive jurisdiction over one hundred miles from the coast line of the United States territory: that, subsequently, a further claim has been set up, to the effect that the United States have property in and a right of protection over, fur- seals in non-territorial waters. That is the description in the Case of Great Britain of the positions which have been from time to time taken by the United States in reference to this controversy. It is a total error. As to the first part of it, there is to a certain extent, a foundation for the statement. The first part is " that the original ground upon which the vessels seized in 1886 and 1887 were condemned was that Behring Sea was a mare clausum, an ORAL ARGUMENT OF JAMES C CARTER, ESQ. United States." That does not say that the United States ever took that pc only says that that was the ground upon which the vessels condemned. But I think the intent was to convey the notioi " i taken by the United States. Theparagrap gloss 1 Alaska, and ths ., in the cases of 1 ni ted States Disi to the jury, or in bis opinion giving judgment, went into the case and stated that Eussia by this Ukase had acquired a territorial dominion in Berin g Sea. He stated that as his opinion ; but has a judge in the United States District Court of Alaska an authority to speak in an international controversy on behalf of the United States? Certainly none whatever. The position of the United States cannot be gathered from what a judge of a United States court happens to say in a charge to the jury. If it can, the United States would be responsible for the utterances of every twopenny justice of the peace throughout the laud; which they would be very sorry to be. Where is the position of the United States in reference to this controversy to be sought and found? In the utterances, the responsible utterances, of that Government made to Great Britain in diplomatic form. There is the place, and the only place, where they can properly be sought. The President. Do you not think a Government is responsible to other nations for its judges? Mr. Carter. To a certain extent, it is; and to a certain extent, it is not. The President. Ton must take the nation as a whole. Mr. Justice Harlan. Judges in the United States are independent of the Government. The President. Not as a nation? Mr. Justice Harlan. Yes; they are independent of the nation. Mr. Carter. If a French citizen should have the misfortune to be involved in litigation in the United States, and a judgment should be pronounced against him which he did not like, and he should appeal to his own Government, and say he did not like it, and the Government should appeal to the United States, he would be told that he had no remedy; that the Government of the United States was not responsible for the conclusions to which the judges came. They might be law; they might not be law. He had had a fair trial ; he had had the same opportunity which citizens of the United States have, and that is all the United States could give him; and I apprehend a similar answer would be made by the Government of France in a similar case. The President. I am not quite sure as to that. Mr. Carter. I do not know about France, but I am very sure that is the answer which would be given by Great Britain in a similar case. The President. It is a rather difficult, and often-discussed point of international law, as to what is the responsibility of a nation. Mr. Carter. Every Government is, of course; responsible in a certain sense to foreign nations, that their citizen's, when they happen to fall within the reach of justice, shall obtain justice. That is, that they shall obtain the same sort of justice which is administered to the citizens of the country. That is the extent of the foreign obligation. Sir Charles Eussell. You have got a British, ship on the ground of that judgment. 108 ORAL ARGUMENT OF JAMES C. CARTER, ESQ. Mr. Carter. It is no more than a suit against a British citizen. That is all it amounts to. Property of British citizens is attached. That is all the suit amounts to, and all that the United States is bound to do is to see that justice is done. The course of procedure in the United States must be followed. If the judgment of the United States District Court of Alaska was complained of, there was an opportunity to appeal to and obtain the judgment of the highest court in the land. No complaint could be made until that procedure had been followed and run out to its conclusion. It was not done. So no complaint could be made of that judgment, nor could the grounds upon which that judgment was rendered be in any manner imputed to the United States. The President. I think we had better consider that as a particular question, which we will argue when it comes up later in the case. Mr. Carter. Very well. Where are we to look for the true grounds upon which the United States based its position in these controversies ? Why, obviously, to the diplomatic communications. The British Government did protest to the United States that this course was pursued, and that it was pursued by the authority of the United States in giving instructions to her cruisers; and they ask now " Tell us the authority upon which you proceed." That was the demand of the British Government—very properly made—" We want to know from you, not from a District judge up in Alaska, but from you, who have the authority to state, what your grounds are. It is from you that we wish to know the grounds upon which you presume to seize British vessels." That demand was made; and what was the answer to it? for there is where you are to look to ascertain what the position is which the United States Government takes. Therefore, I must again call the attention of the arbitrators to the response which was first made to these demands. The President. Do you mean to enter on a new subject? Mr. Carter. I perceive that the hour of adjournment has about arrived; and the citations which I purpose to read I might perhaps as well leave for the next session. The President. We will meet on next Tuesday morning, at half past 11 o'clock. [The Tribunal accordingly adjourned.] TENTH DAY, APRIL i8TH, 1893. The Tribunal met pursuant to adjournment. The President. Before Mr. Carter proceeds, I would beg to offer an observation. In the course of the last sitting we had, I might almost say, some conversation about a delicate matter, a matter which is the subject of much controversy in international law—that of the responsibility of nations for their justice, or for the justice that is administered by them. I beg to remark that my intention was not at all to express any opinion. I merely wanted to know the extent and purport of the contention of the party concerned. 1 believe that whenever one of us addresses one of the learned counsel on either side it is always with the intention of ascertaining how far the intention and the contention of both parties, or of either party, go, and not at all to express a personal opinion, which of course on our bench we are not called upon to do; and since in this particular case if the words which have been pronounced were misconstrued, it is much less our intention to express any opinion which would be considered as binding upon the respective countries or governments to which either of us may happen to belong. It is in reference to the words which I spoke of in our last sitting that I think it necessary to make this remark. Mr. Carter. I so understood the learned President. The President. Mr. Carter, if you please to proceed, we will be glad to hear you. Mr. Carter. Mr. President, my attention has been called to a copy of the London Times of Monday which contaius some reference to my argument of Friday, and in certain respects misrepresented me to such an extent that I feel hardly at liberty to pass it without notice. I cannot, of course, think myself called upon to correct all misrepresentations of what I may say which may be found in the journals of the day; and I should not say a word in reference to this, except that it represented me as making some very disparaging allusions to a distinguished and very worthy judge of a high court of the United States—I mean the District Judge of the United States for the district of Alaska. I made no observation whatever disparaging to him. '■ I did indeed say that the Government of the United States could not be held responsible for the grounds and reasons which judges assign in the decisions which they might give; that, if that were the case, the Government might be held responsible for the utterances, as I said—and the observation might in good taste have been better withheld—of any twopenny justice of the peace. But, of course, I did not apply that observation to Judge Dawson, or intend in any manner to make any disparaging reference to him. I did not even say that his judgment was incorrect. On the contrary, his judgment, so far as related to the condemnation of the vessel, was a sound and correct judgment, which in the due course of my argument, I shall endeavor to defend;' and I have no doubt it would have been affirmed to that extent by the Supreme 110 ORAL ARGUMENT OF JAMES C. CARTER, ESQ. Court of the United States. Nor did I, in saying that the Government of the United States was not responsible for the grounds stated by judges in their opinions as the basis of their decision, intend to intimate that the Government was not to a certain extent responsible to other nations- for the correctness of the judgments themselves. The Government of the United States is, I suppose, responsible toother nations that the citizens of other nations shall have justice done them in the courts; but it is the correctness of the judgments for which they are responsible, not the soundness of the opinions which are given as the basis for them. My argument on Friday was directed in the main to the question of the rights which had been acquired by Eussia in the Bering Sea and transmitted by her to the United States by means of the cession of 1867. I had made a brief historical sketch of what may be called the Eussian •pretentions, closing that sketch with a statement of the Ukase of 1821 and of its real nature. I then came to consider the view which the United States take in relation to the Ukase of 1821 and the rights which might have been acquired under it; and I stated that, according to the views of the United States, that Ukase never asserted à right of sovereign dominion over any part of Bering Sea, but that its sole purpose, intention and effect were to assert a right to protect industries connected with the shore by protective regulations operative over a certain portion of the sea—a thing quite different from any assertion of sovereign dominion. I said that that was the view taken by the United States and which always had been taken by the United States; and it was in that connection that I observed that although a somewhat different view had been taken by the learned District Judge of Alaska, the United States had never adopted that view in its diplomatic communications with Great Britain. I further said that there was an endeavor in the British Case to impute to the United States the view that Eussia had acquired a sovereign dominion over that sea, intimating that the United States had originally based its position upon that view and had afterwards shifted its ground. That assertion I denied, and it was at that point that the Tribunal rose. It is my purpose now to support that denial, and to say that, from the first, the United States took but one position in reference to this matter and have retained it at all times during the controversy. In order to show this I call the attention of the Tribunal to Lord Salisbury's complaint, which will be found at page 162 of the first volume of the American Appendix. I have already referred to this letter, but it is important that I should now refer to it again. It was not the first time that the British Government protested against these seizures ; but it was the first time that that Government stated the grounds of its complaint. Lord Salisbury had, prior to the writing of this letter, received from the American Government copies of the records of the United States District Court of Alaska, by which it appeared that the condemnations in that court were founded upon libels filed for the purpose of enforcing the American municipal law which forbade the taking of seals and by which it appeared also that the seizures had been effected at a greater distance than three miles from the shore. It is on this ground that Lord Salisbury conceives that the seizures were not justified. He explains that ground quite fully and closes his letter with these observations : Her Majesty's Government feel sure that, in view of the considerations which I have set forth in this dispatch, which you will communicate to Mr. Bayard, the Government of the United States will admit that the seizure and condemnation of these to those who have suffered in consequence and issue immediateïiiatraettana , th«ïr naval officers which wiU prevent a recurrence of these regrettable incidents . Mr. Bayard's first communication in relation to these seizures will be found at page 168. He then had before him the letter which I have just read of Lord Salisbury. He had before him the grounds upon which Lord Salisbury based his objection to these seizures; and he was invited therefore to a discussion of these grounds and reasons. As I have already remarked, Mr. Bayard thought proper to waive, or avoid that discussion for the then present at least, and to rely upon conciliatory measures. The terms in which he did this will be found in the letter to which I now call your attention. As it is very short I will read it, although I have read it once before. These are instructions from him to the American Ministers abroad, the same letter being sent to the Ministers of several powers, Great Britain included. Sir Charles Eussell. My friend has not observed the dates; that is a month earlier than the date of the communication to Lord Salisbury. Lord Salisbury's letter is in August, and that, is in September. Mr. Carter. I am much obliged to my learned friend; he is entirely right. Let me withdraw the observation I have made that when Mr. Bayard wrote that letter he had before him the letter of Lord Salisbury which I have just read. He did not have it before him. He did have, however, before him the protests against the seizures which had been made to him by the British Minister in Washington. He did have those before him. There were several letters from the British Minister and one of them, perhaps the first, was on the 27th of September, 1886. The next one is of the same character. The next is a communication from the Earl of Iddesleigh to Sir Lionel Sackville West; but it was also communicated to Mr. Bayard. That is on the 30th of October, 1886. As I have said, there was considerable delay on the part of Mr. Bayard in answering these documents of the British Government—delay arising from the circumstance that the place from which information was sought was so remote. Those observations will be sufficient to enable the learned Arbitrators to understand the view first taken in reference to the matter by Mr. Bayard, which is contained in the letter of August 19th, 1887: Mr. Bayard to Mr. Vignaud.1 No. 256.] Department of State, Washington-, August 19,1887. Sir : Recent occurrences have drawn the attention of this Department tq the necessity of taking steps for the better protection of the fur-seal fisheries in Behring Sea. Without raising any question as to the exceptional measures which the peculiar character of the property in question might justify this Government in taking, and without reference to any exceptional marine jurisdiction that might properly be ■claimed for that end, it is deemed advisable—and I am instructed by the President so to inform you—to attain the desired ends by international cooperation. It is well known that the unregulated and indiscriminate killing of Seals m many parts of the world has driven them from place to place, and, by breaking up their habitual resorts, has greatly reduced their number. Under these circumstances, and in view of the common interest of all nations in preventing the indiscriminate destruction and consequent extermination of an animal which contributes so importantly to the commercial wealth and general use of mankind, you are hereby instructed to draw the attention of the Government to which you are accredited to the subject, and to invite it te enter into such an arrangement with the Government of the United States as will prevent the citizens of either country from killing seal in Behring Sea at such tunes and places, and by i Identic instructions were sent to the United States ministers to Germany, Great Britain, Japan,. Russia, and Sweden and Norway. ch methods as at pre sent are p on of those animals a id conseq The ministers of the United 112 ORAL ARGUMENT OF JAMES C. CARTER, ESQ. led, and which threaten the speedy extermina- ; serious loss to mankind. es to Germany, Sweden and Norway, Russia, Japan, and Great Britain have been each similarly addressed on the subject referred to in this instruction. I am, etc., T. F. Bayabd. That was the first attitude taken by the Government of the United States towards the Government of Great Britain in reference to this question and to the questions which might be involved in it. Distinct discussion is avoided. All extreme assertions, are waived in view of the conciliatory purposes for which it was written. Nevertheless the grounds upon which the Government would put its case are not indistinctly foreshadowed. They are that the property in question, that of the seals, was of a peculiar nature, and that the proper protection of it might justify the exercise by the United States of an exceptional marine jurisdiction. No assumption of exclusive dominion over Bering Sea, or anything of the kind, is asserted. That was the attitude which was taken by the United States during the administration of Mr. Cleveland and during what I have ventured to call, in giving an account of the whole controversy, the first stage of the controversy. The next stage of it is occupied with the dealings with the subject during the administration of President Harrison ; and the first statement under that administration of the grounds upon which the United States based the assertion of its rights connected with the sealing industry was, as the learned Arbitrators will remember, set forth by Mr. Blaine in his note of January 22,1890, which is found on page 200. That letter I have once read. It is quite long and I do not think it necessary to repeat the reading of it. It is, however, important to consider the substance of it, and I shall venture to state that, so far as it relates to the grounds taken by the United States. That substance is this : That the seals are an animal in a high degree useful to mankind; that Eussia engaged in the industry of preserving them, cherishing them, and taking the annual increase on the Pribylof Islands at a very early period; and that from the time when she first engaged in that industry down to the time of the cession to the United States, no other nation and no other people had. ever attempted to interfere with that right; that the United States acquired this industry together with the rest of their acquisition from Eussia by the Treaty of 1867, and that the United States had carried on the same industry in substantially the same way without any interference by other nations, or other men, until the practice of pelagic sealin g was introduced ; that this practice of pelagic sealing was destructive of the seal and therefore destructive not only of this particular industry of the United States, but destructive of the interest which all .mankind had in this animal; that it was a pure wrong—to use his phrase—contra bonos mores, and consequently the United States had a right to prevent this invasion of one of its own industries which was thus persisted in Without any right whatever, and which was purely an assertion of a wrong. Those are the grounds taken by Mr. Blaine in this note. That is the same ground that the Government of the United States has asserted from the first and which it still continues to assert. Now, in order to show that those grounds were perfectly well understood, and especially by the British Government, I call attention to Lord Salisbury's note in answer to that of Mr. Blaine, which will be found on page 207. He undertakes to reduce to distinct points the several positions taken by Mr. Blaine in that long letter; and I will read so much of it: ORAL ARGUMENT OF JAMES C. CARTER, ESQ. 113 ^M?,1?laine'8 note defends .the acts complained of by Her Majesty's Government on the following grounds : 1. That "the Canadian vessels arrested and detained in the Behring Sea were engaged in a pursuit that is in itself contra bonos mores—a. pursuit which of necessity involves a serious and permanent injury to the rights of the Government and people of the United States." * 2. That the fisheries had been in the undisturbed possession and under the exclusive control of Russia from their discovery until the cession of Alaska to the United States m 1867, and that from this date onwards until 1886 they had also-remained in the undisturbed possession of the United States Government. 3. That it is a fact now held beyond denial or doubt that the taking of seals in the open sea rapidly leads to the extinction of the species, and that therefore nations not possessing the territory upon which seals can increase their numbers by natural growth should refrain from the slaughter of them in the open sea. Mr. Blaine further argues that the law of the sea and the liberty which it confers do not justify acts which are immoral in themselves, and which inevitably tend to results against the interest and against the welfare of mankind; and he proceeds to justify the forcible resistance of the United States Government by the necessity of defending not only their own traditional and long established rights, but also the rights of good morals and of good government the world over. I have no fault to find with that statement by Lord Salisbury. It exhibits a clear understanding of the positions taken by Mr. Blaine and well enough describes them, except in the last sentence where he imputes to the United States Government an intention, or a disposition, to defend the rights of good morals and good government the world over. If he means they had asserted a right to undertake to do that, without reference to their own interest, the observation is not a correct one. The next occasion on which Mr. Blaine dealt with the subject was in his letter of June 30, 1890, which is found on page 224. In that note he takes up the point, which Lord Salisbury had dealt with before, of Eussian claims in Bering Sea, and undertakes to answer and refute Lord Salisbury's view in reference to it; but he does not in that letter in the slightest degree change the attitude which he had previously assumed in reference to pelagic sealing, so far as respected the ground upon which the Government of the United States based its views. He expressly takes care that it shall not be understood that the United States make any assertion of a right of mare clausum as to any part of Bering Sea. I read the paragraph of his letter from page 233. He says there : The result of the protest of Mr. Adams, followed by the cooperation of Great Britain, was to force Russia back to 54° 40' as her southern boundary. But there was no renunciation whatever on the part of Russia as to the Behring Sea, to which the ukase especially and primarily applied. As a piece of legislation this ukase was as authoritative in the dominions of Russia as an act of Parliament is in the dominions of Great Britain or an act of Congress in the territory of the United States. Except as voluntarily modified by Russia in the treaty with the United States, April 17, 1824, and in the treaty with Great Britain, February 16,1825, the ukase of 1821 stood as the law controlling the Russian possessions in America until the close of Russia's ownership by transfer to this Government. Both the United States and Great Britain recognized it, respected it, obeyed it. It did not, as so many suppose, declare the Behring Sea to. be mare clausum. It did declare that the waters, to the extent of 100 miles from the shores, were reserved for the subjects of the Russian Empire. Of course many hundred miles, east and west and north and south, were thus intentionally left by Russia for the whale fishery and for fishing, open and free to the world, of which other nations took large advantage. Perhaps in pursuing this advantage foreigners did not always keep 100 miles from the shore, but the theory of right on which they conducted their business unmolested was that they observed the conditions of the ukase. . But the 100-mile restriction performed the function for which it was specially ' designed in preventing foreign nations from molesting, disturbing, or by any possibility sharing in the fur trade. The fur trade formed the principal, almost the sole employment of the Russian American Company. It formed its employment, indeed, to such a degree that it soon became known only as the Russian American Fur Company, and quite'suggestively that name is given to the Company by Lord balisbury B S, PT XII 8 114 ORAL ARGUMENT OF JAMES C. CARTER, ESQ. •„ +-h* fli.mflteh to which I am replying. While, therefore, there may have been a Lge^untof^wfuYwuXngZa flfhingin the Behring Sea, the taking of furs by foreigners was always and under all circumstances illicit. He there asserts that it was not the purpose of the Ukase of 1821 to establish a mare clausum, as was by so many supposed, but that its obiect was to preserve for the exclusive use and enjoyment by Eussian subjects the benefits of the fur trade, the 100-mile exclusion being an instrumentality for that purpose. AnoW 2 The next important note in the correspondence is that of August Z, 1890, bv Lord Salisbury; but that again is confined to this discussion of Eussian rights; and there is nothing, I believe, pertinent to the point which I am-now upon, namely, that of showing what the distinct attitude of the Government of the United States was. This was in the course of the correspondence and controversy between Mr. Blaine ana Lord Salisbury concerning the extent of the Eussian pretensions and the extent to which they had been acquiesced in. To that Mr. ±$laine rejoins in a letter beginning on page 263, and it is that letter: which contains the single observation which m.ght be taken as a^Justification • for the statement that Mr. Blaine had put the American claims m the controversy upon the basis of an acquisition by Eussia and a transmission to the United States of a sovereign dominion over Bering Sea. That observation I have already alluded to, but I return to it again. It is found on page 263. The United States contends that the Behring Sea was not ^^J1^' <,°paeJnc referred to, in either treaty, and was in no sense lncluaeo. in _e P Ocean". If Great Britain can maintain her position ™at *e «ehring bea at tne time of the treaties with Russia of 1824 and 1Wo.w^ln5IU,aea ™ ,,,4„f "„":„„+ w the Government of the United States has no well-groundett compiainïaga™J- "~- If, on the other hand, this Government can prove beyond all doubt that the Behring Sea, at the date of the treaties, was understood by the ^^ëg^En™" th«n a separate body of water, and was not included m the phrase F^inc Ocean , tnen the American case against Great Britain is complete anrt unciemauie. Those observations standing alone might fairly be taken as indicating that Mr. Blaine had put the whole position of the United States in this controversy upon its ability to maintain that Eussia had acquired by the Ukase of 1821, and other acts, sovereign authority and sovereign jurisdiction over Bering Sea. It is impossible that he could have intended it I say it is impossible that he could have intended it, because it is utterly inconsistent with what he says in the same letter. I assume that he intended by that observation that if Great Britain succeeded in making out her case, the United States, so far as that question was concerned, would have no ground of complaint against her; and so, on the contrary, if the United States succeeded in making out her case, Great Britain, so far as that question teas concerned, would have no just ground of complaint against the seizures; but that he did not mean to change his ground, becomes perfectly apparent from his more distinct assertions near the close of the same letter; and I must again read them. The repeated assertions that the Government of the United States demands that the Behring Sea be pronounced mare clausum, are without foundation. The Government has never claimed it and never desired it. It expressly disavows it. At the same time the United States does not lack abundant authority, according to the ablest exponents of internationallaw, for holding asmall section of the Behring Sea for the protection of the fur-seals. Controlling a comparatively restricted area of water for that one specific purpose is by no means the equivalent of declaring the sea, or any part thereof, mare clausum. Nor is it by any means so serious an obstruction as Great Britain assumed to make in the South Atlantic, nor so groundless an interference with the common law of the sea as is maintained by British authority today in the Indian Ocean. The President does not, however, desire the long post- ORAL ARGUMENT OF JAMES C. CARTER, ESQ. ponement'which ai '.clai ixpended upon the discussion of the abstract question of .do not conceive it to be applicable to the present case, table fishery, and a large and, if properly managed, permanent industry, the property of the nations on whose shores it iscarried on. It is proposed by the colony of a foreign nation, in defiance of the joint remonstrance of all the countries interested, to destroy this business by the indiscriminate slaughter and extermination of the animals in question, in the open neighboring sea, during the period of gestation, when the common dictates of humanity ought to protect them, were there no interest at all involved. And it is suggested that we are prevented from defending ourselves against such depredations because the sea at a certain dis- "The same line of argument would take under its protection piracy and the slave trade when prosecuted in the open sea, or would justify one nation in destroying the commerce of another by placing dangerous obstructions and derelicts in the open sea near its coasts. There are many things that can not be allowed to be done on the open sea with impunity, and against which every sea is mare clausum; and the right of self-defense as to person and property prevails there as fully as elsewhere. If the fish upon Canadian coasts could be destroyed by scattering poison in the open sea adjacent with some small profit to those engaged in it, would Canada, upon the just principles of international law, be held defenseless in such a case? Yet that process would be no more destructive, inhuman, and wanton than this. " If precedents are » anting for a defense so necessary and so proper, it is because precedents for such a course of conduct are likewise unknown. The best international law has arisen from precedents that have been established when the just occasion for them arose, undeterred by the discussion of abstract and inadequate rules." Lord Salisbury in a note subsequent to this, on February 21st, 1891, again attempted to impute to Mr. Blaine a reliance, and a sole reliance, on Eussian pretentions, instead of upon a principle of property right. That will be found on page 290. He says in a paragraph near the bottom of the page : The claim of the United States to prevent the exercise of the seal fishery by other nations in Behring Sea rests now exclusively upon the interest which by purchase they possess in a ukase issued by the Emperor Alexander I, in the year 1821, which prohibits foreign vessels from approaching within 100 Italian miles of the coasts and islands then belonging to Russia in Behring Sea. It is not, as I understand, con- * tended that the Russian Government, at the time of the issue of this ukase, possessed any inherent right to enforce such a prohibition, or acquired by the act of issuing it any claims over the open sea beyond thet rritorial limit of 3 miles which they would not otherwise have possessed. But it is said that this prohibition, worthless in itself, acquired validity and force against the British Government because that Government can be shown to have accepted its provisions. The ukase was a mere usurpation ; but it is said that it was converted into a valid international law, as against the British Government, by the admission of that Government itself. Now Lord Salisbury could not, I think, fairly, with the correspondence of Mr. Blaine before him, which I have already read, impute to the United States Government a sole reliance upon a jurisdiction asserted to have been acquired by Eussia; but he attempts to do it there, and is very sharply corrected by Mr. Blaine in a subsequent note of April 14,1891,which will be found on page 295. I read from page 298 : In the opinion of the President, Lord Salisbury is wholly and strangely in error in making the following statement: . '"M^SK "Nor do they [the advisers of the President] rely, as a justification for the seizure of British ships in the open sea, upon the contention that the interests of the seal fisheries give to the United States Government any right for that purpose which, according to international law, it would not otherwise possess." The Government of the United States has steadily held just the reverse of the position which Lord Salisbury has imputed to it It holds that the ownership of the islands upon which the seals breed, that the habit of the seals in regularly resortin°- thither and rearing their young thereon, that their going out from the islands in search of food and regularly returning thereto, and all the facts and mci- 116 ORAL ARGUMENT OF JAMES C. CARTER, ESQ. dents of their relation to the island, give to the United States a property interest therein ; that this property ipterest was claimed and exercised by Russia during the whole period of its sovereignty over the land and waters of Alaska; that England recognized this property interest so far as recognition is implied by abstaining from all interference with it during the whole period of Russia's ownership of Alaska, and during the first nineteen years of the sovereignty of the United States. It is yet to be determined whether the lawless intrusion of Canadian vessels in 1886 and subsequent years has changed the law and equity of the case theretofore prevailing. And with that extract I conclude my observations concerning the attitude taken by the United States. From first to last it was based upon the assertion of a property interest in these seals, strengthened indeed by the allegation that that property interest had been originally held by Eussia, and while held by Eussia had been recognized by both Great Britain and the United States, and that the possession of this property interest by the United States gave it the right—a right which every Government has—to protect its property wherever that property has the right to be, and by such measures as are necessary for the purposes of such protection. Now then we have out of this case, as far as I am capable of putting out of it, any argument as to whether Eussia ever acquired a sovereign jurisdiction over any part of Bering Sea, or whether she ever transmitted to the United States any sovereign jurisdiction over any part of it. We make no assertion of that character. We put no part of our case upon any such assertion. We do not suppose that any such assertion of jurisdiction was ever made by Eussia. But do I mean that this matter of Eussian pretentions in Bering Sea, the rights which she may have asserted and acquired in those remote waters and which the United States may have acquired from her, have no place or importance in this controversy? No; I do not mean that. These pretensions do have a place, and an important place, which I am now about, so far as I am able, to vindicate for them. That is this: It could be hardly better expressed than Mr. Blaine has expressed it in the passage from which I last read : That this property interest was claimed and exercised by Russia during the whole period of its sovereignty over the land and waters of Alaska: that England recog- , nized this property interest so far as recognition is implied, by abstaining from all interference with it during the whole period of Russia's ownership of Alaska, and during the first nineteen years of the sovereignty of the United States. Now, I am going to deal with this subject but very briefly. The question mainly turns upon what rights Eussia did originally assume in Bering Sea, and whether those rights were ever displaced or modified by the subsequent treaties between her and the United States and between her and Great Britain in 1824 and 1825, and if displaced, or modified, to what extent. I am going to deal, I say very briefly, with that argument, and for two reasons : First, as I have already intimated, I do not conceive that it plays any vital part whatever in this controversy, and therefore I should do injustice to the general argument of the question if I should assign a disproportionate space to it; and I could not go through with the argument and refer to all the diplomatic communications and occasional acts of the various countries which have a bearing upon it without employing several days in the discussion. I have neither time nor strength for that and am not going into it. If I did do it, I could not implant such an impression of the particular incidents of the controversy as would enable you to remember it for any succession of days. It will be inevitable—it will be a task which the learned arbitrators will find it necessary to go through with—to examine this diplomatic correspondence and to examine the grounds taken ORAL ARGUMENT OF JAMES C. CARTER, ESQ. 117 by the American Government in the various communications upon this subject by Mr. Blaine. I could not lessen that laftor materially by any lengthy discussion now. Nevertheless I must deal with it very briefly. I have endeavored to describe in the sketch with which I began this part of my argument, the early dealing on the part of Eussia with Bering Sea and its coasts and Islands, and I think that I succeeded in showing that Eussia prior to 1821 had appropriated to herself all the coasts and islands of that sea and all their resources so far as any nation could appropriate them ; that such appropriation was just and in accordance with natural law There was enough only for one great nation, and the world would be best served by such exclusive appropriation. We do not assert an appropriation of the products of the sea unconnected with the shores. We assert no such appropriation on the part of Eussia. Eussia asserted the right to protect her trade and industries on the shores by the exercise of self defensive authority upon the high seas and practically by excluding other nations from a belt of water extending 100 miles from the coasts and islands. She declared this to be, not an assumption of sovereignty, or mare clausum, or attempt to establish mare clausum, but a scheme for the prevention of invasions upon her trade; in other words, a measure of self-defence. That assertion of authority was protested against, formed the subject of negotiation, and was eventually modified by treaties between Great Britain and the United States, severally, and Eussia. Now, except so far as the effect of the Ukase was thus modified, it stood, and stood assented to by Great Britain and the United States. The assent was indeed an implied one; but the implication was sufficiently strong. The inquiry then arises how far the assumption of authority by Eussia in the Ukase of 1821 and her acts in support of it were modified or displaced by these subsequent treaties. In other words it involves the interpretation of the language and effect of these subsequent treaties. Now as the interpretation of these documents is not entirely easy upon the face of them, it will be proper to place ourselves in the possession of certain information in regard to the matters covered by the treaties, and especially in regard to the notice which the American and British Governments took of the Ukase when it was first promulgated. The two sections of the Ukase which it is necessary to read will be found on page 16 of the first volume of our Appendix: Sec. 1.—The pursuits of commerce, whaling, and fishery, and of all other industry on all islands, ports, and gulfs including the wholeof the northwest coast of America, beginning from Behring's Straits to the 51° of northern latitude, also from the Aleutian Islands to the eastern coast of Siberia, as well as along the Kurile Islands from Behring's Straits to the South Cape of the Island of Urup, viz, to the 45° 50' northern latitude, is exclusively granted to Russian subjects. Sec. 2.—It is therefore prohibited to all foreign vessels not only to land on the coasts and islands belonging to Russia as stated above, but also to approach them within less than a hundred Italian miles. The transgressor's vessel is subject to confiscation along with the whole cargo. Now it would seem that when the Government of Great Britain received information of that Ukase they applied to so eminent an authority as Lord Stowell to learn what the effect of it was, and he writes to Lord Melville on the 26th of December, 1821. I am reading from the Appendix to the Case of Great Britain, volume 2, page 12: ORAL ARGUMENT OF JAMES C. CARTER, ESQ. Lord Stowell to Lord Melville. My Dear Lord : I have pernsed these papers, and it appears to me to be unsafe to proceed to any controversial discussion of the proposed Regulations, till it is shown that they issue from a competent authority founded upon an acknowledged title of territorial and exclusive possession of the portions of the globe to which they relate. I am myself too slightly acquainted with the facts regarding such possession (how originally acquired and how subsequently enjoyed) to be enabled to say that upon undisputed principles such a possession exists. It is perfectly clear from these Regulations that it has not hitherto been exclusive in the extent in which it is now claimed; for they are framed for the very purpose of putting an end to foreign intercourses of traffic therein, which they denominate illicit but which they admit existed de facto. The territories claimed are of different species—islands—portions of the continent— Ii littl vith either islands or continents ;his case been acquired. I con- s not appear in the opinion and ds and continents. In that of islands, discovery al sient to constitute a title. Not so in the case of ct South American Continent the Spaniards and Portugu* ithority which in that age was universally respect îas usually been held snts. In the case of sorted to grants from <r held, an t to the and less ■ the grantor is, is not expressly declared. If, s is meant, the inquiry then reverts to the quest an authority, and thinking that that qnestio myself with observing upon the Regulations 1 extent that appears very unmeasured and insu But I think that it s mere discovery of a coast gives extensive continent to which it considerable extent of distance, tract of such a continent and for rposes. I am too ignorant of par- atly applicable to such cases. I and xclnsively to Russian si is probable, the Autocrat of Ru a respecting the foundation of s must ha first disposed of, I com jinselves that they are carried t( ho I read that letter for the purpose of showing two things: First, the views of a distinguished jurist of that day upon the question of what right is acquired by the discovery of new regions, and what acts were necessary for the purpose of really constituting property in them; and next for the purpose of showing that Lord Stowell gathered at once from the face of these regulations that they were not designed as assuming sovereign jurisdiction over the sea, but were defensive regulations for the purpose of protecting commerce and the industries of a region over which it was assumed that Eussia had sovereign control; and he, as you will perceive, rests the conclusion as to the validity of these regulations upon the completeness and perfectness of the sovereignty of the nation which had issued them over the shore. Eight there I may also quote an opinion by Sir Eobert Phillimore, evidently in reference to this very territory ; because I think at an early period this whole territory, including Alaska, was vaguely understood by the world in general to be embraced under the term "Oregon". The passage from Sir Eobert Phillimore's book, which I wish to refer to, is contained on page 39 of our Argument. He says (Int. Law, vol. 1, pp. 259, 260) : A similar settlement was founded by the British and Russian Fur Companies in North America. The chief portion of the Oregon Territory is valuable solely for the fur-bearing animals which it produces. Various establishments in different parts of this territory organized a system for securing the preservation of these animals, and exercised for these purposes a control over the native population. This wasnghtly contended ORAL ARGUMENT OF JAMES C. CARTER, ESQ. 119 to be the only exercise of proprietary right of which these particular regions were at that time susceptible, and to mark that a beneficial use was made of thl whole territory by the occupants. That seems to me very reasonable and to tend very much to support the observations that I made at a former period of this argument to the effect that these Northern regions, yielding only oue product, and one which could be easily gathered by one nation, were fully appropriated by Eussia to herself by the colonial establishments which she had formed for that purpose. It was this pretension under this aspect, which attracted the notice of Great Britain. In order to ascertain what the view of this Power was in reference to it and how far she complained of it—I speak of both Great Britain and the United States and how far they complained of it—we must look to the protests which were made. The first British protest in reference to it will be found on page 14 of the Appendix to the British Case, volume 2 : The Marquis of Londonderry to Count Lieven. Foreign Office, January 18,18ZZ. The undersigned has the honour hereby to acknowledge the note, addressed to him by Baron de Nicolai, of the 12th November last, covering a copy of an Ukase issued by his Imperial Majesty the Emperor of all the Russias, and bearing date the 4th September, 1821, for various purposes, therein set forth, especially connected with the territorial rights of his Crown on the north-western coast of America, bordering upon the Pacific, and the commerce and navigation of His Imperial Majesty's subjects in the seas adjacent thereto. This document, containing Regulations of great extent and importance, both in its territorial and maritime bearings, has been considered with the utmost attention, and with those favorable sentiments which His Majesty's Government always bear towards the acts of a State which His Majesty has the satisfaction to feel himself connected, by the most intimate ties of friendship and alliance; and having been referred for the report of those high legal authorities, whose duty it is to advise His Majesty on such matters. The undersigned is directed, till such friendly explanations can take place between the two Governments as may obviate misunderstanding upon so delicate and important a point to make such provisional protest against the enactments of the said Ukase as may fully serve to save the rights of His Majesty's Crown, and may protect the persons and properties of His Majesty's subjects from molestation in the exercise of their lawful callings in that quarter of the globe. The undersigned is commanded to acquaint Count Lieven that it being the King's constant desire to respect, and cause to be respected by his subjects in the fullest manner, the Emperor of Russia's just rights, His Majesty will be ready to enter into amicable explanations upon the interests affected by this instrument, in such manner as may be most acceptable to His Imperial Majesty. In the meantime, upon the subject of this Ukase generally, and especially upon the two main principles of claim laid down therein, viz., an exclusive sovereignty alleged to belong to Russia over the territories therein described, as also the exclusive right of navigating and trading within the maritime limits therein set forth, His Britannic Majesty must be understood as hereby reserving all his rights, not being prepared to admit that the intercourse which is allowed on the face of this instrument to have hitherto subsisted on those coasts, and in those seas, can be deemed to be illicit, or that the ships of friendly Powers, even supposing an unqualified sovereignty was proved to appertain to the Imperial Crown in these vast and very imperfectly occupied territories could by the acknowleged law of nations, be excluded from navigatingwithin the distance of 100 Italian miles as therein laid down from the coast, the exclusive dominion of which is assumed (but, as His Majesty's Government conceive, in error) to belong to his Imperial Majesty the Emperor of all the Russias. LONDONDEKKT. That protest would appear to be framed rather in the doubtful and indeterminate form suggested by Lord Stowell's observations upon the Ukase. It does, however, shadow forth rather vaguely complaints against this Ukase of a twofold character. First/its assumption of territorial sovereignty over these shores, and, next, the attempt to 120 ORAL ARGUMENT OF JAMES C. CARTER, ESQ. exclude citizens of other nations from 100 miles on the sea, mentioning both the points. That is the first British protest. The American protest will be found on page 132 of the first volume of the Appendix to the Case of the United States. It seems that the Ukase was transmitted on the 11th of February, 1822, by Mr. Poletica, the Eussian Minister in Washington to Mr. Adams, the American Secretary of State at that time, and on the 25th Mr. Adams addresses this note to Mr. Poletica: Mr. Adams to M. de Poletica. Department of State, Washington, February Z5,18Z2.. Sir: I have the honor of receiving your note on the 11th instant, inclosing a printed copy of the regulations adopted by the Russian American Company, and sanctioned by His Imperial Majesty, relating to the commerce of foreigners in the waters bordering on the establishments of that company upon the northwest coast of America. I am directed by the President of the United States to inform you that he has seen with surprise, in this edict, the assertion of a territorial claim on the part of Russia, extending to the fifty-first degree of north latitude on this continent, and a regulation interdicting to all commercial vessels other than Russian, npon the penalty of seizure and confiscation, the approach upon the high seas within 100 Italian miles of the shores to which that claim is made to apply. The relations of the United States with His Imperial Majesty have always been of the most friendly character; and it is the earnest desire of this Government to preserve thein in that state. It was expected, before any act which should define the boundary between the territories of the United States and Russia on this continent, that the same would have been arranged by treaty between the parties. To exclude the vessels of our citizens from the shore, beyond the ordinary distance to which the territorial jurisdiction extends, has excited still greater surprise. This ordinance affects so deeply the rights of the United States and of their citizens that I am instructed to inquire whether you are authorized to give explanations of the grounds of right, upon principles generally recognized by the laws and usages of nations, which can warrant the claims and regulations contained in it. I avail, etc., . John Quincy Adams. . That was the protest of the United States. It was answered by the Eussian Minister M. de Poletica, in a note which is found on page 133, Volume I, of the Appendix to the Case of the United States and which I have already read and will therefore not repeat. I will observe in regard to it only that the Eussian Minister in that note says that this Ukase is not an attempt to make the Bering Sea, or any part of it, mare clausum, but that it is adopted as a measure of prevention to protect the industries of Eussia and her commerce on that sea. Sir Charles Eussell. We think that answer of de Poletica is very important, and we do not admit that that is a correct summary of it. Mr. Carter. Do you prefer that it should be read in full. Sir Charles Eussell. Just as you please about that. Mr. Carter. I am quite willing that it should be read now. Sir Charles Eussell. Oh no ! Mr. Carter. Negotiations at once began between Eussia Great Britain and the United States in reference to the assumption of . authority contained in this Ukase and they were at first jointly conducted. That appears in the correspondence here, and I will not take time to read the various letters in which it appears for the purpose of showing it; but it does sufficiently appear. Great Britain and the United States acted in conjunction, and each was consequently fully apprised of the views of the other. That common action continued for a considerable period of time in the negotiations and was finally broken off—broken off as I apprehend, and as I think is evident from ORAL ARGUMENT OF JAMES C. CARTER, ESQ. 121 the correspondence, because the United States Government had taken the attitude in the course of the correspondence that it would not ' recognize any further establishments of European powers on the Eorth American continent—a suggestion of a doctrine subsequently known among statesmen as the Monroe doctrine. Mr. Monroe was then President of the United States. In consequence of that suggestion Great Britain withdrew from her joint action with the United States in the negotiation, but as I rather assume, and as I think is very natural and indeed evident, kept herself apprised of the course of the negotiations between Eussia and the United States. The President. Was there a formal declaration that they would cease acting jointly? Mr. Carter. There was a formal declaration that they would cease acting jointly. I cannot now point to the particular letter; but that is the fact. The President. And the motive given was the doctrine of President Monroe? Mr. Carter. I am not able to say that was the reason given in the statement, but that I think was the fact. I may possibly be able hereafter to answer the question of the President. I cannot lay my hand at present upon the correspondence showing the grounds upon which Great Britain withdrew her participation. The President. Perhaps it is not material to your argument. Mr. Carter. Here is a note that perhaps throws light upon it. This is an extract from a letter from Mr. Eush, the American Minister in London to his own Government dated January 9,1824. I read from the American State Papers, volume 5, p. 463. Mr. Justice Harlan. Probably what you are looking for is on page 48 of volume 2 of the British Case, a letter from Mr. Canning to Sir Charles Bagot. There is some allusion there to it. Mr. Carter. I will read this letter to which I refer : Extract of a letter from Mr. Bush, dated London, January 9,18Z4. I have heretofore written to you on the 6th and 22nd of December, and have now to inform you that from interviews which I have had with Mr. Canning since the present month set in, I find that he will decline sending instructions to Sir Charles Bagot to proceed jointly with our Government and that of Russia in the negotiation relative to the Northwest coast of America; but that he will be merely informed that it is now the intention of Great Britain to proceed separately. Mr. Canning intimated to me that to proceed separately was the original intention of this Government, to which effect Sir Charles Bagot had been instructed, and never to any other; and that Sir Charles had only paused under your suggestions to him of its being the desire of our Government that the three powers should move in Concert at St. Petersburg upon thii " The resumption of its original c the principle which our Governnw principle to which Great Britian d I have informed the Secretary of 0«,«, »t y*, ■«,«*„ 1UTO1B.TO ^ uUlo „„,«™ It will produce no alteration in my endeavors to obtain in negotiation here a se ment of the points as between the United States and Great Britain, respectinj Northwest coast, in manner as my instructions lay them down to me. And Mr. Canning's version of the same affair will be found in place just indicated by Mr. Justice Harlan. Mr. Canning says note to Sir Charles Bagot: f this Government has arisen chiefly idopted, of not considering the Ame! ition by any of the European powe: 122 ORAL ARGUMENT OF JAMES C. CARTER, ESQ. States at the opening of the Congress supplied another reason at once decisive in itself, and susceptible of being stated to Mr. Rush with more explicitness than those which I have now detailed to your excellency, I refer to the principle declared in that speech, which prohibits any further attempt by European Powers at colonization in America. So that the original action in common between Great Britain and the United States and the subsequent breaking up of that common action by Great Britain all appear to be quite evident. They are important however to my present argument only as showing that Great Britain and the United States, acting as they did originally in common, were at the start entirely well acquainted with the views, of each other. Now the next piece of evidence which it is important to notice in order to ascertain the views with which the two parties approached this negotiation—for that is what I am now upon—is to be found in the instructions issued to the negotiators. I call attention to the instructions from the United States Government which will be found in a letter from Mr. John Quincy Adams to Mr. Minister Middleton on page 141, Vol. I, Appendix to the Case of the United States. 1 think I ought to read the whole of that letter. Mr. Adams to Mr. Middleton. No. 16.] Department of State, Washington, July ZZ, 18Z3. Sir : I have the honor of inclosing herewith copies of a note from Baron de Tuyll, the Russian minister, recently arrived, proposing, on the part of His Majesty the Emperor of Russia, that a power should be transmitted to you to enter upon a negotiation with the ministers of his Government concerning the differences which have arisen from the Imperal ukase of 4th (16th) September, 1821, relative to the northwest coast of America, and of the answer from this Department acceding to this proposal. A full power is accordingly inclosed, and you will consider this letter as communicating to you the President's instructions for the conduct of the negotiation. From the tenor of the ukase, the pretentions of the Imperial Government extend to an exclusive territorial jurisdiction from the forty-fifth degree of north latitude, on the Asiatic coast, to the latitude of fifty-one north on the western coast of the American continent ; and they assume the right of interdicting the navigation and the fishery of all other nations to the extent of 100 miles from the whole of that The United States can admit no part of these claims. Their right of navigation and of fishing is perfect, and has been in constant exercise from the earliest times, after the peace of 1783, throughout the whole extent of the Southern Ocean, subject only to the ordinary exceptions and exclusions of the territorial jurisdictions, which, so far as Russian rights are concerned, are confined to. certain islands north of the fifty-fifth degree of latitude, and have no existence on the continent of America. The correspondence between Mr. Poletica and this Department contained no discussion of the principles or of the facts upon which he attempted the justification of the Imperial ukase. This was purposely avoided on our part, under the expectation that the Imperial Government could not fail, upon a review of the measure, to revoke it altogether. It did, however, excite much public animadversion in this country, as the ukase itself had already done in England. I inclose herewith the North American Review for October, 1822, No. 37, which contains an article (p. 370) written by a person fully master of the subject; and for the view of it taken in England I refer you to the fifty-second number of the Quarterly Review, the article upon Lieutenant Kotzebue's voyages. From the article in the North American Review it will be seen that the rights of discovery, of occupancy, and of uncontested possession, alleged by Mr. Poletica, are all without foundation in fact. It does not appear that there ever has been a permanent Russian settlement on this continent south of latitude 59°, that of New Archangel, cited by Mr. Poletica, in latitude 57° 30', being upon an island. So far as prior discovery can constitute a foundation of right, the papers which I have referred to prove that it belongs to the United States as far as. 59° north, by the transfer to them of the rights of Spain. There is, however, no part of the globe where the mere fact of discovery could be held, to give weaker claims than on the northwest coast. "The great sinuosity," says Humboldt, "formed by the coast between the fifty-fifth and sixtieth parallels of latitude embraces discoveries made by Gali, Behring and Tchivikoff, Quadra, Cook, La Perouse, Malespièr, and Vancouver. No European nation has yet formed ORAL ARGUMENT OF JAMES C. CAR! i and di stant fron ions for the last t hree centuries o ussian A believe t îat the'co ast of Behrinir's le Ischu d when s peaking c f the Spanish i New Spi in, Vol. i; Book 3, chap. 8 f 28th E 1822, to me, he rest coast of Am a degree of north latitude to Behri ., 1822,1 » says th fit the charter ( merely c< needing t o them a part This is the most correct view of the subject. The Emperor Paul granted to the Russian American Company oertain exclusive privileges of commerce—exclusive with reference to other Russian subjects ; but Russia had never before asserted a right of sovereignty .over any part of the North American continent, and in 1799 the people of the United States had been at least for twelve years in the constant and uninterrupted enjoyment of a profitable trade with the natives Of that very coast, of which the ukase of the Emperor Paul could not deprive them. It was in the same year, 1799, that the Russian settlement at Sitka was first made, and it was destroyed in 1802 by the natives of the country. There were, it seems, at the time of its destruction, three American seamen who perished with the rest, and a new settlement at the same place was made in 1804. In 1808 Count Romanzoff, being then Minister of Foreign Affairs aud of Commerce, addressed to Mr. Harris, consul of the United States at St. Petersburg, a letter complaining of the traffic carried on by citizens of the United States with the native islanders of the northwest coast, instead of trading with the Russian possessions in America. The Count stated that the Russian Company had represented this traffic as clandestine, by which means the savage islanders, in exchange for otter skins, had been furnished with firearms and powder, with which they had destroyed a Russian fort, with the loss of several lives. He expressly disclaimed, however, any disposition on the part of Russia to abridge this traffic of the citizens of the United States, but proposed a convention by which it should be carried on exclusively with the agents of the Russian American Company at Kadiak, a small island near the promontory of Alaska, at least 700 miles distant from the other settlement at Sitka. On the 4th of January, 1810, Mr. Daschkoff, chargé d'affaires, and consul general from Russia, renewed this proposal of a convention, and requested as an alternative that the United States should;.by a legislative act, prohibit the trade of their citizens with the natives of the northwest coast of America as unlawful and irregular, and thereby induce them to carry on the trade exclusively with the agents of the Russian American Company. The answer of the Secretary of State, dated the 5th of May, 1810, declines those proposals for reasons which were then satisfactory to the Russian Government, or to which at least no reply on their part was made. Copies of these papers and of those containing the instructions of the minister of the United States then at St. Petersburg, and the relation of his conferences with the chancellor of the empire, Count Romanzoff, on this subject are herewith inclosed. By them it will be seen that the Russian Government at that time explicitly declined the assertion of any boundary line upon the northwest coast, and that the proposal of measures for confining the trade of the citizens of the United States exclusively to the Russian settlement at Kadiak and wi th the agents of the Russian American Company had been made by Count Romauzofl'under the impression that they would be as advantageous to the interests of the United States as to those of Russia. It is necessary now to say that this impression was erroneous; that the traffic of the citizens of the United States with the natives of the northwest coast was neither clandestine, nor unlawful, nor irregular; that it had been enjoyed many years before the Russian American Company existed, and that it interfered with no lawful right or claim of Russia. This trade has been shared also by the English, Frenoh, and Portuguese. In the prosecution of it the English settlement of Nootka Sound was made, which occasioned the differences between Great Britain and Spain in 1789 and 1790, ten years before the Russian American Company was first chartered. It was in the prosecution of this trade that the American settlement at the moutn of the Columbia River was made in 1811, which was taken by thejBritish during the late war, and formally restored to them on the 6th of October, 1818. By the treaty of the 22d of February, 1819, with Spain, the United States acquired all the rights 124 ORAL ARGUMENT OF JAMES C. CARTER, ESQ. of Spain north of latitude 42°; and by the third article of the convention between the United States and Great Britain of the 20th of October, 1818, it was agreed that any country that might be claimed by either party on the northwest coast of America, westward of the Stony Mountains, should, together with its harbors, bays, and creeks, and the navigation of all rivers within the same, be free and open for the term of ten years from that date to the vessels, citizens, and subjects of the two powers, without prejudice to the claims of either party or of any other State. You are authorized to propose an article of the same import for a term often years from the signature of a joint convention between the United States, Great Britain, and Russia. The right of the United States from the forty-second to the forty-ninth parallel of latitude on the Pacific Ocean we consider as unquestionable, being founded, first, on the acquisition, by the treaty of February 22, 1819, of all the rights of Spain ; second, by the discovery of the Columbia River, first from sea, at its mouth, and then by land, by Lewis and Clarke; and third, by the settlement at its mouth in 1811. This territory is to the United States of an importance which no possession in North America can be to any European nation, not only as it is but the continuity of their possessions from the Atlantic to the Pacific Ocean, but as it offers their inhabitants the means of establishing hereafter water cor—imnioations from the one to the other. It is not conceivable that any possession upon the continent of North America should be of use or importance to Russia for any other purpose than that of traffic with the natives. This was, in fact, the inducement to the formation of the Russian- American Company and to the charter granted them by the Emperor Paul. It was the inducement to the ukase of the Emperor Alexander. By offering free and equal access for a term of years to navigation and intercourse with the natives to Russia, within the limits to which our claims are indisputable, we concede much more than we obtain. It is not to be doubted that, long before the expiration of that time, our settlement at the mouth of the Columbia River will become so considerable as to offer means of useful commercial intercourse with the Russian settlements on the islands of the northwest coast. With regard to the territorial claim, separate from the right of traffic with the natives and from any system of colonial exclusions, we are willing to agree to the boundary line within which the Emperor Paul had granted exclusive privileges to the Russian American Company, that is to say, latitude 55°. If the Russian Government apprehend serious inconvenience from the illicit traffic of foreigners with their settlements on the northwest coast, it may be effectually guarded against by stipulations similar to those, a draft of which is herewith subjoined, and to which you are authorized, on the part of the United States, to agree. As the British ambassador at St. Petersburg is authorized and instructed to negotiate likewise upon this subject, it may be proper to adjust the interests and claims of the three powers by a joint convention. Your full power is prepared accordingly. Instructions conformable to these will be forvrarded to Mr. Rush, at London, with authority to communicate with the British Government in relation to this interest and to correspond with you concerning it, with a view to the maintenance of the rights of the United States. I am, etc., John Quincy Adams. Henry Middleton, Envoy Extraordinary and Minister Plenipotentiary of the United States, St. Petersburg. [Inclosure.] Draft of treaty between the United States and Russia. Art. I. In order to strengthen the bonds of friendship and to preserve in future a perfect harmony and good understanding between the contracting parties, it is agreed that their respective citizens and subjects shall not be disturbed or molested, either in navigating or in carrying on their fisheries in the Pacific Ocean or in the South Seas, or in landing on the coasts of those seas, in places not already occupied, for the purpose of carrying on their commerce with the natives of the country; subject, nevertheless to the restrictions and provisions specified in the two following articles., Art. II. To the end that the navigation and fishery of the citizens and subjects or the contracting parties,.respectively, in the Pacific Ocean or in the South Seas, may not be made a pretext.for illicit trade with their respective settlements, it is agreed that the citizens of the United States shall not land on any part of the coast actually occupied by Russian settlements, unless by permission of the governor or commander thereof, and that Russian subjects shall, in like manner, be interdicted, from landing without permission at any settlement of the United States on the said northwest coast. ORAL ARGUMENT OF JAMES C. CARTER, ESQ. 125 Art. HI. It is agreed that no settlement shall be made hereafter on the northwest coast of America by citizens of the United States or under their authority, norih, nor Dy Russian subjects, or under the authority of Russia, south of the fifty-fifth degree of north latitude. 436^438 ^ther incl08Ures' see AmericaJi State Papers, Foreign Relations, vol. v, pp. Now the learned Arbitrators will perceive from that letter, which is very instructive in reference to the views of the United States Government at that time, that the only serious and practical objection on the part of the United States to whatever pretensions were set up by Eussia in this Ukase of 1821, were two: first, that she should have extended her territorial pretensions from 54° 40', where they stood under the charter to the Russian American Company of 1799, down to 51 degrees of North latitude; and, second, to her exclusion from the Northwest coast of United States citizens engaged in trade; in other words, the exclusion of them from the benefits of the trade on this Northwest eoast. The maritime pretension contained in the Ukase of 1821 was indeed alluded to and objected to; but it forms no substantial part of the objections which are so carefully urged by Mr. Adams. The substance of the objections urged by Mr. Adams are these: that the trade along this Northwest coast, by which he means the coast extending from, say 60 degrees of north latitude, down to the mouth of the Columbia Biver, had been for years in the enjoyment of various powers, of Russia, of the United States, of Great Britain, of Spain and of Portugal ; that they had all, to a greater or less degree, engaged in that trade; that the United States had engaged in it from the time that she had become an independent nation ; and that her right to a participation in that trade was entirely well founded, as Mr. Adams insisted. Now, that had reference to this coast along which I run the pointer [indicating on the map], and had no reference at all to Bering Sea, or to any of the islands of Bering Sea, or to the coast of Siberia— regions which, so far as respected, their coasts, or any trading upon the coasts, had never been visited by the vessels of the United States; and no thought had ever been entertained of engaging in such a commerce. The United States claimed title, according to this statement by Mr. Adams, up to the 59th degree, the present boundary of British Columbia. At that time Great Britain and the United States were of course in dispute as to whom this coast here (indicating on map) belonged to; and it was not until the year 1846 that that dispute was settled by the adoption of the present boundary. The President. On page 142 of the report of Mr. Adams from which you have just read, they speak of the 59th degree north as being the claim of the United States. I suppose it is a misprint. Mr. Carter. No, that is the point up to which the United States claimed. It would be where my pointer now is, up to the southern boundary of Alaska, a line which would take the whole of the peninsula. That was a claim which made this territory in part a disputed one.' The case which Mr. Adams made here by these instructions was this:: "Spain is the first discoverer up to the 60th degree of North latitude. We have her rights transferred to us. Therefore by first discovery, we have a title to latitude 60. In the next place we have always ngaged in trade on that eoast; have visited it continually ever since we were an id such rights as \ out of trade with the coast, added to the rights of prior discovery, constitute a title upon which we can make a dispute with Russia . So that we may see from this letter of Mr. Adams, and from bis instructions to the American negotiator of the Treaty, that practically L 126 ORAL ARGUMENT OF JAMES C. CARTER, ESQ. the whole importance of the dispute lay in the possession of that Northwest coast. That is all there was about it. There was indeed a sentimental assertion—I call it a sentimental one—that no further acquisition, no further settlements by European powers upon the American continent, would be permitted; but that did not amount to much, for in the very letter he offered to draw a boundary line with Russia at 55 degrees which would give her exclusive possession of a very considerable part of this disputed region. Practically the whole of the interests that were affected by this dispute centred upon that Northwest coast trade. And I might as well here strengthen that point. Mr. Adams, you will remember, refers in that letter of instructions to two articles in certain well-known periodicals of that time as containing very correct information about this region. He refers to an article in the Quarterly Review, and to an article in the North American Review. Here is an extract from the article thus referred to in the Quarterly Review. It will be found on page 12 of the first volume of our appendix: Let us examine, however, what claim Russia can reasonably set up to the territory in question. To the two shores of Bering Sea we admit she would have an undoubted claim, on the score of priority of discovery, that on the side of Asia having been visited by Deshnew in 1648, and that of America visited by Bering in 1741, as far down as the latitude 51° and the peaked mountain, since generally known by the name of Cape Fairweather; to the southward of this point, however, Russia has not the slightest claim. That is carrying the position and claim of Russia under the claim of prior discovery much farther south than the 60th degree. Here is the extract from the North American Review. That article in the North American Review was, I think I may undertake to say, written by Mr. William Sturgis of Boston, a very distinguished merchant of that day, of the firm of Bryant, Sturgis and Company, who carried on an extensive trade on this very coast; and he had himself been, as a member of that house and engaged in this navigation, many years on that coast. It was perfectly familiar to him, with its history, and with the trade which had arisen there. It is also on page 12 : a fur-hunters formed establishments, at an early y certain that it can be clearly demonstrated that no settlement was made eastward of Bering Bay till the one at Norfolk Sound (Sitka), in 1799. The statements of Cook, Vancouver, Mears (Mirs), Portlock, and La Perouse prove, what we readily admit, that previous to 1786 the Russians had settlements on the island of Kadiak and in Cook's River; but we shall take leave to use the same authorities to establish the fact that none of these settlements extended so far east as Bering Bay. [The Tribunal here took a recess.] Mr. Carter. Mr. President, the diplomatic papers, and especially the instructions from Secretary John Quincy Adams to the American negotiator of the Treaty with Russia and the historical evidence referred to in that letter and other historical evidence which was alluded to by me, establish, as it seems to me, without question, that, so far as the United States were concerned, their objections to the Ukase of 1821 were substantially confined to the unwarranted assertion of authority on the part of Russia—for such the United States deemed it to be—over the North-west Coast, where the United States had very valuable commercial interests. And it appears equally clear that, so far as the possessions of Russia north of the 60th parallel of north latitude, which includes the whole of Alaska and the whole of Bering Sea and the Aleutian Islands, the title of Russia to the possession and enjoyment of those territories was undisputed and constituted no subject of complaint on the part of the United States; and that, so far as respects ORAL ARGUMENT OF JAMES C. CARTER, ESQ. 127 the assertion of maritime dominion contained in the Ukase of 1821 while the United States made a formal objection to it, it did not make any considerable figure in the discussion. It was under those circumstances and with those views on the part of the United States and on the part of Russia that the Treaty of 1824 Was concluded, and the question now is as to the interpretation of that Treaty. Its provisions will be found on page 36, of the first volume of the Appendix to the American Case (quoting) : Art. I. It is agreed that, in any part of the Great Ocean, commonly called the Pacific Ocean, or South Sea, the respective citizens or subjects of the high" contracting Powers shall be neither disturbed nor restrained, either in navigation or in fishing, or in the power of resorting to the coasts, upon points which may not already have been occupied, for the purpose of trading with the natives, saving always the restrictions and conditions determined by the following articles. Art. II. With a view of preventing the rights of navigation and of fishing exercised upon the Great Ocean by the citizens and subjects of the high contracting Powers from becoming the pretext for an illicit trade, it is agreed that the citizens of the United States shall not resort to any point where there is a Russian establishment, without the permission of the governor or commander; and that, reciprocally, the subjects of Russia shall not resort, without permission, to any establishment of the United States upon the Northwest coast. That is the important part of the Treaty of 1824, so far as the present discussion is concerned; and the question is, whether the terms "Pacific Ocean" or "South Sea" include Bering Sea or exclude it. It is insisted on the part of Great Britain that they include it; it is insisted on the part of the United States that they do not; and we have to inquire which is the more reasonable interpretation under the circumstances of the case, and in view of all the lights which are thrown by the evidence concerning the understanding of the parties. Now, it is apparent at the start that that article of the Treaty admits of either interpretation upon its face. "Pacific Ocean" or "South Sea" may include the whole of Bering Sea, as is insisted upon by Great Britain ; and, on the other hand, it may exclude it, as is insisted upon by the United States. What is the consequence of accepting the interpretation insisted upon by Great Britain? It would be that the United States is, by the terms of that Treaty, permitted to land on all the coasts of the Pacific Ocean, including Bering Sea, under the dominion of Russia, including the whole of the coast of Siberia, the coast of Alaska and the islands in the Bering Sea: that is the consequence of this interpretation. On the other hand, if the interpretation insisted upon by the United States is correct, "Pacific Ocean" only applies to that part of the Pacific Ocean which is south of the Aleutian Islands, and which, therefore, washes only this disputed territory along here (pointing to the map). Its application on the other side of the Pacific, would be extremely limited. Well now, we have to say that the interpretation insisted upon by Great Britain is in a high degree improbable and unreasonable. Why ? Because it gives up at once to the United States what the United States never asked for, and that is a right to resort to the coasts of Bering Sea and the islands in Bering Sea. It surrenders the pretension on the part of Russia which had never prior to that time been challenged; and it gives and surrenders that important right to the United States without any consideration, so far as I am able to see. Why should we suppose that Russia intended in these negotiations to give to the United States a right to resort to her coasts and her islands which the United States never asked for? Why should we suppose that there was on the part of Russia a design to abandon a pretension which the United States never denied? My first point is that the interpretation insisted upon by Great Britain is unreasonable upon its 128 ORAL ARGUMENT OF JAMES C. CARTER, ESQ. face, and that we should not accept it, unless the language is such as to compel that acceptance. Now, when we return .to the language, of the Treaty, we at once find reason for the belief that the term "Pacific Ocean" was not intended to cover such a broad expanse. The language is : " It is agreed that in any part of the great Ocean... commonly called the Pacific Ocean or South Sea." Those words "commonly called" are not destitute of significance; they were not inserted here without a purpose. Did the Pacific Ocean, as spoken of in that age, include Bering Sea? What do we mean by "commonly called"? Does it import the meaning assigned to it by distinguished geographers? Is that what is meant by "commonly called"? No, I imagine not. The expression means that which is called the South Pacific Ocean or South Sea by common men engaged in fishing or navigation; and I apprehend that, if seamen, navigators, masters of vessels, commercial firms engaged in business and resorting to that sea, were asked whether the expression included Bering Sea or not, they would say it did not. Therefore, I think it was intended by the use of the words "commonly called," to limit the term "Pacific Ocean" to what was understood by it according to common usage among the men of that time who were in the habit of using that term in their business concerns. Now let us look at the maps of that day, for there are a multitude of them referred to in the Cases of the contending parties. As to the majority of these maps, I think I may say nearly all of them—I do not wish to make a positive assertion, for I have not made an accurate study of them—but as to the vast majority of them, Bering Sea is represented as a sea by itself, sometimes called Bering Sea, sometimes the Northern Ocean, sometimes the Sea of Kamchatka; but generally represented upon all the maps of the time as a sea separate and by itself. I cannot help thinking, therefore, that if it was the intention of these parties, of these Governments, to embrace by the terms of this Treaty the coasts and islands of the Bering Sea, they would have used some language expressly and unequivocally indicating this, and that we should not infer that Russia made a surrender without consideration of her unquestioned rights along the shores of the whole of Bering Sea, unless language is found in the Treaty unequivocally importing that fact. So much as to the face of the Treaty itself, and it seems to me that the argument is very strong—I will not say conclusive, for this is a subject which admits of argument on both sides—that the phrase "Ocean commonly called the Pacific Ocean or South Sea" was, in the minds of those two agreeing Governments, limited to the Pacific Ocean south of Alaska and the Aleutian Islands. Now I come to a point which seems to me quite conclusive of this question—the learned Arbitrators will bear in mind that I am discussing the meaning of these terms in the American Treaty. After this Treaty had been finally concluded, but before it had been ratified, its terms came to the knowledge of the Russian-American Company which had by grants from Russia the exclusive right to all the industries in Bering Sea. That Company perceived, or thought, it perceived, that it might be asserted at some time on the part of the United States and its citizens that, by the language of the Treaty, the Russian industries in Bering Sea were, to some extent, thrown open to the citizens of the United States; and in consequence of that apprehension it made a communication to its own Government; and I call attention to a letter from the Minister of Finance of the Russian Government to the Board of Administration of the Russian-American Company answering that communication, which appears an page 155 of the Counter Case of the United States. This letter was written from St. Petersburg, September 4th, 1824. ORAL ARGUMENT OF JAM ining their rer, of the convent North Amer can Republic, the ministe in charge of from him th e information tl attl entire appro p.rial board of ad the copies of th 5 above-mentio led c the proceed draft of a c< in the above -named committee a consideratio From thes e documents th nbos standings ir the execution oft with the des ire of the comr to Baron T lyll, our minis ter a freetrading andafishin^are peril from 54° 40' northwards to Yaki t byi alo: f theproce ed the espc cial y to communicate to the Russian American Company, for their information, wmnunication of Count Nesselrode to me, and also ee of July 21, 1824, inclosed in it, together with a prepared by His Excellency ; which was also read id was left unsigned after it had been given final rd will see that, for the avoidance of all misunder- le above-mentioned convention, and in conformity the necessary instructions have already been given ; Washington, to the effect that the northwestern ;nt of which, by the provisions of the convention, itted subjects of the North American States, extends tat (Bering's) Bay. Lieut. Gen. Kankrin, Minister of Finance. Y. Drdshinin, Director. That shows the interpretation placed by the Government of. Russia at that time upon the phrase used in the Treaty. The letter encloses the abstract of a communication from Count Nesselrode to the Minister of Finance. Count Nesselrode had much to do with the negotiations and conclusion of the Treaty. Now, that communication is quite a long one, and I shall not read the whole of it; but I call attention to the concluding passages of it at page 158 : Bu1 the Minisl plaints of the Americi nave found it necessa: and advantages accru i As the proposed rest lels of latitude, name! First. To Yakutat (I Second. To Cross Bi Company desires that fish in those bays ; the That, as regards the the rights of Russia lit Aleutian Islands and t That, as regards tin mthdegr tnd regions to which Rus icable to apply the same ru >n any other satisfactory pr That apart from this, in oi Sovernment of His Imperial jther hand, that the restrictions stated in the opinion of the ind of State Councilor Drushinin put an end to all the coin- ;an Company, the majority of the members of the committee iry to investigate the nature of those restrictions, in order to i possible to insist upon them without prejudice to the rights ing from the treaty of April 5-17. trictions refer to two chief points lying under different paral- ly: Bering's) Bay, under parallel 59° 30'. lay or Sound (Cross Sound) under parallel 57°—the American subjects of the United States may not be permitted to hunt or erefore, the majority.of the members of the committee resolve: s first of these points (Bering's Bay), it lies in a latitude where ave never formed a subject of dispute, and that this important i include it in the general declaration concerning the 1er northern places. nd (Cross Sound), however, as it lies under the fifty- th latitude, and consequently within the limits of those islands e measures showing the care of the rests of the Russian American Com- ;o use every effort to persuade the iriction relating to Cross Sound, it 3 subjects of the two powers. That oposition until he is convinced that e Government of the United States lously adopted by all the n rs of the c 130 ORAL ARGUMENT OF JAMES C. CARTER, ESQ. Sir Charles Russell. This is the first occasion on which a document has been referred to, the correctness of which is impugned. It is well that I should call the attention of the Tribunal at once to it. My friend has read "together with a draft of communications to him prepared by His Excellency, which was also read by the above named." That is an interpolated passage and is not in the original. Oh! I beg your pardon; I misunderstood; those are omitted in the translation, but are in the original. What my friend read was not the amended translation. Mr. Justice Harlan. At the top of the page from which Mr. Carter read we have the words " amended translation." Mr. Carter. That communication on the part of the officers of the Russian Government intimates the interpretation of the Treaty which I have suggested to the Tribunal—that, so far as regards places North of the 60th parallel of latitude, or thereabouts, they are not regions which were ever the subject of dispute, and therefore the exclusive right of Russia to them is not affected by the Treaty; but that, so far as relates to lands South of that latitude, they belong to regions which were subject to dispute and therefore come under its provisions. And I ought also to have stated to the Arbitrators, as another ground for supporting that interpretation of the Treaty which I had insisted upon, that the important articles of the Treaty, articles II, III and IV, all refer, manifestly and plainly, to that Northwestern coast, which is another reason for limiting the meaning of the phrase "Pacific Ocean " to that part of the Pacific Ocean which washes that coast. We see from the papers which I have read, and which emanated from the Russian Government, the interpretation which that Government put upon this term. I read also paragraph 7, on page 157, Proceedings of the Conference held June 1, 1824: That as the sovereignty of Russia over the coasts of Siberia and the Aleutian Islands has long been admitted by all the powers, it follows that the said coasts and islands cannot be alluded to in the articles of the said treaty, which refers only to the disputed territory on the Northwest coast of America and to the adjacent islands; that, even supposing the contrary, Russia has established permanent settlement, not only on the coast of Siberia, but also on the Aleutian group of islands; hence American subjects could not by virtue of the second article of the treaty of April 5-17, mission of our commandants or governors. Moreover, the coasts of Siberia and the Aleutian islands are not washed by the Southern Sea, of which alone mention is made in the first article of the treaty, but by the Northern Ocean and the Seas of Kamchatka and Okotsk, which form no part of the Southern Sea on any known map or any geography. The President. Those are the'proceedings of the Russian officials; there is nothing international about them. Mr. Carter. Not at all; but the learned Arbitrators will perceive from the paper which I am about to read that those very views were brought to the attention of the American Government and acquiesced in, and that too before the ratification of the Treaty. It will be remembered that in the documents from which I have just read allusion was made to instructions given to Baron Tuyll to bring this subject to the attention of the American Government. Mr. Adams was at that time Secretary of State, and he records in his Diary of December 6,1824, the fact of an interview between him and Baron Tuyll. This occurs at page 276, volume I, of the American Appendix (quoting) : 6th, Monday.—Baron Tuyl, the Russian Minister, wrote me a note requesting an ; ,: "' -ice of instructions received yesterday froi md after intimating that he was under e 5 embarrassment ii ORAL ARGUMENT OF JAMES C. CARTER, ESQ. 131 executing his instructions, said that the Russian-American Company, upon learning the purport of the Northwest Coast convention concluded last June by Mr. Middle- ton, were extremely dissatisfied {a jeté de hauts cris), and, by means of their influence, had prevailed upon his Government to send him these instructions upon two points. One was that he should deliver, upon the exchange of the ratifications of the convention, an explanatory note purporting that the Russian Government did not understand that the convention would give liberty to the citizens of the United States to trade on the coast of Siberia and the Aleutian Islands. The other was to propose a modification of the convention, by which our vessels should be prohibited from trad- ' ing on the Northwest Coast north of latitude 57°. With regard to the former of these points he left with me a minute in writing. Now turning to page 277,1 continue the extract from Mr. Adams Diary (quoting) : I told Baron Tuyl that we should be disposed to do everything to accommodate the views of his Government that was in our power, but that a modification of the convention could be made no otherwise than by a new convention, and that the construction of the convention as concluded belonged to other departments of the Government, for which the Executive had no authority to stipulate I added that the convention would be submitted immediately to the Senate; that if anything affecting its construction, or, still more, modifying its meaning, were to be presented on the part of the Russian Government before or at the exchange of the ratifications, it must be laid before the Senate, and could have no other possible effect than of starting doubts, and, perhaps, hesitation, in that body, and of favoring the views of those, if such there were, who might wish to defeat the ratification itself of the convention If, therefore, he would permit me to suggest to him what I thought would be bis best course, it would be to wait for the exchange of the ratifications, and make it purely and simply; that afterwards, if the instructions of his Government were imperative, he might present the note, to which I now informed him what would be, in substance, my answer. It necessarily could not be otherwise. But, if his instructions left it discretionary with him, he would do still better to inform his Government of the state of things here, of the purport of our conference, and of what my answer must be if he should present the note. I believed his Court would then deem it best that he should not present the note at all. Their apprehension had been excited by an interest not very friendly to the good understanding between the United States and Russia. Our merchants would not go to trouble the Russians on the coast of Siberia, or north of the fifty-seventh degree of latitude, and it was wisest not to put such fancies into their heads. At least the Imperial Government might wait to see the operation of the convention before taking any further step, and I was confident they would hear no complaint resulting from it. If they should, then would be the time for adjusting the construction or negotiating a modification of the convention. Now, the Explanatory Note which the Baron contemplated forwarding is the following : Explanatory note to be presented to the Government of the United States at the all occasion for future discussions ; by means of which note it will be seen that the Aleutian Islands, the coasts of Siberia, 'and the Russian Possessions i» general on the Northwest Coast of America to 59° SO1 of north latitude are positively excepted from the liberty of hunting, fishing, and commerce stipulated in favor of citizens of the This seems to be only a natural consequence of the stipulations agreed upon, for the coasts of Siberia are washed by.the Sea of Okhotsk, the Sea of Kamschatka, and the Icy Sea, and not by the South Sea mentioned in the first article of the convention of April 5-17 [1824]. The Aleutian Islands are also washed by the Sea of Kam- • chatka, or Northern Ocean. „.„.„„ It is not the intention of Russia to impede the free navigation of the Pacific Ocean. She would be satisfied with causing to be recognized, as well understood and placed beyond all manner of doubt, the principle that beyond 59° 30' no foreign vessel can approach her coasts and her islands, nor fish nor hunt within the distance of two marine leagues. This will not prevent the reception of foreign vessels which have been damaged or beaten by storm. . That was the Note which was to be presented. Now I read a further extract from Mr. Adams's diary: The Baron said that these ideas had ooourred to himself; that he had made this application in pursuance of his instructions, but he was aware of the distribution of powers in our Constitution and of the incompetency of the Executive to adjust such questions. He would therefore wait for the exchange of the ratifications with- 132 ORAL ARGUMENT OF JAMES C. CARTER, ESQ. out presenting his note, and reserve for future consideration whether to present it shortly afterwards or to inform his Court of what he-has done and ask their further Sir Charles Russell. There is a passage following that—the passage is this (reading) : He therefore requested me to consider what had now passed between us as if it had not taken place ('non avenu'), to which I readily assented, assuring him, as I had done heretofore, that the President had the highest personal confidence in him, and in his exertions to foster the harmony between the two countries. I reported immediately to the President the substance of this conversation, and he concurred in the propriety of the Baron's final determination. Mr. Carter. At the close of page 277 these extracts, that I have read are embraced in a letter of Mr. Blaine, and after giving them, he says this : As Baron Tuyl surrendered his opinions to the superior judgment of Mr. Adams, the ratifications of the treaty were exchanged on the 11th day of January, and on the following day the treaty was formally proclaimed. A fortnight later, on January 25, 1825, Baron Tuyl, following the instructions of his Government, filed his note in the Department of State. Sir Charles Russell. Is there any evidence of that? Mr. Carter. Yes, we have it; that, is a copy of the Note as it stands on the files of the Department. Now that is a pretty important transaction bearing upon the interpretation of the Treaty. What is the substance of this transaction? It means that members of the Russian- American Company had an apprehension that it might be contended that some of their exclusive rights were thrown open to citizens of the United States, and they remonstrated to their Government. The view which the Russian Government took in regard to that remonstrance appears to have been that the provisions of the treaty did not affect Bering Sea and the exclusive rights which the Companj*- had there, and they instructed their Minister in Washington to make representations to the United States Government. Baron Tuyll states to the . American Secretary the apprehensions on the part of the Russian Government, and he exhibits to him a note which he proposed to deliver and which asserted as the proper interpretation of the Treaty that the phrase "Pacific Ocean" does not include Bering Sea. What is the reply of Mr. Adams to the Minister of Russia? That that interpretation was ill-founded? Does he contest it at all? No; nothing of the sort. He says that the question of the interpretation of that Treaty must, according to American law, be determined by another Department of the Government—the Judicial Department, it being a judicial question. He does not state what his own interpretation is, for, if he did, it would have to go before the Senate, and it might raise embarrassing questions there. He says in substance "the point is of no practical consequence, for our people will never go there; there is no danger of that; and if you say anything about it, the effect would be . to put fancies into their heads which otherwise they would not entertain. The best thing is to say nothing about it, and let this Treaty be ratified as it stands. If, after that, your Government insists upon doing anything further, let them do it, But my answer to that note, if you lodge it with me, must be that it raises a question as to the interpretation of the Treaty—a question which must be settled by the judicial Department of the American Government." Now I cannot help thinking that Mr. Adams and the American Government would be open to the charge of bad faith if they had made such a» answer as that, and should afterwards assert any different interpretation of the Treaty than that which Baron Tuyll suggested. I do not think ORAL ARGUMENT OF JAMES C. GARTER, ESQ. 133 that we could relieve Mr. Adams or the American Government from the imputation of bad faith if they then believed that the Treaty bore a different construction than that and did not frankly say so to Baron Tuyll. Baron Tuyll took the advice and acted upon it. He said: "I will not file this note until the Treaty is ratified, and even then I will not unless my Government tell me to do so." He waited, and his Government directed him to file his note, and he did—he filed a note which explicitly stated his interpretation. Tliat note was never answered- Now, if the American Government was ever at any time to dispute the interpretation thus put upon the Treaty, then was the time for them to do it, and if they did not do it then, they would be precluded afterwards from doing so. I cannot help thinking, therefore, that this transaction, subsequent to the actual conclusion of the Treaty, but before its ratification, is conclusive as to the interpretation of the Treaty suggested by the Russian Government aud now insisted upon by the United States. The President. Don't you think the silence of Mr. Adams was rather significant? Was it not rather unusual not to answer a written communication? -\ -Vî""-> Mr. Carter. It was significant in the way I have stated. It said to Baron Tuyll: "It is not the province of the Executive' part of the Government of which I am a representative to put a construction upon this Treaty. If I should give you a construction, it would not be binding; for at some other time it might become a question, and the Supreme Court of the United States would be alone competent to decide it." But he goes on to encourage him to take no step to settle the point; and that, I must confess, would be astonishing on the part of Mr. Adams, if he thought that at any time the American Government would set up a different interpretation. The President. Did not the silence of Mr. Adams- leave it upon technical grounds? Mr. Carter. Yes. But it is a question of candor among the representatives of two great nations approaching each other in that way. Mr. Adams did not put himself upon this ground and say: "You must not interpret my language, or my silence, beyond what it may directly import." He did not put Baron Tuyll upon his guard at all. That attitude was not consistent with good faith on the part of Mr. Adams, if he did not feel satisfied with the suggested interpretation and thought that a diffèrent one would at any time be set up. So much for the American Treaty. But that does not interpret the British Treaty, and it is to that that the attention of the Tribunal is more immediately directed. The language of this latter, although not precisely, is substantially, the same; and in the first Article of that Treaty, found on page 39 of the first volume of the American Appendix— Mr. Justice Harlan. The word "Grand" should appear before " Ocean." Mr. Carter. I have no other evidence of what the text should be than the American original; it is as it is here, for aught I know. Mr. Justice Harlan. There was a Treaty in English? Mr. Carter. Yes. (quoting): It is agreed that, in any part of the Great Ocean, commonly called the Pacific >n„ ers shall be neither disturbe a the power of resorting to î occupied, for the purpose est rictions and conditions detei 134 ORAL ARGUMENT OF JAMES C. CARTER, ESQ. Whether the word " Grand " belongs there before the word " Ocean | or not, is of no consequence; I assume that the same thing was intended by the Articles in each Treaty. That was the Treaty negotiated between Great Britain and Russia. Now, applying the same method of interpretation which I have to that of the United States, let me say that we know, of course, the views with which the Russian Government entered into the negotiation of this Treaty with Great Britain, for they were substantially simultaneous with the negotiations with the United States; and of course the Russian Government must have approached the negotiations with Great Britain as it approached those with the Government of the United States. In reference to the views of Great Britain, it does not follow that she had the same purposes as animated the United States Government. Her purposes may have been widely different from those of the United States negotiators, or those of the United States Government; but we have this fact, that the negotiations were carried on conjointly, and, presumably, the views of the two Governments were substantially alike. But, so far as the instructions of Great Britain to her negotiators are concerned, I must freely and fully admit that, instead of being mainly confined, as in the case of the United States, to the question of the disputed territory on the Northwest Coast, they placed special importance on the maritime pretension of one hundred miles over the sea. The negotiators representing Great Britain were instructed that that was a point which they must specially and, primarily, attend to, and that it was of more consequence than the disputed question of territory on the North-West Coast. In that respect there was a difference. But how was this point arranged ? Mr. George Canning instructs Mr. Stratford Canning at St. Petersburg how to proceed on that point. At page 260 of the first volume of the American Appendix is found a letter of instructions from Mr. George Canning to Mr. Stratford Canning at the Court of St. Petersburg, in reference to the manner in which he was to conduct the negotiations (quoting) : The correspondence which has already passed upon this subject has been submitted to your perusal. And I inclose you a copy. 1. Of the "projet" which Sir Charles Bagot was some months ago, and which we had every reason t( satisfactory to the Russian Government. 2. Of a "contre-projet" drawn up by the Russiai to Sir Charles Bagot at their last meeting before S: St. Petersburg. 3. Of a dispatch from Count Nesselrode, accompanying the transmission of the "contre-projet" to Count Lieven. Now further on it said: The whole negotiation grows out of the ukase of 1821. So entirely and absolutely true is this proposition, that the settlement of the limits of the respective possessions of Great Britain and Russia on the northwest coast of America was proposed by us only as a mode of facilitating the adjustment of the difference arising from the ukase, by enabling the court of Russia,' under cover of the more comprehensive arrangements, to withdraw, with less appearance of concession, the offensive pretensions of that edict. It is comparatively indifferent to us whether we hasten or postpone all questions respecting the limits of territorial possession on the continent of America, but the pretensions of the Russian ukase of 1821 to exclusive dominion over the Pacific could not continue longer unrepealed without compelling us to take some measure of public and effectual remonstrance against it. You will therefore take care, in the first instance, to repress any attempt to give this change to the character of the negotiation, and will declare without reserve that the point to which alone the solicitude of the British Government and the jealousy of the British nation may attach any great importance is the doing away (in a manner as little disagreeable to Russia as possible), of the affect of the ukase of 1821. ORAL ARGUMENT OF JAMES C. CARTER, ESQ. 135 That sets forth what the particular character of their complaint against the Ukase was. He then speaks of the mode in which the negotiation should be conducted. And, finally, he says—and I read now from page 261 : The right of the subjects of His Majesty to navigate freely in the Pacific can not be held as matter of indulgence from any power. Having once been publicly questioned, it must be publicly acknowledged. We do not desire that any distinct reference should be made to the ukase of 1821, but we do feel it necessary that the statement of our right should be clear and positive, and that it should stand forth iu the convention in the place which properly belongs to it as a plain and substantive stipulation, and not be brought in as an incidental consequence of other arrangements to which we'attach comparatively little importance. This stipulation stands in the front of the convention concluded between Russia and the United States of America, and we see no reason why, upon similar claims, we should not obtain exactly the like satisfaction. For reasons of the same nature we can not consent that the liberty of navigation through Bering's Straits should be stated in the treatv as a boon from Russia. The tendency of such a statement would be to give countenance to those claims of exclusive jurisdiction against which we, on our own behalf and on that of the Nos peciflcation of this sort i 3 found in the con vention with the United States of Ameri ca; and yet it can not be doubted that the d in the right of navigat ng Behring Strail s and the sea bevond them. It c an not be expected thai England should receive as a boon that which the Unite Per aps the simplest course, after all, will be ;o substitute, for all that part of the" 3rojet" and " Contre-Ptoj et" which relates to maritime rights, and to naviga- Peters that convention. Russia can not mean to give to the United States of America what she withholds from us, nor to withhold from us anything that she has consented to give to the United States. The uniformity of stipulation in pari materia gives clearness and force to both arrangements, and will establish that footing of equality between the several contracting parties which it is most desirable should exist between three powers whose interests come so nearly in contact with each other in a part of the globe in which no other power is concerned. This, therefore, is what I am to instruct you to propose at once to the Russian minister as cutting short an otherwise inconvenient discussion. There is his instruction to the representative of the government of Great Britain in St. Petersburg. Mr. Justice Harlan. Let me interrupt you just a moment. I call your attention to the apparent omission in the English translation of the treaty between Russia and Great Britain. The English translation in the British case accords with the American translation. Mr. Carter. Very likely it may; I do not know. Lord Hannen. The word "great" is omitted. Sir Charles Russell. Yes, the word "great" is omitted, too. Mr. Justice Harlan. I do not know whether there was an omission, or whether there were two treaties, one signed in English and one signed in French, or whether one was a translation of the other. If there was an error in the translation, both sides have committed the error as to the second article, because the word "great" is left out there. Mr. Carter. There is one in Russian, too. Mr. Phelps. There weje duplicate drafts, one in French and one in English. '. Sir Charles Russell. There was one m English and one m French. Mr. Foster. They were both originals. 136 ORAL ARGUMENT OF JAMES C. CARTER, ESQ. Mr. Carter. Is there anything more that the learned Arbitrator wished to ask? Mr. Justice HARLAN. No. Mr. Carter. I resume, then. The British Minister of Foreign Affairs instructs the British Ambassador in St. Petersburg, who is negotiating the treaty, to carry out the object which Great Britain has in view, of displacing the assumption of Russian dominion in Bering Sea; but to carry it out, if he can, by adopting the first two articles of the American treaty, thus avoiding any discussion with the Government of Russia in respect to its pretension in the Ukase of 1821. That was done; and there appears to have been no further discussion in reference to it. Now, what is the consequence of that as a matter of interpretation? The British Government says, in substance: "Whatever our intentions are upon this point, we are satisfied to take the agreement which you have made with the United States as a settlement. Whatever that agreement is, we are satisfied to take it for ourselves. We have seen it, we are satisfied with it, and we are satisfied to take it for ourselves". In thus accepting the provisions of the American treaty, I respectfully submit to this Tribunal that they must accept the interpretation of the American treaty with Russia, as it was understood by both powers, and what that interpretation was, I think I have already shown to this body. The President. Do you not think Mr. Canning understood it otherwise than you have explained it to us; for Mr. Canning says that when right of free navigation has been questioned, it must be asserted? I do not remember the words exactly. He says that, though. Mr. Carter. Yes; very explicitly. The President. He says : " If you give us the text which may be given to the United States, we will be satisfied" ; and, he seems to imply, that the right of British ships to navigate free!y in the Bering Sea and across the Bering Straits is granted in the text of the American treaty. Mr. Carter. So he thought, undoubtedly. The President. I think he thought so. Mr. Carter. He thought so, and he told the British Minister in St. Petersburg so; but he did not tell the Russian Government that. The President. He made a mistake, in your opinion. Mr. Carter. 1 do not say he made a mistake. He made a mistake in one thing. He may not have gained what he had prominently in view. The President. He did not understand the American treaty, or did not construe it as you construe it? Mr. Cartee. He did not construe it as I construe it. Ï say he made a mistake so far as he may have supposed that the American treaty would gain the special object which he had in view. If he had supposed that the American treaty was subject to the interpretation which the American and Russian Governments put upon it, it would not answer his purpose; but not having communicated that to the Russian Government, and a settlement having been proposed with the Russian Government by adopting the first two articles of the American treaty, without making any interpretation of them, adopting them as they stood, I submit that in adopting that agreement between the United States and Russia, the interpretation of the United States and Russia was adopted with it; and if I have succeeded in showing that according to the interpretation of the United States and Russia the Pacific Ocean or South Sea did not include the Bering Sea under the American Treaty, it no more included it in the British treaty. ORAL ARGUMENT OF JAMES C. CARTER, ESQ. 137 Lord Hannen. Would you say that, Mr. Carter, if the correspondence between the English Government and the Russian Government showed a different interpretation had been put upon the words "Pacific Ocean"? Mr. Carter. I beg your Lordship's pardon. Lord Hannen. I say, would you say that the English Government was bound by the interpretation which you say had been put upon it by the Russian and the American Governments, if the correspondence between the English Government and the Russian Government showed that they understood the words "Pacific Ocean" in a different sense? Mr. Carter. No, my Lord, I would not. Lord Hannen. You would not in that event? Mr. Carter. No; I would not. If there were evidence here tending to show that the Russian Government and the Government of Great Britain in the course of that negotiation put an interpretation upon these very terms different from what Russia and the United States had put upon them, then I should say that they must be interpreted according to the significance in which they were understood by the Governments of Great Britain and Russia: but I have not myself discovered that the terms of the Treaty were- dent and the Government of Great ere understood by the Government nment of Russia. ;he effect that the language of this .riginal and in the English original mean is that one cannot be claimed her in establishing any particular wn up in both languages, and signed and if the American is to be regarded as a translation of the French, it is a translation which is incontestible as between the parties, as being a correct one, because it bears the signatures of both ; and, speaking on the subject of translation, it brings to my mind— Sir Charles Russell. I do not think there is any material difference between them. Mr. Carter. Perhaps not. Speaking upon the subject of translations, it brings to my mind a matter which heretofore has not been made the subject of discussion at all; and that is the erroneous translations of Russian documents which were originally incorporated into the American Case. The learned Arbitrators have observed that I have in no part of my argument made the slightest- reference to them, or made any use of them whatever. It is for this reason: when we first discovered, to our infinite surprise, that we had been imposed upon in some inexDlicable manner by a person whom we had employed to trans- nslations of them, indis- lations contained in them tiginal, the any evidence here tending to understood by the Russian Govei Britain differently from what thej of the United States and the Goï Something has been said here t treaty as contained in the Frenc" is different. It may be so. Wha to have any superiority over the interpretation. The Treaty was d in both h lateth putaT ide jlyfrj hich there vas no corresponding li question arose, what are we to do with t corrected in some form. Very fortunately learned friends would not suppose that wi able with such fraudulent translations—1 the United States, they had incorporated their original Case, which contained these graphs of the original Russian document itintothepowe " The ill We were scarc< to be the best < whi edc ithat account;a absolutely withd 138 ORAL ARGUMENT OF JAMES C. CARTER, ESQ. from the Case, so that no allusion might be made to them. They never at any time were a source of any evidence very important to us, nor did they constitute any means of any considerable weight in establishing any portion of our Case. We therefore wholly withdrew them. It is unnecessary to say anything further in regard to them. What motive this individual may have had in thus imposing upon us, it is difficult for me to say. His avowed motive was that he wanted to recommend himself to us by showing that he had found in these Russian documents, which were a mystery to everybody else, something very much in our favor. It is unnecessary to comment upon that. That explanation has never been wholly satisfactory to us ; and we have never been able to explain the ground upon which such a fraud as this was attempted. I have now concluded what I have to say in reference to the interpretation of this treaty; and I submit, upon the views that I have presented, that the interpretation of Mr. Blaine, which limits the meaning of the Pacific Ocean or South Sea, to so much of the Great Pacific Ocean as is south of the Alaskan Peninsula, and of the Aleutian chain of Islands, is the correct one. What part does that play in our present •pretensions here? Does it demonstrate our claim completely? Notât all. Suppose we failed in establishing our interpretation, and the Government of Great Britain should succeed in establishing theirs to the satisfaction of this body, would it establish their part of the case? Not at all. It has only a remote connection, but still a not wholly unimportant one. It operates in a manner to confirm by the evidence of long possession and long acquiescence those rights to the seal fishery in the Bering Sea which had been asserted at a very early period, and to substantiate our claim in regard to them; and the use we make of the Russian pretensions and our acquisition of Russian rights in our argument is substantially this : First. The sealing industry on the Pribilof Islands, having been established prior to 1821, was one of the industries to which Russia by the Ukase in question asserted an exclusive right, and to defend which, she claimed the right to exercise authority over a part of the high seas adjoining her shores. Second. These rights were not abandoned, displaced or modified by the treaties of 1824 or 1825, and not being abandoned or modified by those treaties, are fairly to be regarded as having been then, and by those treaties, assented to by the United States and Great Britain. Third. The subsequent abstention by Great Britain, the United States, and all other nations, and of the citizens of other nations from any attempts to disturb Russia or her successor, the United States, in the enjoyment of this sealing industry, down to the year 1883, a period of more than sixty years, is additional and satisfactory evidence of such acquiescence. Fourth. After an acquiescence of this character for so long a period, it is not competent for Great Britain to deny the existence of the right, or the propriety of the defensive regulations necessary to its preservation. The Arbitrators will perceive, therefore, that the use which the Government of the United States makes of these transactions begins at the time of the Ukase, proceeds upon the assertion that Russia assumed an exclusive right to this industry at that time: that that right, so far as it related to Bering Sea, and of course to the Pribilof Islands, was not disturbed or displaced by the treaties of 1824 and 1825, and not being displaced, was, inferentially, and by a very strong implication, acceded to and acquiesced in. Next, that implied acquiescence thus ORAL ARGUMENT OF JAMES C CARTER, ESQ. 139 fairly derived from the conduct of these several Governments, is further confirmed by a uniform, long-continued acquiescence of sixty years, down to the year 1883, during which no nation and no people of any nation have ever undertaken to disturb or invade in Bering Sea the exclusive right and proprietorship of Russia in this sealing industry. Those facts and circumstances, although we do not conceive them to be vital in this controversy, yet have a material and important bearing. I wish to explain to the Tribunal what our view is of the bearing of these arguments which I have laid before you upon the answers to the first questions formulated in the Treaty; and I must call to your minds again the distinction which I have heretofore attempted to draw between the exercise by a nation of sovereign jurisdiction over the high seas—a sovereign jurisdiction of a character which makes the high seas over which such jurisdiction is attempted to be extended a part of the territory of the nation, giving the nation an exclusive power of legislation over it—the difference between the assertion of such a right as that, and the assertion of a right to exercise acts of force on the high seas for the purpose of protecting a property, or an industry, of a people; one of them being an assertion of sovereign jurisdiction, the other no assertion of sovereign jurisdiction at all, but simply a right of self- protection and self-defence, which a nation, acting as an individual, always has. I have stated that there was some confusion in the minds of jurists and text-writers in reference to that distinction. The same confusion will be found in the language of this Treaty which draws up the questions which are submitted to the Tribunal. 1 refer the Arbitrators to Article 6 of the Treaty, which is found on page 2 of the original Case. In deciding the matters submitted to the Arbitrators, it is agreed that the following five points shall be submitted to them, in order that their award shall embrace a distinct decision upon each of said five points, to wit : 1. What exclusive jurisdiction in the sea now known as the Behring's Sea, and what exclusive rights in the seal fisheries therein, did Russia assert and exercise • prior and up to the time of the cession of Alaska to the United States? At first reading, it might be supposed that by the term "exclusive jurisdiction" sovereign jurisdiction was intended, and not a right to defend property or industry by self-defensive measures. That might be thought at first blush to be intended by the ^language of that first section ; and yet I am inclined to think it was not the intention of it, but that what was in the minds of the authors of that article was a power to defend a property interest by defensive regulations; for you will observe they couple that language of "exclusive jurisdiction" with "exclusive rights in the seal fisheries therein." They say: "What exclusive jurisdiction in the sea now known as the Bering Sea, and what exclusive rights in the seal fisheries therein did Russia assert and exercise prior and up to the time of the cession of Alaska to the United States?" Those two things, the jurisdiction, and rights in the seal fisheries are blended together, and blended together inseparably. What was really in the minds of the authors of the treaty was the question, What rights in the seal fisheries did Russia possess and what rights to defend them by the exercise of authority in that sea? The next question is : 2. How far were these claims of jurisdiction as to the seal fisheries recognized and conceded by Great Britain T 140 ORAL ARGUMENT OF JAMES C. CARTER, ESQ. There you have distinct evidence that what was in the minds of the framers of this treaty was nothing but rights in seal fisheries. Those rights in seal fisheries might involve indeed a right to exercise an exceptional authority on the sea. They might involve that, but only as a means of protection. We perceive that by the second section, these claims of jurisdiction are confined to claims of jurisdiction as to seal fisheries. "Jurisdiction" means there authority,power. It means rights to exercise power on the high seas in relation to the seal fisheries. 3. Was the body of water now known as the Behring Sea included in the phrase "Pacific Ocean" as used in the treaty of 1825 between Great Britain and Russia, and what rights, if any, in the Behring Sea were held and exclusively exercised by Russia after said Treaty? That clause does not require any comment. 4. Did not all the rights of Russia as to jurisdiction and as to the seal fisheries in Behring Sea east of the water boundary in the Treaty between the United States and Russia of the 30th of March 1867 pass unimpaired to the United States under that Treaty? There again rights of Russia as to jurisdiction and as to the seal fisheries are mentioned together. They are coupled together. They are rights of jurisdiction only so far as the protection of the seal fisheries require the exercise of something which they choose to call jurisdiction. 5. Has the United States any right, a"nd if so, what right, of protection or property in the fur-seals frequenting the islands of* the United States in Behring Sea, when such seals are found outside the ordinary three-mile limit? Apparently that puts a question, not of jurisdiction at all, but merely a question of property; but the Arbitrators will observe that it is a question of property "when such seals are found outside of the ordinary three-mile limit;" and, of course, property thus situated necessarily supposes some power or authority to protect it there, and therefore includes the question of jurisdiction in the sense of authority. Article 7, following that, says : If the determination of the foregoing questions as to the exclusive jurisdiction of the United States shall leave the subject in such position that the concurrence of Great Britain is necessary to the establishment of Regulations for the proper protection and preservation of the fur-seal in, or habitually resorting to, the Behring Sea, the Arbitrators shall then determine what concurrent Regulations outside the jurisdictional limits of the respective Governments are necessary, and over what waters such regulations should extend, and to aid them in that determination the report of a Joint Commission to be appointed by the respective Governments shall be laid before them, with such other evidence as either Government may submit. I rather think that that article 7 regards all the five questions as properly describable as questions as to exclusive jurisdiction, and contemplates them as such. It will therefore be seen that this confusion between these two subjects has found its way into the draft of this treaty. Having concluded my argument in relation to the rights of jurisdiction acquired by Russia in Bering Sea, as it is called, I wish to state to the learned Arbitrators how those facts bear upon the answers which are to be given to the first four questions submitted to the Tribunal by the Treaty. In our view these are the answers which should be given to them. The first question, "What exclusive jurisdiction in the sea now known as Bering Sea" etc., should be answered thus: First. Russia never at any time prior to the cession of Alaska to the United States claimed any exclusive jurisdiction in the sea now known as Bering Sea, beyond what are commonly termed territorial waters. She did, at all times since the 'year ORAL ARGUMENT OF JAMES C. CARTER, ESQ. celui right in the "seal fisheries" in said s inds and shores of said sea, as well as her exclusive enjoyment of her trade instances, from approaching said islands and shores nearer than 100 miles. To the second question, "how far were these claims of jurisdiction as to the seal fisheries recognized and conceded by Great Britain?" we think this should be the answer: Second. The claims of Russia above mentioned as to the "seal fisheries" in Bering Sea were at all times, from the first assertiou thereof by Russia down to the time of the cession to the United States, recognized and acquiesced in by Great Britain. To the third question, that relating to the scope and meaning of "Pacific Ocean," the answer should be this: Third. The body of water now known as Behring Sea was not included in the phrase "Pacific Ocean," as used in the treaty of 1825, between Great Britain and Russia; and after that treaty Russia continued to hold and to exercise exclusively a property right in the fur-seals resorting to the Pribilof Islands, and to the fur- sealing and other industries established by her on the shores and islands above mentioned, and to all trade with her colonial establishments on said shores and islands, with the further right of protecting, by the exercise of necessary and reasonable force over Bering Sea, the said seals, industries, and colonial trade from any invasion by citizens of other nations tending to the destruction or injury thereof. This is the answer we propose to the fourth question: Fourth. All the rights of Russia as to jurisdiction and as to the seal fisheries in Behring Sea east of the water boundary in the treaty between the United States and Russia, of the 30th of March, 1867, did pass unimpaired to the United States under •that treaty. The fifth question, which is, "Has the United States any right and if so what right of protection or property in the fur-seals frequenting the islands of the United States outside the ordinary three-mile limit ?" involves more particularly the discussion of the question of property, to which I now proceed. I am glad to pass from these questions of the interpretation of treaties concluded half a century ago, from questions which involve discussions as to the intentions of governments of which we have no very certain evidence, from questions which call into consideration and debate doubtful matters of fact, or doubtful interpretations of public documents, and recur to rights which rest upon fundamental principles; and I approach with satisfaction a stage of this debate where I have an opportunity for the first time of putting the claims of the United States in this controversy upon a basis which I feel to be impregnable; I mean the basis of a property interest. The United States assert a property interest connected with these seals in two forms, which, although they approach each other quite closely, and to a very considerable extent depend upon the same evidence and the same considerations, are yet so far distinct and separate as to deserve a separate treatment. Those two assertions of a property interest are these: . A, , ■■ First, that the United States have a property interest m the herd of seals which frequents the Pribilof Islands, and which has its home and its breeding place there; and, Second, that, irrespective of any property interest which they may have in that herd, and even if it were held that they had no property 142 ORAL ARGUMENT OF JAMES C. CARTER, ESQ. interest in the herd at all, they do yet have a property interest in the industry which has been established by them on those islands, of caring for and maintaining that herd and selecting from it the annual increase for the purposes of commerce; in other words, in the husbandry which is carried on by the United States on those islands. We assert those two forms of property interest; but my discussion will be directed in the first place to an endeavor to support the assertion of property in its first form; that is to say, in the herd of seals itself. Now, questions of property are extremely common in municipal jurisprudence, as we know; but they are for the most part such as relate.to the transfer and devolution of property, and do not touch the point whether any particular thing is the subject of property at all. In this discussion, what we have to consider chiefly is whether these fur-seals are, while they are on the high seas, the subject of property at all. The assertion on the part of Great Britain I assume to be—indeed, they so inform us in their Case, Counter Case, and Argument—that the fur-seals are wild animals—animals fierce natures—and that they are therefore not the subject of property at all; that they are res communes, as the civilians sometimes say, or, as they at other times say, res nul- lius—things common to all men, or things which belong to no one man in particular. Their contention is that while on the high seas, at least, being wild animals, they are not the subjects of property at all. The United States take the contrary position, and assert that such are the nature and habits of these animals, and such is the relation which they have to these animals on the breeding places, that they are at all times, not only while they are upon the Pribilof Islands, but also while upon the seas, the property of the United States, and property which they are entitled to defend and protect, just as much as they would one of their ships when navigating the seas. My learned friend, Sir Charles Russell, made an observation when he was speaking upon one of the preliminary motions which have been made before the Tribunal to the effect, as I understood him, that property could not be established outside of municipal law, or that anything, in order to be held as property, must have its characteristics as property " rooted in municipal law." I do not know that I am correctly stating his observation; but it is as near as I remember. Well, that appears to be an intimation that we are obliged, in order to determine whether the seals are the subject of property, to recur to municipal law. But it seems to me that if we were limited to municipal law in our inquiries, we might find the greatest difficulty. The municipal law of what country? If we speak of municipal law, we must go to the municipal law of some particular country. Will you settle it according to. the municipal law of the United States? That would be a short settlement of it; for in every form and manner in which a nation can declare its policy by the adoption of municipal laws, the United States have declared seals to be property. My learned friend, I apprehend, would not agree that the question of property in seals should be determined by municipal law, if we are to determine it by the municipal law of the United States; and I do not know of any law of Great Britain which is to the effect that seals are not property. According to my view, the law by which this question, as any question which arises between nations, is to be determined is not municipal law, but international law. To be sure, any question in reference to property which has a situs in any particular country, like land, must be determined by the municipal law of the country where it is situated. That is undoubt- ORAL ARGUMENT OF JAMES C. CARTER, ESQ. 143 edly true, if it has a situs; but I suppose that my learned friends would . not agree with me that seals have a situs in the territory of the United States at all times. If they have no admitted situs in the United States, the question as to whether they have a situs there cannot be determined by any appeal to municipal law alone, but must be determined by an appeal to international law. In all this I do not mean that municipal law in relation to property is of no importance in this discussion. On the contrary, it is of the very highest importance that we should seek it, and know just what it is; and it is of consequence in this discussion because it is evidence of what the law of nature is. Property never was created by municipal law at all; that is to say, by positive legislative enactment. Societies, have not come together and created property. Property is a creation anterior to human society. Human society was created in order to defend it and support it. It is one of its main objects. It rests upon the law of nature; and the whole jurisprudence respecting property as it stands in the municipal law of the civilized states of the world is a body of unwritten law for the most part. It is derived from the law of nature. Even in those nations where the civil law is crystallized into the form of codes, there are no laws, no enactments, which declare what shall and what shall not be the subjects of property. At least, I apprehend so. Property is assumed as already existing. It stands upon the law of nature. The questions, however, what shall be property and. what shall not be property, and what shall be the rules respecting the protection which is given to it—all these questions have been discussed for a thousand years and more, in municipal law, by learned tribunals, in many different forms; and, consequently, the whole law of nature, so far as it affects the subject of property, will be found to be developed in a high degree in municipal law. Therefore, and to that extent, I concur with my learned friend, that it is highly important to investigate the municipal law upon the subject of property; and wherever it is found universally concurring upon a given point, it may be taken as the absolute voice of the law of nature, and therefore of international law. [The Tribunal thereupon adjourned until Tuesday, April 19, 1893, at 11.30 o'clock a. m.1 ELEVENTH DAY, APRIL igTH, 1893. . The Tribunal convened pursuant to adjournment. The President. If you please, Mr. Carter, you may continue your argument. Mr. Carter. Mr. President, the point upon which I am now engaged relates to that branch of our argument which deals with the question of the alleged property interest of the United States in the fur seals of Alaska. I had briefly spoken yesterday to the effect that the rival contentions of the two Governments upon this subject are to be determined by international law and pointed out our means of ascertaining what the international law upon any particular subject was, among which I mentioned an inquiry into what has been decided by municipal law and by the municipal law of various nations so far as that law should be found to be consentaneous upon the point, in dispute. The rival contentions of the two parties upon the question of property I should perhaps briefly repeat. That of Great Britian is that the fur- seals of Alaska are res communes, not the subjects of property, but open to the appropriation of all mankind; and that because they are wild animals. The position taken on the part of Great Britian is in substance that no wild animals are the subjects of property, and that seals, being wild, are not the subjects of property. The United States on the other hand, insist that whether an animal is the subject of property or not depends upon its nature and habits; that the two terms " wild" and "tame" are descriptive of nature and habits to a certain extent; but, in order to determine whether any particular animal, whether wild or tame, is the subject of property, we must go into a closer inquiry into its nature.and habits; and if it be found that an animal, although commonly designated as wild, has such nature and such habits as enable man to deal with it substantially as he deals with domestic animals, to establish a species of husbandry in respect to it, then, in respect to the question of property, the same determination must be made as in the case of domestic animals, and the animal must be declared to be the subject of property. The point, therefore, upon which we first insist is that in considering whether an animal, whether he is designated as "wild" or "tame" is the subject of property or not we must institute a careful inquiry into its nature and habits and the results of that inquiry will determine the question. In this particular I think I am supported by the best authorities. Chancellor Kent, whose authority I am glad to say is recognized by my learned friends on the other side, for they refer to this very passage which I am about to read to the Tribunal, says (Page 43 of our printed Argument) : Animals fierce natures, so long as they are reclaimed by the art and power of man, are also the subject of a qualified property; but when they are abandoned, or escape, and return to their natural liberty and ferocity, without the animus revertendi, the property in them ceases. While this qualified property continues, it is as much under the same manner. The difficulty of ascertaining with precision the application of 144 In addition to that I will refer t and those are decisions of Britis Davies vs. Powell, reported in Wi] In that case the question was v The case of deer caught in an enclosure ana navmg certain characteristics and used for certain purposes were distrainable for rent. I may say to those not familiar with the special his tenant and taking property on the premises; but it was confined to personal property. So the question whether deer were distrainable for rent or not involved the question whether they were personal property in that particular instance. The court in that case took notice of the proofs which were offered in respect to the nature of those particular deer, their habits, and the purposes for which they were kept; and, finding that they were kept, not for pleasure, but for profit, that they were carefully preserved, and reared for the beneficial purpose of taking mined that they were personal property and therefore distrainable for at als ; ised, were treated by man in treated in that case, a same intents and pur] Substantially the same decision was made ii mimais in the case of Morgan vs. the Earl of ■eported in the 8th Common Bench Reports. T ipon the death of the owner of a park, whether >ark went to the heir of the owner, or to his ex t was the q trt < 'Hi/. ldt ■efoi In for the purpose of showing the h they were kept, treated and use* property in live animals was vei was shown by evidence that tl that they were cared for; that a s, PTxn- -10 intoc evidence i ORAL ARGUMENT OF JAMES C. CARTER, ESQ. Ï to time selections were made from the number for slaughter and victims were sold in the market for venison. All that was proved, re was a verdict in that case for the plaintiff which was based upon charge of the judge to the jury that they might take this evidence „ Lestion whether the deer were >rty or not; and that verdict for the plaintiff established } the property of the executor; that they went to the id of to the heir, and were therefore personal property. y the whole court of that verdict it was decided that this ill proper and relevant to the question ; that it was all appropriate, and relevant to the point whether the animals were property or not; and that it did satisfactorily determine, or was a sufficient ground upon which the jury might find, that the animals were personal property. These authorities to which I have thus alluded s to establish the only point for which I at present c that in order to determine whether an animal commo "wild" is the subject of property or not we must in into the nature and habits of the animal—that t } sufficient n, namely, ■al "wild" and "tame" are n< >t sufficiently significant for the purpose;- that a close inquiry into its nature and habits with the view of seeing whether such nature and 1 îabits and the uses to which the animal is put are the same as in the case of ordinary domestic animals. If so, they are property the same as domestic animals are. Now, then, what is the c ase with the fur-seal? So far as respects municipal law—for I am n ow examining the question wholly as it is affected by the doctrines of municipal law—it must be admitted that the case of the fur-seal is a new one. It has nowhere been specifically decided ; but cases as to whe ther animals more or less resembling the seal may or may not be the subje ct of property have arisen and been decided in municipal law. There ] ave been a great many cases decided in respect to animals as to wh ch it was doubtful whether they belong to the category of wild or ta me—that is if you treat the terms "wild" and "tame" as a juridical classification—or whether their nature and habits were such as to ma ie them properly the subjects of property. Take the case of wild bees, i or instance. There is an animal which lies quite near the boundary lin e which separates wild from tame animals; and the inquiry was made a an early period in municipal law—a period so early that tradition doe 3 not inform us of the first instance when the case arose—whether tha t animal was the subject of property or not. The same question has ari sen in reference to wild geese, and swans. Those animals belong to the classes commonly designated as "wild"; but they lie near the bound ary. They may sometimes be reclaimed, as it is called. The question has arisen and been determined whether, when reclaimed, they are, notwithstanding the wildness of their nature, the subject of property. The same question has also arisen in reference to deer and pigeons and other animals. Now, therefore, we are to examine those instances in which the municipal law has dealt with the cases of animals commonly designated as "wild," but which still have, in their nature and habits, some characteristics which assimilate them to tame ones, and see what conclusions municipal law arrives at. In general these conclusions are all exceedingly well stated by the most familiar of authorities in the English law and one of the most elegant and precise, I mean Blackstone. I refer to his treatment of the question. I read from what is quoted from him on page 45 of my printed argument: ORAL ARGUMENT OF JAMES C. CARTER, ESQ. 147 II. Other animals that are not of a tame and domestic nature are either not the objects of property at all or else fall under our other division, namely, that of qualified, limited, or special property, which is such as is not in its nature permanent, but may sometimes subsist and at other times not subsist. In discussing which subject, I shall, in the first place, show how this species of property may subsist in such animals as are ferœ naturœ, or of a wild natnre, and then how it may subsist in any other things when under particular circumstances. First, then, a man may be invested with a qualified, but not an absolute property in all creatures that are ferœ naturœ, either per industriam, propter impotentiam, or propter privilegium. 1. A qualified property may subsist in animals/erœ naturœ, per industriam hominis, by a man's reclaiming and making them tame by art, industry, and education, or by so confining them within his own immediate power that they can not escape and use their natural liberty. And under this head some writers have ranked all the former species of animals we have mentioned, apprehending none to be originally and naturally tame, but only made so by art and custom, as horses, swine, and other cattle, which, if originally left to themselves, would have chosen to rove up and down, seeking their food at large, and are only made domestic by use and familiarity, and are, therefore, say they, called mansueta, quasi manui assueta. But however well this notion may be founded, abstractly considered, our law apprehends the most obvious distinction to be between such animals as we generally see tame, and are therefore seldom, if ever, found wandering at large, which it calls dominates naturœ, and such creatures as are usually found at liberty, which are therefore supposed to be more emphatically ferœ naturœ, though it may happen that the latter shall be sometimes tamed and confined by the art and industry of man—such as are deer in a park, hares or rabbits in an inclosed warren, doves in a dove house, pheasants or partridges in a mew, hawks that are fed and commanded by their owner, and fish in a private pond or in trunks. These are no longer the property of a man than while they continue in his keeping or actual possession; but if at any time they regain their natural liberty his property instantly ceases, unless they have animum reveriendi, which is only to be known by their usual custom of returning. A maxim which is borrowed from the civil law, "reverdendi animum videntur desinere habere tunc, cum revertendi eonsuetudinem deseruerint." The law, therefore, extends this possession further than the mere manual occupation ; for my tame hawk, that is pursuing his quarry in my presence, though he is at liberty to go where he pleases, is nevertheless my property, for he hath animum revertendi. So are my pigeons that are flying at a distance from their home (especially of the carrier kind), and likewise the deer that is chased out of my park or forest, and is instantly pursued by the keeper or forester; all which remain still in my possession, and I still preserve my qualified property in them. But if they stray without my knowledge, and do not return in the usual manner, it is then lawful for any stranger to take them. But if a deer, or any wild animal reclaimed, hath a collar or other mark put upon him, and goes and returns at his pleasure, or if a wild swan is taken and marked and turned loose in the river, the owner's property in him still continues, and it is not lawful for anyone else to take him; but otherwise if the deer has been long absent without returning, or the swan leaves the neighborhood. Bees also are ferœ naturœ; but, when hived and reclaimed, a man may have a qualified property in them, by the law of nature, as well as by the civil law. And to the same purpose, not to say in the same words with the civillaw, speaks Bracton ; occupation, that is, hiving or including them, gives the property in bees; for, though a swarm lights upon my tree, I have no more property in them till I have hived them than I have in the birds which make their nests thereon; and, therefore, if another hives them, he shall be their proprietor; but a swarm, which fly from and out of my hive, are mine so long as I can keep them in sight and have power to pursue them, and in these circumstances no one else is entitled to take them. But it hath been also said that with us the only ownership in bees is ratione soli, and the charter of the forest, which allows every freeman to be entitled to the honey found within his own woods, affords great countenance to this doctrine, that a qualified property may be had in bees, in consideration of the property of the soil whereon they are found. In all these creatures, reclaimed from the wildness of their nature, the property is not absolute, but defeasible: a property that may be destroyed if they resume their ancient wildness, and are found at large. For if the pheasants escape from the mew, or the fishes from the trunk, and are seen wandering at large in their proper element they become ferœ naturœ again, and are free and open to the first occupant that has ability to sieze them. But while they thus continue my qualified or defeasible property, they are as much under the protection of the law as if they were absolutely and indefeasibly mine; and an action will lie against any man that detains them from me or unlawfully destrovs them. It is also as much felony by common law to steal such of them STare fit for food as it is to steal tamo animals; but not so if they are only kept for pleasure, curiosity, or whim; as dogs, bears, cats, apes, parrots, 148 ORAL ARGUMENT OF JAMES C. CARTER, ESQ. and singing birds; because their value is not intrinsic, but depending only on the caprice of the owner;'though it is such an invasion of property as may amount to a civil injury, and he redressed by a civil action. Yet to steal a reclaimed hawk is felony both by common law and statute; which seems to be a relic of thetyranny of our ancient sportsmen. And, among our elder ancestors, the ancient Britons, another species of reclaimed animals, viz., cats, were looked upon as creatures of intrinsic value; and the killing or stealing one was a grievous crime, and subjected the offender to a fino; especially if it belonged to the King's household, and was the custos horreiregii, for which there was a very peculiar forfeiture. And thus much of qualified property in wild animals, reclaimed per industriam1. The term which describes this species of property in wild animals— property per industriam—indicates the foundation upon which it rests. It is property created by the art and industry and labor of man. It points out that this labor, art, and industry would not be called into activity, and would not produce its useful and beneficial results, unless it had the reward of property in the product of it, and that therefore the law assigns to such animals the benefits and the protection of property for the purpose of encouraging the industry which produces them. That is the language of Blackstone. It is taken almost bodily from an earlier writer in the law of England—I mean Bracton. And it was by him undoubtedly derived from the civil law in which all or nearly all of these doctrines were established at a very early period indeed. At a very early period in the development of the Roman law these doctrines were established. I now call the attention of the Tribunal to further extracts from writers upon municipal law and I am going to read from page 108 of our printed Argument, and first from "Studies in the Roman Law" by Lord Makenzie, a well known authority. He says: All wild animals, whether beasts, birds or fish, fall under this rule, so that even when they are caught by a trespasser on another man's land they belong to the taker, unless they are expressly declared to be forfeited by some penal law, (Inst., 2, 1,12; Gaius, 2,66-69; Dig., 41, 1, 3, pr. 55). Deer in a forest, rabbits in a warren, fish in a pond, or other wild animals in the keeping or possession of the first holder can not be appropriated by another unless they regain their liberty, in which case they are free to be again acquired by occupancy. Tame or domesticated creatures, such as horse, sheep, poultry, and the like, remain the property of their owners, though strayed or not confined. The same rule prevails in regard to such wild animals already appropriated as are in the habit of returning to their owners, such as pigeons, hawks in pursuit of game, or bees swarming while pursued by their owners (Inst., 2, Then again, a very ancient authority in the Roman law, Gaius, says ( "Elements of Roman Law" ) : Sec. 68. In those wild animals, however, which are habituated to go away and return, as pigeons, and bees, and deer, which habitually visit the forests and return, the rule has been handed down that only the cessation of the instinct of returning is the termination of ownership, and then the property in them is acquired by the next occupant; the instinct of returning is held to be lost when the habit of returning is discontinued.' Another celebrated writer in the civil law, Savigny, says : With respect to the possession of animals these rules are to be applied thus: First. Tame animals are possessed like all other movables, i. e., the possession of them ceases when they can not be found. Second. Wild animals are only possessed so long as some special disposition (custodia) exists which enables us actually to get them into our power. It is not every custodia, therefore, whichis sufficient ; whoever, for instance, keeps wild animals in a park, or fish in a lake, has undoubtedly done something to secure them, but it does not depend on his mere will, but on a variety of accidents whether he can actually catch them when he wishes, consequently, possession is not here retained; quite otherwise with fish kept in a stew, or animals 1 Book IL p. 391. ORAL ARGUMENT OF JAMES C. CARTER, ESQ. >oss.). Third. Wild beasts, tar aed artificially, are likened t odom o long as they retain the habit of returning to the spot whe re the etudinem, revertendi habent). And another very celebrated writer, not upon municipal law, but upon ■ the law of Nature and Nations, Puffendorf, says (lib. 3, cap. I, sec. 3) : Although a loss seems to refer properly to property, yet by us it will be generally accepted as embracing all injury that relates to the body, fame and modesty of man. So it signifies every injury, corruption, diminution or removal of that which is ours, or interception of that, which in perfect justice we ought to have; whether given by nature or conceded by an antecedent human actor law; or, finally, the omission or denial of a claim which another may have upon us by actual obligation. To this tends the 13th Declamation of Quintilian, where he plainly shows that one had inflicted a loss who poisoned the flowers of his own garden whereby his neighbor's bees perished. Yet the convincing reason consists in this : Since all agree that bees are a wandering kind of animate life, and because they can in no way be accustomed to take their food from a given place; therefore, whenever there is a right of taking them, there also, it is understood, is laid a general injunction to be observed by all neighbors, to permit bees to wander everywhere without hindrance from anyone. The passage from Bràcton which follows, I will not read because it is expressed by Blackstone almost in the same terms in the passage from that author which I have just now read. The doctrine is stated very intelligently and clearly by Bowyer, a writer upon the Civil Law: Wild animals, therefore, and birds, and fish, and all animals that are produced in the sea, the heavens, and the earth, become the property, by natural law, of whoever takes possession of them. The reason of this is, that whatever is the property of no man becomes, by natural reason, the property of whoever occupies it. ' It is same whether the animals or birds be caught on the premises of the catcher, or on those of another. But if any one enters the land of another to sport or hunt, he may be warned off by the owner of the land. When you have caught any of these animals it remains yours so long as it is under the restraint of your custody. But as soon as it has escaped from your keeping and has restored itself to natural liberty it ceases to be yours, and again becomes the property of whoever occupies it. The animal is understood to recover its natural liberty when it has vanished from your sight, or is before your eyes under such circumstances that pursuit would be difficult. Here we find the celebrated maxim of Gajus : Quod nullius est, id ratione naiurali occupanti conceditur. It is founded on the following doctrine: Granting the institution of the rights of property among mankind, those things are each man's property which no other man has a rigljt to take from him. Now, no one has a right to that which is res nullius; consequently whoever possesses rem nullius possesses that which no one has a right to take from him. It is therefore his property. I pass on to nearly the middle of page III: The general principle respecting the acquisition of animals ferœ naturœ is, that it is absurd to hold anything to be a man's property which is entirely out of his power. But Grotiu8 limits the application of that principle to the acquisition of things, and therefore justly dissents from the doctrine of Gajus given above, that the animal becomes again res nullius immediately on recovering its liberty, if it be difficult for the first occupant to retake it. He argues that when a thing has become the property of anv one, whether it be afterwards taken from him by the act of man, or whether h'e lose it from a natural cause, he does not necessarily lose his right to it together with the possession ; but that it is reasonable to presume that the proprietor of a wild animal must have renounced his right to it when the animal is gone beyond the hope of recovery and where it could not be identified. He, therefore, argues that the right of ownership to a wild animal may be rendered lasting, notwithstanding its flight, by a mark or other artificial sign by which the creature may be recognized. Mr. Justice Harlan. The last paragraph in that citation is important. Mr. Carter. The last paragraph from Bowyer is pertinent. It is on page 112: With regard to creatures which have the habit of going and returning, such as pigeons, they remain the property of those to whom they belong so long as they retain the animus revertendi or disposition to return. But when they lose that dis- ORAL ARGUMENT OF JAMES C. CARTER, ESQ. I call the attention of the Tribunal to a decision by the Supreme Court of the State of New York, one of the courts enjoying the highest authority in' the United States, and especially enjoying the highest authority at the time this decision was made. It is the case of Amory vs. Flyn and is reported in 10th Johnson's Reports 102. It is contained on page 116 of our printed Argument. In that case one Amory brought an action of trover, as it is called in the English law, against Flyn before a justice of the peace for two geese. That is to say he brought an action for damages for a trespass done to him in taking geese which he alleged to be his property; This was a case where geese wild by nature had been reclaimed by man to such an extent that they were wonted to a particular spot, and yet were in the habit of straying away from it; and having strayed off upon a certain occasion another man took them and handed them over to still another and that other refused to give them up on demand. The question was whether the plaintiff had a property in them. It appears to have been held in the court below that he had no prop- decided by it are these : The owner of bees which ha had the former possession, although he can not enter upon the lands of the other to retake them without subjecting himself to an action of trespass. The facts of that case appear to be these: One Kilts had brought an action against Goff in a justice's court, an action in the nature of an action of trespass, for taking and destroying a swarm of bees and the honey made by them. The plaintiff in his suit before the justice recovered a judgment and that was affirmed on appeal by the court of Common Pleas of the county . where the suit was brought. The defendant then carried the case by what is called a writ of error, to the principal court of the State of New York at that time—not the highest appellate court, but yet a high appellate court. Mr. Justice Nelson, very celebrated in the United States as one of the most distinguished judges of his time, delivered the opinion of the court. He says : ORAL ARGUMENT OF JAMES C. CARTER, ESQ. 151 Animalsiferœ naturœ, when reclaimed by the art and power of man, are the subject of a qualified property; if they return to their natural liberty and wildness, without the animus revertendi, it ceases. During the existence of the qualified property, it is under the protection of the law the same as any other property, and every invasion of it is redressed in the same manner. Bees are ferœ naturœ, but when hived and reclaimed, a person may have a qualified property in them by the law of nature, as well as the civil law. Occupation, that is hiving or inclosing them, gives property in them They aie now a common species of property, and an article of trade, and the wildness of their nature, by experience and practice, has become essentially subjected to the art and power of man. An unreclaimed swarm, like all other wild animals, belongs to the first occupant—in other words, to the person who first hives them ; but if the swarm fly from the hive of another, his qualified property continues so long as he can keep them in sight, andpossesses the power to pursuethem. Under these circumstances, no one else is entitled to take them. (2 Black. Comm., 393; 2 A case decided by the Court of Common Bench in Great Britain, and to which I have already referred, that of Morgan and another against the earl of Abergavenny is printed almost in extenso, beginning on page 119 of our printed argument. It is too long to be read; but the whole of it has been printed in order that the Tribunal may observe the circumstances under which that case arose, and thus ascertain the precise, point which was decided. But I will call the attention of the Arbitrators to the paragraph near the bottom of page 125. I have said that in that case, the question being whether deer were property or not, evidence was given tending to show their nature and habits and the purposes to which they were applied. The court says: In considering whether the evidence warranted the verdict upon the issue whether the deer were tamed and reclaimed, the observations made by Lord Chief Justice Willes in the case of Davies v. Powell, are deserving of attention. The difference in regard to the mode and object of keeping deer in modern times from that which anciently prevailed, as pointed out by Lord Chief Justice Willes, can not be overlooked. It is truly stated that ornament and profit are the sole objects for which deer are now ordinarily kept, whether in ancient legal parks or in modern inclosnres so called ; the instances being very rare in which deer in such places are kept and used for sport ; indeed, their whole management differing very little, if at all, from that of sheep, or of any other animals kept for profit. And, in this case, the evidence before adverted to was that the deer were regularly fed in the winter; the does with young were watched ; the fawns taken as soon as dropped, and marked ; selections from the herd made from time to time, fattened in places prepared for them, and afterwards sold or consumed, with no difference of circumstance than what attached, as before stated, to animals kept for profit and food. As to some being wild, and some tame, as it is said, individual animals, no doubt, differed, as individuals in almost every race of animals are found, under any circumstances to differ, in the degree of tameness that belongs to them. Of deer kept in stalls, some would be found tame and gentle, and others quite irreclaimable, in the sense of temper and quietness. Upon a question whether deer are tamed and reclaimed, each case must depend upon the particular facts of it; and in this case, the court think that the facts were such as were proper to be submitted to the jury; and, as it was a question of fact for the jury, the court cannot perceive any sufficient grounds to warrant it in saying that the jury have come to a wrong conclusion upon the evidence, and do not feel authorized to disturb the verdict. The decision therein referred to with approval was made by Lord Chief Justice Willes in the case of Davies vs. Powell, a report of which is printed on page 126 of the printed argument. The point in controversy is stated on page 127: And- the single question that was submitted to the judgment of the court is whether these deer under these circumstances, as they are set forth in the pleadings, were distrainable or not. It was insisted for the plaintiff that they were not ; (1) Because they were ferœ naturœ, and no one can have absolute property in them. (2) Because they are not chattels, but are to be considered as hereditaments and incident to the park. . . (3) Because, if not hereditaments, thev were at least, part of the thing demised. (4) Their last argument was drawn ab inusitato, because there is no instance in which deer have been adjudged to be distrainable. )RAL ARGUMENT OF JAMES C. CARTER, ESQ. earned judge goes onto say: Hawk. P. C. 94 to prove that it is not felony to take away deer, conies, etc., unless I do admit that it is generally laid down as a rule in the old books that deer, conies, etc., are ferœ naturœ, and that they are not distrainable ; and a man can only have a property in them ratione loci. And therefore in the case of swans, (7 Co. 15, 16,17, 18) and in several other books there cited it is laid down as a rule that where not say suos, because he has them only for his game and pleasure rations privilegii whilst they are in his park, warren, etc. But there are writs in the register (fol. 102), a book of the greatest authority, and several other places in that book which show that this rule is not always adhered to. The writ in folio 192 is " quare clausum The reason given for this opinion in the books why they are not distrinable is for the rule in Co. Lit. is extended to dogs, yet it is clear now that a man may have a valuable property in a dog. Trover has been several times brought for a dog, and great damages have been recovered. Besides the nature of things is now very much. altered, and the reason which is given for the rule fails. Deer were formerly kept only in forests or chases, or such parks as were parks either by grant or prescription, and were considered rather as things of pleasure than of profit; but now they are frequently kept in inclosed grounds which are not properly parks, and are kept principally for the sake of profit, and therefore must be considered as other cattle. On page 129 I read again : Fourth. The last argument, drawn db inusitato, though generally a very good one, does not hold in the present case. When the nature of things changes, the rules of law must change too. When it was holden that deer were not distrainable, it was because they were kept principally for pleasure and not for profit, and were not sold and turned into money as they are now. But now they are become as much a sort of husbandry as horses, cows, sheep, or-any other cattle. Whenever they are so and it is universally known, it would be ridiculous to say that when they are kept merely for profit they are not distrainable as other cattle, though it has been holden that they were not so when they were kept only for pleasure. The rules concerning personal estates, which were laid down when personal estates were but small in proportion to lands, are quite varied both in courts of law and equity, now that personal estates are so much increased and become so considerable a part of the property of this kingdom From all those authorities drawn from the municipal law of different nations, and confirmed by the ancient Roman law, these propositions are exceedingly clear: That, in respect to wild animals, if by the art, and industry of man they may be made to return to a particular place to such an extent that the possessor of that place has a power and control over them which enables him to deal with them as if they were domestic animals, they are in the law likened to domestic animals and are made property just as much as if they were domestic animals; and that property continues, not only while they are in the actual custody of the owner of that particular place, but when they are away from his custody, and no matter how far away, so long as they have an intention of returning to it. The property in them ceases only when this intention ceases; and the cessation of that intention is to be inferred, and can only be inferred, from the cessation of the habit of returning. When they have abandoned that habit and have returned to their ancient wildness, they cease to be property and may be taken by any person with- out an invasion of property right. I may stateanother proposition fully substantiated by these authorities. It is scarcely another proposition indeed'. It is almost the same ; but the language is somewhat different, ORAL ARGUMENT OF JAMES C. CARTER, ESQ. 153 and I may be justified therefore in stating it in a different form: That wherever man is capable of establishing a husbandry in respect to an animal commonly designated as "wild", such a husbandry as is established in reference to domestic animals, so that he can take the increase of the animal and devote it to the public benefit by furnishing it to the markets of the world, in such cases the animal, although commonly designated as wild, is the subject of property and remains the property of that person as long as the animal is in the habit of voluntarily subjecting itself to the custody and control of that person. Those are doctrines of themunicipal law everywhere agreed to. There is no dissent that I am aware of in reference to them; and being the universal doctrines of municipal law they may be taken, I apprehend, in the absence of evidence to the contrary, as being the doctrine of international law. Sir Charles Russell. You must not assume that I agree to that. You say it is universally admitted. Mr. Carter. I do not assume that you agree to anything. Sir Charles Russell. I should not have interposed but my learned friend said it was universally admitted. Mr. Carter. I must understand a permanent exception then to that; but I cannot be very well deprived of the use of the word "general" or "universal", because it may be held not to include my learned friend. Let it be understood that 1 do not mean to include him. So far as my knowledge extends these doctrines are universally acceded to. The President. Mr. Carter, what would be your legal definition of the word "husbandry" as you just used it. Would it be merely the fact of gathering the increase of an animal? Mr. Carter. Yes. The President. That is enough to constitute husbandry in your view? Mr. Carter. Taking an animal, caring for it, preserving the stock, and taking thé increase for the markets of the community—that is husbandry I suppose ; the same sort of husbandry that is exercised in respect to sheep, horses, cattle, or any other of our domestic animals. The President. I better understand your meaning by your definition, than by your simile or your comparison. Mr. Carter. Well, it seems to me that the definition is good; and it seems to me that the analogies of the animals to which I allude are appropriate. There are certain observations which I shall venture to make respecting the law so far as I conceive myself to have established it, so far as I have stated it. I mean, in the first place, that it is uniform in all countries and that it may therefore be taken to be international. Second, that it is not founded upon legislation, but upon the principles of the law of nature; declared by the decisions of judicial tribunals as founded upon the law of nature; that that doctrine is made to turn upon the existence of an animus revertendi; but I may say that this animus revertendi must be of itself wholly unimportant. It is indeed a mere fiction anyway. What do we know about the animus of one of these wild animals? All we know of the intention of the wild animal is that exhibited by its habits; and indeed the law says that the intention is to be inferred only from its habits. As long as the habit of returning exists, the intention exists, and when the habit of returning ceases then the intention to return is held to cease. Of what consequence, in itself considered, is this habit of returning, unless it has some social 154 ORAL ARGUMENT OF JAMES C. CARTER, ESQ. uses and purposes? Why should it be said that a wild animal is the subject of property if he has the habit of returning to the same place, andisnotthesubjectof propertyif hehasnotthat habit, and ceases to be the subject of property when once he has lost that habit? Why should we say that? There must be some reason for that. Can it be anything else than this that the existence of the habit enables man to treat the animal in the same way as he treats domestic animals and to make the animal subserve the same useful public and social purposes which domestic animals subserve ? Plainly that must be the reason for it. Take the case of wild swans and geese. They are generally held not to be the subject of property. The law, however takes notice of the exception where those animals have been so far reclaimed that they will continually and habitually resort to a particular place. There the law says they are property; and so long as they have that intention nobody save the owner can lay hands on them, wherever they are, whether in that particular place or not. Why does the law say that? Because there is a public utility which may be subserved by that. If you allow the possessor of the place to which they resort to have the right of property in them he will devote himself to the business of reclaiming those animals; and consequently society will be supplied with those animals, whereas otherwise it will not. Property is the price which society must pay for the benefit which is thus gained from those animals. They are the product of the art, and the industry, and the labor which is expended upon them ; and being that product, the benefit of it is properly awarded to the person who exhibits that art and industry. The President. Do you mean to say that the seals reverted to the Pribilof Islands on account of the industry carried on there? Mr. Carter. Yes. The President. Perhaps you will come to that later in your argument. Mr. Carter. I hope my argument will not be anticipated. I shall not fail to complete the analogy. I am now looking to these other instances. Take deer. Why is it that as long as deer are kept for the purposes of sport the law will not regard them as property? Because as long as they are kept for such purposes they subserve no useful social purpose; but the moment a man undertakes to reclaim deer, to take care of them, to feed them, to treat them as he does domestic animals and to supply the markets of society with venison from them, he is awarded the rights of property in them. That is because he is doing a useful public service ; because it is a public service that would not be performed unless it was paid for, and because it can be paid for only by the award of the right of property to the one who thus expends his labor. Take the case of bees. Nothing can be more wild in its nature than a bee. That nature is not in the slightest degree changed when a hive is put inside of a box on the premises of a private individual; and that is all it is necessary to do. But what is the consequence of that? It is that a supply of honey may be taken from that animal, and a much greater supply than if you were driven to hunt through the woods to find hives. The consequence is that when that hive swarms, the swarm can be taken and put in another box and thus the number of swarms be multiplied indefinitely and the product of honey indefinitelyincreased. That is a great service to society. It furnishes it with an article of great utility which otherwise it would not have, or would not have in anything like the same degree of abundance; and therefore the art and industry, simple though it be, which is expended upon those particular ORAL ARGUMENT OF JAMES C. CARTER, ESQ. 155 bees, is rewarde d by assigning to the possessor of th hives are a righ i of property in the bees. When a hi pursue it away From his own premises upon the prt man. It remain s his property ; and, as appears from I read to the lea rned Arbitrators, if the bees go ont another person ? vho will not permit the owner of the and take them, they still remain his property; and priated by the o wner of the land where they take r of a trespass. All of those p rivileges are awarded to the owner of and encouragem eut to him for protecting the bees. the great motive of self-interest so powerful in human isthefoundatior of a great part of all the blessings of s ing into activity a care, industry, labor, and diligenc I might add instances of other animals; but the learned Arbitrators will perceive what the rule is which has been established, the different animals to which it is applied, and the obvious grounds upon which the doctrine is based. Now let me see whether those doctrines apply to the case of the fur- seal or not. It is only necessary to allude to a few of the characteristics of the seal. In the first place he comes upon the Pribilof Islands voluntarily, and there submits himself absolutely to the conti ol, custody, and disposition of the owner of that place. He is defenceless against man. Still he voluntarily comes there and submits himself to the power of man. In the next place, after migrating from that place he returns to it in obedience to the most imperious of all animal instincts. Nothing can stop him unless he is driven away. Although his absence from that spot is very prolonged and the distances over which he travels very great, that instinct to return is never for a moment absent. It is superior—very far superior—to any instinct that a deer may have to go to a particular place, or the wild swans, or geese, or pigeons, or animals of that sort. Seals will go through all obstacles and all dangers and certainly return to that spot. What is the social utility to subserve which this habit offers an opportunity? Man is enabled by means of it to practice a species of husbandry. He can take the annual increase of that animal without in any respect diminishing its stock. In other words, he can deal with the animal precisely as he does with domestic animals and precisely as if the animal were domestic. Therefore we find here all the elements, all the foundations, upon which as Black- stone calls it, property per industriam stands. You may ask what care, what industry man practices in reference to the seal. He does not take him and teach him to return; he does not laboriously wont him to this particular spot; the animal is inclined to go there anyway; but you will perceive upon a very little reflection the degree of care and industry which is exercised. In the first place the United States, or Russia before the United States, carried thither to these islands several hundred people, and instituted a guard over those islands and preserved the seals and protected them against all other dangers except that of being slaughtered in the manner which I have described—a very great labor and a great deal of expense. The seals are freely invited to come to those islands. No obstacle is thrown in their way. Their annual return is cherished in every way in which it can be cherished. Very great expense is undergone in extending this sort of protection over them. In the next place, and what is particularly important, the United States, and Russia before the United States, practiced a self- 156 ORAL ARGUMENT OF JAMES C. CARTER, ESQ. denial, an abstinence, in reference to that animal. They did not club him the moment he landed and apply him to their purposes indiscriminately, male and female. They did not take one in this way. They carefully avoided it. They practiced a self-denial. And that self-denial, and the care and industry in other respects which I have mentioned, lead those seals to come to those islands year after year, where they thus submit themselves to human power so as to enable the whole benefit of the animal to be applied to the uses of man. Let me ask what would have been the case if this care and industry had not have been applied? Suppose the art and industry of the United States and its self-denial had not been exerted, what would have been the result? We have only to look to the fate of the seal in other quarters of the globe where no such care was exerted, to learn what would have been the result. They would have been exterminated a hundred years ago. That herd would not exist there now, and could not exist. Every marauder who thought he could make a profitable voyage by descending upon the islands in the hope of getting seals would have gone there and killed indiscriminately all that he could find. The herd would have been exterminated just as such herds have been exterminated in every other quarter of the globe where this care has not been exercised. Therefore, I respectfully submit to you that the present existence of that herd on these islands—the life of every one of those seals, be they a thousand, or be they five millions—is the direct product of the care, industry, labor and expense of the United States; and they would not be there except for that care and industry. What is contended for upon the part of Great Britain here is the right to prey upon a herd of animals which are in every sense the creation of the labor and industry of the United States and which would not exist—would not exist for the world, would not exist, even for those who thus prey upon them, except for the exercise of that care and industry. There is no contradicting that position at all. It is not susceptible of denial, or of doubt. It is absolutely certain that this herd would not exist a day on the Pribilof Islands, nor would it have existed on any day within the last half century, but for the exercise of the care, labor, industry, and self-denial by Russia, and her successor, the United States. If the exercise of those qualities in the case of the wild swan, of deer, of bees, and of the other animals to which I have alluded are sufficient grounds and reasons why an award of property should be made to those who exhibit them, why should it not be made in this case? Therefore I say that upon the plain doctrine of the municipal law, the position of the United States, that these seals are the subject of property, and that they belong to the United States, not only while they are on the islands, but at all times during their migrations, near or remote, is fully established. I might properly leave the argument here. The propositions in respect to property which I have shown to be true in reference to other animals, wild in their nature but reclaimed by man, are true in respect to seals. There are indeed differences between seals and the other animals; but the differences are wholly immaterial to the question in dispute. They do not affect it at all. The right of property is awarded in those instances for social reasons and in consequence of great social benefits; and these social reasons and social benefits are as strong—I may say much stronger—in the case of the seals than they are in the case of any other animals to which allusion has been made as being subjects of property after they are reclaimed. It may be said that in the case of ORAL ARGUMENT OF JAMES C. CARTER, ESQ. 157 the other animals, like wild geese, and swans and deer, that the disposition to return has been created by man. Suppose it was created by man in those instances, and not created by man in the case of the seals. Would that make any difference? No. The public and social benefits which result from an award of property are the same in the one case as in the other. But it is not true, this suggestion that the instinct is created in the case of the other animals. The instinct to return is natural in all the cases alike. Man only acts upon it; and he acts upon it in the one case just as he acts upon it in the other. If there was not a natural instinct to return in the case of wild geese and swans, they could not be made to return. It is their native qualities, their natural instincts, which are acted upon by the art and industry of man and which produce the useful result; and they are acted upon in the case of the seals just as much. Of course it is true that the wanderings of the seals from the place to which they thus resort are much wider and more protracted than in the case of the other animals; but has it ever been suggested in the case of the other animals that the question whether an award of» property could be made would depend upon the extent of their wanderings? Not at all. No matter how widely they may stray, no matter how long they maybe absent, so long as you can say that the animus revertendi remains, so long the property exists and will be protected. In respect to seals, we may say, with a certainty and absoluteness which cannot be declared with reference to other animals, that the animus revertendi does always exist. It may be said—indeed, is said, as I observe, in the argument of my learned friends on the other side—that the seals do not return to the same particular spot. It is said that a seal may go one year to the Island of St. George and in another year he may go to the Island of St. Paul. Of what consequence is that? Mr. Foster. That is not proved. It is a mere supposition. Mr. Carter. That may well enough be true, for aught we know. I shall not take pains to undertake to show that it is not true; for it is a circumstance of absolutely no importance. The only important thing about it is that the animal should return to the human owner; that he should return to the custody of the owner who has exhibited the care and diligence which enables him to put that return to advantage. All these islands are the property of. one proprietor, and all the benefits which can possibly arise from the return of an animal to a particular place, and a submission of himself to the power of man, can be reaped in thé case of the seals. It is suggested that we are not certain that the seals that come this year are the same seals that were there last year, and it is suggested that there is an intermingling between the two herds on the two sides of the Pacific Ocean ; that seals which frequent the Commander Islands, belonging to Russia, are found mingled with the herds which go to the Pribilof Islands. That is all conjecture. There is not an item of evidence tending to show that any such commingling as that occurs in point of fact. It is against the teachings of natural history. It is against everything which we know in reference to the habits of this particular herd. All parties were agreed, until it became of some importance to suggest some failure of identification, that this particular herd that visits the Pribilof Islands confines itself to the western coast of America. It goes nowhere else. These are its sole places of resort for the purposes of breeding; and it is proved with a certainty which any court of justice would act upon anywhere that any seal found upon the western coa^t of America belongs to that particular herd and makes those islands his home. 158 ORAL ARGUMENT OF JAMES C. CARTER, ESQ. The President. Mr. Carter, would you call the Pribilof Islands the home of those seals. You have explained the animum revertendi in such a way as to lead us to suppose that the animal which reverts to its usual haunts, reverts in some measure to its home. Would you say the same for the seals? Mr. Carter. I call the Pribilof Islands their home. I am not particular about the name which is applied to it. You may call it their place of resort, their breeding ground, or what not. Whatever you choose to call it, the fact is clear thai they go there for the purposes of breeding; they stay there five months in the year; they bring forth their young there; and you can go there and easily separate the superfluous males from the rest of the herd, for the purpose of affording them to the commerce of the world. The name is of course unimportant. It is the facts which determine the question. I have said that these doctrines are clear upon the settled rules of municipal law; and for reasons which we find plainly apparent in the doctrines of municipal law. But I am not disposed to leave the question there; because the argument can be strengthened. »I have said nothing about the original principles and rules upon which the institution itself of property stands. The institution of property is anterior to municipal law, or anterior, at least, to any considerable degree of development of that law. It is assumed to exist by municipal law; and it is only in these comparatively rare instances, exceptional instances, such as swans and bees, pigeons and deer, that the question of the foundation of the institution of property has been inquired into by those who administer the municipal law. There are those instances; but what if we should inquire into the foundations of property generally, and see what the reasons are which support it? Why is it that the institution of property exists at all? Why is it that one man is permitted to own one hundred thousand acres, if you please, of the earth's surface, and another man have not where to lay is head? Why is it that society permits one man to hold, and defends him in holding, storehouses, whole magazines of provisions while another is starving for hunger? Those things cannot be arbitrary. Such an institution cannot be the result of chance, cannot rest upon any arbitrary reasons. It must stand upon great social grounds; and therefore it is very pertinent to inquire what those social grounds are. I therefore invite this Tribunal to accompany me in a somewhat larger inquiry, very pertinent to the matter which is now before them, — an inquiry as broad as the social interest of all nations, which this Tribunal is supposed to represent. The President. You want to take us into a discussion of socialist theories or principles? Mr. Carter. I do not object to discussing socialist theories, provided they are pertinent, and I can reduce them into some brief compass. The President's question reminds me of an observation of one of his countrymen, called illustrious by his friends, and, 1 suppose, denounced as notorious by his enemies. It was the Frenchman Prudhon, Avho said that property is robbery; and he was right. Property is robbery, unless you can defend it on some great social grounds, and support it upon the basis of great social benefits. If you can show that it is necessary to society, necessary to order, necessary to civilization, and necessary to progress then you can defend it. Otherwise, it is robbery. What is property? It is sometimes said to be the right to the exclusive enjoyment of a thing; but that rather indicates the jural right which belongs to it and is attached to it, and not the thing itself. ORAL ARGUMENT OF JAMES C. CARTER, ESQ. 159 What is it ? I think it is well expressed by one or two writers to whom I will call attention. It is very hard to define what property is. We can feel it; it is hard to define it. Savigny says (page 51 of our printed Argument) : "Property according to its true nature, is a widening of individual power. It is, as far as tangible things are concerned, an extension of the individual to some part of the material world, so that it is affected by his personality". And the philosopher Locke expresses the same idea. He says : The fruit or venison which nourishes the wild Indian must be his, and so his, i.e., a part of him, that another can no longer have any right to it, etc. (Civil A German writer of great distinction, Ihering, gives substantially the same definition of it: In making the object my own I stamped it with the mark of my own person ; whoever attacks it attacks me; the blow struck it strikes me, for"I am present in it. Property is but the periphery of my person extended to things. (Ihering, quoted by George B. Newcomb, Pol. Science Quarterly, vol. 1, p. 604.) That is a very happy definition of what property really is. It is a part of the person, and whoever touches the property of a person touches him. Whoever touches the property of a nation touches the nation itself. That is a description of the thing itself. Now, what is the right on which it is founded? In going into this inquiry as to what the right of property is founded upon, I am not going to deal with any abstract question; nor am I going to deal with questions that have not been considered as within the province of jurists. On the contrary, I am entering on a question which has been, from the first, considered peculiarly the province of jurists, and especially of jurists dealing with the law of nature and the law of nations. The great writers upon that law, beginning with Grotius, have considered that no ethical system could be complete, and, consequently,, that no system of the law of nature and nations could be complete, which did not deal with the institution of property and the foundations upon which it it rested. And in what I am going to say, I shall do little more than recall views which have been before stated' and developed by very many different writers. Possibly I may carry them a little further in the development; but for the most part I shall only repeat what has been said before. These writers, in endeavoring to ascertain the foundations of the institution of property, take first into consideration its universal prevalence everywhere all over the globe; and in every stage of human history, and then recognize in this the truth that it is and must be founded upon the facts of man's nature, and the circumstances, the environment, in which he is placed. They tell us that man is by nature a social animal, and must live in society, and that society is not possible unless we can have order and peace. Wherever there is anything desirable to men, wherever there is an object of human desire, of which the supply is limited—where there is not enough for all—there will necessarily be struggle and contention for the possession of it; and if there were nothing to prevent it, those who had the most power would engross the most valuable things of the world. There would be constant war- • fare for the possession of desirable things where there was not enough for all, unless there were some rule and some means by which that warfare should be prevented. Therefore, property at once becomes a necessity, in order that there may exist peace and order in human society. We may say, therefore, that the foundation of property, its first and original foundation, was in necessity, the necessity of peace and order; 160 ORAL ARGUMENT OF JAMES C. CARTER, ESQ. and that necessity requires that property be carried to this extent: that every object of desire, the supply of which is limited, must be owned by somebody. When you have that state of things, you have peace, and until that state of things is established, you cannot have peace. Therefore we find that everywhere where men are formed into human societies, a determinate owner is assigned to every object of human desire, the supply of which is limited. Those views are well expressed in the early part of Blackstone's Commentaries on the Law of England. He has a very elegant chapter, to which I would refer the particular attention of the members of the Tribunal. I shall read here only an extract from it, on page 54, of our printed Argument. He says : Again, there are other things in which a permanent property may subsist, not only as to the temporary use, but also the solid substance; and which yet would frequently be found without a proprietor had not the wisdom of the law provided a remedy to obviate this inconvenience. Such are forests and other waste grounds, which Were omitted to be appropriated in the general distribution of lands. Such also are wrecks, estrays, and that species of wild animals which the arbitrary constitutions of positive law have distinguished from the rest by the well known appellation of game. With regard to these and some others, as disturbances and quarrels would frequently arise among individuals, contending about the acquisition of this species of property by first occupancy, the law has therefore wisely cut up the root of dissension by vesting the things themselves in the sovereign of the State, or else in his representatives appointed and authorized by him, being usually the lords of manors. And thus the legislature of England has universally promoted the grand ends of civil society, the peace and security of individuals, by steadily pursuing that wise and orderly maxim of assigning to everything capable of ownership a legal and Sir Henry Maine has also made an allusion to this doctrine, which is well worthy of consideration. He speaks of this rule of assigning a determinate owner to everything capable of ownership, not simply as an original feature in human society, but one which from the long habitudes of society comes to be regarded as essential by every one. He says : It is only when the rights of property gained a sanction from long practical inviolability, and when the vast majority of objects of enjoyment have been subjected to private ownership, that mere possession is allowed to invest the first possessor with dominion over commodities in whieb no prior proprietorship has been asserted. The sentiment in which this doctrine originated is absolutely irreconcilable with that infrequency and uncertainty of proprietary rights which distinguish the beginning of civilization. The true basis seems to be not an instinctive bias towards the institution of property, but a presumption, arising out of the long continuance of that institution, that everything ought to have an owner. When possession is taken of a "res nullius", that is, of an object which is not, or has never been reduced to dominion, the possessor is permitted to become proprietor from a feeling that all valuable things are naturally subjects of an exclusive enjoyment, and that in the given case there is no one to invest with the rights of property except the occupant. The occupant, in short, becomes the owner, because all things are presumed to be somebody's property, and because no one can be pointed out as having a better right than he to the proprietorship of this particular thing. (Ancient Law, Ch. vin, p. 249.) And Lord Chancellor Chelmsford made use of the same doctrine in rendering the decision of the House of Lords in the case, very familiar to my friends on the other side, doubtless, of Blades v. Higgs. That was a case where a trespasser entered the grounds of another where he had no right, and killed some game there; and the question was, to whom the game belonged, whether to the trespasser, or to the owner of the property. The judgment of Lord Chancellor Chelmsford proceeded along this line: he says, everything that is capable of ownership must be owned by somebody, and therefore in this case, this dead game must be owned either by the man who killed it, the trespasser, or by the man upon whose ground it was killed. He says it cannot be the property of the trespasser, for a man cannot be permitted to work out for him- ORAL ARGUMENT OF JAMES C. CARTER, ESQ. 161 self an advantage by the commission of a wrong ; and it must therefore be the property of the owner of the soil. That was the conclusion of the court—quite contrary to what the rule of the civil law would be in the same case; but I cite it for the purpose of showing that this doctrine upon which I am insisting, that the necessities of society require, and always have required, that everything should have a determinate owner, is one which is everywhere received, and even so far received as to be made the foundation of judicial decision. [The Tribunal thereupon took a recess.] The Tribunal. Upon resuming. Mr. Carter said: In the inquiry as to the origin of the institution of property, I had reached the conclusion that the original basis of it was the necessity of peace and order, which is of course an absolute ■ requisite of human society. And therefore the institution of property is coeval with the existence of human society upon the earth. That institution stands upon the immutable basis of necessity ; and, to employ the language of Blackstone, I may say that "necessity begat property." Necessity requires that everything capable of being property must be assigned to some legal and determinate owner. If that is done peace is secured; if that is not done, there is strife and warfare in society, and society can no longer exist. But what is capable of being property? All things are not thus capable; and we must, therefore, clearly understand the requisites which enable anything to be the subject of property. Now, there are three things necessary in order that property may subsist in anything; first, the thing, in order to be a subject of property, must be an object of human desire; that is to say, it must have a recognized utility. Property cannot exist in noxious animals, such as reptiles, or in weeds. A thing that is not an object of human desire cannot be property. Nobody wants such things, and what nobody wants nobody will seek to appropriate to himself. In the second place, the thing must be limited in supply; there must not be enough for all. It must be exhaustible. Therefore, there cannot be any property in the air, in the sunlight, in running water, or things of that sort. They exist to an infinite extent, and there is abundance to satisfy the wants of everyone, and there can be no contention respecting the ownership of such things. Then, thirdly, the thing must be susceptible of exclusive appropriation. Take animals called game, for instance. There is no question as to their utility. There is not enough for all; yet they cannot be made the subjects of exclusive appropriation ; no man can take them and hold them. If one should attempt to do it to-day, they would escape to-morrow, and he could not re-capture or identify the fugitives. The three fundamental conditions of property are, therefore, first, that the subject of it should be useful; second, that it should be limited in supply; and, third, that it should be capable of exclusive appropriation. These are deductions of reason from the admitted facts of man's nature, and from the circumstances in which he is placed; but they will be found at once confirmed upon appeal to experience. We cannot now find, we could not find, in any stage of civilized human society, anything embracing these three conditions—utility, exhaustibility, and capacity of exclusive appropriation—which is not regarded as the determinate property of some individual or corporation. Now this is true not only of property as between individuals, but also of property as between nations; for the same necessity of peace and order exists in the larger society of nations as in the smaller municipal societies of the world. The larger society of nations cannot exist in comfort unless there is established the means of putting an end to strife B s, pt xn 11 162 ORAL ARGUMENT OF JAMES C. CARTER, ESQ. and contention. If there is no rule to settle disputes, nations would be always at war; and consequently we find that, in respect to such things as are not susceptible of ownership by individuals, if they are objects of desire, if the supply is limited, and if they are capable of exclusive appropriation, they must be owned by some nation. Now that principle in respect to nations finds its apt illustration in the case of newly-discovered countries. When the New World was revealed to the Old, there were vast tracts of the earth's surface which became the object of contending ambitions, and there would have been wide-spread war among the different nations had there not been some rule by which international strife could be appeased, a rule which ordained that everything must be owned by somebody. It is there that we find the efficacy of the title of first discovery. The rule was early established that the nation that first discovered any new region should be regarded as having a fixed and perfect title to it. Why should that be? Why should the mere circumstance that the citizen of one nation had coasted along the shore of a hitherto unknown region give his country as a nation the power of enjoying the benefits of the discovery? Because the nations felt the necessity of some rule which would prevent strife among them ; and therefore the least circumstance giving a superior moral right to one over another was recognized, and new territory was awarded to the one who first discovered it. The President. Where did you find that rule? Did the mere fact of discovery confer a title? That is not the law as it stands now. The Conference which met in Berlin two years ago held that discovery would not create title without occupation. Mr. Carter. I think that doctrine does not vary from the one I am endeavoring to state. Of course, if a nation has discovered a new region and has abandoned all intention of occupying it, it should not be regarded as the owner of it, and such abandonment is evidenced by . the fact that the nation does not follow up discovery by occupation. The failure, after a sufficient lapse of time, to occupy the tract would be considered as a relinquishment of the right to occupy. The President. The practical consequences are the same. Mr. Carter. Yes. I fully agree to the apparent modification suggested by the learned President. Authority for the view I have just taken will be found frequently stated by the writers on the law of nature and the law of nations. It is very clearly put by Chief Justice Marshall of the Supreme Court of the United States, in the noted case—in America, at least;—of Johnson v. Mcintosh, which will be found at page 56 of our printed Argument (quoting) : As the right of society to prescribe those rules by which property may be acquired and preserved is not, and can not be, drawn into question; as the title to lands, especially, is, and must be admitted, to depend entirely on the law of the nation in which they lie, it will be necessary, in pursuing this inquiry, to examine, not simply those principles of abstract justice which the Creator of all things has impressed on the mind of his creature, man, and which are admitted to regulate in a great degree the rights of civilized nations, whose perfect independence has been acknowledged, hut those principles also which our own Government has adopted in the particular case, and given as the rule of decision. On the discovery of this immense continent, the great nations of Europe were eager to appropriate to themselves so much of it as they could respectively acquire. Its vast extent afforded an ample field to the ambition and enterprise of all ; and the character and religion of its inhabitants afforded an apology for considering them as a people over whom the superior genius of Europe might claim au ascendency. The potentates of the old world found no difficulty in convincing themselves that they made ample compensation to the inhabitants of the new, by bestowing upon them civilization and Christianity, in exchange for unlimited independence. But, as they were all in pursuit of nearly the same object, it was necessary in order to avoid con- ORAL ARGUMENT OF JAMES C. CARTER, ESQ. 163 dieting settlements, and consequent war with each other, to establish a principle ■which all should acknowledge as the law by which the right of acquisition, which they all asserted, should be regulated as between themselves. This principle was that discovery gave title to the government by whose subjects, or by whose authority, it was made, against all other European governments, which title might be consummated by possession. The exclusion of all other Europeans necessarily gave to the nation making the discovery the sole right of acquiring the soil from the natives and establishing settlements upon it. It was a right with which no Europeans could interfere. It was a right which all asserted for themselves, and to the assertion of which by others all assented. Property in newly discovered lands is founded, therefore, upon the right of discovery, which gives the title, although a failure to occupy may be evidence of abandonment. There is another circumstance that I may mention as having a tendency to support the line of argument which I am following. It will be remembered that at this period, when the riches of the ISew World were dicovered and there was danger of so much strife, one of the Popes made a grant to Spain of all undiscovered regions of the globe west of the 100th meridian of longitude. Well, we should perhaps not recognize such a title in these days; but it will be remembered that at that time the authority of the Papacy was more highly held than now— The President. It was more universal. Mr. Carter. Yes, more universal. And who will say that when the object is to find a rule to prevent war, the acquisition of a title like that would be insignificant? No, it was respected by a great many, and it was not so absolutely unfounded and preposterous as some at the present day may think it; it had a weight and importance at that time which we cannot fully appreciate now. These things go to show that the institution of property was to prevent strife, and they prove that we must find an owner for everything. But, so far as the prevention of strife is concerned, it is not necessary that private, individual, property should exist. The in stitutiou of property is necessary, but there are two forms of that institution. One is community property, and the other private, individual, property; and the single necessity of the prevention of warfare and strife would be satisfied by the institution of community property. And, accordingly, we find that in the earlier periods of society, under rude social conditions, private individual property did not exist, but the community, the tribe, the gens, owned all the property, and there was substantially no individual property. Whence, then, have we derived that other form of property called private, individual, property? It does not proceed upon the ground of the necessity for the prevention of strife and warfare; it comes from another circumstance to which I will now call the attention of the Tribunal. That circumstance is the necessity of civilization, and the irresistible tendency towards it, coming from the fact that man has a desire to better his condition, to enjoy more and more the. good things of life. He has a desire to establish a family and to increase the number of those dependent upon him, and to these ends he is ambitious for more and more property, and it is upon those tendencies that the civilization of the earth is founded. Civilization brings along with it several distinguishing features. In the first place, there comes a desire for fixed habitations, instead of a wandering life. Then there follows a great increase in the population of the earth. In the next place there comes the division of employments and the exchange of products, which is called commerce; and, lastly, the introduction and use of money. All these elements are features of civilization; they 164 ORAL ARGUMENT OF JAMES C. CARTER, ESQ. make their appearance simultaneously, and gradually, and by degrees, they change the face of the earth; and they are, as I shall submit to you, not the foundation of the institution of property itself, but of that form of it which is called private, individual, property. And the principal one of these features which constitutes the foundation of private property and makes it necessary is the increase of the population of the earth ; and it is to this fact that I wish to ask your attention. Under barbaric conditions men live upon the spontaneous fruits of the earth and upon such animals as they can obtain by hunting. They cultivate nothing; the earth affords them support, but it is a support sufficient for but very few, and there can be only a sparse population under these conditions. But as civilization advances increasing numbers make their appearance upon the earth, and these increasing numbers must be fed. The necessity of feeding them requires the cultivation of the earth and the turning to account of all the bounties of nature and making them sufficiently productive to supply the increasing wants of the increasing population. Labor therefore becomes at once necessary. And how are you going to induce men to labor? Society cannot compel them to it; that is not practicable. The way in which they are induced to labor is to promise them the fruits of their labor; it is an appeal to the imperious and everywhere present motive of self-interest. No man will cultivate fields, none will sow, if another be permitted to reap the produce. No man will undertake to tame the animals of the earth and increase their numbers if the increase can be taken from him by anyone who will. Labor cannot be brought into activity, men cannot be induced to exert their natural powers, unless you promise and secure to them the product of their labor; and it is in these necessities that the institution of private property begins; it is the necessity of supplying the wants of the increasing numbers which civilization brings along with it which has established that form of property known as private, individual, property. It is now that the land comes to be cultivated ; and society says to its members: "If you cultivate this land you shall have the product of the fields". Society says again: " Here are the various races of animals. If you will domesticate them, you shall have the increasing numbers for yourself". Society says also, in reference to all articles of manufacture : " If you will make these weapons, those implements, that furniture, they shall be yours". Society everywhere says to its members : " The products of your art and industry and labor shall belong to you". And therefore we have, with the increasing numbers which civilization brings with it, the change from community property into private, individual, property. Now I have said all I intend to say for the purpose of showing how property, whether in the form of community property, or private individual property, has its origin; and I now wish to say something as to the extent of the dominion over things which is implied by the term "property". And, first, it is not an absolute dominion. No man and no nation has, under the law of nature, or under the moral law, or in any view consistent with the moral order of the world, an absolute property in anything. It is at all times coupled with what may be called a trust for the benefit of mankind. There is no absolute right in any man to anything on the face of the earth. The earth and all its bounties were originally the gifts of Almighty God to mankind in general; not to this nation, not to that nation, but to all men equally and alike; and that title, that beneficial title, belongs to all men without exception. Nor does it wholly disappear with the establishment of individual property. The custody of the thing is indeed given to individuals, or to particular ORAL ARGUMENT OF JAMES C. CARTER, ESQ. 165 nations; but it is at all times accompanied with a trust for the benefit of mankind for whom it was originally designed and for whom Nature still designs it. Well now, how is that trust worked out? How shall men all over the earth be enabled to enjoy this beneficial interest which nature originally intended them to have in all the productions of the earth ? It is through the instrumentality of commerce, which is another result of civilization. It is by means of the exchange of products between different regions of the earth, and between different peoples, that-all are enabled to enjoy this beneficial interest in the things of the earth which was originally designed by Providence. They could not indeed have these products except through the agency of individual property, or national property and the instrumentality of commerce. Take these seals for instance. They were intended and created for the benefit of mankind—for mankind in Europe, as well as for the people living in the vicinity of the islandswhere they have their home. Buthow were they used before commerce existed ? They were turned to acconnt only by the few hundreds, or thousands, of Indians who lived along that coast, and no other people were benefited, or could be benefited by them, for there were no means of getting them. But when commerce is introduced, the sealskins, through the instrumentality of commerce, make their way all over the world, and eventually come into the possession of the very persons who want them, wherever those persons dwell. In that way the general benefit of all mankind is fully and effectively worked out, although the custody and possession of the thing is given to some particular nation, or to some particular men. And how perfectly this operates will be seen when we consider that, originally, the seals, even to the people capable of gathering them and taking their skins—I mean the tribes of Indians—were of no utility except for supplying their immediate wants; and a few hundreds or a few thousands were sufficient for this purpose. The rest were not utilized, because there were no means by which the benefits to be derived from these animals could be carried to the other parts of the world to be enjoyed by distant peoples. But when commerce was instituted, then the inhabitant of Europe who wished to possess a sealskin could furnish some of his own products to those who gathered the seals and thereby obtain some of the skins. In other words, the giving of these seals to commerce, or the product of them to commerce, is tantamount to putting them up at auction, and the man who lives in Europe can thus have them on the same terms as the man in the United States. And therefore there is a supply to all mankind, that is, to all who want them. And this truth will be further illustrated when we inquire who would be the losers if this commerce did not exist. For instance, if the seals were destroyed, who would lose? You may say that the loss would fall upon those who gathered them; but that would be a temporary loss, for the persons so engaged could direct their energies to other forms of industry. So also of the persons engaged in the manufacture of sealskins in Great Britain. A temporary loss might fall upon them; but there are plenty of other kinds of employment, and the loss would be only a temporary one. But when you come to the person who wants the sealskin for his own use, his loss is irreparable and cannot be supplied. Now I have said that the title, whether of nations or of men, to particular things is not absolute, but coupled with a trust for the benefit of mankind. So far as any man or any nation has more of a particular thing than is necessary for his, or its, own purposes, there is an obligation to let others share in the enjoyment of it: the thing is held upon 166 ORAL ARGUMENT OF JAMES C. CARTER, ESQ. trust. Of course I do not mean a trust enforcible in an ordinary judicial tribunal, but a moral trust, and one which is, in a manner, . enforcible. And we shall see that the law of nature perfectly recognizes that trust; for commerce is by the law of nature obligatory. No nation has a right, without sufficient cause, to withdraw itself from commercial communication with the rest-of the world, and say to the other peoples that it will not afford to them a share of its own blessings and benefits. I may read from the authorities collected in a note at page 61 of the printed Argument of the United States. And first a passage from a work on the " Rights and Duties of Neutral Nations in Time of War | by M. Hautefeuille (quoting) : The Sovereign Master of nature did not confine himself to giving a particular disposition to every man; he also diversified climates and the nature of soils. To each country, to each region, he assigned different fruits and special productions, all or nearly all of which were susceptible of being used by man and of satisfying his wants or his pleasures. Almost all regions doubtless produced what was indispensable for the sustenance of their inhabitants, but not one produced all the fruits that were necessary to meet all real needs, or more particularly all conventional needs. It was, therefore, necessary to have recourse to other nations and to extend commerce. Man, impelled by that instinct which leads him to seek perlection, created new needs for himself as he made new discoveries. He accustomed himself to the use of all the productions of the earth and of its industry. The cotton, sugar, coffee, and tobacco of the New World have become articles of prime necessity for the European, and an immense trade is carried on in them. The American, in turn, can not dispense with the varied productions of European manufacture. The development of commerce, that is to say, the satisfaction of man's instincts of sociability and perfectibility, has greatly contributed to connecting all the nations of the universe; it has served as a vehicle, so to speak, for the performance of the duties of humanity. Commerce is really, therefore, an institution of primitive law; it has its source and its origin in the divine law itself. And Vattel on the same subject (p. 62) says : Sec. 21. All men ought to find on earth the things they stand in need of. In the primitive state of communion they took them wherever they happened to meet with them if another had not before appropriated them to his own use. The introduction of dominion and property could not deprive men of so essential a right, and, consequently, it can not take place without leaving them, in general, some means of procuring what is useful or necessary to them. This means commerce ; by it every man may still supply his wants. Things being now become property, there is no obtaining them without the owner's consent, nor are they usually to be had for nothing, but they may be bought or exchanged for other things of eqnal value. Men are, therefore, under an obligation to carry on that commerce with each other if they wish not to deviate from the views of nature, and this obligation extends also to whole nations or stales. It is seldom that nature is seen in one place to produce everything necessary for the use of man ; one country abounds in corn, another in pastures and cattle, a third in timber and metals, etc. If all those countries trade together, as is agreeable to human nature, no one of them will be without such things as are useful and necessary, and the views of nature, our common mother, will be fulfilled. Further, one country is fitter for some kind of products than for another, as, for instance, fitter for the vine than for tillage. If trade and barter take place, every nation, on the certainty of procuring what it wants, will employ its lands and its industry in the most advantageous manner, and mankind in general prove gainers by it. Such are the foundations of the general obligations incumbent on nations reciprocally to cultivate commerce. And I might greatly amplify this. I will read a passage at the bottom of page 62 from Felice on International Commerce (quoting) : The need of this exchange is based upon the laws of nature and upon the wise arrangement which the Supreme Being has established in the world, each region and each portion of which furnishes, indeed, a great variety of productions, but also lacks certain things required for the comfort or needs of man ; this obliges men to exchange their commodities with each other and to form bonds of friendship, whereas, otherwise, their passions would impel them to hate and destroy each The law of commerce is therefore based upon the obligation under which nations are to assist each other mutually, and to contribute, as far as lies in their power, to the happiness of each other. ORAL ARGUMENT OF JAMES C. CARTER, ESQ. 167 And Levi, in his work upon International Commercial Law, says: Commerce is a law of nature, and the right of trading- is a natural right But it is only an imperfect right, inasmuch as each nation is the sole judge of what is advantageous or disadvantageous to itself; and whether or not it be convenient for her to cultivate any branch of trade, or to open trading intercourse with any one country. Hence it is that no nation has a right to compel another nation to enter into trading intercourse with herself, or to pass laws for the benefit of trading and traders. Yet the refusal of this natural right, whether as against one nation only, or as against all nations, would constitute an offense against international law, and it was this refusal to trade, and the exclusion of British traders from her cities and towns, that led to the war with China. That war with China may well be referred to as illustrating the proposition, that no nation has an absolute property in any of the gifts of Providence, but that they are given in part upon a trust to share them with others. Let me suppose an article like India rubber, which has become a supreme necessity to the human race all over the world. It is produced in very few places. It is possible that the nation which has dominion over those places might seek to exclude it from the commerce of the world. It might go so far as to attempt to destroy the plantations which produce the tree from which the gum is extracted. Would such an attempt give any right to any other nation? Most certainly it would! It would give a right to other nations to interfere and tase possession, if necessary, of the regions in which that article so important, so necessary to mankind, was alone grown, in order that they might supply themselves; and the ground of such action would be that the nation which had possession of this product refused to perform its trust by sharing that blessing. The President. Do you mean a legal right? Mr. Carter. I mean a perfect legal right in international law. Let me carry that a little further, if there be any doubt about it. In inter-; national law we have a whole chapter in regard to the instances in- which one nation may justly interfere in the affairs of another; and there are numerous instances in history in which such interferences have been had. Take one instance, which is generally spoken of as the means adopted to "preserve the balance of power". When one nation in Europe seeks to so extend itself as to threaten what has been styled the balance of power, this has from an early period in European history been deemed a cause of interference by other nations, and, if necessary, of war. That interference is defended upon moral grounds, and it is perfectly defensible; for what right has a nation to threaten the peace of the world? The President. It is one of the forms of self-defence. Mr. Carter. Now, as I have said before, the benefits of nature were originally given to mankind, and all the members of the human family have a right to participate in them. The coffee of Central America and Arabia is not the exclusive property of those two nations; the tea of China, the rubber of South America, are not the exclusive property of those nations where it is grown ; they are, so far as not needed by the nations which enjoy the possession, the common property of mankind; and if the nations which have the custody of them withdraw them, they are failing in their trust, and other nations have a right to interfere and secure their share. Lord Hannen. May they sell them at their own price, although it may be a very high price? Mr. Carter. Yes, until they come to put a price upon them which amounts to a refusal to sell them—when they arrogate to themselves the exclusive benefits of blessings which were intended for all, then 168 ORAL ARGUMENT OP JAMES C. CARTER, ESQ. you can interfere. I do not dispute the right of a nation to say: "For certain reasonable purposes we must interdict commerce with such and such a place." There niay be grounds and reasons for that; there may be reasons why a nation should refuse for a time to carry on commerce at all; there may be exceptional circumstances which would entitle a nation to act in this manner. But what I do assert is that where a nation says: "We will for ever exclude the world from participating in. these benefits of which we have sole possession," that, nation commits a violation of natural law, and gives other nations a right to interpose and assert for themselves a claim to those blessings to which they are entitled under the law of nature. And let me next assert that the practice of mankind has universally proceeded upon these principles. Upon what other ground can we defend the seizures by the European Powers of the territories of the New World—the great continents of North and South America? England, France, Spain, nearly all the European maritime nations, engaged in the enterprise of taking possession of enormous tracts of territory in the New World from the peoples which occupied them. They never asked permission ; they took them forcibly and against the will of the natives. They said to those uncivilized nations : " These countries are not intended for your sole benefit, but for ours also, and we choose to treat them as such." That policy has been pursued by civilized nations for centuries. Is it robbery, or is it defensible? I assert that it is not robbery, because those barbarous and uncivilized peoples did not apply the bounties they possessed to the purposes for which nature and nature's God intended them; they were not faithful to the trust which was imposed upon them; they were incapable of discharging to mankind the duties which the possessors of such blessings ought to discharge. The nations of Europe say: "These vast tracts of the most fertile parts of the earth, capable of affording measureless comforts to mankind, and of sustaining a valuable commerce shall not be allowed to remain a waste and a desolation. It was not for such purposes that the earth was given to man, and it is the mission of civilized man to take out of the possession of barbarous man whatever can contribute to the benefit of the human race in general, but which is left unimproved. Senator Morgan here asked a question as to the Conference at Berlin previously referred to by the President, and at which this point was considered. He was understood to ask whether the doctrine now upheld had been then settled as a principle of international law. Mr. Carter. I cannot say; but I am certain that the practice of mankind from an early period of history has been based upon these principles; and unless these principles are well founded, the whole course of the settlement of the New World is indefensible robbery. What did England do in the case of China in 1840, for instance? She made war upon China and subdued her. Why? The real cause of war is not always correctly stated in the pretext given for it, and in that instance the pretext was, I believe, some discourtesy which had been shown to individuals, some maltreatment of British officials. But if we look into the history of the matter, we find that the dispute began when China closed her ports, and that it terminated with the treaty by which she bound herself to keep them open. This war was defensible; I do not put it as an offence on the part of Great Britain. When a nation refuses to perform the duties incumbent upon her in respect to the blessings confided to her care, there is a cause, for the intervention of other nations. ORAL ARGUMENT OF JAMES C. CARTER, ESQ. 169 Take the case of Peruvian bark. This product is commonly regarded as absolutely necessary in the economy of society; it is a necessity for the cure of certain diseases; it is a specific for them; they will rage unrestrained unless you have Peruvian bark. Now, suppose the countries where it is grown should say that for some reason or other they will not carry on commerce; and not only that, but that they propose to devastate the plantations where the bark is cultivated: is mankind going to permit that ? I will refer to another an d recent example which we read about every day in the newspapers. Why is Great Britain in Egypt maintaining a control over the destiny of that nation? What reason has she for asserting a dominion over these poor Egyptians? Is it because they are weak and defenceless? Is that the only reason? No ; I suppose that those who have the destinies of Great Britain in their charge can make out a better case than that. Egypt is the pathway of a mighty commerce; it is necessary that that commerce should be free and unrestrained—that great avenue and highway of traffic must be made to yield the utmost benefit of which it is capable. If the Government of Egypt is not capable of making it yield its. utmost—if that Government is incapable of doing so, other nations have a right to interfere and see that the trust is performed. The President. I am afraid that you take a very high point of view, Mr. Carter, because you seem to anticipate the judgments of history. I cannot say more at present. Mr. Carter. Not a higher view than is sustained by the practice of mankind for three hundred years. It may be a high point of view, as you say, Mr. President; but it is a view which is defensible both as to theory and practice. Will any one maintain that where a broad tract - of the earth's surface happening to be in the possession of an inhospitable nation, abounds in a blessing sufficient to afford comfort and convenience to a very large part of mankind—will any one maintain that that nation may, if she choose, wholly withhold from other countries the benefits she is capable of conferring? If that is true, then all that the writers upon the law of nature tell us to the effect that the gifts of Providence were bestowed upon mankind in general—all that is erroneous! Are these statements erroneous? I must appeal to some of them. I may refer to Vattel. He says : Sec. 203. Hitherto we have considered the nation merely with respect to itself, without any regard to the country which it possesses. Let us now see it established in a country which becomes its own property and habitation. The earth belongs to mankind in general; destined by the Creator to be their common habitation, and to supply them with food, they all possess a natural right to inhabit it, and to derive from it whatever is necessary for their subsistence, and suitable to their wants. (7th Amer. ed. 1849, ch. XVIII.) I also quote from Bowyer, a distinguished English writer, and from page 127 of his "Commentaries on the Constitutional Law of England" : The institution of property, that is to say, the appropriation to particular persons and uses of things which were given by God to all mankind is of natural law. And the great philosopher Locke says in his Treatise on Civil Government: God who hath given the world to men in common hath also given them reason to make use of it to the best advantage of life and convenience. The earth and all that is therein is given to men for the support and comfort of their being; and though àU the-fruits it naturally produces, and beasts it feeds, belong to mankind in common, as they are produced by the spontaneous hand of nature; and nobody has originally a private dominion exclusive of the rest of mankind m any of them, as they are thus in their natural state, yet being given for the use of men, there must of necessity be a means to appropriate them some way or other before they can be of any use, or at all beneficial to any particular man. 170 ORAL ARGUMENT OF JAMES C. CARTER, ESQ. I read from Sergeant Stephen's Commentaries on the Laws of England, Vol. 1, Book 2, pages 159-165: In the beginning of the world, as we are informed by Holy Writ, the All Bountiful Creator gave to man "dominion over all the earth; and over the fish of the sea, and over the fowls of the air, and over every living thing that moveth upon the earth". Hence the earth and all things therein are the general property of all mankind, exclusive of other beings, from the immediate gift of the Creator. And while the earth continued bare of inhabitants, it is reasonable to suppose that all was in common among them, and that every one took from the public stock, to his own use, such things as his immediate necessities required. From Vattel, 7th American Edition, Book 2, section 21: All men ought to find on. earth the things they stand in need of. In the primitive state of communion, they took them wherever they happened to meet with them, if another had not before appropriated them to his own use. The introduction of dominion and property could not deprive men of so essential a right ; and, consequently, it cannot take place without leaving them, in general, some means of procuring what is useful or necessary to them. This means commerce; by it every man may still supply his wants. Things being now become property, there is no obtaining them without the owner's consent, nor are they usually to be had for nothing; but they may be bought, or exchanged for other things of equal value. Men are, therefore, under an obligation to carry on that commerce with each other, if they wish not to deviate from the views of nature; and this obligation extends also to whole nations or states. It is seldom that nature is seen in one place to produce everything necessary for the use of man; one country abounds in corn, another in pastures and cattle, a third in timber and metals, &c. If all those countries trade together, as is agreeable to human nature, no one of them will be without such things as are useful and necessary; and the views of nature, our common mother, will be fulfilled. Further, one country is fitter for some kind of products than for another, as, for instance, fitter for the vine thau for tillage. If trade and barter take place, every nation, on the certainty of procuring what it wants, will employ its lands and itsindustry in the most advantageous manner, and mankind in general prove gainers by it. Such are the foundations of the general obligations incumbent on nations reciprocally to cultivate commerce. International law is filled with statements of the general doctrine, that the earth was given to all mankind for their common benefit, that that original gift cannot be changed or perverted, and that it must be so administered as to enable mankind to enjoy that common benefit; that commerce is the means by which that common benefit can be extended to all nations, and therefore the carrying on of commerce is . an obligation resting upon all nations. When we speak of an obligation resting upon nations, as it is spoken of by almost every writer who has dealt with the question, we are not dealing in mere empty words. These things are not mentioned by them as meaning nothing. They mean what they say. They mean that this is an obligation, and that it is an obligation which in a suitable case can be enforced. So much for the first limitation which I have stated property was subject to, whether held by nations or by individuals. It is held subject to a trust for the benefit of the world. As to so much of it as is not needed for the purposes of the particular owner, be that owner nation, or man, the benefit of it must be extended on just terms to those for whose benefit it was designed. I now have to state a second limitation upon property whether held by nations or by men, and that is, that things themselves are not given, but only the use of them. That is all—the use of them. The world is given to be used, and. only to be used, not to be destroyed. Men bring into the world their children, those who are to follow them. They are under an obligation to leave the means of support to them. Is it necessary for me to argue that no man has so absolute a property in, ORAL ARGUMENT OF JAMES C. CARTER, ESQ. 171 anything that he can be permitted to destroy it? Surely that is not necessary. The President. TJti et abuti, say the Romans. Mr. Carter. Yes, uti et abuti, so that a man has power not only to use, but abuse. It is given to us to use; it is not given to us to abuse and destroy. We have no right to do that. Property is sometimes said, in municipal law, to be regarded as absolute. If a man chooses to throw away a bushel of wheat, there is nobody to call him to account. The state does not call him to account. It does not do that, because the probability that such a thing will be done is extremely remote. We can safely rely upon the selfish element in human nature to prevent such action on any considerable scale. But suppose it was a common thing, and likely to occur, would the laws be silent about it then? By no means. I think I have some citations upon that very point. I will read from a writer of admitted authority, and that is Ahrens. I read from page 97 of our printed argument: The definitions of the right of proporty given by positive laws generally concede to the owner the power to dispose of his object in an almost absolute manner, to use and abuse it, and even through caprice to destroy it ; but this arbitrary power is not in keeping with natural law, and positive legislation, obedient to thé voice of common sense and reason in the interest of society, has been obliged itself to establish numerous restrictions, which, examined from a philosophic view of law, are the result of rational principles to which the right of property and its exercise are sub- The principles which govern socially the right of property relate to substance and to form. I. As to substance, the following rules may be established: 1. Property exists for a rational purpose and for a rational use; it is destined to satisfy the various needs of human life; consequently, all arbitrary abuse, all arbitrary destruction, are contrary to right {droit) and should be prohibited bylaw (loi). But to avoid giving a false extension to this principle, it is important to recall to mind that, according to personal rights, that which is committed within the sphere of private life and of that of the family does not come under the application of public law. It is necessary, therefore, that the abuse be public in order that the law may each it. It belongs to the legislations regulating the various kinds of agricultural, industrial, and commercial property, as well as to penal legislation, to determine the abuses which it is important to protect ; and, in reality, legislations as well as police laws, have always specified a certain number of cases of abuses. Besides, all abusive usage is hurtful to society, because it is for the public interest that the object should give the owner the advantages or the services it admits. He refers also to the occasion of a debate upon the adoption of the French Civil Code, and in respect to article 544, which defined property; in which Napoleon expressed energetically the necessity of suppressing abuses, in this language : The abuse of property, said he, should be suppressed every time it becomes hurtful to society. Thus, it is not allowed to cut down unripe grain, to pull up famous grapevines. I would not suffer that an individual should smite with sterility 20 leagues of ground in a grain-bearing department, in order to make for himself a park thereof. The right of abuse does not extend so far as to deprive a people of its sustenance. ATI this supports the views which I am endeavoring to present to the Tribunal. The definition of property does concede formally to the individual the right to abuse it, a right to destroy it. It concedes the power—I will not say it concedes the right; for it does not concede the right. On the contrary, legislation in a thousand forms is aimed against unnecessary destruction of property ; and wherever there is any considerable probability that individuals will abuse the right of property, the law will step in to repress it. The law of nature, the philosophy upon which all law is founded, must necessarily preserve property, and apply, wherever it may be 172 ORAL ARGUMENT OF JAMES C. CARTER, ESQ. needed, such remedies as may be suitable to prevent any destruction of it. Let me call to mind in how many ways our municipal law exerts its efforts in that direction. We impose public taxes for the purpose of sustaining bodies of men to make scientific inquiry by which agriculture may be encouraged, and the production of the earth increased; and this shows the effort that society makes not only to prevent the destruction of property, but to increase it. We re-stock the rivers ; we attempt even to re-stock the seas, and expend a great deal of» money in those attempts. These are efforts going'further than the effort to preserve property. They are efforts to increase it. They are efforts, indeed, to preserve the sources of blessings which are in the course of extinction. And see how the use of private property is interfered with. Here is an individual; he may be an idiot, a lunatic, a drunkard or a spendthrift, having a large property. Does society permit that man to deal with his property as he likes? No. He is likely to abuse it; he is likely to destroy it. He will not manage it well. It is taken out of his control and put into the hands of a trustee. Is it to benefit him particularly? Is it out of tenderness to the feelings or the convenience of a worthless wretch like him ? No; it is for the preservation of society. It is for the preservation of that property for the use of society generally. This individual might himself have no heirs at all, and the state might be the next person who would come in and take possession of it at his death. Would that alter the action of society in reference to it? No; it would take the control of it out of his hands just as quickly. Take a familiar doctrine in the law of admiralty. Here is a vessel at sea. She meets with disaster. She has been dismasted, and is lying helpless upon the bosom of the sea. Another vessel comes there in perfect condition, well rigged, and able to take her into some port in safety. This vessel newly arriving offers the captain on board of this stricken vessel to take him into port for a reasonable salvage. He says, "No, I will find my own way in there. I think I can get there". "Well", the salyor says, "I don't think you can get there; you haven't the means". "No matter whether I have or not", he answers; "I am the owner of this vessel"—and it may be that he is the owner of it— " I am not only the owner of the vessel, but I am the owner of the cargo. The whole thing may be lost, but that is no concern of yours. If it be lost, I shall be the only loser." Now, suppose it to be clear that that man has not the ability to take his vessel into port, has the salvor, the person who comes there any right? Yes; he can take that vessel out of the possession of the master. Lord Hannen. I should like to have an authority for that. Mr. Carter. I do not know that I can give any; but I think those are the principles of the law of admiralty. Lord Hannen. I think I should like to see an authority for if;—that a man can insist upon saving a vessel against the wishes of the owner. Mr. Carter. I think it is true. I will make some effort to discover an authority of that kind. If I am unable to discover it, I will withdraw, certainly, any assertion to the effect that it is the law, but not the assertion that it ought to be the law, until I can find some authority against it. It is not the first time that I have heard the proposition stated, however. I have heard it stated by professional brethren. What I have said goes to show that the right of property, whether of nations or of individuals, is not absolute under the law of nature, but is subject to limitations—limitations of a twofold character; one that it is held subject to a trust for the benefit of mankind; another that the use only is given, and not the absolute thing itself. If the absolute thing ORAL ARGUMENT OF JAMES C. CARTER, ESQ. 173 itself were given, so that the individual had a right to destroy it, then it would not be proper for human society to take notice of any attempts to destroy property; but there is, as I have said, a vast deal of legislation on the statute books of municipal states based upon this law of nature of which I speak, based upon this policy which ought always to animate the jurisprudence of any nation, namely, to prevent the destruction of property. The preservation of property, and the increase of the amount of property in a community is, or ought to be—is, indeed—the policy of all states. All their legislation, or a great part of their legislation, is enacted for the purpose of securing that end; and indeed the extent to which the institution of property is permitted to be carried is only an illustration of the importance which society attaches, not only • to the preservation of property, but to the increase of the amount of it. Society places no limit to the extent to which property may be held. Attention is often called to the enormous fortunes which individuals acquire, especially in recent times; and the question is sometimes asked, why should individuals be permitted toengross property by the hundreds of millions? When we look into the real nature of it, we see that the permission of carrying the institution of property to that extent, of allowing individual possessions to that extent, is only a part of this generally wise and beneficent system which encourages the preservation of property. Those who are most successful in the acquisition of property, and who acquire it to such an enormous extent are the very men who are able to control it, to invest it, and to manage it in the way most useful to society. It is because they have those qualities that they are able to engross it to so large an extent. They really own, in any just sense of the word, only what they consume. The rest is all held for the benefit of the public. They are the custodians of it. They invest it; they see that it is put into this employment, that employment, another employment. Labor isemployed by it, and employedin the bestmanner ; and it is thus made the most productive. These men who acquire these hundreds of millions are really groaning under a servitude to the rest of society; for that is practically their condition. And society really endures it because it is best that it should be so. I have called the attention of the Tribunal to the various forms and methods in which society manifests and enforces its policy of preserving property and increasing the amount of property and making the natural bounties of the earth more productive. I have pointed out several modes in which that policy is illustrated. I could point out many more. I have this further suggestion to make upon that point : that it is one of the duties particularly incumbent upon civilized society to take these methods and means of preserving property and of preserving thesources from which property proceeds, because civilization makes a very dangerous attack upon the fruits of the earth. The moment the numbers of mankind are increased, the attack which is made upon the fruits of the earth which can support and maintain mankind, are proportionately increased; and there is danger, therefore, of destroying them. There is danger of destroying the races of animals, and therefore with the increased attack which civilization brings there comes a corresponding duty resting upon civilization to prevent those attacks from becoming effective. I might, and shall by and by, bring this argument to bear upon the case of these seals. When these seals were discovered a hun dred years ago, they were a blessing tributary only to barbaric man. A few hundreds were all that were taken. And those few hundreds—it may have been a few thou sands—sufficed to supply all the wants of the inhabitants along the shores where they were found. That was the only attack which the barbaric 174 ORAL ARGUMENT OF JAMES C. CARTER, ESQ. world made upon this bounty of Providence; but civilization and commerce come in now, and what is the result ? The whole world is attacking them. Everybody that wants a seal-skin, in Europe, or Asia, or South America, or China is attacking these few remaining herds; and of course there is nothing that can withstand that attack unless civilization brings along with it some remedy by which it can be resisted and its consequences averted. The President. Did those Indians take the seal at sea as well as on the islands? Sir Charles Russell. At sea. Mr. Carter. They did. That was their only mode, indeed, of taking them. There were no inhabitants originally on the Pribilof Islands. The President. It was the original mode of catching the seal, to- take him at sea? Mr. Carter. It was the only mode by which they were originally caught. The weapon with which they were thus taken was the spear. Senator Morgan. Mr. Carter, I understand that the statutes of the United States claim the property in seals as against their own citizens, as an absolute right? Mr. Carter. Yes. Senator Morgan. They protect them by criminal, penal enactment? Sir Charles Russell. There is no statute that says anything about property in seals. Mr. Carter. There is a statute—it does not say anything about it, but it has the effect. It is the effect of laws we are speaking about. Senator Morgan. It forbids citizens taking seals at all, or holding any property in them. Mr. Carter. Yes. Senator Morgan. Suppose this Tribunal should hold that the United States Government have no property in seals, either absolute or qualified; then following that decision, would it be the moral duty of the United States to repeal her statutes on that subject? Mr. Carter. No; I hardly think it would be. As a matter of moral duty, I think the United States, notwithstanding such a decision of this Tribunal, would be well justified in saying that to allow those animals to be destroyed upon the high seas is an inhuman and barbarous practice which they, at least, would forbid, so far as they could do it. Senator Morgan. Suppose the United States should conclude to repeal her laws on that subject; what would become of the seals? Mr. Carter. The seals will disappear, whether she repeals her laws or not, if pelagic sealing is allowed to continue. It is not worth while to discuss—at least, I so think—as to what the fate of these seals will be if pelagic sealing is permitted. Of course, following up the suggestion of the learned Arbitrator, we can easily see this; that the moment when from any cause it ceases to be remunerative to the United States and the lessees of the Pribilof Islands to maintain a watch over those islands, they will leave the islands and give up the watch, and that moment, of course, the seals are gone; because they then will be subject to the depredations of every marauder who chooses to go there. They will go then as they have gone on the islands of the Southern Pacific. The moment the guard is taken from the Pribilof Islands, the fate of the seals is fixed. I must finish this line of my argument by summarizing the conclusions which I think I have established. They are: ORAL ARGUMENT OF JAMES C. CARTER, ESQ. 175 First. The institution of property springs from and rests upon two prime necessities of the human race: 1. The establishment of peace and order, which is necessary to the existence of any form of society. 2. The preservation and increase of the useful products of the earth, m order to furnish an adequate supply for the constantly increasing demands of civilized society. Second. These reasons, upon which the institution of property is founded, require that every useful thing, the supply of which is limited, and which is capable of ownership, should be assigned to some legal and determinate owner. Third. The extent of the dominion which, by the law of nature, is conferred upon particular nations over the things of the earth, is limited in two ways : 1. They are not made the absolute owners. Their title is coupled with a trust for the benefit of mankind. The human race is entitled to participate in the enjoyment. 2. As a corollary or part of the last foregoing proposition, the things themselves are not given; but only the increase or usufruct thereof. I think I will devote the few remaining minutes before the hour of adjournment arrives to the perusal of some authorities bearing upon these conclusions which are not in my written argument, but which I have had printed, and a copy of which I will hereafter deliver to my friends on the other side. The President. Are those the citations mentioned in our first sitting, which were left out by thé printer? Mr. Carter. No, Mr. President, they are not those, but they are the best substitute that I have been able to make for them. Quite a number of citations have been sent to me from New York; but they do not include that special list, although some of them may belong to it. The President. You will never be able to make up that list again ? Mr. Carter. No; I cannot reproduce that, but it is the best substitute I can furnish. It is composed, let me say, in part of quite a number of authorities which I had thought less significant, and which I had rejected in making up that list. I have been compelled to use them in the preparation of this. I will read from Schouler, an American writer on the law of personal property, and from his introductory chapter, parti: Prior to all positive institutions exists the truth that to mankind belong the things of this earth as a gift from above. The right to acquire, and to exercise dominion over these things "to subdue" the earth, as it is said—is universally felt to be a natural right; while the corresponding desire of acquisition is one of the strongest in the human heart;—that which prompts the unlettered and undisciplined savage to plunder and kill for the sake of greedy spoils, but among a well ordered and refined people may be found the mainspring of civilization. Nor is the gift of external things to the human race absolute and without limitation, for it is conceded to be something designed for beneficial use and not for wanton injury; to be enjoyed and not to be abused. The inferior animals may minister to our wants; else they should not be killed and maimed by us for mere pastime, or when the duty of self-protection can afford no reasonable excuse. The soil should be cultivated and improved as far as possible—not ravished, laid waste, and left desolate, save where some terrible lesson of good to mankind may furnish a sufficient means of justification. Natnre teaches the lesson doubly enforced by revelation, that the right of the human race to own and exercise dominion over the things of this earth in successive generations carnes with it a corresponding moral obligation to use, enjoy, and transmit in due course for the benefit of the whole human race, not ceded us, but for all who are yet to come Creator and Giver may be fully accomplishe( 176 ORAL ARGUMENT OF JAMES C. CARTER, ESQ. And from Caulfield Herron, an English writer, in his "Introduction to the History of Jurisprudence," Bk. I. ch. IV, p. 71 : Property is the right of using. The right of property is founded upon its subserviency to the subsistence and well-being of mankind. The institution of property is necessary for social order. The exclusive appropriation of things is essential for the full enjoyment of them.. . It is the principal foundation of social improvement; it leads to the cultivation of the earth, the institution of government, the establishment of justice. In the right of property Bentham includes four things: 1. The right of occupation; 2. The right of excluding others; 3. The right of disposition ; 4. The right of transmission. The Arbitrators will perceive that these authorities fully support what I have been endeavoring to lay down. I now read from DeRayneval, a French writer, in his work "On the Law of Nature and Nations," Section 2, page 96 : Property did not exist in the primitive state of the world, and it is no more inherent in human nature than heredity. Originally men did not possess more than the animals possess to-day. The earth was common to all and belonged-to no one. When agriculture became necessary for the sustenance of man, each was partial naturally to the earth which he bad cleared by the sweat of his brow, and which offered him the fruit and the recompense of his labor; whence the first idea of preservation and property; whence also, the quarrels which the exclusive right must have caused upon the ground that it was invoked for the first time. These quarrels must have finally led to compromises; these compromises introduced the right-to enjoy exclusively the earth which each had cleared and cultivated, and this is the most reasonable origin of property. It has then been introduced for the maintenance of peace among men. It has then been the principle of their union and social order. From John Penford Thomas, an English writer, in his "Treatise on Universal .Jurisprudence," ch. II, p. 25: All things belonged originally to mankind in common. The benign Giver of all ' gifts did not distribute them to some to the exclusion of the rest of the species. In the state of a community of things the first bodily occupancy and use of so much only as human wants from time to time required supplied the place of property. In the primitive state every man had a right not to be hindered from using whatever land or produce he had appropriated to himself and he immediately wanted for rational use, and the bestowment of bodily labour on a thing was the only mode of acquiring a positive title to it. Agriculture could not flourish, nor its fruits be improved or ripened into maturity. Ingenuity was not sufficiently rewarded, dis- . putes continually arose; the ingeuuity'and industry of man were checked. Preoccupation by slow degrees communicated with the consent of man either express or implied a right of appropriation; and the introduction of money has greatly extended it. The increased wants, improved agriculture, and valuable elegancies of incipient civilization gave birth to the distinctions of property. [The Tribunal thereupon adjourned until Thifrsday, April 20,1893, at 11.30 o'clock a. m.] TWELFTH DAY, APRIL 20™, 1893. [The Tribunal convened pursuant to adjournment.] The President. Mr. Carter, will you proceed? Mr. Carter. Mr. President, my argument yesterday had a twofold character. It was designed, in the first place, to show that by the doctrines of municipal law everywhere accepted, the fur-seals were the property of the United States. In the next place, my purpose was, if there were any doubts concerning that conclusion arising out of differences between the nature and habits of the seals and those of other animals in respect to which the question of property had been decided by the municipal law, to more particularly explain that the proper way to remove them was to look to the foundation upon which the institution of property itself stood, and that if we should find that there were the same reasons for awarding to the United States property in the fur-seals as there were for awarding property in anything, the conclusion would become, as it seemed to me, irresistible. With that view I engaged in an inquiry into the general foundations of the law of property in order to show that property was not founded upon robbery or force, or based upon any arbitrary distinctions, but that it was established for great social purposes and to satisfy great social necessities; that the earth was originally the common property of the race, and that the division of the face of the earth into distinct possessions allotted to different nations, did not displace the right of mankind in general to an enjoyment of all the benefits of the earth; that the establishment of the institution of property, so far from displacing this right, was really the principal means and the effective means, by which that right was worked out and made practicably available; that consequently the right of property, whether in nations or in individuals, was subject to two limitations; the first was that it was not held by an absolute title; that so far as any nation had more of a thing than its necessities required it held the superabundance subject to a trust for the benefit of mankind. Second, that the use only of things is given, not the stock, or principal thing; that that was to be preserved for the benefit of future generations. I next endeavored to show that these deductions from the law of nature were confirmed by the actual practice and usage of mankind; that, although under municipal law as between individuals one could not call another to account for an abuse of the right of property or for an attempt to destroy it, and there were not generally laws for the correction of abuses of the law of property by individuals, the motive of self-interest being sufficient for the purposes of protection, yet there were, or might be, exceptional cases even in municipal policy, where there were dangers that individuals would abuse the right of property, in which the state would prevent that abuse; that the practice of nations still lurther illustrated the truth that the title to property was not absolute, and that wherever there was a nation in possession of a great bounty of Providence, b s, PT xii 12 m 178 ORAL ARGUMENT OF JAMES C. CARTER, ESQ. any source of happiness and advantage to mankind, which it failed to use for the benefit of mankind, other nations might assert a right to interfere and take possession of it and turn it to the general benefit; that the whole policy of the colonization by civilized states of the newly discovered regions of the globe was a constant illustration of that truth and of that policy, and that it was defensible upon that ground and upon that ground alone. It is true that there have been a thousand excesses committed in the course of carrying out those policies of colonization. The excesses cannot be defended, but the policy itself is entirely defensible. These views, as it seems to me, respecting the origin and foundation of property and the reasons upon which it stands furnish a true and sufficient answer, and the only sufficient answer, to the attacks of socialism upon the institution of property. They regard the institution of property as proceeding from great social necessities, and as founded upon the nature of man himself, and consequently they assure the everlasting perpetuity of the institution. So long as the nature of man remains unchanged the institution of private property, the most beneficent of all the fruits of civilization, will remain also. In the course of my observations on the value which municipal law assigns to the preservation of property itself, I had occasion to recur to an instance which I supposed the law of Admiralty furnished, namely, in cases of salvage. I stated, what I supposed to be the law, that a salvor on the high seas meeting with a ship that was absolutely disabled and unable to save itself by its own means and its own resources, might take possession of it, even against the will of the master, and even though the master were himself the owner. One of the learned Arbitrators (Lord Hannen) requested to be furnished with an authority upon that point. It was rather disturbing to me, I confess, to have a doubt suggested from such a source. Lord Hannen. I thought you were stating it too broadly; that was all. Mr. Carter. Yes; I was afraid I had stated it too broadly. I have no access here to books of reports either American or English, to ascertain fully what has passed into judgment; but I did recur to one or two text-writers, and I have something upon that subject which may be deemed pertinent. Prof. Parsons in his work upon maritime law, which is a book of recognized authority, he having been for many years a leading professor in the principal law school of the United States (that of Harvard) says this, (page 264, Vol. II, "Parsons on Shipping and Admiralty"): It has been made a question whether persons forcibly taking possession of a vessel against the will of the master can claim as salvors. But we think it must be obvious and certain that, on the one hand, the master's reluctance or resistance to the saving of the property under his charge should not bar the claims of salvors, but rather enhance them, if their services were necessary, or in all respects meritorious and useful. But on the other hand his opposition would be a circumstance of great weight in determining whether their services were necessary or meritorious. Sir Charles Russell. I think that is not the case where the master is the owner. Mr. Carter. I think it is. Do you mean to say that Prof. Parsons does not so intend ? Sir Charles Russell. No; he is dealing with the case of the representative of the owner—the master, not the owner himself. Mr. Carter. What the case is, with which he is dealing I am unable to say, not having access to any Reports; but the principle which he ORAL ARGUMENT OF JAMES C. CARTER, ESQ. 179 lays down is, that the reluctance of the person in charge of the property, his opposition to the taking of possession by the salvor, does not detract from the claim of the salvor, but rather enhances it; and if that be true in reference to the master of the ship, I rather think it follows as a necessary consequence that it would be true even if he were the owner at the same time. If the owner of a vessel has the right to say to the salvors, " You must not take possession of it," he can commit that right to an agent. It will be my purpose now to endeavor to make an application of these views as to the grounds and reasons upon which the institution of property rests to the particular question which is before us. The general principles I have gone through at some length. I make no apology for going into them at that length ; for the question which this Tribunal is to try is a question of property as between nations. It is the first time, so far as I am aware, that any such question has been submitted to an international tribunal, or indeed to any tribunal at all; and the decision of it, therefore, requires a thorough investigation into the grounds and reasons upon which the institution of property rests. In order to apply these views to the case before us it is necessary, of course, that we should have a more particular and precise view of the facts in relation to the fur-seals themselves; we should have a clear knowledge of the facts respecting their nature and habits ; the methods by which -they are pursued and captured; the dangers which threaten the existence of this species of animal, and the means which we can employ to avert those dangers. The Arbitrators will bear in mind one of the general conclusions which I had reached in respect to the right of property was this: That it extended to everything which embraced these three conditions: First, that it was an object of utility and desire to man; second, that the supply was limited, that there was not enough for all; and third, that it was capable of exclusive appropriation. Now, first as to the utility of these animals. That is obvious and conceded. Every part of them is useful to man, their skins, their flesh and the oil which they afford; but their skins are the most useful part, as they furnish a garment of great beauty and utility and which is greatly desired all over the globe. The extraordinary eagerness with which the animals are pursued is full evidence of their utility, and the great prices which these skins bear in the market also evidences that fact so completely that I need not dwell upon it any further. Next, as to their nature and habits. Where are we to go for our sources of information upon that topic. What is the evidence before this Tribunal to which it can resort for the purpose of informing itself respecting those facts? There are several classes of evidence. In the first place, there is a large body of common knowledge in respect to animals, their nature and habits, which every intelligent person is supposed to possess, and all this may properly be appealed to. In the next place, there are the works of naturalists of recognized authority which may also be appealed to, works, written in whatever language, by men who have given attention to those studies to such an extent as to establish themselves as authorities upon the topics of which they treat. In the next place there are the reports of the Commissioners appointed under the terms of the Treaty, which as will be perceived, from examining the treaty, are made evidence; and although the" Commissioners could be personally cognizant of only a small part of the facts which it was necessary for them to learn, still their reports, and their opinions are made evidence, not only in relation to facts which fell under their observa- 180 ORAL ARGUMENT OF JAMES C. CARTER, ESQ. tion, but facts of which they gained their knowledge by such methods as seemed to them suitable and best. Both the joint and several reports are alike made evidence. I do not say they are made evidence of equal ^value, but they are both made evidence for the information of this Tribunal. Besides that, we have, from each side, a very large number of depositions of witnesses whose testimony has been taken, ex parte, of course, because there was no opportunity for cross-examination; but nevertheless they are a source of information of the character of testimony, the best which the nature of the case admits of; and both parties have resorted to them. Upon two of those desciptions of evidence I have an observation to make as to their relative and comparative utility and trustworthiness before this body. First let me speak in reference to the depositions of the witnesses. These will be found, to a certain extent concurring, and to a certain extent, conflicting. They are the depositions of witnesses whose characters, stations and apparent trustworthiness are very different. We have some of great intelligence, and supposed impartiality, who have had opportunities of observing the habits of these animals; and among these may be mentioned the various agents of the United States, and of the lessees of the United States, who have lived upon these islands for years and made the seals a subject of observation. Obviously the testimony of those men, intelligent observers, is entitled to very great weight. In the next place there are depositions of other witnesses who have visited the islands for other reasons, but have had means of observation, not so extensive as those to whom I have alluded, but still good means of observation; and their evidence is also of considerable weight. Then we have the evidence of a great number of what I may call common witnesses—the Indians, the Aleuts, the natives on the islands; the Indians along the shore; the Indians and whites engaged in pelagic sealing. There are depositions in multitude from persons of that character and description. Their opportunitiess for observation are good. The trouble about them is that they do "not practice much care in expressing themselves; and their, trustworthiness is by no means so good as the witnesses which I have before mentioned. We know that they belong to a class whose characters, interests, and habits do not furnish the strongest assurance that they are speaking the truth; and therefore the testimony of such witnesses must be taken with a considerable—a very great—degree of caution. In the British Counter Case will be found various affidavits tending to show that certain persons whose affidavits were given in the Case of the United States were not correctly reported by the persons who took their affidavits; statements by them that they did not say things which were imputed to them; and those impeaching evidences go very far, necessarily, to discredit those witnesses. Where it is shown that a witness has made two different statements at two different times, it does not show, indeed, which one of the statements is true, or whether either of them is true, but it does show that that witness is not to be credited. The number of the instances, however, in which the testimony of witnesses on the part of the United States has been successfully impeached on those grounds is comparatively small. The great bulk of the testimony remains unimpeached. The value of testimony of this character depends very largely upon whether the side against which it is, or is sought to be, used, has had any opportunity of scrutinizing it, and of impeaching it in the various ways in which the testimony of a witness can be impeached. If it ORAL ARGUMENT OF JAMES C. CARTER, ESQ. 181 passes that ordeal, that is one very considerable circumstance in its favor, and it may be the more properly relied upon if it has successfully passed such an ordeal as that. All the testimonv of this character, or substantially all, upon which tue Government of the United States relies has been freely and fully submitted to Great Britain and its agents for the purposes of criticism and impeachment. The testimony on the part of Great Britain of the same character, however, has never been submitted to us. I have already remarked in speaking upon one of the motions made at the preliminary heariugs before the Tribunal of the inequality to which the United States was subjected in that particular. I have remarked upon the plain and obvious advantages which Great Britain enjoyed in the way of refuting, criticising and impeaching the testimony of our witnesses. I have now to say, in view of the circumstance that ours was freely submitted to them, and that they chose, without any good reason, to reserve theirs from our criticism, that ours is entitled to the greater credit wherever they come in conflict. So much for the testimony of these witnesses. I am not going to criticise them in detail because I have not the time. That work will- be done by another. But I have something to say in reference to the comparative merits of these joint and several reports of Commissioners.; Senator Morgan. Mr. Carter, is there any motion to exclude that part of the testimony in the British Counter Case—on the ground that it ought to have gone into the Case? Mr. Carter. No; we have made none. No motion of that kind is made. I have pointed out the difficulties which would attend the making of such a motion; the embarrassing results which success upon such a motion would lead to; and the final conclusion of the counsel for the United States that they would, on the whole, accept that testimony, and deal with it—with its weight, its credibility and its trustworthiness—by bringing to bear upon it the considerations which I have now meutioned. In commenting upon its weight and trustworthiness before this Tribunal, we shall rely upon the circumstance that our testimony of this sort was submitted to our opponents and they carefully reserved theirs from our attack. As to these Reports : What was the purpose for which these Joint Commissioners were appointed? I. have spoken to that point already in what I said upon the argument of the motion to which I have referred. The idea was originally suggested in the scheme of settle-' ment which Sir Julian Pauncefote proposed to Mr. Blaine. Senator Morgan. You mean the draft convention ? Mr. Carter. That draft convention, in 1890. The suggestion came from Sir Julian Pauncefote that the two Governments were not agreed' as to what the facts were in reference to seal life, and the modes by which the seals were pursued upon the sea and upon the islands. His notion was that if they were agreed upon the facts it would probably be easy to settle the controversy by a convention, and that the proper course was to make an attempt to arrive at an agreement upon the facts by appointing men of intelligence, men of science—in one word experts—whose testimony could be trusted; make them joint commissioners, send them out to the islands; have them make an investigation of all the facts connected with seal life and the methods by which seals were pursued, and report the facts and report what in their opinion would be proper regulations designed to preserve the seals from extermination. The idea, therefore, assumed that these joint commissioners were persons who were entirely to be trusted—trusted as to their intelligence, as to their impartiality, as to their scientific attain- 182 ORAL ARGUMENT OF JAMES C. CARTER, ESQ. ments, and as to all qualities which serve to recommend the opinions of* men. They were to be a commission of experts. My learned friend, Sir Charles, made the observation while he was speaking upon the motion referred to that it did not appear to him that there was any particular sanctity connected with the reports of these Joint Commissioners. I beg leave to differ with him upon that point. There was a great deal of sanctity—using that word in the sense of importance—attached to them. It was supposed that these Joint Commissioners would furnish these two Governments with the absolute truth upon the questions which they were appointed to examine and that they would so furnish them with the truth that there would be no difficulty in reaching an adjustment of the controversy by the establishment of regulations designed to preserve the seals. That was the view upon which these Joint Commissioners were appointed; and we have their reports here. These gentlemen were all of them men of the highest character. They were all of high attainments and perfectly competent to make a thorough investigation of the questions submitted to them and to ascertain the truth and make that truth apparent in their reports. The Commissioners on the part of the United States adopted that view of their functions. They conceived that they had nothing to do with differences between the two Governments; that the question whether the United States had a superior claim or right to that of citizens of other nations to the seals was something with which they had no concern; that the question whether the citizens of other nations had the right to pursue the seals on the high seas was a question with which they had no concern ; that the only point which they were to investigate was what methods must be pursued in order that the race of fur seals might be preserved from extinction. In other words, they looked upon the question, not from the point of view that here are different nations both of them capable of reaching the seals, the United States capable of reaching them on land, and other nations capable of reaching them on the sea, and that there was no common authority to control those rights—not from that point of view; they looked upon it as if the whole world were one country, and as if all mankind had the same interest in the question and the only thing to be ascertained was what measures were necessary in order to preserve the seals, leaving the question as to whether those measures might be agreeable to the views of different countries to be settled by diplomatic agencies which had power over such questions. This is what the Commissioners of the United States say as to what they conceive to be their functions, (page 315 Case of the United States) : Desiring to remove every obstacle in the way of the immediate consideration of this subject, the question of the formality of the Conference was waived on our side and the formal meetings of the Commissioners in Joint Conference began on the afternoon of February 11, at the Department of State. Mr. Joseph Stanley-Brown was selected as the secretary of the Joint Commission on the part of the United States, and Mr. Ashley Froude on the part of Great Britain. In determining the nature of the Conference it was agreed that in order to allow of the freest possible discussion and presentation of views, no formal record of the proceedings should be kept and that none but the four members of the Commission should be present during its deliberations. In further attempt to remove all restrie- tions_ upon the fullest expression of opinions during the Conference, it was agreed that in our several reports no reference to persons, as related to views or opinions expressed by members of the Commission during the Conference, should be made. Meetings of the Joint Commission were held almost daily from the 11th of February until the 4th of March, on which day the joint report was signed and the Conference adjourned sine die. ORAL ARGUMENT OF JAMES C. CARTER, ESQ 183 ,. ~arJy iu *n® progress of the Conference it became evident that there were wide differences of opinion, not only as to conclusions, but also as to facts. It seems proper here to refer briefly to the attitude of the Commissioners on the part of the United States or to the standpoint from which they endeavored to consider the • acted are contained in Article IX of the Arbi- , Jates to the nature of the ir"'"™ «~i <■= +-1 "Each Government shall appoint two Commissioners to i: with the rovernment all the facts having relation to life in Bering Sea, and the measures necessary for its proper protecti This sentence appears to be simple in its character and entirely clear as to its meaning. The measures to be recommended were such as in our judgment were necessary and sufficient to secure the proper protection and preservation of seal life. With questions of international rights, treaty provisions, commercial interests, or political relations we had nothing to do. It was our opinion that the consideration of the Joint Commission ought to have been restricted to this phase of the question, so clearly put forth in the agreement under which the Commission was organized, and so evidently the original intent of both Governments when the investigation was in contemplation. Had the preservation and perpetuation of seal life alone been considered, as was urged by us, there is little doubt that the joint report would have been of a much more satisfactory nature, and that it would have included much more than a mere reiteration of the now universally admitted fact that the number of seals on and frequenting the Pribilof Islands is now less than in former years, and that the hand of man is responsible for this diminution. That our own view of the nature of the task before us was not shared by our colleagues representing the other side was soon manifest, and it became clear that no sort of an agreement sufficiently comprehensive to be worthy of consideration and at the same time definite enough to allow its consequences to be thought out, could be reached by the Joint Commission unless we were willing to surrender absolutely our opinions as to the effect of pelagic sealing on the life of the seal herd, which opinions were founded upon a careful and impartial study of the whole question, involving the results of our own observations and those of many others. Under such circumstances the only course open to us was to decline to accede to any proposition which failed to offer a reasonable chance for the preservation and protection of seal life, or which, although apparently looking in the right direction, was, by reason of the vagueness and ambiguity of its terms, incapable of definite interpretation and generally uncertain as to meaning. In obedience to the requirements of the Arbitration Convention that "the four Commissioners shall, so far as they may be able to agree, make a joint report to each of the two Governments," the final' output of the Joint Commission assumed the form of the joint report submitted on March 4, it being impossible in the end for the Commissioners to agree upon more than a single general proposition relating to the decadence of seal life on the Pribilof Islands. It therefore becomes necessary, in accordance with the further provision of said Convention, for us to submit in this, our separate report, a tolerably full discussion of the whole question, as we view it from the standpoint referred to above as being the only method of treatment which insures entire independence of thought or permits a logical interpretation of the facts. But the British Commissioners took an entirely different view of their functions. Their view was that this herd of seals having its home on the Pribilof Islands, certain superior advantages and facilities were enjoyed by the Government of the United States for taking them on the Islands; that, on the other hand, the seals were during a large part of the year in the high seas, where they could be pursued by the citizens of other nations; that under these circumstances the citizens of other nations had the same right to pursue them on the sea that the United States had to take them on the land, and that their function and office was to contrive such regulations consistent with that supposition of respective national rights as would best tend to preserve the seals. That view is manifest all over their report; but I will read a section or two which serves to bring it out very clearly; beginning with Section 123 found on page 20 : 123. Besides the general right of all to hunt and take the fur-seal on the high seas, there are, however, some special interests in such hunting, of a prescriptive kind arising from use and immemorial custom, such as those of the "natives of the 184 ORAL ARGUMENT OF JAMES C. CARTER, ESQ. Pribyloff Islands, and of the inhabitants of the Aleutian- Islands, of South-eastern Alaska, of the coast of British Columbia, and of the State of Washington. There are also rights dependent on local position, such as those of the Governments possessing the breeding islands and those controlling the territorial waters in or adjacent to which the seals spend the winter half of the year. Such rights do not, however, depend on position only, but also on the fact that the seals necessarily derive their sustenance from the fish which frequent these waters, which, if not thus consumed by the seals, would be available for capture by the people of the adjacent coasts. The rights of this kind which flow from the possession of the breeding islands are well known and generally acknowledged, but those of a similar nature resulting from the situation of the winter home of the seal along the coast of British Columbia have not till lately been fully appreciated. 124. Referring more particularly to the Pribyloff Islands, it must perhaps, be assumed that no arrangement would be entertained which would throw the cost of the setting apart of these islands as breeding grounds on the United States Government, together with that of the support of some 300 natives. It may be noted, however, that some such arrangement would offer perhaps the best and simplest solution of the present conflict of interests, for the citizens of the United States would still possess equal rights with all others to take seals at sea, and in consequence of the proximity of their territory to the sealing grounds, they would probably become the principal beneficiaries. 125. Any such disinterested protection of breeding islands either by Russia or the United States would possess the extreme simplicity of being entirely under the control of a single Government, whereas in every other project it becomes necessary to face the far more difficult problem of iuternational agreement to some code of regulations involving an accompanying curtailment of rights. In other words, any such arrangement must be viewed either as a concession of certain rights on the hifjh seas, or a concession of peculiar rights devolving from territorial possession of the breeding islands of the seal, made in each casé for the purpose of inducing equivalent concessions on the other side in the common interest. 126. For practical purposes, the main consideration is that any scheme of measures of protection shall absolutely control, so far as may be necessary, any and every method of taking seals ; and from industrial considerations, and in order properly to determine on reciprocal concessions, it is necessary to assume some ruling principle in accordance with which these shall be governed, and such may be fouu d, in a rough way, in postulating a parity of interests as between pelagic sealing and sealing on the breeding islands. This would involve the idea that any regulation of the fishery, as a whole, should be so framed as to afford as nearly as possible an equal share in benefit or proceeds to these two interests. There we see the views upon which the Commissioners on the part of Great Britain proceeded. They conceived that, here was a conflict between the rights of nations, which must be taken into account in any consideration of measures necessary to the preservation of the seals, because that conflict between the different rights of nations could not be settled by any scheme of regulations which would in effect take away the supposed right of one nation. In their view the seals must perish before that could be done; and they conceived that they should postulate a parity of interest between the United States Government having the control of the breeding places, and the pelagic sealers who could pursue them at sea. All their investigations, their opinions and their reports are made upon that basis. In other words, they conceived themselves to be in charge of the interests of pelagic sealing, then, for the most part, represented by Canada. They conceived themselves to be in charge of that interest, and bound to defend it; and consequently their report will be found to be from one end to the other a defence of the interest of pelagic sealing. That is the character of it. I do not mean to complain of this, or to urge it against those distinguished gentlemen who were the authors of this report as any piece of unfairness. I only state the fact that that was their conception of their duties, and that we must take that fact into account in considering their report. And this is a pretty decisive fact. In what category does it place them ? It makes them partisans at once, just as much as my learned friends on the other side are. They are defending, from beginning to end, the interest of pelagic sealers. ORAL ARGUMENT OF JAMES C. CARTER, ESQ. ' 185 How does that operate on the measure of confidence which this Tribunal should place in their conclusions ? It is entirely destructive of it. That is the simple result. It is destructive, except to a very limited extent. Where these gentlemen speak and testify as to facts which they say fell under their personal observation, they are to be treated as witnesses to those facts of the most unimpeachable character, but, nevertheless, witnesses testifying under a strong bias. Where, on the other hand, they proceed to give us their opinions as to what the facts are, such opinions are to be discarded altogether as being the opinions of, not impartial, but of partisan observers. They are like the opinions of counsel, and they differ in no respect from them. That, I venture to say, was an entirely erroneous construction of their duties as marked out by the treaty. The conception of the treaty was that the opinions of these gentlemen as to facts, should have the highest value and should prove the existence of the facts themselves quite independently of the question as to whether they had actually observed the facts themselves. What the two Governments wanted to know was wh at the facts were. They sen t these Commissioners there to inquire what th e facts were. Of course they could not ascertain them all, or but a very small part of them, by personal observation. They were sent, to make inquiries, and to communicate to the two Governments concerned the results of their inquiries upon questions of fact, and, therefore, their opinions were designed to be—and, if they acted in accordance with this conception of their functions, would justly be—good evidenced' the facts. They were to make joint inquiries too; but I would not draw a very close line between the methods by which they gained their information, whether by joint, or by separate inquiry. If they had the proper conception of their functions, their opinions, drawn from the best sources which were open to them, as to the facts and as to the measures necessary for the preservation of the fur-seal, would be regarded as evidence, and evidence of the highest character; but it all depends upon the question whether they were acting impartially, and whether they were acting in accordance with that conception of their duties under which they were appointed. The President. In point of fact they made separate observations, did they not? Mr. Carter. Oh yes; they did make separate observations. Of course the general intent of the treaty undoubtedly was that these observations were to be joint. If both sets of Commissioners had acted in accordance with that conception of their duties which is marked out in the treaty, I do not think any serious differences would have arisen between them upon facts which they did not jointly investigate. With these observations concerning the relative weight which is to be assigned to the reports of the Commissioners, I proceed to state the facts in reference to the nature and habits of the seals; and for that purpose I shall employ the report of the American Commissioners; for it states them wi.h the greatest precision, with the greatest apparent impartiality; and I think it will be found that that statement of facts thus made by them is abundantly established by the testimony in the Case. « , The President. Do you intend to make your observations m regard to the parts in which both sets of Commissioners were agreed, or do you intend to make them merely as to the American observations? Mr. Carter. I now take the American observations—the report or the American Commissioners as to the nature and habits of the fur-seal as showing what the fact is. 186 ORAL ARGUMENT OF JAMES C. CARTER, ESQ. The President. Without noticing what the British Commissioners concur in ? Mr. Carter. Without noticing whether the British Commissioners concur or not. I shall point out presently that the British Commissioners, although their report contains a multitude of doubts as to whether this or that is true, of conjectures that this or that other thing may be true, yet when you come to see whether they really dissent from this statement of facts by the American Commissioners, the dissent will be found to be very inconsiderable. Now to show the facts as to the life-history of the fur-seal, I read from the report of the American Commissioners : 1. The Northern fur-seal {Callorhinus ursinus) is an inhabitant of Bering Sea and the Sea of Okhotsk, where it breeds on rocky islands. Only four breeding colonies are known, namely, (1) on the Pribilof Islands, belonging to the United States; (2) on the Commander Islands, belonging to Russia; (3) on Robben Reef, belonging to Russia, and (4) on the Kurile Islands, belonging to Japan. The Pribilof and Commander Islands are in Bering Sea; Robben Reef is in the Sea of Okhotsk near the island of Saghalien, and the Kurile Islands are between Yezo and Kamchatka. The species is not known to breed in any other part of the world. The fur-seals of Lobos Island and the south seas, and also those of the Galapagos Islands and the islands off Lower California, belong to widely different species and are placed in different genera from the Northern fur-seal. 2. In winter the fur-seals migrate into the North Pacific Ocean. The herds from the Commander Islands, Robben Reef, and the Kurile Islands move south along the Japan coast, while the herd belonging to the Pribilof Islands leaves Bering Sea by the eastern passes of the Aleutian chain. 3. The fur-seals of the Pribilof Islands do not mix with those of the Commander and Kurilé Islands at any time of the year. In summer the two herds remain entirely distinct, separated by a water interval of several hundred miles; and in their winter migrations those from the Pribilof Islands follow the American coast in a southeasterly direction, while those from the Commander and Kurile Islands follow the Siberian and Japan coasts in a southwesterly direction, the two herds being separated in winter by a water interval of several thousand miles. This regularity in the movements of the different herds is in obedience to the well known law that migratory animals follow definite routes in migration and return year after year to the sameplaces to breed. Were it not for this law there would be no such thing as stability of species for interbreeding and existence under diverse physiographic conditions would destroy all specific characters.1 The pelage of the Pribilof fur-seals differs so markedly from that of the Commander Islands fur-seals that the two are readily distinguished by experts, and have very different values, the former commanding much higher prices than the latter at the regular London sales. 4. The old breeding males of the Pribilof herd are not known to range much south of the Aleutian Islands, but the females and young appear along the American coast as far south as northern California. Returning, the herds of females move northward along the coasts of Oregon, Washington, and British Columbia in January, February, and March, occurring at varying distances from shore. Following the Alaska coast northward and westward they leave the North Pacific Ocean in June, traverse the eastern passes in the Aleutian chain, and proceed at once to the Pribilof Islands. 5. The old (breeding) males reach the islands much earlier, the first coming the last week in April or early in May. They at once land and take stands on the rookeries, where they await the arrival of the females. Each male (called a bull) selects a large rock on or near which he remains until August, unless driven off by stronger bulls, never leaving for a single instant night or day, and taking neither food nor water. Both before and for some time after the arrival of the females (called cows) the bulls fight savagely among themselves for positions on the rookeries and for possession of the cows, and many are severely wounded. All the bulls are located by June 20. 1 The home of a species is the area over which it breeds. It is well known to naturalists that migratory animals, whether mammals, birds, fishes, or members of other groups, leave their homes for a part of the year because the climatic conditions or the food supply become unsuited to their needs ; and that wherever the home of a species is so situated as to provide a suitable climate and food supply throughout the year such species do not migrate. This is the explanation of the fact that the . Northern fur-seals are migrants, while the fur-seals of tropical and warm temperate latitudes do not migrate. ORAL ARGUMENT OF JAMES C. CARTER, ESQ. 187 6. The bachelor seals (holluschickie) begin to arrive early in May, and large numbers are on the hauling grounds by the end of May or first week of June. Ihey begin to leave the islands in November, but many remain into- December or January, and sometimes into February. 7. The cows begin arriving early in June, and soon appear in large schools or aroves, immense numbers taking their places on the rookeries each day between the middle and end of the month, the precise dates varying with the weather. They assemble about the old bolls in compact groups called harems. The harems are complete early in July, at which time the breeding rookeries attain their maximum size and compactness. 8. The cows give birth to their young soon after taking their places on the harems m the latter part of June and in July, but a few are delayed until August. The period of gestation is between eleven and twelve months. 9. A single young is born in each instance. The young at birth are about equally divided as to sex. 10. The act of nursing is performed on land, never in the water. It is necessary, therefore, for the cows to remain at the islands until the young are weaned, which is not until they are four or five months old. Each mother knows her own pup and will not permit any other to nurse. This is the reason so many thousand pups starve to death on the rookeries when their mothers are killed at sea. We have repeatedly seen nursing cows come out of the water and search for their young, often traveling considerable distances and visiting group after group of pups before finding their own. On reaching an assemblage of pups, some of which are awake and others asleep, she rapidly moves about among them, sniffing at each, and then gallops off to the next. Those that are awake advance toward her with the evident purpose of nursing, but she repels them with a snarl and passes on. When she finds her own she fondles it a moment, turns partly over on her side so as to present her nipples, and it promptly begins to suck.. In one instance we saw. a mother carry her pup back a distance of fifteen meters (fifty feet) before allowing it to nurse. It is said that the cows sometimes recognize their young by their cry, a sort of bleat. 11. Soon after birth the pups move away from the harems and huddle together in small groups, called "pods", along the borders of the breeding rookeries and at some distance from the water. The small groups gradually unite to form larger groups, which move slowly down to the water's edge. When six or eight weeks old the pups begin to learn to swim. Not only are the young not born at sea, but if soon after birth they are washed into the sea they are drowned. 12. The fur-seal is polygamous, and the male is at least five times as large as the female. As a rule each male serves about fifteen or twenty females, but in some cases as many as fifty or more. 13. The act of copulation takes place on land, and lasts;from five to ten minutes. Most of the cows are served by the middle of July, or soon after the birth of their pups. They then take the water, and come and go for food while nursing. 14. Many young bulls succeed in securing a few cows behind or away from the breeding harems, particularly late in the season (after the middle of July, at which time the regular harems begin to break up). It is almost certain that many, if not most, of the young cows are served for the first time by these young bulls, either on the hauling grounds or along the water front. These bulls may be distinguished at a glance from those on the regular harems by the circumstance that they are fat and in excellent condition, while those that have fasted for three months on the breeding rookeries are much emaciated and exhausted. The young bulls, even when they have succeeded in capturing a number of cows, can be driven from their stands with little difficulty, while (as is well known) the old bulls on the harems will die in their tracks rather than leave. 15. The cows are believed to take the bull first when two years old, and deliver their first pup when three years old. _ 16. Bulls first take stands on the breeding rookeries when six or seven years old. Before this they are not powerful enc harems. 17. Cows when nursing regularly ti found one hundred or one hundred a at greater distances. 18. The food of the fur-seal consists of fish, squids, crustaceans, and probably other forms of marine life also. (See Appendix E.) v ,,. , ,. , 19. The great majority of cows, pups, and such of the breeding buns as have not already gone, leave the islands about the middle of November, the date varying con- 20. Part of the non-breeding male seals (holluschickie), together with a few old bulls, remain until January, and in rare instances until February, or even later. 21. The fur-seal as a species is present at the Pribilof Islands eight or nine montns of the year, or from two-thirds to three-fourths of the time, and m mild winters •ometimes during the entire year. The breeding bulls arrive earliest ana remain 188 ORAL ARGUMENT OF JAMES C. CARTER, ESQ. continuously on the islands about four months; the breeding cows remain about six months, and part of the non-breeding male seals about eight or nine months, and sometimes throughout the entire year. 22. During the northward migration, as has been stated, the last of the body or herd of furseals leave the North Pacific and enter Behring Sea in the latter part of June. A few scattered individuals, however, are seen during the summer at various points along the Northwest Coast; these are probably seals that were so badly wounded by pelagic sealers that they could not travel with the rest of the herd to the Pribilof Islands. It has been alleged that young furseals have been found in early summer on several occasions along the coasts of British Columbia and southeastern Alaska. While no authentic case of the kind has come to our notice, it would be expected from the large number of cows that are wounded each winter and spring along these coasts and are thereby rendered unable to reach the breeding rookeries and must perforce give birth to their young—perhaps prematurely— wherever they may be at the time. 23. Tbe reason the Northern fur-seal inhabits the Pribilof Islands to the exclusion of all other islands and coasts is that it here finds the climatic and physical conditions necessary to its life wants. This species requires a uniformly low temperature and overcast sky and a foggy atmosphere to prevent the sun's rays from injuring it during the long summer season when it remains upon the rookeries. It requires also rocky beaches upon which to bring forth its young. No islands to the northward or southward of the Pribilof Islands, with the possible exception of limited areas on the Aleutian chain, are known to possess the requisite combination of climate and physical conditions. All statements to the effect that fur-seals of this species formerly bred on the coasts and islands of California and Mexico are erroneous, the seals remaining there belonging to widely different species. Their migrations as described in this report are roughly represented on this map (indicating on map). When they leave the Pribilof Islands in the autumn to go on their Southern migration they take this general course (indicating) to the coast of California and, comparatively speaking, widely disperse; on their return, following a course nearer the shore, they pass through the Eastern passes of the Aleutian chain back to the Pribilof Islands (indicating on map). The President. You mentioned that they pass nearer the coast on their return. Do you mean that they follow the territorial waters? Mr. Carter. Do you mean by "territorial waters" within three miles of the shore? The President. Yes. Mr. Carter. I believe never. Scattered seals may occasionally go in, but as a herd, never, I think, so near the shore as that. When they go through the passes of the Aleutian Chain—those narrow passes— very likely they pass within that distance of the shore. Senator Morgan. I think, Mr. Carter, there is some testimony to show the fur-seals sometimes have entered and been captured in the Straits of San Juan de Fucca. Mr. Carter. Oh, yes; there is a great deal of suggestion here and there in the Case and Counter Case of Great Britain, evidence of a conjectural character, that seals visit this place, and haul out at that place, and breed on other places than the Pribilof Islands; but I am taking now, as correctly representing the facts as established by the evidence, the report, the views, of the American Commissioners. I feel tolerably certain that when their report comes to be compared with the evidence, and when all the evidence is thoroughly sifted, it will be found that their statement will stand in the main as a truthful and accurate account. Senator Morgan. Is their statement based upon the same evidence, that this Tribunal has to consider, or is it based upon facts which have come to their knowledge as experts? Mr. Carter. Upon both sorts of evidence. Their statements have the character of evidence. They were appointed for the purpose of ORAL ARGUMENT OF JAMES C. CARTER, ESQ. 189 giving their opinions upon these questions and their opinions, from whatever sources derived, are therefore evidence of the facts which . they state. They are original evidence of the fact which need not be further substantiated. At the same time they are substantiated by the great weight—as we think the overwhelming weight—of the testimony which is before this Tribunal. , Senator Morgan. Suppose the same effect is conceded to the report of the Commissioners on behalf of Great Britain? Mr. Carter. I have had occasion already to observe that so far as the opinions of those commissioners go as to facts, so far as their statements purported to be based upon other observations than their own, I have submitted grounds and reasons which lead me to the belief, and I think will lead the Tribunal, or should lead the Tribunal, to the belief, that those statements are not to be taken where they conflict with the statements of the American Commissioners. The President. Do you take the opinions of the American Commissioners as evidence? Mr. Carter. I do. The President. And you reject the British opinions as evidence? Mr. Carter. I do, in general; and that for the reasons stated, that the opinions of the American Commissioners have been formed in pursuance of the duties imposed upon them by the terms of the treaty, and in accordance with that conception of their functions which is contained in the treaty; and the views of the British Commissioners are based upon a different conception. That is all I purpose to read at present from this report. It gives a general description of the nature and habits of this animal, the conditions of seal life upon the islands and the facts attending the migrations of the seal. There are some further matters of fact in addition to these which I desire to lay before the Arbitrators, and for this purpose I read some statements in our argument which we conceive to be clearly established. First. In addition to the climatic and physical conditions above enumerated as necessary to render any place suitable for a breeding ground for the seals, exemption from hostile attack or molestation by man, or other terrestrial enemies, should be included. The defenceless condition of these animals upon the land renders this security indispensable. If no terrestrial spot could be fouud possessing the favorable climate and physical requirements above mentioned, and which was not at the same time exempt from the unregulated and indiscriminate hostility of man, the race would speedily pass away. Second. The mere presence of man upon the breeding places does not repel the seals, nor operate unfavorably upon the work of reproduction. On the contrary, the presence of man and the protection which he alone is capable of affording, by keeping off marauders, are absolutely necessary to the preservation of the species in any considerable numbers. That statement is, of course, substantiated by what we know respecting the numbers of seals of similar character in the South Seas. In former periods they existed in great multitudes. Not however being protected upon the breeding places by man they were visited by vessels fitted out for their capture and were very speedily destroyed. Third. If man invites the seals to come upon their chosen resorts, abstains from slaughtering them as they arrive, and cherishes the breeding animals during their sojourn thev will as confidingly submit themselves to his power as domestic animals are wont to" do. It then becomes entirely practicable to select and separate from the herd for slaughter such a number of noii-breeding animals as may be safely taken without encroaching upon the permanent stock. That statement, if disputed would be abundantly proved by the evidence. We know, of course, from the experience upon these islands 190 ORAL ARGUMENT OF JAMES C. CARTER, ESQ. that the mere presence of man does not repel the seals at all. They come up and land upon those islands with perfect confidence that they will not be disturbed. After they arrive there it is entirely possible for man to separate from the herd the non-breeding males. They do not intermingle with the breeding animals. The old bulls drive them away immediately. It is not until the age of six or seven years that they are fit for service, or called upon to render service, upon the rookeries. And until they arrive at that age they "haul out, as it is called, by themselves, in places behind the rookeries, or upon sandy beaches away from them. While thus hauled out by themselves these young males are, of course, separated from the rest of the herd, and they can be driven from the places where they are to a convenient place for slaughter, without working any disturbance to the breeding rookeries. Fourth. If the herd were exempt from any depredation by man, its numbers would reach a point of equilibrium at which the deficiency of food, or other permanent conditions, would prevent a further increase. At this point, the animal being of a polygamous nature, an annual draft from non-breeding males might be made by man of 100,000—perhaps a larger number—without causing any appreciable permanent diminution of the herd.. The fact that is there stated that if this animal were not disturbed at all by man, the numbers of the herd would eventually reach a maximum at which they would remain is more fully stated, explained and justified by the American Commissioners in their report. It is, I suppose, a perfectly familiar conclusion to all naturalists that all races of animals, if undisturbed by man, have a tendency to increase, up to a certain maximum* They are subject to the attacks of enemies other than man; and there are certain causes at all times operating upon them which would eventually prevent their increase beyond a certain amount. If this were not so of course the marine animal races would fill the seas eventually. In the case of the fur-seals they do have enemies other than man. We do not know what all their enemies are. Their greatest marine enemy is known. It is the killer-whale, which follows these herds, makes its attack upon them, and doubtless kills a great many. How many of those that are born each year are thus killed by their natural marine enemies there is, of course, no means of determining. The President. Is that killer-whale hunted and destroyed by man? Mr. Carter. No; I do not think it is. I never heard that it was. The President. It is not an object of whaling? Senator Morgan. I think that it is the one which yields oil and whalebone; and, of course, if it is, it is hunted by man assiduously. Mr. Carter. It maybe true; but I have never heard myself that the killer-whale was hunted by man. Its means of escape are too great. Lord Hannen. Is it really a whale? Mr. Carter. It is suggested to me that the killer-whale is a small whale, and not taken either for its bone, or its oil. That I shall venture to state as our view of the fact, so far as that is important. The President. In point of fact, the protection by man of the seals does not go to the extent of taking this killer-whale for the sake of preserving the seal herds? Mr. Carter. No; man does not extend his protection to the herd in that direction, If this herd of seals were left to its natural enemies, I have said, it would increase to a certain maximum point, which point would be determined by the operation of various causes. Sufficiency of food would be one. That would furnish a natural limit to the increase of ORAL ARGUMENT OF JAMES C. CARTER, ESQ. 191 the herd. Another limit to the increase of the herd, or another circumstance that would operate to limit the increase of the herd, if left to natural conditions, is the contests among the males themselves for the possession of females. Of course, as, presumably, there is an equal number of males and females born each year, and as the animal is in a high degree polygamous, one male answering for auywhere from twenty to forty or fifty females, there are fierce conflicts between the males for gaining possession of the females, and gaining places on these rookeries. Those contests are very deadly, and result disadvantageously to seal life upon the rookeries in different ways. It leads to the slaughter of a great many males; and it interferes very greatly with the process of reproduction during the season of reproduction. The way in which these contests between the males operate to reduce the numbers of the herd, is evidenced in various other classes of highly polygamous animals; for instance, the buffalo—the American bison—now nearly extinct. That was a highly polygamous animal ; and the extent to which the males were disabled and killed by conflicts with each other was very great. I believe the same thing is true of all other animals which are highly polygamous, with deer, and elk, and moose and such animals. The President. Are the bodies of those animals that are killed by one another picked up for the use of their furs? Mr. Carter. No; I apprehend not. The President. They are quite lost. Mr. Carter. They are lost. The breeding rookeries are left undisturbed, as far as possible. Such bodies cannot be recovered without going among the rookeries for the purpose of taking them. When the supply of males is not. excessive, of course the conflicts are not so frequent in number, and not so fierce and deadly in character. Take this herd of seals when it has reached its maximum under conditions where it is not disturbed by man. If man appears upon the scene, and makes a draft upon it, he can take a certain number without affecting the normal numbers of the herd. That arises from the circumstance that the animal is polygamous in its character. If he takes no females, but confines his draft to males, and leaves enough males for the service of the whole herd, he does not touch the birth rate of the herd. Consequently there continues still to be as many born as before, and the herd would preserve its numbers at that maximum point, suffering a slight diminution at first by the number of males that are taken. The President. Do you mean to say that would be a sort of peacemaking, and consequently a sort of taming the animals, changing their modes of life and a domestication? Mr. Carter. No; I do not mean that, in that sense. The President. If you suppress the occasions of fighting between them, of course you make them tamer. Mr. Carter. You do not suppress them. You affect them to a slight degree, but not to a sufficient degree to make any appreciable difference. You still leave a large number. You still leave a superfluous number. They are still abundant after you have made your draft from them. é . The President. That is one of the modes of man, of going among these animals and domesticating them. Mr. Carter. It is what I call husbandry. I do not go so far as to assert that it makes a substantial change in their nature. I only assert the fact that you can take a very large number from them without m any degree diminishing the normal numbers of the herd, lou diminish it at first, of course. Lf you have a herd of five mdlions, male and 192 ORAL ARGUMENT OF JAMES C. CARTER, ESQ. female, and take a hundred thousand of them, you diminish the herd at first by that 100,000; but you will soon reduce the size of the herd to a number, below which this annual draft of 100,000—that particular number I assume—will not carry it. They continue the same. Of course it is the same with seals as it is with any other polygamous animal, the same as it is with sheep or horses or cows. You can take a certain number of males without in any degree diminishing the numbers of the herd. It is a matter, not of scientific knowledge alone ; it is a matter not for abstruse investigation. It is a matter of common barnyard observation. That is all it is. I have stated as a fact which I suppose to be capable of substantiation that, taking this particular herd of seals, you can make a draft upon it of 100,000 young males without any danger to the stock, and without diminishing the normal numbers of the herd. What is the evidence upon which that statement can be supported? Of course experience must alone determine the question of how many you can take; because we do not know what the number is of the different sexes on the island. We do not know how many males there are, and we do not know how many females there are. We do not know how many are destroyed annually. We have no knowledge of that sort to appeal to ; and of course we must rely on experience alone. But we have a very long experience. The President. Are the seals counted on the islands? Mr. Carter. No. The President. No one knows their numbers? Mr. Carter. Oh no; attempts have been made to estimate their numbers in ways like these. Those occupying a space, say, 100 feet square would be counted, and then the whole area would be ascertained and upon the assumption that each 100 feet contained as many, a computation would be made; but all accounts now agree that all the methods now relied upon for the purpose of determining what the precise number there is are only misleading. You can say there are more than a million; but whether there are two, or three, or four, or five, millions, no man knows or can know. Conjectures have been made, and conclusions have been stated by observers, based upon conjecture, and those statements have received a certain degree of credence; but the result of the evidence is that it is impossible to tell with any approach even to precision, what the numbers are; and the failure to reach accuracy is so complete that it is best not to rely upon any attempts. The President. As a matter of fact, the herdsman does not know much of his herd, except as to killing part of the increase? Mr. Carter. He does not know how many there are ; that is very certain. He knows, however, that there are a great many there. I have said that a draft of 100,000, can be made from this particular herd. The evidence of that is this. • The Bussians discovered those islands in 1786 or 1787. They did not know, or if they did know, paid no attention to, the laws of nature in reference to the increase of these animals and the decrease of them; and they made indiscriminate drafts upon them, taking both males and females. They were governed probably by the consideration of the state of the market—how many the market would take profitably. Of course it would not do to throw a very great many upon the market, because that would not be profitable. But this sort of indiscriminate attack upon them very soon greatly reduced the numbers of the herd. They then found themselves compelled to take notice of ORAL ARGUMENT OF JAMES C. CARTER, ESQ. 193 the fact that the animal was polygamous, and that it was only by the exercise of care, and by attending to natural laws, that they could preserve this valuable race. They then began to confine their drafts to young males; and finally established a system under which the draft was wholly limited to young males; and that system was fully and perfectly established somewhere about 1846. The President. That system was not yet fully established under the Eussian Ukase of 1799? Mr. Carter. No; it was not. The President. Nor even during the greater part of the second Ukase of 1821? Mr. Carter. No; not perfectly, it was not. The President. But it was established in the Eussian time before the American possession ? Mr. Carter. Oh, fully established for twenty years before the Americans took possession. The Eussians at first, upon the establishment of this system, confined their drafts of young males to various numbers, ranging,from thirty to forty thousand, or thereabouts. Those were their annual drafts. The President. And females were never slaughtered, then before pelagic sealing was observed? Mr. Carter. Oh no; not after this system was fully established by Eussia—not after that. The President. What became of the females? Mr. Carter. They lived their natural lives and died, subject to such attacks as their natural enemies made upon them. The President. They were never taken for their skins? Mr. Carter. They were never taken. Of course a female might be taken without damage if she had completed her period of reproductive usefulness and became barren ; but that is a fact that cannot be ascertained ; so they were never taken. The drafts were confined, as I have said, to something like thirty to forty thousand young males. Under that system, taking no larger number than that, the numbers of the herd greatly increased and toward the close of the Eussian occupation, the size of the drafts were increased much over thirty or forty thousand, sometimes going as high as fifty to seventy-five thousand. Senator Morgan. Were those drafts from the herd always regulated by the Eussian Government before the United States got possession of it? Mr. Carter. They were regulated by the company which had control of the islands. That company fixed upon a number which would be taken each year, and directed the slaughter to be confined to that number. Senator Morgan. That was by authority? Mr: Carter. By the authority of the company ; not by the authority of the Eussian Government, so far as I am aware. . Senator Morgan. Still it operated as a rule of action, a law. Mr. Carter. A perfect rule of action to those on the Islands. . Toward the close of the Eussian occupation, as I have.said, larger drafts were made, from 50 to-75 thousand; and yet, notwithstanding those drafts at the time the islands passed into the possession of the United States in 1867, the herds were probably larger than they had been before during a knowledge of them by man; so that it is easily inferable from this that a larger draft even than a number varying from from 50 to 75 thousand annually might be taken. B s, PT XII 13 194 ORAL ARGUMENT OF JAMES C. CARTER, ESQ. When they passed into the control of the United States, and during the year 1868, there was no regular authority established upon the islands, and consequently the islands were open to predatory excursions of all sorts; many expeditions were sent thither and made raids upon the islands, if raids they could be called. There was nobody there to prevent them, and they took an enormous number. The President. The Eussian lessees had no more power? Mr. Carter. The Eussians had no authority to prevent it. The United States Government had established no authority. The -President. Was the Eussian company dissolved by the very fact- Mr. Carter. No; but it had no longer any title to the breeding places. The President. And no American company had been formed? Mr. Carter. No; no new American company had been formed, and the United States Government had established no authority over them. So there was a period of lawlessness there. Anyone could do as he pleased. There was a sort of interregnum so to speak. That was availed of by many persons who made an indiscriminate attack—or to some extent indiscriminate—upon the seals. In the first year they took about 240,000. Mr. Justice Harlan. What year was that? Mr. Carter. 1868. They tried to confine themselves, even then, to the taking of males; and they were greatly aided in that effort, and the seals were greatly spared, by the natural aversion which the natives who did the driving had acquired against killing a female. The establishment of the system and its long maintenance upon the island, of saving the females, its obvious benefits and utilities, its manifest necessity to a preservation of the herd, had so habituated the natives to it that they had acquired an aversion to the killing of females; and that aversion had a beneficial effect even during this period of unregulated capture. Still, it is not improbable, and there is some evidence to show, that there were perhaps thirty or forty thousand females taken at that time. Subsequently to that the United States established its authority, leased the property to a company by a lease, one of the regulations of which gave the United States power to control the number that should be taken annually; and under that the lessees, from the first, began to take 100,000 young males a year. The President. Can the Government fix the number every year? Mr. Carter. Every year. The President. And alter the number every year? Mr. Carter. Alter the number. The President. Without owing any indemnity to the company? Mr. Carter. Absolutely at its own pleasure; and. it has agents, superintendents, there, for the purpose of observing the condition of the herd in order to enable it to exercise that discretion the more wisely. I may say further in reference to the slaughter of females, and to the protections against it, the United States upon acquiring the sovereignty over the islands, passed laws making it a penal offence to kill any female. It was a penal offence to kill any seal at all without its authority, and a penal offence to kill any female under any circumstances. It began, as I say, by taking 100,000 a year. The President. Is that written down in the grant also, that they are not to kill females ? Mr. Carter. I cannot say. ORAL ARGUMENT OF JAMES C. CARTER, ESQ. 195 The President. No other person has authority to kill a seal, you just said. There are laws against the killing of seals. Then if the only ones who have authority to kill a seal are the company, then the company must be interdicted from killing females? Mr. Carter. It is interdicted by law—the law of the United States. A statute of the United States binds even the action of the executive government. The executive government of the United States could not give authority to kill a female seal. It is a crime. Mr. Justice Harlan. Mr. Carter, some of the Arbitrators want to know whether the concession granted to this company was granted by the executive department under the authority of an act of Congress? Mr. Carter. It was. There was a special act of Congress providing that the islands might be leased out and provision made for putting the privilege up at auction and selling it to the highest bidder; and the lease was executed in pursuance of those provisions. The government was compensated in two forms; first, by a gross sum paid annually, and then by a royalty upon each seal killed. Lord Hannen. It was only the source of the lease that we wanted to get at—whether it was under the direct power of an act of parliament, or whether it was done by the executive. Mr. Carter. It was done by the executive department of the government under the authority and in the discharge of its duties imposed upon it by the act of Congress. The President. By a special act of Congress? Mr. Carter. By a special act of Congress. The President. Not made for this company, but made for the leasing? Mr. Carter. Oh no; not made for this company. Mr. Justice Harlan. In Section 4 of the Act of Congress of July 1st, 1870, it is provided "That the Secretary of the Treasury shall lease for the rental mentioned in section six of this act" the privilege of taking seals on these islands. The President. The act of leasing to such company was the mere action of the executive. Mr. Justice Harlan. Under the authority of the act of Congress. [The Tribunal thereupon took a recess.] [The Court resumed at 2.15 p. m.] Mr. Carter. When the Tribunal rose for its recess I was stating that, as a matter of fact, it is possible to take 100,000 young males from the herd without diminishing its normal number. Mr. Justice Harlan. Are you speaking of the present time or a previous period? Mr. Carter. I was taking the herd at its maximum amount; that is, I assume that if man withholds his hand the herd will reach a certain maximum beyond which it will not go if left to exclusively natural causes. If man interferes and confines his draft to the young, males he may take 100,000 annually without diminishing the normal numbers of the herd. The first draft will of course diminish the number by the number taken; but after the first few years the normal number will remain the same. I had stated, as supporting that view, that drafts to the extent of from fifty to seventy-five thousand had been taken under Eussian occupation, and the herd had increased from a depressed condition, so that at the time when it passed into the hands of the American Government its numbers were as large as, if not larger than, ever. I had spoken of the irregular and indiscriminate drafts of 1868, when 240,000 were taken in one year. When the 196 ORAL ARGUMENT OF JAMES C. CARTER, ESQ. United States came into possession its lessees began by taking 100,000 annually, and they continued to take that number annually until 1887— a period of seventeen years. It was not until 1884 that any real diminution in the size of the herd was observed. Now let us see what fortunes the herd had been subjected to in the course of that period of seventeen years. This inquiry introduces us to the subject of pelagic sealing and the attack which was thus made upon the seals by man. If the members of the Tribunal will turn to page 366 of the Case of the United States they will there see the amounts of the draft proceeding from this kind of attack by the hand of man, that is by pelagic sealing. The practice of pelagic sealing began in 1872. Now, speaking of pelagic sealing, I do not mean that kind of pelagic sealing that had been carried on always by the Indians on the coast; I class that kind of pelagic sealing with the causes of diminution which proceed from natural enemies of the seal other than the acts of man. The herd had assumed a normal maximum with that element prior to the time which I am taking into consideration began. Pelagic sealing increased from year to year, as indicated by the table of figures which I now read : rait of pelagic sealing is * Number estimated from value given. Now, during a period of more than ten years, this draft of 100,000 young males was made by the United States upon this herd without any substantial diminution of its nutnber. The contrary of that will be asserted; at least that proposition will not be admitted to the extent to which I have stated it here. So far as the evidence is dealt with on that subject on the part of the United States, it will be dealt with by Mr. Coudert, I have not the time to go through the evidence; nevertheless I shall state the main grounds upon which that statement is supported. The evidence showing, as the United States contends, that up to the year 1884 there was no substantial or perceptible diminution of the number is derived from the testimony of persons who were on • the islands and who knew the facts. There is no evidence to the contrary substantially contradicting that. There are some vague and untrustworthy conjectures that a diminution had been observed prior to that time, but the substantial evidence, I think I am well justified in assuming, confirms the position which I now take; and that is, that for a period of ten years and more this draft of 100,000 was taken by the United States without any substantial diminution of the numbers of the herd. In 1884 it will be seen that pelagic sealing had assumed large proportions, the numbers taken in that year being 14,000, while in 188513,000 were taken in this manner; and, as I shall presently show to the Arbitrators, that number consisted in great part, if not entirely, of females. Of course this taking of females, operating, as it did, upon the birth-rate, was a fact of the most important character. ORAL ARGUMENT OF JAMES C. CARTER, ESQ. 197 We do not pretend that the United States can continue to take 100,000 annually from that herd if pelagic sealing is permitted, if pelagic sealing is carried on to the extent of taking five or ten thousand annually it would be perfectly impossible for the United States to take that number of young males. My assertion is that if all other attacks by man are prevented, and if pelagic sealing is prohibited, it is possible for the United States to take 100,000 annually. And experience proves it. They did it for ten years and always without any diminution. In 1884, or perhaps a little later, it may have been in 1887, they began to find it difficult to obtain these 100,000 young males. They were not easily discoverable on the sealing grounds. Drives had to be made more and more frequently in order to procure that number, and difficulty was experienced in getting it. Prior to that time the same number of young males was taken, and still there remained large numbers of the same class untouched. But when the ravages of pelagic sealing began to extend, then, the birth-rate being diminished, the young males were fewer in number. Still the draffe were continued— they ought not to have been—they were continued until 1890, when, in consequence of the difficulty of making the drafts and of the certainty which then became manifest that too large a draft was being taken from the herd, the taking was stopped when the number of 23,000 had been reached. The President asked how this stoppage occurred. Mr. Carter. This was done by order of the Government Agent representing the United States on the islands, who had charge of the fishery and was clothed with discretionary power to diminish the number when such a step was thought to be necessary. The time had arrived when he thought it was necessary to take a smaller number, and he stopped the killing when the number of 23,000 had been reached. But during the three years preceding that date more and more difficulty had been experienced in easily finding the 100,000 young males to be taken. Had due consideration been given to the subject of pelagic sealing, had full account been taken of the serious ravages which it made on the herd, it would have been the part of prudence to stop before that time. But the subject was new, the practice of pelagic sealing was new, and the matter did not challenge the attention of the authorities on the islands until it had reached considerable proportions. It was not until the year 1883 that pelagic sealers had ventured into Bering Sea. Up to that time they had only carried on their operations in the North Pacifie Ocean south of the Aleutian Islands. In that year sealers entered Bering Sea, and from that time onwards the practice gradually increased of entering Bering Sea. But I think it is quite clear that it is possible, if pelagic sealing were prohibited, to take 100,000 annually. Such a draft would not affect the regular normal increase of these animals. That number and possibly a larger number may be taken, but I think the figure I have given is substantially correct. I think a larger draft could be made. I quote from page 80 of my printed Argument, and continue with our propositions.of fact: Fifth. Omitting from view, as being h carried on by Indians in small boats from at present pursued: That carried on unde the Pribilof Islands, and that carried on Sixth. The killing at the Pribilof Islai to a properly restricted number of non- prohibited, does not involve any danger siderable, such killing of the extermiD i of the herd, c 198 ORAL ARGUMENT OF JAMES 0. CARTER, ESQ. appreciable diminution in its normal numbers. It is far less expensive than any other mode of slaughter, and furnishes the skins to the markets of the world in the best condition. That fact is of course incontestable. The expense of killing seals upon land, where they may be put to death at the rate of 1,000 daily, must be much less than where it is necessary to fit out vessels with appliances and send them on distant voyages. And it furnishes the seals to the markets in the best condition. The difference is indeed very substantial, for the sealskins from the Pribilof Islands are held at a much higher price. I proceed with the statement : The killing at these islands, since the occupation by the United States, has been restricted in the manner above indicated. It has been the constant endeavor of. the United States to carefully cherish the seals and to make no draft except from the normal and regular increase of the herd. If there has at any time been any failure in carrying out such intention, it has been from some failure to carry out instructions, or want of knowledge respecting the condition of the herd. The United States are under the .unopposed influence of the strongest motive, that of self- interest, to so deal with the herd as to maintain its numbers at the highest possible point. The annual draft made at the islands since the occupation of the United States has been until a recent period about 100,000. This draft would be in no way excessive were it the only one made upon the herd by man. Now I have said that if the killing by the United States has not been confined to this number, it is on account of some failure to carry out instructions at the islands, or from want of proper knowledge respecting the actual condition of the herd. The United States lessees carry on their enterprise under the influence of the strongest possible motive, that of self-interest. It is to their interest to prevent any diminution of the herd. Of course it is only the plainest of fools who kills the goose that lays the golden eggs. Here is a property the annual income of which is very large, and that annual income can be made permanent, but only on condition that the normal numbers of the herd are maintained. It is therefore the interest of the United States Government to prevent the taking of excessive drafts. It is a question of self-interest—of that interest which operates most strongly upon the minds of men. What is the interest of the United States is also the interest of the lessees themselves. The United States Government has adopted the policy of leasing out these islands for a long term—twenty years—and the lessees pay a considerable gross sum for the privilege. It is therefore to their interest to keep the herd at its highest remunerative strength. I proceed : Seventh. Pelagic sealing has three inseparable incidents: (1) The killing can not be confined to males ; and such are the greater facilities for taking females that they comprise three-fourths of the whole catch. (2) Many seals are killed, or fatally wounded, which are not recovered. At least one-fourth as many as are recovered are thus lost. (3) A large proportion of the females killed are either heavy with young, or have nursing pups on the shore. The evidence upon these point is fully discussed in the Appendix. Eighth. Pelagic sealing is, therefore, by its nature, destructive of the stock. It cannot be carried on at all without encroaching, pro tanto, upon the normal numbers of the herd, and, if prosecuted to any considerable extent, will lead to such an extermination as will render the seal no longer a source of utility to man. There can be no discrimination exercised in pelagic sealing. Every seal that is found is killed, and no distinction of sex can be observed; and, in point of fact, the amount of the catch is, as we maintain, three- fourths females. Now the evidence unon that point will be more fully discussed by my brother Coudert. I hâve time only to call the attention of the Tribunal to some leading features. In the first place, to what we should suppose to be true from the probabilities of the case. Here is a herd of seals—animals which from their nature are highly polyg- ORAL ARGUMENT OF JAMES C. CARTER, ESQ. 199 amous, insomuch that one male suffices to serve from twenty to forty females, and for a long series of years large drafts have been made upon the males. The females therefore greatly outnumber the males— perhaps three or four to one. Therefore the catch of females would naturally outnumber the catch of males by three or four to one. Again, while the seals are on their northerly migration the females are easily approached and more easily killed. Such are the probabilities; now what is the evidence as to the fact? The testimony given on our side by a multitude of depositions proves that the catch of females is as much as eighty or ninety per cent, of the whole number taken. That evidence is derived from individuals engaged in pelagic sealing. In the next place we have the evidence of the furriers who handle the skins, and who can tell at a glance the difference between a male and female skin; and their evidence tends to show that the proportion of females is very much greater than seventy-five per cent. Against this we have a very large number of conflicting affidavits on the part of Great Britain, and I may allude to these affidavits. There are twenty-six witnesses whose depositions were given on the part of Great Britain who state that the catch of females is larger than that of males. Nineteen agreed that the proportion of females in the whole catch was sixty per cent, one placing it as high as eighty per cent. There were thirty-five witnesses who said that the numbers were nearly the same. Thirty-eight stated generally that more males than females were taken ; and then there were thirty who stated that there were sometimes more females and sometimes more males. Now, putting all that together, it does not displace the superior evidence submitted on the part of the United States, fortified as it is by the probabilities of the case, that at least seventy-five per cent, of the catch is composed of females. In the next place, in pelagic sealing there are of course—it must be so—a great many seals fatally wounded which are not captured. Now the general purport of the evidence of the United States is to the effect that at least a quarter of the number of seals that are wounded and eventually killed are lost and not recovered. And the other fact which I have stated as an inseparable feature of pelagic sealing is that a large proportion of females are either heavy with young, or nursing mothers. Those killed on their migration North to the Pribilof Islands are heavy with young. They give birth to their young a day or two after landing. They appear to land only when forced to do so for the purpose of giving birth to the young. And these affidavits give sickening details which I do not think it proper to dwell upon now respecting the slaughter of females heavy with young. They are skinned upon the deck of the vessel, and the young drop out bleating and crying upon the deck and remain in that condition ; sometimes for days. After giving birth to their young on the island the females are obliged to go out to sea in search of food, and they travel great distances, sometimes, it is said as far as a hundred and fifty miles. They have been found and killed at such a distance, and it was apparent from their condition that they had young on shore. The details of the killing of these nursing animals—mammals with distended breasts, are sickening; but I do not dwell upon them here because I am only dealing with the material facts which I shall endeavor to bring to bear upon this question of property. Now this recital of the principal facts which it is needful to take into consideration in determining the question of property embraces the following propositions which I believe cannot be disputed by the other side: 1. The seal is a mammal, highly polygamous, but producing one only each year. Its rate of increase is, therefore, exceedingly slow. [ 200 ORAL ARGUMENT OF JAMES C. CARTER, ESQ. 2. It is defenceless against man on the land, and is easily found ana captured at sea. 3. The present draft made upon the herd by pelagic sealers is not by a few barbarians to supply their immediate wants, but by civilized man to supply the eager demand of the whole world. 4. The race may be substantially exterminated by man by either form of attaek, that on the land, or that upon the sea. Now as to the land, the possibility of -extermination is admitted. The race can be exterminated by the United States. The seals are there, absolutely within the power of man, for five or six months of the year, and they could all be killed. And if any remained after an indiscriminate slaughter in oue year they could be killed in the next. It would take but two or three years to exterminate the whole of them. So far as they constitute an ingredient of the commerce of the world and a bounty of nature useful to man, they could be absolutely exterminated by the United States if the United States chose to do such a thing. They can also be exterminated by pursuit at sea. That will not be admitted by the other side, but the members of the Tribunal will see that that point is beyond dispute. The learned counsel for Great Britain take the ground that this herd will not stand the annual draftof 100,000 young males which is made upon the islands—thatthatis destructive. Now we contend that it will stand a draft of that amount. There is of course a certain number of young males that may be taken, and we think it ranges as high as 100,000. If you go beyond that point you begin to destroy the herd, because you do not leave a sufficient number of males for reproduction. Our position is that the limit to which a draft may go is as high as 100,000. The position of Great Britain is that that is too great a draft, and they offer what they conceive to be evidence tending to show that this is so. They point to the limited draft which Eussia made as being the safer number and they say that the herd began to diminish under the larger draft made by the United States before pelagic sealing began; well, according to them, the herd will not stand a draft of 100,000 young males annually. Then, if it will not, what draft of females will it stand? Why, under the system of pelagic sealing," that has already reached between sixty and seventy thousand a year ; and when we take into consideration the number killed but not recovered— The President. Is the number killed by American vessels included? Mr. Carter. On page 207 of the Eeport of the British Commissioners will be found such evidence as we have in the Case showing the catch of the United States vessels. I thought that was included in the pelagic catch contained in the tables of the American commissioners. But I am corrected in that particular, so that the table from which I read must be increased by the amount of the American catch, whatever it may be, in order to get the true figures. But the American catch cannot be easily determined. Sir Charles Eussell. I thought the figures at page 207 embraced all. Mr. Carter. There is a difference, however, between the American and British Eeports as to the amount of the catch of the Canadian pelagic sealers. The table contained in the American Case says the catch was 62,500 in 1891, whilst the British Eeport says 68,000. But so far as these details are important, they will be dealt with by my brother Coudert when he comes to treat upon the evidence. The point to which I wish to draw the attention of the Arbitrators here, is that ORAL ARGUMENT OF JAMES C. CARTER ESQ. 201 it is perfectly manifest that the race can be exterminated by pelagic sealing as well as by the sealing on land, because if it cannot stand a draft of 100,000 males it most certainly cannot stand a draft of 50,000 females annually. It could not stand a draft of 5,000 females, because the killing of the females operates upon the birth-rate and consequently upon the increase. I think it will be demonstrable upon the assumption favored by my learned friends on the other side that if it will not stand a draft of 100,000 males it will not stand a draft of 10,000 females. The race may be exterminated therefore as well by capture on the sea as by capture on the land. Mr. Justice Harlan. What is the duration of life of these seals? Mr. Carter. I take their productive life to be about eighteen years; that is, the female seal, according to the Eeport of the American Commissioners. Mr. Justice Harlan. My recollection is that the average life of the seal is about fifteen years. Mr. Carter. Now let me call the attention of the Tribunal to the striking difference between dealing with a herd of fur-seals like these, as regards keeping up their numbers, and dealing with polygamous domestic animals of any sort, such as horses, cattle, or fowls. The latter can be raised all over the surface of the globe; there is hardly a spot where they cannot be produced. If there is a great demand for them in the market the production of these animals will be stimulated,. and there is immediately a saving of females, and the numbers killed will be taken from the males. Consequently, there is an immense increase, and that increase can be carried on indefinitely. In reference to the females of domestic animals, there need be no rule against killing females, because these animals can be multiplied to a perfectly indefinite extent. With the seals, however, the case is far different. There are only four places on the globe where this animal is produced, and the demand for sealskins far exceeds the supply; and the object is not only to preserve the present normal number, but to increase it. To do this there is no way except by saving all the females. Every reason and motive unite to condemn the slaughter of any single female unless she be barren; for you cannot destroy one without diminishing the race pro tanto. And, owing to the circumstance that there are only four places on the globe where these useful animals can be produced, wé must accept the conditions and content ourselves with them. Now, having shown the difference between these animals and domestic animals of polygamous character, I will proceed to speak of the difference between the seals and wild animals, such as birds of the air, wild ducks, fishes of the sea, mackerel, herring and all those fishes which constitute food for man and upon which he makes prodigious attacks. There you cannot confine yourself to the annual increase. You do not know it; you cannot separate it from the stock; you cannot tell male from female, and you do not know whether there are any more males than females. There is no reason why, in making drafts, you should make them from males rather than females. Therefore you cannot practise any kind of husbandry in reference to wild animals of the description I have mentioned. That is one of the distinguishing characteristics of these seals as compared with other animals over which man has no control. With the seal, man, if he does his duty, and accommodates himself to the law of nature, can practise a husbandry and obtain the whole benefit which the animal is capable of affording without diminishing the stock ; but with other wild animals, J 202 ORAL ARGUMENT OF JAMES C. CARTER, ESQ. . such as ducks, fishes, wild game, &c, he can practise no such husbandry at all. And here it will be observed how Nature seems to take notice of the impotence of man and furnishes means of perpetuating the species of the wild animals last mentioned. In the first place, she makes provision for the production of prodigious numbers. Take the herring, the mackerel, the cod; they do not produce one'only at a birth, but a million ! They produce enough, not only to supply all the wants of man, but the wants of other races of fishes that feed upon them. They inhabit the illimitable regions of the sea; their sources of food are illimitable, and their productive powers are illimitable also, and therefore man can make such drafts upon them as he pleases without working any destruction of them. There is another mode desigued by nature for their preservation, and that is the facility which she gives them to escape capture. Man lays hold of some of them which come within his range, but the great body of them never come there. With the seals it is otherwise. They have no defence. They are obliged to spend five months of the year on the land where man can slaughter them ; and even at sea they cannot escape him, as the evidence clearly proves. The distinction between the seals and the domestic polygamous animals and other wild animals is extremely important and worthy of careful observation because of its bearing upon this question of property. Marquis Visconti-Venosta. Do you know any other animals beside the seal that are situate in like conditions? Mr. Carter. None under precisely the same conditions. I hear my learned friend whisper u sea-otter'' ; but you cannot practise any sort of husbandry with the sea-otter. It never places itself like the seal under the power of man. And yet, such is the value of the sea-otter, that man has almost exterminated that animal, notwithstanding its facilities for escape. The President. They are not protected. Mr. Carter. They are nominally protected by the laws of the United States ; they are a part of the wealth of the Northern Sea. They were formerly the principal element of value in those northern seas; and the value attached to the skin of this animal was very great even when it was found in larger numbers. The President. You will not put the sea-otter on the same legal footing as you do the fur-seal? Mr. Carter. No. So far as I am aware, man has no sure means of preserving the sea-otter, for it seems to me that he has exterminated it almost altogether. Then take the case of the canvas-back duck, a bird which abounded in America. As long as man made but a slight attack upon its numbers—fifty years ago, when there were no railroads and when the means of transporting it were quite imperfect—this bird was found in great plenty, but the abundance was confined to the locality where it was found. But now it can be transported five thousand miles without injury, and the whole world makes an attack upon it. The law may protect it a little, but it cannot protect it altogether from the cupidity of man; and this creature, too, is fast disappearing. In other words, these birds have all the characteristics of wild animals, and none of the characteristics of tame animals. You cannot practice any husbandry in regard to them. No man and no nation can say to the rest of the world that he has a mode of dealing with them which will enable him to take the annual increase without destroying the stock. I shall make use of that hereafter: and you see now the OKAL ARGUMENT OF JAMES C. CARTER, ESQ. 203 important bearing it has. No man and no nation can say with regard to the fish in the sea that they can protect them. H they are in danger of destruction, they cannot say "We can enforce by our power a limitation of the annual draft to the annual increase." There may be some fish as to which that may perhaps be said. When a more accurate knowledge is had of the habits of fishes, it may come to be ascertained that the inhabitants of some shores can protect some races of fishes which resort to that shore, provided other persons are required to keep their hands off. The President. And that would give a right of appropriation, in your view? Mr. Carter. Yes; that would tend that way. If they could furnish the protection and no one else could. That would be the tendency of my argument, I am glad to see that the learned President catches it. The consequence of the proved facts is that the fur-seal cannot maintain itself against unrestricted human attack. It cannot do it. That is admitted here. We have a joint report by all these Commissioners which is to the effect that the fur-seal is at present in the process of extermination, and that this is in consequence of the hand of man. The treaty itself under which you are sitting admits it; for it admits the necessity of regulations designed to prevent extermination. The cause of this diminution, the grounds and reasons which are working the extermination of thé seal are disputed between us. My learned friends upon the other side say it is this taking of the seals on the islands that is, in part, causing it. We say it is the pursuit of them by pelagic sealers ; but, whatever the cause, there is no dispute between us as to the fact. These seals are being exterminated; and that means that the race cannot maintain itself against the hand of man unless the assaults of man are in some manner restricted and regulated. As I have already shown, this consequence of the inability of the race to maintain itself is inseparable from the killing of females. That race cannot maintain itself unless the slaughter of females is prohibited. It is a mammal, producing one àt a birth. The rate of increase is extremely slow, and that increase can be cut down by a very small annual killing of the mothers from whom the offspring is produced. This inability of the race, this infirmity of the race to hold its own in presence of the enormous temptation to slaughter which is held out to man, is inseparable from the slaughter of females. The killing of males, if it were excessive, would produce the same effect. No doubt about that. We do not dispute, or deny, that. All we say is that you can carry the killing of males to a certain point without any injury whatever. The President. Mr. Carter, may I beg to ask you a question? Mr. Carter. Certainly. The President. The American Company, the lessees of the Pribilof Islands, consider the fur-seals as their property, or the property which . they are to dispose of, according to the grant by the United States. If they consider that they have a direct right to these animals do you not think they have reason to complain that the United States allowed pelagic fishing by some of their fishermeu on the American coasts, and can you state, as a matter of fact, whether the Company, or the lessees, have applied to the United States Government to make an enactment to prevent that fishing, that pelagic sealing, according to the right which has been given to them. If 1 understand well your purport, and if your purport is the same as the lessees or the American Company, it is an injury to them that pelagic sealing should be carried on and practical destruction of female seals be carried on by American fisher- 204 ORAL AEGUMENT OF JAMES C. CARTER, ESQ. men. Do you not think that they have a right to complain, and I inquire whether they ever did complain to the American Government since 1884 for instance, which is the date you state as being the initial date when they began to perceive that pelagic sealing was offensive to their rights. Mr. Carter. I think the lessees of the islands would have a moral right to complain to the United States if the United States, having leased these islands to them under certain conditions, allowed their own citizens to carry on pelagic seabng, or any other form of destruction. They would have a moral right undoubtedly to complain and a very strong equity to complain; but under the circumstances they have not, for the very first thing the United States Government did was to pass laws against it. The President. On the islands? Mr. Carter. Oh no; on waters as well. The President. In the adjacent waters. It did not pass laws against American fishermen doing it elsewhere? Mr. Carter. But the United States Government exercised all the power which Congress at the time supposed it had to prevent pelagic sealing. It supposed that in prohibiting pelagic sealing over the waters of Alaska—that is the phrase used—it embraced all those waters which it had acquired from Eussia by the cession. The western boundary was that line which is seen drawn down there (indicating on map). The President. That is not the question. Mr. Carter. They, Congress, assumed that "all the waters of Alaska " embrace all that portion of Bering Sea, and that, therefore, their enactments prohibit pelagic sealing over all those waters; and the United States Executive Government has so considered those enactments. It does seize whenever it can, and exercises its utmost diligence in seizing any American vessel caught anywhere in these waters engaged in pelagic sealing. Mr. Foster. And always condemns them. The President. Th at is not quite my question. My question is, does the American Company contend, as I understand you to contend, that the owners whoever they be, of the Pribilof herd, have a right of property or protection in these animals wherever they be; and if they have the right of property and protection, have they a legal right as well as moral right to complain of the United States not punishing pelagic sealing any where else wherever the seals may go; for if I understand your purport they have a right of property or protection any- where:—not only in Alaskan waters. Mr. Carter. I agree to your suggestion that the lessees of these islands would have a moral right. The President. No; I ask you whether they have a legal right? Mr. Carter. Not quite a legal right, perhaps, because at the time when their lease was executed and their rights were acquired it might be said to be the fair interpretation of that document that they took their right to the fur seals subject to the existing condition of things and that if there was any failure on the part of the United States to repress pelagic sealing they took it subject to that failure. I should, • therefore, not consider that they have what is called a legal right; but I should think at the same time they had a moral ground to say to the United States: "You are the owners of this herd, and. being the owners of the herd, and being a nation, you have a right to protect them wherever that herd goes. Having that right and having let the privilege of taking these seals on the Pribilof Islands to us, we think ORAL ARGUMENT OF JAMES C. CARTER, ESQ. 205 that you are bound—bound in the exercise of your just powers—to repress this pelagic sealing.» I think they would have a right to insist upon that. The President. I would call that a legal right. Mr. Carter. No; I do not quite consider it a perfect legal right because it might be said to these people: "No, we have never undertaken to protect this herd everywhere on the seas. We executed to you this lease. You knew what the laws were. You knew what protection you would get. You did not ask for anything more. Having accepted your lease under those circumstances you must be content with it." The Prestdent. In fact they have not asked for any more? They have not asked for an act of Congress, a statute against American pelagic sealing? Mr. Carter. I cannot speak upon that point. I know of no evidence in the Case. Mr. Phelps. They have. Senator Morgan. I would like to say, Mr. Carter, in that connection that the number of seals that is permitted to the lessees to be taken is regulated by the lease and by the law. Under the lease of 1870 they were permitted to take not exceeding 100,000 seals annually, which number might be reduced by the Government of the United States without any liability whatever for damages, according to their estimate and opinion as to what public policy required. Under the lease of 1890 they were allowed to take not exceeding 60,000 under the same conditions. So that whatever number the United States fixes annually or at any time of the year they choose to fix, it is the number that they may take and is the number they have agreed to abide by. They have no right to any greater number than the United States chooses to award to them. Therefore they cannot have any interest direct or indirect in the question whether we are preserving the seal herds or not if they get their number. The President. They have no direct right to the average of the herd? Senator Morgan. Not at all—not the slightest. Mr. Carter. I should still be disposed to agree with the suggestion of the learned President even under those conditions. Senator Morgan. That there would be a moral right? Mr. Carter. That there would be a moral right. Senator Morgan. I do not think so. Mr. Carter. That there would be a moral right in the lessees to call upon the United States to exercise that authority to preserve this herd; for they might argue : If you did exercise that authority this herd would be in a condition in a few years to give us, instead of 60,000,100,000. Senator Morgan. If yon will allow me, the Congress of the United States which has but recently adjourned has made a provision of law by which all of the statutes that now apply to the Bering Sea shall be extended in their full force over any area of waters that might be determined by this Tribunal as being within the prohibition or within the regulations which they have prescribed. The Congress of the United States have prepared in advance so as to extend their penal and other laws over the area that this Tribunal is to determine upon. It has done all that can be done under the circumstances. Sir Charles Eussell. That was merely a provision to enable the United States to give legal effect to any regulations, if any, that should be enjoined by this Tribunal. 206 ORAL ARGUMENT OF JAMES C. CARTER, ESQ. Senator Morgan. That was in the hope of a proper adjustment of this question. Mr. Carter. It was a looking forward on the part of the United States to a concurrence in any measures which this Tribunal might adopt which would insure the preservation of the fur-seal. The President. What I wanted to come to, if you will allow me to make my point a little more clear, is this: According to the 5th question of our article 6 we have to determine whether there is a right of property and protection in these seals. I think your contention is that there is a legal right of property and protection. Mr. Carter. Yes; it is. The President. That is for the United States; but you do not admit of a legal right or a moral right for the lessees of the United States to claim the right of property and protection. I think what Mr. Senator Morgan just explained accounts for that. Mr. Carter. Yes. The President. I wanted to make the distinction clear. Mr. Carter. Yes; I apprehend. If these islands were not in the possession of the United States Government, but were in the possession of private individuals, I think there would be a moral right on the part of those individuals to call upon the United States Government to exercise its powers on the high seas to prevent the destruction of those seals. The President. That is what the United States demand from us to day? Mr. Carter. It is what the United States demand from you to day. It is what I am now endeavoring to show to this Tribunal. I am taking one step, and that is to say that the United States has a right of property here. My next step will be that having that right of property, they have a right to go there with force and protect it; and my next step will be that if they have not the right to go there with force and protect it, you ought to pass some regulation giving them that right. The President. Then they do not protect their own property,—as yet, against the pelagic sealing. Mr. Carter. They do not protect their own property as yet, for the reason that they do not want to disturb the peace of the world. The President. Would it disturb the peace of the world if they were to act against their own citizens engaged in pelagic sealing? Mr. Carter. No; not at all; and we continue to act against our own citizens. The President. No, you do not do that. You do not act against your own citizens everywhere. Mr. Carter. So far as our laws go. The President. I say your laws do not go as far as your contention. Mr. Carter. No ; the laws do not go as far as our contention goes. The Congress of the United States is a different body from the executive department of the United States. The executive department of the United States submits questions of law, takes its position, here. I am here for the purpose of arguing them. Perhaps the Congress of the United States may not have gone through all the processes of reasoning which I have gone through. They act upon their own views and upon their own conclusions. They have taken the ground and have evinced their intention of protecting these fur-seals, and protecting.them for their own benefit, against the attacks of pelagic sealing, from whatever quarter—their own citizens or others. They many have supposed that their powers were confined to Bering Sea, and therefore limited ORAL ARGUMENT OF JAMES C. CARTER, ESQ. 207 their jurisdiction to the Bering Sea. They may have acted upon that assumption—an erroneous one, in my judgment. Mr. Justice Harlan. The President refers to the failure of Congress to enact a statute forbidding American citizens from taking seals on the North Pacific. Supposing that Congress could pass such a law, and did, what effect would that have upon the pelagic sealing, if the subjects of Canada were left at liberty to pursue it? The President. That is another question. Mr. Carter. It would tend, possibly, to diminish the attacks, to some extent; how much, would be a question. Of course, it might be argued by the Congress of the United States, it might be said by Congressmen: y If all the world is to be permitted to go up there and take the seals, we might as well let our own citizens go. We will not protect the seals against attacks by our own citizens if other people are to tie allowed to attack them". The President. You want to convince us first and the American Congress afterwards, while you ought to convince the American Congress first and lis afterwards. That is what I mean. It is merely a point in my mind. Mr. Carter. That the American Congress, after this Tribunal shall have established American rights, will hesitate at all in exercising the utmost degree of protection, is scarcely to be apprehended. The President. But it might have been in argument before us that the American Congress had already admitted the right. Senator Morgan. You will remember that Lord Salisbury, I think, or Lord Eosebery, in discussing the modus vivendi which is now governing this matter, made the objection that the British Government and the American Government would be tying their hands by agreeing upon the prohibition of pelagic sealing during the pendency of this litigation, and permitting other nations to come in and take the seals at their will. Both Governments had to take the risk of it. Mr. Carter. Yes ; that is undoubtedly true. But still the observation of the President is correct, namely, that if the United States had a property in these seals and a right to protect them upon its own possessions, it could at all times have prevented its own citizens from taking seals even in the northern Pacific Ocean. It could have done that. It has not done it; and so far as that is an argument bearing upon the merits of this question of property, I must allow it to pass unanswered ; but as to the force and weight of it, I must be permitted to say that it does not seem to be very significant. The President. It merely shows the question is a delicate and disputed one. Mr. Carter. The policy of passing laws of that character, the direct operation of which would be—allowing that these pelagic sealers were mere marauders—to restrain your own marauders for the benefit of the. marauders of another nation, is not a very obvious one. There is one other fact perfectly indisputable in regard to pelagic sealing, and that is this: the moment its destructive effect reaches a point where the maintenance of the industry on the Pribilof Islands ceases to be remunerative—that is, when it reaches that point where it is no longer worth while to maintain that establishment of two or three hundred Indians which are kept upon the islands—then, of course, that industry must be given up; and-when that industry is given up, that population must be withdrawn. They cannot live there without outside support. And then, of course, all protection to those islands against the marauding excursions of people.who want to loll them upon the 208 ORAL ARGUMENT OF JAMES C. CARTER, ESQ. land is gone, and when that guard is withdrawn and all protection taken away, that herd of seals is exterminated. It is exterminated for the United States. It is exterminated for these lessees. They can no longer get anything out of it. It is exterminated for the whole world. It is exterminated even in respect to these pelagic sealers, for their occupation is gone also. They are all gone, in a common calamity, and gone very quick, too, after the guard is withdrawn, and that will take place just as soon as it ceases to be profitable to maintain it there. Now, there is a superfluity of young males. That superfluity of young males can be taken upon the islands, and the taking can be limited to that, provided all interference is prevented by sea, provided pelagic sealing is stopped. That fact;—although it appears to be manifest—that there is a superfluity of young males, is one which I wish to place beyond doubt. We say it amounts to 100,000; but whether it amounts to 50,000 or 100,000 or 200,000, there is a superfluity, and that superfluity can be separated and taken by the United States on those islands without injuring the stock. As I say, that seems to be self- evident, but I do not know that it will be admitted, and I choose to state one or two circumstances which prove it. We have witnesses long resident upon the islands and in charge of this business, who swear to it; but it is also proved by the overwhelming experience of one hundred years. It is proved by the -fact that Eussia, after her occupation of the islands, and while she did not confine her draft to this superfluity of males, adopted a coursé which tended towards the destruction of the herd and came very near destroying it. It is proved by the fact that when she corrected her methods and confined her draft to this superfluity, in 1846, the herd continued to increase; so that when twenty years later it passed into the possession of the United States, it had reached as great a magnitude as it had ever had. It is proved, in the next place, by the experience of the United States during more than ten years of their occupation, and until the. excessive drafts occasioned by the pelagic sealing made this draft of 100,000 males an undue draft upon the herd. Therefore this statement is fully substantiated by the uniform experience on the islands—an experience extending over a period of one hundred years. It is substantially, I think, admitted by the British Commissioners themselves. In Section 37, at page 7, of their report, they say :" 37. During the early years oi the Russian control, the conditions of seal life were very imperfectly understood, and but little regard was paid to the subject. A rapid diminution in the number of seals frequenting the islands, however, eventually claimed attention, and improvements of various kinds followed. Among the first of the more stringent measures adopted was the restriction of killing to males, which followed from the discovery that a much larger number of males were born than were actually required for service on the breeding "rookeries." The killing of females was practically forbidden on the Pribilof Islands about 1847, and on the Commander Islands probably about the same date. I pass to section 41 : 41. It is also noteworthy, that for many years previous to the close of the Russian control (probably from about 1842) under a more enlightened system of management than that of the earlier years, the number of seals resorting to the islands was slowly increasing, and that the average number taken annually was gradually raised during these years from a very low figure to about 30,000, without apparently reversing this steady improvement in the numbers resorting to the islands. I pass to section 116, on page 19 : ORAL ARGUMENT OF JAMES C. CARTER ESQ. 209 And Section 327, on page 58: 327. Thus, on the Pribyloff Islands, one particular instance has been recorded the number of adult seals on St. Paul Island wasreducecfto' about4 OOO^and'the Other thought less tosaWou™ins\ances%f therame kind nave occurred sinLP and year, though probably seldom with the same intensity aTin 1836. may reonr m any That serves to show from how low a point the numbers of the seal herd on the island, under the practice of limiting the draft to young males, increased to their subsequent magnitude. I now read section 659, page 114 : 659. The system adopted for the regulation and working of the Pribiloff Islands bv the United States Government, when its control had been established and after the irregular and excessive killing which at first followed on the withdrawal of the Russian authorities, was substantially that which had gradually been introduced by the Russians, as the result of their prolonged experience, but with one very impor- annuaUy. The number was at this time suddenly and very largely increased, being in fact more than doubled, as is elsewhere pointed out in détail; and while the ^^^^S^^^^^t^M^^ii^^t ln S"n1Umb6r °f 8eal8- removed the new control into the region of experiment. That shows that the former control, the Eussian control, at least, resulted in a steady, and gradual increase in the number of seals. I continue to read, 660. Theoretically, and apart from this question of number and other matters inci dental to the actual working of the methods employed, these were exceedingly could have no competitors in the North Pacific. It was assumed that equal or prox imately equal numbers of males and females were born, that these were subject to equal losses by death or accident, and that, in consequence of the polygamous habits of the fur-seals, a large number of males of any given merchantable age might be slaughtered each year without seriously, or at all, interfering with the advantageous proportion of males remaining for breeding purposes. 661. The existence of the breeding rookeries as distinct from the hauling-grounds the breeding animals. The young seals thus "hauling" apart from the actual breed ing grounds were surrounded by natives and driven off to some convenient place, where males of suitable size were clubbed to death, and from which the rejected animals were allowed to return to the sea. The carcasses were skinned on the kill ing ground, the skins salted, and at a later date bundled in pairs and shipped, with such duplication or checking of count as might be supposed to afford guarantees to the agents of the Government and to the lessees that the interest of both were fairly 662. There can be no doubt that if the number permitted to be killed had been fixed at an amount so low as to allow for exceptional and unavoidable natural causes of interference with seal life, and if it had been rearranged each year in conformity with the ascertained conditions, killing might havejieen continued without general practical imperfection which clearly attached in execution to these theoretically appropriate methods, and in spite of the important change from natural conditions B S, PT XII 14 210 ORAL ARGUMENT OF JAMES C. CARTER, ESQ. matter of annual take had been moderate ; but when the number fixed for killing resulted, as has been shown, in an average slaughter of over 103,000 seals, it bore so large a proportion to the entire number of animals resorting to the islands as to lead whole, in'an increasing ratio, being due not only to the actual number of seals slaughtered, but also to the numbers lost in various ways incidental to the methods of coutrol and modus operandi on the islands, which loss, though formerly a matter of minor importance (because counted against a large annual surplus), in the face of the greatly decreased numbers, became a very serious addition to the total of diminution. In short, from a transcendental point of view, the methods proposed were appropriate and even perfect, but in practical execution, and as judged by the results of a series of years, they proved to be faulty injurious. The President. Will you be kind enough to remind us of the maximum annual number of the slaughter under the Eussian rule? Mr. Carter. At first it was somewhere in the neighborhood of 30,000. In the last years of their occupation, it was increased to somewhere from 50,000 to 70,000. Sir Charles Eussell. You will find, sir, a table giving the figures at page 132 of the British Commissioners report beginning in 1878 and going down to 1891. Mr. Phelps. That is mere assumption. Mr. Carter. We do not concede that to be a correct statement. Sir Charles Eussell. It purports to be a correct statement. Mr. Carter. It purports to be that; in fact it is not even approximately correct. The President. You do not know that the Eussian Government had the same rule as the American Government had of fixing a limitation for the annual taking? Mr. Carter. It did have the same rule. The President. The same rule all the time? Mr. Carter. After the system was established of limiting the drafts to the males. Senator Morgan. In 1847. Mr. Carter. The learned Arbitrators will perceive from these passages which I have read from the British report that there is a full and unqualified concession that the methods thus employed by the American Government on the islands are perfect in theory, and the only defect alleged in relation to them is in their practical execution; and the only particular in which they mention a fault in the execution of those methods is that they do not confine the draft to a sufficiently low limit. What that limit is they do not attempt to say; but the complaint they make of the execution in these methods is that too large a draft is drawn. My proposition is that there is a point at which it is perfectly safe to make a draft without any danger whatever to the herd. What that point may be is another question. We say 100,000; and shall be able to make that good. I have gone.thus far only upon facts which I conceive either to be admitted, or overwhelmingly established—established in such a manner that we may say they are beyond dispute. There are a good many other particulars in which there is very considerable conflict in theevidence. We have our own assertions in respect to those points upon which this conflict exists; and we shall endeavor to satisfy the Arbitrators that our view is correct; but at this point I choose to say that in my view they are not material upon this q uestion of property. I want to state a few of these points which I consider to be immaterial upon this question of property. I can argue this question of property without considering any of these disputed propositions. ORAL ARGUMENT OF JAMES C. CARTER, ESQ. 211 The following things are more or less disputed; and I do not base any part of my argument at present upon them. In the first place, it is said that not so large a proportion as 75 per cent of the pelagic catch is females. If it were not any where near that figure—if it was even 20 per cent, it would answer all the purposes which I desire. Second. It is not agreed that so great a number as one quarter or 25 per cent are wounded and are not recovered. Third. It is not agreed that females go out for food at great distances upon the sea. Indeed, I cannot say it is agreed upon the side of Great Britain that nursing females ever go out for food. Fourth. It is not agreed that coition takes place on the land. They assert that it takes place elsewhere. It is quite immaterial where it takes place. Fifth. It is asserted on the part of Great Britain that more or less commingling takes place between the Eussian and the Alaskan herds. There is no evidence that there is the slightest commingling; but as far as conjectures go, it is only to the effect that there may be a commingling of some few individuals—wholly unimportant. Sixth. It is not admitted on the part of Great Britain that the seals stay so long on the Pribilof Islands as the United States assert that they do. That again is of no importance, whether they stay there three or four or five months; if they stay there long enough to submit themselves to human power, so that man can take from them the annual increase without disturbing the stock, that answers all the purposes of my argument. Again, it is said that raids take place upon the islands and a point is made that a great many seals are lost, not by pelagic sealing, but by illegitimate raids upon the island by sealers which the United States does not protect against. It is immaterial whether there are or whether there are not for the purposes of my argument; but there are not, in our view, any of any consequence. And again, what I have already said, it is alleged that a draft of 100,000 young males is too large. We do not think it too large. But what if it is. We can find out the right number. Experience will tell us that; and of course self- interest, the strongest motive operating upon men, will insure our obedience to its dictates. Then again it is said that the lessees of these islands are careless and negligent in the methods of taking these seals and separating them and driving them for slaughter, the assertion being that the drives are too long, that they are made in a way that is oppressive to the seals, that a good many of the seals driven and which are not fit for capture but turned aside to go back again, are so much injured that they never get back and are practically lost to the herd. We conceive all those statements are unfounded; but even if they were true, they would not be material. They would simply show we had been guilty of negligence there. There is nobody who is under so strong a motive to practice diligence as we are, and it is presumable certainly, if there are any neglects, that they will be ascertained and corrected. ' [The Tribunal thereupon adjourned until Friday, April 21,1893, at 11:30 a.m.l THIRTEENTH DAY, APRIL 21st, 1893. The Tribunal met pursuant to adjournment. The President. Mr. Carter, will you proceed? Mr. Carter. Mr. President, the principal part of my argument yesterday was devoted to a review of the questions of fact connected with the nature and habits of the fur-seal, and the modes by which they were pursued and captured ; and that review of facts led to these conclusions as matters of fact: In the first place that the United States in consequence of their proprietorship of the Pribilof Islands had a control over the seals which enabled them to take the superfluous increase and supply it to the uses of the world ; that that opportunity it had always improved and still improves ; that no other nation, or the citizens of any other nation, have the power, or the ability, to do that thing; that the race of fur-seals could not maintain itself against unregulated and unrestricted attack; that it could be destroyed at a blow almost on the land, and it could also be destroyed, although not so rapidly, on the sea; that all pelagic pursuit of the animal was necessarily destructive in its tendency, and if carried to any considerable extent would work an entire commercial extermination of the race in a comparatively short period of time ; that it struck at once at the stock, and not at the increase; that its depredations were principally aimed at the females, and not at the superfluous males, and that no discrimination could be made. I am now to call attention to the inquiry how the question of property is affected by those facts in the light of the principles which I have endeavored to lay down respecting the institution of property and the grounds and reasons upon which it rests. I wish to apply those principles to the question of property in the fur-seals, and bring those principles to bear upon the conclusions of fact to which I yesterday arrived. Let me recall the main proposition early established in the course of my argument, and which I have endeavored to keep in view throughout, namely this: That the institution of property extends to all things which embrace these three conditions—first, that they are objects of human desire, j that is to say that they possess utility. Second, that they are exhaustible, that is to say the supply of them is limited, there not being enough for all. And, third, that they are capable of exclusive appropriation. All things of which those three conditions can be predicated are property and nothing which does not unite all those conditions can be regarded as property. Concerning the first two of these conditions, no debate whatever is necessary. The utility of the animal is admitted. That they areobjects of extreme human desire is conceded. That the supply is limited is also conceded. The race is exhaustible. There is not enough for all. The only question, therefore, as to whether they are property or not, must turn upon the determination of the point whether or not they are susceptible of exclusive appropriation. - That is the interesting point in reference to the question whether seals are property or not. Are they capable of exclusive appropriation by man? 212 ORAL ARGUMENT OF JAMES C. CARTER, ESQ. 213 In the first place, we must have a very clear perception of what is meant by the term " exclusive appropriation». What is it that must be done in order that a thing may be exclusively appropriated ? Is it necessary that the thing should be actually in manu, as it were—in the actual possession of the owner so that no person can take it from him without an exercise of force? Is that necessary, or is something short of that sufficient? In the early ages of society that seems to have been necessary; and possession and ownership were in those early ages identical, or rather they were confounded. There were no recognized rights of property, except in respect to such property as the owner was in the actual possession of. The skins upon the back of the hunter, the bow and arrow which he used in the chase, and the hut, or the cave, which he inhabited, were all in his actual possession, or under his immediate power. They could not be taken from h-im without an act of force. He was always present to defend them; and there were no other subjects of property. But we see that as the institution of property is developed his actual, immediate possession is no longer necessary. A man may own not only the half acre of ground which he tills, and which he can immediately defend, but he may own a hundred thousand acres by as perfect a title as he can own the half acre; and in reference to all personal property, the extent of the ownership which is permitted to him is unlimited. He may not actually possess it. He may not be present to defend it; and yet the law stamps his personality upon it so that it becomes his property, a part of him, an extension of his personality to that portion of the material world, so that when that thing which he thus owns is invaded his rights are touched, and his personality is touched. Here we see the difference between the two conceptions of possession and ownership, originally closely identified, inseparable from each other, as it were, confounded together; but with the progress of society and the development of the institution of property, separated, and the conception of ownership, as distinct from the necessity of possession, fully recognized. I have numerous authorities to support these observations, but I must avoid reading many of them because it takes so much time. But I may read one or two that are quite significant. I read from page 82 of the printed Argument of the United States an extract from the writings of a very distinguished English jurist and writer upon general jurisprudence—Mr. Sheldon Amos. He touches npon this subject: The fact, or institution, of ownership is such an indispensable condition to any material or social progress that, even throughout the period during which the attention of law is concentrated upon family and village ownership, the ownership on the part of individual persons, of those things which are needed for the sustenance of physical life, becomes increasingly recognized as a possibility or necessity. One of the most important steps out of savagery into civilization is marked by the fact that the security of tenure depends upon some further condition than the mere circumstance of possession. The use of the products of the earth, and still more, the manufacture of them into novel substances, consists, generally, of continuous processes extending over a length of time during which the watchful attention of the worker can only be intermittently fixed upon all the several points and stages. The methods of agriculture and grazing, as well as the simplest applications of the principle of division of labor, similarly presuppose the repeated absence of the farmer or mechanic from one part of his work, while he is bestowing undistracted toil upon another part ; or else entire absorption in one class of work, coupled with a steady reliance that another class of work, of equal importance to himself, is the object of corresponding exertion on the part of others. .,,,,. . . . + In all these cases the mere fact of physical holding or possession, in the narrowest sense is no tebt whatever of the interests or claims of persons in the things by which they are surrounded. 214 ORAL ARGUMENT OF JAMES C. CARTER, ESQ. The extract from a French writer, Toullier, which follows ii i a note is so long that I will not read it; but it is to the same effect o * marking the-distinction between possession and otcnership, and sho ving that ownership is a development in the course of civilization of tl îe institu- tion of property, and that ownership at present no longer dep ends upon actual possession at all ; it depends upon rights which the If the law chooses to stamp the personality of the owner upo a any par- ticular piece of property, however large, or however extended , whether it is in his possession, or out of his possession, then that ob ject upon which the law thus stamps the quality of ownership, is the subject of exclusive appropriation in the law. It is the law that does this. Originally property depen upon individual effort and the power of individual defence. Now, in the development of civilization-, it depends upon law ; and wh atever the law regards as the subject of exclusive appropriation is to be regarded as property providt tioned. The inqui extent will the law i are not 'possessed, o a considerable pai what extent will t defend it? That ii The best way to and we may take, already said, land : He may own a pro upon his acquisiti Why is it? As 11 not depend upon i and great social n< why the law allows he cannot by any nts th •the equ ich <■ what wliiy of ownership upon things s actually possessed, by any ov :me. Under what circumstar ign to a man a title to such isting question. îat is to see what the law acf it instance, the case of land. *pr Th id this we y which it pla< the ids should be incre ing propulation of mankind. No land will be cultivated unless y award to the individual the product of his labor in cultivating it. T motives of self interest are appealed to, and men are told: "You m have, and we will defend your title to, as much land as you can acquir That is the only way in which the general cultivation of the earth cot ever be brought about. That is the only way in which it is riiade produce the enormous increase which it now produces ; and althou large tracts of land are not capable of direct actual possession by t owner, yet in view of the prodigious advantages which are acquired stamping the character of ownership upon them, the law concedes tl ownership, assigns the title to an individual, and protects and defen him in it. The same is the case in reference to all movable property, all produi of manufacture and of labor—agricultural implements and tools, goc of all descriptions. A man may own magazines frill of them which cannot by any possibility, bv his individual arm, protect and defei Why is he permitted to do this? Because the world cannot otherw have them They are the price which the world must necessarily p for these possessions, or otherwise it must do without 111 em ; and it cam do without them and support the population which civilization brin upon the earth. irth Ma ORAL ARGUMENT OF JAMES C. CARTER, ESQ. 215 Take the case of useful domestic animals; the same thing is true. 3 many as he can acquire and brei roam over almost boundless areas, over . erty of the public, and still his title is complete'and perfect." ~In~the barbaric ages a man could own but few, and when the number increased they became the property of the tribe; but that condition of things would not support the demands of civilization. We must appeal to the cupidity of men and arouse them to labor and to efforts for the purpose of increasing the stock of domestic animals; and therefore a title is awarded to as many as a man can bring into existence. The great prairies and wastes of the interior of the United States, and of large regions in South America are fed upon by countless herds, and yet the title of the owner to every one which he can identify is distinct and absolute. That is for the same reason. You could not have them unless you gave that ownership. And society could not enjoy the benefit unless it paid this price. You will see that in all these cases the owner is enabled to preserve the principal thing without destroying it and yet produce a great increase for the use of mankind. The cultivator of land, the title to which is assigned to him, does not waste it. He does not destroy it. He does not convert it into a desolation, he does not extract its richness from it and then leave it incapable of further product. He cul- ' tivates it. He manures it. He not only extracts a great product from it, but he increases its ability for further production ; and so also in regard to the races of animals. The stock is not invaded so long as you allow individuals the ownership of whatever they are able to produce. They preserve the stock everywhere, and they increase overwhelmingly the product which can be afforded for the uses of mankind. But step for an instant to the cases in which this result cannot be accomplished; and we see that society at once refuses to allow individual property beyond actual, literal, possession. It refuses to consider the things as the subjects of exclusive appropriation. Take the birds of the air, the fishes of the sea.—wild animals generally. A man cannot by any exercise of his art or industry so deal with them as to furnish their increase for the use of mankind without destroying the stock. He cannot do it. He can only take them indiscriminately. He can practice no husbandry in relation to them; and if they maintain their existence under his attacks it is not because of any effort, art, or labor on his part, but because nature has made such an enormous provision that they are practically inexhaustible, or because nature has furnished them with such facilities for escape that man cannot capture any considerable number of them. Consequently in reference to all of these wild animals where the award of ownership to an individual man would produce no great social blessing, in other words, where there are no so.ial reasons for awarding exclusive possession, an exclusive possession is not awarded, and, the thing is regarded as incapable of exclusive appropriation. But, even in the case of wild animals, although the institution of property in respect to them would not accomplish any social good, would not prevent their extermination, still society resorts to the best means in its power to prevent their destruction, and it assumes a sort of custody over them by the establishment of what are called " game laws," more or less effective for preserving the wild races of animals, but still ineffective where the demand for them is so great and their facilities for escape so little that the ravages of man become destructive. 216 ORAL ARGUMENT OF JAMES C. CARTER, ESQ. There are some animals which lie near the boundary line betwe wild and tame, and it is very interesting to see how the law deali these, and how perfectly in accordance with the principle I am er of ing to sustain. Take the case of bees ; they are perfectly wild, ing can be wilder. Nevertheless man can induce them to retur particular spot; and in consequence of that can take from the beef product, and can therefore increase the production of honey,—a useful article—to an almost indefinite extent. If men were driv their supply of honey to find the hives of wild bees in the forest, demand could never be supplied, and the bees themselves be taken away; but if you award a property to man in such b may take up their abode in the hives prepared for them; permit 1 defend his title to them, and to every swarm that, at the appro season, leaves in order to create a new habitation for itself—if yoi him a title to such bees, enable him to practice a husbandry, alio is absolutely incapable of appropriation,—if the law will step in aid of human infirmity and grant these rights—then you can ha\ product of honey multiplied to an indefinite extent. Society d It does it for that purpose. Our municipal law which I have here The same is true of the wild geese and swans. The breeding of sents the sam e prii iciples. Ifwt wer birds o pursu => the \ 1 sue purpo se, the s lpply procurable wc uld by art and ind ustry can so far rec ticula place, t aketh e annual incre then,j vithout akin g from others, \ regr is app icabletc then ses of man. In ot is fun ished ut on wl lich the law v, 'ill 1 these animals shall ie deemed exc usiv And j et for tl e gres ter part of tl e tii water ï not bel m gin g to their owne ranc froinc The thers, si ould deer ae attempt to upon which I capt hav< Pigeo as the sa me. The reindeer >f Lf animal naturally wild, but in which the law assigns to man a property interest and deems them exclusive property although they wander over vast regions, and, instead of following their owners, I believe the owners follow them. Now we see the principle which lies at the foundation of the municipal law which I alluded to in the early part of my argument, the municipal law of all civilized nations concurring upon these points, and declaring in regard to every one of these animals commonly designated as wild, that if man can so deal with them as to take their annual increase and preserve the stock, then, notwithstanding they may fly out of his possession at will, still, the law will regard them as subjects of exclusive appropriation. But the law does not stop there. It is interesting to observe that it will go to all extremities, wherever there is a social advantage to be gained, and will allow a thing to be the subject of property and to be regarded as the subject of exclusive appropriation, although it is absolutely intangible. Take patents for useful inventions, products of the mind, and, originally, not the subjects of property at all. As society advances, as civilization develops, as the need of these products of the ORAL ARGUMENT OF JAMES C. CARTER, ESQ. 217 mind increases, society perceives that it cannot have them unless it encourages the production of them ; and there is no other way of encouraging the production except by awarding to the meritorious authors of them all the benefits of a property interest; and it does so. We have had for a very long series of years a property awarded in respect to inventions in the useful arts. The principle of a monopoly, odious in general, is applied here; and society does not, or rather will not stop there. That extension of the rights of property to inventions in the useful afts did not go so far as to give a right of property in all the products of the mind. Literary works, the contents of books of every description, were still not the subject of property. They could be appropriated the world over, by whomsoever pleased to appropriate them, and without giving any ground of complaint to the author; but all of us understand how gradually and by degrees that has been considered to be a wrong and not in accordance with the principles of natural law, not in accordance with the principles of justice; and so, after a while, the rights of authors in their intellectual products were secured to them by copyright laws which are enacted in every civilized state; and now there is a tendency and disposition and determination, let me say, to carry it still further. An international copyright, securing the benefits of ownership in the products of the mind all over the world is impatiently awaited and will probably, ere long, be enacted. Such, then, Mr. President, is the development of the institution of property. It is the development of the conception of ownership as distinguished from actual possession. The law will award this right of property, and will determine that things incapable of absolute and permanent possession may yet be exclusively appropriated wherever there is a social good which may thus be accomplished. It is thus that human society, proceeding step by step, and from age to age, rears its majestic arrangements, making provision for the satisfaction of every want of man, and every aspiration towards civilization, and shaping and conforming all its methods in accordance with the dictates of natural law. What then is the general conclusion in respect to animals which I conceive to be established by this reasoning? It is this : That wherever an animal, although commonly designated as wild, voluntarily subjects itself to human power to such an extent as to enable particular men, or a particular nation, by the exercise of art, industry and self-denial to deal with that animal so as to take its annual increase and at the same time to preserve the stock, and any taking of it by others would tend to destroy the race it becomes the subject of property. That proposition seems to me to be so reasonable upon the mere statement that it ought to be allowed without argument; but I have endeavored to begin at the beginning, and to show that every ground and every rea,- son which support s the award of property any where and to any extent, applies to that case, and makes the animal the subject of property. It only remains to apply that conclusion to the particular animal about which our controversy is concerned, namely, seals. I need not, of course, recapitulate again the facts. They are all fresh in your recollection. It is enough to say that they do submit themselves voluntarily to the power of man to such an extent as to enable the owners of the Pribylof Islands, to whose power they thus submit themselves, to take by the exercise of art, industry, and self-denial, the superfluous annual increase without destroying the stock; and that is the way and the only way m which the human face under civilized conditions can continue to enjoy the benefits of that blessing of Providence. Unless an award of prop- 218 ORAL ARGUMENT OF JAMES C. CARTER, ESQ. erty is made to the United States in that animal, or what is equivalent to it, the fate of the animal is already sealed. In looking at the meritorious features which the ownersof the Pribylof Islands exhibit, and which constitute their title to this award of property, it may at first sight appear that they do not have the same sort of merit that thecultivator of the land has to the bushel of grain that he produces, or that the manufacturer of an agricultural implement has, which is in every part of it the fruit of his labor; but when you look closely into the case you will see that the merit of the owners of those islands is precisely of the same character and goes to the same extent; and that the present existence of that herd is just as much due to a meritorious, voluntary, exercise of effort on the part of the owners of those islands as any product of mechanical industry is due to the workman who fashions it. This species of property it will be remembered is called by Blackstone property per industriam and very properly called so. Now, what industry is exhibited by the owners of these islands to entitle them to say that the seals are their property per industriam? those islands, feed them, keep them there to protect these animals and their breeding places against all enemies, and maintain at prodigious expense a marine guard along the coast for the same purpose. Unless that were done, marauders would swoop down upon those islands and destroy them at once. In the next place they do not kill the seals indiscriminately. They practice abstinence, self-denial. They might kiU everv animal as it arrives and put its skin on the market at once and get the full benefit of it. That is the temptation always to man, to take the utmost that he can, and to take it at once for present en joy- j Pribylof Islands practice a self-denial. . They forbid themselves that enjoyment obtaining a future and a larger good. dal and confine their drafts to the super- fluous'males. I wish to dwell a moment upon the merits of that particular feature of self-denial. I have given in the printed argument a multitude of citations which illustrate the merit of this quality of abstinence as a foundation for property. All political economists, for instance, in treating of the question of interest,, and the moral right which a man has to exact interest for the use of money, defend it upon this ground. Capital is lent and interest is taken upon it. What is capital? It is the fruit of 3 saving. A man who has produced something, instead of spending it in luxuries, saves it; no man can save for himself alone. He saves for the whole world as well. He saves something which will support productive industry, and the whole productive industry of the world depends upon the savings of the world. If it was not for the practice f of this abstinence which leads to the accumulation of wealth which productive industry would be impossible. Mr. Senior, in his Political Economy—he is an author of recognized authority—says (I read on page 93 of our printed Argument from the note) : But although human labour and the agency of nature, independently of that of mei t. B ut the owner s of The and they doit enten n the' hop The ypra eticea rtand self- ORAL ARGUMENT OF JAMES C. CARTER, ESQ. 219 To the third principle or instrument of production, without which the two others are inefficient we shall give the name of abstinence, a term by which we express the conduct of a person who either abstains from the unproductive use of what he can command, or designedly prefers theproduction of remote to that of immediate results. After defining capital as "an article of wealth, the result of human exertion employed in the production or distribution of wealth", he goes on to say: It is evident that capital thus defined is not a simple productive instrument. It is in most cases the result of all the three productive instruments combined. Some natural agent must have afforded the material; some delay of enjoyment must in general have reserved it from unproductive use and some labor must in general have been employed to prepare and preserve it. By the word abstinence we wish to express that agent, distinct from labour and the agency of nature, the concurrence of which is necessary to the existence of capital and which stands in the same relation to profit as labour does to wages. Wherever you can find among men a disposition to forego immediate enjoyment for the purpose of accomplishing a future good you find a prime element of civilization, and it is that which society encourages, and worthily encourages. I have no time to read.further from these citations upon the merit of abstinence; but I especially commend them to the attention of the learned Arbitrators. That is what is exhibited upon these Pribylof Islands. The United States, or its lessees, do not disturb these animals as they come. They invite them to come. They devote the islands entirely to their service. They cherish them while they are there. They protect them against all enemies. They carefully encourage, so far as they can, all the offices of reproduction, and, at the appropriate time, they select from the superfluous males, that cannot do any good to the herd and may, under certain circumstances, do injury to it, the entire annual increase of the animal and apply it to the purposes of mankind; and, without the exercise of those qualities, as is perfectly plain, that herd would have been swept from existence half a century ago, and the Pribylof Islands would have been in the same condition in respect to seals as the Falkland Islands, or the Masafuera Islands, and other localities, once the seats of mighty populations of these animals. It is upon these considerations that I base the position of the United States, that it has a right of property in those seals. There is no principle upon which the law of property rests which does not defend it, and there is no rule of the municipal law itself, so far as that law speaks, which does not support it. They defend it completely and absolutely; and when we step beyond the boundaries of municipal law to the moral law, the law of nature, that law which is the foundation of international law, it also speaks with a concurring voice; and in whatever direction we prosecute our inquiries we find uniform support for the same doctrine. All the rules and the whole spirit of municipal and international law concur and contribute to this conclusion that the property of the United States in that seal herd is complete and absolute, not only while it is upon the islands, but wherever it wanders, and is protected by the safeguards which property, carries with it where- ever it has a right to go. If there were anything which might be urged against this conclusion, we might be disposed to hesitate. But what is there that can be urged against it. What right is there that can be set up against it? If there were anybody who could set up a right against this conclusion, a different case would be made. If any man or set of men, or any nation, could say: " This conclusion of yours, plausible enough in itself, defensible enough in itself, nevertheless comes into collision with a right of 220 ORAL ARGUMENT OF JAMES C. CARTER, ESQ. ours, defensible upon like grounds, that is, moral grounds." If that could be set up, it would raise a doubt. But what is there? What right is there in these pelagic sealers—for they are all we have to deal •vrith—to contend against this conclusion? As near as I can ascertain it is asserted to be a right to pursue the animal because it is a free swimming animal, in the first place, and because, in the next place, there is no power on the sea to prevent it. That does not suggest» principle of right at all. How can it be said that there is a right to pursue an animal because he swims freely in the sea? What ground is that upon which to attempt to establish a right, I should like to know. Why should one be permitted to destroy a useful race of animals, a blessing of mankind, because they happen to move freely in the sea? I cannot conceive that that suggests even the shadow of a right. The other ground asserted as a defense for pelagic sealing, namely, that however perfect the property right of the United States may be, they have no power to interfere with pelagic sealers on the high seas, is wholly untenable. It seems to amount to the solecism that there may be a right to do a wrong upon the sea ! There is no more right to do a wrong upon the sea than there is upon the land. What is this right to carry on pelagic sealing? What is this right to take these free swimming animals in the sea, mostly females heavy with young, or suckling their pups? What kind of a right is that? We have seen that it necessarily involves the destruction of the animal. How can you connect the notion of a right with that? It is a right to sweep from the face of the earth a useful race of animals, and to deprive mankind of the benefit they afford. What sort of an act is that, to destroy a useful race of animals ? It is a crime; is it not? How else can it by any possibility be correctly described? It is a crime against nature. It is a defiance of natural law; and if it were committed within the boundaries of any civilized and Christian state, would be punished as a crime by municipal law. It has no characteristic, and no quality, except those which mark a crime. What good does it accomplish? Does it give to mankind a single seal which cannot be taken in a cheaper, and a better way? I have already shown that the entire product of this animal can be taken upon the islands by a less expensive method, and in a way such as to preserve the quality of the skins in a better manner. It does no good in any particular to mankind. It is possible that seals may be afforded at a hW price for a short time by the practice of pelagic sealing. Of course if you can put upon the market, in addition to what is taken upon the islands, another hundred thousand seals taken in the water, you can temporarily reduce the price; and, although the method of taking them is more expensive, the world may get them for a while at a less cost; but you are taking the stock, are you not? You are not taking the increase. The question, and the only question, is how the increase of the animal can be best taken for the purposes of mankind. We have no right to anything else. Anything else is destruction. Therefore these sealers are doing no good to mankind. They are doing no good to anybody. They are destroying the occupations of the large number of manufacturers, of whom there are thousands, residing in Great Britain and whose occupation consists in manufacturing the skins for market. Their occupation is taken away by it. They are doing injury in every direction. They are doing no good to anyone, not even themselves, for their own occupation will be gone in a few years. Nature has so ordered it that any pursuit or occupation like this which consists simply in destroying one of the blessings of Providence, does no good, and ORAL ARGUMENT OF JAMES C. CARTER, ESQ. 221 nothing but evil, in any direction. We say we, the United States, can take the entire product of this animal, furnishing it to the commerce of the world in the least expensive and in the best manner. Why do you not permit us to do it? Why break up this employment? There seems to be no reason for it. Then again, as I have already said in an earlier part of my argument, one of the limitations to which property is subject, and especially property owned by nations, is a trust for the benefit of mankind. Those who have the custody of it and the management of it have a duty in respect to it. Indeed the whole subject of rights should be regarded as one dependent upon duties, rights springing out of duties, rather than duties out of rights. It is the duty of the United States to cultivate that bounty of nature, the possession of which is thus assigned to them, and to make it productive for the purposes of the world. That is their duty. Why should they not be permitted to perform it? Can a reason be assigned why they shall not be permitted to perform that duty. They can not perform that duty, if the animal is destroyed. Has the United States even the right to destroy that seal? It has the power. Has it the right ? Has it the right to go upon those islands and club every seal to death and thus deprive the world of the benefit of them? Certainly not. Have these pelagic sealers any better right to do that than the United States have? I have no doubt that if the United States should wilfully say: "We will destroy that property. Although having the ability to preserve it, we will destroy it"—and it were the case of a piece of property the use of which was absolutely necessary to mankind—if the seal contained some quality which was highly medicinal, a specific against certain diseases which afflict the human race, and the possession of which was necessary in order to enable the human race to withstand such disease—the world would have a right to interfere, take possession of those islands, and discharge those duties which the United States were betraying. What duty have th ese pelagic sealers in respect to these seals ? They have none because they cannot do anything but mischief with them. The United States has a duty. It is to cultivate that advantage which in the great partition among nations of the blessings of the earth has fallen to their lot. It is the duty of the United States to preserve it, to cultivate it and to improve it. Shall they not have the power to do it? Is it not the duty of other nations and other men to abstain from interference? It seems to me that nothing can be plainer than that conclusion. There is no right, therefore, that can be set up against the claim of the United States. Well, if there were something less than a right, if there were some inconvenience to which mankind would be subjected, if pelagic sealing were prohibited and an exclusive property interest awarded to the United States, we might hesitate; but there is not. There is no inconvenience even. There is indeed a suggestion on the part of Great Britain of an inconvenience in this particular. It is said that it is building up a monopoly for the United States, enabling them to gain a monopoly in the sealskins and thereby acquire a great profit. Well, I admit that it would be a monopoly. There is always a monopoly when one particular nation, or particular men, own an entire source of supply. It is not an absolute monopoly, for there is a certain competition on the part of Bussia and Japan; but it is in the nature of a monopoly of course. Where there is an object in nature of which the supply is limited, if the source lies wholly within the power of some particular nation it must necessarily have a monopoly. That is una-- voidable. But it is a monopoly to the United States, of course, only 222 ORAL ARGUMENT OF JAMES C. CARTER, ESQ. because the United States happens to have those particular islands. The possession of them, the sovereignty over them must be awarded to some nation, and therefore a monopoly is in a certain sense necessary. But is it an injurious monopolv, is it an objectionable monopoly? Not at all. Senator Morgan. The islands were bought chiefly on that account, were they not? Mr. Carter. I do not know that they were. I hardly think they were. Senator Morgan. What else was there? Mr. Carter. There was not much else except territory. It is sometimes said that they were bought on that account, and there are some evidences that I have read tendin g to show that that was one of the main considerations; but whether that was the real motive or not I cannot say. I do not resort to that as furnishing the slightest strength to my argument. It is just as powerful without it. I am speaking as to whether it is a monopoly or not. When does a monopoly became injuri- were enabled to exact very high prices and to make a great pr That is the only way in which a monopoly of a natural production can be made use of unfairly and disadvantageous^ to mankind, and be made the means of exacting an extortionate price. You must artificially limit the supply. But not only has that never been done here, but it never can be done. I say it never can be done, because no profit can ever be found in it. There is a demand for every seal skin that can be produced, and a profitable demand; and the whole supply is thrown upon the market. There is not one withheld. The world is not compelled to take a single seal; and if there is a large price paid for the seals under those circumstances, that price is simply" the result of competition among those who want them. H anybody is required to pay a large price for them, it is because somebody else is ready to pay a large price. They are all contributed to the commerce of the world, as I have already said, just as if they were put up at auction. The world bids for them and they go where the highest price can be obtained for them. If the lessees of the Islands under those circumstances make, as they probably do make, a large profit, is there anything unfair or unjust about it? Taking into account what is paid to the United States and the profits of the lessees besides, all of which must be fairly regarded as the profits of the industry, there is of course a very large profit upon every skin that is sold; that is to say, the price of the skins pend u iicular roduct c kindw een the ion the relation between the supply and the ihere is a monopoly in a particular region of the article, but the supply is yet so abundant that f that particular region were thrown upon the t would be extremely low, and pay but a small ould get it at a very low rate. That is supposed case with the Spice Islands, belonging to Hoi Id get t d make do? Tl a markets of the world, they would be glutted, hem at a very trifling sum and the producers of no profit at all. What did the proprietors of the ley did not simply withhold from the market, for f the cr op, and the world needing more than half, they ORAL ARGUMENT OF JAMES C. CARTER, ESQ. 223 may pay two or three times over for all the labor and all the expense which the gathering of the product costs. There is a very large profit. That goes to the United States, and. to these lessees is distributed among them. It is exacted, of course, from the citizens of the United States the same as it is from the rest of the world ; but it goes to the United States and these lessees. What objection is there to that? Is that anything more than a fair remuneration from this bounty of Providence which is placed in their custody and in their control, and for their labor, their efforts, and their exertions in preserving it and furnishing it for the use of mankind? Of course not. It is perfectly fair. It may be the source of a profit. So there are a thousand things in commerce which are the sources of profit to particular nations which have natural advantages over other nations in producing them. The advantage is not different in its nature in this case. In short it comes to this : That it is only by the exercise of the care, industry and self-denial on the part of the Government of the United States that the world can have this blessing. The whole of it is thrown upon the world and the price is determined solely by the buyers and by what they see fit to give. If the owners of the islands should see fit to withhold from the market at any particular time any considerable number of these skins, what would they do with them? How would they gain by that procedure at all? The next year, or the next—some time after that—they would be obliged to throw the part withheld upon the market and that would depress the market so that the loss they would incur in that way would far exceed any gain that there was any promise of. No, there never can be any temptation for keeping any part of the product, except under very unusual circumstances, such as a decline in the demand owing to some special circumstance, which might induce the proprietors of the islands to say: "We tLink we can do better with the skins next year than this year." Butin general they can reap no unfair advantage from the possession of this natural monopoly. There is another suggestion I observe in the Case and Argument on the part of Great Britain. These meritorious grounds upon which the title of the United States depends are, of course, perceived by the other side, and they seek to find something of a similar nature upon which to support their alleged right. What have they? I have discovered two things which they put forward or suggest. They recognize the natural advantage which the owners of the Islands have, owing to the seals submitting themselves fully to the power of man there and the thing they put against that is this: They say this sealhas two habitats; one on these islands, and the other in the sea along the coast of British Columbia. That is they seek to attach the seals to British territory, Canadian territory, and say that they have a superior right also grounded.upon favorable conditions of locality, etc. : That does not amount to enough to talk about. It is not an advantage which enables them to deal with the seals in any different way. They still cannot take them in any other way than by this indiscriminate pursuit which sacrifices males and females alike—or females to a larger extent than males. It does not enable them to practice a husbandry in respect to the animal, and to give to mankind the benefit of the increase without destroying the stock; and so it should be dismissed, even if it were true in fact. But it is not true in fact. It is only a conjecture. The seal has no winter habitat. He is on the move all the time; if he has a habitat along the coast of British Columbia, he has the same habitat along the coast of California and Oregon, which is 224 ORAL ARGUMENT OF JAMES C. CARTER, ESQ. territory of the United States, and along a vast extent of this soutnern part of Alaskan territory and of the Aleutian Chain. A winter habitat along the coast of British Columbia, if it were anything but an imagination, is too slight a consideration to form any figure in this discussion. What is the other ground of merit ? That is rather more singular, as it seems to me. They say the seals consume along the shore of British Columbia a great many fish in the sea. The suggestion is, I suppose, that if the seals did not consume those fish, the inhabitants of those shores would catch them and that, therefore, the seals take away those fish from them! In other words the intimation is : "We feed these seals with our fish ! " All I have to say in reply to that is that the fish which they consume, these squids, and crustaceans and cods, and what not, are not the property of Canada, or of Great Britain. They are the property of mankind. Mankind feeds these seals. It is from mankind that they get their sustenance. They take it out of the illimitable stores of the sea. It is not the property of any nation, but of mankind. I grant you that the circumstance that mankind feeds these seals with its fish is a circumstance tending to give mankind an interest in the product. The seals in a beneficial sense belong to mankind. That is our position ; and we give them to mankind ; and mankind works out its true and beneficial title only by employing the agency and the instrumentality of the United States. That is the only way whereby mankind can reach, or ought to reach them. The world says to the United States : "You have, by nature, this extraordinary advantage of locality, and possession. You, and you alone, have the ability to take the whole annual increase of this animal and furnish it to the world if you will only cultivate it. It is your duty to improve your natural advantages by taking the annual increase, and when you do that, we get the benefit of these seals, and we get it in the only way which it can be afforded to us. No other nation can touch the animal except on the high seas, and to take it there is to destroy it." Therefore, the argument that the fish which these seals consume are fish belonging to British Columbia and that, therefore, the inhabitants of that region have an equity of a superior character in the seal entirely disappears. There is neither fact nor reason to support it. In reaching these conclusions as to property in seals, it will be observed that I rely on no disputed facts ; upon no facts which are in serious dispute. I have said so at least. My assertion in that particular may not be accepted; but I feel quite sure that when the members of this Tribunal come to consider the facts, they will agree that all the facts I rely upon, are placed beyond dispute. They are conceded, or placed beyond dispute by the evidence; but I could really make the whole argument upon a much narrower ground of fact and keep myself within what is absolutely indisputable. Here is the report of the joint Commissioners; it will be found at page 309 of the Case of the United States, and contains the following: 5. We are in thorough agreement that for industrial as well as for other obvious reasons it is incumbent upon all nations, and particularly upon those having direct commercial interests in fur-seals, to provide for their proper protection and preservation. 6. Our joint and several investigations have led us to oertain conclusions, in the first place, in regard to the facts of seal life, including both the existing conditions and their causes; and in the second place, in regard to such remedios as may be necessary to secure the fur-seal against depletion or commercial extermination. 7. We find that since the Alaska purchase a marked diminution in the number of seals on and habitually resorting to the Prybilof Islands has taken place; that it has been cumulative in effect, and that it is the result of excessive killing by man. ORAL ARGUMENT OF JAMES C. CARTER, ESQ. 225 The President. Is that in accordance with what you have said? I think you stated that diminution has been taking place since 1884 or at least since the Alaska purchase, which was in 1867. Mr. Carter. This report does not state any diminution at successive periods; nor does it state the beginning of the diminution. The President. Your statement I believe is that the draft of one hundred thousand seals a year would not affect the condition of the herd ? Mr. Carter. That is my statement; that is if pelagic sealing were not carried on. The President. That draft was observed for several years after the Alaska purchase. Mr. Carter. Yes. It will be observed that there was a prodigious taking just prior to the establishment of regulations by the United States which diminished the numbers of the herd a great deal. That diminution began then in 1869; but unless that had been increased by pelagic sealing I have no doubt that the draft of one hundred thousand à year could be maintained. But I take the statement of these Commissioners that " since the Alaska purchase a marked diminution in the number of seals on and habitually resorting to the Pribylof Islands has taken place; that it has been cumulative in its effect and that it is the result of excessive killing by man." I take that finding to mean this : That this herd of seals is at the present time in the course of extermination, and that that extermination is due to killing by the hand of man. I take those two facts and that is all that is necessary for the purpose of establishing a full foundation for the property argument. It follows from that fact that fur-seals must perish unless their killing is regulated; and it follows from that that all unregulated killing is wrong. It follows, I say, from that that the extermination of the seals which is in progress is due to unregulated killing. I do not say now where unregulated. It follows that all unregulated killing is wrong, because it leads to destruction. We know that there is a mode of regulated killing by which the race can be preserved, and that is by confining it to the Prybilof Islands; and we know that sealing upon the high seas cannot be regulated. All unregulated sealing is wrong. Sealing upon the high seas is, and must be, unregulated, because no discrimination is possible between the stock and the increase; and, more than that, the attack of the pelagic sealers is principally upon the stock, and not upon the increase, for wherever a single female is killed the stock is struck directly. Therefore, standing upon the mere finding of this joint report there is fact enough upon which all the conclusions of my argument may be sustained. There are some technical objections that are urged against the award of property. It is said, you cannot identify these seals; that the seals found upon the Pribilof Islands may perhaps come from the Commander Islands. As I have already said, that is founded upon conjecture. In dealing with a large subject like this the mere possible circumstance that there might be a few individuals intermingling is of no consequence at all. No'judicial Tribunal would take notice of it at all. The great fact is obvious, and I think admitted, that the great bulk of the herd which goes on the Northwest Coast of. America and between the Pribilof Islands and the state of California has its breeding place at the Pribilof Islands; and every individual of it at some time or other, visits those islands and submits itself to the power of man there. B S, PT XII 15 226 ORAL ARGUMENT OF JAMES C. CARTER, ESQ. There is another thing that is suggested and that is if a property right should be allowed in these animals to the United States it might interfere with, and prevent, the enjoyment by the Indians along the coast of an immemorial right and privilege of theirs to hunt seals for their own purposes. That right of the Indians, such as it is, deserves very respectful consideration. It stands upon something in the nature of moral grounds, I admit. They have something of a better claim than these pelagic sealers. There is some reason for saying that you should ; not deprive these Indians who have lived along that coast always and who have from time immemorial supported themselves to a greater or less extent by going out in their canoes in the sea and spearing these seals, of that mode of sustaining existence. It might subject them to starvation. You must support them at least if you do deprive them of it. The force of these considerations I have no disposition to disguise. But what is the nature of that case. That is a pursuit of the animals, not for the purpose of commerce, but by barbarians—for they are such—for their own existence. It is a pursuit which of itself makes an insignificant attack upon the herd. It is a pursuit which is properly classified among the natural sources of danger to the herd just as much as the killer whale; and I have at an early point ip my argument so considered it. It is insignificant in amount. It does not affect the size of the herd; it does not affect any of the conditions which 1 have considered as necessary for the preservation of the existence of the herd. It is, therefore, a pursuit which might be tolerated without danger to the herd. Therefore, it is quite possible that the United States should have a property interest in the seals, subject, however, to the right of the Indians to pursue them in the manner in which they were accustomed to do. in former times; that is to say, for their own purposes, and in canoes from the shore. That is a barbaric pursuit. That is an instance with which the Government of the United States is quite familiar, of the survival of barbaric conditions down into civilized life. It is a condition with which the Government of Great Britain is also perfectly familiar, for it "has to deal with it in many quarters of the globe. So long as the Indians exist, and until they are provided with other means of support they should be allowed to continue their natural pursuits so far as possible; and it cannot be supposed that the United States would ever undertake to interfere with these Indians so as to deprive them of. their rights. But there is one limitation to that. This is a survival of barbaric conditions. It is a barbaric pursuit, and being a barbaric pursuit, does not endanger the existence of the herd, because it is not carried to sufficient extent. There is not a large population dependent upon it; but it will not do, undercover of that pursuit, to allow civilization to invade in that manner the herds of fur-seal. It will not do to employ these Indians and man large vessels with them upon the high seas there to attack these seals for the purpose of furnishing them to commerce. That is not a dealing of barbaric nations with seals. That is a dealing of civilized nations with the seals. Barbaric nations have rights which civilized nations have not, in certain particulars. As I have said many times in the course of my argument, the attack by barbarians upon the fruits of the earth is limited, confined, and generally not destructive because it is small; but when civilization makes its attack upon them, its methods are perfectly destructive, unless those appliances are made use of which civilization supplies, and by which that destruction may be avoided. This is the precise function which ORAL ARGUMENT OF JAMES C. CARTER, ESQ. 227 the institution of property performs. Therefore there is no difficulty in awarding to the United States a right of property subject to the right of the Indians to capture in the manner in which they were formerly accustomed to do before the use of vessels for pelagic sealing, but not the right to go out in pelagic sealing vessels. The President. Do you not think it is very difficult to draw a legal line of limitation between what an Indian is allowed to do for himself, and what he may be allowed or permitted to do in the service of an European or civilized man? Mr. Carter. There are always practical difficulties connected with the dealings with barbaric tribes. There are always greater or less difficulties; but there are no insuperable difficulties connected with it. The President. Do you find there is a substantial legal difference between the two cases. Mr. Carter. There is a substantial difference. The President. Between the case of an Indian fishing on his own account and an Indian fishing on the account of a civilized man? Mr. Carter. I think there is a very substantial one. The President. A substantial legal difference? Mr. Carter. Yes; I think so. When I speak of legal, I mean moral or international grounds. There is no sharp distinction. The President. Moral and international are two différent fields of discussion, I think, though they may often join. Mr. Carter. Not so different as may be supposed. The President. They are not contrary. Mr. Carter. Not so different as may be supposed. International law rests upon natural law, and natural law is all moral. The law of nature is all moral; and it is a great part of international law. If the dictates of the law of nature are not repelled by any actual usage of men, then they must be allowed to have their effect, and the dictates of the law of nature are the dictates of international law. To say that they are moral does not distinguish them at all from such as are legal. We have sharp distinctions, of course, in municipal law between what is moral and what is legal, but in international law whatever relates to actual human concerns, the property of nations, and actual affairs, whatever is dictated in respect to these by the law of nature, is not only the moral law, but the legal law also. There is the broadest sort of difference between the two cases. The Indian goes out and attacks and kills the seals for the purpose of sustaining himself, making a skin which he is going to wear, and getting food to eat. Lord Hannen. Is it to be confined to merely their sustenance? Were they not the only suppliers of the skins in the first instance? They bartered the skins, for there was no other source until the Pri- 1 bylof Islands were discovered. That trading so frequently referred to ' was a trading in these, amongst other skins. Mr. Carter. That is true; they were original traders. They were made use of for the purposes of commerce. But that was commerce. Lord Hannen. Yes; carried on by the natives. Mr. Carter. But it was commerce. They were supplying the commerce of the world. They were not furnishing themselves with clothing. They were not furnishing themselves with seals for food. The President. That you consider was allowed at the time, and would not be allowed now. Mr. Carter. Before the Bussians discovered these regions, they were inhabited by Indians, and those Indians did pursue the seals in 228 ORAL ARGUMENT OF JAMES C. CARTER, ESQ. that way. That is pursuit by barbarians without method; without making any effort to preserve the stock, destructive, of course, in its character, but not of sufficient extent to endanger the existence of the race of the animal. As I have said, it is only when the world makes its attack through commerce that the existence of the race of animals is in danger. It is only then. When that begins, then the danger begins. Of course at the first beginning of it, when the Bussians discovered this country, and traded with these Indians and got these skins, that was the beginning of an attack by the world generally upon this stock of seals. That was the beginning of an attack by civilization through commerce, which is its great instrumentality. Of course, at that very early period, when the draft was very small, it did not threaten the existence of the stock at all; but by and by it did. When the existence of the stock is threatened, what are you to do ? That is the question. The President. That is a point of fact which may create a difference in right, according to your view? Mr. Carter. The distinction which I mean to draw is between a pursuit of these seals for the purposes of personal use of the people, ■ such as they were in the habit of making before they were discovered by civilized man, and a pursuit of them for the purpose of supplying through commerce, the demands of the world. That is the distinction. The first pursuit, which is confined to the barbarian, is not destructive of the stock. Nor is the other, as long as it is limited to certain very , narrow proportions and conditions; but when it is increased, then it does threaten the stock. What must you do then? You must adopt those measures which are necessary to preserve the stock. And what are the measures which society always employs for that purpose? I have detailed them already. It is by establishing and awarding the institution of property. Must society withhold its effort? Must it forbear to employ those agencies because here are a few hundred Indians in existence who may have some needs in reference to them? No; they are not to be considered, surely. We cannot allow this herd of seals to be extinguished just for the purpose of accommodating a few hundred Indians upon that coast. Surely not. Civilization is not to subordinate itself to barbarism. The President. It may be that the civilized fishermen are not more than a few hundreds also. The number of men employed is not absolutely a foundation of legal discrimination or legal difference? Mr. Carter. You mean that those that are employed on the Pribylof Islands are a few hundreds? The President. No; I mean pelagic sealing may be carried on by • a few hundred or a few thousand Indians; but that is another matter. The difference you make is whether they are Indians or civilized? Mr. Carter. Yes. The President. Suppose the Indians engage in commerce also, selling or bartering the skins. You would allow that also? Mr. Carter. When it is not destructive. The President. It is a question of proportion, a question of measure, with you? Mr. Carter. If it is destructive, then it is not to be allowed. They have no right to destroy this race of animals. The President. In order to give you satisfaction, the question would be to know what limits the pelagic sealing may be carried to without being destructive? Mr. Carter. Yes; that is practically the question; if you can say that pelagic sealing can be carried on without being destructive. ORAL ARGUMENT OF JAMES C. CARTER, ESQ. 229 The President. By Indians, at any rate? Mr. Carter. By Indians in their canoes, in the way in which it was originally carried on. That does not threaten the existence of the herd. The President. That is a natural limitation. Mr. Carter. It is possible to do this. It would be possible for the people, now engaged in pelagic sealing, to say, "the Indians are permitted to engage in pelagic sealing. We are prevented from doing it. We will just employ these Indians." The President. That is the difficult point. It was the point I just hinted at. Mr. Carter Yes; they might say, "We will employ those Indians. We will employ them to do the work which we are prohibited from doing." The Indians are perfect sealers. They can destroy this race as quickly as anybody else, if you hire them to go out there as pelagic sealers. I assume that cannot be done. The principles, the grounds and reasons, upon which I rest the right of property of the United States, proceed upon the assumption that the blessings of Providence are to be preserved and made continually useful to man ; and whatever the mode of attack which is made upon them which is in violation of that principle must be suppressed. Senator Morgan. If you will allow me, Mr. Carter, I understand your position to be this, and if I am mistaken I hope you will correct me : that the United States Government, being the owner of these seals, has a right to make an indulgence, an exception, in favor of those Indian tribes because of their dependent condition, so long as they conduct that sealing in accordance with their original customs? Mr. Carter. Yes. Senator Morgan. I wish to suggest that both Great Britain and Canada and the United States have found it necessary, in order to establish and promote agriculture, commerce, the peace of the whole country, in respect to the Indian tribes, to deprive them, at their will, of all of what are called their natural rights of hunting and wandering—their nomadic wanderings—and confine them to reservations. All of these countries have found it absolutely necessary to do so, until it is a matter of universally admitted law throughout the continent of North America, until you get to Mexico, at least—and even in Mexico— that the Indians shall be dealt with in such way as the supreme power chooses to do in their general public policies, giving them in the United States, and doubtless in Canada, when they are tried in the courts, the privileges and benefits of the provisions of the constitution, which operate in favor of personal rights of liberty, property, etc; but neither of these Governments has ever hesitated, on any occasion since they have had power to enforce their laws against the Indians, to confine them to reservations, cut them off from hunting on the plains the wild . buffalo, the deer and all other wild game, and absolutely to enclose them within bounds, which they are not permitted to go beyond at all. Mr. Carter. Oh yes; that is perfectly well established in the practice of nations. The President. Is it in Canada? Mr. Carter. I do not know how it is in Canada. Mr. Tuppee. Since the President refers to me, I will say that there is a distinction in all those cases. For in stance, where the Government, representing the Crown, makes arrangements by and with the consent of the various tribes, they come then under treaty rights made with the Crown. They have certain privileges, and, coming under the direction of the Crown, they submit themselves to the care of the Government. The Government provides for them, giving them their rations 230 ORAL ARGUMENT OF JAMES C. CARTER, ESQ. and supplies; and for the sake of those, and for the support, they submit themselves to the .regulations under the Government. But on the Pacific coast the Indians are practically as free as the whites. Senator Morgan. I speak, Mr. President, if you will allow me to explain my statements, of the power exercised. If it is exercised in a single instance by Canada or the United States, of course the whole power is necessarily implied. When we speak of a treaty with an Indian tribe, we do not speak in the sense of treating or making an engagement with a foreign government or foreign power. The Indians are entirely within the limits and dominion of the respective governments in America. A treaty that is spoken of is a mere agreement for the purpose of pacifying them, and not based upon the idea that they have any sovereign right to treat at all. They are the subjects of the general local government, and more particularly so, I think, than can be found any where else in the world. That is the universal history of the North American continent. In the decisions in the United States, the Indians are called the wards of the nations; and the United States are their guardian. Sir John Thompson. I might say, in addition to what Mr. Tupper has said, that the only penalty for roaming contrary to the provisions of the treaty is the withholding of the benefits of the treaty from the Indians. There is no law in any part of the country to prevent an Indian going where he pleases. In justice to Mr. Carter's position, perhaps I ought to add this : that in establishing close seasons for fishing and hunting, the Indian is included as well as the white; but an exception is made in favor of such as may take by fishing and hunting for his own sustenance. Mr. Carter. The survival of barbaric conditions in civilized life is a perfectly familiar problem, both to Great Britain and the United States, in many parts of the world. It presents its difficulties, no doubt. They are dealt with as they can best be dealt with. It has been stated, and sometimes with truth, that at times cruelty has been shown to the native inhabitants, and that at other times perhaps too much generosity is shown to them. The problem is a difficult one; but the difficulty does not dispense with the necessity of a proper dealing with it. How is it to be dealt with? Here were thousands and thousands of Indians in the western part of the United States, living upon the buffalo, living upon herds of buffalo that roamed over a boundless area of territory; and here was a vast population pressing in that direction all the time. What are you to do? Are you to station an army along the boundary, along the frontier, to protect these savage lands from invasion, and say that civilization shallnot go on beyond this point ? Are you to protect these Indians and the buffalo in their wild condition forever, and say that this part of the fruitful earth shall remain forever a forest and a waste? Is that what you are to do? Is that the dictate of civilization? No; you cannot do it if you would. Civilization will press forward and will drive out the Indians in some way or other. The only thing you can do is to deal with them gently and gradually, and protect them from violence and secure them a subsistence as best you can. Lord Hannen. Was there ever any law in the United States for the preservation of the bison except in the Yellowstone Park? Mr. Carter. No ; none that I am aware of. I think not. Senator Morgan. No; there never was any law of that sort except in that park. Mr. Carter. No; none of that kind. The consequence was that the ORAL ARGUMENT OF JAMES C. CARTER, ESQ. 231 United States in dealing with that problem did it by treaty; but what are treaties between a powerful nation and these tribes of Indians ? They are not capable of giving consent. They do not deserve the name of ta-eaties. They are called so; but what is the effect of them? You take away from the Indian his hunting ground. You have to support him by giving him rations; and I suppose the same thing is done in Canada. That is what it comes to. They occupy territory which is fitted to produce prodigious quantities of wheat. That earth must be cultivated. The Indians will not do it. If you take it from them, what do you do? You give them rations. That is what they do in Canada. That is what they do in the United States. That is what they do wherever this problem of dealing with barbaric tribes is treated with generosity and with justice; but the interests of civilization and the demands of civilization cannot be made to wait upon the destinies or demands of these few barbarians. That cannot be done; and when the question comes whether they are to be permitted to exterminate a race of animals like the seal, not for the purpose of supplying themselves, but because they are the employés of men who are prohibited from doing it, of course you must prohibit them as well. The President. That is their livelihood also? Mr. Carter. The livelihood of the Indians. They have a right to pursue their livelihood as long as it is confined to getting the seal for the purpose of clothing for their bodies or for meat; but when they want to engage in commerce and clothe themselves in broad cloth and fill themselves with rum in addition to their original wants, and for that purpose to exterminate a race of useful animals, a different problem is presented. But practically it would be of no account. The only way in which they pursue, or ever have pursued the seals is in open boats, going out short distances from the shore. They can take a few seals that approach the shore rather more closely. The pelagic sealing that threatens the existence of the herd is carried on by means of large vessels provided with perhaps a dozen or fifteen or more boats and a very large crew, which follow the seals off at sea, it may be hundreds of miles, capable of standing any weather and continuing on the sea for months. These vessels follow them up, put out their boats wherever they see a number sufficient to engage attention, and slaughter them in that way. That is what threatens the existence of the herd. If sealing in open boats from the shore were permitted, probably it would never occasion any serious danger. No boat can go out, of course, and stay over night. They cannot go more than a few miles, because they must come back again before dark. It is but a few seals they can take; and that does not threaten the existence of the herd. The attack which civilization.makes upon it, and which it has no right to make in a destructive way, is this sealing by vessels with crews and boats which go on long voyages. It is that which is destructive. The answer to this suggestion of the right of the Indians to make their attack upon the seals is this; that it does not create any serious practical difficulty in relation to the problem. Of course it is not to be supposed that the United States are going to take away from that people their means of subsistence, at least without supplying them in turn. Their history abundantly repels any suggestion of that sort. They have never inflicted any such barbarity. Their right might be declared to be subject to that of the Indians. The President. Is the sealing on the coast carried on by Indians from the United States or only by Indians from Canada? 232 ORAL ARGUMENT OF JAMES C. CARTER, ESQ. Mr. Carter. There is no sealing by boats on the coast from the American territory, I think; because there are no Indians, I think, on American soil who are given to that pursuit. Mr. Justice Harlan. When you speak of boats you mean canoes? The President. Yes; I understand that. Mr. Carter. I am told there is one tribe of Indians, at least, the Makah Indians, who are on American territory, who do practice sealing in boats to a greater or less extent. There may be others. Let me say in concluding my argument upon this question of property—and I am about to conclude it now, that I have endeavored to put the case of the Government of the United States upon no selfish reasons or grounds, but upon grounds which interest alike the whole world. I have not put this property in seals as the peculiar property of the United States, in the selfish sense of property, but as a property which mankind is interested to have awarded to the United States; all mankind having a right to enjoy, all mankind seeking to enjoy them; but absolutely limited in the enjoyment to one method, and that is by employing the instrumentality of the United States in this husbandry upon the Pribilof Islands. The President. You do not state that it is absolute property. However, you state that it is property in the sense of article 6, do you? Mr. Carter. It is property in the sense that they are entitled to the exclusive custody and management of it and to prevent any interference with it from any quarter and to the direct profits of it; but when I speak of the beneficial enjoyment, I mean the interest of the whole world. The President. So according to your view, in this number five, "Has the United States any right, and if so, what right of property" property here would be qualified property. Mr. Carter. I shall not leave that question indisposed of. It does- notcomeup at this point in my argument; but if the learned President is disposed and will give me a distinct question— The President. If it comes in at another time, I shall be satisfied. Mr. Carter. It will come in time. We ask for nothing here which is not equally for the interest of all nations. We ask for nothing that is going to injure anybody. We ask only for that which enables the world to enjoy the benefits of this property; and to grant what we ask takes nothing away from anybody, not even from these pelagic sealers, except the pursuit of an occupation of doubtful profit for a few years. In the allotment between the different nations of the world, of the various advantages which the earth affords, this particular one happens to fall to the United States. It is their duty to improve it and make it productive. The performance of that duty will indeed be profitable to them, and rightfully so; and nobody ought to grudge them that. But it will be equally advantageous to the whole world, and all they ask is for an international Tribunal, representing the whole world, to award them the unembarrassed opportunity of doing it. They have done it in the past. They are capable of doing it in the future, if permitted to do it by the abstinence of the rest of mankind from a destructive pursuit of the animal. That is all they ask. Assuming the right of property in this herd to be established in the United States, the next question is what right she has of defending and protecting herself in the enjoyment of that property. But, as I am to ORAL ARGUMENT OF JAMES C. CARTER, ESQ. 233 deal shortly with another aspect of the question of property, namely, with the industry that is established on the islands, irrespective of any right of property in the seals themselves, I shall postpone a discussion of the rights of protection and defence which a property interest would give until I have concluded what I have to say upon that aspect of the question which relates to the industry carried on upon the islands. [The Tribunal thereupon took a recess.] [The Tribunal resumed at 2.10 p. m.] Mr. Carter. There is one extract from the Eeport of the British Commissioners which I intended to read in the course of my argument, showing, that a husbandry is possible with the seals, and that it is carried on on the Pribilof Islands. It is found on page 159. It is a newspaper extract (reading) : The American fur-seal had a narrow escape of sharing the fate of its southern kindred. In a paper dealing with this subject, a writer gives the following account : "Early in this century the seals were almost exterminated in many of the islands • in the North Pacific, and were there as ruthlessly slaughtered as they were in the Bass Straits and the New Zealand coast. The extermination was, as it were, commenced, had not Russia first, and the United States afterwards leased the exclusive right of killing seals on the Pribylof Islands—a famous sealing place—to a single Company, by which means the seals were saved, as the Company had an interest in keeping up the supply of furs." This single experiment, the writer states, has proved conclusively that fur-seals can be farmed as easily as sheep, and that sealing should not be thrown open without restrictions. Seals are a property the State should jealously guard. On the two Pribyloff Islands it is computed that 5,000,000 seals ïesort annually. These islands, from the value of the fur-seal, were discovered in the year 1786, when the slaughter commenced, and was prosecuted without [ ?] until the year 1839, when the number had been so reduced that the business threatened to be entirely destroyed within a few years. The President. Do you know where that paper comes from? Mr. Carter. The substance of it is a newspaper extract. Sir Bichard Webster. It is referred to in the letter on page 58. Senator Morgan. And is a reply to a circular from the Governor of Tasmania. The President. That is a British official—Mr. Martin—is it not? Does not the British Government endorse his views? Sir Kichard Webster.. On page 154 you will find that the British Commissioner sent a circular of inquiry. The President. But that implies no approbation of the views—it • is merely for the purpose of inquiry? Mr. Carter. It is a paper presented by the British Commissioners as having been received from persons familiar with the subject. (Beading again:) The destruction was then stopped until 1845, when it was gradually resumed, though, instead of the indiscriminate slaughter which had before been permitted, only the young males (2 years old) were allowed to be killed. The rookeries continued to increase in size until 1857. The President. All that is in agreement with your own contention, Mr. Carter. Mr. Carter. The general tendency of it is in accordance with our evidence, but it must not be taken as "minutely in accordance with our contention. I read these extracts for the purpose of showing the conclusions of the compiler of this information. (Beading again :) sealing in these islands were restricted about ly. From 1821 to 1839, 758,502 mr-seals were d, and 372,894 from 1845 to 1862. From another authority, Mr. Hittel, I find that a the United States Government took possession of the islands in 1867 several rican firms took possession, and the wholesale slaughter of seals began afresh. 234 ORAL ARGUMENT OF JAMES C. CARTER, ESQ. In 1868 not less than 200,000 seals were killed, and for 1869 it is said the number was not far below 300,000. The United States Government, fearing their total extinction leased the sole right of seal-fishing on these islands to one firm, restricting the allowed number to 100,000. From what he had been able to lay before the Fisheries Board, no time should be lost in at once taking steps to protect the seal fisheries in Bass Straits. Wherever proper restriction has been introduced a most valuable industry has been started in connection with the seal industry, and, instead of the three years, as has been proposed by this Board, he strongly recommended five years for the close season, and if at that time the seals have increased the Government might be recommended to lease the islands, allowing only a certain number to be taken annually and on no account to allow the females to be killed. I come now to the other branch of the question of property, namely, the property which the United States Government asserts in the industry carried on by it on the Pribilof Islands irrespective of the question whether they have property in the seals or not. Supposing, for the purpose of argument, that my conclusions were not admitted that the United States have a property in the seals themselves, or the 'seal herd which frequents the Islands, they assert that they have a property interest in the industry which is there carried on of such a character that they are justified in protecting and defending it against any wrongful invasion. Now, for the purpose of the argument upon that question, I employ the same basis of fact which I have employed in discussing the question of property in the seals. And, briefly, I assume as facts those statements before read by me, and which are substantially undisputed. They are these : that this industry was established originally by Eussia, and that she employed care and labor and devoted expense to its establishment, carrying thither a large number of native Aleutians from the Aleutian Islands, for the purpose of guarding the'seals and carrying on the business of selecting the superfluous increase in order to supply the market; that no interference was made with Eussia in the enjoyment of that industry during the entire period of her occupation, down to the time when the Islands passed into the possession of the United States; that the United States continued to carry on that industry also without interference until pelagic sealing was introduced; that the effects of that industry were in all respects beneficial, not only to the United States, but also to the whole world; and that they succeeded in securing the entire annual increase of these animals and devoting it to the purposes of commerce without diminishing the stock; and that by means of this industry the stock of seals has been actually preserved. And to show the beneficial results in that particular, we have only to compare the condition of the Pribilof Islands with that of the islands in the Southern Ocean—the Falkland Islands, and others where the race has been entirely destroyed. And I might add that it is quite possible that with the prohibition of pelagic sealing, and the establishment of similar rules and regulations over the sealing grounds of the Southern Seas for the perservation of the animals, those islands might be stocked anew, and similar advantages might be enjoyed in many parts of the world to those now produced by the industry on the Pribilof Islands. This result might be brought about and the benefit to mankind greatly increased. The President. Do you mean that that should be a matter for international consideration, or that it should be effected by municipal laws? Mr. Carter. If it were recognized that the seals were property, there would then be an inducement to nations holding sealing grounds, pelagic sealing being prohibited, to cause those grounds to be protected and regulations might be made for the prosecution of the industry. ORAL ARGUMENT OF JAMES C. CARTER, ESQ. 235 The President. It might be a result of the present Arbitration. Mr. Carter. It might be, and that is one of the considerations which should engage the attention of the Tribunal. It is not only a question of preserving the seals which now exist, but of making the natural resources of the earth available for all their possibilities. Now that industry established and carried on by Eussia formerly, and now carried on by the United States is unquestionably a full and perfect right. That is not disputed. It is a lawful occupation. It interferes with the rights of no one else. It is useful to the persons who carry it on, and useful to the whole world, and it has a further utility in the sense that it preserves these races of animals and applies the benefit to mankind, while at the same time, preserving the stock. In its several aspects, therefore, it is a full and perfect right; and that right is not disputed. What is asserted against it, is, that the United States have no right to prevent other industries which come in conflict with it. It is said on the part of Great Britain: "We also have an industry in these seals and our industry is a right just as much as yours is a right." Now of course the validity of that argument rests upon the question whether it is a right; we are thus again brought face to face with the question whether this practice is a right. If it is a wrong, then of course there is no defence for it. Upon what ground can it be defended as a right? What moral reasons support it? I know of none; I hear of none suggested, I hear of no consideration in the nature of a moral right suggested as a foundation upon which that pelagic sealing can be sustained. The only grounds I hear mentioned are two—first, that the seal is a free swimming animal; and, secondly, that the seas are free, and there is no municipal power which can restrain the pursuit which is thus carried on on the high seas. That assertion, therefore, rests upon the assumption that there is a right to destroy any free-swimming animal in the sea. However great a blessing, however useful that animal may be, it is said by the pelagic sealers " we have a right to destroy it, a right to pursue it, although that pursuit involves its destruction." But they have no right to destroy a free-swimming animal or any other animal, either by pursuit on the sea, or by pursuit on the land. If you are taking only the increase, you may have a right, but if you are destroying the race, then your right is gone. To be sure, there are many free- swimming animals in the sea—the herring, the cod, the menhaden, the mackerel—the taking of which must necessarily be indiscriminate. You cannot take them in any other way; you cannot otherwise appropriate them to the uses of mankind. Mankind must seek them in that way, or do without them. And therefore the pursuit of those animals ' on the high seas is right enough. And in this connection I have observed that nature, in the enormous provision which she makes, of these animals, supplies barriers against their destruction by man. But the seal is an animal which can be taken and applied to the uses of mankind without diminishing the stock, and consequently you have no right to adopt another mode of pursuit which sweeps these animals from existence. The President. Is there no other mode of regulating by usage to prevent the exhaustion of the stock? I mean are there not certain rules in regard to other species besides the seal? Mr. Carter. I know of no other in respect to these other classes of fishes in the high seas that have been or can be applied for the purpose of preventing their destruction. The President. Do you contend that selection confers the right of property f 236 ORAL ARGUMENT OF JAMES C. CARTER, ESQ. Mr. Carter. Yes; where selection is possible and necessary as in the case of the seal. The President. It is one of the bases of the right of property. Mr. Carter. With the seal indiscriminate slaughter is destructive, and therefore not right, provided there is a mode not involving destruction by which you can select the victims for slaughter. If there are some men who, in consequence of the natural advantages they enjoy, have such a control over the animal that they can make the selection, that constitutes their right of property. Thus, the United States have indisputably the right of property in respect of the seals of the Pribilof Islands, as long as they are on the islands. But I speak also of their right of property in them on the high seas outside their jurisdiction. Senator Morgan. If the United States have a right of property as full as can be enjoyed, they have it on the land. Is that right lost on the high seas? Mr. Carter. That depends upon this consideration—the fact that they have a control and possession of them on the land, and that that control and possession gives them the power of taking the entire benefit of the animal for the use of mankind without diminishing the stock is a ground why they should be awarded a property in the animal, not only while he is on land, but when be is out at sea. Senator Morgan. My proposition is that those conditions to which you refer do establish the right of property; but does that right of property follow the migration ? Mr. Carter. After you have once established your right of property on the land, the considerations which I have adverted to, establish it on the high seas. I assert the doctrine of a qualified property as in the case of animals commonly designated as wild, such as bees, wild geese, swans and deer; but although the property of man in these creatures is qualified, yet whenever they have the instinct of return as evidenced by the habit of returning—as long as that habit is preserved—the property subsists, and it subsists as well when the animals are out of the possession of the owner, as when they are in his possession. Senator Morgan. The difficulty is in the meaning of a word. I think, that when a property has been acquired in an animal or any other thing that is capable.of enjoyment, in the sense in which you have presented it, the property may be lost when it is out of your possession. But while it is in your possession your property is qualified. Mr. Carter. Oh yes; it may be lost by abandoning its home, but while the instinct of return remains, the property subsists. Now, in reference to the seal, it always retains the instinct to return,- and the property subsists wherever it may be in the sea. The President. In every individual of the herd? Mr. Carter. In every individual of the herd; that instinct is never lost. Now I say we are met face to face with the question whether this pelagic sealing is a right or not. There cannot be a right to destroy any free-swimming animal, if there is another way by which he can be taken without destruction. I next have to say that what constitutes one element of the property of the United States in the seals, and of their property interest in this industry, is that they, the United States, are performing a duty to mankind. They are cultivating and improving an advantage which, in the division of the blessings of the earth, has fallen to them. Has any nation the power of taking the increase and yet preserving this race of seals for the use of all mankind by pelagic sealing, and is there any corresponding duty on the . part of any nation to prosecute pelagic sealing? None whatever; it is mere destruction. ORAL ARGUMENT OF JAMES C. CARTER, ESQ. 237 Now the other ground on which Great Britain seeks to maintain this practice is that the seas axe free. They say : " You cannot interfere on the high seas with us and our industry, which is a rightful one. That does not follow. Whether a thing is right or not depends upon its moral qualities and, not upon the ability to punish it. A great many wrong things may be done on the sea, because there is no municipal law to prevent them, but that does not give any semblance of right to such proceedings. The distinction between right and wrong is not abolished on the sea; it goes all over the world, and there is no part of the sea which is not subject to the dominion of law. Therefore, to say that " the seas are free for this practice because you cannot punish us for it", is to make an assertion that has no foundation whatever in moral or legal reason. Of course in saying that the practice of pelagic sealing is wrong, we do not insist that the United States have, for that reason alone, a right to repress it. The United States do not assume the office of redressing wrongs all over the world; but what they do say is that where their right of property in an industry is injured by an act on the high seas which is, in itself, a wrong, then they have a right to interfere and defend themselves against that wrong. Now there are two foundations upon which the right to this industry carried on at the Pribilof Islands is maintained by the United States, and they have quite a close resemblance to each other and yet are in certain particulars distinct. The first is that that industry is made possible in consequence of a particular natural advantage which attaches to the soil of the United States at this spot, and that that advantage consists in the fact that the race of seals regularly resort thither and spend a considerable portion of their life there, enabling man to carry on a husbandry in them. This right is therefore founded on a natural advantage peculiar to the spot, and is as much a right of the nation as any other. The other contention is that it is a national industry which cannot be broken up by the wrongful attacks of individuals of other nations. I call it a national industry for this reason; it is an industry which requires the establishment of rules and regulations for its conduct, which rules and regulations cannot be carried into effect except by the authority of a nation. Senator Morgan. Do you apply that doctrine to all the fur fisheries in the world? Mr. Carter. Well, I am not making that point now, but only as to the Pribilof Islands. In similar conditions I think it would apply. Senator Morgan. You mean that the seals cannot be preserved without national authority. Mr. Carter. That is the very point; I call it a national industry because it requires national protection. The President. You would make a difference between domesticated seals and wild seals, as between wild bees and domesticated bees? You would say that the Pribilof Island seals are domesticated seals? Mr. Carter. Well, I have considered the question of property in the seals themselves and have done with it. I am now upon the question of the right of the United States to carry on this industry even if they had no property in the seals; and I have stated a means by which this industry can be carried on there and which makes it a rightful industry. Now, where a nation has created an industry by the aid of rules and regulations which it has established; where it has brought in a population to engage in that industry, so that the destruction of that . industry would deprive them of their means of subsistence, I maintain that the citizens of another nation cannot, for their own temporary 238 ORAL ARGUMENT OF JAMES C. CARTER, ESQ. benefit, come in and break up that industry. Let me illustrate that. I may assume that there are races of fishes which regularly visit a shore. They may not be the property of the owners of that shore, they may not be the property of the nation which holds dominion over that shore; nevertheless, it is possible by making rules and regulations to create an industry in them; and when that is done there is a thing, a creation, which that nation has a right to maintain against the attacks of the people of other nations. The President. That would create a right of protection over the species. Mr. Carter. That is what I am arguing; it would give a right of protection; the right of protection stands upon the industry which is created. Writers upon the law of property tell us that property has many forms. Sometimes it is the right to the exclusive use and disposition of a thing; sometimes it may consist of a mere lien on a thing; sometimes it may be a right to go upon the land of another and do something there; and sometimes it is what jurists call jura merce facul- tatis; but it is a right, and in the nature of property also. Now I wish to give some illustrations which will show what I mean by the right to carry on this industry. These Pribilof Islands are one instance, and there are others. In our Case are given many instances, where people having a right of legislation have passed laws for the purpose of protecting fisheries and other industries against invasion. There are many different instances of that sort. There are many instances where Great Britain has passed laws of that character. I proceed upon the assumption that lawful and useful industries can be created and preserved by the exercise of national authority in that way. Whether this authority is susceptible of being asserted against the citizens of other nations, or only against the citizens of the nations by which the laws were passed, is another question, but the policy is in all instances the same. Now I have instanced the Pribilof Islands. Another instance is the fisheries on the banks of Newfoundland. Great Britain asserted at an early period a right to the fisheries there, because she had established an industry which had been maintained by her subjects, who resorted thither for the purpose of catching fish. When the United States gained their independence, they claimed to share in these fisheries. They said: "We went there and established that fishery; and now, having gained our independence we have a right to share in the benefits to be derived from it". That right was denied by Great Britain and the attempt to assert it was unsuccessful; but it was admitted by both parties that it was a national industry, although the United States contended that they had a right to participate in it. And there are numerous other cases where laws have been passed by Great Britain for the protection of her fisheries. The President. Are these rights asserted now? Mr. Carter. Well, I do not think they are practically asserted on the banks of Newfoundland how as against other nations. But they were originally, and they tend to illustrate my argument. They illustrate the idea. The correspondence is printed in our Argument. The President. Yes, but the exclusive right was not maintained as a right. Mr. Carter. It was maintained as a right, and— Mr. Phelps. The whole correspondence is in the printed Argument of the Case. The President. Your argument goes to show that the right extends beyond the limits of the islands. ORAL ARGUMENT OF JAMES C. CARTER, ESQ. 239 Mr. Carter. Yes; we have the right to carry on the industry upon the islands; and, having that right, when the carrying on of the industry is prevented by wrongful acts in other places, we have the right to protect ourselves by repressing those acts. Now the pearl fisheries of Ceylon are another instance, as also the coral-beds in certain parts of the world which are protected by the laws of the nations that are situated contiguous to them, and in some instances for the benefit of the citizens of those nations only. In the American Case we have referred to a great number of instances where laws have been passed to establish and preserve, govern and regulate, fisheries and other pursuits carried on on the high seas. Now the general answer to that which Great Britain makes is, that these laws, whether the laws of sovereign states, or of their colonial dependencies, are designed to operate only on their own citizens, and are not aimed at the citizens of other nations, and that they do not, therefore, furnish any support to the assertion that they may be operative against the citizens of other nations. It is said that they are only designed to regulate the conduct of citizens of the nations by whom they are made. It is not my purpose to go through the particular instances in which these regulations have been adopted, for it would occupy altogether too much time. In general, I suppose that though these regulations were drawn in terms limited to the citizens of the nations by whom they are passed, yet in reality they are designed to be operative upon citizens of all nations; otherwise they would serve only to facilitate a fuller enjoyment of the benefits of the industry by the citizens of other nations, without the competition and rivalry of the nation by whom they are passed; which I do not suppose is their intent. But there are several instances of rules and laws respecting the practice of these industries on the high seas which are admitted by the counsel for Great Britain to be operative upon the citizens of other nations. Turning to the Argument on the part of Great Britain, page 59, we' find this : It is next submitted— That international law recognizes the right of a State to acquire certain portions of the waters of the sea and of the soil under the sea, and to include them within the territory of the State. This affords a legitimate explanation of the cases of foreign extra-territorial fishery laws cited by the United States, quite apart from any question whether they apply, to foreigners or not. But it affords no justification for, nor are they analogous to, the Alaskan Seal Statute, as is contended by the United States. The territory of the nation extends to low-water mark; but certain portions of the sea may be added to the dominion. For example, the sea which lies inter fauces terrœ, and, in certain exceptional cases, parts of the sea not lying inter fauces terrœ. The claim applies strictly to the soil under the sea. Such claim may be legitimately made to oyster beds, pearl fisheries, and coral reefs; and, in the same way, mines within the territory may be worked out under the sea below low-water mark. Isolated portions of the high sea cannot be taken by a nation unless the bed on which they rest can be physically occupied in a manner analogous to the occupation of land. These principles, though they explain legitimately all the examples of foreign laws dwelt on by the United States, show also that no right to, or on, so vast an area of the high sea as Behring Sea can be acquired. Nor has any such claim ever been made. Now, we have it admitted here that it is competent to particular nations to assert for themselves the exclusive benefits of an industry connected with oyster-beds, pearl-fishery beds, and coral-reef beds, although they are out on the high seas beyond the territorial three- mile limit, and to assert that right against the citizens of other nations. They are obliged to make that admission, for it is impossible to examine the various statutes which have been passed by independent states 240 ORAL ARGUMENT OF JAMES C. CARTER, ESQ. upon these particular subjects, without recognizing the fact that they are designed to apply to 'the citizens of all nations, and are actually enforced against the citizens of all nations. What is the implied assertion upon which such legislation is founded? Why, that the state has, by the operation of its rules and regulations, created a national industry in respect to those fisheries, oysters, pearls, and coral, which it is justified in protecting against invasion by the citizens of other nations, although these fisheries are situate on the high seas. The President. That does not seem to have been the contention. It was founded rather upon the right of occupation. Mr. Carter. Well, I am going to discuss the ground upon which the counsel for Great Britain put it, but they assert that there is a right to protect, against the invasion of other nations, products of the sea outside the three-mile limit. I know they seek to base that upon a right of property in the laud at the bottom. I contend that a nation has a right to establish an industry of that sort and protect it against the invasion of other nations, irrespective of any right of property in the bottom. They suggest reasons upon which their asserted right of bottom cannot be occupi wherever a nation can oc rial limits, it may rightft it. But how can you occ occupy it only by taking s it where you can reach t ed. W mpythe lly occt upy the îe bott ell, tl pyit m, althou and excl om of th ra as is p nd estab exclude the citizens of ot pation of the bottom that my learned friends is, th the bottom, you can exclud further than the argumen it wher t of the onsfi et. The ed States ports a general right to limit. We do not assert such right exists; buttha take possession of the bot particular piece of coast thus o torn of off Gre lie sc ?ht, nor c rtion; an lularly favorable place for carrying on a cod fishery or a herriug fishery, Great Britain can take possession of it and exclude the rest of mankind from it. If this bottom theory, upon which they put themselves, has any validity or foundation, that can be done. If the right to establish the industry rest upon an ability to occupy the bottom, then you can establish one wherever you can reach bottom; and if you can establish it in one place, you can establish it in another. I do not suppose it is possible to defend any right like that over the high ses possible to defend any such right as that over There must be some other principle which ma These regulations are found in the cases o: beds where the pearl fishery is carried on, beds'whic certain proximity to the coast of a country, and i more conveniently by the citizens of that country than any other. We find that the industries are confined to such instances, and in those instances we find rules and regulations passed for the purpose of securing the products of the seas, and designed to make them more regular and abundant. Those are the cases in which it can be done, and in o not suppose it is heries of. the £ lied into play eas. r beds, coral t ich are found eds, •ked ORAL ARGUMENT OF JAMES C. CARTER, ESQ. 241 those cases it is perfectly justifiable. It is where there is a natural advantage, within a certain proximity to the coast of a particular nation, which it can turn to account better than the citizens of any other nation. In such cases, if the particular nation is permitted to establish and carry out a system of national regulation, it may furnish a regular constant supply of a product of the seas for the uses of mankind, which product, if it were thrown open to the whole world, would be destroyed. That is reasonable. That stands upon the principles which I have been asserting. That is a solid foundation; but it does not rest upon any notion of a right of occupying the bottom. It rests upon the fact that there is a natural advantage—a particular locality offering advantages to a particular nation, which, if improved, will lead to the prosecution of a useful and profitable industry, useful to the nation, and useful to the world. Under those circumstances, if the contiguous nation is permitted to cultivate undisturbed that natural advantage, free from the invasion of others, that industry can be profitably carried on, but if all come in, it is broken up. In such cases, therefore, the nation which enjoys this advantage says to other nations, rightfully: "Here is an advantage which Providence h as placed within our reach, rather than in yours. We can turn it to account; you cannot. We can use it so that it may produce its natural advantages. In order to do that, it requires regulation. It must not be used at all times. It must be allowed certain periods of rest. The animals which form the basis of it are at one time of the year breeding, and should not be disturbed. There are times when the industry should be pursued; times when the industry should be closed. That cannot be accomplished without national regulation. We have done that. We have created an industry. There is a particular population of ours devoted to the work. Now, you must let us prosecute it alone. It is not reasonable, it is not fair, it is not just, that you should come in here after we have created this advantage and despoil it, for a mere temporary gain. You will not come habitually, you will only come occasionally; and you will interfere only with the effect of ruining us, without reaping any permanent advantage to yourselves." Senator Morgan. Mr. Carter, in point of fact, are these Ceylon pearl fisheries and the coral fisheries of which you spoke held subject to the right of free navigation to commerce? Mr. Carter. So I understand. I do not understand that commerce can be prohibited over them. Oh no ; surely not. There is no occasion to prohibit commerce. It is only the regulation of the industry that is insisted upon. So I have to say that upon conceded principles there is a right in a nation to protect an industry for which it has natural advantages, and which it can create, preserve, and improve by means of rules and regulations which it alone has the power to adopt and to enforce. It is conceded that this may be done in the cases to which I refer of the oyster beds, the pearl beds, and the coral beds, even though they lie far outside the three mile limit. If they are so situated as to be the special advantage of a particular power, and that particular power chooses to improve that natural advantage by the creation of an industry, it establishes a right which it can defend from invasion by the citizens of other nations. The explanation of this which is attempted to be made in the printed argument of the other side is that it depends upon an ability to occupy the bottom. That does not explain it. That furnishes no ground of reason whatever. If it were true, it would justify the occupation of a portion B s, pt xii——16 242 ORAL ARGUMENT OF JAMES C. CARTER, ESQ. of the bottom in any place in the seas, irrespective of the question whether there was a natural advantage to a particular nation or not; and such right to occupy the bottom certainly does not exist. Nor can you occupy the bottom of the sea. It is not susceptible of occupation, unless the law should choose to declare that it should be deemed to be the subject of exclusive occupation; and as I have already, I think, sufficiently shown, the law will not do that merely to gratify the whim or the ambition of any particular individual, or any particular nation, but only for the accomplishment of some great social and general good. That right of creating a national industry based upon peculiar natural advantages, and based sometimes upon the mere circumstance that it has been created by rules and regulations, is one that is fully established, in reference to many of several different products of the sea. In the protecting of industries of that sort, does the nation extend its jurisdiction over those places? Does it make them a part of its territory ? Certainly not. It has no right to do that. It is not consistent with the law of nations that it should do that. There is no occasion for it to do that. There is no need of it. All that it is necessary for it to do is to enforce such regulations on those places as are effective and sufficient to protect the right from invasion by the citizens of other nations. Now let me bring the case of the seal fisheries on the Pribilof Islands before the attention of the Tribunal, and compare them with the doctrine thus established. What natural advantage have the United States, the owners of those islands? One of the highest; and an advantage, indeed, not attached to the bottom of the sea, but an advantage on the dry land above the sea, which is within their admitted jurisdiction. By the creation and carrying on of this industry there, they have established a business profitable to themselves, highly useful to the whole world. Shall they not be able to protect it from invasion ? If the coral beds can be protected from invasion far out at sea, if the pearl beds can be protected from invasion by municipal regulations operative upon the sea, why should not this fishery be protected in the like way ? It requires no greater exercise of authority. It requires no straining whatever of the ordinary rules which govern the conduct of nations in respect to their interests. It is a more illustrative instance, by far, than the case of the coral beds, or the pearl beds, or the oyster beds; a more illustrative instance for the application of the principle that the nation may protect the industry which has thus been created. To make it entirely analogous, if these seals were in some manner attached to the bottom, if they were in the habit of congregating at some particular place on the bottom of the sea, then, according to the doctrine which seems to be made the foundation of the right by our friends on the other side, the United States would have a right to go out and take possession of that bottom, incorporate it into its own territory, and treat it as a part of its own nationality. I am sure we assert no such right as that. We do not ask to go to any such length as that. All we ask is the right to carry on the industry on our own admitted soil, and to protect it from being broken up by repressing acts upon the high seas which are in themselves essential wrongs. Let me defend these particular instances of the coral beds, the pearl beds, and the oyster beds upon the same principles upon which I have defended the assertion of property interest, not only in the seals, but in the seal industry upon the Pribilof Islands. In all these cases, there is a peculiar natural advantage connected with those places aud belong- ORAL ARGUMENT OF JAMES C. CARTER, ESQ. 243 ■ ing to the nations which lie in nearest proximity to them. In the next place, they are exhaustible. There is not enough for all; and therefore there arises an occasion when you may assert the same principles which govern the laws of property. In the next place, these industries, if left open to the unregulated invasion of the citizens of all nations, would be used up and destroyed. The only condition upon which they can be preserved and made beneficial to mankind is that they be allowed to be worked and operated by the particular power which has the best facilities for that purpose. In the next place, they can be preserved only by putting them under a system of regulation, which shall be operative upon the citizens of all nations. It is necessary that the citizens of the particular power, who go out there and improve these advantages, should also be made subject to these regulations. In other words, the general condition is presented that mankind may have the benefit of these advantages if they are disposed of in this way, and not otherwise; and, consequently, they ought to be disposed of in this way. The bottom of the sea in these places is not made the property of the particular powers who assert the right to the industries. It is not their property at .all. It is not within their sovereign jurisdiction at all, any more than any other part of the high seas, but it is a theatre where their defensive regulations may be put in operation, and where the industries of their citizens may be defended. Let me support these views by a reference to the opinions of the best writers. I read from Puffendorf on the Law of Nature and Nations. The extract is found on page 134 of my printed argument : As for fishing, though it hath much more abundant subject in the sea than in lakes or rivers, yet "tis manifest that it may in part be exhausted, and that if all nations should desire such right and liberty near the coast of any particular country, that country must be very much prejudiced in this respect; especially since" tis very usual that some particular kind of fish, or perhaps some more precious commodity, as pearls, coral, amber, or the like, are to be found only in one part of the sea, and that of no considerable extent. In this case there is no reason why the borderers should not rather challenge to themselves this happiness of a wealthy shore or sea than those who are seated at a distance from it. And then Vattel, upon the same subject, says : The various uses of the sea near the coasts render it very susceptible of property. It furnishes fish, shells, pearls, amber, etc. ; now in all these respects its use is not inexhaustible. Wherefore, the nation to whom the coasts belong may appropriate to themselves and convert to their own profit, an advantage which nature has so placed within their reach as to enable them conveniently to take possession of it, in the same manner as they possess themselves of the dominion of the land they inhabit. Who can doubt that the pearl fisheries of Bahrem and Ceylon may lawfully become property? And though where the catching of fish is the only object, the fishery appears less liable to be exhausted, yet if a nation have on their coasts a particular fishery of a profitable nature, and of which they may become masters, shall they not be permitted to appropriate to themselves that bounteous gift of nature as an appendage to the country they possess, and to reserve to themselves the great advantages which their commerce may thence derive, in case there be a sufficient abundance of fish to furnish the neighboring nations? (Sec. 2) A nation may appropriate to herself those things of which the free and common use would be prejudicial or dangerous to her. This is a second reason for which governments extend their dominion over the sea along their coasts, as far as they are able to protect their right. Now, upon that very firm basis of reason and authority we place the right of the United States to protect themselves in the enjoyment of the industry which they have established upon these islands. They have peculiar advantages, supreme advantages, for appropriating the annual increase of the seal, without diminishing the stock. They have established an industry and made rules and regulations which are devised to preserve it, and to make this blessing perpetual to mankind. J 244 ORAL ARGUMENT OF JAMES C. CARTER, ESQ. The seal is exhaustible. There is not enough for all, and they are entitled to challenge for themselves the benefits of this industry in consequence of these advantages, and in consequence of the steps I cannot think that there is any sound answer to an assertion of the right of a property interest in this industry placed upon that basis, and this, too, irrespective of a property in the seals themselves. That concludes my argument upon this question of the property interest of the United States in the industry established upon the islands, irrespective of a property interest in the seals. I now pass to the consequences of the establishment of those rights for which I have contended so far as they involve the question, what action the United States may take for the purpose of protecting themselves in the enjoyment of such rights. I must assume, in the first place, that if she has the right of property in the seals themselves, or a right to the exclusive enjoyment of this industry of taking seals, in consequence of her natural advantages and of the exhaustible character of the product, she has the authority iu some manner to enforce such right. Otherwise we should be talking to no purpose. What is a right which there is no means of enforcing? It would be mere words. It would amount to nothing at all. There would be nothing substantial about it. Such things are not the subject of discussion. When it is said that a man, or a nation, has certain rights of property, it means that they have rights which can be enforced in some manner. Sow shall they enforce them ? That is the question. What acts may the United States do? Can they extend their sovereignty over the seas to an illimitable extent wherever it may be necessary to protect the right?* No; they cannot. We make no assertion of that sort. We could not substantiate it, if we did. The sovereign jurisdiction of a nation, is bounded by her territory, with an addition which carries, to a certain qualified extent, her sovereignty over a distance on the seas commonly taken as three miles. Beyond that the sovereign jurisdiction of the nation cannot be extended. Beyond that her laws, as laws, have in general no force or operation. Beyond that her legislative powers have no effect. All that we take to be admitted. Sir Charles Eussell. You mean as against those who are not subjects or citizens? Mr. Carter. Yes; against those who are not subjects or citizens. That is what I mean. If her legislative power extended over the sea, she would have a right, of course, to legislate for everybody that came within the limits of that legislative power. We make no such pretension as that. This supreme legislative jurisdiction must be bounded necessarily by some line, and that line is, for the boundary of her absolute legislative jurisdiction, high-water mark. It does not go beyond that, although she may extend it, for most purposes, over a further space which is commonly taken to be—I do not mean to say it is absolutely limited to that, but is commonly taken to be—a distance of three miles ; but even there her legislative power is not absolute, for she cannot exclude the passage of foreign vessels over her waters. She cannot, as she can do with regard to her territory, exclude foreigners from it. Over the laud she has an absolute power of exclusion ; but over these territorial waters, although she may generally extend ORAL ARGUMENT OF JAMES C. CARTER, ESQ. 245 her legislative power over a belt three miles in width, she cannot extend it so far as to exclude foreign ships. Her right to protect her property or industry is not derived from her legislative power. Where do you get it then? How does she acquire any right to protect it? She has a right to protect it, just as any individual has a right to protect his property, where there are no other means, that is, by force; not by the exercise of legislative power, but'by the exercise of executive power—an exercise of natural power—an exercise of what you may call force. Individuals can defend their rights and property by the employment of force to a certain extent. If a man attacks me, I may resist him and subdue him and use violence upon him for that purpose; and I may go as far as it is necessary for that purpose; not farther. Whatever force it is necessary to employ to defend myself, I may employ against him. So if a man comes upon my property, I may remove him, if I have to carry him five miles; and I may employ as much force as is necessary for the purpose of removing him from my property; but I cannot employ any more force than is necessary. Those rights of self-defence and self-protection survive to individual man even in civil society, but we may not go any farther than strict necessity. For the general protection of rights, members of a civil municipal society must appeal to society itself. They appeal to its courts for protection. They appeal to the judicial power, and that furnishes a remedy. What can nations do? Is there any court to which they can appeal? No; they cannot make any such appeal as that. There is no tribunal into which one nation can summon another nation for judgment. What can nations do? They can only use this same sort of self-defensive power that an individual does. That is all. That they can use under all circumstances, limited, however, by the same rules and by the same boundaries which limit it in the case of an individual—necessity. Whatever is necessary to be done by a nation for the protection of its rights, it may do, and it may do it as an individual, and it is no exertion of its legislative power at all. We may make that very plain and palpable by turning to admitted instances of the exercise of it, and take for that purpose what are commonly called belligerent rights. Here is a nation engaged in war. It blockades the enemy's ports. The ship of a neutral nation, friendly, to both parties, undertakes to enter that blockaded port, and the belligerent that has established the blockade captures her by an exercise of force, carries her into one of his own ports, and confiscates her, and sells her. What kind of an exercise of power is that? Not legislative power, certainly. That act was committed on the high seas, and outside of the jurisdiction of any power. It therefore was not legislative power. It did not operate to extend the. jurisdiction of the nation over the place. It was simply an act of reasonable and necessary force employed for the purposes of self-defence. The nation had the right to carry on the war. Its existence, perhaps, depended upon its ability to subdue its adversary. It could not carry on the war successfully unless it had the right of shutting up the ports of the enemy, and, therefore, the necessary purposes of self-defence gave it the liberty to seize the ship of another power, carry it into port, and condemn it. That is not legislative power. It was not exerted by reason of any extension of the sovereignty of the nation over the seas. It was simply an exercise of self-defensive power, standing upon the principle of necessity, and limited by the principle of necessity. Wherever the necessity exists that power exists. I instance the case of blockade. There are other instances of belligerent rights. I 246 ORAL ARGUMENT OF JAMES C. CARTER, ESQ. The President. You would not admit of that power in times of peace? Mr. Carter. That is another question. Whether you may exercise a power of that sort in time of peace is a question to which I shall presently come. What I am explaining now is the character of the act. It is not legislative; that is certain. It is an act of self-defensive power. There are other instances of it in the case of belligerent rights. Take the case of contraband of war. A belligerent can capture a vessel that is carrying contraband of war, upon any of the high seas. You can enter even the territory of a friendly state, if it is necessary for the purpose of protecting yourself against your adversary; and even when there is no condition of war. They had a rebellion in Canada some years ago, and a vessel was fitted out by persons making use of the soil of the United States for the purpose of aiding the rebellion, as it was called. A British military force crossed the Niagara Biver, captured that vessel in the territory of the United States—not on the high seas, but in the territory of the United States. Senator Morgan. You refer to the Caroline? Mr. Carter. I refer to the case of the Caroline. There was a conflict between Great Britain and the United States upon the point as to whether the former had the right to do that; but the conflict was not upon the point of principle at all, it being admitted on both sides that if there was a necessity for doing that act Great Britain was right in doing it; that if there was a well-grounded apprehension that that vessel was going to proceed across the river and engage in enterprises hostile to the authority of Great Britain in Canada, she was justified in that action. A celebrated instance in history was the seizure by Great Britain of the Danish fleet in the harbor of Copenhagen. There was the fleet of a friendly power. There was absolute peace between Great Britain and Denmark; but Great Britain was apprehensive that that fleet would fall into the possession of France, and the seizure was defended by her ablest statesmen on the ground of necessity. This necessity of nations, when it appears, must have its way; and the inconvenience, the trouble, the damage, the loss which individual citizens of another nation may occasionally suffer in consequence of these exertions of self-defensive authority, are not to be taken into account. The President. Do you not think that all of that takes us out of this sphere of law and right? Mr. Carter. Not at all. We are right within the sphere of law and right. The President. I do not think the whole world generally considers it so. Mr. Carter. We are right within the sphere of law; and the exercise of these acts of self-defensive authority—the extent to which they may go, the necessities which create them, how far the necessities extend— constitute a great chapter in international law, and are all dealt with, all their limitations defined, and the principle which governs them laid down. What is said upon the other side? They agree that all these things may be done. What do they say? Well, they say that they cannot be done in time of peace,—that you cannot defend yourself by the exercise of force on the high seas in time of peace. Where, I should like to know, is any such doctrine as that laid down? I hope my learned friends will find some authority for those positions. I have never been able to find such authority. The assertionis that a nation cannot defend ORAL ARGUMENT OF JAMES C. CARTER, ESQ. 247 itself by an act of necessary force in time of peace—a thing that an individual may do in civil society, a nation cannot do; and cannot do when there is no other means of protecting itself! Of course it must be instantly perceived that if this power of defending itself and its property from injury against the citizens of other nations, is something which a nation cannot exercise in time of peace—if that is true—the assertion that it has any rights at all is mere empty sound. A right that cannot be defended amounts to nothing. I would like to have those who assert that a nation cannot defend itself and its property in time of peace by acts of necessary self-defence, tell me how it can defend them. I hope they will be able to tell me. If a nation cannot defend its admitted and conceded rights in that way, I hope they will be able to point out some way in which those rights can be defended and protected. But there is no truth in the assertion that the exercise by a nation of the right of self-defence, by the employment of acts of necessary force, is confined to times of war. There is no substance in that. The right exists in time of peace just as well. Whenever the necessity arises, the right arises, whether it be in time of war or time of peace. It may arise in peace just as much as in war. In point of fact the principal occasions, and the most frequent occasions, for the exercise of this right happen to occur in time of war, and, therefore, the instances in which it is exercised and the rules which govern its exercise are found in belligerent conditions far more than in conditions of peace. The absence of the occasion is the reason why we find less discussion of these rights in time of peace, and a want of rules for regulating them ; but nevertheless the occasion may arise, and when it does arise, then the power must be put in force. Now, let me call the attention of the Tribunal to occasions when it does arise in times of peace. In the first place, let me allude to those municipal regulations which are devised by different states for the purpose of protecting their revenue. I before remarked that the protection of the revenue of a nation could not well be effective unless the conduct of foreign vessels could be controlled at a greater distance than three miles from the land. If a vessel intending a breach of the revenue laws of a nation had the power to approach its shores to a distance of three miles from the land, and wait outside of that limit for a favorable opportunity to slip in, or to unload its cargo into another vessel sent clandestinely from the shore, it might at all times evade its revenue laws, and, consequently, most nations—certainly Great Britain and the United States—Great Britain from a very early period and the United States almost from the period of her independence—have enacted laws prohibiting vessels from transshipping goods or hovering at a distance much greater than that of three miles—three or four leagues from the shore being the area commonly fixed upon. What is the penalty which they denounce for that purpose? The penalty is capture and confiscation. Does that penalty, and the enforcement of that penalty involve an extension of jurisdiction out to that limit of three or four leagues? Certainly not. It is an act of self-defence. It is an executive act, designed to protect the revenue interests of the country. So also in the case of colonial trade, a similar device was formerly adopted for the purpose of preventing the approach of vessels in the neighborhood of the colonies of another country, for the purpose of engaging in illicit trade with such colonies. In order to enforce such prohibitions, it was necessary that regulations should be adopted prohibiting vessels from hovering off the coasts. Consequently, if a vessel appeared off the 248 ORAL ARGUMENT OF JAMES C. CARTER, ESQ. coast and did what was called "hover", that is not proceed upon her voyage, but wait there apparently for a favorable time to run in, she subjected herself to the penalty of those laws, and might be captured. I think no nation has ever resisted the enactment or enforcement of those laws. The President. I do not think you are quite right about that. Mr. Carter. So far as I am aware. There may have been cases where they were enforced under exceedingly unreasonable conditions; but I do not myself remember them. The President. 1 believe cases of that sort have given rise to international communication, between nations. It may be that they have led to agreements. Mr. Carter. Of course, I will not be at all certain that such has not been the case. My acquaintance with them, I confess, has been derived mainly from the treatment of them that we find in books of international law; they are treated in such books as exercises of the power of self- defence, not objected to by nations, unless they are attempted to be enforced in a very unreasonable way. To illustrate them, I must again refer to a decision which I have alluded to once before. This was the case where a vessel was seized in time of peace outside the three-mile limit for a violation of a regulation such as I have alluded to. It is the case of Church v. Hubbart. (2 Cranch U. S. Sup. Court Eeports, p. 189.) I read from the opinion of Mr. Chief Justice Marshall on page 181 of my printed argument : That the law of nations prohibits the exercise of any act of authority over a vessel in the situation of the Aurora and that the seizure is, on that account, a mere maritime trespass, not within the exception, cannot be admitted. To reason from the extent of the protection a nation will afford to foreigners, to the extent of the means it may use for its own security, does not seem to be perfectly correct. It is opposed by principles which are universally acknowledged. The authority of a nation within its own territory is absolute and exclusive. The seizure of a vessel within the range of its cannon by a foreign force is an invasion of that territory, and is a hostile act which it is its duty to repel. But its power to secure itself from injury may certainly be exercised beyond the limits of its territory. Upon this principle the right of a belligerent to search a neutral vessel on the high seas for contraband of war is universally admitted, because the belligerent has a right to prevent the injury done to himself by the assistance intended for his enemy. So, too, a nation has a right to prohibit any commerce with its colouies. Any attempt to violate the laws made to protect this right is an injury to itself which it may prevent and it has a right to use the means necessary for its prevention. These means do not appear to be limited within any certain marked boundaries, which remain the same at all times and in all situations. If they are such as unnecessarily to vex and harrass foreign lawful commerce, foreign nations will resist their exercise. If they are such as are reasonable and necessary to secure their laws from violation, they will be submitted to. In different seas and on different coasts, a wider or more contracted range in which to exercise the vigilance of the government will be assented to. Thus in the Channel, where a very great part of the commerce to and from all the north of Europe passes through a very narrow sea, the seizure of vessels on suspicion of attempting an illicit trade must necessarily be restricted to very narrow limits ; but on the coast of South America, seldom frequented by vessels but for the purpose of illicit trade, the vigilance of the government may be extended somewhat further, and foreign nations submit to such regulations as are reasonable in themselves and are really necessary to secure that monopoly of colonial commerce, which is claimed by all nations holding distant possessions. \ If this right be extended too far, the exercise of it will be resisted. It has occasioned long and frequent contests which have sometimes ended in open war. The English, it will be well recollected, complained of the right claimed by Spain to search their vessels on the high seas, which was carried so far that the Guarda Costas of that nation seized vessels not in the neighborhood of their coasts. This practice was the subject of long and fruitless negotiations, and at length of open war. The right of the Spaniards was supposed to be exercised unreasonably and vexatiously, but it never was contended that it could only be exercised within the range of the cannon from their batteries. ORAL ARGUMENT OF JAMES C. CARTER, ESQ. 249 Indeed, the right given to our revenue cutters to visit vessels four leagues from our coasts, is a declaration that in the opinion of the American government no such principle as that- contended for has real existence. Nothing, then, is to be drawn from the laws or the usages of nations, which gives to this part of the contract before the court the very limited construction which the plaintiff insists on, or which proves that the seizure of the Aurora by the Portuguese governor was an act of lawless violence. That very extract—I think the whole of it; at all events the most substantial part of it—was quoted by Lord Chief Justice Cockburn, of England, in delivering his judgment in the very celebrated and rather recent case of the Queen v. Kehn. It is found in the 2nd Exchequer Beports. I do not know but my learned friends may have it in their possession. I find that I have the passage. The part to which I particularly refer will be found on page 149 of our printed argument. Lord Chief Justice Cockburn says: Hitherto legislation, so far as relates to foreigners in foreign ships in this part of the sea, has been confined to the maintenance of neutral rights and obligations, the -prevention of breaches of the revenue and fishery laws, aiid, under particular circumstances, to cases of collision. In the two first, the legislation is altogether irrespective of the three mile distance, being founded on a totally different principle, viz, the right of the state to take all necessary measures for the protection of its territory and rights and the prevention of any breach of its revenue laws. 'Tin8 principle was well explained by Marshall, C. J., in the case of Church v. Hubbart. And he then cites the passage which I have just read from that opinion. [The Tribunal thereupon adjourned until Tuesday, April 25,1893.] FIFTEENTH DAY, MAY 2nd, 1893. [Thé Tribunal convened pursuant to adjournment, all the Arbitrators being present.] The President. Mr. Carter, we are ready to hear you. Mr. Carter. Mr. President, at the last sitting of the Tribunal at which argument was heard, a question was addressed to me by the learned President in the course of my argument which I did not at the moment precisely understand, or I should have answered it at that' time. T thought it had more particular reference to the construction to be placed upon Article VII of the Treaty, and therefore said that I would postpone my answer to it until I came to treat of that article. I had been insisting that the grounds and reasons of my argument in support of the proposition that the United States had a property interest, were not drawn from considerations selfish and peculiar to the United States, but were such as interested the whole world; that the property was one in which the whole world had a beneficial interest. The question which the President addressed to me was whether that property interest was of the kind mentioned in the fifth question to be submitted under the treaty, or whether it was a qualified property interest of a different kind. I should be misunderstood if it were supposed that the asserted property interest of the United States in the seals was anything less than a full and complete property interest." The grounds upon which we support that interest do, indeed, include among other things, the common interest of mankind in the seals, which can be worked out and made available to the different nations only through the instrumentality of awarding a property interest to the United States; but that property interest, when awarded, is in no respect different from a property interest held under other circumstances. It is a full and absolute property, eutitled to all the protections of property, and which confers upon the owner all the rights which property under any circumstance confers. It is therefore the sort of property interest mentioned in the fifth question which is submitted under the treaty. I now resume my argument upon the question whether, assuming that the United States has a property in the seals, or a property interest in the industry which it maintains upon the Pribilof Islands, it has the right to protect that property, or that property interest, when necessary, by the employment of reasonable force on the high seas. I had supported the affirmative side of that question by showing that it was the necessary consequence of the award of such a right; that there was no other way in which a nation could protect its rights when invaded upon the high seas except by the employment of force. I had undertaken to show that that was the universal method which nations pursued, and had illustrated my view by referring to many instances, most of them drawn from the class of belligerent rights, where force was thus employed by a nation upon the high seas to prevent any invasion of its rights. ORAL ARGUMENT OF JAMES C. CARTER, ESQ. 251 The answer intimated to that view in a part of the argument of Great Britian is that the instances in which a nation may employ force upon the high seas to protect its rights and to capture vessels'by means of the employment of force, were limited to cases of belligerency, and do not exist in time of peace. I proceeded to say that that was not the case; that although the instances were more frequent in time of war where the employment of force was resorted to, still whenever the necessity occurred, which was the sole foundation of the right, it was resorted to in peace just as much as in war. I alluded, in support of that view, to the opinion of Mr. Chief Justice Marshall of the Supreme Court of the United States in the case of Church vs. Hubbart, which was a case where a nation had established a regulation for the purpose of protecting its colonial trade. The vessel of another country contemplating an enterprise of an illicit character, in violation of the exclusive right of the nation referred to in its colonial trade, was found, outside of the three mile limit actually engaged, however, in an attempt to carry on this prohibited trade contrary to the regulation. She was seized, carried in, and condemned, and that condemnation was fully sustained by the Supreme Court of the United States. Not only was the condemnation itself supported, but the regulation was also sustained as a lawful one. That decision I had also occasion to say had been cited with approval, and extended citations from it read with approval by Lord Chief Justice Cockburn of the Court of Queen's Bench in England, in giving his opinion in the celebrated case of the Queen vs. Kehn. With the citations of those commanding authorities, I might well leave the subject. That decision in the narrowest view of it fully sustains the right of a nation to employ force in time of peace upon the high -seas for the purpose of arresting and capturing a vessel which is actually engaged in an invasion of its rights. That proposition is fully supported by the decision itself; and the propriety of regulations for the purpose of governing the exercise of that right is supported by the language of the opinion. It is, however, true—and a distinction is to be noticed here—that regulations designed to govern the exercise of this right of self-defence sometimes go a step further than the mere making of provision for the seizure and capture of a vessel on the high seas, when she is actually engaged in an offence against the laws of the nation which undertakes the seizure. They sometimes go a step further than that, and make the conduct of a vessel, if it justifies a suspicion that she intends illicit or prohibited trade, or intends any other violation of the laws of the nation adopting the regulation, itself an offence, although, in point of fact, it might be true that the vessel was not actually engaged in such violation. When regulations of this character go to that length, they.go beyond the mere right of employing force, and enter the field of legislation, and assume a limited and qualified right to make laws operative upon the high seas. That is the nature of regulations when they undertake to make acts offences which are not, in their nature, necessarily offences. If a vessel is actually engaged in an attempt to carry on a prohibited trade with the colony of a nation, that act is, necessarily, in itself a violation of the rights of that nation; but if she is not so engaged, but happens to be involved in circumstances which throw suspicion upon the nature of the enterprise in which she is engaged, and justify a suspicion that she is really contemplating a prohibited trade, if there is a regulation which makes that conduct, of itself, a crime, that, we must 252 ORAL ARGUMENT OF JAMES C. CARTER, ESQ. admit, is a piece of legislation, and assumes the right—a limited right, it is true—of passing laws operative upon the high seas. All the doubt and all the controversy which have arisen in reference to this question of the exercise by a nation of the right of self-defence upon the-high seas, turns upon the validity of regulations of that sort, regulations which go beyond the mere shaping of the right of self- defence and prescribing how it shall be exercised, and undertake to create distinct offences. The power of a nation to do that has been disputed, and may perhaps be still the subject of dispute. It will be observed that this exercise, even of the right of legislation in the cases which I have mentioned, does not involve an assumption o'f a general authority to legislate over the seas. It is limited strictly to the case of self-defence, and is calculated to provide means by which that right of self-defence may be more efficiently exerted; but, nevertheless, it does partake of the quality of legislation. Whether it is valid or not, has been disputed. That precise question arose in the Supreme Court of the United States in the case of Bose vs.TLimely, which is reported in 4th Cranch,page241. The circumstances of that case were substantially these: The French authorities had made an ordinance prohibiting vessels from sailing within two leagues of the island of San Domingo at certain places, and under certain conditions. A vessel was captured that had violated that ordinance, but the capture was made outside of the two-league limit. The question was whether that capture could be sustained, that is to say, whether a capture by one nation upon the high seas of a vessel belonging to another nation, which had been engaged in violating a municipal regulation, was lawful. Chief Justice Marshall was of opinion that it was not lawful; but a majority of the members of the court did not agree with him upon that point, and so the question was passed over without being decided, the case being disposed of upon another point. It again arose for decision in the case of Hudson vs Guestier, 6th Cranch, 281. That case involved a violation of.the same ordinance, and the capture had been made outside of the two-league limit. This case of Hudson vs Guestier is reported twice. It came before the Supreme Court on two occasions; and the proof upon the last occasion, which is the one to which I refer, as to the locality of the capture, was different from what it was when it came before the court in the first instance. In the last instance the evidence showed, that the capture had taken place outside of the two-league limit. Upon the second argument it was held by a majority of the court that the capture was lawful; and the expressions in the opinion of Mr. Chief Justice Marshall, in Bose v. Himely—his dicta to the contrary effect—were overruled; and therefore, so far as the Supreme Court of the United States is concerned, it is held that regulations of the character I have mentioned, even when they go further than to merely provide for capturing a vessel that is actually engaged in a violation of the right of a nation, and constitute a prohibited area within which a vessel must not go, whether upon a rightful or a wrongful mission, are in accordance with international law. Let me say, however, that the United States, upon this argument, avoids all controversy of that sort. We do not ask for the application of any doctrine, even although we might, to the effect thaifcwe can establish any prohibited area on the high seas and exclude the vessels of other nations from it. We do not ask to have it determined that the United States has the right to say that the offence of pelagic sealing when committed by vessels of another nation is a crime for which we ORAL ARGUMENT OF JAMES C. CARTER, ESQ. 253 can punish the officers and crew of such vessel. That would be legislating for the high seas. We do not ask for a decision that the United States can make a law and enforce it, by which she could condemn a vessel that had been engaged at some past time in pelagic sealing, if the vessel was not so engaged at the time of seizure. The doctrine maintained by us simply amounts to this, that whenever a vessel is caught red handed, flagrante delictu, in pelagic sealing, the Government of the United States has the right to seize her and capture her; that is to say, it has the right to employ necessary force for the purpose of protecting, in the only way in which it can protect, its property in the seals, or its property interest in the industry which it maintains upon the islands. That is the extent of our claim. If the United States cannot protect their property in that way, how is it possible for them to protect it at all. My argument assumes, of course, that I have been successful in showing that the United States has a property interest in these seals wherever they are, and, upon the high seas, as well as upon the land; or, if not that, that it has a property interest in the industry which it carries on at the Pribilof Islands, which they are entitled to protect. The practice of pelagic sealing, we have shown, is destructive of both, and is a wrong in itself. The United States cruiser finds a vessel actually engaged in destroying these seals, the property of the United States. She warns her off- commands her to desist from the trespass in which she is engaged. Suppose the vessel refuses, what is to be done then? Is the cruiser to allow her to proceed in the execution of her trespass, stay by her, follow her into some port, and there, in the name of the United States, seek redress iu the municipal tribunals ? Is the remedy of the United States limited to that? That, of course, would be wholly ineffective; and if it were effective in any degree, or in any instance, it would require the entire navy of the United States to carry it fully out. You would require a ship of war for every pelagic sealer. That, of course, would be absolutely ineffective; nor would it comport with the dignity of a nation. No nation has ever yet condescended, in the defence and protection of its rights upon the high seas, to wait until it could resort to the municipal tribunal of some power and there seek to obtain such justice as might be afforded. One other resort might be suggested. It might be said that the Government of the United States might make the conduct of these Canadian pelagic sealers under such circumstances the subject of complaint to Great Britain herself. What should it say to Great Britain? Ask her to prohibit this conduct? How could Great Britain prohibit it? Only by employing a part of her fleet to do it. Is it the business of one nation to furnish a force to protect rights of another nation? Would not the prompt answer of Great Britain under such circumstances be: "This is not our act; we do not adopt these acts of the Canadian sealers ; we agree that you have a property in these seals ; we do not command, encourage, or in any manner assist, the action of these pelagic sealers; if they are trespassing upon the rights of the United States, is that nation so feeble that it cannot defend itself upon the high seas?" What reply could the United States make to such a response as that? No; there is no way in which a nation can protect its rights upon the high seas other than by the employment of force—force employed as an individual would employ it; force not derived from any law whatever, but force derived from the fact that the nation has a right upon which some one is trespassing, a trespass which the nation cannot prevent in 254 ORAL ARGUMENT OF JAMES C. CARTER, ESQ. any other way, except by the employment of force. These methods of defending national rights, frequently asserted in time of war, are not so frequently asserted in time of peace, but only because the necessity does not so frequently arise. But still they are asserted, and must be asserted, whenever a nation seeks to protect with efficiency her colonial trade from invasion, or her revenue laws against smuggling by citizens of other nations; and must be asserted whenever she wishes to enforce with efficiency in time of contagion her quarantine laws. They must be asserted whenever a case arises in which the rights, or the property, or the well being of a nation are endangered by the acts of citizens of. other nations upon the high seas, whether in peace or war. Inasmuch as I wish to be precise upon this point, I have drawn up a series of propositions which embrace the views entertained and asserted by the Government of the United States upon this particular subject. And they are these: First. The territory of a nation consists of the land within its dominion and what are commonly called its territorial waters, which embrace interior gulfs, or bays nearly enclosed by its territory, but connected with the sea by narrow straits separated by headlands, and a narrow belt of the open sea along the shore, of the width, as commonly allowed, of three miles, or a cannon shot. Second. The exercise of the sovereign legislative power of the nation is limited to its territory as above described, except in special instances where, for reasons of necessity, a nation may exercise a limited legislative power over neighboring parts of the sea beyond the narrow belt above mentioned. Outside of the territory of the nation its laws, as laws, have, except as above mentioned, no operation or effect. The ships of a nation, however, are, even when on the high seas, deemed to be a part of its territory. Third. Nor can a nation, with the special exception above mentioned, take any action outside of its territory for the purpose of enforcing its laws, or punishing a breach of them. Its writs, or other processes, or orders of its courts, cannot be lawfully executed outside of its territory. Fourth. Two sovereign nations cannot exist together upon the same land. The sovereignty of one must necessarily yield to that of the other. But all sovereign nations may co-exist upon the seas. They may go and be there as individual persons upon terms of absolute equality. In legal contemplation they are there whenever the interests which they are bound to defend, such as their property, their citizens, or the property of their citizens, are there. Fifth. In the just defence of its existence, or its rights, a nation may employ, anywhere upon the high seas, against those who attack its existence or rights, such force as may be necessary and reasonable. This is a self-evident proposition; for, inasmuch as a nation cannot prevent invasions of its rights.upon the high seas by legislation, or by judicial proceedings to enforce legislation, it would be absolutely without means for protecting them; unless it had the power of necessary self-defence. Any suggestion that it might institute civil suits against trespassers in the municipal courts of other nations would be to no purpose. Such proceedings would be wholly ineffective, and would, besides, not comport with the dignity of the nation. Sixth. The action of the officers and agents of a nation in exercising this right of necessary self-defence may, and should, be governed by rules and regulations, which may, according to the internal constitution of a nation, and the distribution of its powers, assume the form of executive instructions, or municipal laws, or rules. Neither are necessary to the exercise of the power. They serve to govern the exercise of the power which exists independently of them. In constitutional governments, where the sovereign power is distributed among different departments, such rules and regulations may be necessary. Other governments cannot insist upon them. Seventh. In the exercise of this power of self-defence the nation is responsible to other nations whose citizens may have suffered from its exercise. If a necessity is shown for its exercise, and the limitations of such necessity have been observed, the act is justified. If otherwise, a wrong has been committed and reparation must be Eighth. The capture by a belligerent nation of the vessels of a neutral power when found carrying contraband of war or engaged in running a blockade is a familiar ORAL ARGUMENT OF JAMES C. CARTER, ESQ. 255 instance of the exercise of this right of self-defence. The rules derived from the practice of nations governing the exercise of such right of capture, with such other reasonable rules as the belligerent nation may prescribe, are not municipal laws, in the full sense, but regulations designed to govern the conduct of the officers and agents of the belligerent, and to prevent abuses of the right which would make the belligerent answerable to the neutral nation whose ships have been captured. The prize courts which administer these rules, although proceeding according to judicial methods, are not really courts administering justice between man and man, like instance courts, but agencies for the purpose of informing the belligerent sovereign whether he ought to sustain a capture as regular and rightful, or admit it to be a wrong, for which reparation is to be made. (Rose v. Himely, opinion of Johnson, J., 4 Cranch, 282.) Ninth. The notion that this right of self-defence is a purely belligerent right and cannot be exerted in time of peace is unfounded. It proceeds upon the manifestly erroneous assumption that the rigiits of a nation upon the seas cannot be attacked, or endangered, except in time of war; That the instances calling for the exercise of the right in time of war are more frequent, and that they are comparatively rare in time of peace, is true ; but that they may, and do, arise in time of peace is equally Tenth. If it were true that a nation could not exercise in time of peace any act of force to protect its rights, it would follow that a nation could not interfere with a vessel under a different flag which was hovering on her coast,.outside of the three mile limit, with an openly avowed intention of evading the revenue laws of the nation; or interfere with a vessel hovering in like manner and at a like distance from the coast of a nation's colony with an openly avowed intention of engaging in illicit trade with such colony ; or interfere with a foreign vessel hovering outside of the three mile limit on the coast of a penal colony with an avowed intention of running in at a favorable moment and rescuing convicts; nor, if this were true, could a nation prevent a foreign ship with an infectious disease on board from coming within a distance of four miles from a port, even though it was reasonably certain that the disease would thereby, and at that distance be communicated to its people. Such conclusions would be repugnant to reason, as well as to the actual practice of nations. Eleventh. The municipal laws or rules adopted by nations to govern the exercise of the right of self-defence are not always rigidly limited to a regulation of that right ; but sometimes go further and seek to exercise a limited legislative power beyond the territorial limits of the nation. So far as they have the latter purpose in view they are exceptional, and can be defended only upon grounds of special necessity. Rules and regulations providing for the seizure and condemnation of a vessel actually engaged in running a blockade would be a mere regulation of the strict right of self-defence and be open to no objection; but if they went further and provided for the trial and punishment of the officers and crew, or for the seizure and condemnation of vessels for past breaches of a blockade, they would transcend the necessities of self-defence and assume the character of legislation. The arrest, trial, and conviction of persons for acts done by them on the high seas assume the right of legislating for the high seas ; and the same thing may be said of a law which subjects a vessel to seizure and condemnation, not for a present invasion of the rights of a nation, but for one which has been completed and is past. And so, also, it might be contended that a municipal law designed to prevent smuggling, or illicit trade, by prohibiting vessels from hovering within certain prescribed distances from the coast, transcended the requirements of necessary self- defence and partook of the character of legislation. The actual practice of nations has been not to .draw a rigid line between the two descriptions of power, but to sanction reasonable restrictions and prohibitions imposed by a nation, although partaking of the character of legislation, when they were fairly designed to secure the purposes only of a just self-defence. (Church v. Hubbart, 2 Cranch, 287.) Twelfth. But it is not necessary for the Government of the United States to insist, ' nor does it insist, upon a right to punish individual citizens of other nations who have been engaged in pelagic sealing as having been guilty of a crime, nor upon a right to seize and condemn vessels for having in the past been guilty of pelagic sealing, nor upon a right to establish any area of exclusion around any part of its territory. It insists only that if it be determined that it has a property in the Alaskan seal herd, or a property interest in the industry which it maintains upon the Pribilof Islands, that it follows, as a necessary consequence, that it has the right to prevent the invasion and destruction of those property interests, or either of them, by pelagic sealing, by the employment of such force as is reasonably necessary to that end. Thirteenth. The Government of the United States conceives that, if its contention that it has the property interests asserted by it, one or both, be established, and a, vessel fitted out for the purpose of pelagic sealing, under whatever flag, should approach the neighborhood of the Pribilof Islands and engage in the taking of seals at sea. it would have the right to prevent such taking of seals in the only manner in 256 ORAL ARGUMENT OF JAMES C. CARTER, ESQ. which it would be possible to prevent it, namely by the capture of the vessel; and that it can make no difference whether such vessel be three, or four, or more, miles from such islands ; and that if such capture can be made anywhere within four miles of said islands, it may lawfully be made at any distance from the islands where such right may be invaded, in the same manner. Fourteenth. The United States insists that it would have the right last above mentioned without passing any municipal law, or adopting any municipal regulation, to secure it, or to govern its exercise: but it, at the same time, supposes that the passage of a law regulating the exercise of such right and providing for a mode of condemnation of vessels seized, would be entirely proper, and one of its reasonable duties. That it would serve the same just purposes as are answered by prize laws, namely, to give the citizens of other nations notice and warning of its intentions, regulate the conduct of seizing officers, prevent injustice and oppression, and inform the government, and other governments, respecting the regularity of any seizure, to the end that, if rightful, it should be adopted by the United States, and acquiesced in by other governments which might be interested ; and, if otherwise, be repudiated and made the subject for just reparation. Fifteenth. In respect to the seizures actually made and decrees of condemnation thereon, the United States perceiyesno particular in which theyare irregular, unjust, or not defensible as an exercise of the right of necessary self-defence. It does not defend any sentence of fine and imprisonment imposed upon any citizens of other nations for engaging in pelagic sealing; but insists that any invalidity with which such sentences may be affected, has no tendency to impair the validity of a condemnation otherwise valid. Sixteenth. The familiar law of piracy illustrates and confirms the foregoing conclusions. The general consent of nations has sanctioned the practice of the arrest, trial, and sentence of pirates, even when they have not invaded any right of the nation so dealing with them, or its citizens, either of person or property. Pirates are every where justiciable. This is an exceptional instance in which nations are permitted to defend the-general order, security, and peace of the seas. But it cannot be doubted that, irrespective of such general consent, and had it never been given, any nation would have the right to defend one of its own ships from capture by pirates, and, in the course of such defence, and as a part of it, to capture the piratical vessel and condemn it by proceedings in its own courts. Seventeenth. The Government of the United States, therefore, bases its claim to defend its property interest in the seal herd and in its industry maintained upon the Pribilof Islands by such force exerted upon the high seas as may be reasonably necessary to that end upon the followings grounds : 1. The reason and necessity of the thing, there being no other means adequate to the defense of such rights. 2. The practice and usage of nations which always employ this means of defence. Those, then, are the grounds upon which the United States asserts its right to the employment of reasonable force. If it has a property in the seals, that property is invaded whenever they are attacked by pelagic sealers, and that property interest in the seals themselves, and the necessity of defending it give the United States the right to prevent that practice by the arrest and seizure of the guilty vessel. If it should be decided that it has not a property interest in the seals themselves, but has a property interest in the industry which it maintains upon the Pribilof Islands—a rightful, lawful and useful industry—then its right to arrest the practice of pelagic sealing upon the sea does not depend upon a property interest in the seals but upon the fact that that practice is an essential wrong, and is, besides, an invasion of the rightful industry which the United States carries on upon the land. To justify that act of pelagic sealing, it is necessary to show that it is in itself a right, and if that were shown, then the United States would have no right to interfere with it; but if it is in itself a wrong—if, upon the fundamental and immutable distinctions between right and wrong everywhere prevalent, upon the sea as well as upon the land, that act of destroying a useful race of animals is not defensible as a right, then, ORAL ARGUMENT OF JAMES C. CARTER, ESQ. 257 interfering as it does with the lawful rights and industry of the United States, it has the right to prevent it, and to prevent it by the employment of force. We have two grounds, therefore, upon which we assert the existence of this right to the employment of force: The first is, the reason and necessity of the thing; because the declaration that we have a right involves the concession that there is some means of defending it. To say that a nation has a right which at the same time the citizens of every other nation may trample upon and violate with impunity, is to commit a solecism. Such a thing as that would have none of the characteristics of a right. We defend it, in the next place, upon the practice and usage of nations. Wherever a nation is shown to have a right upon the high seas which is endangered by the wrongful acts of the citizens of other nations, there, according.to the usage and practice of nations, at all times, in peace or in war, that right has been defended by the employ- ir "lit of reasonable force. Now, Mr. President, I have concluded my argument upon the question of the right to employ force upon the high seas. I must now contemplate the possibility that this Tribunal may decide either that the United States has no property in the seals, and no property interest in the industry carried on upon the Islands of which pelagic sealing is a wrongful invasion; or that, if it has those rights, or either of them, it still has no power to protect them by the seizure and condemnation of a vessel engaged in the practice of pelagic sealing. In either of those cases, the United States would have no power to protect the seals from extermination, and consequently, the subject would be left, to borrow the language of the Treaty, in such a condition as to require this Tribunal to proceed to the consideration of the last matter which is submitted to it, namely, what regulations it is necessary to establish for the purpose of preserving the seals. Sir Charles Eussell. I beg my friend's pardon for a moment. Mr. President, I wish to re-state the position which at an early part of these proceedings we took upon the question of the order of proceeding. We maintained, and maintain, that the questions of right raised in various forms, the first five questions of article VI, are distinct from, and are to be dealt with in argument, distinct from the question raised in article VIT, which is the matter of regulations. I understand, however, from my learned friend that it would be a convenient thing for him to be allowed to continue his discussion and end his address to the Tribunal, and to cover in that address his views upon the question of regulations. I do not, therefore, ask any opinion from the Tribunal as to whether that course ought or ought not to be permitted. I interpose no obstacle; but I wish to intimate to the Tribunal that we do not recede from the position we took here, and we shall respectfully claim the right to present complete, by my learned friends and myself, our argument upon the question of right, and not mix up with that question of right the entirely separate and distinct question embracing different considerations which touch the matter of regulations. With that respectful representation of our views to the Tribunal, I do not further interpose. The President. We thank you, Sir Charles, for the views which you take of the manner of proceeding. The Tribunal have agreed that they would allow the counsel, of either party to proceed in their argu- b I pt xii-^-47 L 258 oral Argument of james c. carter, esq. ment, according to their own convenience. We have merely asked the counsel in the proceeding here as much as they would deem it possible, to treat separately in two distinct parts of their argument the legal questions which are enumerated in article VI of the Treaty, and the question of regulations which is alluded to in article VII. This, I notice, Mr. Carter is prepared to do. He has been dealing until now with the legal questions, and I think he is coming now to the points which are referred to in article VII. Consequently that is quite according to What we ask you to do, and we are much obliged to you that you do it. The counsel for Great Britain ask for no opinion on the part of the Tribunal and consequently the counsel for Great Britain will be free to treat the matter according to their own convenience, either separately in two distinct arguments, or else in the same way as Mr. Carter has dealt with it. I conceive that with the agreement of all parties Mr. Carter is free to continue his argument as he intended. Mr. Justice Harlan. If the President means to say for the Tribunal that there is a recognized right of counsel to make two arguments, first, on the five questions named in article 6, and after that, at some future time, to claim a right to enter into a distinct argument as to regulations, I do not concur in that view. And 1 do not understand that the Tribunal have so decided. I do not think we need to retire to consider that. I make these observations so that it will not hereafter be said that the right is reserved to cut this argument in two and to have this Tribunal make an intimation as to our conclusions upon the first five points in article VI and thereby inform the public of our conclusions upon those points before we take up the subject of regulations. I do not wish to be understood as concurring in that view. Lord Hannen. That is a different question. We have not expressed any opinion, or attempted to come to a conclusion upon that point otherwise than is indicated by Mr. Justice Harlan. I regret that there is a difference between us as to what was agreed upon; but perhaps we can consider that at our adjournment. Mr. Justice Harlan. I do not understand that there is any difference between us as to what we have decided. We did agree that counsel should proceed in their argument as they should deem proper covering these questions. But I understood the President a moment or two ago to say that the Tribunal had decided, or were to be understood as having decided, that the counsel for the British Government could proceed with his argument on the main questions according to his own pleasure, and, at some future time, after an intimation of our opinion upon the first five points, make an argument upon the subject of regulations. I understood counsel at an early stage of our proceedings to say that he would claim those rights. I only intervene now to say that I have not understood that the Tribunal have decided any such thing, or that we have considered that matter. The President. I believe that the counsel for Great Britain do not now ask us to deliver any sort of opinion after they have treated the legal points. I merely understood that they ask to be allowed that several of them might speak and argue.upon the legal points and, after that, resume the argument about the regulations. That is a mere matter of division of work between themselves. One of them will begin speaking about legal points; another will continue about legal points and then afterwards resume the argument with reference to the regulations, p ORAL ARGUMENT OF JAMES C. CARTER, ESQ. 259 Sir Charles Eussell. If I may with propriety interpose, there is no reason why I should not explicitly state what we mean. What we mean is this: That my learned friends and myself propose to submit a complete argument, dealing with one subject, and one subject only, distinct and separate in its character and to which legal considerations alone apply; that having presented that argument, unmixed and uncon- fused with any other on a different subject, we shall then, at what ever moment is convenient to the Tribunal, proceed, may be immediately, to discuss the question of regulations; but that we shall present two arguments separately. Lord Hannen. You will not call upon us to give a decision upon the five points before your argument upon the question of regulations? Sir Charles Eussell. No, my Lord, I have not suggested that at all. Lord Hannen. That is the only question upon which it is suppo there is a difference between us, and that will, of course, disappeai view of your explanation. Sir Charles Eussell. I ought to state, perhaps, that I mentioned this to my learned friend, Mr. Phelps, as a course which might obviate the necessity of the Tribunal being called upon to make any decision upon a legal point as to which there might, or might not, be differences of opinion amongst the Tribunal ; and I think my learned friend will say that he recognised my suggestion as a reasonable one. Mr. Phelps. Yes; the course suggested by.Sir Charles Eussell will be quite acceptable to us. The only point of difference at the outset was that suggested whether the Tribunal was called upon to express a decision, or an opinion, upon the previous points before hearing the argument in respect to the regulations; but as counsel on both sides understand it now, that claim will not be made; and we do not object at all to the course of the argument proposed by my learned friend on the other side. Justice Harlan. Of course what I state shows that I made no criticism of that arrangement at all. I only understood the observation of the President to go beyond that. That is why I made any remark. The President. I merely say that counsel for Great Britain will be free to argue their case as they like, and divide their work between themsel^ies as they like. The Tribuual have agreed in leaving all liberty to counsel for either party to argue their case as they like, and the Tribunal not to make any decision until the whole argument of the case has been gone through by both parties. I think we have now come to an agreement and we are ready to have Mr. Carter proceed. Mr. Carter. The subject, Mr. President, which is now to engage my . attention is that which, in a certain contingency contemplated by the treaty, has reference to the framing of regulations, to be concurred in by Great Britain, for the preservation of the seals. I think I have several times observed in the course of my argument that, however the two nations may have differed upon what may be called questions of right, and however wide their differences may have been upon those questions, there is one point upon which they were agreed at the outset, and upon which they have been at all times since apparently agreed, and upon which I hope they will continue to be agreed until the argument of this controversy is disposed of; and that is, the necessity upon all grounds and in the interest of all nations that this useful race of animals should not be exterminated, but should be preserved, and its benefits and blessings be made available perpetually for the use of man- 260 ORAL ARGUMENT OF JAMES C. CARTER, ESQ. kind It will be seen that the treaty itself possesses two principal aspects. One of them calls upon this Tribunal to determine certain questions affecting assertions of right upon the part of the United States, which questions, were they decided in favor of the United States, would, or might, presumably, confer upon that nation the right to exercise this power of protection, and render any further consideration of the question of protection needless. The next feature of the treaty is that, if those questions should be determined adversely to the United States, so that that Government would not have the power itself to take measures for the preservation of the seals, then the Tribunal should consider what measures the two nations should take conjointly with each other to that end. There is, or may be, a question as to the interpretation of article VII of thé Treaty, which I will now read : If the determination of the foregoing questions as to the exclusive jurisdiction of the United States shall leave the subject in such position that the concurrence of GTeat Britain is necessarv to the establishment of Regulations for the proper protection and preservation of the fur-seal in, or habitually resorting to, the Behring Sea, the Arbitrators shall then determine what concurrent Regulations outside the ■jurisdictional limits of the respective Governments are necessary, and over what waters such Regulations should extend, and to aid them in that determination the report of a Joint Commission to be appointed by the respective Governments shall be laid before them, with such other evidence as either Government may submit. The High Contracting Parties furthermore agree to cooperate in securing the adhesion of others Powers to such Regulations. The language which is used in the beginniug of this article is " If the determination of the foregoing questions as to the exclusive jurisdiction of the United States". There are five foregoing questions and all the five seem to be embraced by that language. And yet when we look to the last of those five questions, we find it to be, " Has the United States any right, and if so, what right, of protection or property in the fur-seals frequenting the islands of the United States in Behring Sea when such seals are found outside the ordinary three-mile limit ? " That does not appear, on its face, to be a question relating to the exclusive jurisdiction of the United States, and therefore it would not, on its face, appear to be properly described by the language with which the seventh article begins. My own impression is that that fifth question is regarded by this seventh article of the treaty, as a question relating to the 'exclusive jurisdiction of the United States, using that word "jurisdiction" in the sense in which it is so often used, in the sense of power. In other words, the Treaty regards the question, whether the United States has any exclusive property interest in the seal herd, and an exclusive right to protect them upon the high seas, as a question of jurisdiction on the high seas; proceeding upon the view that if the United States has the exclusive property in them, or a property in this industry which justifies them in exercising a right of protection, that it has the exclusive right of protection upon the high seas, and that that is properly enough styled a question of "jurisdiction". I myself incline to that interpretation, but as I have already said in a former part of my argument, it is not necessary to go into any nice interpretation of the language in I that particular; for whichever interpretation we adopt, the same result is practically reached. I say it is of no practical consequence which view is adopted. The same result will follow, whatever answer is given to this question of I interpretation; for all the five questions are to be determined before tfte Tribunal \% called upon to consider the question of regulations; an4 ORAL ARGUMENT OF JAMES C. CARTER, ESQ. 261 the disposition to be made of that question depends upon the condition in which the subject is left after the decision of the five questions. For instance, if we proceed upon the view that the language referred to relates to the first four questions only, and those should be decided against the United States, it will be necessary for the Tribunal to consider what regulations are necessary; but, should the decision of the fifth question be at the same time in favor of the United States, the conclusion upon such consideration might be that no regulations were in fact necessary. Such would perhaps be the conclusion if the Tribunal should be of the opinion that the possession of a property interest would give the United States the power to protect it by the employment of force upon the high seas; but if the Tribunal should hold, contrary to my argument, that the possession of that interest would not give the right to employ force to prevent pelagic sealing, then concurrent regulations would become necessary. On the other hand, if the language referred to be taken to include all of the five questions, the fifth question being regarded as one relating to jurisdiction in the sense which I have indicated, the subject will be left in such a condition that the concurrence of Great Britain in regulations will be necessary, provided the Tribunal should be of opinion either that the United States had no property interest, or that such interest gave no right to employ force in its protection. Therefore I shall not engage in any further discussion of this question of interpretation. It is practically of no consequence. . What shall be the regulations for the preservation of the seals? I must now assume the subject to be left in such a condition that it is necessary that regulations of this character should be contrived ? What are their requirements ? There are two qualifications mentioned in the Treaty, and two only. In the first place, they must be regulations operative outside of the jurisdictional limits of the two Governments. In other words, the field of their operation is to be on the high seas alone. That is one condition. The only other description that we have of them is, that they shall be such as are necessary for the preservation of the seals. Pitness for the accomplishment of that end is the requirement, and that is an absolute requirement of these regulations. But right there I am met by some intimations, in the Case and in the printed Argument on the part of Great Britain, that a somewhat different interpretation may be set up, and that some limitations will be sought to be imposed upon the regulations which may be recommended by this Tribunal. In the first place, it is intimated that they must be regulations conditioned upon the consent of other nations than Great Britain and the United States, and not operative until the consent of the other powers shall be obtained. I am not exactly certain, but I gather from what is contained in the Case and the printed Argument on the part of Great Britain, that that ground may be taken. It cannot be maintained. In the first place, it is not expressed in the Treaty. No such limitation is expressed there; and the omission to express it is in itself significant, because the subject of the consent of other powers is mentioned, and there is an engagement at the close of the article, as follows: " The High Contracting Parties furthermore agree to cooperate in securing the adhesion of other powers to such regulations." That language of itself excludes any implication that the operation of the regulations is to be conditioned upon the assent of other powers. It assumes that they are to be in operation ; and that it will be a matter of utility, of convenience, that the assent of other- powers shall be 262 ORAL ARGUMENT OF JAMES C. CARTER, ESQ. gained to them; and the parties engage to take all measures within their power to gain that assent. I say therefore, that not only is it not expressed in the treaty, that the regulations shall be thus conditional, but that we cannot imply it; and that the contrary is indeed suggested, if not absolutely required, by the terms of the article itself. Senator Morgan. Mr. Carter, if the award of this Tribunal is to be merely tentative and not binding upon the parties that have submitted this case to the decision of these Arbitrators, why are we sitting here? We are not diplomatists; we are not advising couusel or the particular friends of either Government. Mr. Carter. That is one view, and a very proper and important one, having the same tendency as the view that I am now submitting , to the Tribunal. Senator Morgan. I do not hesitate to say on my part that if this award is to be accepted by the respective governments, or rejected, at their pleasure, aud is not to be an award in full force from the time it is recorded and delivered here, I will withdraw from this Tribunal. Mr. Carter. I do not understand that there is any suggestion from any quarter that the award of this Tribunal is to be accepted or rejected at the pleasure of the parties; but it may be argued that this Tribunal may make the regulations which it suggests conditional for their operation upon the assent of other powers. It is that supposed position. I am speaking to. I am sure the ground is not taken that the award of this Tribunal may be accepted or rejected at the pleasure of the parties. The contrary I have reason to know is conceded upon both sides and maintained on both sides. The President. Of course, Mr. Carter, when you speak of other powers, you mean other powers than Great Britain aud thé United States? Mr. Carter. Yes. There is further evidence derived from the correspondence which preceded the Treaty that it is subject to no such interpretation as that. After the Treaty had been reduced substantially to the form in which it now stauds, but before it was signed by the parties, although its phraseology was understood to be complete, a suggestion came from Lord Salisbury that the award of the Tribunal upon the subject of regulations should be made conditional upon the consent of other powers. That suggestion will be found at page 339 of volume I of the Appendix to the Case of the United States in a note from Sir Julian Pauncefote to Mr. Blaine. He says : British Legation, Washington, November ZS, 1891. Sir: I informed the Marquis of Salisbury of our'proposal to sign the text of the seven articles to be inserted in the Behring Sea Arbitration agreement and of the Joint Commission article, as settled in the diplomatic correspondence, in order to record the progress made up to the present time in the negotiation. Lord Salisbury entirely approves of that proposal, but he has instructed me, before signing, to address a note to you for the purpose of obviating any doubts which might hereafter arise as to the meaning and effect of article 6, which4s as follows: (The Arbitrators will remember that the present article 7 stood originally as article 6.) If the determination of the foregoing questions as to the exclusive jurisdiction of the United States shall leave the subject in such position that the concurrence of Great Britain is necessary to the establishment of regulations for the proper protection and the preservation of the fur-seal in or habitually resorting to the Behring Sea, the Arbitrators shall then determine what concurrent regulations outside the jurisdictional limits of the respective governments are necessary, and over what waters such regulations should extend; and, to aid them in that determination, the report of the joint commission to be appointed by the respective governments shall ORAL ARGUMENT OF JAMES C. CARTER, ESQ. 263 be laid before them, with such other evidenco as either Government niav submit The contracting powers furthermore, agree to cooperate in securing the adhesion of other powers to such regulations. Lord Salisbury desires to make the following two reservations on the above article : His lordship understands, first, that the necessity of any regulations is left to the Arbitrators, as well as the nature of those regulations, if the necessity is in their judgment proved; secondly, that the regulations will not become obligatory on Great Britain and the United States until they have been accepted by the other maritime powers. Otherwise, as his lordship observes, the two Governments would be simply handing over to others the right of exterminating the seals. I have no doubt that you will have no difficulty in concurring in the above reservations, and subject thereto I shall be prepared to sign the articles as proposed. I have, etc., Julian Pauncefote, A copy of that note was furnished to Mr. Blaine, and his answer is found on the following page, 340 : Department op State, Washington, November Z7,1891. Sir: In the early part of last week you furnished the exact points which had been agreed upon for arbitration in the matter of the Behring Sea negotiation. You called later and corrected the language which introduced the agreement. In fact, the two copies framed were taken entirely from your minutes. It was done with a view that you and I should sign them, and thus authenticate the points for the Arbitrators to consider. You inform me now that Lord Salisbury asks to make two reservations in the sixth article. His first reservation is that " the necessity of any regulation is left to the Arbitrators, as well as the nature of those regulations if the necessity is in their judgment proved." What reason has Lord Salisbury for altering the text of the article to which he had agreed? It. is to be presumed that if regulations are needed they will be made. If they are not needed the arbitrators will not make them. The agreement leaves the arbitrators free upon that point. The first reservation, therefore, has no special The second reservation which Lord Salisbury makes is that "the regulations shall not become obligatory on Great Britain and the United States until they have been accepted by the other maritime powers." Does Lord Salisbury mean that the United States and Great Britian shall refrain from taking seals until every maritime power joins in the regulations? Or does he mean that sealing shall be resumed the 1st of May next and that we shall proceed as before the Arbitration until the regulations have been accepted by the other "maritime powers?" "Maritime powers" may mean one thing or another. Lord Salisbury did not say the principal maritime powers. France, Spain, Portugal, Italy, Austria, Turkey, Russia, Germany, Sweden, Holland, Belgium, are all maritime powers in the sense that they maintain a navy, great or small. In like manner, Brazil, the Argentine Confederation, Chile, Peru, Mexico, and Japan are maritime powers. It would require a long time, three years at least, to get the assent of all these powers. Mr. Bayard, on the 19th of August, 1887, addressed Great Britain, Germany, France, Russia, Sweden and Norway, and Japan with a view to securing some regulations.in regard to the seal in Behring Sea. France, Japan, and Russia replied with languid indifference. Great Britain never replied in writing. Germany did not reply at all. Sweden and Norway said the matter was of no interest to them. Thus it will be again. Such a proposition will postpone the matter indefinitely. The President regards Lord Salisbury's second reservation, therefore, as a material change in the terms of the arbitration agreed upon by this Government; and he instructs me to say that he does not feel willing to take it into consideration. He adheres to every point of agreement which has been made between the two powers, according to the text which you furnished. He will regret if Lord Salisbury shall insist on a substantially new agreement. He sees no objection to submitting the agreement to the principal maritime powers for their assent, but he can not agree that Great Britain and the United States shall make their adjustment dependent on the action of third parties who have no direct interest in the seal fisheries, or that the settlement shall be postponed until those third parties see fit to act. James G. Blaine. Lord Salisbury was not quite satisfied with that answer; and another letter, or other letters, were written in reference to it, and responses 264 ORAL ARGUMENT OF JAMES C. CARTER, ESQ. more or less to the same effect were made on the part of Mr. Blaine, namely, that the President could not assent to any such alteration of the treaty; and in view of that unwillingness on the part of the United ■ States, Lord Salisbury withdrew his request and adopted the text of the treaty as it stood, and, I think I may say, adopted the views of Mr. Blaine in reference to it. That acceptance of the treaty as it stood will be found on page 345 in the note of Sir Julian to Mr. Blaine: British Legation, Washington, December 17,1891. Sir: I have the honor to inform you that I conveyed to the Marquis of Salisbury by telegram the substance of your note of the 14th instant respecting the. sixth article of the proposed Behring Sea Arbitration agreement, and that I have received a reply from his lordship in thé following sense : Lord Salisbury is afraid that, owing to the difficulties incident to telegraphic communications, he has been imperfectly understood by the President. He consented, at the President's request, to defer for the present all further discussion as to what course the two Governments should follow in the event of the regulations prescribed by the Arbitrators being evaded by a change of flag. It was necessary that in doing so he should guard himself against the supposition that by such consent he had narrowed the rights of the contending parties or of the Arbitrators under the agreement. But in the communication which was embodied in my note of the 11th instant, his lordship made no reservation, as the President seems to think, nor was any such word used. A reservation would not be valid unless assented to by the other side, and no such assent was asked for. Lord Salisbury entirely agrees with the President in his objection to any point being submitted to the Arbitrators which is not embraced in the agreement; and, in conclusion, his lordship authorizes me to sign the articles of the Arbitration agreement, as proposed, at the close of your note under reply, whenever you may be willing to do so. I have, etc., , Julian Pauncefote. Of course that puts that question at rest. Sir Charles Eussell. The view of the Government of Great Britain, and the point which we intend to support is in the letter of the 11th of December, 1891. Mr. Carter. Would you like to have that read? Sir Charles Eussell. Yes, if you kindly would. It is in the second paragraph on page 344. Mr. Carter. The letter is short. It is from Sir Julian to Mr. Blaine: British Legation, Washington, December 11,1891. Sir: I have the honor to inform you that I telegraphed to the Marquis of Salisbury the substance of your note of yesterday respecting the sixth article of the proposed Behring Sea Arbitration agreement, and that I have received a reply from his lordship to the following effect : In view of the strong opinion of the President, reiterated in your note of yesterday, that the danger apprehended by Lord Salisbury, and explained in my note of the 8th instant, is too remote to justify the delay which might be incurred by guarding against'it now, his lordship will yield to the President's appeal and not press for further discussion at this stage. . Her Majesty's Government of course retain the right of raising the point when the question of framing the regulations comes before the Arbitrators, and it is understood that the latter will have full discretion in the matter, and may attach such conditions to the regulations as they may a priori judge to be necessary and just to the two powers, in view of the difficulty pointed out. With the above observations Lord Salisbury has authorized me to sign the text of the seven articles and of the Joint Commission article referred to in my note of the 23d ultimo, and it will give me much pleasure to wait upon you at the State Department for that purpose at any time you may appoint. I have, etc., Julian Pauncefote. Mr. Justice Harlan. Will you read the letter which is below that, which is in reply to the note of the 11th. Mr. Carter. Yes. This is the letter of Mr. Blaine to Sir Julian. ORAL ARGUMENT OF JAMES C. CARTER, ESQ. 265 Department op State, Washington, December 14,1891. Sir: I have the honor to advise you that I submitted your note of the 11th instant to the President. After mature deliberation he has instructed me to say that he objects to Lord Salisbury's making any reservation at all, and that he can not yield to him the right to appeal to the Arbitrators to decide any point not embraced in the articles of Arbitration. The President does not admit that Lord Salisbury can reserve the right in any way to affect the decision of the Arbitrators. We understand that the Arbitration is to proceed on the seven points which are contained in the articles which you and I certify were the very points agreed upon by the two For Lord Salisbury to claim the right to submit this new point to the Arbitrators is to entirely change the Arbitration. The President might in like manner submit several questions to the Arbitrators, and thus enlarge the subject to such an extent that it would not be the saine arbitration to which we have agreed. The President claims the right to have the seven points arbitrated and respectfully insists that Lord Salisbury shall not change their meaning in any particular. The matters to be arbitrated must be distinctly understood before the Arbitrators are chosen. And after an arbitration is agreed to neither of the parties can enlarge or contract its scope. I am prepared now, as I have been heretofore, to sign the articles of agreement without any reservation whatever, and for that purpose I shall be glad to have you call at the State Department on Wednesday the 16th instant, at 11 o'clock a. m. I have, etc., James G. Blaine. The President. Mr. Carter, how would you construe the seven points that were referred to in this letter ? Mr. Carter. Do you mean this phrase, "The President claims the right to have the seven poiuts arbitrated", etc. The President. Yes. I suppose it means the five regulations and the joint commission article. Mr. Carter. Yes. The President. You have no particular construction of that? There were six articles in the original treaty. Mr. Phelps. The seventh is the question of damages. Mr. Carter. Yes; the seventh is the question of damages. The letters I have read seem to put this matter at rest; for the letter of Sir Julian of December 17th acquiesces in the view of Mr. Blaine, in his letter of the 14th, which I have just read. It was evidently regarded by both sides that this seventh article of the treaty, upon its face, upon a just interpretation of the language embraced by it, did not contemplate that the regulations should be conditioned upon the acquiescence of other powers. It was upon that assumption that Lord Salisbury wished to have an understanding tacked on to it to the effect that they should be so conditioned. That was refused. He then wished to reserve the right to argue before the Arbitrators that the regulations should be so conditioned. Even that is objected to; and the treaty is eventually signed upon the assumption, agreed to by both sides, that it must be executed, according to its language, without any addition or any reservation or any right other than what appears upon the face of it. If it were a question whether it was expedient that the regulations should be conditioned upon the assent of other powers, it should be promptly decided in the negative. Such a condition would be fatal to the main object. Every one must see the possibility—the probability even—that some power might be induced to withhold its assent; and even if no country should finally withhold its assent, how long would it take before the assent of all was obtained? We know the delays incident to diplomatic negotiations; and there would be no good reason to suppose that this universal assent could be obtained in less than three or five years; and in that time the seals would be gone. There- 1 2 6 6 ORAL ARGUMENT OF JAMES* C. CARTER, ESQ. fore, any regulations upon the subject of preserving the seals which will have any efficiency to that end must be regulations immediately operative so far as the two Governments are concerned. And practically no difficulty will arise if that view is acted upon. If pelagic sealing is prohibited by Great Britain and the United States, no vessel under either of their flags can make its appearance upon the seas for that purpose; and I venture to say that no other nation in the world, after regulations of that character framed by a Tribunal such as this, would allow its flag to be used for any such purpose. The public sentiment of mankind, authoritatively declared, by a tribunal of this character, composed of representatives selected from different nations, would be everywhere respected. There is no good reason to suppose that there would be an attempt to violate it from any quarter; and if there were any, it would be one which could be, upon very firm grounds resisted, and the violations would not be frequently repeated. So I conclude that there is no such limitation to be put upon the regulations which are to be recommended by the Arbitrators. There is another point in which it is intimated in the Argument on the part of Great Britain that these regulations should be limited. That is that the treaty should be so interpreted as to mean that whatever regulations are recommended by the Tribunal shall be applicable to Bering Sea only, aud not to the North Pacific Ocean. I do not know whether that will be persisted in. It may be. The ground suggested is that the whole subject of original controversy was the authority which the United States claimed it could exercise in Bering Sea; that it did. not claim that it had the right to exercise jurisdiction any where else, and that, the whole subject of controversy being thus confined to Bering Sea, the scope of the regulations should be in like manner limited, and should not pass those boundaries. I have to say that construction cannot be maintained. There is no such view as that to be gathered from the face of the treaty itself; indeed, upon the face of the treaty, that view is rather to be rejected. The language seems to be rather industriously framed to exclude such a view as that. The regulations which are described are not to be regulations operative in Bering Sea, but the Arbitrators are to determine what concurrent regulations | outside the jurisdictional limits of the respective Governments are necessary, and over what waters such regulations should extend." The whole question of the extent of the waters over which they were to go is left to the Arbitrators without any limitation whatever. This interpretation, therefore, if it is to be accepted at all, must be accepted upon the ground that there is some implication which required it. But are we to imply a limitation of that sort? Such a limitation would be inconsistent with the avowed purpose of both parties from the beginning of this controversy. This plan of regulating pelagic sealing through the instrumentality of an Arbitration was originally the suggestion of Great Britain; and it was, at the beginning, coupled with a statement of the importance of the preservation of this race of seals—the importance, not only to Great Britain, or to the United States, but to mankind. That was the ground upon which it was originally placed by Sir Julian Pauncefote; and at every stage of this controversy, it has been the avowal of those who represented Great Britain that it was her supreme desire that this race of seals should be preserved and its extermination prevented. It would be, as it seems to me, an imputation upon the sincerity of Great Britain to say that her real intention was to extend this protection only in Bering Sea, and ORAL ARGUMENT OF JAMES C. CARTER, ESQ. 267 that if the fact should appear that the race would be exterminated unless protection were extended to them in the North Pacific Ocean as well, Great Britain would, under those circumstances, be willing that the seals should be exterminated. Can it be imputed, to Great Britain that she intended to preserve this race of seals only in case it could be preserved by regulations operative upon Bering Sea? What difference does it make where the regulations should be operative? If the important point be that the seals should be preserved for the benefit of mankind, then they should be preserved by regulations extending over any seas where Great Britain and the United States can make them operative; and of course they can give them operation all over the world so far as they themselves are concerned. The President. Outside the territorial waters. Mr. Carter. Yes. Of course not in the territorial waters, not in the three-mile limit. That is a limitation; but outside of those territorial waters. If it turns out, in point of fact, that regulations operative upon the North Pacific are necessary, I say, it would be imputiug to Great Britain a piece of insincerity to say that, she did not intend or did not desire, to have the race of fur-seals preserved in such a case as that. If she is sincerein her intention to preserve the race of seals, she must desire that they shall be preserved by regulations which will be efficient to that end, whether they are operative in the Bering Sea alone, or whether they are operative in the North Pacific as well. But that there was any such notion as that entertained by the parties to the treaty is entirely inconsistent with their views as expressed in the diplomatic correspondence. I refer to the draft convention submitted by Sir Julian Pauncefote, which will be found in Volume I, United States Appendix, page 311. The fifth article of that is as follows: A commission of four experts (that is, a commission of experts should be appointed). Two nominated by each Government, and a chairman nominated by the arbitrators, if appointed, and, if not, by the aforesaid commission, shall examine and report on the following question : What international arrangements, if any, between Great Britain and the United States and Russia or any other power, are necessary for the purpose of preserving the fur-seal race in the northern Pacific Ocean from extermination? That is the first suggestion of a commission of experts—of a Tribunal, to contrive measures for the preservation of the fur-seals. It comes from Great Britain, and the suggestion is not of measures confined to Bering Sea at all, but of measures operative upon the North Pacific Ocean as well, and designed to protect not only the seals belonging to the Pribilof Islands, but the seals of Eussia also. It is a suggestion of a scheme for the protection of the fur-seal all over the North Pacific Ocean. And Sir Julian Pauncefote also, at a later period, in a letter written on the 11th of June, 1891, when the negotiations in relation to the Treaty were in progress, and had nearly been brought to a conclusion, says—I read from the third paragraph on page 315 : Nevertheless, in view of the urgency of the case, his Lordship— (His Lordship, of course, is Lord Salisbury.) r the preservation of the. f 268 ORAL ARGUMENT OF JAMES C. CARTER, ESQ. There again the Government of Great Britain is pressing the Government of the United States to assent to its idea of the constitution of a commission for the purpose of making inquiries as to what protective regulations shall be necessary to preserve the race of seals in the North Pacific Ocean, no matter where they belong. Mr. Wharton's answer to this was written the same day : Department op State, Washington, June 11, 1891. Sir: I have the honor to acknowledge the receipt of your note of today's date, and in reply I am directed by the President to say that the Government of the United States, recognizing the fact that full and adequate measures for the protection of seal life should embrace the whole of Behring Sea and portions of the.North Pacific Ocean, will have no hesitancy in agreeing, in connection with Her Majesty's Govern- ufes are necessary for the preservation of the seal species in the waters referred to, such an agreement to be signed simultaneously with the convention for arbitration, and to be without prejudice to the questions to be submitted to the arbitrators. There is the first direct and explicit assent of the United States given to the project of the constitution of a joint commission for the purpose of ascertaining what regulations are necessary; and that assent contains the explicit statement that the measures were supposed to be necessary not only in Bering Sea, but in the North Pacific. On the 15th of January, 1892, which was after the articles of the Treaty had been drawn up and signed—I am now reading from the Eeport of the British Commissioners, page 7. It was signed by the parties in December. The President. I think not. "Batification advised by Senate March 29th: ratified by the President April 22nd: and ratifications exchanged May 7th." Mr. Justice Harlan. Mr. Carter means that the former articles which went into the Treaty, and the articles about the Commission were signed the 18 th of December.. Mr. Carter. The two agreements signed by the diplomatic representatives of the parties, namely, the agreement for the arbitration, and the agreement for the appointment of the joint Commission, were signed December 18th, and you will remember that the Commissioners were actually appointed before the Treaty was finally ratified. Lord Salisbury on the 15th of January, 1892, addresses a letter of instructions to the British Commissioners. I read from about the middle of that letter. It is the second enclosure referred to in the preliminary part of the report : You will observe that it is intended that the Report of the Joint Commissioners shall embrace recommendations as to all measures that should be adopted for the preservation of seal life. For this purpose, it will be necessary to consider what Regulations may seem advisable, whether within the jurisdictional limits of the United States and Canada, or outside those limits. The Regulations which the Commissioners may recommend for adoption within the respective jurisdictions of the two countries will, of course, be matter for the consideration of the respective Governments, while the Regulations affecting waters outside the territorial limits will have to be considered under clause 6 of the Arbitration Agreement in the event of a decision being given by the Arbitrators against the claim of exclusive jurisdiction put forward on behalf of the United States. The Report is to be presented in the first instance to the two Governments for their consideration, and is subsequently to be laid by those Governments before the .Arbitrators to assist them in determining the more restricted question as to what, if any, Regulations are essential for the protection of the fur-bearing seals outside the territorial jurisdiction of the two countries. Senator Morgan. Mr. Carter, have you that clause 6 before you? Mr. Carter. Of the Treaty? Senator Morgan, ^o; it does not say the Treaty, as I understand. It is one of those agreements. I wanted to know whether clause 6 mentioned in that letter was identical with clause 7 of the Treaty? ORAL ARGUMENT OF JAMES C. CARTER, E8Q. 269 Mr. Carter. Oh yes; it was substantially identical with the clause mentioned in the Treaty. Senator Morgan. Is it known at whose instance that sixth clause was made article VII of the Treaty? Mr. Carter. When they came to put the agreement for the arbitration and the agreement for the appointment of the joint commission into one document, which is the Treaty, then it became necessary to make that change. The consolidation of the two instruments made that change necessary, as I suppose. Mr. Foster. The first five questions are in article VI of the Treaty, and the matter of regulations, following, became article VII. The President. General Foster, perhaps you can tell us. There was a remodeling of the Treaty after this 18th of December, I suppose? Mr. Foster. When the negotiators came to complete the Treaty, they consolidated these two agreements ; and in numbering the articles, the first five questions became article VI of the Treaty, and the agreement concerning regulations, following, became article VII of the Treaty. It was simply an enumeration of the articles of the Treaty, and that had become Article VII. The President. That was after December 18th? Mr. Foster. Yes. The President. But there was no substantial change in the text? Mr. Foster. There was no change whatever in the language, simply a change in the numbering of the articles. Mr. Carter. I have read from documents showing what the interpretation of Great Britain was in this particular. I now call attention to a document showing the interpretation of the United States, and that is in the appointment of the Commissioners under the Treaty, on page 311 of the Case of the United States. The Commissioners there refer to the letter of the Secretary of State appointing them : Sir: In your letter of July 10, 1891, received by us in San Francisco on the 16th, after referring to the diplomatic controversy pending between the United States and Great Britain in respect to the killing of fur-seals by British subjects and vessels, to the causes which led up to this controversy, and to some of the propositions which had at that date been mutually agreed upon, you inform us that the President has been pleased to appoint us to proceed to the Pribilof Islands and to make certain investigations of the facts relative to seal life with a view to ascertaining what permanent measures are necessary for the preservation of the fur-seal in Behring Sea and the North Pacific Ocean. [The Tribunal here took a recess.] [On reassembling, Mr. Carter resumed his argument.] Mr. Carter. Another evidence, Mr. President, tending to show that in the contemplation of the Treaty the regulations were not to be limited to Bering Sea, is found in the change of form of the sixth . question. As originally proposed it was in this language; I read from page 286 of the first volume of the Appendix to the United States Case: Sixth. If the determination of the foregoing questions shall leave the subject in such position that the concurrence of Great Britain is necessary in prescribing regulations for the killing of the fur seal in any part of the waters of Behring Sea, then it shall be further determined, etc., etc. You will observe there that the language of the regulation here proposed is: "killing of the fur-seals in. any part of the waters of Bering Sea", giving some ground for a suggestion that the Eegulations were to be confined to Bering Sea; but, after the correspondence which I have referred to, and in which it was indicated upon both sides that tiiere was a necessity that the Eegulations should extend outside Bq- 270 ORAL ARGUMENT OF JAMES C. CARTER, ESQ. ring Sea, or that there might be a necessity for an extension outside of that Sea, the form of this Article was changed; and on page 319 of the same volume will be found the statement of it in its changed form in the Note from Mr. Wharton to Sir Julian Pauncefote (quoting) : (6) If the determination of the foregoing questions as to the exclusive jurisdiction of the United States shall leave the subject in such position that the concurrence of Great Britain is necessary to the establishment of regulations for the proper protection and the preservation of the fur seal in, or habitually resorting to, the Behring Sea, the arbitrators shall then determine, etc., etc. The words, "or habitually resorting to," are now introduced indicating that the protection was to be extended to the seals resorting to Bering Sea, wherever such protection might be necessary; and that was the. form in which it was adopted. Now, in order to show that the Eegulations ought not to be limited to Bering Sea, but that they should be extended to the North Pacific, I point to the Eeport of the British Commissioners. They think they should be operative on the Pacific Ocean and not confined to Bering Sea. The suggestion upon pelagic sealing which they themselves present in their Eeport and which is made part of the British Case is that it is necessary that the prohibitions shall apply not only to Bering Sea, but to the waters of the Pacific itself. And, touching that necessity, I may further allude to a letter addressed by a Mr. C. Hawkins to the Marquis of Salisbury on the 19th of April, 1891—volume 3, Appendix to the British Case, United States, No. 3 (1892), page 5. Mr. Hawkins says: In consequence of the negotiations being carried on between the United States Government and our own to bring about a satisfactory settlement of the Behring's Sea Seal Fishery question, I beg to offer you the following facts, trusting they may be useful to you as emanating from one with a practical knowledge extending over a period of eighteen years. I also inclose herewith a cutting from the "Daily Chronicle" of the above date, which induces me to take this liberty, supposing the statement therein detailed to be correct. Since about the year 1885 we have received in this country large numbers of sealskins known in the trade as north-west coast skins, the same having been taken in the open sea, and, from appearances that are unmistakable to the initiated, are exclusively the skins of female seals pregnant; these are all shot, and I have been informed that for every skin recovered five or six are lost through sinking when struck by the shot; this wholesale slaughter of the females will, m a short time, bring about the extermination of the seal in that district if not arrested. That letter was referred by Lord Salisbury to the Canadian Government, and a Eeport was made to the Privy Council of that Government, which is found on page 75 of the same part of the British Appendix (reading): The Committee of the Privy Council have had u from the Colonial Office on the subject of the seal : The Minister of Marine and Fisheries, to whom that Mr. Hawkins states "since about the year 188 (England) large numbers of seal-skins, known in skins, the same having been taken in the open se unmistakable to the initiated, are exclusively th these are all shot, and I have been informed that f are lost through sinking when struck by the shot. Two paragraphs further down the Eeport proceeds (reading again) : The Minister sub-wits that the testimony produced by Mr. Hawkins in this connection is quite in accord with the information hitherto obtained, and is most valuable in support of the contention of Canada. It has been previously pointed out that nder cc nsid ration certain papers fishery hring's Sea. the ma erred, observes 5 we ha ceived in this country the tra deaf then rth-west coast a, and, of fc eals pregnant; or ever f skii ered five or six ORAL ARGUMENT OF JAMES C. CARTER, ESQ. 271 although groat stress had been placed by the United States Government on the alleged necessity for prohibiting pelagic sealing in the Behring's Sea, yet no attempt had ever been made "by that Government for an arrangement to curtail similar operations along the coast previous to the entry of seals into that sea. In an attempt to vindicate the methods of the lessees of the seal islands, Mr. Hawkins proceeds: "We, on the other hand, during my experience have had annually large numbers of seal-skius from Alaska, and also from the Copper Islands, which are killed by being clubbed on land, and are selected with judgment, being the skins of young male seals : the older fighting or breeding males are spared." This is another presentation of the case of the United States Government for the prohibiting of every other character of sealing but that adopted by the lessees, so frequently combated by your Excellency's advisers. While the Minister of Marine and Fisheries does not deem it necessary to dwell at anv length upon the point, he would, in passing, invite attention to the fact that notwithstanding this statement, the United States Treasury agents now assert the contrary, and the Government of the United States appear to be acting on the Reports of their Agents. Omitting the next paragraph, I quote again: The Minister submits that whatever significance Mr. Hawkins' statement may have upon the abstract question of the protection of seal life in the Pacific waters, it can have but little, if any, on the controversy between Great Britain and the United States, as the evil complained of, even if as great as alleged, occurs outside the disputed area, as he himself implies in his reference to the "north-west coast skins." Therefore, it appears from this Canadian evidence that a danger, and a principal danger to the seals, lies outside Bering Sea, and in the North Pacific. Now, I read to the same effect passages from the Eeport of the British Commission which I have just referred to, page 22, section 138 (quoting) : If certain months should be discussed as a close time for sealing at sea, it becomes important to inquire which part of the season is most injurious to seal life in proportion to the number of skins secured, and to this inquiry there can be but the one reply, that the most destructive part of the pelagic catch is that of the spring, during which time it includes a considerable proportion of gravid females, then commencing to travel on their way north to bring forth their young. It is on similar grounds and at corresponding seasons that protection is usually accorded to animals of any kind, and, apart from the fact that these seals are killed upon the high seas, the same arguments apply to this as to other cases. That represents the most destructive part of the pelagic catch to be in the spring, when gravid females are taken on their way north to the Islands. On page 23, section 145, the same Commissioners say: From the foregoing review of the various facts and circumstances of seal life in the North Pacific, the following may be stated to be the governing conditions of proper protection and preservation : (a. ) The facts show that some such protection is eminently desirable, especially in view of further expansions of the sealing industry. (6. ) The domestic protection heretofore given to the fur-seal on the breeding islands has at no time been wholly satisfactory, either in conception or in execution, and many of its methods have now become obsolete. (c.) Measures of protection to be effective must include both the summer and winter homes, and the whole migration-ranges of the fur-seal, and control every place and all methods where or by which seals are taken or destroyed. Again, at section 155 and subdivision of that section, which is to be found on page 25: A close season to be provided, extending from the 15th September to the 1st May in each year, during which all killing of seals shall be prohibited, with the additional provision that no sealing-vessel shall enter Behring Sea before the 1st July in So that we see that not only is there no ground for an interpretation of the Treaty limiting the Eegnlations to Bering Sea, but we have it fully recognized on the part of Great Britain that necessity requires stick regulations in the North Pacific as well m in Bering Sea. 272 ORAL ARGUMENT OF JAMES C. CARTER, ESQ. Having treated of the limitations sought to be imposed upon the Tribunal in respect to the contriving of Eegulations for the preservation of the seals, I come to the real problem. What is the problem before this body on this branch of the subject? It is to contrive such Eegulations as are necessary for the preservation of the fur-seals. Whatever is necessary to that end must be recommended, no matter what it is, or where it is operative, or what, otherwise, may be its effect. Whatever measures are necessary must be adopted. It is not to be supposed that all taking of seals is to be prohibited, for that would be to deprive mankind of the benefit of the animal. We must assume that the benefit is to be secured, and the taking be so regulated as to prevent extermination. Now the solution of that problem requires a study of the nature and habits of the animal, the methods by which it is pursued and captured, the perils to which it is exposed, and the means which may best be adopted to protect it against those perils. These are the things to be considered. But these are the very things which were taken into consideration in the inquiry into the question of property. I was obliged to discuss them all when I was upon the question whether the United States had a property in the seals ; and the conclusion reached was that it was necessary for the purpose of securing to mankind the benefit of the animal, and at the same time preserving the species, to award to the United States, which had a situation and a territory giving it a natural control over the animal, the benefits of the right of property. Substantially the same problem now returns, though in an altered form; it is the same problem which human society has been, engaged upon from the dawn of civilization to the present day. How can the benefit of animals useful to man be secured, without destroying the stock? That, I say, is a problem upon which society had been engaged for centuries, and the solution has, in every instance been, to award the rights of property to those, if any there were, who had such a control over the animals as enabled them to secure and supply for the uses of mankind the annual increase while at the same time preserving the stock. How else, can the problem be solved? How can you preserve to mankind a race of domestic animals, unless you award property to those who have such a control over them that they can preserve or destroy them at pleasure? The United States has such a control over the fur- seal. He comes upon its soil; he remains there five or six months of the year; he subjects himself voluntarily to its power, so that it can destroy him at once if it wishes. How can you preserve that race except by inducing the nation having this control, and this power of destruction to withhold the exercise of that power. And how can you induce men to withhold the exercise of such a power except by awarding them the benefits of the right of property? If you will allow to them the reward of their abstinence; if you will induce them to exercise care, industry and self-denial, by assigning to those qualities their appropriate reward, then you can preserve the race. Otherwise, that preservation would be impossible. Therefore, I say that the problem of contriving Eegulations is' the same as that which arises in considering the question of property. But the question of property is deemed, for the purposes of our present argument, to be decided adversely to the United States. That, however, does not change the nature of the problem at all. If the United States has no property right which will enable it to preserve the animal, there must be Eegulations agreed on by all Governments, having an effect tantamount to that of a property right. You must permit the United States to take the increase pf the animal, and prevent, by Eegulations, all other nations ORAL ARGUMENT OF JAMES C. CARTER, ESQ. 273 from interfering with the animal at all. There is no other way. You must contrive Eegulations which will bring about the same results as would flow from the institution of property. Senator Morgan. Do you regard the words "protection" and "preservation" in the seventh Article of the Treaty as being strictly synonymous? Mr. Carter. "Proper protection and preservation;"—I think those two words are, if not absolutely synonymous, very nearly so. They were employed in order to more fully cover the notion that these seals were to be preserved by being protected. We cannot, in this inquiry, lose sight for an instant of what the laws of nature are: they are the very object of our inquiry. These seals are subject to the operation of the laws of nature. Their increase and their decrease follow those laws with a rigid obedience; and in order to contrive measures which will insure the preservation of these animals we must study and ascertain these laws, and, having ascertained them, implicitly obey them. They cannot be tampered with. Any violation of them inevitably brings the consequences attached to such violation. Now here, in my view, we reach what is really the end of legitimate debate upon this subject. Any further argument must proceed upon the assumption that there is some sort of doubt as to whether the pursuit of seals on the high seas by the methods of pelagic sealing is destructive or not. I have answered that question. There is not— there cannot be—any reasonable doubt of that. It is not possible to take females in the way and to the extent in which they are taken in pelagic sealing without bringing about the swift destruction of the species, even if all taking of seals on the land were prohibited. There are two things beyond dispute: first, that the young and non-breeding males may be taken up to a certain point without diminishing the birthrate; and, consequently, without diminishing the stock ; and, secondly, that the taking of any female must diminish the birth-rate pro tanto. This conclusion does not depend upon scientific knowledge, although scientific knowledge confirms it, but upon common information. Suppose that sheep could not be reared except in four places in the world, and that the entire demand of the world had to be satisfied by the product wldch could be obtained from those four places. Could any breeding ewes ever be properly killed under such circumstances ? Why, very plainly, no ! Every one must be preserved, and the demand would make it profitable to preserve every one of them, just as it is in the case of the seals. If you kill a single female seal you must inevitably diminish the product, not only by that one, but, in addition, by the number of young that that female would bring forth. Of course, as sheep can be produced everywhere, and the market be glutted with them, it is perfectly proper to kill ewes when the production exceeds the demand. But this condition of things never occurs in the case of seals, for the demand is always out of proportion to the supply, being so large that there is an enormous profit on each seal. Now, what is the attitude of the United States with reference to this matter of Eegulations? Simply that it can propose no Eegulation save one; and that is an absolute prohibition upon the killing of seals anywhere upon the seas, restricting the killing entirely to the Islands where the rate of increase can be ascertained, where the superfluous males can be taken and killed and thus devoted to the commerce of the world without diminishing the stock. Such a regulation is necessary, absolutely necessary, in its entirety. If we were to propose any regu- B s, PT XII 18 274 ORAL ARGUMENT OF JAMES C. CARTER, ESQ. lation at all which would permit pelagic sealing in any degree, it would be such a one as this—that pelagic sealing should be limited to the winter months, when sealers cannot put to sea on account of the stormy and boisterous weather, and when the seals cannot be found. Such a Eegulation might be satisfactory enough. It would, theoretically, tolerate pelagic sealing, but it would, in reality, be a prohibition of the pursuit; and it is best to say at once that the prohibition should be made absolute, and that pelagic sealing should not be indulged in at all, in any form, at any time, under any circumstances. We are, therefore, able to present no other scheme; but, perhaps, I ought, out of courtesy to the other side, and to the British Commissioners, to consider what has been proposed. And I suppose we m'ay say that if there is a possible way to retain pelagic sealing in any degree, without endangering the existence of the herd—these British Commissioners can find it out and present it. They have made a profound study of the subject, and if the problem is capable of any solution which will preserve pelagic sealing at all, they must have found it out. Aud if they have discovered none, we may conclude that none is possible, and, therefore, I propose to see what their scheme is. I have cited it at page 201 of the printed Argument of the United States. It is as follows: 155. In view of the actual condition of seal life as it presents itself to us at the present time we believe that the requisite degree of protection would be afforded by the application of the following specific limitations at shore and at sea: (a) The maximum number of seals to be taken on the Pribilof Islands to be fixed at 50,000. (6) A zone of protected waters to be established, extending to a distance of 20 nautical miles from the islands. (c) A close season to be provided, extending from the 15th September to the 1st May in each year, during which all killing of seals shall be prohibited, with the additional provision that no sealing vessel shall enter Behring Sea before the 1st July in each year. 156. Respecting the compensatory feature of such specific regulations, it is believed that a just scale of equivalency as between shore and sea sealing would be found,, and a complete check established against any undue diminution of seals, by adopting the following as a unit of compensatory regulation: . For each decrease of 10,000 in the number fixed for killing on the islands, an increase of 10 nautical miles to be given to the width of protected waters about the islands. The minimum number to be fixed for killing on the islands to be 10,000, corresponding to a maximum width of protected waters of 60 nautical miles. 157. • The above regulations represent measnres at sea and ashore sufficiently equivalent for all practical purposes, and probably embody or provide for regulations as applied to sealing on the high seas as stringent as would be admitted by any maritime power, whether directly or only potentially interested. There is the scheme. Its features are these: first, a limitation of the killing on the islands to 50,000 seals; second, a protected zone of 20 nautical miles around the islands at all times, with a provision for increasing that protection by an increase of 10 miles for every reduction of 10,000 which might be made in the number of seals killed on the islands. That is to say, if the number to be killed on the islands was reduced from 50,000 to 40,000 then the protected area would.be 30 miles ; if the number killed were reduced to 30,000, then the area would be 40 miles; if reduced to 20,000, then the area would be 50 miles; if reduced to 10,000 then the area would be extended to 60 miles in diameter; and if this sliding scale should be further extended, and killing should be absolutely prohibited on the islands, you might have a protected area of 70 miles in diameter ! The British Commissioners do not suggest that last limitatiou. They say the minimum limit of killing on the Islands should be 10,000; then they propose a close season extending from the ORAL ARGUMENT OF JAMES C. CARTER, ESQ. 275 15th of September to the 1st of May in each year, during which all killing of seals iu Bering Sea, or any where else, shall be prohibited; and a prohibition against entering Bering Sea before the 1st of July. Now, I have several observations to make on that scheme. The first is that it begins by a restriction of the killing of seals on the islands from 100,000 to 50,000. But that, these Arbitrators have no power to make. The regulations they are permitted to frame must be operative outside the jurisdictional limits of the two Governments. They have no authority to make any Eegulation restricting the United States' upon its own soil; that was never thought of by either of the Governments when they were engaged in framing the Treaty. But the proposed Eegulations require that the number to be killed on the islands should be cut down to 50,000. That being inadmissible, the whole thing is inadmissible. But let that pass, and let us consider this method upon its own merits as a scheme for the preservation of the seals, aud assume that no objection is taken to the proposed reduction in the killing of seals upon the islands. How will the matter stand then ? At present, there are at least 160,000 seals taken every year from this herd, probably more—100,000 on the islands and 60,000 to 70,000 in pelagic sealing, besides what are lost. That, it is admitted, is ruinous. It is admitted that it involves the destruction, and probably the speedy destruction of the herd. The proposed limitation is supposed to prevent that destructive result, that is to say, it is supposed that it would inflict less destruction than would be effected by the taking of 100,000 young males on the Islands and 60,000 or 70,000, mostly females, upon the sea. Well, now, how many females, can safely bé taken without destroying the herd? That is the question : how many? Pelagic slaughter is levelled mainly at females; the great bulk of the pelagic catch is composed of females, as we know. How many can you safely take without destroying the herd ? That is a problem to which these Commissioners have not given their attention; but that was the main thing for them to consider. They could not construct any effective scheme or regulation for the preservation of this herd without knowing how many females could be safely taken. But they have given us, in another part of their Eeport, a starting point upon which to operate. They have said, in Section 60 of their Eeport, which is to be found on page 11: From the circumstances above noted, the maintenance of seal life in the North Pacific was threatened and reduced to a critical stato'in consequence of the methods adopted on the breeding islands, where the seals were drawn upon annually to, and even beyond, the utmost limits possible apart from depletion, and where, in consequence of the enlarged season of commercial killing and the allowance of " food kill- in <r" during the entire time in which any seals resorted to the islands, these animals had practically no undisturbed season of respite. At this time a new factor also tending towards decrease appeared in the form of "pelagic sealing." That is to say, their position is that, prior to the introduction of pelagic sealing, and when the herd was subject to no destruction, except such as proceeded from its natural enemies, and the killing upon the Islands, the killing of 100,000 non-breeding males was more than the herd could stand, and that that killing had brought the herd into a critical condition. Of course there is a point beyond which you cannot go in the taking of young males. You must leave enough for the purposes of reproduction. What is the limit ? The British Commissioners say that 100,000 is too many; the United States say that they do not think so. At the same time, it is conceded by the latter that you probably could not carry it much beyond that. Now take the British Commissioners' own view; If the herd cannot stand a draft of 100,000 276 ORAL ARGUMENT OF JAMES C. CARTER, ESQ. young males, how many females can safely be taken? Here you have a race of polygamous animals, one male being sufficient for twenty or thirty females. If the herd cannot stand the loss of 100,000 males, surely it cannot stand the annual loss of 20,000 or even 10,000 females. On the British Commission ers own hypothesis that must be true. N ow, what assurance have we that, limiting the catch in the manner proposed, there will not continue to be taken 20,000 and even 50,000 females? No restriction is placed on the sealing from the 1st of May to the 15th of September, except by the protected area around the islands, and the exclusion from Bering Sea until the 1st of July. How do you know that this scheme would not result in the taking of as many females as now? Why, it is certain it would result in that: I wish to call the attention of the learned Arbitrators to a provision of this scheme which makes it certain that, under it, the destruction, so far from being diminished, would be increased, because pelagic sealing would be immensely stimulated. One half of the supply now furnished by the Pribilof Islands is taken out of the market at once ! What must be the effect of that? Why, of course, to vastly increase the price, and proportionally to add to the inducements to pelagic sealing. We know this would be the case, for it must be taken as certain that the force of pelagic sealers would have been largely increased at the price which skins commanded in 1890 when 60,000 or 70,000 skins were taken. We know that pelagic sealing would still continue to increase and rapidly increase, even though no further stimulus should be furnished in addition to what the present market price offers. It has been rapidly increasing all along. But what will be the effect when the supply from the islands is cut down to the extent of 50,000? The world wants that 50,000, and will pay a great price for them. Under this scheme the pelagic sealers are offered the chance of furnishing them at a great profit. It is certain that the pelagic sealers would furnish them. They could do it with ease. All that is needed is to furnish the additional force of vessels and men; and this will be done because it will be highly profitable. The time allowed is abundantly sufficient if the requisite additional force is employed. These regulations which begin by cutting down the supply of seals from the Pribilof Islands, which raise theprice of sealskins in the market, and entice capital for the employment of more men at sea—these are provisions, not for the. restriction, but for the encouragement of pelagic sealing! That is their character upon the face of them: That is the object of this sliding scale which they propose for enlarging the area around the island. For every ten thousand of reduction in the number killed on the Islands, the Islands are to have an additional protection of ten miles. What does that amount to? That is still further reducing the supply which comes from the Pribilof Islands, and still further stimulating pelagic sealing. It makes the bulk of the whole supply of the market to depend upon pelagic sealing! The consequence would be not to diminish, but to greatly increase the slaughter of females. Take another feature. Of course the taking at the Pribilof Islands is much less expensive than by pelagic sealing, and consequently the skins obtained there can be supplied to the world at a lower price. The greater the expense attached to the catching of the seal, the greater the price, if the market will bear it, which it will, as the demand exceeds the supply. These regulations will insure that pelagic sealing will be carried on, and the same or a greater number will be caught; but the expense is increased, and the consumer must pay that. You cannot increase theprice of a commodity without increasing the outlay of the consumer. ORAL ARGUMENT OF JAMES C. CARTER, ESQ. 2?7 Then, who is to carry out these Eegulations ? That must be done by armed cruisers. Must the United States furnish them. Nothing is suggested to the contrary. If Great Britain is to take her share of the expense, it would require a very considerable force of vessels. Not one, not two, but half a dozen at least must be sent there by one, or both, of the Governments for the purpose of enforcing these regulations; and it would cost not 100,000, but many hundreds of thousands of dollars—perhaps a million would be annually required to be expended under this scheme in order to enforce these prohibitions. And their enforcement would be most difficult, because the pelagic sealer has a right to be upon the sea ; the vessel has a right to be there, and it is the business of the Governments to keep it out of this protected area. Conjecture only can inform us of the cost that is to be paid, not by the consumer, but by the Government; that is, by the people of the two powers, and of course the expense would have to be paid by taxation. Upwards of a million of dollars is to be expended, and for whose benefit? For the benefit of the United States? for the benefit of Great Britain? for the benefit of the consumers? No; for the benefit solely of the pelagic sealers; for the benefit of those engaged in pelagic sealing, and in order to enable them to carry on a destructive practice which will exterminate the seals in a few years ! It seems to me that such a scheme is too preposterous for serious consideration. I have said that these Commissioners have sedulously avoided the real problem before them, which was, to ascertain how many females can be taken without working the destruction of the herd. That is the sort of problem which has been solved upon the islands. The question there has always been, how many young males can you take without endangering the supply? They carry on the sealing on principles derived from very long experience, and they have come to the conclusion that you can take 100,000 young males, but you must not go beyond. A similar problem should have been solved by the Commissioners : how many females can be taken ? If they had struggled with that question, the fallacy of their own solution would have been apparent. In the first place, they could not tell how many. Could they safely say that even five thousand females could be taken without endangering the destruction of the herd? They could not say that even 5,000 might be taken. From the evidence in the case, and as will be seen from the careful and accurate examination by the American Commissioners, it appears that 5,000 could not be taken. If you take 5,000 each year, that number must be annually subtracted from a constantly diminishing minuend, and the decrease progresses in a ratio far more rapid than the arithmetical one. The destruction at first might perhaps be small, but it would become proportionally greater and greater each year, until it reached a figure at which its swiftly destructive effects would become manifest. But suppose the Commissioners had concluded that 5,000, or 20,000, might be taken ; they would have been confronted by another difficulty equally insuperable. How could they limit the captures to those figures? They could not limit the taking to males; there is no method in pelagic sealing of making any distinction. How could they tell when the cupidity of men was aroused by a large profit in the market, that there might not be 100 vessels upon the seas, and that not merely 60,000 females would be taken, but 100,000? That is perfectly possible, and far more, probable than any different result. One would suppose that in making these regulations they would have paid some attention to their own conclusions, as stated in other parts of their report. They have considered this question of taking females, 278 ORAL ARGUMENT OF JAMES C. CARTER, ESQ. for it had been pressed upon them. They have ventured to say, that the taking of females is not necessarily injurious; they may be barren, and then it is not injurious. That is true. It would not be any damage to take barren females; but who can tell what females are barren, and what are not? Nobody, except Elliott, whose report my learned friends very much wished to get in evidence. He knows ! He can tell a barren female from others ! He has recognized them on the islands, and counted them. He says there were 250,000 ! But no other man can tell. These Commissioners were on the Islands. They could not tell how many barren females there were, or whether there were any. But I agree, if they could confine the taking to barren females, it would not do so much damage; but certainly it cannot be so confined, and they do not pretend to so confine it. What is their own view of taking females that are not barren ? They have expressed it thus; I read from section 80 of their report, which is on page 13 : 80. To assume that the killing of animals of the female sex is in itself reprehensible or inhuman, is to make an assumption affecting all cases where animals are preserved or domesticated by man. Most civilized nations, in accordance with the dictates of humanity as well as those of self-interest, make legislative provision for the protection of wild animals during the necessary periods of bringing forth and of rearing their young; but the killing of females is universally recognized as permissible if only to preserve the normal proportion of the sexes. That is true, in cases where the animal can be cultivated in all parts of the globe at pleasure; but untrue where you can breed it only in a very few particular spots. [Continues reading :] This is the case in all instances of game preservation and stock raising, and, in the particular example of the fur-seal, it is numerically demonstrable that, in maintaining a constant total of seals, a certain proportion of females should be annually available for killing. The killing of gravid females must, however, be deprecated as specifically injurious, and in any measures proposed for the regulation of seal hunting should receive special attention. What attention have they given to it here? What provisions have . they made or suggested for the protection of gravid females? None whatever ; and of course none can be suggested. But why is the killing of a gravid female more specifically injurious than the killing of another female? I cannot myself perceive the difference. The two-year-old female of to-day is not gravid, but, if she is killed, the possibility of the existence of a gravid female is prevented. You only postpone the destruction by the period of a year. The absolute amount of the injury is almost the same, not exactly the same, but it is the same in nature, and almost the same in amount. Now that we see what these regulations are, how are they to be described? What the Treaty requires is regulations necessary for the preservation of the fur-seal. Are these regulation s for the preservation of the fur-seal? No; they are regulations designed to secure the more speedy destruction of that race. Their chief feature is to permit pelagic sealing, and to increase, and prodigiously increase, the stimulus which is offered for the pursuit. They are regulations, not for the protection and preservation of the fur-seal, but for its destruction—and for its destruction in the most inhuman and shocking form. And they come in the shape, as it were, of an invitation on the part of Great Britain to the United States to engage with her in this work of destruction ! She asks them to abolish this mode of capture at present pursued upon the islands, or to diminish it, to cut it down; to forego in great part that mode of taking the seals which is consistent with the preservation of the herd, and which is agreeable, as far as the killing of animals can bemade ORAL ARGUMENT OF JAMES C. CARTER, ESQ. 279 agreeable, to the impulses of humanity—she asks them to forego that .and engage with her in this destructive slaughter upon the seas ! She is made to say to the United States : " Blot out from your statute-book those laws which declare the killing of female seals to be a crime ; forget • those precepts of the law of nature which teach us that the destruction of any useful race of animals is a crime; forget those precepts, and come and engage with us in this work of destruction upon the high seas ! Come, together with us, and let us cut open the bellies of these gravid females, just ready to bring forth, and let their living and bleating young fall on the decks ! Come with us, and slaughter these nursing mothers out at sea in search of food, and let their miserable offspring perish on the shore ! Come with us, and let us make our decks run red and white with commingling streams of blood and milk ! " Are these . the regulation which a great and humane nation tenders to the United States as being those to which she is willing to yield her concurrence? Are these the regulations which the civilization and humanity of Europe, seated on that bench, are expected to approve? Mr. President, I have said heretofore in the course of my argument— and I cannot too often insist upon it—that the duty of preserving this useful race of animals belongs to that people which has such a control over them that they can take and apply the annual increase and benefit of the animal to the uses of mankind without diminishing the stock. •It is their duty, because they alone have the power to perform the task, and because self-interest furnishes them with a sufficient motive to insure its performance. Nature has so linked together duty and self- interest as to make the gratification of the one assure the performance of the other. The United States believed that this was its duty, and it engaged in an effort to perform it. There are those who thought, and who still think, that that duty should never have been relinquished by the United States, but that it should have performed it at all hazards, even though it had been obliged to meet the " three quarters of the globe in arms." ' If it had engaged in its performance with the full exertion of all its power, naval and military, and calamitous consequences had resulted, the humane sentiment of mankind—the public opinion of the world— history, in making her final award—would have charged all the responsibility for those calamities upon that nation which had refused to be bound by those great natural laws which ought to be the rule governing the intercourse between nations. But other counsels were followed; and a different course was pursued. The United States, abominating war, viewing hostilities with a power kindred in speech and blood with unutterable dread, always inclined to pacific measures, when a Tribunal was offered, ma'deup from the selected wisdom of the world, for the determination of .the rectitude of their contention against Great Britain, could not help accepting that offer, and thus obliged itself to forbear from any further efforts in enforcing its rights, and in discharging that corresponding duty to preserve this ra.ce of animals which had been imposed upon it by its situation and by its advantages. That duty it has relinquished; but, although the duty has been relinquished, it has not.been extinguished. It has only been transferred from the United States to others. It has been transferred to the members of this Tribunal; and it remains for them to discharge this high duty of preserving from destruction a bounty of Providence designed to be a perpetual blessing to man. That duty is one which it is perfectly easy to perform. The destruction of this race of seals is wholly, absolutely, unnecessary. It can be easily, certainly preserved, 280 ORAL ARGUMENT OF JAMES C. CARTER, ESQ.. either by an award of property to the United States, or by the establishment of regulations tantamount to such an award of property, which shall prevent any slaughter of the species on the seas, and remit the entire taking to the Islands, where it can be carried on forever consistently with natural laws, as it has already been carried on for half a century. If the decision of this Tribunal shall be in accordance with those great laws of nature which I have attempted to elucidate and to support, it will remain a guide, an instructive guide, for present and for future times in the adjustment of international controversies. Lf it shall be otherwise, it will be, of itself, a new source of strife and contention, and will add to the difficulties, already sufficiently great, which embarrass the intercourse of nations. Such is the responsibility of this high Tribunal, and I am not to doubt that it will be resolutely, faithfully, and effectively discharged. The President. Mr. Carter, at the conclusion of this long and weighty argument, without presuming to express any opinion in reference to the merits of your case, I cannot refrain from expressing my acknowledgment of the lofty views which you have taken of the general principles involved in your subject, and which you have developed before us. You have spoken in a language well worthy of this high court of peace between nations. You have spoken for mankind. Mr. Carter. I am very much obliged, Mr. President. [The Tribunal adjourned until Wednesday, Mav 3, 1893, at 11.30 o'clock.] FUR-SEAL ARBITRATION. ORAL ARGUMENT FREDERICK R. COUDERT, ESQ., ON BEHALF OF THE UNITED STATES. ORAL ARGUMENT OF MR. COUDERT. SIXTEENTH DAY. The Tribunal conven* The President. M Mr. Coudbrt. May : this high Tribunal, at t dent of the Tribunal expressed his opinion, a of the Court, as to the < congratulated him, as m manner in which these he especially alluded tc developed 1 3lf ! idt ritho nidr< ,.189 ?.—11.30 a. m. )heai ent, a nd members of rocee( ings, the Presi- well as kind eulogy uono :' other members other s argument, and Cour t itself, upon the ad be en.assumed and ferrir g personally to thei Qdulgenceofthe may say in all frank- pect from the nature 5 con pliments at the at I sha close of my address. I do not wish in advance, by giving an estimate of what I propose, or hope to do, so to belittle my task as to diminish the share of the attention which I shall receive; but my brother Carter has gone so elaborately over the whole case, with the exception of the facts, and he has visited, taken possession of, occupied, adorned and fortified all the lofty grounds in such a way that there is very little left of that part of the case for those who follow him in the argument. To use an expression which will be familiar to two at least of the arbitrators, he has preempted the best locations. He has taken the highest grounds, as the President has truly said; ^.nd they lack nothing by way of addition, illustration or argument. But it is a comfort to me that they cannot stand unless I now come forward and give him some help. I must lay the foundation upon which the superstructure rests. He has assumed, and most properly, certain facts to exist in the case. If those facts exist, his argument is perfect. I do not underestimate the ability of my friends on the other ide, for their reputation is not bounded by locality, or by th> the aeas. I know that they are ingenious, able and experience to meet any argument, however sound and however excel unless this argument of my learned friend is based upon indeed their contentions must prevail and all the learning ai industry, so lavishly bestowed upon his work, will be in v£ the house that we read of, it would be built upon the sand î destroyed. With a substratum of undisputed fact, or fa phantly demonstrated, like the other building erected upon must resist assault triumphantly. limits of denongh 284 ORAL ARGUMENT OF FREDERICK R. COUDERT, ESQ. After all, then, though my task in discussing the facts does not possess those intellectual allurements to this Tribunal, or offer it those attractions, which it found so completely in the argument of my learned brother, yet perhaps the utility of my task may redeem it from any reproach that it is lacking in other respects. It is something to be useful; and it will be a great deal if, when I have closed, I may confidently claim, while admitting that I have been tedious, that I have so supported by facts the argument of my friend that it has presented the whole case of the United States as strongly as it was possible to present it. In this case, as in every other, the most important part or element of the discussion must reside in the facts ; and it is satisfactory to me to know that I may perhaps give this Court some instruction on the only subject as to which I am competent to instruct it. The facts in a case like this are like the diagnosis of the physician. His prescriptions are of no value unless the disease is ascertained and the condition of the patient determined: then the applicability of the remedy is readily discovered. It would be of no value to us, of still less value to this court, if you should find that in the abstract the arguments of my learned friend are unanswerable, and yet that there were no facts to which they could be attached. This is a long preface to say that I shall be mainly confined to the facts; but I shall endeavor—and I shall ask the patience and forbearance of the Tribunal—even if there be repetition in my remarks, to make those facts so clear and so strong that there will be no difficulty whatever in applying the remedy. This Tribunal knows the law. If there were any crevice in it that had been unexplored by their experienced and active minds, a flood of light has been poured into the darkness by my learned friend. The only inquiry now remaining is what are the facts "upon which this argument is based? But I desire, with the indulgence of the court, to be permitted to argue one single proposition of. law. It has been touched by my learned friend, and to some extent argued, but it seems to me so important in the consideration of this case, and indeed I may say so vital, that I should not be satisfied if I did not attempt to bring something in addition to what he has stated, because he has not bestowed upon it the minute examination which he has given to all the other questions in the case. I refer to the question of self-defence of our industry. That is stated, and most elaborately argued, by Mr. Phelps in our printed argument at page 130 and following; and I shall ask your honors to permit me to refer to the points very briefly, leaving you to give that careful perusal to the written argument which it eminently deserves. It is manifest that if we have an industry—an industry in the true and accepted sense of the word—an assault upon that industry is an assault upon us. When we speak of self-defence we do not only mean self-defence in the ordinary and elementary meaning; that is to say, an assault upon our persons or upon our most vital interests. I take it that the doctrine of self-defence is set in motion the very instant that any invasion of any right, however slight, is made. It happens in this case—it is the good fortune of the United States that it should thus be—that you may obliterate the seals, everyone of them, that you may encourage the pelagic sealers to do their best, or their worst, as you may choose to consider it; and consent that this race of animals shall be exterminated, as it must then be within one or two or three years. It may be that your decision will be such that, we ourselves withdrawing the protection which is the life and I may say the creation of the herd, ORAL ARGUMENT OF FREDERICK R. COUDERT, ESQ. 285 it will be obliterated practically and commercially in less time than that • and yet even then the United States will not suffer a wrong that can affect her greatness or her wealth in any perceptible degree. She can stand that assault upon her resources without impoverishing herself or distressing her people. That is her good fortune in one sense, her misfortune from the purely professional view of the case. If the United States were a small nation, dependent for livelihood and existence upon this industry which has thus been carefully cultivated for nearly a century; if it had no resources to feed its people but that; if this were an industry belonging to the men who now live there and who have been transformed by the beneficent hand of the United States from barbarism to civilization—if that were so, your sympathy would at once go out to such a people, and you would say that they must be protected. There must be, in the principles of humanity which regulate such matters and underlie international law, some rule, some principle, upon which destruction may be averted. It must be that there is something in the reasoning and consent of men which will interdict absolute destruction of their only means of livelihood. It is not so here. To that extent we are worse, or better off, as you may choose to consider it, than would be the inhabitants themselves, if, helpless and eloquent only through their helplessness, they appealed to you; but I take it that when we consider this subject upon principle, and upon rule, this fact does not enter into the consideration of the case, and we are entitled to claim that if we have a right of protection and of self-defence it is not the quantum or proportion of the wrong, it. is the quality of the act that you will consider. If this indiscriminate and brutal slaughter is an invasion of our right in the slightest degree, then I appeal to you and unhesitatingly and respectfully insist that it is your duty to prevent it. Have we an industry? The contrary of that can hardly be claimed. We are using intelligence; we are using money; we are using effort to protect the seals for the purposes of commerce, for useful purposes to mankind. We are raising seals on the Pribilof Islands as sheep are raised in Australia, as cattle are raised in the far west. To carry out our purpose we use care and self-denial; we have invested a large capital in the industry ; we have never been interfered with by man until within a comparatively recent period. We found the people in a state of dismal ignorance, uncared for and unprotected, living with as little regard to the laws of civilized life and Christianity as the very animals that they dealt with. They have been transformed by the hand of the United States, pursuing this industry, into a civilized, happy, and Christian people—a small people, it is said by the other side, and truly said, but yet a people. And now another industry, so called, arises—a practice I would call it, unworthy of being dignified by the name of an industry. It is conceded to be destructive in its effects and brutal in its methods. Perhaps if that were all we would have nothing to say; but it is also plain, and will be made plainer in a moment, that the pursuit of this so-called trade or industry is destructive of our rights upon our islands. It is not worth while mincing this question, or trying to evade it. The industry on the Pribilof Islands and pelagic sealing cannot co-exist. You must stop the one or destroy the other. The concurrence of the testimony will show it. The undisputed proofs will show it; and it may be assumed throughout, and it must be assumed when this high Tribunal comes to make its decision and to formulate its decree, that you miist elect between the two—between the process of civilization, of economy, of 286 ORAL ARGUMENT OF FREDERICK R. COUDERT, ESQ. intelligence, of preservation, or the permission of a practice conceded to be brutal in the extreme, demoralizing to all those who are engaged in it and a crime against nature. Perhaps even this would not be sufficient if we stopped there. This High Tribunal will say: "What are your rights?" Well, in arguing before this High Tribunal the word " right" is most extensive. If there were any other Tribunal, any Tribunal of lesser dignity that could have determined this question, we would not have called upon you. The mere act of resorting to such a Court as this, enlarges the domain of right and proves that we are making a step forward in the way of civilization and humanity. You are here to declare what right is in these cases unfettered by statutes, uncontrolled by limited jurisdiction, viewing the subject from a high and lofty eminence to the end that Justice may be done between the contending nations, for the benefit of the world. If this be so, arguments drawn from statutes may be of little avail. You will enquire what principles underlie all these questions, what rules it is well for you to establish, not only for the Government of Great Britain and the United States in this particular instance, but rules that will operate hereafter to settle in advance the controversies between nations, and to allow civilization to pursue its beneficent course, without threats, or disturbance, or violence. As to our industry upon the islands : I have said of what it consisted. It will appear from the case—and this is an answer to a question of one of the arbitrators made a few days ago—that one of the moving inducements of the United States to pay a large sum of money to Bussia was the fact that there was on the territory ceded a valuable industry, well settled, well recognized and undisturbed. If prescription means anything, I may say that it is founded upon, and supported by prescription. Until within a few years the practice of entering upon Bering Sea and slaughtering the mother seals and the pups upon our islands was unknown. Our title had never; that I know of, or so far as I have been able to read, been disputed. It was the Pribilof industry on one side the water; the Commander industry on the other, both beneficently and peacefully pursued. Suddenly there comes a new element in the case. The world is moving on. It cannot stop. It must move for good or for evil, and new elements come in upon the sea just as they do in our own quiet civilised civic life. Something was said, and questions were asked, about the rights of the Indians who lived upon this industry, and whether we conceded that they had a property in the seals. If that question were asked me I should unhesitatingly deny that they had any right in or to the seals. That their efforts to make a livelihood by spearing an occasional seal for food were tolerated, I do not deny; that they would be tolerated to this day as an insignificant incursion into our territory, is probable ; but look at the difference; it is one that should not be lost sight of. The Indian paddling about a few miles from land in his canoe to catch an occasional seal, what harm did he do to the herd itself? But where the sealer starts out with six men in his boat, with the new weapons that have come into use within twenty years, the destruction is immeasurable ! If it be true that they may go on improving—if that be the word—in these methods of violence and destruction, why should they stop at the rifle, or the shot-gun, and not employ dynamite? If one be admissible, why not the other? We put the question to our friends : suppose these intelligent and active sealers should find that, having exhausted the supply of seals which Providence had furnished, it was better to indulge in fishing with dynamite, is this a proper and legitimate method of ORAL ARGUMENT OF FREDERICK R. COUDERT, ESQ. 287 securing fish? They say in their answer, "Pishing by dynamite is unlawful fishing." By what principle and upon what reasoning is it unlawful? It is not by some mediaeval precedent that you can prove this ; because fortunately, or unfortunately as you please, in those times men had not learned that they could blow up houses in great cities with a handful of dynamite, or destroy regiments of men, or herds of animals by its use. Why is the agency of dynamite to be deprecated rather than the use of gnu-powder? Are they not both of them for all practical purposes of destruction absolutely the same; and if our seals are to be destroyed lawfully to-day by the use of shot-guns and rifles, why may they not, by improved methods of destruction, be more surely and speedily annihilated ? To start from a point that is certain, to reach one that may be uncertain, have we any rights of property at all as to these seals? Here fortunately all concede that we have; and it is said that upon the islands these are as much our property as though they were sheep or calves. Sir Charles Bussell. Certainly not. Mr. Coudert. Well, I gave you credit, and I take it back. I supposed that when we held the seal in our hand, I supposed that when we slit its ear, I supposed that when we could put a brand upon it, that it was ours, as much as if was a lamb or a ewe. Where the difference enters I ani unable to say. I have read the argument of the other side with interest, and I supposed that it was conceded that upon our land, in our hands, under our flag, in our waters, these animals were as absolutely our property as this book is mine. I cannot prove it. There are some propositions which seem self-evident. This is one and I shall not undertake the demonstration. But I would ask: if these seals are not absolutely our property, whose are they? They are not the property of the world. They are not the property of Great Britain : no British subject, no French citizen, no Italian subject, no man from any country in the world may come upon that land without being a trespasser, unless by our permission. Shall it be claimed that a marauder upon these islands may kill one of these seals, may destroy one of these pups, without being liable to the laws of the United States? I confess it is a new suggestion to me ; and I will ask the Court to pardon me if, notwithstanding the contradiction of my friend on the other side, I shall assume that our rights over the seals, when they are on our land and in our hands, are absolute and exclusive. We may do with, them what we like. To put an extreme case, suppose it were deemed important by the United States to kill every seal upon those islands. What nation in the world would have a right to interfere? What nation in the world could properly say, if we deemed it good policy, if it were advantageous to us, if there were a profit in it, what nation would have a right to say, that we should not be permitted to kill them for our own useful purposes? I take it that the best test of an exclusive property right is the question whether or not any other human being may lawfully interfere with the exercise of such assumed right; and until it is shown by the other side that within the three mile limit, and upon our own shores, under our actual dominion aud the protection of our flag, some one else may stay our hand, I will assume that the property is ours. Indeed, I understood from the beginning that such was the concession, but I care very little whether it is a concession or not. I take it to be plainly true. ' J This much, I think, will be conceded by the other side—that if the sealers come upon our territory and slaughter the seals that are there to be found, whether mothers or pups, they are committing a crime for 288 ORAL ARGUMENT OF FREDERICK R. COUDERT, ESQ. which they may be justly punished. The British Commissioners, whose work is the substratum of the case for Great Britain, say that raids are occasionally committed because our guard system is inefficient; that these guards are forbidden to shoot the raiders and that we ought to have a more efficient protection for our own seals. I do not understand that even they, with all the ardor of their advocacy, dispute the proposition that we have the right to repel raids even by force, but on the contrary, they accord to us and suggest that we should use this privilege of slaying the marauders. But how far, it maybe asked, does this reasoning affect the question? Most materially; for if you concede that the sealers cannot directly kill our seals, then the question comes : May they do so indirectly? I may appeal to all the Arbitrators who have had a judicial experience, and ask whether one of their most arduous duties has not been to prevent men from doing by indirection that which the law absolutely interdicted. The law orders that a certain thing shall be done or shall not be done. Immediately the ingenuity of lawyers is set to work in the interest of clients, to evade the prohibition and to annul the order. The sagacity of the courts is seldom better employed than in trying to find how they may best and most properly baffle these efforts at violating the spirit while respecting the letter of the law. May it be said that if these pups upon the Pribilof Islands are ours, we may not issue a general edict of death against them ? If it be the fact that our power goes thus far, may they be destroyed by others indirectly ? Here is our property, our pup, upon our land. It is suckled by its mother, and must perish if that mother dies. May a pirate or poacher lie in ambush, even, if you please, outside the three mile limit, wait until the nursing mother has crossed that imaginary line, and then kill the pup by the very act of killing the mother? What sense is there in such a doctrine as this? What principle is there to support such a view? If the poacher, to give him a mild designation, may not attack me directly and thus destroy my property, how can he do it thus indirectly, knowing at the time that he is destroying that indirectly which he has no right to touch? 1 think it is difficult to give too much weight to this consideration; and when I shall have shown to this High Tribunal that the destruction of the mother is the destruction of the pup, and that the pup is under our dominion, in our hands, subject to our control and is our property, then I will ask the Court to hold that these sealers cannot indirectly do that which it is conceded they may not directly accomplish. If you destroy the means whereby I live, do you not take away my life; and if you may not take away the life of these young and helpless animals by slaying them with a gun or a spear, may you do it by the doubly barbarous method of killing the mother that makes existence possible? Upon this point, and reverting to the nature of pelagic sealing, we say not only that it is a practice barbarous and inhuman in itself, but that it is opposed to the law of all civilized nations. It is opposed to the law of the United States. It is opposed to the law of Great Britain. In fact I know of no law which does not interfere to protect useful animals, by preventing wholesale slaughter that is effected through the medium of the mother. It is urged on both sides in considering the question of international law, that the law common to all countries is the one to be looked at; and our friends on the other side insist, and I am not disposed to find any fault with this statement of their views, that the law common to both countries, Great Britain and the United ORAL ARGUMENT OF FREDERICK R. COUDERT, ESQ. 289 States, is to be examined in order to ascertain what the international law may be. Is not this common to both countries? Do not both countries prohibit such practise as we complain, of? Do not both countries assert that it is criminal to kill the nursing mother because the effect is to annihilate the flock? As my friend Mr. Carter has said, it is spending the capital and impoverishing the individual. The man who spends his capital recklessly brings destruction only on himself; and yet in some countries—as here, I believe—the law beneficently steps in to guard the prodigal against the results of his own imprudence and will not allow him to squander his own substance. It puts a guard upon and about him; he can make no valid contracts; betakes no financial steps which entail responsibility, because of his disposition to dissipate the capital that he owns. Where the capital is suffered to perish the whole source of happiness and prosperity that flows from its proper use is gone. It is claimed that these are animals ferœ naturœ. I do not think the proposition is helped by giving it a Latin name, even if it is consecrated by long usage and time. These are wild animals, it is said, and wild animals have no protection under the law. That is one of the grounds taken by the other side. The other ground is that the sea is free; that commercial nations cannot accept the idea or tolerate the claim that depredations of this kind may be interfered with. Let us look at these claims for one moment. In the first place, are the seals properly designated as animals ferœ naturœ? Perhaps the Arbitrators may have thought before coming into this court, that they knew something about the nature of the seal; but any such idea, however flattering it may be to themselves and to their preconceived beliefs may be promptly dissipated in view of the conflict that arises the moment that we try to agree upon what a seal really is. If the view of our friends, as expressed by the British Commissioners, is correct, the seal is one of the marvels of nature. These gentlemen have undertaken to define the animal. It would be unjust to them to give merely a synopsis of their definitions; and I propose to.read from their own work and therefrom to show what an extraordinary animal the seal is. I am sure that you would all wish to be informed of the nature and qualities of the animal that we are dealing with. It is well when you are dealing with an animal to know what designation to give it, especially if you are a Frenchman. "J'appelle un chat un chat," he is fond of saying. As to the animal under consideration, it is claimed on the other side that it is an essentially marine animal; that it goes upon the land merely because its instinct tells it to go; merely because it is necessary for such purposes as breeding, nursing, and raising the young; indeed, they add,- if nature did not tell them to do this, and. if it was not indispensible to their life, they could do without it. These latter propositions we are disposed to agree to; but after all this is only another way of saying that Nature has inculcated into those animals certain laws necessary to their preservation, and which they must fulfil under the penalty of death. Nature is severe in her punishments. She is inexorable. Her commands cannot be disobeyed with impunity or avoided by ingenuity. You may violate the commands of God and hope for mercy; you may transgress the laws of the State and escape or find indulgence and clemency; not so with nature. Every infraction of her laws will be followed by retribution. Animals show more wisdom than men by giving at once implicit obedience to the inevitable ; and all that may be said, therefore, about them in this particular is that B S, pt xil-—19 290 ORAL ARGUMENT OF FREDERICK R. COUDERT, ESQ. they come to these islands because they cannot help it. If they did not they would perish. If we repulsed them they would perish. If they had no such place as ours—and that is the only place that they have—the race would die. This essentially marine animal, or pelagic animal, lives upon the land about eight months in the year. If it did not live eight months in the year there, notwithstanding its pelagicity—to take the new and elegant expression that has been coined, if not for this case, at least recently introduced—notwithstanding its pelagicity, it would perish; and what is still more remarkable, if it is born at sea it dies ! It is sometimes spoken of as a fish, but this so-called fish must live on land, during a part at least of its existence; and if it is deprived of a terrestrial abode it must perish from the surface of the earth and of the water. It is a tame animal. It is easily taken. It is handled as readily as a lamb. The process of selection for slaughter on the islands shows this to be true. The animals are driven precisely as sheep, and apparently with more ease. These animals ferœ naturœ that are likened to wild geese and bees and the like, are so domestic, if that be the appropriate expression, or so tame, so gentle, so easily handled, that they can be driven by a boy into a pen hundreds of them at a time; those that ought to be killed may then be selected, and the rest dismissed. I submit that under those circumstances to call those animals ferœ naturœ is a misnomer. Granting, if you please, that they are amphibious animals, granting that they are put to no useful purpose, except for food and the use of their skins, how and in what sense are they animals ferœ naturœ? They go to sea, it is true, but only because there they find their food. As one of the witnesses whose deposition I shall read to the court in a moment has said, not only is the seal a domestic animal, but it is one of the most profitable of domestic animals. Without going so far and, looking simply at the reason of the law, I shall claim that it being established that these animals live on these islands, live on land, protected by man during the greater part of the year, and never leave—never for a day or for a season—without the intent of returning, that in the eye of that law which this high court is called upon to administer they are not animals ferœ naturœ, but must be likened for the purpose of this discussion to domestic animals, raised, cultivated, protected, handled and used for beneficent purposes by the hand of man. They do not .fly off as bees, which may or may not return; and yet bees are protected so long as they have this animum revertendi. They are not like wild geese or wild ducks. They are, if you please, of their own kind. The seal is an animal sui generis. It may be called an amphibious animal, though I do not know that even that would be a just expression. The otter has been likened to it in this discussion ; and yet it has been said by Buffon that it is not correct to call the otter an amphibious animal, because he partakes so largely of the character of a land animal. But however this may be, call the seal, if you please, an amphibious auimal, with a single home which it never leaves without the intent to return. Where such an animal is concerned is there no protection because the seas are free? The freedom of the sea is as important to the United States as to any nation in the world. I might say, owing to the length and extent of its seaboard more important than to any other nation, Great Britain perhaps excepted; and if it be that we are by our contention attempting in any way to interfere with the freedom of the sea, then we are wrong. The freedom of the sea is more important than the life of the seal. It should not be interfered with. But I ORAL ARGUMENT OF FREDERICK R. COUDERT, ESQ. 291 claim with all respect to this high Tribunal that so far from interfering with it, we are promoting and extending it; that the freedom of the sea m the language of our Chancellor Kent is meant for "inoffensive purposes," not for the purposes of license to do wrong. Under those circumstances if it be true that we have property to a certain extent, at any time, upon the islands, then the question is, when is that property lost ? Is it lost in the herd when that herd is approaching the islands for its annual and necessary migration? Is it lost in the females of the herd when attending to their young on the islands, and passing outside the territorial line? They leave the young on shore, where they perish, if their mothers are destroyed. In one or the other of those two cases, or nowhere, is the property lost. It is either lost in the annual migration when the mothers are travelling to and from their home or it is lost when the mother, going out for sustenance for herself and for her young, is killed by the pelagic sealer. I submit to the court that by municipal law our right is everywhere recognized. In Mr. Phelps' argument this subject is discussed most carefully and clearly. I shall read merely a few extracts in order to give point and accuracy to my remarks. I read from page 132 : The circumstances, that is, the migration of the seal and the temporary absence of the mother. It is a general rule, long settled in the common law of England and America, that where useful animals, naturally wild, have hecome hy their own act, or by the act of those who have subjected them to control, established in a home upon the land of such persons, to which the animals bave an animum revertendi or fixed habit of return, and do therefore regularly return, where they are nurtured, protected, and made valuable by industry and expenditure, a title arises in the proprietors of the land. Can there be any dispute as to that proposition being sound? And how far does that title go? Does it not, as we state here, enable the owner to prevent the destruction of the animals while temporarily absent from the territory where they belong ; a title, however, which would be lost should they abandon permanently their habit of return, and regain their former wild state. Here is the only difference, I submit, between the case of these animals, which we will call amphibious animals, and other animals that never leave their home. Our title is absolute. I do not recognize that there are here mitigated forms of property. What is" mine is mine, only in this case the right is subject to defeasance, and different in that respect from other kinds of property. I cannot lose my title to my sheep, my cow or my horse except by my own act or the superior act of a superior power; but here my title depends, to a great extent, upon the will of the animal. The animal has an animus in this case; it has no animus in the other. Where it is a tame animal in every sense of the word, recognized as such by law, and subject to my control, always and forever, then I cannot be divested, even if it should stray and go into the territory of another. H he kills it he is guilty of a crime; and if these animals leave without that intent then they have divested us by their act of the property notwithstanding our intent to keep it. Then Mr. Phelps proceeds and he justifies this assertion: It is under this rule, the justice of which is apparent, that property is admitted in bees, in swans and wild geese, in pigeons, in deer, and in many other animals originally ferœ naturœ, but yet capable of being partially subjected to the control of man as is fully shown, hy the numerous authorities cited in and appended to Mr. Carter's argument. 292 ORAL ARGUMENT OF FREDERICK R. COUDERT, ESQ. The case of the seals, we submit, is stronger than any of these. There is no case that stands so close to the case of an absolutely domestic animal without being, if you please, in every sense a domestic animal as that of the seal. In that particular it is, as I said sui generis. As stated in the argument: Their home on the American soil is not only of their own selection, but is a permanent home necessary to their existence, and in respect to which they never lose the animum revertendi. And we know from the records that for a century back that animus revertendi has been constantly and tenaciously exhibited and exercised. The municipal law has been fully gone into by Mr. Carter, and I.pass from that subject. Now, have we any rights under the international law? The proposition is laid down in this way and supported by authorities to which I will call the attention of the Tribunal: But upon the broader principles of international law applicable to the case, the right of propertyin these seals in the United States Government becomes still clearer. Where animals of any sort, wild in their original nature, are attached and become appurtenant to a maratime territory, are not inexhaustible ' I ask the attention of the Tribunal, to that element in the case, thus making them different from the boundless schools and shoals of fish in their product, are made the basis of an important industry on such territory, and would be exterminated if thrown open to the general and unrestricted pursuit of mankind, they become the just property of the nation to which they areso attached, and from which they derive the protection without which they would cease to exist, even though in the habits or necessities of their life some of them pass from time to time into the adjacent sea, beyond those limits "which by common consent and for the purposes of defense are regarded as constituting a part of the national territory. In such a case as this, the herd and the industry arising out of it become indivisible; and constitute but one proprietorship. This high court will observe that in discussing the question of the industry, a distinction is made between property in that industry of which the herd is a part, and property in the individual seal. I am not in the slightest degree disposed here to minimize the force of the argument that this herd is ours, and every individual seal belongs to the United States; but my purpose is just as well accomplished if the high Tribunal takes the view that even without going to that extreme length, if it be extreme, the United States has an interest in the industry— this industry founded by Bussia and nurtured, fostered and protected by itself—that the industry itself is one susceptible of protection by international law : What is the right of. property in the herd as a whole, in the seas, and under the circumstances, in which it is thus availed of by the United States Government as the foundation of an important national concern, and in whi ch it is assailed by the Canadians in the manner complained of? When this point is determined; all the dispute that has arisen in this case is disposed of. In support of this most important proposition Puffendorff and Vattel are both cited. I will not take the time of the Tribunal to read at length what they say, but simply content myself with an extract from each, with regard to fishing. How different the case of fishing is from the pursuit of the seal, I have already tried to show; and .how much stronger the Case of the United States with regard to seals is than the illustration sought to be drawn from fishing in the common acceptation of the word. This is what Puffendorff says: ORAL ARGUMENT OF FREDERICK R. COUDERT, ESQ. 293 ■ As for fishing, though it hath much more abundant subject in the sea than in lakes or rivers, yet 'tis manifest that'it may in part be exhausted, and that if all hâtions should desire such right and liberty near the coast of any particular country, that country must be very much prejudiced in this respect; especially since 'tis very usual that some particular kind of fish, or perhaps some more precious commodity, as pearls, coral, amber, or the like, are to be found only in one part of the sea, and that of no considerable extent. In this case there is no reason why the borderers should not rather challenge to themselves this happiness of a wealthy shore or sea than those who are seated at a distance from it. "The various uses of the sea," says Vattel, "near the coasts render it very susceptible of property. It furnishes fish, shells, pearls, amber, etc.; now in all these respects its use is not inexhaustible. Wherefore, the nation to whom the coasts belong may appropriate to themselves and convert to their own profit, an advantage which nature has so placed within their reach as to enable them conveniently to take possession of it, in the same manner as they possess themselves of the dominion of the land they inhabit. Who can doubt that the pearl fisheries of Bahrein and Ceylon may lawfully become property?" We do not doubt it; we do not dispute it; although we do dispute, as Mr. Carter has stated, the grounds upon which that title is asserted and that right is supposed to rest. "And though, where the catch of fish is the only object, the fishery appears less liable to be exhausted, yet if a nation have on their coasts a particular fishery of a profitable nature, of which they shall become masters, shall they not be permitted to appropriate to themselves that bounteous gift of nature as an appendage to the country they possess." Is not that precisely our case? Is not this "an appendage to the country we possess" ? If not, what is it? Does it not depend upon the country we possess? Is not the very condition of its existence dependent upon that country? Do not the United States hold the life of the seal in their hand upon that territory? Is it not then in every sense of the word an appendage to the territory that we hold? So it is with Ceylon, and so it is with these coral fisheries which have been mentioned; they are all marine industries connected with the territory of the nation, and for that reason conceded by general consent and by international law to those nations whether it be to Italy, or to England or to France: A nation may appropriate to herself those things of which the free and common use would be prejudicial or dangerous to her. . Can anything be more explicit upon this point? The common use would be prejudicial and dangerous to the United States—not only prejudicial but fatal to the United States—so far as its industry is concerned. This is a second reason for which governments, extend their dominion over the sea along their coasts, as far as they are able to protect their right. If the Court please, I was proceeding to read further from Mr. Phelps' argument an extract which I deem most material; but it is well to preface it with the reflection that the seal exists to-day simply because we refrained from its slaughter. History has shown, and we know, precisely what would become of the seal of the north because we have the experience of the past. As Mr. Buckle has said, the office and function of history is to teach us from the study of the past what will happen in the future; and we know that■ indiscriminate slaughter ou land is fatal to the race. The vacant seal rookeries of the South tell the story in the strongest and most eloquent terms. In one year when 294 ORAL ARGUMENT OF FREDERICK R. COUDERT, ESQ. the authority of Eussia was removed and that of the United States relaxed, or not yet in force, 240,000 seals were slain in one single year; and yet this industry was in its infancy; what would have become of it in the next year and the next? e United States if ich a slai s not bound to refrain, if the only object is to preserve the animals long enough to enable them to be exterminated by foreigners at sea. If that is to be the result, it would be for the interest of the Government and plainly within its right and powers, to avail itself at once of such present value as its property possesses, if the future product of it can not be preserved. Can there be more conclusive proof than this of such lawful possession and control as constitutes property, and alone produces and continues the existence of the subject of it? That is to say, if the decision of this high tribunal should be that indiscriminate pursuit and indiscriminate killing are to be tolerated ' and encouraged, then the United States has the right—whether it would exercise it or not I cannot tell—of availing itself of and using for its own purposes and benefit the animals within its reach and under its control, rather than to allow them to become the prey under the most cruel and inhuman'circumstances, of those who cease to respect what the United States has hitherto considered to be its rights. The Minister of the United States to Great Britain used the expres- " sion, which was the subject of some discussion, that this pursuit of the seal under the circumstances stated and explained, was contra bonos mores. I submit to the court that he did not exaggerate; that if anything is against good morals, it is a practice by its nature calculated to undermine sound principles of humanity Th that a thatt als, i th. ed child rilized < missible. Some remedy must and must find it; as it is conce is conceded by all that it is beii surely the result must follow an fore it is said in this brief: art will find it, useful race, as it and destroyed, pplied. There- Un methoc d State.' Can there be any question about that? If there is now, there will not be when this high Tribunal has heard the evidence read. So far as the legislation of the United States is concerned the killing of female seals at any time is made criminal by the statutes of the United States. 1 to man, is prol ibited, r ot only by all the instinc tsofhumai lity ountry, md especially by thé la-w s of the Ur itftd We have to start, in trying to ascertain what law may be applied at this point, the common consent of both nations that this practice is wrong and criminal. I read from page 139 : The depredations in question, dignified ii ers by the name of an "industry," are the for this purpose. Their number, though ii speculative, and as a whole not remunerative, tnongn it Has instances of large gains ' I which stimulate the enterprise of those concerned, and make the prospect attract- I ive, like all occupations which have a touch of adventure, an element of gambling, and a taste of cruelty. lpossible, when seals are hunted i a thev ed before the killing takes place, it llowed to be carried on, the enormoi of nursing young before referred t ORAL ARGUMENT OF FREDERICK R. COUDERT, ESQ. 295 And I may add in this connection as an evidence of the kind feeling of the British Commissioners, whose report, as I have said, is the most -important element in the British Case, that they have advanced—and we must be grateful to them for the kindness which it evinced—an argument why the United States should encourage pelagic sealing. I am sure that the unaided ingenuity of the arbitrators, collective or individual, would never imagine what that advantage is; it is that by encouraging pelagic sealing we will create for ourselves a nursery of brave and hardy sailors ! I do not believe that either Great Britain or the United States needs that nursery. I think the instinct and the ability on both sides for making good sailors to fight the world and each other need not be encouraged by slaughtering female seals in the Bering Sea. Against this injury, which the United States Government has made the subject of vain remonstrance, there are absolutely no means of defense that can be made available within the limits of territorial jurisdiction. No fortifications can protect the young seal against the death of its mother and consequent starvation. The three mile limit is no defence. They are not slain within the three-mile limit. They go out for food beyond twenty miles. :, that the sex can ever be i if what is called "pelagic n of pregnant and suckling Then comes the question of raids. The raid is an attack made under cover of the night or of the fog by bolder and more experienced men, who are willing to take the chances of being shot—which chances the British Commissioners suggest ought to be greater—men who are willing to invade a friendly territory, and in a night to get such a number of seals as will justify the expenditure of the money invested, and compensate them for the risk. So far as the raids are concerned the United States asks no help from this high Tribunal, or from anyone else; but you will bear in mind that when you arrest pelagic sealing, you also dispose of the raids. The raiders are the men who hover around the coasts, who come in, as I have said, under circumstances favorable to their pursuit and having a right as they claim—a right which we deny— to visit those waters for the purpose of hunting seals, take advantage of every opportunity to come upon the shore and accomplish their mission of destruction. This, so far from being an argument against the contention of the United States, is one of the very strongest arguments that we can use against pelagic sealing. Baids are most destructive. It was not pelagic sealing that destroyed the Southern seals. Why? Because it is so much easier and more profitable to go upon your neighbor's land and to take his property there, than to scour the earth and the sea in quest of something uncertain and undefined; and the only reason why pelagic sealing was unknown in those Southern seas is that it was easier to go upon land where these animals were collected and to slaughter them in masses. Whether the effect of the decision of this high Tribunal may not be to save the seal all over the world is a question which I need not discuss; but it is a comfort and a reflection to believe that, in our advocacy of the rights of the United States and in our denunciation of this cruel and barbarous method of pursuit, we are perhaps the advocates of Great Britain as well as of the United States. The question is a large one in every respect. It is one well worthy of 296 ORAL ARGUMENT OF FREDERICK R. COUDERT, ESQ. the consideration of this High Tribunal and of the attention that it shall give it. It is not only the protection of our property; it is the establishment of a great and beneficent principle which will operate for the whole human race. So much for the raids. Senator Morgan. Mr. Coudert, I wish to inquire of you, whether you have examined into the question whether under the treaty between the United States and Great Britain the citizens of each country have not the right to enter the territory of the other for any innocent purpose without being prohibited? Mr. Coudert. I suppose that this is conceded. There is no question about it; and when I speak of pelagic sealing I am speaking of a criminal act. Theseais open to all for innocent purposes; and I might concede, for the sake of the argument, that the British sealer has just as . much right to kill seals as the American sealer. It is stated in argument that a great many Americans are engaged in it and in fact we claim and contend that mutato nomine the Canadian is often an American. I have no doubt that that is so, and that in order to evade our law he borrows the British flag to carry on his depredations more safely; but it is not a question of nationality. The President. You mean in the Bering Sea? Mr. Coudert. Yes, sir. The President. Not on the coast? Mr. Coudert. No, not on the coast: in the Bering Sea. We have not yet undertaken to prevent that; aiid we come to this court te prevent it. Senator Morgan. But if the killing of seals on land is not the destruction of property of the United States and the British subjects have the right to go there without interruption, why may they not go there to hunt and kill the seals on the land as well as they might hunt and kill wild ducks? Mr. Coudert. Certainly they may, if we have no right to them. If I have no right to my horse, my friend who has a pass to enter my property may thereby ride away on the horse, of course I cannot stop him. Senator Morgan. Then we could not possibly prevent a raid upon our islands being made for the innocent purpose of killing the seals? Mr. Coudert. Certainly not; and if it is an innocent purpose unless we put a Chinese wall over our territory we cannot prevent it. But if they are our property, and if, as I insist most respectfully, the seal is just as much my property as any animal however domestic, why, of course, the moment they enter there with the animus furandi they are robbers, and are open to the criminal law of the country. The President. You mean in this case civil property ? The United States owns the seals as civil property as individuals? Mr. Coudert. Yes sir. The President. That is why it is poaching? Mr. Coudert. The United States as a Government owns this land and it owns this industry. It has an unqualified title to it such as œ-'ï is. Bussia has transferred to us all the right it had. The UniteJL States might have done one of two things. The United States mighp have as a Government, as a corporation, if you please, undertaken to raise seals. That subject was discussed—and Senator Morgan knows it, for he was in the Senate of the United States at the time. Or a corporation could be formed which would have the privilege of killing a certain number, or an uncertain number—there was a maximum but ORAL ARGUMENT OF FREDERICK R. COUDERT, ESQ. 297 no minimum—subject to the regulations of the United States; and the question came up in Congress which was the one that they should adopt. The United States is, I am glad to say, reluctant to go into any business except that of governing our people; and the less she governs us the more we like it. That is the function of the United States—to do as little governing as possible. To go into seal raising seemed to mauy men something that should be avoided. Then there was only one other alternative—to form a corporation under the best possible conditions for the preservation of the seals, and the exploitation of the industry. The title to all these seals is in the United States. It is appurtenant to its soil. It is an outgrowth of its soil. It is connected with its soil. It is inseparable from its soil. The President. At what moment, according to you, do the lessees become owners of the seals? Mr. Coudert. They never become the owners, if the President please. They have under us, and subject to us, the right to kill the surplus product. When that is done under our supervision, and they have paid the United States a certain tax upon the skin, that skin is absolutely theirs. The President. It is only the skin that becomes their property? Mr. Coudert. It is the skin. The President. The dead body does not belong to them then? Mr. Coudert. Well, the body having been entirely valueless no question has ever •arisen on that subject; and I would rather not commit myself to any theory. The President. The point is to fix the moment when they become owners. Lord Hannen. How about the oil? Is not oil extracted from them? Mr. Coudert. I think to no practical extent. Senator Morgan. That is taxed also. Oil is taxed. Mr. Coudert. Yes, the oil is taxed ; and the carcass is also used for food. The residents use the carcass for food. But I was answering one of the learned Arbitrators, and I come back to the point. It is a test, an excellent test, as to the question on which I thought we were agreed; but from Sir Charles Bussell's remark, I think we are not. Seuator Morgan's suggestion affords a test as to the correctness of my position with reference to the right of property on the island. We do not dispute that friendly nations may.come upon our territory, if they are guided by no bad motive, and animated by no hostility. If, however, they come to these islands in a sealing vessel, with men armed with gaffs and rifles and guns, we know that they are malefactors. We know that they do not come there to enjoy themselves. The climate is not one that permits it; and the social amenities are not of the most attractive order. Most excellent gentlemen, some of whom are here present, have lived on these islands, and it would be worth a journey to the islands to visit them; but there is no certainty that their occupations would permit them to extend the hospitalities of the place. When men go there in a boat, with certain appliances, you may be absolutely certain that they are going there on a raid, especially as they never go there in broad daylight, but select foggy days or cloudy nights. Pursuing this suggestion of Senator Morgan, why do we repel raids, and what right have we to repel raids? Senator Morgan. That was the point of my inquiry. Mr. Coudert. I do not understand from the other side that they 298 ORAL ARGUMENT OF FREDERICK R. COUDERT, ESQ. have yet claimed, I do not know in the evolution of argument that they will claim, that we could not prevent a raid. If so, when we bought the seals from Bussia, we paid a very large price for the animals. If there is any further argument upon that, I will leave it to my associate who will close the discussion. So far I have been unable to see any ground upon which could be justified the claim that so long as these animals were upon our soil and attached thereto, they were not absolutely ours, uti et abuti, to do absolutely what we pleased with them. Chancellor Kent has laid down the rule in a very few lines. I do not know how far his fame may have penetrated the Continent of Europe. Obdp jurisprudence in many respects is very different, and it may be that his commentaries, so highly respected by us and in Great Britain, may not have attained the reputation here that they deserve; but, sir, your exceptional knowledge of the English language has permitfeed yon, probably, to enjoy the perusal of those lectures ; but it is no affront to say that the knowledge of the English language is imperfect, as a general rule, in your country. The President. I believe that the name of Chancellor Kent is known all over Europe. Mr. Coudert. I am very glad to hear it. Then I may read with double assurance and comfort what he says. It is on page 143 :. Every vessel in time of peace has a right to consult its own safety and convenience, and to pursue its own course and business without being disturbed, when it does not violate the rights of others. The freedom of the high seas for the inoffensive navigation of all rtations is firmly established. You will see here the cautious language that this great jurist uses. Sir Charles Bussell. That last statement is by an English jurist, not Kent. Mr. Coudert. Does not Kent adopt it? Sir Charles Bussell. I do not know. It is quite long afterward. Mr. Phelps. That is quoted in the opinion in Queen v. Kehn. Mr. Coudert. Well, I do not object to it for that reason. Perhaps in some respects it would be all the stronger. I am sure, however, that it is precisely the same idea. Sir Charles Bussell. Oh no. Mr. Coudert. Kent says that the vessel in time of peace may pursue its own CQurse and business on the high seas when it does not violate the rights of others. If it does violate the rights of others, it is not inoffensive, and therefore the sentiment is the same. Still, I am obliged to Sir Charles Bussell for correcting me. I was wrong. So with regard to Mr. Justice Story, another of our most distinguished jurists, and long a member of the court to which one of your Arbitrators now belongs: Every ship sails there [in the open sea] with the unquestionable right of pursuing her own lawful business without interruption, but whatever may be that business, she is bound to pursue it in such a manner as not to violate the rights of others. The general maxim in such cases is sic utere iuo ut alienum non lœdas. Are they doing us no injury when they destroy our property by killing the pups through the killing of the mother? Are they using their rights without injury to us when they are destroying a valuable and costly industry? The question answers itself. The safety of states and the protection of their commercial interests were not sacrificed to the idea of the freedom of the sea. That freedom was conceded for the purposes of such protection, and as affording its best security. ORAL ARGUMENT OF FREDERICK R. COUDERT, ESQ. 299 If we study this question, this development of the rule of the freedom of the sea, a principle which was long opposed by some of the wisest and best jurists in Great Britain, we will find that it was for the purpose of the protection that it afforded to all nations, but never as a vehicle for wrongdoing: and so far as freedom of the sea is concerned, if we have there any rights, the doctrine of freedom of the sea, and thé shibboleth that the great ocean belongs to all people to do what they like thereon, have nothing whatever to do with the discussion of this question. Wrong is not made right because a man is in a ship. Bight does not abdicate because it steps upon the quarter deck of a man-of-war, or of any other vessel. Bight is right, on land and on sea; and the expansion of civilization makes that proposition clearer and more applicable every day. Then it comes to this: We have an industry, we have property, on the land. That property is ours. It is appurtenant to our soil. These animals, different in that respect from absolutely domestic animals, go out for food. Killing a mother kills the pup upon our soil. May we not prevent it? What is there that forbids that we should invoke these ordinary principles of right? There is nothing new about it. A wise man, many years ago, said, "There is nothing new under the sun." There is very little new in law. Of course codification may introduce . by express enactment new ideas into thecodethat governs a municipality or a nation ; but when we are dealing with these great questions that do not depend upon written law issued by one nation for the government of its citizens, we must look to those broad principles which prohibit wrong and encourage right, and are common to all the civilized nations of the globe. The question is, What is right? Is there anything new in our claim; and if so, what? In what respect is this new? Lord Coke, I think it was, once said that in all his judicial experience he had never had but one or two questions of common law that troubled him. Why? Because it was founded upon usage, upon that usage which was accepted by all the intelligent, civilized persons who composed the nation. It was founded on custom. It was founded on right. Sometimes the right of today grows with time so that it becomes scarcely recognizable. Sometimes that which is permitted today, as in this case the killing of individual seals with a spear, becomes wrong and criminal if done in such a way as to destroy a race of animals ; but all we ask is not the application of new, but the application of old, principles to this case. It is not a new case in any sense, except that by the n ature of this animal it is stronger than any other that can be adduced. That is all. In that it is different. It is different because the habits of this animal are so nearly akin to those of a land and domestic and tame animal that the analogies taken and given in our briefs fail to cover the case. They are too narrow. We go beyond th em. If those illustration s are good, a fortiori are we right; but even if they failed in any sense, still we may be right because the animal with which We are dealing is so different in important respects, all favorable to us, that you can apply a rule not new in its principle, but new in its application. And how are these rights to be enforced? There is only one of two ways: either to do as the United States began to do, to do as Eussia has insisted upon doing, to say: This is our property; no one shall interfere with it^or, to come before you, not abandoning or waiving one iota of our original position, but as Mr. Carter so eloquently stated yesterday, to avoid all possibility of collision, submitting our contentions to an impartial and enlightened court, and praying that it may lay down a principle which will go far beyond our necessities and the 300 ORAL ARGUMENT OF FREDERICK R. COUDERT, ESQ. necessities of the other side, to be a beacon, perhaps, for future time and future generations. Nor do I think it necessary here to consider the three-mile limit, or the question of jurisdiction. These matters are entirely separate and distinct. For the purposes of this argument we concede to all the nations of the globe—I desire to be very careful here of the particular point that I am on—we are willing to concede to all the nations of the globe the same rights in Bering Sea as we ourselves possess: the same right to go and to come, the same right to stay or to leave, the right to do everything that is right, the right to do nothing that is wrong;*and thus we always come back to the question whether it is wrong to destroy our property against our will when we are helpless unless we invoke force. I desire also to call the attention of the Court before closing this branch of the argument to the fact that it is upon the principles that I have tried to make clear as those for which we contend, that all marine propertv is held, that is, all that kind of property that is spoken of in the respective arguments of counsel. Instances are given here, and as my friend, Mr. Carter, has dwelt somewhat upon these points, I shall merely allude to them. Instances are given here of cases where great nations have claimed rights outside the jurisdictional limits, the arbitrary three-mile limits, going out twenty miles, thirty miles, fifty miles, hundreds of miles; and the coral beds of Great Britain and of Italy, and the fisheries of France have been spoken of—not only to protect coral beds, but to protect oyster beds, to protect seals ; for at last Great Britain herself has become alive to the fact that a valuable industry of hers was in process of rapid destruction, and she has endeavored and is now endeavoring to shield and protect her seals. The arguments that have been made by Mr. Carter, and the few remarks that I am making upon this subject, should not be understood as in any, the slightest, way disputing the right of Great Britain, Italy and France to such property. Only I may be permitted to say, and I hope that it will not seem presumptuous when I do say it, that the tenure must be indeed frail if it rests upon the argument stated in the British Case; whereas it is impregnable, if I am right and if the arguments used by Mr. Carter are applicable to the case. This property does belong to those nations, not because it happens to rest upon the bed of the sea, but because it is an industry belonging to those nations, connected with their territory, and conceded to them, ex necessitate, by the common consent of mankind. Visconti de Venosta. I will say in regard to the observation of Mr. Coudert, that the Italian decrees do not apply to foreigners. The decree refers to a regulation, and the regulation refers to a law which, in its first article, says that its zone of applicatiqn is only in territorial waters. So really that decree does not apply to foreigners; but the industry, in fact, is exclusively carried on by Italian citizens. I must add, however, that this prohibition has now been repealed. Mr. Coudert. I was coming to that question—the discrimination between citizens and foreigners, and the privilege that that rule would - give to foreigners over citizens. Of course, if, as the Arbitrator says, and I desire to be instructed by him Visconti de Venosta. It is merely a question of fact. Mr. Coudert. I desire to be instructed by him either on the facts or on the law; and he is quite competent to instruct me on either. Of course if the industry is carried on within territorial waters, this is not applicable at all. I concede that. If it is within your three-mile limit. oral Argument of Frederick r. coudert, esq. 301 Sir. Charles Eussell might object to it on the ground that he objects to our owning the seals on our own land. How Italy is to own coral beds three miles away, if we are not to own seals on our own territory, I do not know. But there is a question that I will come to in a moment, viz, how far these statutes apply to citizens and not to aliens. However, I am much obliged for the correction, and of course if they are within territorial waters, I leave the Italian coral fisheries out of the case. But one illustration is as good as ten, and it is manifest that in some of these cases here cited the protection goes much further than the limit of territorial waters. On page 167 of the Argument it appears that as far back as 1863, The taking of seal, in whatever country they have been found, has been in an especial manner the subject of legislative and governmental regulation in the open sea. And in such actions Great Britain and Canada have been conspicuous. By an act of the British Parliament passed in 1863, the colony of New Zealand was made co-exteusive with the area of land and sea bounded by the following parallels of latitude and longitude, viz., 33° N., 53° S. ; 162° E., 115° W. The southeastern corner of this parallelogram is situated in the Pacific Ocean over 700 miles from the coast of New Zealand (26 and 27 Vict., ch. 23, sec. 2). In 1873 the legislature of New Zealand passed an act to protect the seal fisheries a annual close season for seals, to last from October Here let me be permitted to say I do not care what the legislation is, if there be any. If they can establish a close season for one week, they can for one year; it is the assertion of dominion that is important to consider. It is the claim of title that we want to get at, not the very mild, gentle measures that may be adopted. Perhaps they are entirely insufficient and more radical ones ought to be selected; but if they claim the right to establish a close season, they must also, by implication, insist upon, and claim, the right to enforce that close season. How are they to do this except by force? Not only did the Government of New Zealand assert the right, but delegated its authority in these words : (2) That the governor of New Zealand might, by orders in council, extend or vary this close season as to the whole colony or any part thereof, for three years or less, and before the expiration of such assigned period extend the close season for another three years. If that be proper and correct, if Great Britain has a right to go over a dominion or domain of water extending some 700 miles, then by what principle may we not adopt those measures, and ask for the adoption of those rules which are absolutely necessary to the object in view? The President.—Do you believe that law was ever applicable, or applied in fact to foreigners, and accepted by them?. Mr. Coudert.—I intended to say a word upon that, and I will say it now if it is the preference of the learned President. In the Argument of Great Britain it is stated : We have made certain statutes, but they only apply to our own citizens—that is to say, take the Irish oysters or the New Zealand seals, I, whose fortune it is to be born and bred and to owe allegiance to the flag of the United States, may take a ship, may man it, may go there and plunder the oyster beds and destroy them; whereas an unfortunate citizen of Great Britain who started at the same time as I, is captured by a Bevenue Cutter and very properly sent to gaol. That every possible.sort of privilege and immunity should be granted to the United States, I highly desire, but in spite of law arguments emanating from the highest source (and the highest source is before us), I doubt if that 302 ORAL ARGUMENT OP FREDERICK R. COUDERT, ESQ. would be the result; and if I had any client who was ready to embark his capital in the plundering of these oyster beds or the slaughter of • the New Zealand seals on the theory that he had an advantage over the British subject because he was an American, I would advise him to stay at home and enter into some more reputable business—I do not believe that he would obtain immunity. I concede that the proposition is correct as stated in the abstract—that penal laws outside the territory do not apply to any but citizens, as a general proposition. I do not concede, even for the argument, that in the case of the Bering Sea the statutes of the United States do not apply to every ship upon that sea whatever its nationality. But that, I have eliminated from my argument, and I concede as a general proposition, that a penal law in such general language as to every person does not apply unless a crime is committed, within the jurisdiction, to a foreign citizen. Even that is not universally the case. I do not know how it is in other continental nations, but I know for instance under the old laws of Prussia, and to-day, of Germany, the arm of the law will reach a citizen who commits an offence even in a foreign jurisdiction. He has not offended the law of Prussia, he has offended the law of another nation to which he is answerable, and yet the hand of the law extends and grasps him where it may; and when we are told, as we are told, in the brief of the learned Counsel, that these statutes do not apply to citizens of other nations, I would like to ask whether they mean by that, that no punishment would be inflicted, no confiscation put in force, and no repressive measures set into operation, if a foreign ship should accompany the ship moved and owned by citizens? The President.—Perhaps we shall hear a little more explanation about that from the other side in due time. (The Tribunal then adjourned for a short time.) Mr. Coudert.—When the hour of recess arrived I was calling the attention of the High Tribunal to the various laws which had been cited in Mr. Phelps's argument to show what jurisdiction great nations had assumed, and properly assumed, to protect their property rights or to protect their industry, and a number were cited. I noted among others the laws of New Zealand. It is but fair to say that our learned friends on the other side have taken us to task upon this, and have made such an explanation of the laws which have been cited in connection with the facfs—the geographical facts—that it is very possible the illustration may not have been as valuable a one for my side as I supposed, and, therefore, I prefer not to rest upon it. Other illustrations are very strong and sufficiently prove the position that I have endeavoured to take, aud to make more clear, namely, that all nations have found it necessary, that had marine interests connected with their property in territorial jurisdiction, to pass laws, make regulations, and adopt defensive measures which were necessary to the preservation of those interests. That is all I cited these cases to prove. Now passing from the case of New Zealand we go to Newfoundland and we find the laws of Great Britain were passed for the purpose of protecting seals and seal fisheries, and in connection with this I may say—and it may not be irrelevant to the consideration of the general subject—that all nations interested in the preservation of this animal have concluded that it was inexorably necessary that some kind of legal protection should be thrown round them, and some power, exercised in their behalf under the penalty of absolute destruction. And therefore it is that you will find that all these nations that have seal property whether Great Britain, or Chili, or any of the South American nations, have all passed laws for the purpose. ORAL ARGUMENT OF FREDERICK R. COUDERT, ESQ. 303 It is unnecessary to add that the mere passage of a law is an assumption of right—an exercise of jurisdiction—and it makes very little difference so far as the general principle is concerned whether that law be applicable and may be extended to others than nationals. So far as the main proposition is concerned, of the assumption of a right, if France passes certain laws to protect certain fisheries and if France confines that with an idea, real or mistaken, that it may not go beyond a prohibition to its own citizens—if it pass that law, by the mere passage of that law it exercises a jurisdiction and asserts a right because the laws of civilized nations are not made merely to harass their own citizens. The theory is protection to citizens in exchange for service, but what kind of law would that be which France or Great Britain would pass to protect the seal, or the oyster or the coral, which would be directed only against its nationals because it had no right to touch any other trespassers than those? Of course they would be worse than nugatory, they would be worse than futile. They would be arbitrary and cruel. No. nation understands this better than Great Britain. No nation has ever gone further than,—I may say that perhaps no nation has ever gone so far as, Great Britain in the assertion of the right to protect all round the globe (for her possessions extend all round the globe) the man who owes allegiance to her flag and obedience to her law. Other nations may have found that she pushed these pretensions and claims perhaps to an extravagant extent; but to her credit be it said, that the British citizen was just as sure of protection from outrage by foreign Governments as the citizen of Eome when he could say "I am a Bomap citizen," and, when he had . said that, the hand of the torturer was stayed and the arm of the torturer was paralysed. So with Great Britain at all times. She has had one rule, viz, that there was no nation on the globe great enough to oppress her citizens. Are we to be told now, and is it seriously to be argued that Great Britain passes laws oppressive, repressive and cruel which are to apply only to her citizens, and leave the rest of the world to perpetrate the wrong which she is frying to suppress? Yet that is the argument, if our learned and distinguished friends on the other side are right. They tell us, and they repeat it in this argument, for instance, taking Canada, in their argument on page 43 : "The Fisheries Act", they say, " prohibits the killing of whales, seals, or porpoises with explosive instruments, and during sealfishing time from disturbing or injuring any sedentary seal fishery or from frightening the shoals of seals coming into such fishery." Just what we are trying to do, to prevent the destruction of the shoals that are coming to our land. The United States statement in respect of this Statute is that it prohibits all persons without prescribing any marine limit; and the inference drawn is that it applies to all persons on the high seas, including foreigners. I need not pursue this. There are a number of other cases cited by way of illustration, and the distinction is made in this case and in the case of Chili, Japan, Panama and other nations, that these only apply to nationals and not to foreigners. I do not believe, may it please you, Mr. President and the other members of this Tribunal, that our learned friends would go to the extent of saying that anything which is forbidden a British subject is permissible to a Frenchman or an Italian, and I shall not be satisfied that that is their view of the case until they have stated it. I will not believe that two ships may go to any of these fisheries aud one ship be arrested because it is a British ship, arrested by a British revenue cutter or man-of-war, and that the other 304 ORAL ARGUMENT OF FREDERICK R. COUDERT, ESQ. will be able to go on and perform its work with impunity. I do not deny that as a general proposition penal statutes of this kind cannot operate outside the territory except as against nationals, but I do deny that that consideration gives impunity to the foreigner. I deny that if these two ships should go together the foreigner would be exempt, that he would simply be told that he may go on with his work, because there is no power to prevent him; and having received the assurances of distinguished regard from the courteous commander of the man-of- war, all the rigours of the law would be reserved for the British citizen. That is directly the converse of the action of Great Britain in all cases. I take it that the rule is this, that while the statute itself would be inoperative, perhaps, as a statute outside the jurisdictional limits, against an alien and foreigner, the rule of self-defence steps in, and under a changed name and a different theory the wrong is prevented, and that the Frenchman, or the Italian, or the German, would find that his fate was not improved except that he would be stopped on general principles of defence, whereas the other would be simply told, there is a statute passed by your own nation, you are subject to the penalties which it affixes. If so, we are disputing about words. It must be so, because it is impossible that Great Britain should be willing to say to the whole world: "You have an advantage over our people, and all you have to do, when you invade our fisheries or our schools of seal, is to produce the opinion of distinguished counsel, backed up by decisions of the English Courts, that English statutes do not apply to any but nationals, and the property is at your service". That is impossible. Therefore, I say that this is more a debate on words than a question of principle. Lf the statute (just as our statute passed to protect our seals in what we consider our own waters) is a reasonable one, under the circumstances, it may be adopted by the United States, as a similar statute may be adopted under like circumstances by Great Britain or any other nation as the measure of repression for the wrong which it is intended to prevent. And if our friends say that the statute does not apply, then I ask do you mean that foreign nations have a license to plunder your oyster beds or slaughter your seals, when that performance is interdicted to nationals? What name would such legislation deserve if adopted by a proud, enlightened, aggressive nation that has never suffered a wrong to one of its nationals to go unredressed ? Are you not inevitably reminded, when such a theory is broached, of Shakespeare's Bottom, who invented a new animal, a lion that would " roar you gently as any sucking dove". No, Sir! Great Britain has never, and I hope the United States will follow her example, discriminated against her citizens, but she has always exalted the position of a British citizen, just as high as human power could do it. In the abstract then I am not disposed to quarrel with my distinguished friends about their views on this point. We will concede that their propositions of law, as considered in the abstract, are sound and that we cannot legislate for foreigners outside our jurisdiction; and yet they will be compelled to admit that even if this be so, the right of self defence is not imperilled, impaired, or diminished. This right is not based upon the fact that the oyster is on the ground ; or that the coral is on the bed of the sea. It is based upon the fact that there is an industry of the nation legitimately belonging" to its creator and born to yield its fruits to those who have made fruits pos sible by industry, by care, by protection. How is the freedom of the sea saved (if it is invaded by our contentions), because the oysters live ORAL ARGUMENT OF FREDERICK R. upon the bottom of the sea and never frequent. the sea? Must you not protect the sea-« &ls n the space that you must guard in order to gnai It is true there is the difference that the ov land. There is this difference in our favour' the seal is a land animal and, to the extent tl I hope that this discussion has not wearier without value if it has shewn, what I take not really differ upon this question, but that Britain and the United States are agreed ; a: for her interests are the same aud her co national industry, even upon the sea, is to whenever that industry is attacked. Thei attached to that; first, is it necessary to us And, in the second place, are the measures both those questions are answered in the affi act which puts resistance in motion and whi is complete, is justified and is law. And it in its best sense, in its highest sense, in its that would be expected not from a Statutory would be expected from one nation or the ot limitations which sometimes strangle the r formed for the very purpose of expanding, the beauties and greatness of international The legal principles contended for by oi are stated at page 55. s on the other side .' Th ct to the limitation that I 1 With that I find no fault. That the British Colonies hav< and the mainland. This, in its terms , I should not be 1 irilling t< recognizes the sym] Dtom and not the cause. 1 recognized the righ t of Great Britain and oth Fisheries, to certain properties, not be cause it soil under the sea, bi it because, as I emu ;avoured of an industry was i nvolved. pe l-beds; tthe The only difference stronger for the reason that I have given order to assert our jurisdiction and to ha should dive down to the bottom of the se B s, pt xn——20 306 ORAL ARGUMENT OF FREDERICK R. COUDERT, ESQ. their own volition, guided by their own. instincts and preserved by that instinct from destruction. They come upon our soil; they seek it; they choose it. . They live there, and breed there; and certainly, during the time that they are there, they are under our protection and in our possession. And, finally, that there is no complete or even partial consent of nations to any such pretension as to property in, and protection of seals as set up by the United States. Undoubtedly that is true. There is no such complete admission of our rights so long as a powerful nation like Great Britain denies them. Certainly this is true, for if Great Britain accepted our views of the situation we would not have the honor to be here before this Tribunal to day. If the United States has a right of property either in the seals outside the territorial line or of self defence in respect of their interest in the herd, no question is submitted by the Treaty as to how that right is to be exercised and enforced. It is to be presumed the United States is able to enforce that right. It is to be presumed that no nation would be willing to dissent from the conclusion reached by this Tribunal should it recognize that right. All the desirable results should follow from that decision, namely, that other nations should abstain from disputing that which is assigned to us. It might happen, perhaps that the United States would undertake, in an excessive or in an improper way, to assert and exercise and enforce its rights but that would apply to any other right. There is no right which may not' be asserted in an offensive way. There is no claim, however just which may not be enforced in such a manner as to justify the resistance and resentment of other nations. As to that, the United States must take the risk. It may be trusted, I think, to enforce those rights in a just and reasonable manner. I have now, if the Court pleases, said all that I deem it necessary to say upon this branch of the subject, and I will proceed to a matter more directly connected with the facts in the case. I am quite confident that every Judge on the Bench and perhaps every Jurist on this Bench has recognized that o'ne of the great difficulties in this case is due to the absence of what we call pleadings—the absence of issues. I cannot but believe that if this case had been brought into Court in a manner common to both nations in such a way that issues would have been framed, very little dispute of fact would have arisen between our distinguished friends and ourselves. This absence of pleadings and therefore of issues, has injected an element of confusion into the case which it is very difficult to get rid of. To decide what is the question in a controversy has been a difficulty from the time of Bacon and a good deal before him; as he said, to ascertain the true question was one half of the battle. The idea of pleadings, whether in Great Britain, the United States, or France, or any other country, is to have an assertion of right made op the one side with a denial on the other side—in other words, to present to the Court in the clearest manner possible the various contentions pf the different parties. Every lawyer has experienced the advantages which resulted from the adequate presentation of the issues, although he may occasionally have been confined within narrow limits by their operation. There is no such difficulty here; we may discuss everything; we may discuss the nature of the seal, the habits of the seal, the life of the seal, the death of the seal, and we are bound to deal with matters possibly irrelevant, for we do not know what is conceded nor are we plearly told what is denied by the other side, ORAL ARGUMENT OF FREDERICK R. COUDERT, ESQ. 307 In fact, it will be found that we do not yet agree as to what is the real issue between the parties to the controversy, except that Great Britain has denied the right of the United States to exercise dominion, or jurisdiction, or sovereignty, as you please to call it, over the Bering Sea; it is not easy to say what point of contention there is between these two great nations. A law-suit has, generally, an objective point, a result to be attained, something desired by one side and objected to by the other—but here we both want the same thing. We both wish.to protect the seal, and we both agree that the race is dying out. You may read this Treaty from the beginning to the'end, and you may study it in every form: it always comes back to this: these two nations want to find out how they may, without sacrifice of their rights on either side, preserve a race which is conceded to be valuable to mankind. Thus upon the principal point we agree, and, so far, it is simply a question of means, for this High Court of Arbitration to find how to preserve and protect them, thus satisfying, as far as the final result is concerned, both parties to this controversy. That result was almost; attained by diplomacy. Mr. Phelps, the United States Minister in London, had stated his proposition clearly and strongly to the Government of Her Majesty, had been met in the fairest way, and a scheme had been agreed upon, which at that time would have been as satisfactory no doubt to the Government of the United States as to that of Great Britain. I say "at that time", because such a settlement would not be satisfactory at the present day. It is idle to deceive ourselves on either side as to one proposition, that is that we have both learnt much upon this subject that we did not know when the diplomatic correspondence was going on. Both parties sup^ posed that a certain protected zone—a large one—or a close season, as proposed, I think it was by Lord Salisbury, would satisfactorily protect these animals. Mr. Phelps.—It was proposed by the United States Government and assented to by Lord Salisbury. Mr. Coudert.—Yes, proposed by the United States Government. Perhaps a close .season might be satisfactory as a means of protection, but only on the ground stated by Mr. Carter that it would be so effective as to amount to.prohibition—a close season that would permit pelagic sealing cannot prevent pelagic slaughter. The very nature of the business, however carried on, is of such a character that the sealer cannot discriminate, and if you start with that assumption which is one of common knowledge and which my associate has so eloquently brought into the case, that the only means to preserve the race is to preserve the females—if you start with that, there is the end of the pelagic industry so far as it deserves recognition or protection. The preservation of the seals and pelagic sealing cannot exist at the same time. And therefore if the scheme agreed upon was such a scheme as. to permit pelagic sealing it was a faulty scheme. If it was such a one as practically to prohibit it, it was good in substance, but it would have been infinitely more satisfactory to adopt absolute prohibition. . We have now reached the point when, through the exertions of both nations and a willingness to adjust by diplomatic methods the differences between them, the matter was referred to Canada. In denouncing pelagic sealing and pelagic sealers, of course, this High Tribunal will understand that it is simply a denunciation of the business. It is a denunciation that applies to two classes of men the Canadians and the Americans. How mauy of the Americans are engaged in this business m violation of their national law on Canadian ships I do not know, but 308 ORAL ARGUMENT OF FREDERICK R. COUDERT, ESQ. as those ships come from Canadian ports and profess to sail under the British flag, I will speak of the business simply as Canadian sealing aud a Canadian industry, if it deserves that name. The question then arises, How is it that after this Agreement had been substantially made, the efforts, protracted and zealous of both sides, should have resulted in a miscarriage? We have the answer in a letter which I desire to read, because it is very important. It has not yet been read and, in connection with my remarks upon the facts, it may be valuable. It shows whence the opposition comes, and upon what the opposition was grounded; perhaps it would not be possible to presentthe case of Canada in stronger and clearer terms than it is presented in this letter. I believe it is read now for the first time. It is found at page 213. of the Papers presented to the British Parliament,—the Appendix, Volume 3, to the British Case. It is dated Ottawa, July the 7th, 1888. It is signed by Mr. George ; E. Foster, Acting Minister of Marine and Fisheries. Of course, the statements emanating from such a^ource are to be taken with respect; and everything this gentleman can be supposed to have stated of his own knowledge must be taken as true,*! He was speaking, as he had a right and, indeed, a duty to speak, in favour of his own people and of what he conceived, no" doubt, to be a legitimate industry, in resistance to measures which might, he presumed, be to the detriment of his own nationals. The undersigned has the honor to submit for the consideration of the Governor General in Council the following observations in respect to a despatch from Lord Knutsford to Lord Lansdowne, dated the 8th March, 1888, and enclosing a proposal from Mr. Secretary Bayard for the establishment of a close season for seal fishing in and near Behring Sea, to extend from the 15th April to the 1st November of each ' year, and to be operative in the waters lying north oflatitude 50° north, and between longitude 160° west, and, longitude 170° east from Greenwich. The Court will see what a wide space that covered, and what a broad period of time. Before entering on the discussion of this proposition, the Minister desires to call attention to a sentence in a letter from Lord Salisbury to Sir L. S. West, dated the 22nd February, 1888 and forming a part of the above mentioned despatch, in which Lord Salisbury says:—"The United States Minister called today at the Foreign Office, and spoke to me about the question of the fur seals in Behring Sea. He said that the difficulties in regard to the seal fisheries in that sea were mainly connected with the question of the close time, and that no attempt had been made by the authorities of the United States to stop the fishing there of any vessels at the time when it was legitimate." This clearly implies that Lord Salisbury had been led by the United States Minister to believe This is a compliment to our brother Phelps, of which he ought to be well proud. If he could induce Lord Salisbury to believe anything that was not true or which he ought not to believe—then he is fully up to his reputation for exquisite diplomacy. This clearly implies that Lord Salisbury had been led by the United States Minister to believe that there is a fixed close and open season for the killing of seals in Behring Sea, which is common to all vessels of all nationalities, and that during the open season these may legitimately and without molestation pursue the business of catching seals. The facts of the case appear to be that within the limits of the Territory of Alaska, which by the United States contention includes the waters of Behring's Sea as far westward as a line drawn from a point in Bering's Straits south-west to the meridian of longitude 173° west, the killing of fur-bearing animals, amongst which the seal is included, is prohibited by law, that repeated warnings to this effect have been given by the United States authorities, and that vessels both of Canada and the I United States have within the past two years been seized and condemned for killing seals within these Waters. It also appears that on, the Islands of St. George and St. ORAL ARGUMENT OF FREDERICK R. COUDERT, ESQ. 309 Paul, during the months of June, July, September, and October of each year the United States Government allows the slaughter of seals to the number of 100,000 by *' —is of that country known as the Alaska commercial company, for which ~t '3 paid a yearly revenue of more than The Tribunal will observe the use of this word "monopoly", which is repeated ad nauseam throughout the case. It appears, perhaps, for the first time officially here; but it has been adopted, and may possibly account for the feeling exhibited by the British Commissioners in their open and bitter antagonism to the killing as practised on the Pribilof Islands. From the very nature of the case it must be a monopoly. It is evident that if safety and protection of seal can only be accomplished by killing on land, the only persons who can do the killing on land are the proprietors of the land. Senator Morgan.—I suppose you mean a monopoly as to that herd— not as to the Japanese herd or Bussian herd. Mr. Coudert.—Probably, because it is the only herd that is spoken of; and I call attention to that expression. It is a mischievous one; it is, in one sense, I think I may say without discourtesy, an improper one. If it be a monopoly, it is simply so ex necessitate rei. It cannot be otherwise than a monopoly. If you throw the business on the islands open, so that it is not a monopoly, that simply means raiding, and all parties agree that raiding means destruction. In fact, the assertion of the right to kill on the islands (which is the monopoly complained of), is simply, I may call it, a right to tax—it is a right to levy a tax. One of the experts, (to whose evidence I shall call attention) says with Gallic humour, sense, and justice that it is an impôt sur les célibataires. But it is not necessary for me to depart, swerve—or as Sir Charles Bussell would call it—to "shy", from my subject. I am simply speaking of this as a monopoly, and I say the power to tax is a power to slay; and I might better .put it by quoting an expression which Mr. Justice Harlan is familiar with—the power to tax is thé power to destroy because it is an expression used by your great chief justice; and it shews if we have the power to tax alone we have the power to conserve and the power to destroy. I object to the word . monopoly, and that is the reason I stopped here to shew the Court that it was unjustly and unfairly used in view of the features of this case. At no season of the year, a a single seal within what is c That is true. We do not allow people to come on our islands and kill our seals except with our permission. It is evident, therefore, that there is no part of the year when citizens of any country, with the sole exception of the Alaska Commercial Company, can legiti- mately kill seals within the limits named ; and when Mr. Phelps stated to Lord Salisbury that no attempt had been made by the authorities of the United States to stop the fishing there of any vessels at the time when it was legitimate, his statement should be read in conjunction with the fact that there is no period of the year when it is legitimate for any vessels to fish for seals in the waters of Alaska. i yrnvg The proposal to fix a close time is based by Mr. Bayard upon the alleged necessity of immediate measures to prevent destruction of the seal fishery in Behring's Sea and the North Pacific Ocean. Your Honours will see that even at that time—that is in July 1888— the Canadians were well informed that killing of seals in the North Pacific Ocean, was one of the grievances of which the United States complain. It is not clear from any information at present possessed that any pressing and absolute necessity exists for any such measures, so far as shown by the present condition of that fishery in the North Pacific. 310 ORAL ARGUMENT OF FREDERICK R. COUDERT, ESQ. May I not say that this is a very qualified denial and naturally a qualified denial coming from an honourable official who can simply content himself, not with denying that there is a pressing and absolute necessity, but simply that it is not clear from any information then possessed that that pressing necessity existed? The fact is, that when the case was well understood and all the facts before the parties interested, it became absolutely clear that a pressing necessity existed—so pressing that both sides arrived at a modus vivendi, and agreed that their hand should be withdrawn from the sea, and that the herd should be allowed to continue to increase and multiply in peace. From a Report made by the Special United States Treasury Agent in Alaska dated the 31st July 1887, it appears. (1) That none but young male seals are allowed to be killed on the Pribilof Islands, and of these only 100,000 annually. (2) That a careful measurement of the breeding rookeries on St. Paul and St. Goorge . Islands' showed 6,357,750 seals, exclusive of young males. That seems to be a very close calculation. Itisnot "751",or "753"— it is " 750". How that is arrived at, I do not know. Sir Charles Eussell.—He is your own official representative. Mr Coudert.—No doubt. That is what he says. Well, they are all good guessers. (3) That 90 per cent of the pups bred by these go into the water, leaving a mortality of but 10 per cent at the place of breeding. ' (4) That fully one-half of the above 90 per cent of pups returned the following year as yearlings to the rookeries leaving thus a total mortality of 45 per cent, from It needs but a slight consideration of these fignres to demonstrate that an addition of millions each year must be made to the surviving seal life in the North Pacific That is, it must be increasing enormously. The Agent in his Report says: "This vast number of animals, so valuable to the Government, are still on the increase. The condition of all tho rookeries could not be better?" This was the condition of things, if this Eeport is to be trusted, in 1887. Against the enormous yearly increase of seal life may be placed the average annual slaughter as given in the memorandum attached to Mr. Bayard's letter, viz, 192,457 for the whole world, or for the seals near to Behring's sea as follows : Pribilof Islands 94,967 Commander Islands and Robben Reef 41,893 Japan Islands 4,000 Northwest coast of America 25,000 Or a total of 165,860 With an annual clear increase of millions, and an annual slaughter of less than 200,000 in the North Pacific Ocean, it surely cannot be contended that there is any necessity for such stringent and exclusive measures as the one proposed in order to preserve the seal fishery from threatened destruction. Not only would it appear that the present rate of catch could be permitted, and a continual increase of the total number of seals be assured, but it would seem that this annual take might be many times multipled without serious fears of exhaustion so long as the present conditions of breeding on the Pribilof Islands are preserved. I can ask for no better praise of the system on the Pribilof Islands than this—you may go on and take, and multiply the take, without serious fears of exhaustion so long as the present conditions of breeding on the Pribilof Islands are preserved. The time proposed as close months deserves consideration, viz, from the 15th April to the 1st November. For all practical purposes, so far as Canadian sealers are concerned, it might as well read from the 1st January to the 31st December. ORAL ARGUMENT OF FREDERICK R. COUDERT, ESQ. 311 .1 beg that the Tribunal will notice this—that any reasonable curtailment—any curtailment that is not purely nominal might as well be from the first day of the year until the last. In that I entirely agree with the Commissioner. Abstinence is easier than moderation Dr Johnson said, as far as drink was concerned; and abstinence is easier than moderation when it comes to this pelagic slaughter which holds out a glittering reward for the time being without reference to the fatal consequences in the future. It is a well-known fact that seals do not begin to enter the Behring's Sea until the middle or end of May ; they have practically all left those waters by the end of October. The establishment of the proposed close season, therefore prohibits the taking of seals during the whole year. Even in that case, if it were proposed to make this close season operative for all on the Islands of St. Paul aud St. George as well as in the waters of the Behring's Sea, it.could at least be said that the close time would bear equally on all. Sir Charles Bussell.—He says;—"Even in that case if it were proposed to make this close season operative for all"—he means operative on laud as well as on the sea. Mr. Coudert.—It is : Even in that case, if it were proposed to make this close season operative for all on the Islands of St. Paul and St. George as well as in the waters of the Behring Sea, it could at least be said that the close time would bear equally on all. But the United States Government propose to allow seals to be killed by their own citizens on the rookeries, the only places where they haul out in Alaska, during June, July, September, and October, lour of the months of the proposed close season. The result would be that while all others would be prevented from killing a seal in Behring Sea, the United States would possess a complete monopoly and the effect would be to render infinitely more valuable and maintain in perpetuity the seal fisheries of the North Pacific for the sole benefit of the United States. Here, again, is this reproach of a monopoly, and here, and throughout this letter, and throughout most of the arguments in this case, the one great distinction is lost sight of which cannot be kept too closely in mind by the Tribunal—that no scheme has been suggested—that no scheme can be suggested by human ingenuity so far as failure in the past allows us to say so now, which will permit discrimination, while the advantage that the United States possesses and which she alone possesses so far as this industry in raising seals is concerned, is that she ■ may discriminate. I know that it is stated by our friends—it is stated throughout the case—that females are sometimes killed. My brother Carter went into this subject with great elaboration yesterday, and therefore I need say nothing upon that point. The question is whether any comparison is to be made between the killing of seals on land where discrimination is made, and the promiscuous slaughter that necessarily accompanies pelagic sealing. Who ever heard of a raiser of sheep allowing his men to rush wildly in the flock with gaffs and spears and shot guns and rifles? Discrimi-' nation is the rule. The only historical instance I know of is one I am sure familiar to the President of the Tribunal, where a certain gentleman attacked a flock of sheep mounted upon his horse, clad in armour, armed with his good sword, aud smote them right and left. But then he was a lunatic, as you remember—at least, he said so himself before he died and he repented of these things, and said that whereas he had been out of his mind, then, as he was approaching the portals of death, he was sane again. That is the only instance which my researches have permitted me to find which can be of any use to the Counsel on the other side on this question. It is to be noted that the area proposed by Mr. Bayard to be effected by the close season virtually covers the whole portion of the Behring's Sea in which the exclu- ! ORAL ARGUMENT OF FREDERICK R. COUDERT, ESQ. right of sealing has, during 1886 and 1887, been practically maintained by.the ;ecf States Government. To this is added a part of the North Pacific Ocean, Whether it is in defiance of international law is a question as to which Tribunal may have something to say; but certainly Mr. Bayard did pose this as the only just and reasonable way of protecting the ; Britain on the groun are employed in Lond( The President.—Is that the same Alaska Commercial Company that had control over the Bussian fishery? Mr. Coudeet.—Not the present lessees—not since the change in the lease; but at the time this gentleman was writing. Sir Charles Bussell.—It was the same at the time that letter was written. The President.—They are separate now? Mr. Coudert.—Yes. From her rookeries on the Pribyloff Islands she draws now a yearly revenue of over 300,000 dollars. This would not only not be interfered with, but would be enor- : mously increased by reason of the perpetual monopoly she would enjoy under the proposed arrangement. If the prosperity of one country is an argument to be used by another country in defence of malpractice, of course this is a very strong argu- ORAL ARGUMENT OF FREDERICK R. COUDERT, ESQ. 313 ment. It would be,profitable to us to continue that industry. It would be profitable to the world if we should be allowed to continue it. All we can say is, it is either this monopoly or destruction. But while this is true, as to Russia and the. United States, Canada would lose the employment of a lucrative right long possessed, and this loss would be fatal to her prosecution of the seal industry, and would be unrelieved by a single compensation. It is manifest from a perusal of Mr. Bayard's letter that the proposition is to prevent the killing of seals during the close time by any process whatever within the area set apart, except, of course, upon the Pribyloff Islands. Forgetting that there is a close season on the Pribilof Islands from the 1st of January to the 31st of December. The close season is intended to prevent a certain thing, that is the killing of females; and it is not allowed on one single day in the year to kill them on the Pribilof Islands. Therefore, so far as this case is concerned, so far as the evils to be remedied are concerned, so far as the remedies to apply are concerned, we may say that there is a close season the whole year round on Pribilof Islands, and that is the fact that these gentlemen will not understand. Experienced sealers aver that by the present methods of hunting with gun and spear not more than one in ten of the seals struck is lost, and it is not believed that these methods are so destructive as Mr. Bayard alleges. That is, they wound ten per cent and lose them. We will undertake to show that the loss is enormously more than that, that it is a most severe drain upon the herds, without benefit to anybody; that the animals are wounded and lost constantly, 25 and 30 per cent: but I am anticipating. The method of taking seals by means of the net is not a destructive method, and yet it is proposed to prohibit this as well. I am glad to have a Minister say that the use of the net is not a destructive method. That is one of the few methods that are prohibited by the British Commissioners, and probably for the reason that it is not destructive. The only methods that they allow are the most destructive, as the court will see. It appears, therefore, that what Mr. Bayard intends is to entirely prevent the killing of seals within the area proposed by any methods or by any person except by the methods employed upon the Pribilof Islands and by the citizens of the United States, who may, for the time being, enjoy the monopoly of taking seals thereon. Against this unjust and unnecessary interference with, or rather prohibition of, rights so long enjoyed to a lawful and remunerative occupation upon the high seas, the Undersigned begs to enter his most earnest protest. And this was effective, a most effective protest in its results. The President.—Mr. Coudert, I would like to ask you whether we are to hear an explanation from your.side as to this taking of the seals by nets. Will you come to that? is it a point of your argument? • We have not heard yet about it, but we wish to hear about it. Mr. Coudert.—I would like to answer almost any other question of fact that the President of the Tribunal might put to me; but really I never saw anything about taking seals by nets that was worth considering, except that the British Commissioners say, " You ought not to take by nets". This gentleman says it is not destructive. I do not understand that anybody denies that. I understand there is an intimation in some affidavit that at one time or another they were used in the Aleutian Islands or in the straits. ' The President.—Will the British Government's side offer us any explanation as to the sealing with nets? Sir Charles Bussell.—Yes, in due course. 314 ORAL ARGUMENT OF FREDERICK R. COUDERT, ESQ. The President.—If we hear it at any time it will be sufficient, of course. Mr. Coudert.—I think it is not an element in this case. I think the other side will agree with me that it is not an element in the case. The President.—The point is why it is not an element. Mr. Justice Harlan.—It might become an element when we come to Eegulations, as to whether that mode of attacking the seals is to be prohibited or not. Mr. Coudert.—That is a question upon which I do not think any of the counsel are in a position to help the Court. Mr. Justice Harlan.—My reading of the case is that it is admitted on all sides that the taking of seals by nets is injurious ; but what is that mode, I have not gathered from the case. Lord Hannen.—Prima fade it would seem to me to present one difficulty—the difficulty of discriminating between males and females. Mr. Coudert.—I do not know, your Lordship, how it would discriminate. All the seals would come into that net, if it was a good net. Lord Hannen.—We shall hear explanation of how the net is used farther on. Mr. Coudert.—That does not appear in the case. Nets are not used, I think I may state that without contradiction. The President.—They might be. Mr. Justice Harlan.—Nets are not used? Mr. Coudert.—No sir. Practically there is no 6uch thing as taking by nets. It does not exist. A little importance is given to it by the British Commissioners in their report. While I regret, Mr. President, that I am not able to give you information upon this The President.—Perhaps it will come in time. Mr. Coudert.—I doubt it, Sir. I doubt it; because the sources of information to which I have applied with some diligence are all in the same papers that my learned friends must consult, and from which they must also draw their knowledge; and I think I may say that nets have ; aiever been a practical factor in this seal fishery; that there is an affidavit somewhere in the papers by which it appears that some man had J heard of the employment of nets in the Aleutian channels, or the Aleu- ; tian Islands, by which a few pups were caught. I do not think there is any evidence—I am subject to correction by my learned friend if I ; am wrong—that seals were caught by nets. The President.—Those would be fixed nets on shore perhaps? Mr. Coudert.—They would cover the mouth of a bay, and catch the I «eals as they passed. The President.—Stretching from one shore to another? Mr. Coudert.—From one shore to another. The President.—Not on the high seas. That would be impossible? Mr. Coudert.—That would be impossible, of course. As I say, the only importance attached to taking seals by nets is that the British Commissioners recommend that it be interdicted. I do not think any^® one objects to the interdiction of nets. The Canadian sealers do not use them, certainly. We do not use them on the Islands; and I do not know that any body ever has used them. I may say here, although this is somewhat anticipating, that from the British Commissioners reports, it appears that there are two methods of destruction that have become obsolete, or have never been used. The rifle has become obsolete. The net has never, practically, been used. Those two methods of destruction they recommend should be interdicted. The shotgun has displaced the rifle. The shotgun is the most deadly weapon. This ORAL ARGUMENT OF FREDERICK R. COUDERT, ESQ. 315 destruction has grown from evolution. The original germ or protoplasm was t3ie Indian sealer with a hungry belly and a spear as his only capital, using the one to fill the other through the medium of the seal. That was the protoplasm. Then came evolution. Even the ordinary musket would hardly be available for that purpose. You must bear in mind that these seas are agitated, that the seal, the sleeping mother, even when she sleeps; confiding at that period of her life in the humanity of man, because the instinct of the mother tells her so to confide, may escape a musket because of this motion; and when the pelagic sealer has missed, he has to go through the old-fashioned process which the older members of the Court are familiar with of loading through the muzzle, and missing fire half the time. But all that has disappeared with the improvement in fire-arms. First came the rifle, which carried an enormous distance, and with a deadly ball. That was better, and that was used. Then came the breech-loading shot-gun, with the buckshot scattering, of course, enormously, wounding and maiming very often, but very often hitting; and in many cases the seal is caught. So that the breach-loading shotgun is now, I think I may say, the only method that is used by the pelagic sealer. That is the last in evolution. The President.—Do the shotguns that are used now reach so far as the rifle? Mr. Coudert.—They do not reach quite so far as the rifle. Of course the rifle, with the ball, will reach, theoretically, much farther than the shotgun; but for practical purposes the shotgun will reach just as far as the rifle. That is to say, if you try to shoot a seal at the extreme distance to which a rifle would carry, that would be a very poor advantage indeed; unless you were a very fine marksman, you would miss the seal. In order to kill the seal, you have to come within a certain distance; and these pelagic sealers will corneas near to the seal as it is possible to come without frightening it away. For that purpose the shotgun answers much better than the rifle. Senator Morgan.—I will suggest to you just there, Mr. Coudert that it would be entirely useless to shoot a seal at the distance of 100 yards because it would sink before you could get to it. It would be lost before you could get to it. Mr. Coudert.—Yes sir; that is one of the ways in which nature punishes the pelagic sealer. It is insufficient; but that is one of the methods. When the animal is killed he revenges himself by sinking like a shot. That is the only revenge that he has in his power. So you will see that what you should interdict is shooting them with shot guns. If the process had been reversed, aud if the champions of pelagic sealing had interdicted the shot gun and permitted the net, we would care very little whether or not other means were taken away from these men and other opportunities to destroy the animals. You will find that the fatal instrument is the shot-gun. You will find how deadly it is and yet how often the seals are lost. This is one of the points to which I shall have to call the attention of the Tribunal, namely the enormous waste not only by virtually killing three animals when they kill one, but even of losing that one, which frequently happens; and I will show you that it must continue to happen because skill does not grow in the business. In every other business constant practice engenders skill; but the trades unions protect the unskillful man against unjust discrimination in favor of the sharp-shooter. It is interdicted by the rules to take more than a certain proportion of skillful men; and when a man by dint of shooting, wounding aud driving 316 ORAL ARGUMENT OF FREDERICK R. COUDERT, ESQ. seals has attained a tolerable skill he may be retained or he may not ■ be retained, but the' proportion of at least one half must be the men who miss twenty-five per cent of their shots. The President.—Do you mean to say that this industry of sealing on the coast or on the high seas, is carried on by men who are engaged by the trades-unions? Mr. Coudert.—Yes sir; I have it here. It is very curious. The President.—And submitted to such rules as you state? Mr. Coudert.—Yes, sir. The President.—I thought it was left to all. Mr. Coudert.—Here is an extract from the agreement by the Sealers' Association. I am pleased at the question asked about the nets. It has permitted me to anticipate somewhat, and to produce this. I am reading, as I state for the benefit of my friends on the other side, from the Case of the United States, at the bottom of page 192. With the permission of the Tribunal, I will read the remarks just before the quotation. After stating how many seals were wounded and lost and the proportion is enormous—our case says : Not only has the increase in the number of white hunters in the last few years made the seals much wilder than before firearms were used, but it has also added • sary, in order to show how much the unskillful outnumber the skillful hunters, to refer to the agreement entered into by the members of the Sealers' Association of Victoria, British Columbia, for the season of 1891 ; the portion of the agreement referring to this matter is as follows : " We also bind ourselves not to take more than ■ three experienced hunters in the sealing business on each vessel represented by us, before particnl irly de of the three hu nessof seal hui tioned and thi of this ion, w adaor the Uni ed Sta member of this Associ my port where any vessel owned or controlled by any The Case adds practically just what I have stated : The number pf hunters thus allowed to a vessel is, therefore, about one half the number of those actually taken on a vessel employing white hunters. Lord Hannen.—May I ask you: What is it you are citing this to establish? What is your proposition? Mr. Coudert.—I am talking of the enormous destruction that results from pelagic sealing in the manner in which it is now conducted. Lord Hannen.—Does that depend upon whether these rules of trades-unions are observed or not? Mr. Coudert.—It depends upon the skill of the huntsmen, to a great degree. Your Lordship will find when I read the evidence, that a discrimination is made by the witnesses. Some of them say: "Green, hands miss 25 per cent"; one or two witnesses say that they "fire away all day and do not get any" ; but others say a skillful man will not lose more than four or five per cent or six per cent or seven per cent of those which he kills. It is important, therefore, in this connection, as explain- ing what green hands are, what experienced hands are, what the expectation may be of improving in this race for destruction, and as an explanation for destruction in the past, to show that the means of perfecting themselves in this business are shut off by regulations, which are stronger and more powerful, very often, than the laws of the land. Mr. Justice Harlan.—What did this Association mean by providing for the employment of inexperienced hunters? ORAL ARGUMENT OF FREDERICK R. COUDERT, ESQ. 317 Mr. Coudert.—It would be this. I suppose that in all these associa tions the great rule is equality— " liberty, equality and fraternity " ; and they would not be equal if one had had five or six years' experience in slaughtering the seals and the other had had none. Therefore there is liberty to go into the business, equality by not permitting the experienced men to have an advantage, and brotherhood of the trades association, which clasps them all in its arms, and gives them all an equal chance. The President.—It seems to be international ; it provides for American ports as well as for Canadian ports. Mr. Coudert.—Yes. Oh, we are brothers. There is only an imaginary line between Sir John's country and mine, and we often forget it in our affection for our neighbors. Senator Morgan.—Where is the head of this association at present? Mr. Coudert.—In Victoria; and this is taken, as you will see, from the British Blue Book. Sir Charles Bussell.—I think it is non-existent now. Mr. Coudert.—I think I have failed to answer the question of the learned President of the Tribunal as to nets ; but I have given him in return some information which I possess on the subject of rifles and shot guns. • The President.—I am sure we have found it very interesting. Mr. Coudert.—I stated to the learned Tribunal how some of these seals were lost. I will give you some statistics upon that, with a belief that the court is interested in knowing precisely the nature, the extent and the destructive agency of this pelagic sealing. Upon this subject— although it is branching off somewhat, itTis also germane—I will read from the Case, a few lines only, from page 194 : Besides those lost by wounding, in many cases, others killed outright are not As the Case will show, and the testimony upon it is very explicit, the seals are lost when they are killed and they are lost when they are wounded—not so many when they are killed, perhaps, because in many instances a prompt boatman with a quick gaff will spear the animal as it is sinking and recover it; but that a great many are lost in that way How many are lost in consequence of wounds, no human being can tell. We have some very interesting speculation upon that subject. Some of the sealers express it as their opinion as experts that they do not think a great many die by their wounds. How they arrive at this opinion, how they can, without an examination, measure the gravity of the wounds and the likelihood that they will result in death, does not appear in the case; but you will find a number of the witnesses who state,—and so far as-n out seeing the men, tl with the intent to tell seals die. The seals must indeed be tenacious of life if a great propor- - tion of them do not die. The Tribunal at this point adjourned until Thursday, May 4? 1893, at 11.30 a. m. r from h earing the ir depositk ns an dwith- te with entire se and] erhaps th—tha t they do not believ e tha t these SEVENTEENTH DAY, MAY 4th, 1893. The President.—If you are ready to proceed, Mr. Coudert, we are ready to hear you. Mr. Coudert.—I had the honour to call the attention of the Tribunal yesterday, before the adjournment, to the difficulty which any lawyer must find in making clear the issues in the case. If we had any pleadings to guide us, we might on both sides bring down all the points and facts to one or two or a few questions; but when there are many averments on the one side and only vague admissions or denials on the other, we are necessarily put to the necessity, where material facts are involved, of going over the whole case. This must be my apology if, in discussing these matters, I should take time and occupy the attention of the Court in arguing questions which I may find hereafter not to be questions in the case. Indeed from a statement of our distinguished adversary, Sir Charles Bussell, I am inclined to believe that most of the propositions of fact, which have been laid down by my Associate Mr. Carter and which I mean to sustain by proof, will be admitted by him so far as they relate to seal- life; but, upon a vague statement of that kind of which I may not perfectly apprehend the meaning and extent, I cannot forbear going somewhat extensively into the proofs. Not only is there an absence of pleadings to guide the counsel and the Court, but there is a mis-statement (I use it of course in the most courteous sense) a misapprehension on the part of the counsel on the other side of the real issues in the case—at least if they do not misapprehend them we do. The lawyers who drew this being lawyers, aud understanding how important it was that we should come before the Court with issues, that is with allegations of an affirmative character on the one side and denial on the other, have stated the points of difference as they understood them to exist: they say that the issues are clear. This is on page 5 of the argument of the British Counsel : Was the Government legally j nstified in seizing British vessels engaged in pelagio sealing in Behring Sea outside territorial waters? Now I make bold to say that there is no such issue in this case. Nay I go further and say that we are forbidden to discuss, and this high Court is not authorized to decide, the issue thus stated in the argument of the Counsel. Both nations reserved that question, or those questions to themselves and although I am free to confess that the decision of this high Tribunal, on the questions of fact, may have, and, no doubt, will have a most important bearing on any diplomatic adjustment hereafter to be made, yet all those matters which relate to liability are expressly excluded by the terms of the Treaty; and, therefore, I shall not undertake to discuss the question which our friends on the other side say is the only question in the case. I have thought it necessary to state this at the outset, because if our friends are correct in their statement of what the issues are, then we are entirely wrong, and our discussion should follow an entirely different course, Whether the vessels were 318 T, ESQ. 319 for I haï with the It i bea win ed i id i of the ) tha ad. Our< sible, and every one of the propositions I a believe, be admitted to be true on the othei me to read this, for I am unable to state reading from page 98 of our Case, the Case supports dmitted, which it bly born ly as pos- id, will, I ruly. Its e islands, to eight That proposi tion, I take it, is undisputed. It is also un< lisputed that thei e is only one pup born at a birth. it is stated that tl that sometime leremaybeexcep ithing except tha 3 two are born a t there are exceptions t a birth. But that ma enalinstan y be dismis île; sed from the consn [eration of the ca se; and it will be found mat there is no dispute betwee n the two sides a 3 to the general fact tha t only one ] mp is born at a bii th. Astheresul i of a singular phenome ion (and it phenomenon, i the view of the 1 iritish Commissioners a s to the nat of this animal i strue)thisaquati ï or marine or pelagic an imal, if bon lat dr< ve elen ' Ii the elei elei shed 1 it is I at a 'Na id i illustration of this is shewn by the fact that during one year when the winter was extremely severe and lasted into the season when the Islands were generally free in their approaches from ice, a number of the mothers were unable to reach shore in time, the pups were born at sea, and every one of them perished. The importance of this consideration, when you examine into the nature of the seal, cannot be overstated. Some details as to this important matter of fact will be found in the Case at page 99; and I will read a few lines with the evidence which supports the statei Fo ed- Dr. X. L. Here.- 320 ORAL ARGUMENT OF FREDERICK R. COUDERT, ESQ. ford, for many years resident physician on the Pribilof Islands, relates that a pup being found which had lost its mother, was placed near the water's edge in order that it might swim to an adjoining rookery and perchance find its parent. Day after day, he continues, this pup was watched, but it would not go near the water, and neither did its mother return. After several days or so, a new employe of that season only, and knowing nothing whatever of fnr-seal life and habits, coming along that | way and finding the pup in the grass, thinking, probably that he had gotten lost from the other side, took him up and threw him into the water, with a view of giving him a chance of swimming back home. It was mistaken kindness, however, for he was immediately drowned. Dr. Mclntyre, a gentleman who will be often quoted here and who, from his position and his education and character, is entitled to belief whenever he asserts a fact within his own knowledge,—Dr. Mclntyre, who has made the seal habits and industry a life study, states " that it should be particularly noted that they (the pups) are not amphibious until several weeks old". They become amphibious only as à result of education and necessity. It is the necessity of going out because when the mother feels that she has performed the functions that Nature has ordained by nourishing her offspring with her milk until it is able to contribute to its own necessities, she drives it into the sea; takes it with her teeth or her flippers, and carries it to the sea, compels it to swim, chastises it if it does not, and finally inculcates into it habits which make it, after that time, an amphibious animal. So that it is absolutely true, and cannot be denied, that during a portion a ' " and until education has superseded Nature or at les final effort,—during a period of weeks or of months, agree about the period, the seal is not amphibious b trial animal. That is the time when, as I said, no could be any contradiction to what seemed to me so j the seal was as much our property as the calf, the the colt upon our premises, and was like them subject to as to its future, we being able to kill it or to preserve it as we cnose. The President.—Would you call that treatment of the young pups by their mothers weaning? Mr. Coudert.—It is in the course of the process of weaning. I have no doubt it is one of the first steps; but weaning does not take place in those few weeks. The pup is gradually prepared, and the suckling goes on for a period of months. The President.—While the pup swims? Mr. Coudert.—Bather while the pup is learning to swim ; while it is playing about in the water. It is a long time before the pup goes to any great length from the land. The young become gradually accustomed to the water, they choose sheltered spots, they play about the shore, they become familiarized with the sea and when the season comes and they must go, they follow in the wake of the other animals. The President.—And then they are weaned? Mr. Coudent.—And then they are weaned, but their mother continues in milk (there maybe as to this some question) until a late period in the fall. Now I desire, on this point, to quote from the British Commissioners, and I ought to state now and clearly, the position I take with reference to the report of these gentlemen; and if I use any severity of language at times (which will never I hope pass the bounds of entire courtesy and respect), it is because that report, as I read it, is manifestly an apologia for pelagic sealing. These gentlemen—gentlemen of character, of course, education? and intelligence, or they never would have been- ast of its life, elped it to the we do not all nrely i terres- pposm g there , the amb, or o our decision ORAL ARGUMENT OF FREDERICK R. COUDERT, ESQ. 321 selected by Her Majesty's Government for these important functions- assumed from the beginning that there was a rivalrv between the Canadian sealers on the one side and the United States on the other; and that it was their patriotic duty to support pelagic sealing whatever might be the result to the seals. My friend, Mr. Carter, has already alluded to this, and spoken upon it, and, in answer to a question from the learned President, has stated that he attached no importance whatever to statements in the report. In another sense, I attach a great deal of importance to the statements in the report, that is whenever they may be construed as admissions. I say it now, and I say it frankly, I consider these gentlemen as hostile witnesses; I am at liberty to dispute their statements whenever they are against the side which I am advocating—of course not statements of what they have seen themselves, for I accept their assurances without hesitation; but, whatever they testify against us I have a right to dispute; and whenever they testify in our favor I claim the right to accept their declaration as an admission, and when I am able to produce an admission from the British Commissioners that squarely, flatly, emphatically covers a certain point, I shall consider my function fulfilled as to the point covered, and shall assume that my friends on the other side are satisfied that this kind of -evidence is conclusive. This theory derives an additional force from the fact that the Eeport is a part of the British Case. These gentlemen have received the very high honor (and their zeal, if nothing else, entitled them to it), of having their report incorporated into their country's Case, and treated as part of it. The President.—I believe, Mr. Coudert, they owe that honor more to the American side, than to the English side. Mr. Coudert.—Well, we are always over generous with our adversaries, and there is nothing that we could do in that direction that would surprise me. But if it was extended to them by the American side as a useful contribution to the literature of seal life, seal habits, seal prospects, and seal necessities, I confess my inability to understand why it was done. The British Commissioners say on page 53, section 298, as to the pup's swimming: It has already been noted that evidence such as to show that the young can swim for a time at or immediately after birth, has been obtained from a number of sources, though it is, at the same time, improbable that under any circumstances the young is at first fitted to maintain its existence for any length of time in the open sea. This is, however, not a matter of any great importance, for it is evidently the normal method for the young to remain for some weeks ashore before venturing even to enter the sea. The comment upon this statement of fact I do not accept as part of my argument. I take the fact:—the admission—that the pups cannot swim or support life in the open sea for any length of time immediately following their birth. I also read (this is taken from the Appendix to the British Case, volume 3 of thé papers presented to the British Parliament), the testimony of a Mr. Laing who had been pursuing this business. It requires two citations. It is volume 3 of the Appendix to the British Case U S. of 1892. There is this question on page 184: Among all yearling grey pups there has never been anyone known to have found a female! (A) Yes, it if a fact. I have heard a great deal of talk of females having young on the kelp, too, but I do not think that is so. Some hunters report seeing «ups off Middleton Island, but I think that is impossible. (Q) Have you ever seen them cut a pup out of a female seal? (A) Yes and I have seen the pup so^cut out walk or move about the deck of the vessel, and I have tried to raise it. I have also. B S, FT XII 21 322 ORAL ARGUMENT OF FREDERICK R. COUDERT, ESQ. thrown it into the water, and have seen it swim about like a young dog. I have seen it keep afloat for fifteen minutes, as long as the vessel was within sight. On the islands the mother seal will take the young and force them into the water to teach them to swim. They will never take the water freely themselves for from six weeks to two months. It is only due to say that here is something that purports to be evidence. Whether our friends will consider it evidence or not, I do not know. They offer it to us as evidence, but I do not think they will rely upon it. In case they omit it, I will read it, and your Honors will determine whether this was meant seriously, or whether as.a sample of grim humor. I am reading from the Appendix to the Counter Case of Her Majesty's Government, volume 2, page 87. Here is a gentleman who has been seal hunting for 6 years. He was a resident of the city of Victoria, and he says : New born pups swim if thrown into the water. I remember one that I took from a cow and threw overboard that swam after our boat for over an hour. It, however, made so much noise that I caught it again and killed it, as it interfered with our hunting. I make no comment upon that; I simply read it. We also assert as a fact that the pup during the first few months of its life, is dependent on the milk of the female for its sustenance, and this will be directly in the range of the enquiry put by the President of the learned Tribunal as to the weaning of the pup. The United States Case, pp. 106 and 107 says: After learning to swim the pup spends its time on land and in the water, but the greater portion is passed on land, until its final departure, which takes place, generally about the middle of November, but the time depends a great deal upon the In fact, I may say that seals have been known to remain in very mild seasons all through the winter, as I think pur testimony will show. It is evident that they are only driven away by the extreme cold and the necessities of food, and their departure, like the departure of more intelligent beings, depends on the peculiar conditions of each year. When the season is very severe, they leave early; when the season is favorable and mild, they leave late. u upon the islands they are dependent solely The importance of this consideration I need not press, in view of what has already appeared in the Case as to the slaughtering of the I mother. Professor Dall says that the pups require the nourishment of their mothers for at least three to four months after birth, and would perish if deprived of the same. Others fix the period of weaning at at least four months. Others say that the female seal suckles her young as long as it remains on the islands. All agree that without this nourishment the pup would starve to death, and Dr. Horeford gives an account of endeavouring to raise a motherless pup by hand, which resulted in its death. So that even with the utmost tenderness and care, even with the _ greatest effort, which, of course, cannot be given to a mass of young seals, the seal perishes if the mother is killed. The importance of this question will now justify my reading a few extracts from the testimony, and I shall read from our volume, Part 2nd. It is a collated supplement to the Argument as raised by the subjects. I have selected some of the testimony, and although the whole of it is interesting and should be read, and although I shall take the liberty of asking the Court to examine it, yet I do not think I am justified in occupying valuable time in reading it all myself, and I shall, 1^ ^N*> ORAL ARGUMENT OF FREDERICK R. COUDERT, ESQ. 323 therefore select some of the most important witnesses, and shall read what they say upon these subjects. As an apology, let me say, if I am consuming much time, I am comforted bv the reflection that I am saving the Arbitrators some labor for when they consider the case they will have become imbued with the facts aud thoroughly understand them. This will be an advantage when my friends come to answer, as the Court will then be fully apprised of the position that we take and endeavor to sustain by testimony. The page is 127 of a volume which for convenience has been printed and bound. It is a collation of the testimony upon every subject. It is a sort of digest which has been very convenient to Counsel, and will be very convenient, I have no doubt, to the High Court. Mr. Bryant is one of the witnesses who have been most frequently cited. From the permanency of his tenure (he was on the island seven years), it is presumable he is a reliable man when he speaks of the things he has seen. I consider myself at liberty to dispute the conclusions of any witness on my side, and on the other side, when they are merely an inference which his mind gathers from facts; but when a man, in the position of this witness whose position recommends him as a credible witness, makes a deliberate statement I am bound to accept his testimony unless it is contradicted either by obvious facts or by witnesses equally credible with himself. Mr. Bryant who was in charge of the islands from 1870 to 1877, says : The pup is nursed by its mother from its birth on the islands, the mother leaving the islands at different intervals of time after the pup is 3 or 4 days. old. I have seen pups which I had previously marked by a ribbon—I suppose those belong to us—left for three or four days consecutively, the mothers going into the water to feed or bathe. A mother seal will instantly recognize her offspring from a large group of pups on the rookery, distinguishing it by its cry and by smell ; but I do not think a pup can tell its own mother, as it will nose about any cow which comes His inference is, it cannot recognize its mother. Perhaps that is true. On the other hand, it may be that the hungry pup does not care whether the sustenance is furnished by its mother or any other nursing female. At all events, the pup does go about trying to get milk from any seal that it can find, whereas the mother with the maternal . instinct given her to provide for her own offspring and no other, will not be satisfied until she has found her offspring and nourished it. The President.—Does not that contradict the assertion that when the mother is killed, the pup must necessarily perish. Mr. Coudert.—No, it sustains it. Perhaps I have not made myself clear, or I do not understand the question. The President.—If the pup takes milk from another nurse. Mr. Coudert.—The pup tries to take milk, and the mother does not permit it. The pup will take care of itself if the mothers will allow it. The hungry stomach in the pup has no regard to the rights- of property, and the pup will go round poaching wherever it can. No human being can tell this Court whether it knows its mother or not. We may infer if we please from its going about, as some do, that it does not recognize its mother. I am inclined to think that this is no proof at all, and that this hungry pup is taught by nature to feed wherever it can procure food. . . . But where the mischief comes, and the destruction begins, is that the pup's theory is not accepted by the mother. She preserves her treasures for her offspring alone, and when she is dead then the fountain of life is dried up. And let me here follow out the idea of the learned President and say that even if it were so—even if it were true that the cow will 324 ORAL ARGUMENT OF FREDERICK R. COUDERT, ESQ. permit any pup to suckle it, this fact would only be a mitigation, but not a cure, for the trouble; because Nature supplies just enough. There is no reason to suppose that she supplies an excess. If there are 10,000 mothers nourishing 10,000 pups, and there is only sufficient sustenance in those 10,000 mothers for those 10,000 pups, if 5,000 of those mothers are killed, suffering and death must ensue because only 5,000 will receive sufficient nourishment. Of course the suffering would be mitigated. The pups might get some little nourishment here and thee, and death might not be instantaneous and sure, but yet, if you were to take away part of the supply of food, there must be suffering, and, if the diminution is great, there must be death. If we show that some of these people take 500,1,000 and 2,000 mothers full of milk in one of their expeditions, it is plain that that milk was intended for the pups; the pups do not get it, and therefore the pups die. The President.—You are not aware that seal milk has ever been collected by man's hand and used perhaps as a beverage and food by the natives ? Mr. Coudert.—I do not think that it is. There is no evidence that I have seen in the book that it ever has been. Probably for some reason or other it is not palatable; but one would suppose that as in the case of goats, or any other animal (other than cows), the effort would have been made and that some one would claim that the milk of the seal possessed great curative properties. The President.—If it were a domestic animal it would be a natural idea; but your assertion is that the mother seal has only milk for one offspring. Mr. Coudert.—That is all. I want to read also from the evidence of another witness, who has been frequently quoted, on page 129, who has lived on the islands since 1869. Of course if he does not know all about seal life he must be a very stupid man, and if he makes a misstatement the probability is he does it intentionally. He says : usand pup seals for food in Novem- Island. We generally killed ten or l we killed them they were always You will observe that this was in November, when the seals are on the eve of their departure, and this would carry out what was stated ' in the Case, and prove that it is accurate and true, namely, that during this whole period the pups subsist entirely on milk. The President.—At any rate this seems to contradict the statement that female seals are never killed on the islands. Mr. Coudert.—They are not killed on the islands. The President.—He says that they are found full of milk. Mr. Coudert.—No. The pups are found full of milk on opening their stomachs. The President.—Perhaps so; I beg your pardon. Mr. Coudert.—There is no other food found in them. When, the others are killed, fish and various other products of the sea are found in their stomachs; but until the pups leave the island there is no evidence that any nutritious substance is found in them except milk. And I may say in this connection to the learned President, that during a long time, and when pelagic sealing had not made the most rigid economy a necessity, the inhabitants of the island were allowed to take, for their own purposes of food, a certain number of pups in November; aud we can well imagine that they would have preferred to eat the pups rather than the older animals—but even then only the male pups were killed. Until 1891 we wer allowed to kill sev ber abou th< timet ere ready to 1« twelve fo i the Island, a found to be full of re ilk. ORAL ARGUMENT OF FREDERICK R. COUDERT, ESQ. 325 And I want to have it well understood—and the question put by the learned President makes me anxious that I should be understood as saying, that absolute and religious respect is paid to the life of the female on the island, and that even this killing of male pups has been stopped. We do not now allow, even for the purpose of food, the male pups to be killed since this diminution in the supply of seals has been manifest. The inhabitants must provide themselves with other food; they are at liberty to eat the carcasses of those that are killed for their skins, but it is forbidden to kill a pup even for purposes of food. Then there is on the same page the evidence of Mr. Eedpath, one of the witnesses we select as being sufficiently reliable. He is a man who had been employed in these islands since 1875. After learning to swim, the pups still draw their sustenance from the cows, and I have noticed at the annual killing of pups for food in November that their stomachs were always full of milk and nothing else, although the cows had left the islands some days before, I have no knowledge of the pups obtaining sustenance of any kind except that furnished by the cows ; nor have I ever seen anything but milk in a dead pup's stomach. If this man is a truthful witness that part of the case is disposed of. I will now read, from page 114 of our Case, a brief extract, although I have already touched upon the same subject: A cow, as soon as a pup is brought forth, begins to give it nourishment; the act of nursing taking place on land and never in water, and she will only suckle her own offspring. That is what I have been endeavouring to demonstrate. These facts are verified by many others experienced in the habits of seals; and upon this subject, as to which enquiry was made by the ' learned President of the Tribunal Mr. Morgan says: The pup does not appear to recognise its mother, attempting to draw milk from any cow it comes in contact with; but a mother will at once recognise her own pup and will allow no other to nurse her. This I know from often observing a cow fight off other pups who approached her, and search out her own pup from among them, which I think she recognises by its smell and cry. And Mr. Falconer, another witness who has had very long and extensive experience, says : A mother will at once recognise her pup by its cry, hobbling over a thousand bleating pups to reach her own, and every other approaching her save this little animal, she will drive away. These facts are verified by many others experienced in the habits of seals. Now, in this volume that I was calling attention to a moment ago, volume the 2nd arranged by subjects, there is a mass of testimony from which I will only briefly extract passages. The Arbitrators will do us the justice to observe that we have made every effort, and the most diligent efforts to satisfy their conscience upon the facts, and that we have produced witnesses not only in great numbers but of very high character. I now read from page 144. The oldest sealer on the Island, who had lived there 50 years, says : The mother seals know their own pups by smelling them, and no seal will allow any but her own pup to suck her. Then, on page 146, there is a citation, also from Mr. Bryant, whom I have just mentioned, in which he says: I am positive that if a mother seal was killed her pup must inevitably perish by starvation As evidence of this fact I will state that I have taken stray, motherless pups found on the sand beaches and placed them upon the breeding rookeries beside. milking females, and in all instances these pups have finally died of starvation. 326 ORAL ARGUMENT OF FREDERICK R. COUDERT, ESQ. If he tells the truth, this subject ought to be practically disposed of. It is not an inference ; it is observation, not guess-work. It is the statement of a man who has had eyes and used them, and whose business it was to use them in connection with this very matter. Now we find a priest on those Islands, Pather Kushen, who says on page 145: And anoth experience ai When the cot but her own. ' seem to know o That is the ira'cy Ïn°d2 a dams , but the mothei distinguish Mel very )ved full Dff, W ho has s irions i ilso lu ithis id very va l the pupe El of characte r a very brie reliance upon the r and intelligence, f period. He was eal-life ; and, if his there, no doubt in testimony should raid s ay that othe rs, being equally I have now given the High Tribunal the testimony that we produce on this point. It seems to us that it is absolutely conclusive. In fact, from the very nature of it, assuming it to be reliable, the result cannot remain in doubt. If these men, who have lived on the Islands these many years, with their vast experience say: we saw this and we did this, and we know this, you may bring scientists without end who will say we never saw, heard, or did this, and yet the testimony must remain unshaken. The British Commission* testimony of Mr. Macoun, who visited the Island and there in 1892; that is last? a conscientious investi gati differ from that of others credible, are entitled to be believed because their expérience is of thé highest order and of the most extensive character. But although Mr. Macoun is brought forward as a witness, apparently, to dispute our propositions, I will submit to the Court that if there were no other testimony in the case than that of Mr. Macoun, the propositions stated in support of the Case of the United States would there find full support, and it should be taken as conclusive, so far as experience limited in extent and in point of time can ever be supposed to fix definitely a scientific proposition. I desire now to read Mr. Macoun's testimony in the Appendix to Her Britannic Majesty's Counter Case, volume I, on page 142: "On St. George Island,. 15th July," this is very interesting; it is very graphic. It is well told. All our witnesses have not the same facility of expression as Dr. Macoun, and it is quite refreshing to find a man able to express himself in such an interesting manner. low cliffs overlooking a part of Senator Morgan.—What year is he speaking of? Mr. Coudert.—1892. He was there for a few days in 1891; but his first visit of any extent was in 1892. ORAL ARGUMENT OF FREDERICK R. COUDERT, ESQ. 327 I saw three cows come ashore. One of these was still gravid" Each of the others on coming out, turned her head about from side to side uttering at short intervals a cry used by most female seals as they come ashore. In each case several pups went towards the cow, in one instance five were about her at one time. These were smelt or nosed over and shoved away, or struck gently with a flipper, and one by one they dropped off. The cow then moved slowly back towards the rear of the rookery. -She was "attached" by nearly every pup she passed close to. These she put away ahxm hoc, calling out from time to time as if for her own young one. Amongst the first pups that had approached her was one that persistently followed her, attempting to suck every time she stopped, several times securing the teat, while the côw nosed over other pups. It was evident, Perhaps it would not have been as evident to the other and more experienced men as to Mr. Macoun ; but it was evident to him. that the mother seal was searching for her own young one, and that she thought that the pup following her was not it, as, often while the young one was close beside her, the cow would stop at a pod of pups and examine and smell every one of them. Whenever this pup attempted to suck and was seen, or perhaps felt, by the mother seal, it was pushed away and she moved on, followed as before by the pup. She —x the back of the rookery, where she lay down on Still followed, you will observe, by this persistent pup ! Tenacem propositi he certainly was; and, whether his claim was founded on good title as far as lineage is concerned, is a matter of inference; I think the inference is tolerably plain. The pup immediately began to suck, stopping whenever the cow awakened, which happened at very short intervals,- beginning again as soon as the cow slept. It was at last satisfied, and lay down at some distance away and went to sleep. Now, I read from a little further down. On the 18th July, on North rookery, St. George Island, a cow was seen by me to' come from the water, and after calling out as if for her young one, she was approached by several pups, as had been noted frequently before; and, as is usual when cows come from the water, these pups attempted to suck, but were driven away. One persistently followed her; the cow smelt it over many times, as if uncertain whether it was her own or not, but did not stop, and pushed the pup from her. Though the pup continued following her, the cow did not cease crying out at intervals in the manner peculiar to them when calling for their young ones. Other pups came to her, which she smelt in the usual way, but finally she lay down and allowed the pup that had been following her from the first to nurse. If this pup Were her own, it would seem that the female was for a long time uncertain whether it was so or not. These scientists make very nice distinction on these subjects which, perhaps, our plainer men do not make as to the mental operations of the cow in recognising her pup : For while the pup kept up with her most of the time, and was often beside her, she continued to call out as if dissatisfied, and did not cease smelling all the pups that came to her. It is noteworthy that she did not go to the back of the rookery- ground, but, after reaching the middle of it moved about to the right and left for more than 15 minutes, the pup following her, and lay down at last on a rock that she had passed several times. Were the pup her own, there is no apparent reason, why she should not have lain dqwn when first joined by it. Probably she had reasons of her own; I am utterly unable to say to the Court what the reasons were. Had the pup not followed her and finally been allowed to nurse, her actions were such that any one must have concluded that, for more than 15 minutes, she had been searching for her pup without finding it. But as the pup did follow her and did finally nurse, this hypothesis does not come into play. In both cases referred to above, the pups persisted in following the cows, though repulsed by them, and, while in one instance the cow laid down and went to sleep, the pup then helping itself; in the other, the cow, after a long-delay, and in evident uncertainty as to whether the pup were her own or not, voluntarily suckled it. J 328 ORAL ARGUMENT OF FREDERICK R. COUDERT, ESQ. How the evident uncertainty of a mother-cow could be explained to this scientific gentleman, I am also at a loss to understand. Instances similar to these were noted whenever any considerable time was spent in watching a particular part of a rookery. This is, in every case a number of pups pursued the mother and were driven away, and finally she consented that one of the pups should draw food from her. At any time pups might be seen nursing everywhere on the rookeries, but it was not often that a female was actually seen to come from the water, and, within a short time, find a pup to nurse, as would be expected if it were true that she had been a long distance out at sea, and perhaps many days absent from the rookery. "When females were seen to come from the sea and soon afterwards allow a pup to nurse, it was generally under circumstances such as those above referred to. If this happened only in the case of the cows coming from the sea and not of those that were remaining on land, possibly a suggestion that I have heard made, but which I cannot give as evidence, for I do not know that it is in the Case, may suggest itself to the mind of the Court, viz, that on coining from the sea, being still drenched with the water, they refuse for some reason that nature has given them, to allow the pup to suckle. We know in the domestic life of animals there are certain reservations, and wise masters will not allow a heated animal to suckle her young, but there the master interposes, the proprietor, who is intelligent enough to understand these rules and laws of nature. On the 16th July, at Starry Arteel Rookery, St. George Island, I watched five female seals come from the water at different times. All called out at intervals as if for their young ones. As they slowly made their way among the harems many pups attempted to nurse, but none were allowed to do so, and every one of these cows, after wandering about for some time in an apparently aimless manner, lay down and went to sleep without having given up any milk. What can be stronger than that? Does it not outweigh any speculation as to the mental operations of the cow? Here, with nature clamouring to the cow that she should be rid of this which was given to her for distribution and not to preserve—with this embarrassing material to distress her, with all these pups clamouring for food, she refuses, and finally goes to sleep with her udders distended, because nature had instructed her, when she was born, that she should give this only to her young. And in connection with this I would like to cite, and I take great pleasure in citing, a gentleman as to whose intelligence and character there can be no dispute, and whom we are happy to call our friend. I allude to Mr. Tupper in Appendix, Volume 3 Behring Sea Arbitration, papers presented to the British Parliament, page 436—the title is U. S. No. 2—Mr. Tupper in his memorandum on Mr. Blaine's letter to Sir Julian Pauncefote, dated March 1st, says, in connection with the statement that indiscriminate slaughter destroyed them by thousands, This statement, cited in the United States Case, is direct authority for the Canadian contention. It illustrates three important points. That indiscriminate slaughter on the breeding grounds is injurious, and in time destructive. Which we accept, which we claim, and which we insist upon, that the indiscriminate slaughter on the breeding grounds is injurious, and must in time be destructive. It has been destructive in the past in ; every sealery except this of Bering Sea. e killed, the young pups dying in consequence, are ORAL ARGUMENT OF FREDERICK R. COUDERT, ESQ. 329 This is the point that we consider extremely important to establish. Then he quotes Mr. Taylor who was on the islands in 1881; this is on page 439 of the same book. The witness thinks there is some damage done in killing and shooting of the cows, and leaving so many young without their mothers. There would be less doubt respecting the cows being shot, or lost if it was satisfactorily shown that large numbers of young pups were found dead in the rookeries. The point of all this, in fact the double point, is, that we show in the first place that this animal, at times at least—during a certain period of the year at least, is a terrestrial and quasi-domestic animal. We show that the pup is entirely dependent upon its mother, and, as a corollary from which there can be no dissent, when the mother is killed under those circumstances the pup must perish. As I had the honour to state to the Court yesterday, when a pelagic sealer kills a nursing mother he kills the pup on the island with unerring accuracy. The death of the pup is as sure to follow the death of the mother as the sun to follow the night. He is able by this process to kill two or three at one time. In all cases we may say when he kills the mother on the feeding grounds 100 or 200 miles away, leaving a pup on shore, that there is the destruction of three animals, and the skin of one only secured, if there are no green hunters about, and only skillful ones who are able to rescue the one that is shot before it sinks to the bottom of the sea. We also claim (and this is an admitted fact in the case) that the pup migrates with others in the herd in the fall. As to the course of the migration of the herd, that is also practically admitted. I do not think there is any such difference between us as to require examination. It is also stated (and as to this there is no contradiction) that when the bulls leave the islands, they never go further south or, at all events, seldom go further south, and are seldom, if ever, seen south of latitude 50°. The other animals do go beyond that limit, and this may be of some importance, in considering the question of the double residence which is assigned to these animals by the British Commissioners. It is said that they have two homes, one on the islands and the other on the open sea. It is proved that the other seals than the bulls do go further south, which shows that there is no common home even at sea for the whole herd of the animals. Certainly the bulls are entitled to some consideration as members of the family of seals, and it being proved that they do not and that the others do go further south than 50°, the evidence is irresistible that they have no common centre of attraction outside the Pribilof Islands. The President.—You mean the cows and pups. Mr. Coudert.—I mean the cows and pups. The President.—And the bachelors. Mr. Coudert.-—And the bachelors; they go south; but I say, as a herd, as a family—the father, the mother and the children—there is no common home for them upon the earth and upon the sea except upon the Pribilof Islands. I mean there is no home where they can at any time unite and make their common habitat or domicile. As is stated by the British Commissioners on that point at page 31, section 193— It is a noteworthy and interesting fact, ascertained in the course of the present inquiry, that the full-grown males, known as "beach-masters" or "seacatchie have seldom or never been reported to the south of the oOth parallel, while all other classes of seals are found in considerable numbers much further south. So that when they gather together on those islands they gather there by their common consent and instinct. That is the only place which 330 ORAL ARGUMENT OF FREDERICK R. COUDERT, ESQ. they frequent together as a family or herd. To me, I confess, it seems to verge upon absurdity to talk about a double habitat for these animals, a habitat or home upon the land and another upon a space of 1,000 miles of ocean. They leave their home for food. They are driven away by the necessities of climate. They never land at any other place. They never live upon land unless on our island's, and I think we are justified in saying, beyond any fear of contradiction, that there is the only home that they possess. That they do not land except on the Pribilof Islands is practically admitted, but I would like to read one or two extracts in order that I may not ask the Court to take anything for granted. I select from the collated testimony page 86, a brief extract from the testimony of Mr. Daniel Webster, and I do this with especial satisfaction, because Mr. Webster is not only an intelligent and reliable man, but the British Commissioners themselves have spoken of him as a witness in whom trust could be placed. He entered the Islands with the United States and has lived there ever since and so conducted himself that even the British Commissioners accept him as a reliable and truthful witness. In my twenty-three years' experience as a whaler in Behring Sea and the North Pacific, during which time I visited every part of the coast surrounding these waters and my subsequent twenty-four years' experience on the seal Islands in Behring and Okhotsk seas,T have never known or heard of any place where the Alaskan fur-seals breed except on the Pribilof group in Behring Sea. These islands are isolated and seem to possess the necessary climatic conditions to make them the favourite breeding grounds of the Alaskan fur-seals, and it is here they congregate during the summer months of each year to bring forth and rear their young. I shall not multiply extracts for I conceive this to be substantially conceded and with some slight differences in expression, I may say the British Commissioners themselves accede to this proposition. They do threaten us, it is true, and say that if we do not mend our methods on the Islands these animals may be driven, off and go to some other place. They do not tell us to what place they might go. If they did we might protect ourselves by acquiring those islands or lands wherever they may be. But after all, with all respect for the ingenuity of the speculation, it is only speculation, and as these seals have been going there for 100 years and they have never been treated so well on the Islands as they are now, I think we may view with composure the threat that they may leave us at some indefinite period for some undefined spot. Mr. Justice Harlan.—Is the blue colour on the map intended to show the general migration route of the seal from the Pribilof Islands and back. Mr. Coudert.—Yes ; the dark lines show the track pursued by the bulls. I will now read but two or three lines from the deposition of Mr. Laing. It is very brief. He is one of the most experienced witnesses. This is page 188 of Volume 3 of the British Appendix. You have never heard of any rookery along the coast? I never heard of one.' There is a rookery of sea lions off Queen Charlotte Island, but I never heard of any of seals. Here I wish to call attention to another point, and one of considerable importance; and I am free to say I do not know whether there is any dispute about it or not. I think it is practically admitted; but I would prefer, in view of its importance, to read some testimony briefly on the subject. I read from the United States Case, page 94, as to the distinction : The two great herds of fur-seals which frequent the Behring Sea and North Pacific Ocean and make their homes on the Pribilof Islands, respeetively, are entirely distinct from each other. ORAL ARGUMENT OF FREDERICK R. COUDERT, ESQ. 331 That is a proposition which we think is plainly and clearly established by the testimony. I will read upon this the statement of the British Commissioners; section 198 : ? The facts already cited in connection with the migration of the seals on the east side of the Pacific, show that these animals enter and leave Behring Sea almost entirely by the eastern passes through the Aleutian chain, and that only un<!er exceptional circumstances, and under stress of weather, are some young seals, while on their way south, driven as far to the west as Atka Island. Mr. Justice Harlan.—Is that the westernmost island? Mr. Coudert.—No. It is there. \Mr. Lansing pointed it out on the map.) It is only under exceptional circumstances that a few pups, being light and weak, are driven by stress of weather as far west as the island that Mr. Lansing has just pointed out. ing seals are known to pass near Attu Island, the west- That is still further west; the extreme island, nearest to the Commander Islands. And no young seals have ever within memory been seen there. These circumstances, with others which it is not necessary to detail here, are sufficient to demonstrate that the main migration-routes of the seals frequenting the Commander Islands do not touch the Aleutian chain, and there is every reason to believe that although the seals become more or less commingled in Behring Sea during the summer, thé migration-routes of the two sides of the North Pacific are essentially distinct. 1 beg to call the special attention, of this High Tribunal, to that concession on the part of the British Commissioners. We do not admit even the slightest commingling of seals during the summer. On the contrary we deny it, but we take this concession that the migration routes of the two sides of the North Pacific are essentially distinct, in other words that these are two absolutely different families or herds of seals—that they do not commingle—that they are separate and distinct in material particulars and that there is no possibility of confusing the two. Then on the same point, and it is a very important point, as relating to the-question of property as well as to the question of pelagic sealing—I read from the British report. The inquiries and observations now made, however, enable it to be shown that the fur-seals of the two sides of the North Pacific belong in the main to practically distinct migration-tracts. This the High Court will see is precisely what we claim. They belong in the main to practically distinct migration tracts, both of which aire elsewhere traced out and described and it is believed, And even this exceptional instance which is about to be stated is not asserted but interjected into the case by way of opinion: and it is believed that while to a certain extent transfers of individual seals or of small groups occur, probably every year, between the Pribylof and Commander tribes that this is exceptional rather than normal. It is not believed that any voluntary or systematic movement of fur-seals takes place from one group of breeding islands to the other, but it is probable that a continued haras one group might result in the course of years in a corresponds the other group. I will call attention presently to the map which is referred to by these ' gentlemen. , ,, ,. If it is the desire of the Tribunal to get further light, the map that is cited by the British Commissioners is found in their Eeport which your 332 ORAL ARGUMENT OF FREDERICK R. COUDERT, ESQ. Honours have before you; it is a map illustrating the migration routes and resorts of the fur-seals in the North Pacific. I only call attention to it to say that the Court will see how far apart they are. It is difficult to believe that even a partial commingling of individual seals could take place. I ask the Court to notice the suggestion, that a continual harassing of the seals might drive the American seals to Eussia or the Eussian seals to America. What foundation there is for this perhaps the Tribunal may be careful enough to enquire into. 1 can give no light upon such a possibility. Upon what it is founded, I do not know, and why it is to be presumed that these seals after an occupancy, to our knowledge, of a full century, would start across an unknown ocean and make .an interchange of domiciles, I repeat, I can not explain. Then section 454 : There is no evidence whatever to show that any considerable branch of the seal tribe which has its winter home off the coast of British Columbia resorts in summer to the Commander Islands, whether voluntarily or led thither in pursuit of food- fishes, and inquiries along the Aleutian chain show that no regular migration route follows its direction, whether to the north or south of Islands. It is certain that the young seals in going southward from the Pribilof Islands only rarely get drifted as ' far to the westward as the 172nd meridian of west longitude, while Attu Island, on the 173rd meridian east, is never visited by young seals, and therefore lies between the regular autumn migration-routes of the seals going from the Pribilof and Commander Islands respectively. That is admirably stated; it is admirably clear, and in the main, it is precisely what we contend. It shows that these two migrations are distinct; that these two families have their respective homes, and that they have never commingled; that they never do commingle, and they never can commingle unless their habits should entirely change for some reason which is not yet disclosed. Now to close this branch of my quotations still borrowing from the British Eeport and reading but three or four lines of section 224: The broad and general facts of the annual migration habits of the fur-seal do not appear to depend primarily upon the pursuit of food, but rather seem to be governed by the instinctive resort to the breeding islands in the spring, followed by the equally instinctive departure for more Southern latitudes on the approach of the cold and Of course, it is their instinct that leads them to go to the Pribilof Islands in the summer, and, of course, it is their instinct that sends them off when the severity of the winter makes that habitat intolerable. The President.—Is there any great difference between the climate of the Bering Sea and that of the North West Coast. Mr. Coudert.—Yes. The climate is itself very cool there; sunshine very seldom appears. They prefer it for that reason,—it is very cool and very moist; the sun may not shine for a week in the whole year and it very seldom rains. Senator Morgan.—You are speaking of the Islands? Mr. Coudert.—Yes. On leaving the islands they go south some of them as far as the coast of California ; the bulls however do not. When the British Commissioners speak of the seals on the Coast of British Columbia, we might also speak of the seals on the coast of California; they are the same seals and in their migration they do undoubtedly pass the coast of British Columbia on their way back. It will be apparent at once to the High Tribunal that this question of the possible intermixture or commingling of the seals is, as I have stated one of capital importance: it goes directly to our right of property. If it could be shown that these seals ran to and fro, that they would spend ' a month or two on the Commander Islands and a month or two on the ORAL ARGUMENT OF FREDERICK R. COUDERT, ESQ. 333 Pribilof Islands, that there is no means of ascertaining from the kind of skin, its colour, its fineness, its texture, and the like, whether they are our seals or not, an argument might be made, and it might bé said "If you will tell us how to recognize your seals, we will respect them". May I trespass upon the indulgence of this High Court and dwell upon this point which, as you see, in its ramifications is of the highest importance: it affects the skins of the animals, where they come from, how they are to be identified. When the skin is removed from the animals, it is sent to London, which is the great centre where the industry is carried on of preparing the skin, and where they are all received. So also the Commander skins, is there any difference? If there is any difference, if there is a different species of animals,—if they are as different as Jersey and Guernsey cows,—if there is such a difference as between the breed of horses known as the Percheron and Norman, if there is a difference in the skins, we propose to prove, and I think the evidence is overwhelming that there is such a difference in the skin itself as to shew, apart from any other consideration or argument, that these are entirely distinct families. We are now leaving the sphere of testimony in which the pelagic sealers and the inhabitants of the Pribilof Islands figure so largely, and we can call up Mr. Bevington. His testimony is cited, I will say for the convenience of our friends on the other side, in the Argument of the United States, page 233. Of course, these gentlemen are men who stand very high in commerce. Their position is one which entitles them to be treated with great respect especially when they are testifying in favor of the United States. We are bound to give them the highest credit. This is on page 233. Mr. Bevington is called. He is a subject of Her Britannic Majesty; 40 years of age; the head of the firm of Bevington and Morris, 28 Cannon Street in the city of London. His testimony as a whole will be found in volume 2 of the Appendix; but I will not read the whole. He says upon the subject of the variations observable: That the differences between the three several sorts of skins last mentioned, that is of the Commander Islands, the Pribiloff Islands, and the Bob- ben Islands, are so marked as to enable any person skilled in the business or accustomed to handle the same to readily distinguish the skins of one catch from those of another, especially in bulk, and it is the fact that when they reach the market the skins of each class come separately and are not found mingled with those belonging to the other classes. The skins of the Copper Island catch are distinguished from the skins of the Alaska and Northwest, Perhaps this high Tribunal will not understand what the Northwest catch may be. It is the Pribilof Island seals killed by hunters. That is what the northwest catch is. They are all Alaska seals; they are all the same family of seals, some killed with discrimination upon the land, and the others killed without discrimination upon the sea: Which two last-mentioned classes of skins appear to be nearly allied to each other and are of the same general character, by reason of the fact that in their raw He is speaking of the Copper skins. the Copper skins are lighter in colour than either of the other two, and in the dved state there is a marked difference in the appearance of the fur of the Copper and the other two classes of skins. This difference is difficult to describe to a person unaccustomed to handle skins, but it is nevertheless clear and distinct to an expert, and may be generally described by saying that the Copper skins are of a close, short and shiny fur, particularly down by the flank, to a greater extent than the Alaska and NorthweBt skins. 334 ORAL ARGUMENT OF FREDERICK R. COUDERT, ESQ. We will now quote Mr. Morgan who was the agent in 1891 of the Eussian Sealskin Company, of St. Petersburg.. He was on the Pribilof Islands in 1868 and 1869, and from 1874 to 1887 as agent of the lessees. His testimony is abstracted on page 235 of the same volume. He says : The Alaska fur-seal breeds, I am thoroughly convinced only upon the Pribilof Islands; that I have been on the Alaska coast and also along the Aleutian Islands ; that at no nor have I been able to obtain any authentic information which causes me to believe The Alaska fur-seal is migratory, leaving the Pribilpff Islands in the early winter, going southward into the Pacific and returning again in May, June, and July to said islands. I have observed certain bull-seals return year after year to the same place on the rookeries, and I have been informed by natives that have lived on the islands that this is a well known fact, and has been observed by them so often that they stated it as an absolute faot. I was on the Bering Island at the same time that Sir George Baden-Powell and Dr. George M. Dawson, the British representatives of the Bering Sea Joint Commission, were upon said island investigating the Russian sealeries upon the Komandorski Islands ; that I was present at an examination, which said Commissioners held, of Sniegeroff. the chief of the natives on the Bering Island, who, prior to the cession of the Pribiloff Islands by Russia to the United States, had resided on St. Paul, one of the Pribiloff Islands, and that since that time had been a resident on said Bering Island, and during the latter part of said residence had occupied the-position of native chief, and as such superintended the taking and killing of fur-seals on said Bering Island; that during said examination the Commissioners through an interpreter, asked said Sniegeroff if there was any difference between the seals found on the Pribiloff Islands and the seals found on the Komandorski Islands ; that said Sniegeroff at once replied that there was a difference, and on further questioning stated that such difference consisted in the fact that the Komandorski Island seals were a slimmer animal in the neck and flank than the Pribiloff Island seals; and further, that both hair and fur of the Komandorski Island seal were longer than the Pribiloff Island seal; said Commissioners asked said Sniegeroff the further question whether he believed that the Pribiloff herd and the Komandorski herd ever mingled, and he replied that he did not. Now Mr. Morgan is also engaged to a great extent and on a large scale in business. He is engaged in dressing and dyeing the skins. He says at page 236 : The skins belonging to the rately, and are of different values and r in the market. There is no better test after all than this. The money value of the skin in the open market is shown not by the sales made in this year, or last year, but made year after year. Sir Charles Eussell.—He does not say that on page 236. Mr. Coudert.—I am reading from the summary of the evidence. Then he says : Mr. Justice Harlan.—You are not reading from the printed Argument, and we are unable to follow you, Mr. Coudert. Mr. Coudert.—I am reading from the summary of the evidence. It is volume 2 of the appendix, page 569. I will now read from page 237 of the Argument quoting from Mr. Poland, page 571 of the "same book. Mr. Poland's qualifications were of the best. He is a subject of Her Majesty and the head of the firm of P. E. Poland and Son doing business at 110 Queen Victoria Street in the City of London. His firm had lasted over a 100 years, having been founded by his great grandfather in the year 1785, and if there is anything in heredity, he ought to understand all about seal skins. His ORAL ARGUMENT OF FREDERICK R. COUDERT, ESQ. 335 judgment is entitled to great respect, and he says on page 571 of volume 2 of the Appendix to the case of the United States: ' That the three classes of skins are easily distinguishable from each other by any person skilled in the business or accustomed to handling skins in the raw state That deponent has personally handled the samples of the skins dealt in by this firm and would himself have no difficulty in distinguishing the skins of the Copper Island catch from the skins of the Alaska and north west catch, by reason of the fact that m the raw state the Copper Island skins have a lighter colour and the fur is rather shorter in pile and of an inferior quality. The skins of each of the three classes have different values and command different prices in the market. Now I shall read some of the evidence of Mr. George Bice on page 573 of volume 2 of the Appendix to the United States Case. Mr. Bice, I may say, is another of that class of witnesses entitled to particular respect. [The Tribunal then adjourned for a short time.] The President.—Mr. Coudert, if you are ready, we are. Mr. Coudert.—Thank you, Sir. I propose, may it please you, Mr. President and the members of this High Tribunal, to close this examination and reading of extracts by two or three very brief passages on the same subject, viz, the intermingling of herds. I shall read but three or four lines (it will not be worth while to trouble the Court to look at the book), from the second volume of the Appendix to the United States Case, on page 438, the testimony of Alexander McLean, He is asked : In your opinion, do the seals on the Russian side intermingle with those on the Pacific side or are they a separate herd? That is a pointed question and deserves a categorical answer. He says: They are a different herd of seals altogether. Then Daniel McLean is asked the same question on page 444 of the same book : In your opinion do the Pacific side?—(A). No, S opinion. I may say with regard to both of these witnesses, that they are vouched for by the Canadian Inspector of Pisheries in his Eeports of 1886, page 267, and mentioned by him in such a way that we have a right to read their testimony with the confidence that it will be accepted on these points. This is the testimony of these two men and I propose (stating to the Court that what I have read is only a small part of the. testimony which we claim to be overwhelming on this subject), to read from the evidence of Mr. Morris Moss. His testimony should be read because of his high position in connection with this business. Mr. Morris Moss testifies at page 341 of the same book, volume 2, of the United States Appendix. Mr. Moss, I should say, (and this is the reason I have selected his testimony out of the great mass that I have before me), is the vice-president of the Sealers' Association of Victoria, presumably acquainted with the business, and testifying with knowledge of the subject. He says : There are two great herds or armies of fur-seals that frequent the North Tacific Ocean and Behring Sea. They are quite distinct from each other, and do not intermingle The one army appears off the coast of California, in the latter part of December, and gradually work their way northward, and are joined by others coming, apparently, from mid-ocean. . They appear to travel in two columns, the outer column containing an army only of bulls, and the inner one mostly cows and yearlings. These columns are not con- ,1s on the Russia a side inter mingle with those 1 do not think o. They a re different seals 336 ORAL ARGUMENT OF FREDERICK R. COUDERT, ESQ. tinuous schools of seals, but rather small parties scattered along. The column travelling along the British Columbia coast, head for the Pribilof Islands, their natural breeding ground. The other army proceeds along the Japanese coast, and head for the Commander and Robben Islands. I believe that the seals always return to the place of their birth. Perhaps I might have been satisfied with reading this alone to the Court, emanating from such a source, (which is certainly not one favorable to the United States), and have claimed that until it was contradicted it should be considered conclusive upon the point; but if the High Tribunal desires more, it will find an abundance of corroborative proof in the Case. The President.—This last witness was a pelagic sealer? Mr. Coudert.—He is the Vice-President of the Sealers' Association of Victoria. The President.—But he was a pelagic sealer? Mr. Coudert.—You are speaking, Sir, of the last witness? The President.—Yes. Mr. Coudert.—Yes, he is the Vice-President of the Sealers' Association of Victoria. The President.—Those are pelagic sealers? Mr. Coudert.—Yes; and he is speaking from his actual knowledge of the subject. The President.—Does he carry on his business on the other side of the Pacific—the Japanese and Eussian coasts? Mr. Coudert.—He deals in skins—I do not think that he undertakes to get them on the high seas. His is the safer and more comfortable business of remaining on land, and dealing with the skins after they have been taken from the animals. Mr. Gram.—Mr. Coudert, if you will allow me, I will draw your attention to what is stated in the British Counter Case, page 136 and following. It commences thus : Since the date of the Report of the British Commissioners, information obtained from pelagic sealers and seamen engaged in navigating in various parts of the North Pacific has resulted in the accumulation of an overwhelming amount of evidence supporting the position that no constant separation exists between the seals, frequenting the two sides of the Ocean. Mr. Coudert.—Yes. Mr. Gram.—And in the following pages there are reported a good number of instances. Mr. Coudert.—Yes; I was coming to that subject. I am glad that the learned Arbitrator called my attention to it. But taking even the proposition as broadly stated as it can be by the Counsel, what does it amount to ?—that the evidence is overwhelming that no constant separation exists between the seals frequenting the two sides of this ocean. Does it mean anything more than what is stated by the British Commissioners as an exceptional case of stragglers being found everywhere? I think when the learned Arbitrator examines the case, he will find that it is nothing more than a reiteration, under a stronger form, of the exceptional instances adduced by the British Commissioners ; that there is nowhere an allegation—and that is all that I care to establish—that those two herds, armies, tribes, or families, are not absolutely distinct. Even if it were true, which we deny,—and we claim to use their expression that the evidence is "overwhelming in amount"—even if it were true that there is an occasional running into each other, and out, on the borders of each of them, the two herds are distinct; they all follow their own migrations; they each have their own home; and, in the true sense of the word, there is no intermingling. Secondly, there is no constant; ORAL ARGUMENT OF FREDERICK R. COUDERT, ESQ. 337 union of them; and all that they claim is that no constant separation exists between the seals—not between the families. I do not think that it will be argued by our learned friends differently from this. The British Commissioners have given especial attention to the question, and this is the result that they have reached; if their supplemental report and defence of their own work is read, it will be found that they did not go beyond that qualification of the general statement. Mr. Gram.—Yes, but this evidence is prepared posterior to the British Commissioners, of course, is it not—these instances which are quoted here? Mr. Coudert.—What the evidence may be that is subsequent to that, it is very difficult to tell. I think that probably it is intended to show by the dealers in skins that there is a confusion in the skins, and I was coming to that very point. Mr. Justice Harlan.—But they mean more than that by their evidence. Mr. Gram.—Yes, much more than that. Mr. Justice Harlan.—They intend more than that. The President.—I suppose we must wait until the gentlemen themselves tell us what they mean, and that will come in time. Mr. Coudert.—They mean I think what I have stated, and also what probably the learned Arbitrator suggests, and had in mind that in crossing over the ocean seals have been found, they say, all over the water. Mr. Gram.—Yes. Mr. Coudert.—I think that is what they mean. Mr. Gram.—At any time—I think so. Mr. Justice Harlan.—On the page referred to the head line is, " statements particularly bearing on the intermingling of fur-seals in all parts of the North Pacific". Mr. Coudert.—What page is your Honor reading from ? Mr. Justice Harlan.—Page 23 of the British Counter Case Appendix, volume 2. The object of that proof, as Judge Gram suggests is to maintain the proposition that seals intermingle at all times in all parts of the Pacific. Mr. Coudert.—Assuming that to be true, I would quote the words of the President of the Tribunal, what do they mean by that? What is meant by that? Is it meant that they intermingle simply by crossing the same lines, or is it meant to intimate that the families become united, and that there is an alliance between the two tribes, so that one of the seals of the Pribilof Islands will have mixed blood of the Commander and Pribilof Islands, aud on the other side the Commander Island seal will have Alaskan blood ? The President.—I cannot ask you to explain what the other side mean, and what they intend, but it is enough I think, (and it was important) that one of the Arbitrators pointed out to you, the fact which lies in the papers before the Tribunal, and which we have to take into consideration. Mr. Coudert.—Yes, and I may say to the Arbitrator that I am indebted to the Court whenever any enquiry is made, in the first place because it shows I am honored with the attention of the Arbitrators; and secondly, that I ought to understand my case sufficiently to be able to answer a question satisfactorily. I say with regard to that, that if it is intended to say that there is this casual intermingling—this crossing of each others' lines, and a going to and coming from the water ter- B S, PT xxi 23 338 ORAL ARGUMENT OF FREDERICK R. COUDERT, ESQ. ritory—the maritime jurisdiction—of the other, in the first place it is absolutely immaterial if that be so. In the second place it is absolutely denied; and if it is material, your Honors will' have to weigh the testimony upon the point. If the inference is intended to be carried to the mind of the Court that there is any intermixture of blood, then I say there is not a scintilla of evidence but all the evidence is the other way, while theirs is of the loosest kind. Some of their witnesses say that they have found seals all over, occasionally, more or less. The expression of those who say that they have seen seals all over, is, | more or less," every day, they have seen seals. In two or three instances, the latitudes are given, and then we can show to your Honors that although some distance at sea, that would be precisely on the lines of migration north or south. Dolosus versatur in generalibus, might apply. It is easy for a man to say, "I saw them and the great Ocean was. so thick that navigation was impeded". Anybody could say that; but I would like to know, very much, Mr. Captain of the sealing vessel, in what latitude you saw those? Is your Log-book here? Produce your Log-book; and when you tell me it was in a certain latitude, I have something to work upon, and I may be able to satisfy the Court that that is just the place where you ought to find seals. You find the Alaska seals going north, or Alaska seals going south. You naturally would, at certain seasons find them there. But, as the learned President said, I am speculating—I do not know exactly what will be claimed, and perhaps it would be just as well on that point to hear what our distinguished friends have to say. I think, however, this is the answer,—and I desire to make it as satisfactory as Ï can even at the expense of repetition—that even if the sea were narrower, and it should be supposed that these animals while intending to go home from the south did, on their extreme lines, touch each other and individual seals came in contact, and that is called intermingling, it does not in the slightest degree change the case—no more than the fact that my Jersey cow goes over my fence among your Guernsey cows and then comes back makes the slightest difference to my rights of property, or affects the habits of the animal, or the distinctive characteristics of each. It is just to say (and it is in the line of the suggestion of the learned Arbitrator), that we have something which approaches a judicial proceeding on the part of our friends on the other side—that is, that they have resorted to something like cross-examination. How precious that is to those conversant with the system of Great Britain, which we have : adopted, I need not say, to the English Judges and Jurists. We consider it most essential to the administration of-justice, and it is essential probably because it has been habitual, and justice has been conducted from time immemorial in that way; and my friends on the other side very naturally, and very properly, (finding that we have taken gentlemen of high character belonging to their own nation, presumably disposed to help them), undertook to cross-examine the witnesses that wehad cited. !Now, in the first place, let me say, when we take such men as Bevington, Poland, and the rest of them, and nobody could charge them I with being bribed or unduly influenced by the United States—when these gentlemen spontaneously made their depositions for us—these London furriers—the most eminent men in the business—when they say they can at once tell the difference between a Pribylof skin or an Alaska Skin, (which is the same thing), and a Commander Island skin—if that is true, they put their foot at once upon all question with regard to the t€ stimony in some respect, f Hei to page and th 230 of volume II ic Majesty's Gov- 3 Arbitrators will with which étions the testi and to caony that we had d. There was no nforming them of ORAL ARGUMENT OF FREDERIC inter-mingling or inter-mixture of blood It shews that the distinction is there, tl that it continues to exist; and the two h separate and distinct. I say our distingui to cross-examine these witnesses, and ôf < the methods which we would expect from and they think that they have shaken of these witnesses. Now this will be a sample—I am reft of the Appendix to the Counter-Case o ernment. These are all cross-examim see at the outset that these gentlemen, been fully furnished by us in our Case elicited from the witnesses, and upon ? objection to their putting leading ques the points which they desired to establish. Mr. Poland, on page 230 (after stating how long he had been a partner in the concern), says : As regards the difference between Copper and Alaskan skins, I have always considered that the chief difference was that Alaskan fur was a better quality that is to say, denser than the fur of the Copper Island seals. This is the difference which makes the Alaskan skins fetch more in the market than Copper skins. The difference in price is also, I think, influenced by the fact that the people responsible for slaughtering the animals on the Pribylof Islands are more successful and skilled in flaying, curing, and selecting, than the Copper Island people. That is simply his opinion, but he states the fact to be, without any hesitation or mitigation, that the difference which makes the Alaskan skin fetch more, is, that the fur is of a better quality, being denser than' the fur of the Copper Island seal, due, probably, to some climatic difference. Of course when we say that there is a difference between the Copper Island skin and the Alaskan skin, we must not lose sight of the fact that all these animals belong to the same genus or species, and that there must be very great resemblance between them. They are all seals; they are all fur-seals; they all belong to the general creation of seals; and the difference must of necessity be one such as this; none can be more important than the fineness or density of the fur. And if there were nothing else in the case—if nothing more were ■ proved than that the Alaskan skin of the Paris market or London market brought a much higher price than the Copper skin, would not that be of itself decisive of the question ? In order to produce a larger price it must be superior, and the superiority must naturally consist of the texture of the skin and the fur. But that is not all that this gentleman says even on his cross examination : there are also other differences between the Coppers and Alaskans, namely the difference in the color of the fur—the fur of the Coppers being, on the whole, of a more bronzy yellow color than the Alaska. Then there is this statement (and this, I suppose, if anything, is to be relied upon by the other side) : In inspecting the shipments made through Messrs. Lampson from the Pribiloff Islands, I have from time to time noticed the presence amongst them of skins which were undistinguishable from Copper Island skins, and also in the same way -•■ have degree resemble the other class. That is as far, I think, as any wit» sibly there may be a mixture; but yc • one single witness who will testify tha would call a Copper skin, in a consi| undertake ill observt s to , th go—th, tt there tPno8t ent of Ala ska a skins. They 340 ORAL ARGUMENT OF FREDERICK R. COUDERT, ESQ. say that they have found certain skins which touch each other—which approach each other—perhaps some of the poorer skins resembling better skins of the other; but I find no where in the Case—(and if I am wrong, when the time comes my friends may contradict me; I certainly mean to state the fact as I understand it)—that any witness is willing to place himself upon the fact, on his oath and on his honor, that he has found, in an Alaskan consignment, a skin which he would declare to be a Copper skin. The furthest he has ever gone is to say there are some which touch each other so closely that he would not like to state the difference with any certainty. We have the testimony of Mr. Eévillon. Mr. Eévillon has been examined, and I read from Mr. Eévillon's evidence on page 230 of the same volume. The President.—Is that the same deposition which is in your Appendix? He has also been examined by Mr. Vignaud. Mr. Coudert.—This is the cross-examination. After we submitted to our friends on the other side bur depositions, they availed themselves of the right to cross-examine. This is volume 2 of the Bering Sea Arbitration Appendix to the Counter Case. I do not want to comment upon the fact, but I think I am entitled to suggest to the learned Tribunal that this difference that they now speak of for the first time cannot have struck them as being very material since they did not mention it in depositions intended, of course, to enlighten the Court and to state the truth. They stated emphatically that they were able to distinguish the skins, that they could distinguish at all times an Alaska from a Copper skin, and vice versa; and, of course, they were in good faith when they made the statement, and it was only subsequently that, under cross examination, they were reminded that there might be instances in which the two skins were, in general appearance, brought so closely upon each other, that they might hesitate upon a distinction. So that it is fair to say that these gentlemen did not and could not in good faith attach much importance to that, or they would have called the attention of the United States in their depositions to the circumstance. I desire also in connection with this to draw the inference, which I think I am right in drawing from the fact, that many of these gentlemen, if not all, are easily and readily accessible, living in London and ready no doubt at the request of any of my learned friends to state all that they know, and yet none of these have been cross-examined. When. I say none of those, I mean none of those appearing here, because I do not know if they were cross examined or not, or whether their cross-examination was not sufficiently satisfactory to justify the Counsel on the other side in inserting the result among their papers. So that we have a number of witnesses actually proffered by us for cross-examination; we have the cross-examination only of a part, and that part merely goes to the extent of saying, which may very well be true without in the slightest degree impairing the position of the United States, that in some cases these animals belonging, as they do, to the same general family of the brute creation, bear such a resemblance to each other that taking a particular skin, on the verge of an extreme line it will resemble the skin of another branch of the same family on another line. But I find that no one of these gentlemen is willing to testify on his oath that he found a Copper skin in an Alaska- consignment. Senator Morgan.—Mr. Coudert, when you speak of Alaska con- • signments, do you mean that those are consignments made from the Pribilof Islands?, ORAL ARGUMENT OF FREDERICK R. COUDERT, ESQ. 341 Mr. Coudert.—Yes, I take it that applies to the North-West skins as well as to those of the Pribilof Islands. That is what, you will permit me to say, perhaps, in anticipation of the judgment, we call for the sake of convenience and the assertion of principle, our seals, and that comprises all the Alaska seals and the North-West catch. The President.—Are you aware which way the Eussian seal skins come to London. Do they intermingle at Victoria with theother seals? Mr. Coudert.—They all go to London. The President,—But which way? Mr. Coudert.—Through San Fraucisco most of them, if not all of them—they all find their way to London ; and there they are regularly sorted and dyed and dressed to suit the fashion of the day. The President.—Is there not a general market in Victoria? Are not the consignments made from there? Sir Eichard Webster.—No, they are shipped straight through. The President.—Direct? Lord Hannen.—Yes. The President.—There is no fear of their being mixed? Lord Hannen.—No, there is no possibility of that. Mr. Coudert.—No, I was reading from the testimony of Mr. Eévillon, and he is called upon to say that they do not buy by the sex of the animal whose skin is offered. Of course, we do not pretend that they do. That is a question that is not of the slightest consequence. What we say is, that the enormous bulk of skins, except these taken on our soil which contain no female skins, is made up of" female skins; therefore the point of this statement in the way of cross-examination, I confess I do not understand. But Mr. Eévillon is asked his opinion with regard to monopolies. I have no doubt he is a very intelligent gentleman, and possibly his opinion on monopolies, in an abstract way, may be of value. But what it has to do with this case, I do not know. At all events, I will, in justice to him—it is only a few lines,—read the question and answer. It is important as showing the lines upon which the witnesses have been cross-examined, the idea being to inculcate in them a dread that, if the United States were given a monopoly, their business and daily bread would disappear. Mr. Eévillon, however, was not so easily frightened : Would not the total suppression of all the pelagic sealing have the effect of giving the Company leasing the islands an absolute monopoly of the business in this class of sealsf—[A.] This might be so; I do not know. [2.] Well, assuming that that would be so, do you think that it would be a result that would be beneficial to the fur- seal business?—[A.] It depends how the monopoly is managed, but speaking generally I am against monopolies, and in favor of a free market. I think monopolief e the progress of b We may all agree to that; and I should be very sorry to suppose that, because we are arguing the United States have an exclusive right, we are for that reason bound to advocate monopolies. A monopoly, if it be one, is a result inevitable from the nature of things. But, as practical men, where would we look for evidence upon this subject, assuming that men differ? There is in fact very little difference; I do not think that this shade of difference in the depositions is worth considering; but where would the Tribunal look, where would a man whose business it was to deal with the finances of a country interested in this busines look to know'whether or not there was any, and, if so, what difference in the quality of the seals? He would have at his command a method of determining it which is absolutely certain ; to wit, the price; and if it be the fact that, on the market, the United 342 ORAL ARGUMENT OF FREDERICK R. COUDERT, ESQ. States seal-skins of Alaska always bring a very much larger price, not a mere passing, gentle fluctuation, but something radical, something recognized, something I would say phenomenal, then you would say, of course, there is a distinction,—that an Alaska skin is one thing and a Commander skin is another. Have we then proved this to the Court? The Court will be surprised to find what, the prices are. Of course, such of the Tribunal, if any, as have had occasion in Paris to buy them, will know there is nothing more expensive than a real "Peau d'Alaska"; but, apart from the experience which may be individual, isolated, exceptional and possibly misleading, what idea have we upon the subject of the market? Here, we read again, from volume 2, from which I have been reading largely, of that Appendix to our Case, page 572. Mr. Bice, a subject of Her Majesty, who has been engaged in this business for 27 years, says : That the difference between the several classes of skins are very marked, and enable anybody who is skilled in the business or accustomed to handling of fur seal skins to distinguish the skins of one class from the skins which belong to either of the other two classes and these differences are evidenced by the fact that the skins obtain different prices in the market. That the differences between the skins of the adult male seals and the adult female seals are as marked as the differences between the skins of the two sexes of other animals, and that in the Northwest catch from 85 to 90 per cent of the skins are of the female animal. Deponent does not mean to state that these figures are mathematically accurate, but they are, in his judgment, approximately exact. The difference between the Copper Island catch and the Northwest and Alaska catches, which two last-mentioned classes of skins of the fur-seal apparently belong to the same family, are such as to enable any person skilled in the business to distinguish the Coppers from the Northwest and Alaska skins, or what I may call the Behring Sea sealskins, but the manner in which the skins are distinguished is difficult to describe to any person not accustomed to handling skins. The difference again between the Alaska and Northwest catches, although as deponent has said they are of the same general family, are yet very marked by reason of the difference of the colour of the hair, the length of the wool, which is, of course, perceptible mainly upon examination of the pelts and of the fact that the female skins show the marks of the breast. . The differences between the three classes of skins above mentioned are so marked that the skins belonging to the three catches have always, since deponent had any knowledge of the business, that is for 27 years, commanded, and do now command, different prices in the markets; for instance, the Alaska skins of the last year's catch fetched about 125s. per skin ; the Copper skins of the last year's catch fetched 68s. 6d. per skin. And that difference is not the difference of a year, which might be explained upon the ground of scarcity, or over-abundance, or glut in the market; but it is the general difference. What is the use of dwelling upon or discussing the question whether they are the same after this? Here is another of the same kind, Mr. Stamp, I read from volume 2, page 574. This is Mr. William Charles Blatspiel Stamp. He is a furrier 51 years of age, and a subject of Her Majesty; he says that he is' engaged in business at 28 Knightrider Street, London, E.-C. as a fur and skin merchant. That he has been engaged in that business for upwards of thirty years and has been in the habit of purchasing fur-seal skins during the whole of the time that he has been in business. That he has personally handled many thousands of such fur-seal skins and he has inspected the samples at practically every sale of fur- skins made in London during the whole of the time he has been in business. Surely this man has experience, and when we present him to the Court and show that he has been cross-examined, we feel that we have done our duty to the Court in the selection at least of the material that we furnish. ORAL ARC . COUDERT, ESQ He then proceeds and I shall read wh The skins of these several catches are readilj upon the poi although it may not be directly lining, this is material and very tlea eof i ild not b irpnsed icluded within the i " inclined Senator Morgan.—That North-West catch is the pelagic catch. Mr. Coudert.—Yes, it is distinguished from the Alaska product in that way, when it is spoken of in this connection, but the seals are in fact the same seals. The President.—Yet there is a difference in price. Mr. Coudert.—Yes, there is this difference between the skins of the animals killed on our islands and the pelagic catch, that is, ours are slain without wounds; the animal is knocked on the head and is easily killed in that way. Sir Charles Eussell.—And not shot in the skin? Mr. Coudert.—The others are shot with a shot gun, and the skin is often riddled with the shot, and a great destruction of the beauty of the skin necessarily follows. In the Copper Islands the same process is wed bj as I thi 3 the idi ried f Islands; but lied with shot lown that it is We adopted the E z, with certain improvements, on the Prib i thing—when an Alaska skin is found r ander skin is found riddled with shot, it is the result of pelagic hunting. Now, to come back to a point from which I had somewhat deviated: as to the price. I was calling the attention of the Court to the difference between the skins, and reading from the deposition of Mr. Stamp. His deposition was so interesting and important in another aspect of the case, that I allowed myself to be tempted into reading it for the purpose of showing the enormous number of females in the pelagic catch. It is irrelevant to the point under discussion, but I take the opportunity of giving the Court the evidence. As to the difference in price, let me, in connection with this, repeat the important statement that the seals on the Commander Islands are treated and killed in the same way, so that, if there is any large, material, overwhelming, difference, it must, of course, be due to the innate quality of the Alaskan skin, and the real inferiority of the Commander Islands skin. In fact, as General Foster reminds me, and as the evi- de j the s on both side! eway. id it a the at i ed 1 it is • to r did it pra ithe 344 ORAL ARGUMENT OF FREDERICK R. COUDERT, ESQ. The President.—Up to 1890? Mr. Coudert.—Up to 1890. The President.—They were American lessees? Mr. Coudert.—Yes, it was a Corporation. The President.—But they have disagreed or broken their arrangement with Eussia? Mr. Coudert.—I think not. The lease expired, and that is all. The President.—And has not been renewed. You stated yesterday that it is a Eussian Company. It is a separate, independent Eussian Company, is it not? Mr. Coudert.—Yes, there is a Eussian Company, the Company that operated both places. When the lease expired, a new lease was made with other parties on the Pribylof Islands, and the Eussians have taken another Company. « The President.—The American lessees are not the same? Mr. Coudert.—No, it is a new Company. The President.—Are you aware the old Company ever complained of pelagic sealing on the Eussian side? Mr. Coudert.—I think not; I think Eussia took care there should be no cause of complaint. Sir Charles Eussell.—Oh ! no. Mr. Coudert.—Till lately, of course, when the pelagic sealing was prevented on our side because the United States vindicated its right by stopping the ships; there is no doubt about that. Then I understand the efforts of the pelagic sealers took a westward direction, and the Commander Island seals suffered in consequence. It was only when we stopped it in 1891. The President.—The Copper seals would be mixed pelagic and territorial seals to-day, if there is pelagic sealing carried on on the Eussian side, westward—I would infer from that, that the skins from the Copper islands or Eussian islands, if those seals would be both from pelagic sealing and from sealing on land, would be mixed. If there is pelagic sealing carried on on that side, if that herd is subject to being hunted on sea, there must.be pelagic sealing skins. Sir Charles Eussell.—I think, Mr. President, we might remove a possible misapprehension about that. There can be no difference between us. There would be no mixture in the Market even in the case of seals pursued in the more western part of Bering Sea or North Pacific, because the pelagic sealing would not be carried on by the same persons who carried on the land clubbing on the Commander Islands. They would be sold distinct. Those who are lessees and in charge of the Commander Islands did not practise pelagic slaughter, and the skins of those killed on land would not be mixed with those of the pelagic catch. The President.—But do they come as Copper island skins, or only the other ones ? Sir Charles Eussell.—They would come as the North West catch. iThe President.—That is the question, you know. Mr. Coudert.-^-I understand that those killed by the pelagic operators on the other side of the Pacific Ocean go as the Japan catch. Sir Eichard Webster.—That is quite wrong. The President.—That is why we desire information. Mr. Phelps.—You will find in the affidavits of the London furriers a complete account of the manner in which this business is done. It is only necessary to recur to that testimony to show how the skins reach the London market—to find out how it is done. ORAL ARGUMENT OF FREDERICK R. COUDERT, ESQ. 345 Mr. Coudert.—And that is what I propose to read to the learned Court. As to the question the President put, the Commander Island skins are the same, whether killed at sea or on land. There is no doubt about that. I understand that those killed at sea on the western side of the Pacific Ocean go to the market as the Japan catch. Sir Charles Eussell.—No, that is not so. Mr. Phelps.—They go as the Copper or Commander Islands catch. Mr. Coudert.—Well, I will read the evidence on that. I am indebted to the President for having relieved the monotony of this Argument by throwing a brand of discord among us. The President.—I wish to clear it up. Mr. Coudert.—It is extremely refreshing to me. I do not know if it is to the Court, but it cannot be otherwise. I have just read to the High Tribunal the cross examination of Mr. Stamp. I will have in mind the question put, and see what the fact is with regard to that. Mr. Justice Harlan.—Have you read all of that Deposition that you want to read ? Mr. Coudert.—No; I have not. I am thankful to Mr. Justice Harlan for calling my attention to it. This is what this expert says : °P3I ge of furs, nr between ties of the aces in the the ski I that they ns. I have inent.fr st year 3 siiillin om my own s catch, for n; for the This corroborates what I have already read, and emphasizes the point I want to make that although the difference in price between a mutilated skin, the skin of 'an animal riddled with shot, and that of one killed as we kill it on the islands, is plain and easily accounted for, yet when you find that the same company, using the same methods and dealing with an animal of the same general genus or species, when you find the product of the industry is so different that in one case the skin brings 125s, and in the other about one half, then the difference in the thing itself is so manifest and so great that it cannot be whittled away and minimised by any pretence that there is an intermixture. Now with regard to the witnesses who have been cross-examined, before I abandon this subject, I desire to read from the Appendix to the British Case volume 2 pp. 230 to 253—you will find there the testimony. I will take the substance of it and state what the result is. I take one single declaration which is concurred in by a very large number—27 I think—of these witnesses. We have such witnesses as Mr. Eichard Henry Poland, William Henry Smith, Thomas Ince, Sydney Poland,—I think I may say that we have the prominent men in that trade in London and this is a declaration on cross examination which many of them make. This is a condensation, almost the very words, but you have to read from 230 to 253 to verify the accuracy of my summing up. That the fui 346 ORAL ARGUMENT OF FREDERICK R. COUDERT, ESQ. This statement, I say, is subscribed to by 27 London furriers, and this is the comparison between the two classes of skins, in these respective jurisdictions under the control of the same party. I now, with the permission of the Court, will say to my learned friends on the other side, if they wish to follow me, I am reading from the Argument of the United States on page 244. This is the testimony of Mr. Alfred Praser. It is taken from the United States second volume, but it is quoted verbatim here, and my learned friends will probably not care to examine the book. If they do, it is on pages 554 to 558. It is the testimony of Mr. Alfred Praser who is a subject of Her Britannic Majesty, and resides in the city of Brooklyn. He is a man of very large experience. He was connected with this business, and he says, which seems hardly credible, that many hundred thousand.skins passed physically through his hands, that is the skins, he says, sold by C. M. Lampson and Co, of which large firm he was a member. He adds: Deponent is further of the opinion, from his long observation and handling of the skins of the several catches, that the skins of the Alaska and Copper catches are readily distinguishable from each other, and that the herds from which such skins are obtained do not, in fact intermingle with each other because the skins classified under the head of Copper catch are not found among the consignments of skins received from the Alaska catch and vice versa. It is hardly possible that this man who had "hundreds of thousands of skins" going through his hands would have permitted such a pher nomenon to escape his attention as that which indicated a commixture of the herds. • Deponent further says that the distinction between the skins of the several catches is so marked that in his judgment he would, for instance have had no difficulty, had there been included among 100,000 skins in the Alaska catch 1,000 skins of the Copper catch, in distinguishing the 1,000 Copper skins and separating them from the 99,000 Alaska skins, or that any other person with equal or less experience in the handling of skins, would be equally able to distinguish them. And in the same way deponent thiuks, from his own personal experience in handling skins that he would have no difficulty whatever in separating the skins of the Northwest catch from the skins of the Alaska catch. This is one of the questions that was suggested a moment ago by one of the learned Arbitrators. I would therefore call attention especially to this : i separating the skins of the North West Lord Hannen.—Will you allow me to put a question to you? Mr. Coudert.—I wish you would. Lord Hannen.—I observe that Bévillion Prères say that they never buy or sell by sex. It is never mentioned in any sale catalogue. " We buy lots which are made up according to sizes," etc. Are there any witnesses to whom you can refer me, who appear to have had the duty in the course of their business, I mean, of ascertaining to what sex the skins belong? Of course we have a number of statements, varying largely. Some of the statements go to as high as 90 per cent of females. Mr. Coudert.—Yes, sir; even 95 per cent. Lord Hannen.—I want to know upon what basis that is determined. Mr. Coudert.—There is abundant testimony, overwhelming testimony. Now, if your Lordship asks me whether there is any witness whose duty it is, in connection with the business, specially to declare what the proportion of the sexes is, I will not be able to name such a a witness. Lord Hannen.—Or whose business it is to observe it—what man's duty it is to observe whether a skin is a male or a female skin? ORAL ARGUMENT OF FREDERICK R. COUDERT, ESQ. 347 Mr. Coudert.—In the first place, you will observe, when they come from the Islands, they are all males; there are no female skins. Lord Hannen.—No; I am dealing with the other. Mr. Coudert.—When they come from the other sources, they say that they observe—naturally, in taking so important an article of commerce, and one of such value, they observe all its characteristics. Lord Hannen.—I wanted you to distinguish, if you can, between Eévillon frères, who say that they... " Mr. Coudert.—They do not buy by sex. The female skin is always a good skin of itself, and there is no distinction when skins are sold and bought. If a merchant goes to buy skins, he does not ask for female skins or for male skins; but these witnesses all say that when they examine the skins, the evidence of the sex is such that they determine it at once; and when it comes to the pelagic question... The President.—No, they do not all say that. That depends on the stage of the process. When the skins are salted and prepared, they cannot distinguish the sex. Some of them have said that. I think Eévillon has said that. Senator Morgan.—Mr. Coudert, do I understand you to say that there is any testimony in this Case to the effect that after a skin has been salted and prepared for market, there is no further opportunity for distinguishing the sex? Mr. Coudert.—Oh no, Sir. On the contrary, it can always be distinguished. Senator Morgan.—I understood the learned President to say that was his understanding. The President.—Yes, I distinctly understand that. I think the British Commissioners admit that, and state it. Lord Hannen.—The point of my question is this: I wanted to see whether at any stage of the process, from killing to selling in the market, any man's attention is necessarily drawn to the question of sex. Mr. Coudert.—Let me read, directly in answer to Lord Hannen's question, from volume 2 of the Appendix to Her Majesty's Counter- Case, page 232. This is one of their witnesses; and let me observe that this is to meet our testimony, that the female catch represented 90 or 95 per cent. One witness, Grebnitzky, I think, says it is 95 per cent; but in order to meet this—and this will be an answer to the Arbitrator's question—our friends on the other side produced witnesses to minimize the proportion; and Mr. Moxon, of the firm of Culverwell, Brooks and Company, is called and sworn, and he says in answer to one of these questions : Q. Have you, with the view to informing yourself on ined any consignments of north-west seal skins?—A. Yes This is in answer to Lord Hannen's question. I went carefully through a parcel of 2,000, and came to the conclusion that the percentage of females did not exceed 75 per cent at the most. Now, here is a man; an expert— Sir Charles Eussell.—Will you kindly read the question immediately before that. Mr. Coudert.-—Yes sir: Q Have you ever had to consider the proportion of females in the north-west catch?—A. Not until this question arose, because prior to that no distinction was ever made, either in buying skins or in selling them. They are simply sorted m quality and size, and not for the question of sex. 348 ORAL ARGUMENT OF FREDERICK R. COUDEKT, ESQ. But he had been prepared to give his testimony to minimize the force of ours, and he did for the first time corroborate our testimony to the extent that it was at least 75 per cent. The President.—But in fact, you have not answered Lord Hannen's question, you know. I suppose you cannot. Perhaps nobody can. Mr. Coudert.—If nobody can, I am sure I cannot, Mr. President; but I would not like to make such an admission, and I am sure you would not expect me, even by my silence, to admit that you can put any question on this subject that I cannot answer. I will say this: I propose to show by testimony, which I take to be overwhelming, that witnesses in this case have in handling these skins, physically, as Mr. Moxon says, considered the question of sex, and that they are able to testify that a certain proportion in every consignment consisted of female skins. Now, if you ask me whether in the innermost machinery of the business there is an individual whose office and function it is to pass upon the sex of the animal. . . Lord. Hannen.—No, no—anyone who, in the course of his business, would find it necessary to decide the question of sex. Mr. Coudert.—I would answer it in this way, even if it should be an imperfect answer: These skins, of course are costly and valuable. They are thoroughly examined. Their condition has to be examined, and in many cases they have to be repaired—perhaps in almost every case, to a greater or less extent; and in examining them, the question of sex presents itself to the examiner. An experienced examiner will tell you just how many of each sex there are; and perhaps—that is a mere hypothesis—this has become more marked of late years for this reason, that the number of female skins in the market is only a recent product. Until recently there were no female skins. It was only about 1876,1878,1879,1880 and 1881 that this business began and took its progression, that the three ships grew into fifty, and the fifty into a hundred; and naturally these men examining the skins would observe the sex. They could not help it. Even if I am unable to give a definite answer to the enquiry, may I not satisfy the conscience of the Court, when I produce credible witnesses who say, " We did examine and we know" ; even if I cannot dive into their motive; if I cannot show that it was a part of their particular function in the business; if I produce men of standing and character who say, "I have examined one hundred thousand skins, and there were only five thousand males" ; shall I not satisfy the Court upon this question, assuming that I shall produce such testimony? The President.—I suppose those are mostly sealers? Mr. Coudert.—Furriers, sir. I dismiss the sealers. The President.—Will you just allow me to read an extract from Eévillon. Eévillon says: That all the skins bought by the said firm of Révillon Frères are dyed in France, and therefore the skins pass under our eyes in the following conditions : (1) in salt when we buy them in London; (2) dressed; (3) dyed. That deponent believes that the firm of Révillon Frères is by far the largest firm of furriers and fur-dealers in France; that the greater part of the skins bought by Révillon Frères are made up into garments, cloaks and mantles, but that some of the skins after having been dyed are sold to other manufacturers. That the sales of sealskius by the said firm of Révillon Frères have amounted for the last twenty years to about 4,000,000 francs per year. He knows the skins as they are in these three conditions,—in the very condition of salt when they come from London. He proceeds: That later on, from the year 1878, we have noticed in the London market sealskins called Victoria or Northwest coast skins, the quantity of which is variable, but ORAL ARGUMENT OF FREDERICK R. COUDERT, ESQ. 349 which has continually increased until last year, when the total quantity was held at 80,000 skins. That is the only approximation we have... That we have often heard, and from different sources, that these last named skins are in the majority the skins of the female seal. The thinness of the hair upon the flanks seems to confirm this assertion, although it is impossible for us to test the absolute truth of this statement for ourselves, for when the seals have been dressed the sipns of the mammas disappear. At any rate the employment of these skins is much less advantageous to our business because there is a great predominance of small skins, etc. There is a man who has had 400,000 seal skins passing through his hands in twenty years, and who has received them in three different conditions, first, in salt, when he buys them from London: and yet he says it is impossible to distinguish the sex. Mr. Coudert.—I am quite aware, Mr. President, that Mr. Eévillon made that statement. The President.—Perhaps it is contradicted by others? Mr. Coudert.—I have tried to reconcile it with the other testimony; and it may be that Mr. Eévillon is not as strong upon this point as others, although his opinion is that there was this large proportion of female skins. It may be that he, being the head of the firm, attending perhaps to the sales, had not given it the attention that others had. But I say now, and I shall to-morrow morning produce before you such an array of witnesses that I think I can say with confidence that no doubt will be left upon the question, whether experts can distinguish ; that the other side, in the British Commissioners' Eeport, admits that it may be done, and that these men all say that they have done it, and. ' that their testimony is uncontradicted in the Case. This, with the permission of the Tribunal, I shall take up to-morrow morning. Mr. Justice Harlan.—I was going to ask you whether there is any proof bearing on the question as to the ability to distinguish the sex, according to the time when they are delivered to the furriers. I notice that the gentleman whose deposition was just read by the President says that it is difficult to determine the sex after the skins have been dressed. Is not the sex more easily distinguished before they are dressed ? Mr. Coudert.—Yes, sir. There is abundant testimony upon that; and with the permission of the Arbitrator, I think it would be more coherent if I addressed myself to the whole of it together. I have endeavored, so far as I was able, to answer the questions of the Arbitrators and have been obliged to deflect a little from the ordinary course; but I can assure the High Court of Arbitration that I appreciate the importance of this point. It is one upon which we rely and we are very confident, respectfully confident that the character and amount of testimony that we produce is such as to leave no question on the subject. Senator Morgan.—Mr. Coudert, at the time the question was put to you by Lord Hannen, some half an hour ago I think it was, since which there has been a discussion or examination of this question, you were reading a part of the record here and had not completed it. Will you be good enough to complete it. Mr. Coudert.—I will, sir. I have gone very far from my starting point: but the discussion was interesting and I hope I have to some extent been able to answer the questions. Lord Hannen.—I am very sorry if I have deflected you from your argument. 350 ORAL ARGUMENT OF FREDERICK R. COUDERT, ESQ. Mr. Coudert.—Deflection, sir, is refreshing; and I always consider it a personal favor when one of the Arbitrators does me the honor to interrupt me. The President.—We have favored you to-day in that way. Mr. Coudert.—Not more than you should, and not more than I like. Something was said about the fur-seal skin industry, and some questions were asked by the learned Arbitrators upon that subject. It may be interesting to read one single deposition to know what the general nature of this industry is, how it is conducted and what its particular elements may be ; and we do now as we did before, take the best information it is possible to get and go to the highest and best sources. Certainly, whatever comments our friends may make as to our views of the case, they cannot complain that we have not taken from among themselves men of the highest character. Take for instance Sir George Lampson, Baronet, on page 565 of the second volume of the Appendix to the Case of the United States. He has been engaged in this business for a long time. His father was engaged in the business before him. The house is sixty years old, at least. I read from paragraph 4. The whole would be interesting, but it would take too much of the time of the Tribunal: (4) Deponent says that what may be described as the fur-skin business has been built up, that is the product, the fur-seal skins, have been made an article of fashion and commerce, and the sales of such skins largely increased and the methods of dressing and dyeing the same have been perfected almost entirely through the influence and joint endeavors of the Alaska Commercial Company, the North American Commercial Company, the Russian Seal Skin Company, deponent's own firm, and . the firm of C. W. Martin and Sons, and their predecessors in the city of London. That the business at the present time has attained the rank of an important industry, in which there is embarked in the city of London a large amount of capital and'upon which there is, dependent a large number of workmen and employés. The amount of capital from time to time invested in the business is correctly stated, deponent believes, by Mr. Teichmann, at as much as £1,000,000, and until within a year or two the numbers of persons depending upon the industry for their support has likewise been correctly stated by Mr. Teichmann, approximately at 2,000 persons, receiving on an average a weekly wage of 30 shillings, and most of them having families dependent upon their labors for their support. During the last two years the diminution and irregularity of the supply of fur and seal skins has caused some decrease in the amount of persons engaged in the industry, but deponent is not able to state exactly to what extent such decrease has taken place. A considerable number of the persons employed in this business, as deponent is informed, are not skilled in any other kind of business, and should the fur-seal industry cease, deponent believes that these persons would be obliged to master some other trade or means of livelihood. That one of the most important, and deponent feels justified in saying, vital elements in the maintenance and preservation Of the business or industry is that the supply of fur-seal skins should be regular and constant so that intending buyers may be able to know beforehand approximately what the prices of their stock in trade are going to be, and that the people engaged in the business may have beforehand a reasonably definite notion of what they shall be able to count upon. (5) Deponent has no doubt but that it is necessary in order to maintain the industry that steps should be taken to preserve the existence of the seal herd in the North Pacific Ocean and Behring Sea from the fate which has overtaken the herds in the South Seas. Of the steps, if any, which are necessary, in order to accomplish this result, deponent does not feel that he is in a position to state as he has no personal knowledge of the regulations which at the present time exist, but it is obvious to deponent's mind that regulations of some kind imposed by somebody who has authority and power to enforce them are necessary to prevent the rookeries in the North Pacific Ocean from suffering the fate of the rookeries in the Southern Atlantic and Pacific seas, where deponent is informed no restrictions were at any time even attempted to be imposed. This is the language of Sir George Lampson, under date of April 23, 1892; and I may say in that connection, in order to show the enormous. ORAL ARGUMENT OF FREDERICK R. COUDERT, ESQ. 351 experience that must necessarily have been acquired by these gentlemen, that they have sold four-fifths of all the skins sold in London since the year 1870. It is almost a monopoly of that business for the last twenty years; and if there is any source of information to which we can resort with a hope of being satisfied, it must certainly be here. The next proposition of fact is one which is admitted, I think, and therefore I shall not offer any proof upon the subject, viz, that the herd returns to the islands. Then the bulls and cows go to the breeding grounds, the non-breeding males to the hauling grounds. Upon this, as those expressions are constantly used in the Case, perhaps a brief explanation would be well to show the court what the difference is between the breeding and the hauling grounds. Those of the honorable Arbitrators who have not examined the question, will be curious perhaps to see, and interested to learn how the instinct of these animals guides them to make their respective homes on their general abode. 1 am reading from the Case of the United States, at page 91, where it is said : The "breeding grounds" or "breeding rookeries" (the areas occupied by the breeding seals aud their offspring—that is the bulls, the cows and the pups)... are rocky areas along the water's edge, covered with broken pieces of lava of various sizes and shapes, those nearest the sea having been rounded by the action of the waves and the ice; between the rocks are sometimes found smooth spaces of ground, but in no case are these areas of any extent, and they vary greatly in size. So strong is the instinct, so imperative the necessity of obedience to that instinct that, as I have already read, these animals not only go back to the island and to the same general locality, but the bulls in many instances have been found—the same bulls—to take precisely the same spot. That is for the breeding grounds. The hauling grounds are thus spoken of in our Case: The "hauling grounds" (areas occupied by the non breeding seals) are the sandy beaches at one side of the breeding grounds, or the smoother spaces back of and contiguous to the breeding.seals. The areas covered by the rookeries on the respective islands vary considerably, being in the ratio of about seven or eight on St. Paul to one on St. George. It has appeared all through the Case that St. George was smaller than St. Paul, and that there was a very much smaller number of seals on it. St. Paul is lower than St. George, the shores are broader, and more territory is available upon it for occupation by seals than on the latter, which accounts in a measure for the disproportion in seal population on the two islands. I will not dwell upon this any further. We also state, and that proposition is not disputed, that the fur-seal is a polygamous animal. I would read in connection with this but three or four lines from the report of the British Commissioners, in section 37, on page 7. Among the first of the more stringent measures adopted was the restriction of killing to" males. That is, measures or regulations adopted on the islands. Let me, however, preface this by saying that when the United States bought from Eussia, this industry, established by Eussia and carried on by her, was intelligently carried on with a due discrimination as to sex. We introduced no innovation, except that we sought to improve the methods already in operation, partly by elevating the character of the residents in the place, and partly by such additional regulations for the protection of seal life as might be suggested. 352 ORAL ARGUMENT OF FREDERICK R. COUDERT, ESQ. The British Commissioners say : Among the first of the more stringent measures adopted was the restriction of killing to males, which followed from the discovery that a much larger number of males were born than were actually required for service on the breeding rookeries. This was the great secret. Until it was discovered and put into effect the secret of cultivating the seal was not ascertained; so long as it was overlooked, the fundamental dictates and laws of nature Avere disregarded. Where the attack was indiscriminate the result was obvious. But the Bussians soon discovered this, and long before the United States came into power through the purchase of the islands., the killing was confined to the young male seals. I do not care to go into the discussion of the number of the females in the family of the seal. There is much discussion as to that which seems to me unnecessary, nor is it very material whether it is 15, 20 or 25, whether it is 40 or 50. There is evidence upon this all through the Case. The British Commissioners state certain figures, and they rely upon the British Cyclopaedia, which was printed fifty years ago, to state that according to the ordinary and general rule, the family consisted of one male and 40, 50 and even 60 females. But it is not important when we recollect that the seal is a polygamous animal, and that a large number of females go with every single male; this makes at once the obvious necessity of a discrimination. To kill a female, under those circumstances, is a crime. I say, therefore, I will not dwell upon that subject of the average number in the family. I do not consider it is material, as the facts are plainly shown that there is a sufficient number of males for the females. I spoke of the breeding rookeries and the hauling grounds, and read from the Case in order to show a distinction between those two; but it is proper for an understanding of the methods of these animals, at their home on these islands, to say that the distinction disappears at a certain period of the year. They come there, as appears, alternately, the bulls coming first and remaining on the rookeries waiting patiently for weeks without food ; then they come in rotation. But there is a general mixture of the family about the end of July and then the distinction between the breeding grounds and the hauling grounds is broken up; and the severe line of demarcation between the older members of the household and the younger members disappears. Then many of the larger ones which we have called the bachelors—that is the name under which they are known—are allowed to mingle with the other animals, the older ones, the mothers, the cows and the rest of them. The hauling place after this presents a confused appearance. The nice lines of demarcation have been obliterated. The male seal when six or seven years of age goes upon the breeding grounds. You will remember that the seals are killed on the island up to the age of five or six years. After this they enter the breeding grounds. Soon after giving birth to her young the cow goes out to sea in search of food. I will read briefly from the United States Case upon this, because the distance to which the cow goes for food may be an important element of consideration. Perhaps the learned members of the High Tribunal will remember that Mr. Carter adverted to the remedies suggested by the British Commissioners for the exhaustion—the threatened exhaustion—of the race, and it appears that these gentlemen thought they were making a valuable suggestion when they said that there might be a protected zone of twenty miles, subject to a gradual increase upon the United States agreeing to suspend the killing or to ORAL ARGUMENT OF FREDERICK R. COUDERT, ESQ. 353 limit it by ten thousand. It is important to note how far the cows go out to feed for two reasons : In the first place to note how likely it is that the pelagic sealers will find a nursing cow when they are outside of 20, 30, 40 or a hundred miles ; because that is a most material consideration; and in the second place to determine whether the suggestion of a twenty mile zone deserves even passing attention. Now I read from the Case, page 115. Necessarily after a few days of nursing her pup the cow is compelled to seek food in order to provide sufficient nourishment for her offspring. Soon after coition she leaves the pup on the rookery and goes into the sea, and as the pup gets older and stronger these excursions lengthen accordingly until she is sometimes absent from the rookeries for a week at a time. This is what the learned President spoke of as the process of weaning. It is gradual. The food of all classes of fur-seals consists of squids, fishes, crustaceans, and molluscs, but squids seem to be their principal diet, showing the seals are surface feeders. On account of the number of seals on the islands fish are very scarce in the neighboring waters ; this necessitates the cow going many miles in search of her food. And now is the important statement as to the distances : They undoubtedly go often from one hundred to two hundred miles from the rookeries on these feeding excursions. This fact is borne out by the testimony of many experienced sealers, who have taken nursing females a hundred miles and over from the islands, and Capt. Olsen, of the steam schooner Anna Beck, states through the Victoria Daily Colonist, of August 6,1887 Cwhich is published in the British Blue Book, 1890, C-6131, p. 84), that anyone who knows anything of sealing is aware that >s of the shore) is This may explain why that twenty mile zone was adopted by the Commissioners : They are caught all the way from between twenty and one hundred and fifty miles off the land. Capt. Dyer, of the seized sealing schooner Alfred Adams, confirmed the above statement. The Tribunal thereupon adjourned until Friday, May 5, at 11:30 a. m. B s, pt xn 23 EIGHTEENTH DAY, MAY 5th, 1893. Mr. Coudert.—I propose, with the permission of the learned President and the Court, to resume the reading of extracts from the United States Case on page 115. The extracts that I shall read are on very important topics, and the statements are very clear and very terse. This is now as to the habits of the cows and the excursions that they make when they are feeding and so on. Necessarily after a few days of nursing her pup the cow is compelled to seek food in order to provide sufficient nourishment for her offspring. Soon after coition she leaves the pup on the rookery and goes into the sea, and as the pup gets older and stronger these excursions lengthen accordingly until she is sometimes absent from the rookeries for a week at a time. The food of all classes of fur-seals consists of squids, fishes, crustaceans and molluscs, but squids seem to be their principal diet, showing the seals are surface feeders. On account of the number of seals on the islands fish are very scarce in the neighbouring waters ; this necessitates the cow going many miles in search of her They undoubtedly go often from one hundred to two hundred miles from the rookeries on these feeding excursions. This fact is borne out by the testimony of many experienced sealers, who have taken nursing females a hundred miles and over from the islands, and Captain Olsen, of the steam schooner Anna Beck, states, through the Victoria Daily Colonist, of August 6th, 1887 (which is published in the British Blue Book, 1890, C-6131, page 84), that anyone who knows anything of sealing is aware that such a charge (catching seals in Alaskan waters within three leagues of the shore) is ridiculous, as we never look for seals within 20 miles of shore. They are caught all the way from between 20 and 150 miles off the land. Captain Dyer, of the seized sealing schooner Alfred Adams, confirmed the above statement by saying : " We had never taken a seal within 60 miles of Unalaska, nor nearer St. Paul than 60 miles south of it."—Among the depositions taken before Mr. A. R. Milne, collector of customs of the port of Victoria, British Columbia, several of the deponents give testimony as to the usual sealing distance from the Pribilof Islands while in Behring Sea. Captain William Petit, present master and part owner of the steamer Mischief, gives such distance as from 60 to 100 miles, and states that seals are found all along that distance from land in large numbers. ' Captain Wentworth Evelyn Baker, master of the Canadian schooner C. R. Tupper, and formerly master of the schooner Viva, says that the distance, from land was, from thirty to one hundred miles, usually sixty miles. And Captain William Cox, master of the schooner Sapphire, places the principal hunting ground at one hundred miles from the islands of St. George and St. Paul. Captain L. G. Shepard, of the United States Revenue Marine, who seized several vessels while sealing in Behring Sea in 1887 and 1889, states, "I have seen the milk come from the carcasses of dead females lying on the decks of sealing vessels which were more than a hundred miles from the Pribilof Islands !" He further adds that he 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 also that the majority of the seals taken in Behring Sea are secured at over one hundred miles from the Pribilof Islands. The distance that the seals wander from the islands during the summer in their search for food is clearly shown by the " Seal Chart" compiled from the observations of the American cruisers during their cruises in Behring Sea in July, August and September, 1891. That Chart will be found in the volume of portfolios and maps. The great distance of the feeding grounds 'from the islands is not remarkable, as the seals are very rapid swimmers and possess great endurance. Thomas Mowat Esquire, inspector of fisheries for British Columbia, in the annual report of the Department of Fisheries of the Dominion of Canada (1886), at page 267, makes the ORAL ARGUMENT OF FREDERICK R. COUDERT, ESQ. 355 following statement, which corroborates the foregoing: Captain Donald McLean, one of our most successful sealing captains, and one of the first to enter into the business of tracking seals from California to Behring Sea, informs me he has known bands of seals to travel one hundred to two hundred miles a day, feeding and sleeping during a portion, of this time. Captain Bryant, with long experience as master mariner of a whaling vessel, states that he is convinced that a seal can swim more rapidly than any species offish, and that a female could leave the islands, go to the fishing grounds a hundred miles distant and easily return the same day. But in case these excursions consumed a longer time, the peculiar physical economy of the pup seal makes it possible for it to exist several days without nourishment. Now let me, before passing to any other subject, call the attention of the Court to the enormous amount of valuable information contained in those few brief extracts, and to assure the Court, as the Court may readily satisfy itself, that every one of these statements is substantiated not only on its face, as I have shown, but also by a large mass of independent testimony which it is impossible to discredit; you there have most important facts bearing on some of the vital questions in the case. You will understand now how it is that these nursing mothers are killed 150 miles from the land, or even more, as they are full of milk, and how it is that the unfortunate pups at home are killed by starvation. You will also understand that it is difficult for the Counsel of the United States to speak with becoming patience of the scheme proposed by the British Commissioners when they propose to establish a protective zone of 20 miles about the islands, when it is manifest that this would be absolutely useless, for the destructive process only begins beyond that line and it is simply the semblance of granting something while really extending the privileges of pelagic sealing. You will certainly find that no pelagic sealer, however zealous in the practice of his so called industry will object to that scheme. He does not come within the 20 miles nor catch any seals within that zone. The facts stated here that there is this large number of seals constantly upon the land, explains the scarcity of fish, and it is also apparent that there are feeding grounds, that is, places where enormous masses of fish congregate and to which «the seals resort. When I say seals, I mean, of course, only female seals, because the males, the bulls, never leave the islands. The young animals stay around the islands, disporting themselves in the water and getting such food as they may, but the mothers, under the strong impetus of nature's law which tells them that they must feed their young by feeding themselves, first go with their enormous facilities of locomotion,—I might say unparalleled facilities of locomotion,—to these feeding grounds which they know, and there they are pursued, they are slaughtered. Hence the overwhelming preponderance of pelagic destruction is among The President.—Is there any evidence that those feeding grounds are known—that they are located in some particular place? Mr. Coudert.—There is this evidence, as stated.in the book, that there are feeding grounds and that the seals congregate there; they are found there in great masses. The President.—Are they certain points which are known, and of which the latitude and longitude may be described? Mr. Coudert.—It is difficult to fix the locality exactly on the sea, but they say, and the evidence is abundant, that there are feeding grounds 60 miles and 100 miles from the islands, to which these mother seals resort in great numbers, and, of course, they are pursued there and slaughtered. . . Sir Charles Eussell.—Will my learned friend point to any evidence that locates these feeding grounds? 356 ORAL ARGUMENT OF FREDERICK R. COUDERT, ESQ. Mr. Coudert.—I cannot locate them' but I say that there is testimony the feeding grounds are 60 miles and 100 miles off. Senator Morgan.—I understand the testimony to show that the feeding grounds change, that the fishes congregate at one place one year, and at another place another year. Mr. Coudert.—And that they are at great distances from the island, the seals congregate for the purposes of food and are found there in great numbers, and it is the only way in which you can explain it. There is nothing else. The President.—Do you think those feeding grounds might, be excepted by establishing a zone? Mr. Coudert.—No, they are too variable. Of course, they change. The President.—That was the purport of the question of my learned friend. Mr. Coudert.—They change, and it is stated in the case that there are feeding grounds to which these animals resort at a great distance from the islands and it is a mockery to talk of restricting the zone to 20 miles. The President.—I would like to ask if there is any evidence that these seals met at such a distance from the Pribilof Islands are always seals wandering from the islands or may they be seals swarming towards the islands. Mr. Coudert.—No, they are our seals. That is conceded in this way : the British Commissioners themselves say (and, as I have said, the value of a concession from them is great—I conceive it to be even more valuable than one from my learned friend, Sir Charles Bussell)— they say, certain females in milk are caught at great distances and therefore, presumably, from the Pribilof Islands. There is no pretence that there are any others there, and it is a fact in the case (I am not talking now of disputed facts) that all these seals at some time during the year land and live and stay there; and when they leave, they always leave with the animus revertendi. The animus revertendi exists in their minds and, I was going to say, in spirit, if they have any—but it always exists when they go for a day or when they go for a season. When the mother absents herself she stays away, sometimes a week, and returns to feed her young; the vitality of this animal is so great that the young pup can remain after a few days or weeks, when he has acquired some strength, a considerable time without food. The President.—Will you be kind enough to remind me again what is the distance from the Pribylof Islands to the Alaskan continent. Mr. Coudert.—A little over 200 miles and it is 400 or 500 to Eussia the other side. Sir Charles Eussell.—The nearest land is between two and three hundred miles aways Mr. Coudert.—To America that is the nearest land. Sir Charles Eussell.—The learned President was asking about the nearest land. Mr. Coudert.—He asked the distance to Alaska. The President.—I meant to the continent. Mr. Coudert.—It is over 200 miles. Sir Charles Eussell says it is between two and three hundred miles. The President.—With regard to these feeding grounds, is it known whether they are more on one side than on the other side of the Pribilof Islands ? Are they towards Eussia or America—do vou know about that? Lord Hannen.—I think you will find that 182 miles is the distance from the islands to the nearest part of the Aleutian chain. ORAL ARGUMENT OF FREDERICK R. COUDERT, ESQ. 357 SirEiCHARD Webster.—The President spoke of the continent, mv Lord. ^ J The President.—The continent is the nearest part Lord Hannen.—No, I think you will find that is the nearest. [Indicating.] L Mr. Coudert.—With regard to the question the learned President asked, of course they vary. There are schools of cod fish, but they are mostly south and west of the Pribilof Islands, as I understand The President.—The pelagic sealing goes on, on the west of the Islands quite as much as between the islands and the continent. Mr. Coudert.—Yes. The President.—It goes on all round. Mr. Coudert.—I will call, a little later on, the attention of the Court to a chart on that subject. I would prefer to wait until I reach that point in the case. The nearest land is within 200 miles. Mr. Gram.—Are there not a great quantity fish near to the Pribiloff Islands? Mr. Coudert.—No, Sir; it maybe that they have come there, but there is a large number of seals, and they naturally would be driven off or destroyed. But the evidence is clear, Mr. Arbitrator, that the great destruction of the seals is effected at a remote distance from the land; some of the witnesses on the other side so state, and, in fact, I have read from their testimony, that nobody who knows anything about sealing will pretend that they get seals within those short distances. But I feel justified in calling the attention of the Court most specially to what I have read, because it is a foundation upon which much of this case rests—the habits of the mother seal; and there is no doubt (and if there were any doubt we should soon remove it by the testimony that I shall read) that a great part of the destruction comes from the killing of the nursing mother. I, perhaps, do not attach as much importance to this feature as some persons might, because I think the great and the radical crime is to kill females at all. The female that is killed under pretence or with the justification that it is not in that condition to day, if it is young and healthy will be in that condition to-morrow. It is the possibility—the more than possibility—the certainty that you introduce death by wholesale. True it is more appalling to our sense of humanity, it is something that all the legislation of every country here represented reprobates and condemns, that a female in that condition should be killed, and therefore this consideration emphasizes the point. It aggravates the offence, and it arouses the indignation more clearly when it is shown that these animals, nursing their offspring, are killed at that time. But the crime is to kill them at any stage ; and where our system is preeminently good, and wherein it has been preeminently successful, is that this has been the distinctive mark of it— that under no circumstances would the killing of a female be allowed. Because that rule was adopted by Eussia, and because that rule was kept up by America, you are here to-day. If it had not been for this there would have been no seals to trouble you, or to occupy your attention. May I' ask the Arbitrators to note—I shall not call special attention to it now—that in the first volume of our Appendix there are some valuable, and interesting charts, which speak for themselves, and which give information about which there can be no dispute. In volume I of the Appendix to the case of the United States, there are several charts between pages 542 and 543. These are the charts showing where these vessels were seized by our cruisers and made to produce their log books. 358 OKAL ARGUMENT OF FREDERICK R. COUDERT, ESQ. This gives official information and it would take a great deal of time for me to read them or to study them before the Court; but if the Court has any doubt in its mind about the truth of the statement in the case which sums up the whole situation, it should be found in those charts—may I take the liberty of suggesting that the learned President is not looking at one of the charts I call attention to—it is a valuable one, but it is a table of vessels. Besides that we have the charts showing the localities in which the vessels were seized. There are several between the two pages that I mentioned. General Foster.—Page 574 is one of the most descriptive. Mr. Coudert.—Nothing can be more conclusive than that because the localities where the seals were taken are pointed out, from day to day, from the logs. The President.—It seems mostly between the Pribilof Islands and the Aleutian chain. Mr. Coudert.—Towards the South and West. Sir Charles Eussell.—The South and West, I think you mean? Mr. Coudert.—South, South-east, and South-west, are the principal localities or directions in which these vessels are found. That of course only represents the few vessels that were actually seized. The Tribunal will understand that these maps are made from materials furnished by the sealing vessels themselves—that these data are taken from the log books of these vessels. The President.—Mr. Coudert, you will observe that these maps are not quite conclusive and complete as to the locality—the places—where the seals have been taken, because as my learned colleague Mr. Justice Harlan suggests the places where the sealing vessels have been seized upon or where they have cruised is mostly indicated as lying between the Pribilof Islands and the Aleutian chain, that is to say, in the very route of the herds, as swimming towards the Pribilof Islands. Mr. Justice Harlan.—They might have been swimming away from the islands. The President.—Yes. Mr. Coudert.—But they had all gone to the islands before that. They run up in April, May and June. The President.—The seizures are more important than the place where they are made. Mr. Justice Harlan.—Mr. Coudert means to say as I understand it, that taking the date and the place together it proves that at a given distance from the island, ascertained from these logs, seals were taken in milk. Mr. Coudert.—Yes. Mr. Justice Harlan.—And therefore the seals had travelled that long distance from the island while pups were on the land. Mr. Coudert.—Yes. Sir Charles Eussell.—Will my learned friend point to any evidence showing that, because these dates are all given and they are in July and August. The herd, as my friend calls it, breaks up in July. Mr. Justice Harlan.—I did not so understand it. Sir Charles Eussell.—It begins to break up in July. The President.—The question is whether these seals are in process of migration, or whether they are merely wandering with the spirit to return again to the islands. That is what we want to make quite clear. Mr. Justice Harlan.—The question Mr. Coudert was discussing was as to whether seals in milk were taken at a long distance from the Islands. ORAL ARGUMENT OF FREDERICK R. COUDERT, ESQ. 359 Sir Charles Eussell.—Yes; but these charts do not show that at all. Mr. Justice Harlan.—Do not these charts show where the seizures took place? Sir Charles Eussell.—Yes, but not the place of taking of the cows in milk. Mr. Justice Harlan.—No. Mr. Coudert is arguing from locality and time, because he had before that argued, that according to all the proof, the seals had passed that point and reached the Pribilof Islands before August, and therefore when they were"found in August round there, it meant that the seals had left the Pribilof Islands before August. I am not speaking of the soundness of the argument, but simply indicating what I understood. Sir Charles Eussell.—I am merely pointing out that the chart does not indicate that cows were taken at all, still less that they were cows in milk. Mr. Justice Harlan.—The chart would not indicate that. Mr. Coudert.—Of course, the chart does not indicate that. A chart is not intended to indicate that. Sir Charles Eussell.—No. Mr. Coudert.—If the Counsel will have patience with me, I will bind all these things up in a sheaf, if I can ; but as Horace tells us, if I want to pull a horse's tail out, I must do it hair by hair. This is a hair, and if I can pull it out, then I have made some progress, but I cannot get at it otherwise. Now with regard to the observation of the learned President, we have fixed the time and fixed the migration routes. If these seals are taken in milk, they must have reached the islands and left it. It follows from the evidence already in the case, and from the evidence that we shall produce, that when the animals go north, the cows are pregnant. Their great haste is to reach the land. Beaching the land is life; failing to reach it in time is death: As I said yesterday, the temporary and accidental obstruction for a few days by ice, if they are late in the season, causes an enormous mortality, for the reason that the pups are dropped into the sea and drowned, t am glad to have the opportunity to make this statement now, for it will explain much as to which there appears to be (and really in fact is not) any discrepancy. They say—many of these men—"We never catch seals in pup in the Behring Sea.". Of course, they do not:—it must be very rare indeed. They pursue them in pup and slaughter them as they go up towards the Pribyloff Islands. Those that they catch there are in pup. General Foster.—In the North Pacific? Mr. Coudert.—In the North Pacific. After they have landed and established themselves at home and have dropped their pup (aad they have but one function and one desire, which is to nurse the pup), they go off, as I have stated, and they are caught in milk. All those females that are caught there—the breeding females—are in milk; those that are caught before they reach the islands are in pup. You will find it very important to bear this in mind, and I am glad the learned President made the suggestion which called for this explanation. Mr. Justice Harlan.—When you speak of those caught on their way to the land, you are referring, are you not, to those caught south of the Aleutian Islands? Mr. Coudert.—Yes, in the North Pacific. Mr. Phelps.—Perhaps you would ask the learned President to look at this chart. 360 ORAL ARGUMENT OF FREDERICK R. COUDERT, ESQ. The President.—Which is that? Mr. Coudert.—It is chart No. 6 which Mr. Phelps has pointed out to me, in the American case. Sir Charles Eussell.—At what page is it referred to in the Counter-Case? The President.—It is slightly more satisfactory than the other maps, because it shows that some of the seals cannot be mistaken as being on the migration route—that was thepoint of my question. Those on the south between St. Paul and the Aleutian chain being on the right, they might be taken for migrating seals—either migrating towards the islands or from the islands. Sir Eiohard Webster.—Which chart is it? Mr. Coudert.—No. 6 of the Counter Case. What I want to call the attention of the learned President to, is the dates. Now would you, Mr. President, look up the extreme North-west there? The President.—Yes, that is more significant I think. Mr. Co udert.—The dates are August 11th August 21 st J uly 29th and August 3d and so on. I would also ask the Tribunal, at its convenience, to study another map that Mr. Phelps requests me to submit as being an important one. It is the Track Chart of the United States Naval Officers in Behring Sea; and it will show how thoroughly the affair has been gone into, and how complete the investigation has been. Mr. Justice Harlan.—What is the number of the map? Mr. Coudert.—The Counter-Case, Chart No. 4. Senator Morgan.—How many vessels, do you recollect, were engaged in that work there? Mr. Coudert.—Seven. Senator Morgan.—Under the command of a Naval Officer? Mr. Coudert.—Yes; under Commander Evans, who commanded the force. Lord Hannen.—Can you refer me to the evidence relating to this map, Chart No. 6 of the Counter-Case? Is there any evidence relating to it, do you know ? Mr. Coudert.—To show its authenticity? Lord Hannen.—No; not to show its authenticity, but to see what it is about? Mr. Coudert.—I do not know that anything can be said about it beyond what it shows for itself. Lord Hannen.—Then I must say that I cannot count these things, which I suppose represent seals. Mr. Coudert.—No; this is intended to show the track pursued. Lord Hannen.—I am speaking of the first map. Mr. Coudert.—I was speaking of the other. Mr. Phelps.—There is evidence of that. Every fact is perfectly proved. Lord Hannen.—Quite so. I only want to be referred to it, so that I may look at it. Mr. Coudert.—That evidence I will call attention to later on, if I may; but I understood that Lord Hannen's question was directed simply to the Track Map. I understand it now. Sir Charles Eussell.—No. 6 is Entitled " Seals observed I simply. The President.—How many seals were observed, and at what season? Mr. Coudert.—I shall give the Tribunal some testimony on that; as I say, I have to take it step by step. ORAL ARGUMENT OF FREDERICK R. COUDERT, ESQ. 361 The President.—Well, we have perhaps disturbed a little the order of your argument. Mr. Coudert.—I do not mind that at all, Sir. As I said yesterday, when the Court shows an interest in the argument, I am satisfied; but there are some matters of detail connected with the maps which require some aid and authority from the books. Lord Hannen.—That is what I meant. Mr. Coudert.—I pass now from that subject. I was begging the Court to bear in mind the facts I have given as to the distances that the cows go and all other kindred subjects; but I propose now to read, with the permission of the Tribunal, from page 147 of our Case. I may say first, in regard to the control and domestication of the seal, that everything that touches the nature of the seal is important here; and I would ask the permission of the Court to state, for the information of the Court and also that my learned friends may know, as they have asked what evidence we had on this subject. The evidence on the subject of these Charts will be found in the Counter-Case of the United States and its Appendix, page 207 I think it begins; and you will also find it at 219, 237, and 401 and following pages. I may produce other evidence on that as well. Now, perhaps it might be convenient to the Court, though it is somewhat out of the regular order of my argument, to call attention, in connection with this, to the testimony of Charles H. Townsend, a naturalist on board of one of these ships. He was with Captain Hooper, and it is in the Counter-Case of the United States, page 394. You will find a photograph attached to it. Senator Morgan.—That is one of the ships that Commander Evans had in his fleet? Mr. Coudert.—No; it was the "Corwin", Captain Hooper; and on page 394, you will note that Mr. Townsend says. Ajinexed to the report of Captain Hooper is a table giving the results of the examination of forty-one seals which were killed in Behring Sea in 1892. It appears that of this number twenty-two-were nursing seals. The photographs hereto annexed show exactly the way all of these nursing female seals looked when cut open on the deck of the Corioin. • The upper photograph, the one annexed to page 394 to which I call the attention of the court, shows how they looked when they were killed; and you can see the milk that has been running and is accumulated on the deck. The photographs, he says, especially the first one, exhibit the milk streaming from the glands on the deck. I mention that incidentally; I had intended to speak of Captain Hooper's expedition and his experience; and I shall refer to it more in detail hereafter ; but, with the permission of the Court, I will now resume the regular thread of my argument and the statement of evidence. I stated yesterday something about the character of the seal, and how near a domestic animal the seal was, even conceding, which I do not concede, that it is improper to call it a domestic animal. Whether it is or not a domestic animal and entitled to that appellation must depend, of course, upon its nature and its habits, and, as there seems to be an issue between us as to the real nature of the seal, and it is one of the few points I think upon which there is, perhaps, a real issue, it will be well to call the attention of the learned Tribunal to the position taken by the United States and to the evidence in support of it. I shall, therefore, read from page 147 of the United States Case. The peculiar nature and fixed habits of the seal make it an animal most easy of control and management. A herd of seals is as capable of being driven, separated, and counted as a herd of cattle on the plains. 362 ORAL ARGUMENT OF FREDERICK R% COUDERT, ESQ. I think that is an understatement from what I have read about the cattle on the plains. It is easier to control the seals ; but I do not stop to dwell on this. In fact, they much resemble these latter in the timidity of the females and the ferocity of the males. One example of the ease with which they can be controlled is mentioned by Mr. Falconer, who speaks of a herd of three thousand bachelor seals being left in charge of a boy after they had been driven a short distance from the hauling grounds. Then: Mr. Henry N. Clark who was for six years, that is, from 1884 to 1889, in the employ of the Alaska Commercial Company and in charge of the sealing gang on St. George Island, and who is therefore especially competent to speak of the possibilities of driving and handling the seals, says. I was reared on a farm and have been familiar from boy-hood with the breeding of domestic animals, and particularly with the rearing and management of young animals, hence the comparison of the young seals with the young of our common domestic species is most natural. From my experience with both I am able to declare positively that it is easier to manage and handle young seals than calves or lambs. Large numbers of the former are customarily driven up in the fall by the natives to kill a certain number for food, and all could be rounded up as the prairie cattle are if there was any need for doing so. All the herd so driven are lifted up one by one and examined as to sex, and while in this position each could be branded or marked if necessary. If the seal rookeries were my personal property I should regard the task of branding all the young as no more difficult or onerous than the branding of all my calves if I were engaged in breeding cattle upon the prairies. The testimony as to this is found in volume 5 as is noted here. The foregoing statement as to-the possibility of branding the young seals is supported by others equally experienced in seal life in the islands. Dr. Mclntyre so long experienced in the handling of seals, says that they are as controllable and amenable to good management upon the islands as sheep and cattle, and several other witnesses make like affirmations. Chief Anton Melovedoff, already mentioned, He is one of those who has the most experience and knowledge on the subject, states that it is usually supposed that seals are like wild animals. That is not so. They are used to the natives and will not run from them. The little pups will come to them, and even in the fall, when they are older, we can take them up in our hands and see whether they are males or females. We can drive the seals about in little or large bands just as we want them to go, and they are easy to manage. Several other Pribilof islanders and white men long resident there make similar statements. This peculiar susceptibility to control has also been and is recognised by such a well-known scientist as Dr. E. von Middendorff, of Russia, who, in a letter dated May 6/18,1892, says: "This animal is of commercial importance and was created for a domestic animal, my learned friends on the other side, I am glad to see, think there is something humorous about this, so I will read it again. " This animal is of commercial importance and was created for a domestic animal, as we shall show by other evidence. The President.—Are you aware that the branding of the seals has ever been practically used. Mr. Coudert.—1 presume not, why should it be? If we are dealing with a lawless band of men on the high se^s, who say that the freedom of the seas does not permit us to use our property, how would branding help us? The President.—Would it be practicable, that is what I want to know. ORAL ARGUMENT OF FREDERICK R. COUDERT, ESQ. 363 Mr. Coudert.—I think so. Why not. We take them in our arms, examine them and handle them, therefore why not brand them, but what good would it do? On the prairie, when a man does the thing that these people are doing, he is hung on a tree without a judge or a jury, because necessity compels men to do it. They cannot run about for a justice of the peace, three or four hundred miles off, and say, "This man has stolen my cattle, notwithstanding the brand"; self- protection first steps in, but how would it help us? They cut the ears, in some instances, of the pups and the next year they found the pups with the same ears. That is a proposition that my learned friends will not dispute. " This power of domestication has made it possible to discriminate carefully ". Sir Charles Eussell.—Will you read, the last sentence, because it was that which rather amused me. It begins "It is in fact". Mr. Coudert.—Yes, I will. It is in fact the most useful of all domestic animals, since it requires no care, and no expense, and consequently yields the largest net profit. Probably this was written before the naturalist quoted knew pelagic sealers had put us to a great deal of expense. To that extent he is inaccurate. This power of domestication, our case goes on to say, has made it possible to discriminate most carefully between the classes of seals killed, and to enforce rules and regulations for the general management of the herd. Rear Admiral Sir M. Culme Seymour, in a despatch to the British Admiralty says:—"The seals killed by the Alaska Commercial Company are all clubbed on land, where the difference of sex can easily be seen." Now so long as they are on the land, and this goes on, what difference is there,—what difference can be alleged, between these and domestic animals? If you take the old expression—the old distinction between ferœ naturœ and domitœ naturœ, that is a nature that is controlled and reduced to subjection by man, are not these animals domitœ naturœ? They will come to man, they will be fondled and handled by man, they will be driven by man, they will be enclosed by man in such district as he may choose. Senator Morgan.—In point of domestication in what do they differ from swine, which are not useful for any purposes of domestic employment, and are used only for food, and yet are domestic animals? Mr. Coudert.—They are practically like swine in that way, and they are also like calves. The flesh is eaten and resembles veal; the pelt is extremely valuable. We do not make hogs work. We raise them because of the food they furnish and because their skin is valuable in commerce. I confess my utter inability to see, during that period at least, while the case is not complicated, if it be complicated by their resorting to sea to get food instead of roaming on a prairie to get grass, that there is any difference whatever, and why, unless we are fettered by ancient prejudices and old ignorance we should not say that the seal is a domesticated animal, an animal of a conquered nature, domitœ naturœ. Nobody can doubt, if we could devise some useful purpose of work that they could readily be compelled to do it, but they are useless as far as we know, to-day, for any practical purpose. It may be different in the development of time, but when it comes to hypothesis and conjecture, then I leave the British Commissioners to open the door. Therefore, when I stated yesterday that these were practically domestic 364 ORAL ARGUMENT OF FREDERICK R. COUDERT, ESQ. animals, my statement, at least, is supported by reason, and by the testimony of wiser men than myself. A question now comes up, a most important one in one sense, and an utterly irrelevant one in the other. That is the question of management on the islands. That question, so far as the judgment of this Tribunal is concerned, in its general aspect is entirely irrelevant. The management of this herd is our affair. It is the exclusive affair of the United States; and neither Great Britain nor France, nor any of the countries here represented, would willingly tolerate, much less encourage, any interference with its home affairs, such as the management of this herd upon the Pribilof Islands. While that herd is there we submit it is just as much and exclusively within our control, and our right of control as if they were so many calves or swine. Senator Morgan.—Do you find any power in this Treaty for this Arbitration, to deal with the question? Mr. Coudert.—No. I was coming to that. Not only no power, but an exclusion which is stronger than a mere negative argument. The Treaty says that you shall not deal with this. Great Britain would be the last nation in the world to permit a foreign ingérence, I will call it because it is an untranslatable word—for lack of a better I would say " interference "—but any immixtion to borrow another French word, into its domestic affairs, and it would say to the whole world : This is our herd; it is our property; it is our property at sea and upon land. You dispute our title upon the sea. We yield for a moment, and submit to the peaceful methods of arbitration rather than resort to the brutal methods of war; but nobody can dispute our right to manage these animals as we please upon the land. The land is ours, and every- thingthere is ours. From the lowest depth below usque ad cœlum it is ours; and Great Britain would not permit, if any jurisdiction of hers were even remotely concerned, that any such question should be raised. When the Government of Her Majesty instructed the British Commissioners, that Government gave them careful notice that they must not exceed defined limits. My position now is before this Tribunal with all respect, and unfeigned respect, that so far as the management is concerned of our Islands,—as management—it is entirely outside this case and outside the jurisdiction of this Court. In one aspect of the discussion, to which I shall presently allude, it may be important to consider it, but so far as Eegulations are concerned, I will ask you to hold that it is outside entirely, that you must hold that this being our property, it is our interest to protect it. Our intelligence we claim to be equal to the average of the rest of the world and of the other Governments of the world (there is no issue as to that—even by the British Commissioners) : we may therefore be trusted to take care of our own property in the best possible manner. All I would ask you to look at is, in considering the destruction of this race now threatened with extermination, whether our methods in theory and in general practice are not calculated for conservation, and the others for annihilation. When you consider the cause of the destruction, you may say, if you choose to look into it, that bad management, if any has been proved, that bad system, if any is alleged, may have contributed to the alleged diminution by pelagic sealing; but so far as regulations are concerned, that is a matter absolutely within our own exclusive jurisdiction and right. Lord Hannen.—Will you allow me to make an observation. Mr. Coudert.—I hope your Lordship will. ORAL ARGUMENT OF FREDERICK R. COUDERT, ESQ. 365 Lord Hannen.—Pray do not suppose it to show any leaning of my mind at all. I only want you to touch upon this question: Do you think that we could not make conditional Eegulations? Mr. Coudert.—I do. Lord Hannen.—Conditional upon something done or not done upon the other side? Mr. Coudert.—I do. Lord Hannen.—Very well, that is all I wanted to know. Mr. Coudert.—I do. I think that is entirely outside. I think that this Tribunal should assume that, dealing with our own property, we will deal with it under the best conditions. What sort of Eegulations would conditional ones be ? We should have to go into making another Treaty about them. This is a recommendation made by Lord Salisbury to the Commissioners—it is on page vii of the British Commissioners' Eeport. It is fair to say the British Commissioners very properly looked into our methods of doing business, and I find no fault with them ; I think they will concede that every possible facility and courtesy was shown them, and everything was done that could be done to facilitate their task, because they must, as this Tribunal must, know all about the subject, and we are trying so to present the case that the Tribunal may be furnished with the fullest knowledge of the facts. Yon will observe says Lord Salisbury to the Commissioners, that it is intended that the Report of the Joint Commissioners shall embrace recommendations as to all measures that should be adopted for the preservation of seal life. For this purpose, it will be necessary to consider what Regulations may seem advisable, whether within the jurisdictional limits of the United States and Canada, or outside those limits. The Regulations which the Commissioners may recommend for adoption within the respective jurisdictions of the two countries will, of course, be matter for the consideration of the respective Governments, while the Regulations affecting waters outside the territorial limits will have to be considered under clause 6 of the Arbitration Agreement in the event of a decision being given by the Arbitrators against the claim of exclusive jurisdiction put forward on behalf of the United States. There you see the intention very plainly indicated. Diplomacy might still have goneon between the Governments. The Government of Her Majesty desired to know precisely what all the circumstances connected with seal life were and what the elements of this destruction were, and therefore it says : " Study the subject." So far as the jurisdiction is concerned on the high seas, that is a matter for the Arbitration, but where it is inside the jurisdictional limits that will, of course, be matter of consideration for the respective Governments, and it proceeds : The Report is to be presented in the first instance to the two Governments for their consideration, and is subsequently to be laid by those Governments before the Arbitrators to assist them in determining the more restricted question as to what, if any, Regulations are essential for the protection of the fur-bearing seals outside the territorial jurisdiction of the two countries. In other words, outside the territorial jurisdiction of the countries we stand on the same footing as Great Britain ; we have the same rights as Great Britain to make Eegulations to protect this animal outside, and if the United States are incompetent at home to take car« of their own so much the worse for the United States. They never meant that their right to make laws for their own country should be given up to anyone. Now, with this preface, I go on to examine the question of the management on the Islands. It may be well, in advance, to say what we consider to be the prime conditions of difference between the systems 366 ORAL ARGUMENT OF FREDERICK R. COUDERT, ESQ. on the Islands and pelagic sealing, that is sealing on the high seas. It is that, in the one, discrimination is possible, and, in the other, discrimination, by the very nature of things, is impossible. The British Commissioners have stated, and they have truly stated, on this subject of discrimination that it was absolutely impossible, and have illustrated it in this way.—That it is as unreasonable to ask a pelagic sealer to discriminate as to the sex of the seal that he kills as for a fisherman to discriminate as to the sex of the fish that he catches on his hook. From the very nature of things, he cannot do it. Examination comes too late. It follows death. It is a post mortem examination, of necessity, and cannot be anything else. There is the great distinction. Whereas on the Islands an intelligent system, pursuing the laws of nature, will enable men to discriminate,, and will preserve the flock. That is the reason from the beginning,—away back into the time of the Eussian occupation, when it was discovered, for it was only by experience that it was discovered, that a deadly wound was being inflicted upon the property (that is, the herd) by promiscuous killing. The Eussians came to the conclusion that they must discriminate as to sex and kill only the young males. That system has been carried on by the United States with improved methods, as we shall show. It is a reasonable system; it is declared by our Adversaries to be an admirable system ; to be perfect in its theory, and we claim it to be as nearly perfect in its administration as anything committed to fallible human hands can be. Of course, it is not adapted to pelagic sealing; and in all schemes that are proposed, they all come back to this, and founder upon that rock :—"Discrimination is impossible except on the Islands." I need hardly argue that if there is no discrimination, there must be destruction. This is an expanding business. It has been a most profitable one; the number of ships has increased enormously, and if it is thrown open or kept open to pelagic sealing, there being no discrimination, females being largely predominant in the catches, no argument is necessary to show, for it is a conclusion from ordinary experience and common sense, that extinction must ensue. I will read a short statement from our Case on this page 152: The class of seals allowed to be killed are the non-breeding males from one to five years of age which haul out upon the hauling grounds remote from the breeding grounds. The handling of this class of seals because of their separation from the breeders causes the least possible disturbance to the seals on the breeding grounds. Your Honours may remember that yesterday I called attention to the distinction on the land,—the different homes that these animals had adopted, the old bulls going first on certain parts of the rookeries, the cows following, and the young ones taking a different locality,—a different district on the Islands; so that when you take the young males you do not disturb the breeding-grounds at all; and it is very important they should not be disturbed. Great precautions are taken; as, for instance, not a dog is allowed on the Islands, lest his barking should disturb the seals ; and I believe they even go so far as to prevent smoking;—at any rate, if the seal's sense of smell is as keen as the British Commissioners make out, they ought to stop smoking. Lord Hannen.—Is it not that they forbid lighting, fires because of the smoke? They do not forbid smoking, do they2 Mr. Coudert.—Well, my impression is that smoking near the breeding grounds is interdicted: The handling of this class of seals because of their separation from the breeders causes the least possible disturbance to the seals on the breeding grounds. ORAL ARGUMENT OF FREDERICK R. COUDERT, ESQ. 367 And the evidence will show that the utmost care and the greatest precautions are taken to prevent that disturbance. Then on the next page: That is under the first lease. mtirely within the control of the Treasc This has already appeared from the argument of Mr. Carter. The Government of the United States will not even fix this as an amount which may be killed but reserves to itself the right, with an intelligent supervision, to determine if the 100,000 shall be reduced or not. Senator Morgan.—100,000 is the maximum liinit, I understand. Mr. Coudert.—Yes, no more than 100,000, but the Secretary of the Treasury may reduce it as much as he thinks fit. In 1889 Charles J. Goff, then the Government agent on the islands, reported to the Department that he considered it necessary to reduce the quota of skins to be taken in 1890. The Government at once reduced the number to^60,000 and ordered the killing of seals to cease on July 20th. My friend, Mr. Williams, reminds me as a matter of fact that they only killed 20,000. And now we must be taught by our enemies, and I will read from the British Commissioners' Eeport, page 114, section 660, with the permission of the court. Theoretically, and apart from this question of number and other matters incidental to the actual working of the methods employed, these were exceedingly proper and well conceived to insure a large continual annual output of skins from the breeding islands, always under the supposition that the lessees of these islands could have no competitors in the North Pacific. 1 will ask, at this point, to have the Arbitrators stop and look at the statement. An admirably devised system, one that would have preserved the seal and insured an out-put constant, unfailing, and regular if we had taken into account pelagic sealing. It was assumed that equal or proximately equal numbers of males and females were born, that these were subject to equal losses by death ox accident, and that in consequence of the polygamous habits of the fur-seals, a large number of males of any given merchantable age might be slaughtered each year without seriously, or at all interfering with the advantageous proportion of males remaining for breeding purposes. I think we will all agree that that was a fair and intelligible assumption. Now the next paragraph I will read—661. The existence of the breeding rookeries as distinct from the hauling-grounds of the young males, or holluschickie, was supposed to admit, and did in former years to a great extent admit, of these young males being killed without disturbing the breeding animals. The yonng seals thus "hauling " apart from the actual breeding males of suitable size were clubbed to death, and from which the rejected animals were allowed to return to the sea. The method is one blow on the head; the animals are very easily despatched. The bones of the skull are very thin and it is a painless prompt and efficient method of putting them to death. The sportsmanlike instincts—the atavistic instincts of the British Commissioners rebel against this. Oh ! they say, it is very brutal and it is not half so sportsmanlike as going round with a rifle and a breech loader and a gaff and giving the animal a chance to escape. Well it is precisely what should not happen. . You do not want the animal to escape, 368 ORAL ARGUMENT OF FREDERICK R. COUDERT, ESQ. especially if it is to get away with a wound in its body, to perish, and to be of no use to any human being. Our method, is not sportsmanlike and that is precisely its beauty—its convenience. These animals must be sacrificed for the good of mankind. Then the only question is, how can you do that in the most humane way; and we think that a blow on the head, which kills them in the twinkling of an eye, is infinitely more humane than giving them a chance while you are pursuing them with a shot-gun and a spike. There is no evidence, I think I can say this boldly and with perfect confidence, worthy of consideration, showing that, from 1870 down to the year 1888 or thereabouts, any decrease in the herd had taken place through such killing; on the contrary, the evidence shows that the herd had actually increased during those ten years, and it was only when destruction on the sea began, with its inevitable accompaniment of permanent destruction, that they found on the islands that they were killing too many males; and the candid confession of the British Commissioners themselves explains it. The system was not adapted to pelagic sealing—to this growing industry—for which they wished to provide, not only to-day, but for its natural expansion, as they expressed it. So that you are called upon to make regulations not only to permit this slaughter that includes 80,90 or 95 per cent of females, but to cast an eye into the future and invoke a prophetic faculty. You must say: I This is going to increase, and we must provide for the increase of pelagic sealing besides protecting it in its present condition." Now, in connexion with that, and in support of it, I want to read from the United States Case, page 164: Under this careful management of the United States Government, the seal herd on the Pribilof Islands increased in numbers, at least up to the year 1881. This increase was readily recognized by those located on the islands. Captain Bryant says that in 1877 the breeding-seals had increased to such an extent that they spread out on the sand beaches, while in 1870 they had been confined to the shores covered with broken rocks. Mr. Falconer mentions the fact that in 1871 passages or lanes were left by the bulls through the breeding grounds, which he observed to be entirely closed up by breeding seals in 1876 and in this statement he is borne out by Dr. Mclntyre. It must be remembered in this connection that two hundred and forty thousand male seals had been destroyed in 1868— that, as I have already explained to the court, was during the year when there was an interregnum, Eussia retiring and the United States not appearing, then there was a slaughter of 240,000— and that this increase took place in spite of that slaughter and although 100,000 male seals were taken annually upon the islands. We thus have a system confessedly perfect in theory. I think it is also stated by the British Commissioners (to use their own language) that, from a transcendental point of view, it is an admirable system. It is admirable in theory; it is admirable transcendentally. It was considered admirable in practice until pelagic sealing appeared before the world. Until that method of destruction became manifested and its results became evident, there was no difficulty whatever; and, as this is an important point, I will call the attention of the Court and my friends on the other side to the collated testimony on different subjects at page 260. It is practically an Appendix to our Argument. There is the testimony of Mr. Mclntyre. I will not trouble the court to look at it; I will refer my friends to it. Mr. Mclntyre says: That while located on the Pribilof Islands I was the greater part of that period upon the island of St. Paul; that during the twenty-one years upon the islands I examined at frequent intervals of time .the breeding rookeries on said island of St. Paul, and now recollect the condition of said rookeries and the approximate area ^hich each of them covered at different times during my experience on said islands. ORAL ARGUMENT OF FREDERICK R. COUDERT, ESQ. 369 He then goes on to state that he has drawn a chart from memory, which the court may look at. I am fully conscious that a chart drawn from memory after many years is not as reliable as it might be, but it simply expresses, in that form, the best recollection of a reliable witness on the subject. The next passage is also from Mr. Mclntyre's evidence page 45. I am reading from the same page of the Collated Testimony. That from the year 1870 there was an expansion of the areas of the breeding grounds, and that in the year 1882 they were as large as at any time during my acquaintance with them. It was only subsequent to this period that the difficulty was found with regard to getting the males. Now on page 267 of the Collated Testimony, Daniel Webster (and I, may perhaps remind the Court again that Daniel Webster is conceded to be a reliable, honest, and trustworthy witness), says : My observation has been that there was an ei up to at least, 1879, which fact I attribute to the by the United States Government. Twenty-four years of my life has been devoted to the sealing industry in all of its details as it is pursued upon the Pribilof Islands, and it is but natural that I should become deeply interested in the subject of seal life. My experience has been practical rather than theoretical. I have seen the herds grow and multiply under careful management until their numbers were millions, as was the case in 1880. Now in connection with this, which is a very important subject not only in a practical, but in what our friends the British Commissioners call a transcendental point of view, this assault upon the management of the United States is one that we may well meet with abundant testimony if we have it, and we have. In the Collated Testimony (the same book, page 257) there is the evidence of Mr. Charles Bryant, one of the most experienced of them all; he is constantly referred to, and constantly commented on, by the other side. He says : I have examined the breeding areas of 1870, indicated by H. H. Mclntyre on charts A. B. C. D. E. F. and G. of St. Paul Island, and they are, to the best of my knowledge and belief correct. I have also examined the areas of increase shown by him on the same charts as applicable to the breeding rookeries of 1882, and, they are proportionately correct' in 1877, the last year of my stay upon the islands, the increase up to that time having been about half of that shown by him. The above statement is true also to the best of my knowledge and belief, of the breeding areas of 1870, and the increase of 1882, indicated by Thomas F. Morgan upon charts H. I. J. and K. of St. George. We then have this on page 260 : filled c o their lin From 1870 to about 1884 the seal rookeries w and sometimes beyond them. This witness is a priest of the Greek Church, General Foster reminds me, and I may say in connection with the testimony of this reverend gentleman that it is a matter about which he could not well be mistaken. . It was not like counting. A man might say, " There are two millions, or seven millions"; and it might be neither; but when he says that certain places were covered this year that were not covered last year, of course as to that he could not be mistaken. Now at page 263 we have the testimony of Mr. John M. Morton. He says: I have already stated that my personal ad i n of the . 370 ORAL ARGUMENT OF FREDERICK R. COUDERT, ESQ. sealing was comparatively unimportant. But a few vessels up to this time had made predatory excursions in Behring Sea, and the number of seals obtained by them is known to have been small.. [The Tribunal then adjourned for a short time.] Mr. Coudert.—As I was saying to the Court at the hour of adjournment, the question of management on the Islands in one aspect of the case is important, and the question of increase or decrease is one that deserves consideration; our proposition is that the period from about 1880 to 1884 or 1885 was one of stagnation. From 1870 to 1880 it was one of increase. Of course it is not absolutely and mathematically possible to say when increase ceased and stagnation commenced and decrease took its place, but speaking generally and with such information as we can get from persons best able to express an opinion, that is the estimate that we submit to the Court.—Increase to 1880: stagnation from 1880 to about 1884: and subsequently to that, the decrease which it is conceded on all sides exists and now threatens extermination. After this latter date of 1884 or 1885, there was a perceptible decrease in the herd as a whole, although no difficulty was at that time experienced in getting the full quota of 100,000 young males, but when 1887 was reached or 1888 then the difficulty was first experienced. It is almost unnecessary to say that those on the islands would first notice the decrease in that particular class of animals in which they were most specially interested, over which they had control, from which they took their supplies and with which they had.the most to do. This is the statement in the case of the United States' at page 165 : From the year 1880 to the year 1884-1885 the condition of the rookeries showed neither increase nor decrease in the number of seals on the islands. In 1884 however, there was a perceptible decrease noticed in the seal herd at the islands and in 1885 the decrease was marked in the migrating herd as it passed up along the American coast, both by the Indian hunters along the coast and by white seal hunters at sea. Since that time the decrease has become more evident from year to year, both at the rookeries and in the waters of the Pacific and Behring Sea. The Behring Sea Commissioners of both Great Britain and the United States in their joint report, affirm that a decrease has taken place in the number of the seal herd so that the simple fact is accepted by both parties to this controversy. But the time when the seals commenced decreasing, the extent of such decrease, and its cause are matters for consideration. This cause in one sense is also admitted by the joint report, and that is that the decrease is due to the interference of man—to the killing by man. If we were to stop here, having shewn the court that so far back as 1876 pelagic sealing had commenced and was more or less murderous, only a few thousand it is true originally, but gradually growing up till 12,000 or 13,000 were reached,—about 1880 or 1879 it began to average some 12,000,—if we have shewn that up to that time the rookeries were prosperous and increasing, and suddenly came a tap, a drain, upon our resources in the form of pelagic sealing, and that many thousands were killed, and under such circumstances that the killing was peculiarly fatal to the integrity and increase of the flock, we would naturally think that we have no more to shew, the burden is upon the other side. If I have a flock of sheep, and I can prove that for a number of years raiders have been at work, and they have carried off my ewes and lambs in large numbers, I am not called upon to shew that the animals died of murrain or sunstroke: that I may well leave to my adversary to establish if he may. The natural and obvious conclusion from the fact of this large pelagic sealing,—for in its cumulative effects it was large—is to shew why the flock decreased. But we are not left only to this obvious and natural and necessary inference. We have the proof ORAL ARGUMENT OF FREDERICK R. COUDERT, ESQ. 371 on that. The figures I have already to some extent given. They have appeared from my brother Carter's argument, and I also will give the Court a statement shewing, as far as may be, what the extent of pelagic sealing was from 1876 to 1884. But I ought to say now, so that the table will be understood and lest I should omit them, that we are unable to give an exact and satisfactory statement. Our friends on the other side are able to give us a statement of the Canadian sealers and the havoc done by them, because there is a regular table and'account kept of that, but in addition there was a number of American ships engaged in the same business going on with the same methods of destruction and resulting of course in the partial deterioration of the flock beyond the immediate numbers killed. Senator Morgan.—Do you mean the American ships were engaged . in the Behring Sea, or outside of it? Mr. Coudert.—They were engaged outside at first, from 1876,—we have no account of it; so that when the Court looks at the statement furnished by our learned friends as to the depredations committed by the Canadian sealers, it must be borne in mind, that it is only an imperfect statement of the damage actually realised. I resort, again, to Mr. Mclntyre. He was on these Islands most of this time; and I am about to read now from the collated testimony, page 277. That is the Appendix to the Argument. Mr. Justice Harlan.—The evidence there is in the same words as in the original volume. Mr. Coudert.—Yes; it is an abstract, but a literal abstract. Mr. Phelps.—It is really an extract. Mr. Coudert.—Yes, a literal extract. That during the three years following 1882, namely 1883, 1884 and 1885, I was not upon the islands; that upon my return to said islands in 18861 noticed a slight shrinkage in the breeding areas but am unable to indicate the year of the period of decrease of the seals for each succeeding year of that period, in a cumulative ratio rtiona bo the nu m aer of se als killed 1 vy pe 8861a e< persona 1 d dinch d includ 1889. And 3, there w as diffic lit y in seoi g such skins That is in 1889. The trouble was not particularly marked in 1886. Mr Justice Harlan.—That was in 1886,1 think. The President.—From 1886 to 1889. Mr Justice Harlan.—He says: "And now, for the first time;" that means, for the first time in 1886. Mr Coudert.—Yes. The trouble was not particularly marked in 1886, but increased from year to year +« °u alarming extent, until in 1889, in order to secure the full quota and at the same i turn back to the rookeries such breeding bulls as they seemed to absolutely have'been to the Ala ihe first decade of the ■or as you will remember I was in ill health and'unable to visit the islands L884 and 1885. I left the rookeries in 1882 in their fullest and best condil ■ound them in 1886 already showing slight falling off, and experienced that ;he first time some difficulty in securing just the class of animals in every . we desired. We, however, obtained the full catch in that and the two f rears, finishing the work from the 24th to the 27th of July, but were obli; 372 ORAL ARGUMENT OF FREDERICK R. COUDERT, ESQ. ticularly in 1888, to content ourselves with smaller skins than we had heretofore taken. This was in part due to the necessity of turning back to the rookeries many half-grown bulls, owing to the notable scarcity of breeding males. I should have been glad to have ordered them killed instead, but under your instructions to see that the best interests of the rookeries were conserved, thought best to reject them. The result of killing from year to year a large and increasing number of small animals issvery apparent. We are simply drawing in advance upon the stock that should 6e kept over for another year's growth. Then, in 1890, the quota was reduced to 20,000 and the new lease took effect in this year. Sir Charles Eussell.—"1890" does not appear there at all. Senator Morgan.—Can you state exactly when the first modus vivendi took effect. Mr. Coudert.—1891. Senator Morgan.—What time of 1891. Mr. Coudert.—I think it was in June—June 15th 1891. Senator Morgan.—It covered the fishing season of 1891. Mr. Coudert.—Yes. Senator Morgan.—And the second one covered the fishing season of 1892 and 1893 to October next. Mr. Coudert.—Yes. Senator Morgan.—Now during those two periods the take of the United States was confined to 7,500 seals. Mr. Coudert.—Yes, a somewhat larger number was killed. •Senator Morgan.—I remember. Mr. Coudert.—But it did not exceed 12,000. Senator Morgan.—The modus vivendi confined the take on the part of the United States. Mr. Coudert.—Yes. Senator Morgan.—Can you state how many seals were taken by the pelagic hunters in 1891. Mr. Coudert.—Yes, we have that to some extent. I am coming to those figures in a moment, I will give them as nearly as we are able to give them. Senator Morgan.—For 1891 and 1892? Mr. Coudert.—Yes.- Senator Morgan.—I believe those figures run up to 60,000 or 70,000. Mr. Coudert.—Yes, I was about to say there were 68,000 in 1891. Senator Morgan.—How many for 1892? Mr. Coudert.—We have not the figures : they are not compiled; but the figures, as given by the other side, of the pelagic sealers in 1891 amount to 68,000 seals. Senator Morgan.—That is to say, the pelagic hunters got 68,000 and the United States 7,500. Mr. Coudert.—ï"es, a slightly larger number—about 5,000 more, owing to the dates overlapping. Senator Morgan.—Is the same state of affairs existing now—is there any evidence on that subject? Mr. Coudert.—I do not think we have any evidence as to that. . The President.—That is pelagic sealing outside? Senator Morgan.—Yes, the pelagic sealers got 68,000 and the United States 7,500. The President.—On account of the modus vivendi. Senator Morgan.—Yes, we were limited to 7,500 and the pelagic sealers got 68,000. 8 Mr. Coudert.—And the next year, as far as we can get at the figure, it was 45,000, all outside the Behring Sea. ORAL ARGUMENT OF FREDERICK R. COUDERT, ESQ. 373 The President.—Inside have you any estimation? Mr. Coudert.—No, they were interdicted. The President.—But, in fact, they were there? Mr. Coudert.—No, the seals did not come into our house ; the sealers intercepted them before they got through the door. The report, General Foster says, is, that less than 500 were taken. The President.—The seizures were effectual and prevented any sort of pelagic sealing inside. Sir Charles Eussell.—No, it was the result of the agreement under the modus vivendi. The President.—But before the modus vivendi was agreed upon, there was no pelagic sealing inside. Sir Charles Eussell.—Yes. The President.—That is what I ask, what was the amount of pelagic sealing previous to the modus vivendi. Mr. Coudert.—I will ask the President to let me take the tables. I cannot take each year alone. We h ave tables prepared on that point ; I will submit them to the Tribunal in a few minutes. I stated to the court from memory the efforts taken by suppressing noise and even smoking, to prevent a disturbance in the rookeries, and I think there is evidence on that very point. We have collated the testimony on the subject of pelagic sealing, and I will submit it to the high Court before the close of the argument. The President.—You will tell us that in your own time. It is better perhaps not to interrupt you. Mr. Coudert.—Yes, I confess the carrying of figures from 1876 to 1892 in'my memory without memoranda I find difficult, and possibly misleading. The President.—I mean that, if you argue that the decrease is exclusively imputable to pelagic sealing, and give us proportionate figures for that decrease, you must also give us proportionate figures for the destruction by pelagic sealing—the destruction inside as well as outside, if any took place. Mr. Coudert.—Yes, you will understand that I give the general figures. As I stated at the outset there was a small pelagic destruction which grew up to 12,000, and eventually expanded to 60,000; and even when there was an average, if you please, of only 12,000, and those were entirely females or to a great extent,—say more than half, to put it at the least, the cumulative effect of that destruction in a few years was sufficient, prima facie, to account for a decrease, while it is admitted that before that time there was an increase. Taking this even at the lowest figure, if there had been an average killing of females during all those years of 12,000 and it extended over 8, 9, or 10 years with its cumulative effects, other things being equal and no other cause being apparent, we have a right to say we have made out our proof and to ask what other cause was there than the one thus indicated? Going back one moment (I will not ask the court to turn to the book because the extract is very short),—in our collated testimony on page 232, the evidence will be found with regard to the care taken on the islands. No person is allowed to go near a rookery unless by special order of the Treasury Agent and when driving from the hauling grounds, the natives are forbidden to smoke or make any unusual noise, or to do anything that might disturb or frighten the seals. Of course, the prohibition against smoking and drinking whisky would make our field of operations restricted in choosing proper J 374 ORAL ARGUMENT OF FREDERICK R. COUDERT, ESQ. Agents; but, at all events, those are among the elements of good order introduced there, and show the extreme care taken that these animals on the breeding-rookeries shall not be disturbed. I will now read more on this same question of increase, and I need not apologise for dwelling on it because of its importance—it is first important to show the decrease, and then to show the cause; I have gone into the cause in general terms, and I will now pursue it by giving figures. This is from our collated testimony, page 278; Anton Melove- doff, whom 1 have quoted before. (Q.) Have you noticed any perceptible difference in the number of seals on rookeries from one year to another? (A.) Yes. (Q.) What changes have you noticed? (A.) They have been getting less every year for about the last six years. (Q.) About how much less is the number of seals during the past year than they were six years ago? (A. ) The number of seals this year are about one-fourth of what they were six years ago, and about one-half of what they were last year. (Q.) In what way do you form your above opinion as to the relative number of seals on the rookeries? (A.) By the fact that many spaces on the rookeries which were formerly crowded are now not occupied at all. I do not attach a great deal of importance to the proportion that a witness gives; I mean, as to a quarter, or a third, or a half; all we mean to show is that the decrease was perceptible and large. We have the testimony of Mr. Sloss who was a member and agent of the old Company, and his testimony has been taken since that Company has lost its control over the business; therefore so far as any personal interest of a financial kind is concerned he is not chargeable with any suspicion on that ground. This is page 280 of the same book, the collated testimony : I had no difficulty in getting the size and weight of the skins as ordered, nor had my predecessors in the office, up to and including 1884. The casks in which we packed them for shipment were made by the same man for many years and were always of uniform size. In 1885 these casks averaged about 471/2 skins each and in 1886 they averaged about 504/5 skins each, as shewn by the records in our office. After this date the number increased, and in 1888 they averaged about 55 5/7 skins per cask, and in 1889 averaged about 60 skins per cask. These latter were not such skins as we wanted, but the superintendent on the islands reported that they were the best he could get. And in further corroboration of this we come back again to an unexceptionable witness, one upon whom both parties rely, Daniel Webster, whose testimony is on the next page 281. In the year 1880 I thought I began to notice a falling off from the year previous of the number of seals on North East Point rookery, but this decrease was so very slight that probably it would not have been observed by one less familiar with seal life and its conditions than I; but I could not discover or learn that it shewed itself on any of the other rookeries. In 1884 and 1885 I noticed a decrease, and it became so marked in 1886 that every one on the islands saw it. This marked decrease in 1886 shewed itself on all the rookeries on both islands. Until 1887 or 1888 however the decrease was not felt in obtaining skins at which time the standard was lowered from 6 and 7 pound skins to 5 and 4 1/2 pounds. The hauling grounds of North East Point kept up the standard longer than the other rookeries, because as I believe the latter rookeries had felt the drain of open sea sealing during 1885 and 1886 more than North East Point, the cows from the other rookeries having gone to the southward to feed, where the majority of the sealing schooners were engaged in taking seal. I think that the fact is sufficiently made out, then, that at or about this period a decrease was observed in the number of the seals—especially noticed in the male seals because those were the ones that most immediately concerned the lessees and their agents; also that it was a continuous decrease. I think it is well established that this was the period during which pelagic sealing was born or at'all events culminated: that from 1880 to 1887,1888,1889, and 1890, it kept constantly ORAL ARGUMENT OF FREDERICK R. COUDERT, ESQ. 375 remains to be ascertained. Senator Morgan.—Mr. Coudert, have you any figures to shew what was the number of vessels that were engaged in pelagic sealine in 1891 and 1892? Mr. Coudert.—Yes; I intend to produce them, and to give the n ames of the vessels and the numbers; and to shew the enormous increase of this business. Senator Morgan.—In 1891 and 1892? Mr. Coudert.—Up to 1891, and even 1892. Mr. Justice Harlan.—On page 207 of the British Commissioners Eeport there is a Table for 1891, and previous years, which shows that ' in 1891 there were 50 Canadian, and 42 American vessels, the approximate catch for this year being 68,000. Mr. Coudert.—Yes, if Mr. Justice Harlan will pardon me I will come to that and give those figures with such amendments as we think we Senator Morgan.—The point I am on is whether the modus vivendi which has been adopted twice, had any effect to stop pelagic sealing outside the Behring Sea? Mr. Coudert.—No it naturally would not. Sir Charles Eussell.—It had no operation outside there. , Senator Morgan.—For that reason? Mr. Coudert.—If it was in oporation it would have that effect, and not being in operation it would not have that effect, Senator Morgan.—I understand Mr. Coudert that there has been an actual increase in the tonnage or the number of vessels engaged in pelagic sealing since the first Modus vivendi was adopted. Mr. Coudert.—Yes ; it was a stimulation to killing seals in the North Pacific the moment they could not kill them in the Behring sea. The President.—Have you statistics about what went on during the time the Modus vivendi has applied? Mr. Coudert.—We can produce them. The President.—It will be as well that we have statistics also, if you have them, of what goes on on the islands—I do not say in point of killing seals, but in point of observation as to the number of seals. Mr. Coudert,—Yes we will give statistics on that point. As 1 said before, it would be very misleading for me to go into and give an account of isolated years. The President.—Take it in the proper time. Mr. Coudert.—Yes, we will produce what evidence there is on that subject. What I have tried to establish before the Court is this—that pelagic sealing developed with great rapidity at a certain time; that after it had reached a real and serious degree of destruction a decrease in. the seals was observed; that that decrease continued in a direct ratio to the number of seals killed at sea. So far those propositions are established, I think I may say, and the burden will be on the other side to show other reasons. This killing was cumulative. It was increasing in its effect whenever they killed females as well. Take the effect of killing 5,000 bearing mothers—if you please only 5,000—in 1880. Well, it is shown that these females will bear 12 or 13, or possibly more, offspring. Now calculate the enormous destruction, and how it would be felt after three or five years; it is enormous—it is almost iven, if it is kept up on a small it is a i it diminishes, as the birth rate. Nothing can be fatal to the herd that does not din 376 ORAL ARGUMENT OF FREDERICK R COUDERT, ESQ. ish the birth rate. Anything that affects it in the slightest degree is, by its tendency in that direction, fatal. Senator Morgan.—Mr. Coudert, will you be able to give the average value, per skin, of the fur-seals in the markets, in the years 1891 and 1892. Mr. Coudert.—I suppose we can do it—we can prepare such a statement as that. Of course, this modus vivendi was a very expensive expedient to the United States. Instead of killing them in the Behring Sea the other parties killed them in the North Pacific, and killed more in the North Pacific because they killed less or none in the Behring Sea. But, on the other hand, the United States had consented to ' tie its hands, and the loss was very great. The President.—My learned colleague asks whether there has been any influence from this modus vivendi on the prices of sealskins? Mr. Coudert.—I will see if we have statistics of the prices; I am unable to say that at the moment. Senator Morgan.—I wanted to know how much money the \ sealers were making out of it, and how much money the United S were making out of it—I do not care whether it increased the prices. Mr. Coudert.—It will be easier for me to tell you how much the United States lost out of it, because it was a dead loss to the United States and was entirely a one-sided bargain, in one sense. Tempora- 'rily it resulted in a very large loss to the United States; but as the United States are anxious to save the life of the herd, then of course it would consent to a temporary loss in order to produce a permanent benefit. Senator Morgan.—It raised the number of seals as I understand you that was killed by the authority of the United States above 60,000 up to 75,000. Mr. Coudert.—The modus vivendi did? Senator Morgan.—Yes I do not say the modus vivendi, I say the practice of pelagic sealing took 68,000 seals. Mr. Coudert.—Yes, against our 7,500. Senator Morgan.—Against 7,500? Mr. Coudert.—Yes; the only difference being that at sea they did not make discrimination; ours entirely consisted of males. Senator Morgan.—It actually resulted in a larger killing of the fur- seal than the United States had permitted on the island? Mr. Coudert.—Yes, and yet it is stated by some of the witnesses that the number of males has increased, and that they secure them without the slightest difficulty. The President.—Was it shown that the United States ever asked by diplomatic correspondence that pelagic sealing should be interrupted on the North West coast? Perhaps in the Senate of Washington you had some information about it? Senator Morgan.—Not in the modus vivendi. I think not. Sir Charles Eussell.—Not at all. A great part of the catch after the modus vivendi was on the Eussian and Japanese side. General Foster.—More than on the American side? Sir Charles Eussell.—That I do not know. General Foster.—It was much smaller. The President.—I was struck by the fact that the American Government never interfered with the question, and never asked for the modus vivendi to extend to the north Pacific outside Behring Sea. I could understand that the British Government should object to it, but I cannot understand why the American Government did not ask for it. They could have asked at that time. ORAL ARGUMENT OF FREDERICK R. COUDERT, ESQ. 377 Sir Charles Eussell.—Their case was not based on that ground at that time. You will hear the reason why they did not suggest it. The President.—Mr. Carter discussed at some length the catches of seals which have taken place on the North West coast; so the matter, is a question of interest and has a close connection with the American Case. Mr. Coudert.—In the first place let me say if you read Mr. Phelps' letters you will find that he did claim. The President.—That is what I want to know. Mr. Coudert.—You will find that he did claim that there was great destruction of the seals on the North Pacific, as well as in Behring Sea and he claimed that it should be stopped. Senator Morgan.—That was Lord Salisbury's proposition. Sir Charles Eussell.—Yes, that they would not consent to. General Foster.—Because Canada would not allow us to do so. Mr. Coudert.—Perhaps we were right—perhaps we were wrong. Sir Charles Eussell.—You were claiming territorial sovereignty over Behring Sea, and you said you had no authority outside. Mr. Coudert.—We were claiming territorial sovereignty, and that is what we are claiming to-day, and the record shows it. Mr. Phelps' letters shew it, and our case states the fact just as we are stating it to day, .and gives references in order to show this is not a new idea; and the Treaty, (which is the law of this Tribunal) says what we claimed and what we claim to day. I also state in all frankness, that this subject was not so thoroughly understood, and the great destruction which was reaped on this flock was not so well measured a few years ago, as to day. The Question is not one of estoppel on the United States. Conceding for the sake of argument, if you please, that we did not demand enough, what do both nations want to-day? That is the question. They want to stop the destruction of this herd, and how are you to do it? Senator Morgan.—It is the professed object of the Treaty. Mr. Coudert.—It is the professed object of the Treaty. Mr. Justice Harlan.—It is not so much what both nations desire, but rather what they ought to have. Mr. Coudert.—When I use the word "want", I mean that, in the sense of properly asking—properly requiring, and I do not think it is worth while to answer—(of course, I say it with all respect to my friends on the other side)—the suggestion that we did not ask enough at the time. The question to-day upon the facts is Sir Charles Eussell.—That was not my observation. Mr. Coudert.—The question on the facts is, what we ought to have in order to carry out the joint purpose of the two nations—That is, the preservation of an important industry; and if we did not know then The President.—What I meant to say was that your conclusions now, and your demand now,—what you require now—goes much further than what you asked for, or what, at least, has been expressed in the modus vivendi. There is a sort of contradiction between the extension you give now to your present requirements, and what has been put into the Treaty as the modus vivendi. That is merely what I want to call attention to—nothing more. Mr. Coudert.—I am much obliged to the President of the Tribunal, and I can only answer it in this way j . The President.—There is a certain difficulty which I think it is useful for you to bring to light. 378 ORAL ARGUMENT OF FREDERICK R. COUDERT, ESQ. Mr. Coudert.—I understand we got the best we could in the modus Mr. Phelps.—Yes ; it was the subject of a great deal of controversy. Mr. Justice Harlan.—Perhaps I may refer to the fact that President Harrison, (or rather Mr. Wharton in a letter written by direction of the President before the modus vivendi was signed), recognized the fact that regulations were required for the preservation of these fur- seals in Behring Sea, and also in portions of the North Pacific. Mr. Coudert.—Yes, and that is shewn by the Treaty itself, which speaks of the seals at Pribilof Islands and resorting thereto wherever they may come from. Those that resort to the Pribilof Islands are the ones that we claim protection over, and those in the North Pacific belonging to the herd are conceded to be Pribilof Island seals, and to come there and nowhere else. Now, if we were unable to obtain by diplomatic arrangements all that we thought right, I do not think, with all respect Mr. President, that ought to be imputed as a waiver or abandonment of our claim. The President.—I do not impute it as a waiver; I merely ask the fact whether you urged upon that question diplomatically before the modus vivendi was signed at all. If you did not ask for it, of course, it would not be conceded. It is no reproach from me. Senator Morgan.—I do not know why it would not be conceded, if it was the purpose of both Governments to preserve the seal herd. The President.—That is why I enquired whether you had not urged it at the moment? Senator Morgan.—We were not asking anything, I take it, from Great Britain. Mr. Coudert.—I think this question can be settled by the correspondence, and I am glad it has been suggested, because I can read a few lines from the correspondence, although it is getting away from my subject; but this may be important. I will read from the Appendix to the Case of the United States, volume first, page 315, a letter written by Sir Julian Pauncefote to Mr. Wharton, dated Washington, June 11th, 1891, which is before the signing of the agreement for a modus vivendi four days before. Sir Julian Pauncefote says : Nevertheless, in view of the urgency of the case, his lordship is disposed to author- ! ize me to sign the agreement in the precise terms formulated in your note of June 9, provided the question of a joint Commission be not left in doubt, and that your Government will give an assurance in some form that they will concur in a reference to a joint commission to ascertain what permanent measures are necessary for the preservation of the fur-seal species in the Northern Pacific Ocean. I have the honour, therefore, to enquire whether the President is prepared to give that assurance, and, if so, I shall, on receipt of it, lose no time in communicating it by telegraph to Lord Salisbury and in applying to his lordship for authority to sign the proposed agreement. Here is the proposition of Sir Julian Pauncefote to Mr. Wharton. Now this is the answer of the President of the United States, and the Tribunal will see that no time was lost, for it is dated on the same day. Sir, I have the honour to acknowledge the receipt of your note of to day's date, and in reply am directed by the President to say that the'Government of the United States recognising the fact that full and adequate measures for the protection of seal life should embrace the whole of Behring sea and portions of the North Pacific Ocean will have no hesitancy in agreeing, in connection with Her Majesty's Government, to the appointment of a joint commission to ascertain what permanent measures are necessary for the preservation of the seal species in the waters referred to ORAL ARGUMENT OF FREDERICK R. COUDERT, ESQ. 379 That is, the whole of Behring sea, and parts of the North Pacific Ocean such an agreement to be signed simultaneously with the convention for arbitration, and to be without prejudice to the questions to be submitted to the arbitrators. Take this in connection with the treaty itself which provides for the protection to be given to the seals that resort to the islands. All you have to find out is what seals resort to the Pribilof Islands and those seals are entitled to permanent protection. It seems to me that there cannot be any question about that. The President.—I think it was not quite out of our subject, Mr. Coudert. Mr. Coudert.—Not out; but I think it was directly germane, and I am much obliged to the learned President for making the suggestion. Now to return to the subject which was immediately under consideration, and as I think we all agree one of capital importance—the subject of pelagic sealing. I will read rapidly what is stated in the Case. I prefer to read it because I could not possibly state it more briefly and clearly than it is stated in the Case prepared by General Foster. I read, I will say to my friends on the other side, from the Case of the United States, page 187. It is an interesting and succinct history of this so-called industry: Open-sea sealing, the sole cause of the enormous decrease noted in the Alaskan seal herd in the last few years, and which threatens its extermination in the near future, was carried on by the Pacific coast natives in their canoes for many years previous to the introduction of sealing schooners. The catch was small, ranging from three to eight thousand annually, and there was little or no waste of life from the loss of seals killed and not secured, as will be seen when the means and manner of hunting employed by the Indians is considered. Even after vessels were employed in the industry, which according to Mr. Morris Moss, vice-president of the Sealers' Association of Victoria, British Columbia, was about the year 1872, the fleet was small, not numbering over half a dozen vessels. Indians only were employed as hunters, and the seals were killed with spears. With the introduction of schooners to carry the canoes out into the ocean, the sealing- grounds were extended from the area covered by a canoe trip of twenty miles from a given point on the coast to the waters frequented by the migrating herd from the Columbia River to Kadiak Island. In 1884 the schooner San Diego entered Behring Sea and returned to Victoria with upwards of two thousand skins. This was the initial point of piratical and destructive sealing. Sir Charles Eussell.—The "San Diego" was an American ship, I think. Mr. Coudert.—Possibly. General Foster.—And she was condemned by our courts. Mr. Coudert.—If they were American ships we would not resort to arbitration to take care of our seals. I proceed : This gave impetus to the trade Then it was that the Canadians came in and new vessels.embarked in the enterprise. About 1885 a new method of hunting was introduced, which has been the great cause of making pelagic seal hunting so destructive and wasteful of life—the use of firearms. White men now became the principal hnnters, and where previously the number of skilled and available sealers had necessarily been limited to a few hundred coast natives, the possibility of large rewards for their labors induced many whites to enter the service of those engaged in the business of seal destruction. From that time forward the sealing fleet rapidly increased in number, until it now threatens the total extinction of the northern fur seal. I would refer at this point to the list of sailing vessels. It is opposite page 591 of Appendix No. 1 of our Case, and I will ask the Court to look at it because it gives not only the names and accurate information in. detail, but if you examine it, it is a sort of chart which shows where 380 ORAL ARGUMENT OF FREDERICK R. COUDERT, ESQ. it begins and how it extends. It is an object lesson as General Foster suggests and one of singular interest aud importance. The chart is at page 591, beginning with that small beginning and extending and expanding as you see here until we have Senator Morgan.—Is that a list of the vessels? Mr. Coudert.—Yes sir; that is a list of the vessels. Senator Morgan.—What year does the last column refer to? Mr. Coudert.—The last column refers to 1892. Senator Morgan.—How many vessels are there? Mr. Coudert.—I have not counted them. Sir Charles Eussell.—There is a summary at the bottom of it. Mr. Coudert.—In 1892 there were 122. In 1875 there was one. And there is no reason to suppose that they will not continue increasing. On the contrary, there are reasons to believe otherwise. Mr. Justice Harlan.—Mr. Coudert, the President has asked me a question Which I am unable to answer. I see in 1891 there were 115 vessels. Were those vessels in the North Pacific alone or were their operations affected by the modus vivendi ? Mr. Coudert.—They were in both, I understand, Sir, the North Pacific and Behring Sea. Mr. Justice Harlan.—How did they get into the Behring Sea after the modus vivendi of 1891 ? Mr. Blodgett.—Because they sailed before the modus vivendi was made and did not get notice of it. The modus vivendi was not signed until June 15th and most of them had sailed and were not intercepted. The President.—There were no seizures in 1891 ? Mr. Justice Harlan.—Yes; I think there were some. Mr. Carter.—They were warned away. The President.—But not seized? Mr. Carter.—Some of them. The President.—But there is a very notable increase, you will remember, in the number of these sealing vessels during the two years of the modus vivendi. They were almost double. Mr. Carter.—The whole of the North Pacific was open'. The President.—I see the number is nearly double in the two last columns over the preceding ones and that is precisely the year when the modus vivendi was in operation. Senator Morgan.—That is because they found the fishing on the outside twice as good as it was on the inside. Mr. Carter.—The price of skins was twice as great. Mr. Coudert.—There is also this and it is the strongest possible illustration of what the President stated a minute ago. Notwithstanding this modus vivendi in 1891, 28,888 seals were killed in Behring Sea. Take those figures in connection with that sort of chart that I have given you, that list which operates upon the mind's eye as a chart or object lesson and you can see what proportions this is taking. I will say in addition, that it is an ever increasing business. And you are asked by our friends on the other side to make provision, not only for the business as it exists to-day with its numerous fleet, but as it is likely and certain to exist in the future. Mr. Justice Harlan.—I do not gather your statement exactly. Mr. Coudert.—28,888 are figures we have of that catch in 1891 in Behring Sea. Mr. Justice Harlan.—Notwithstanding the modus vivendi? Mr. Coudert.—Yes sir. That we get from our adversaries. ORAL ARGUMENT OF FREDERICK R. COUDERT, ESQ. 381 The President.—Perhaps Mr. Blodgett will tell us whether the sealing has yet begun in this year. You say that in 1891 the sealing had begun before the notification of the modus vivendi could be communicated. How is it this year? Mr. Blodgett.—The notification was not made until the 15th of June. The sealing vessels left Victoria, Port Townsend and San Francisco several weeks before that and were out on the ocean. They got no notice. Some of them were met by the cruisers of the United States in the Behring Sea and warned out. Others remained there and made their seizures. The President.—I am afraid they may go on this year, and there - will be an increase. General Foster.—I think I can make it clear, if you will allow. In addition to what has been stated as to 1891, in 1892 under the modus vivendi the presence of vessels in Behring Sea with fishing equipment on board was a sufficient justification of her condemnation without any notice. That is the difference between the condition of things in 1891 and in 1892. Consequently only a very few vessels went into Behring Sea in 1892; because if they had gone in it did not require a notice previously, but their presence there would be the cause of their condemnation. The commander of the American fleet reports that less than 500 seals were taken in Behring Sea in 1892. That modus vivendi will be in operation the present year. The sealing season has not yet begun in Behring Sea. The seals have not reached there. Sir Charles Eussell.—To make the matter intelligible, if I may be permitted to interrupt as so many of my friends are interrupting—you will recollect, Mr. President, that there is an imaginary line drawn down Behring Sea, to the east of which line is the Behring Sea claimed by the United States. The other portion of the Behring Sea to the west of that line was not at all affected by any of these arrangements embodied in the modus vivendi of 1891 or of 1892; and the result was as Mr. Blodgett has said, some of the vessels did go to the eastern part of Behring Sea before the promulgation of the modus vivendi; but after that promulgation they went to the west of the line and continued fishing along the Japan and Eussian coasts. Mr. Justice Harlan.—Was this 28,000 which Mr. Coudert referred to the number of seals taken west or east of that line? Sir Charles Eussell.—A large part of it, or practically so of the year's catch to the west and south. Mr. Coudert.—To the west, on the Eussian side. The President.—In the free waters. Sir Charles Eussell.—I will not say all of it, because, as Mr. Blodgett has properly said, some of the vessels went into the Bering Sea, as usual, before the promulgation of the modus vivendi; but substantially the bulk of it—the larger portion—to the west and south. General Foster.—I am very sorry to call in question the statement, but I think the facts will show, on critical examination, that the 28,000 reported are the catch of Behring Sea proper, as we understand it, within the American territorial lines; and that is kept separated in the report from the catch on the Asiatic coast, which is in separate statistics. I think an examination will show that the 28,000 seals were taken in what are called the American portions of Behring Sea. Mr. Coudert.—We have also in connection with this a map or chart, showing the position of the sealing vessels seized or warned by the Government of the United States during the season of 1891. Sir E. Webster.—What is the number of that chart? 382 ORAL ARGUMENT OF FREDERICK R. COUDERT, ESQ. Mr. Coudert.—It is No. 6 in our book of maps, "Seizures, 1891", and it will show that those ships then had no scruples as to being in our waters because every one of them, as indicated on this map, are in American waters. Without dwelling upon that map, I simply call attention to it. Sir Charles Eussell.—You mean east of the line? Mr. Coudert.—Yes. We have it, then, that in 1891, notwithstanding the obstacles interposed, there were 28,888 seals killed by the pelagic sealers. We take issue with our learned friend on the other side when he assigns a Eussian domicile to those seal in the main. On the contrary, we claim that they were caught, if not all, at least the greater part of them, on our side of the Behring Sea. But I propose to go on with the question that was under discussion, and to read now more about this sealing from page 189 of our Case. That is as to the method : The vessel commonly used in sealing is a schooner rangin hundred and fifty tons burden; the average tonnage per vesse in 1892 being 63.2 tons. That is the average tonnage per Vessel, 63 and a fraction. I continue: The number of hunters and canoes or boats carried by a sealer depends upon the size of the vessel, but the average number of canoes is between ten and sixteen, each manned by two Indians, and when the hunters are whites the boats generally number five or six. In some cases both Indians and whites are employed on the same vessel. The average nnmber of men to a vessel in 1890 was twenty-two. The Indian hunter almost invariably uses a spear, and though in the last two or three years firearms have been carried in the canoe, the principal weapon used by him is still the spear. A full description of the spear, canoe, and manner of hunting is given by Lieut. J. H. Quinnan, who acsompanied some of the Indians in their canoe during a hunting excursion. The most expert spearsmen are the Makah Indians of Neah Bay, Washington. The Indian, from his method of hunting loses very few seals that he strikes, securing nearly all. The white hunter, on the contrary, loses a great many seals which he kills or wounds. Each boat contains a boat-steerer, and a boat-puller; the hunter uses a rifle, a shotgun, or both, the shotgun being-loaded with buckshot. A minute description of the methods employed by both white and Indian hunters is given by Capt. C. L. Hopper, commander of the United States revenue- steamer Corioin, who was many years in the waters of the North Pacific and Behring Sea, and makes his statements from personal observation. I will give the Tribunal some figures. I read now from page 366 of the Case of the United States, from the reports of the Behring Sea and the report of the American Commissioners. We have the catch for all the years from 1872 to 1891, on page 366. The sources of information upon which the table is based that we submit to the Tribunal are given in the note, and they will be found to come from sources which are not open to suspicion, but if they could in any way be supposed to favour either party, it would be our friends on the other side: show sold a a result of pelagic sealing Yea, No. of skins. Year. No. of skins. 1872 1,029 1882 17,700 9,195 * 14,000 13, 000 38, 907 4,949 2| 042 9,593 12,500+ 13,600 13, 541 62] 508 nated from value gi ORAL ARGUMENT OF FREDERICK R. COUDERT, ESQ. 383 The Tribunal will observe that in 1891 the figures are given as 62 500. A moment ago I gave some figures for that year of 28,888, but that was only Behring Sea we then spoke of : the total catch being 62,500, leaving still open the question that Sir Charles Eussell suggested a moment ago, that some or many or few were taken from the Eussian side. The President.—The British table that has been mentioned, on page 207 of the British Commissioners Eeport, gives the total for 1891 as 68,000. Mr. Coudert.—Which makes it still stronger. The President.—Their figures are stronger than yours? Mr. Coudert.—Yes sir. We are satisfied to take either of those figures. Sir Charles Eussell.—Our partial Commissioners ! Mr. Coudert.—They may make a mistake on the side of right, of course. Anybody might. Mr. Justice Harlan.—The difference, perhaps, is explained by the fact that the British table approximates the catch of both Canadian and United States vessels, whereas in your table the Canadian catch only is given, and the United States catch is not given. Mr. Coudert.—Then I take back what I said. The tribute to the British Commissioners is undeserved. Sir Charles Eussell.—It includes the United States catch except that portion which is sold in California. Mr. Justice Harlan.—To which table do you refer? Sir Charles Eussell.—The table on page 366, which has been referred to. The catch of American vessels sold in San Francisco is not included. That is the only thing that is excluded. The President.—I think we can agree by this comparison that both tables have been drawn out very fairly, and with great credit to both parties. Mr. Coudert.—I hope the Tribunal, notwithstanding my desire to acquiesce, will not hold me as endorsing the opinion that the tables prepared by our friends on the other side are impartially drawn, for I do not believe they are. The President.—Wé know your opinion about the British Commissioners, and perhaps we had better leave that. Mr. Coudert.—When I find fault with what the Commissioners aver, I hope I need not repeat what I have said before, that these gentlemen, of course, are incapable of making a misstatement; and when they tell us what they saw or what they did, we accept their assurance without the slightest hesitation; but I think it was one of your fellow- diplomats, Mr. President, who said : "Give me a pen and figures, and I will prove what you like". That is true in diplomacy, and it is true in Commissions also. The President.—I think, Mr. Coudert, you can show that it is not necessary for you to have a pen and ink for that. The Tribunal here adjourned until Tuesday, May 9,1893, at 11.30 o'clock A. M. NINETEENTH DAY, MAY 9™, 1893. Mr. Coudert.—May it please the learned President and the Arbitrators. Before proceeding with the regular course of the argument such as I was pursuing at the hour of adjournment, I want to ask the attention of the High Court to a printed statement that has been compiled under the care of General Foster, and which may be of some use to the Court. A copy has been handed, or will be, to our friends on the other side. I use it for the sake of convenience. The learned Arbitrators will recall that there was some discussion as to the effect of the modus vivendi; and it was plain the modus vivendihad operated entirely to the disadvantage of the United States, and that, while the United States had tied up its hands and had prevented itself from going on with its regular and legitimate business in the interests of harmony and conciliation, the work of devastation had been going on in the North Pacific, and an enormous number of seals had been slaughtered. In connection with this and to make it more definite, I will read this short statement; adding that every statement here made is taken from the evidence in the Case. The seals killed on the Pribilof Islands in 1890 amounted to 21,238. That is our number of seals killed. The pelagic catch, according to the British Commissioners Beport, amounted to 51,655; being a total catch of 72,893. In 1891, the year following, under the modus vivendi of that year, the seals killed on the Pribilof Islands amounted to 12,071. The pelagic catch gave 68,000 to those engaged in that business ; making a total of 80,071. The seals killed on the Pribilof Islands last year, that is in 1892,. under the modus vivendi of that year, were 7,500. In the pelagic catch there were captured 73,394, being a total catch of 80,894. Now, your Honours will see from this statement that, in 1890, 21,000 were killed; in 1891, only 12,000, and, in 1892,7,500 on the islands; leaving an enormous margin to be filled up in some way or other to supply the wants of the world. Those wants were never completely filled, though the pelagic catch, as you will see, very largely increased during those three years. The natural result, of course, was to affect the prices of the skins; and these we have given. In 1889 the average price per skin was $6.83. In 1890 it rose to $10.70; and, in 1891, the average price per skin was $15 less one cent.* Senator Morgan.—Was that the price in London ? Mr. Coudert.—No this was the price in Victoria. That is where all these skins go. They are sold there and then sent on to the dressers in London. So, you will see, the result of this was to send the price of skins up more than double. That is from $6.83 to $14.99. There was naturally a greater demand for slaughterers on the high sea and the wages correspondingly rose. In 1889 the price paid to hunters per skin was $2 to $3. In 1891, $3.50. In 1892, $4, and the business becom- ORAL ARGUMENT OF FREDERICK R. COUDERT, ESQ. 385 tog thus profitable owing to the fact that competition on the part of the United States had been practically abrogated, we find the vessels engaged m sealing correspondingly increasing in number. In 1890 the number of vessels was 61. In 1891 it was 115 and in 1892,122. What t t II °f a protracted'modws vivendi ^ould be it requires no prophet The following is the Table handed in : Pribilof and pelagic catches for 1890, 1891, and 1S9Z. 1890 Seals killed on Prihilof Islands oi oqo (U. S. Case, vol. II, p. 112). ' PelagicCatch 51 Rm (Br. Com. Report, p. 207). ' Total Catch.. Seals killed on Pribilof Islands 12 071 (U. S. Case, vol. I, p. 333). PelagicCatch 68,000 (if»-. Com. Report, p. 207). Total Catch g0 071 1892 Seals killed on Pribilof Islands 7,500 (Modus vivendi). PelagicCatch 73,394 (U. S. Counter Case, p. 458). Total Catch 80,894 AVERAGE PKICE OP SKINS AT VICTORIA. 1889. Average price per skin $6.83 1890. Average price per skin 10.70 1891. Average price per skin 14.99 (U. S. Case, vol. II, p. 534). WAGES PAID HUNTERS AT VICTORIA. 1889. Price paid per skin $2 to $3 1890-91. Price paid per skin _ 3.50 1892. Price paid per skin 4.00 (British Counter Case, vol. II, p. 222). VESSELS ENGAGED IN SEALING. 1890. Number of vessels 61 1891. Number of vessels 115 1892. Number of vessels. 122 ( U. S. Case, vol. I, p. 590). I want to supplement this by a paper which is not printed but which I will hand to my learned friends on the other side, so that they may comment upon it or criticize it as they please. It is the pelagic catch of the Victoria fleet in 1891. This is a matter of computation, and I shall not dwell upon it; if my learned friends find it incorrect they can state their corrections. Table. A of the British Commissioners' Eeport, page 205, contains a list of Canadian sealing vessels, with the date of their warning in Behring Sea, and of their return arrival at Victoria. Of these vessels, 44 are shown to have taken seals in Behring Sea, and of the latter, 29 were found and warned on the American side of the B s, PT XII 25 386 ORAL ARGUMENT OF FREDERICK R. COUDERT, ESQ. sea, and 3 others not warned are shown by testimony to have entered that side, establishing the fact that at least 31 out of 44 British vessels did take seals on the American side in 1891, in spite of the modus. A careful examination of the table and of the data in evidence has been made, with the following approximate result. Catch in American waters of Behring Sea 23,041; on the Asiatic side 5,847, being a total for the Behring Sea catch of 1891 of 28,888. I repeat, we will hand a copy of this to our learned friends on the other side. I will now come back to the question I was discussing, namely, the nature, character, and effect, the fatally destructive effect of pelagic sealing; and it is hardly necessary to argue, but I shall to some brief- extent endeavour to prove that if I have shown enormous slaughter of the seal and that of the most cruel, and mischievous and destructive kind, it is unnecessary to produce much proof to account for the loss on the islands. As it is in evidence, and as it is uncontradicted that all the mothers go to the islands, that all the young are born there, it is manifest and requires no proof to show that if I have proved a large number of mothers to have been killed during a long consecutive number of years, the result is inevitable, and the birth-rate must have been most seriously diminished on the land. The catches from 1871 to 1882 average over 13,000 for Canadian vessels alone, and this, of itself, without further explanation or comment, is sufficient to account for the decrease which was noticed on the Pribilof Islands in 1884 and 1885. Of course, there was a decrease but it was not noticed until then. Naturally they would only notice it when they came to picking out the young males and then the supply, or, as it is called, some times, the crop, of three or four years before not coming up to the usual level, it was observed that the supply of killable males was deficient. It is probable that American vessels took as many seals during those years as did Canadian vessels. The figure of 13,000 takes no account of the fact that a large number must have been—that a large number were and are proved to have been gravid females, and that a certain number in addition were lost. How large the number of those lost by what we have called waste, that is by being wounded or killed and going down to the bottom of the sea because of the specific gravity being so much greater than that of water, of course is a matter of conjecture. Our proofs estimated this very high, as high as 50 or 60 per cent. The proofs on the other side 5, 6, 7 and 8, and even as high, I believe, as 10, though it is in proof from their own witnesses, that what is called the green hunter—and the green hunter is a chronic appurtenance to sealing on the sea, as I have shown,—misses 25 per cent at least of those that he shoots or shoots at. Indeed with regard to pelagic sealing, there is one element about it as to which we all agree and which ought to be fatal to its existence, if it is intelligently considered, namely, that it-cannot be properly restricted because you cannot, by the very nature of things, discriminate. A man who would go into his cattle yard, killing right and left males and females, the bulls and the cows, would probably have a committee appointed for him to take charge of his estate, because he was unfit to manage it himself. This is precisely the same, except that it is almost as bad as though this cattle owner or farmer were to put all his gravid females in one barn yard, and proceed to slaughter them in preference to all the rest—that is the only difference that I can see. It is indiscriminate, I say, and that requires no argument: it is admitted. ORAL ARGUMENT OF FREDERICK R. COUDERT, ESQ. 387 Here is the practical, realistic way in which our friends, the British Commissioners, state it. There is no idealism about it. Section 633. md by the Indian hunters along the coast, fur-seals of both ~"A it would be unreasonable, under the circumstances, to >uld be made in this respect, any more than that the tween the sexes of the fish he may hook. It is absolutely true. If you permit pelagic sealing, do not ask the impossible. Tell the sealer, "Go on, call it fishing; treat it as fishing, and have no more sentiment or regard upon the subject than when you drop your baited hook into the depths of the Ocean and pull up a fish.» The effect of this, fortunately or unfortunately, we know something about. Climate does not regulate this matter, but the laws of nature; and nature herself has prohibited, under penalty of extinction of the thing, itself, the killing of females. Here is the experience of the world as taught us in the Southern Seas. That map is an object-lesson, to which I will call the attention of the Court in one moment; but first, let me read what the British Commissioners, at section 860, say upon the subject: It is a matter of some difficulty to estimate the total number of seals taken in the South Seas during the period of the excessive energy of the great sealing industry. But there are actual records which, added together, bring the acknowledged total to more than 16,000,000. These seals were taken from about thirty different " " on the mainland, and they were all taken by the one method slaughter on shore. It is probable that this wholesale slaughter did not extend over more than seventy years, but it is certain that at the end of the period the fur seals were so terribly reduced in numbers that even the sixty years of subsequent rest and total cessation of killing have not sufficed to bring about any effectual restoration of the numbers of years gone by. While the condemnation of these British Commissioners attaches to this kind of killing, why should it not attach equally to indiscriminate slaughter on the high seas? What is the difference? It is more convenient; and that explains the raiding upon our Islands. It is less dangerous, because the tempests do not touch and possibly imperil their lives. But what is the difference between killing on the high sea indiscriminately and killing upon the land indiscriminately? The havoc that operated upon the Southern Seas in a few years made a wreck of this business; shall it not make a wreck in the future? I want to read briefly from the Case of the United States, page 218. The indiscriminate slaughter of seals in the waters of the Pacific Ocean and Behring Sea can not fail to produce a result similar to that observed in the southern hemisphere, where the fur-seals have, except at a few localities, become from a commercial point of view, practically extinct. A full account of the distribution and the destruction of the antarctic seal herds is given by Dr. Allen in his article found in the Appendix? Now, the most important of the localities are shewn on this map; and my friend, Mr. Lansing, will be good enough to point them out. The most important are as follows. One is Masafuero, Juan Fernandez, the coast of Chile, Cape Horn, the Falkland Islands;—those were once the homes of the seals where they congregated in large numbers.-— the South Georgia Islands, Sandwich Land, South Shetland Islands, Tristan d'Acuuha, and Georgia Island. Then the West Coast of Africa, the Island of Prince Island, Crozet Island, Saint Paul and Amsterdam Islands, Kerguelen Island, the South Coast of Australia, Tasmania, and the Islands south of New Zealand. The seals in all those localities, says our case, have been destroyed by the indiscriminate killing of old and young males and females. If 388 ORAL ARGUMENT OF FREDERICK R. COUDERT, ESQ. the seals in these regions had been protected and only a certain number of young males allowed to be killed, these lands and coast would be again populous with seal life, and that may be a subject for the con- - sideration of this high Tribunal, whether the decision you will give in this case will not extend much further than to the protection of the seals in the North Pacific and the Behring Sea, but whether it will not extend so far that the rights of the property owners or of the owners of the industry being conceded and the value of the industry to the whole world being ascertained and stated, such protection would not extend over that large part of the world and whether there would not be a restoration in time of these valuable herds of animals and the rights of those who have rights there, be, efficiently though indirectly, protected. With regard now to the results, and to show how injurious and destructive they are. I read these statements in our case from page 216 : The injurious and destructive effects of open sea sealing, as demonstrated above,' can be summed up as follows : Between eighty and ninety per cent of the seals taken are females; of these at least seventy five per cent are either pregnant or nursing; that the destruction of these females causes the death of the unborn pup seals or those on the rookeries dependent on their mothers for nourishment; and, finally that at least sixty six per cent of the seals killed by white hunters are never secured. As to this last figure, it is fair to say there is a considerable divergence of opinion among the witnesses. Besides this the females taken in Behring Sea have certainly in the majority of cases been impregnated and their death means not only the destruction of the pups on the island but also of the fœtus. Hence, if 10,000 females are killed in one season, this fact means not only the depletion of the herd by at least 17,500 that year but also the reduction of the annual birth-rate by 7,500 each following year for probably fifteen years— it seems to be almost incalculable— Now what do our friends on the other side say with regard to that? Do they say that females are not taken? Not at all. So they deny that a large proportion of the seals taken are females? Not at all. Do they deny that a large proportion are gravid ? Not at all. All this they concede. They do not agree that our numbers are correctly stated, there may be a difference—and when we say that as many as 96 per cent are females, and gravid or nursing females, they differ from us and say that our statements are exaggerated. Practically I think that makes no difference provided the proportion is large. But how many females do they say are actually taken? That is a question which will probably trouble the Court. Much testimony is collated in the British Counter Case, pages 202 to 207. We summarize the testimony upon that point to which I haVe called attention in this way: that of the witnesses (136,1 think they number in all)—54 said that they took an equal number of males and females; 45 took a greater number of females than males; and 37. of them out of this total number, took 50 per cent of females, or oyer. In making these calculations it has been assumed that those who state that they took more males than females in the Pacific, and more females than males in the Behring Sea, without giving us any figures, took an average or equal number of males and females. Now I shall not read this testimony, but the High Court will find it, I think, as we have found it, inextricably confused and misleading. It would seem that the parties either had most varied and singularly ORAL ARGUMENT OF FREDERICK R. COUDERT, ESQ. 389 varied experience, or that some of them, at least, were unscrupulous and simply testifying according to the exigencies of what they supposed to be their case. It is fair to the British Commissioners themselves to say that they give very little credit to them, and admit that even allowing for diversity of interest in this matter, it is impossible to reconcile the testimony of these parties. The High Tribunal will observe that these men, assuming that they were testifying—(I am speaking of the sealers)—according to the interests of the case were in a most embarrassing position. They were likely to be impaled on either horn of the dilemma, whether more females or more males; because, if they say there is an enormous number of males, on the high seas, it being proved that all these males were born upon our shore and allowed to leave without being put to death, what becomes of the reproach that we were killing an excessive number of males? If, on the other hand, there is an excessive number of females killed, then the point that we make, that it is a brutal, cruel, and barbarous business, is established. I sympathize with these men. There w.as only one way of extrication, which was to tell the truth; and let us assume that many of them tried, but failed. But this embarrassment was not only confined to the witnesses. The dilemma was the dilemma of Counsel themselves, because Counsel would not try to mislead the Court. Counsel would not, even for the purpose of winning their case, lead the Court one single step astray, and ask the Court to believe what evidently, manifestly, and palpably was untrue. So that when our friends on the other side comment on the testimony, (much of which shows that the number of males killed is enormous—some say they killed ten males to one female), they dismiss it in silent contempt, and here is what they say. I will read from the British Counter Case, page 258. From the outlines above given relating to the persistent killing of males upon the breeding islands, it is likewise easy to understand that the allegations respecting the large proportion of female seals included in late years in the pelagic catch may, to some extent at least be founded on fact; the actual ratio thus brought about as hetween the sexes rendering it certain that in sea sealing a much larger number of females than of males must be met with. I might, perhaps (and I think if this were an ordinary case tried before a Judge and a Jury I should), stop here and say: Here is an admission that more than half the seals killed are females; and what difference does it make really to this Tribunal, what difference does it make to this Court or to the Counsel, if instead of 96, it is 56? The evil is not quite so great for to-day, but the destruction is just as certain for the future; and we are trying to provide for the future. And when our friends on the other side say there are more females because you killed the males, the fact, nevertheless, remains that, whatever may be the cause, you are going to the fountain of life and extinguishing the possibilities of the future. I am now going to ask the learned Tribunal to permit me to hand up a collation of the testimony that I shall read from. It has been printed for the use of the Court, and it will save frequent references. I will hand a copy of it to my friends on the other side. Sir Charles Eussell.—I think it ought to have been handed to us before now. . n Mr. Coudert.—I will read from the evidence if you prefer it. ■ Sir Charles Eussell.—No. Mr, Coudert.—It is simply taken from the book. The reason is this, that as many Avitnesses are referred to, it would occupy the time of the Tribunal to turn over the various pages. It is merely for convenience j it does not change the situation of the case at all. ' 390 ORAL ARGUMENT OF FREDERICK R. COUDERT, ESQ. We will begin by producing what may perhaps be the most satisfactory evidence, starting, of course, with this idea—that it 'S a fact in the case that more than half these animals are females; but I ought to preface my reading with this remark, that we took the testimony of a large number of British subjects, men who, certainly as far as nationality is concerned, would not be prejudiced in our favor. We went to the most respectable sources in England and in France; we found the very best men—the best because they knew the most about, and stood the highest in the business ; and our friends on the other side had the opportunity to cross-examine them. Now in some cases they did cross-examine—perhaps in all cases—but "they have given us, in a few cases, the result of that cross-examination; and wherever they have done it we have stated it in these printed extracts. Sir Charles Eussell.—Tes, but not giving it in full in any of them. Mr. Coudert.—That may be. You can use this for what it is worth. There is no misleading; because when we say that cross-examination appears in the British Counter Case at a certain page, it is manifest that we do not pretend to give what is there—we refer yon to it. The first witness called is. H. S. Bevington.—Head of the firm of Bevington and Morris, Furriers, London. (Case of the U. S., Appendix, vol. II, p. 551.) It appears that the above firm was founded in the year 1726 and that deponent has • been in the business ever since 1873. He says : That the Copper and Alaska skins are almost exclusively the skins of the male animal, and the skins of the Northwest catch are at least 80 per cent of the skins of the female animal. That prior to and in preparation for making this deposition deponent says he carefully looked through two large lots of skins now in his warehouse for the especial purpose of estimating the percentage of female skins found among the Northwest catch, and he believes the above estimate to he accurate. Mr. Bevington's cross-examination appears in the British Counter Case, Appendix, vol. II, page 249; he has nothing to say upon the above subject. Now whether we state this correctly, or not, we certainly facilitate the investigations of the Court, and our friends on the other side, by giving them the references. Now the next is : Alfred Fraser, member of the firm of C. M. Lampson and Co., of London; (Case of the U. S., Appendix, vol. II, p. 554.) ■ Mr. Fraser is 52 years of age, and a British subject, residing in the United States. The great majority of the skins sold from the Northwest catch are the skins of female seals. Deponent is not able to state exactly what proportion of skins are the skins of females, bat estimates it to be at least 85 per cent. The next is Walter E. Martin, Head of the firm of C. W. Martin and Sons, Furriers, London. (Case of the U. S., Appendix, vol. II, p. 569.) The above firm have for many years dressed and dyed over 110,000 skins per Deponent has made no computation or examination which would enable him to say specifically what proportion of the Northwest catch are the skins of the female seal, but it is the fact that the great majority, deponent would say 75 to 80 per cent, of the skins of this catch are the skins of the female animal. Mr. Henry Moxen, furrier of London was then examined. This very witness has a direct examination by the British Government; and it is evident, from the language he uses, and by his phraseology, that he ORAL ARGUMENT OF FREDERICK R. COUDERT, ESQ. 391 What are the na A. My firm have h sider the proportion of females in the north-west "catch Ï-.A.' Not untiTthhTquL arose, because prior to that no distinction was ever made either in buying skins or in selling them. They are simply sorted in quality and size, and not for the question of sex. Q. Have you, with the view of informing yourself, on the question, latelv examined any consignments of north-west sealskins?—A. Yes, last week; I went carefully through a parcel of 2,000, and came to the conclusion that the percentage of females did not exceed 75 per cent, at the most. Now here is a man who selects his own parcel, who is a witness for the other side, who evidently does not mean to increase it or enlarge, the proportion; and he fixes it at 75 per cent. The next is Henry Poland, Head of the firm of P. R. Poland and Son, Furriers, London, established in 1785. (Case of the U. S., Appendix, vol. II, page 571.) vol. II of the Appendix to Tha ; the Northwest skin s are in turn distinguishable from the Copper Island Alask k skins, first by reas< n of the fact that a very large proportion of the a skins are obviously the skin s of female animals; second, because they are all pie witbl he spear or harpoon or shot in consequence of being killed in open sea. II, page 250.) As regards what is generally known as the Northwest catch I consider that on the whole the proportion of females to males taken is from 75 to 80 per cent; in grey pups and extra small pups the proportion would be 50 per cent. In the large sizes the proportion, on the other hand, would exceed 80 per cent. The next is William C. B. Stamp, Furrier, London. (Case of the U. S., Appendix, vol. II, 574.) He has been in husiness 30 years. He says : I should estimate the proportion of female skins included within the Northwest catch at at least 75 per cent and I should not be surprised nor feel inclined to contradict an estimate of upwards of 90 per cent. My sorter who actually handles the skins estimates the number of female skins in the Northwest catch at 90 per cent. Probably no man in the establishment could do it better than a sorter. (Cross-examination by British Government See British Counter Case, Appendix, vol. H, page 572.) Referring to the statement made in my said former declaration (namely that contained in volume II, App. to U. S. Case) that I should not be surprised nor feel inclined to contradict an estimate of upwards of 90 per cent of female skins in the Northwest catch, I say that whilst it is possible with tolerable accuracy to separate female from male skins in the larger sizes, as regards the smaller sizes of seals under the age of two years it is a matter of great difficulty, and often impossibility to determine the sex. I do not understand, however, that this gentleman means to say that his statement was not correct in every respect when he made an estimate of 80 per cent. Of course they are very few, or small. 392 ORAL ARGUMENT OF FREDERICK R. COUDERT, ESQ. -, London. :se of the U. S., Appendix, vol. II, page 572.) Mr. Rice's cross-examination appears in the British Counter Case, Appendix, volume II, page 246. He neither retracts nor modifies anything contained in the above quotation. The next is Emil TeichmaN, of the firm of C. M. Lampson and Co., Fur Dealers, London, formed 60 years ago. Probably this firm has more experience than any other firm in the world. His firm have had consignment of 4/5ths of all the seal skins sold since 1870. They sell Alaska, Coppers and Northwest Coast skins. (Case of the U. S., Appendix, vol. II, page 581.) The most essential difference between the Northwest skins and the Alaska and Copper catches is that the Northwest skins, so far as they are skins of adult seals, are almost exclusively the skins of female seals, and are nearly always pierced with shot, bullet or spear holes. The next is Emil Hertz, of the firm of Emil Hertz and Co., Furriers, Paris. (Case of the U. S., Appendix, vol. II, page 587.) The firm buys sealskins at London auctions in the undressed state and has them dressed in London, and dyed partly in London and partly in Paris. That the said firm can distinguish very readily the source of production of the skins when the latter are in their undressed state; that for several years besides the skins of the regular companies... . the said firm has bought quantities of skins called Northwest coast, Victoria, etc. That these skins are those of animals caught in the open sea by persons who apparently derive therefrom large profits, and nearly tbree- quarters of them are those of females and pups, these probably being less difficult to take than the males ; that these animals are taken by being shot. Then we have the evidence of Mr. Eévillon, which I alluded to and partly read the other, day, and I will read that : Léon Révillon, of the firm of Révillon Frères, Furriers, Paris. (Case of the U. S., Appendix, vol. II, p. 589.) That the said firm of Révillon Frères have bought during the last twentv years upwards of 400,000 seal-skins. That deponent believes that the firm of Révillon Frères is by far the largest firm of furriers and fur-dealers in France. That we have often heard, and from different sources, that these last-named (Northwest coast) skins are in the majority the skins of the female seal. The thinness of the hair upon the flanks— I want to call attention to this because I will refer hereafter to this evidence : seems to confirm this assertion, although it truth of this statement for ourselves, for when the seals have been dressed the signs of the mammte disappear. At any rate the employment of these skins is much less advantageous to our business because there is a great predominance of small skins, which are evidently those of young seals which are not killed by the companies which have the concessions for the Alaska and Copper sealskins. Moreover these Victoria or Northwest coast sealskin's are riddled with shot, which very materially depreciate their value, while the seals of both the Alaska and Copper companies are killed by a blow of a club upon thelhead, which does not at all impair the quality of the skin as regards its ultimate uses. ORAL ARGUMENT OF FREDERICK R. COUDERT, ESQ. n by British Gove Q. The first point on which I desire an e:s deposition that you have often heard, and fi of the North-west skins are the skins of. th of your bu r Case, Appendix .8 to the statement ii , that the majority all logue and s -A. No of fact, Mr. der the question of sex at buy or sell by sex. It is never mentioned in any sale cata- >uy in lots, which are made up according to sizes, such as middlings . surge pups, small pups, etc. Q. Any of these lots then may contain both male and female skins?—A. Yes. Q. The question of sex, therefore, is not an element which you consider in the price', and is one which you never have to consider?—A. That is so. The explanation of this is that it seems to be more (as far as any- difference between Counsel on the other side and ourselves are con- - cerned), a play upon the words. They do not consider the question of sex per se—the question is as to the quality of the skins—and there the question of sex with other items comes in and Mr. Eévillon states this— that the thinness of the hair upon the flanks through the distension of the skin affects the thickness of the fur, and upon the thickness of the fur, to a great extent, depends the value of the skin. It is not likely Mr. Eévillon ever troubled himself to examine the skins,—they come in two, three, five and ten thousands and he being the head of the firm probably never examined a lot in his life. I do not know whether he did or did not—but he knew what the common report was, and he tells us that he has heard, and often heard, and from different sources that the majority of these skins were taken from females ; and then he goes on to tell you why that is important—namely, that by reason of the distension of the skin of this animal in its condition as a mother, or one about to become a mother, the value of the fur is affected. We now have the evidence of. George Bantle, of San Francisco, packer and sorter of r rskin Mr. Bantle is 53 years old and has b« for the last twenty years. In the last 1 from 10,000 to 15,000 raw seal-skins. I have examined and sorted a gre schooners, and have observed that they and yearlings. Then the next is. John N. Loestj (Case of the U.S., Appendix, vol. II, p. 508.) ears old and has been acting as packer , of San Francisco, Furrier, of 28 years experience. (Case of the U. S. Appendix, vol. II, p. 516.) amiTiAd t.be catch of a great many sealing schoom 90 per cent of the skins t: I have bought the last ten years from female seals. The next is. B. H. Steeneels, of San Francisco, Furrier. (Case of the U. S. Appendix, vol. II, p. 522.) He has been engaged in handling and purchasing furs for 26 years ouahly familiar with the fur-seal skins in their raw and dressed conditio.. In buying the catch of schooners engaged in the sealing business, I have observed that fullv 75 T>er cent of them were females and had either given birth to their young avy in pup when killed, which was easily observed by the width of the, " uid the small head and development of the teat. skin of the belly and the small head and development o. 394 ORAL ARGUMENT OF FREDERICK R. COUDERT, ESQ. Of course, any skilful man must observe these things as he examines a skin, especially when he finds skins that are so riddled with bullets. Now the next is : Samuel Ullman of New York, member of the firm of Joseph Ullman, Furriers, one of the great fur houses of the world. (Case of the U. S. Appendix, vol. II, p. 527.) The house of Joseph Ullman began its fur business in 1854, and has dealt in fur- seal skins ever since they became an important article of commerce. The house now does business at St. Paul, Leipsic, London and New-York. Samuel Ullman has personally handled sealskins for the last twelve or thirteen years. Since the year 1887 he has purchased at Victoria 37,000 Northwest Coast skins. Then he gives his opinion. It may go for what it is worth; it is not for that that I read his statement. He says : I am of opinion that the nations interested should arrive at some agreement by which the killing of seals in the water will be stopped. It is true that the Northwest Coast catches have of late years placed upon the market a certain number of good skins which could be purchased at prices far below those for which skins of the Alaska catch were sold. But I realize that this cannot continue to be the case, for it is a matter of common knowledge amongst furriers that these Northwest Coast catches are composed mainly of the skins of female animals, and I understand that the killing of female seals is rapidly impairing the value of the herd. This is valuable as showing what is a matter of common knowledge among furriers, and this is agreed toby the six leading furriers of New York City. I do not read it, but it may be found in the Case of the United States, Appendix, vol. II, pp. 528-532. At page 533 Mr. Ullman further states: I have had such experience in handling fur-sealskins as enables me, readily in most cases, but always upon careful examination to distinguish a female skin from a male skin, and I know it to be a fact that a very large proportion of the skins in such shipments are those taken from female animals. We now have: George H. Treadwell, of Albany, New York, Furrier. (Case of the U. S., Appendix, vol. II, p. 523.) He is at the head of a house which was established in 1832. and he has heen personally interested in the fur business since 1858. Since 1870 he has annually bought from 5,000 to 6,000 salted fur seal skins in London, all of which have been dressed and dyed in Albany. In addition to dressing and dyeing, our house annually manufactures a large number of fur-seal-skin articles. Ï am deeply interested in the protection of the fur- seals. While the Northwest Coast catches have of late years placed upon the market comparatively cheap skins, and in that way perhaps benefited my particular business, yet I recognize the fact that such benefit can only be of temporary duration, for I have always noticed that these catches are largely composed of female skins, and I know that to kill female animals seriously impairs the herd. Besides, skins are being now put on the market at such irregular times and in such uneven quantities that buying them has become a speculative business. I believe that the whole trouble has been brought about by the Victoria and other pelagic sealers, who furnish the present cheap skins. Both in order to maintain the herd, and to restore the seal-skin industry to a sure footing, I should like to see all taking of seals in the water prohibited. In March of this year, I made a contract with parties on the Pacific coast for their supply of northwest coast skins (i. e. skins taken in the Pacific Ocean) caught during the present year, and about a month ago I received the first consignment under this contract. It was composed of the skins of the spring catch. Later on I expect to receive two further shipments. The first consignment was placed in cold storage at the Central Stores in New York City. A short time since I consented, at the request of the Unitod States Government that this consignment be examined, in order to determine how many female skins it ORAL ARGUMENT OF FREDERICK R. COUDERT, ESQ. 395 contained. To perform the examination I detailed John J. Phelan. This man has been in the employ of my father or of myself since the year 1868. I regard him as one of the most competent and trustworthy men in our service. I have read an affidavit verified by him on the 18th of June. I agree entirely with what he says concerning his experience in the handling and dressing of skins, and from what Ï know of his character and ability I believe that everything stated by him in this affidavit I am 35 years of age, a citizen of the United States. Then we supplement this affidavit by that of Mr. Phelan. (Case of the U. S., Appendix, vol. II, p. 518.) He says: As a result of the work I have performed for so many years I am able to distinguish, without difficulty, the skin of a female seal from that of a male seal. There are generally several ways in which I can tell them apart. One of the surest ways consists in seeiug whether any teats can he found. On a female skin above the age of 2 years teats can practically always be discovered; when the animal is over 3 years old, even a person who is not an exportât handling skins can discover two prominent ones on each side of almost every skin. This, is because after the age of 3, and often even.after 2, almost all females have been in pup... I have been able to test all my observations as to the teats on salted fur-seal skins by following these skins through the various processes which I have described. During these processes the skins become thinner and thinner, and the teats more and more noticeable, and at an early stage in the dressing they must be wholly removed. There are other ways of distinguishing the skins of the two sexes. I was sent to New York from Albany a few days ago by Mr. George H. Treadwell, with instructions to go through a certain lot of seal skins, which I-understand he had recently bought in Victoria, and to find out how many of these skins were taken elc from animals this year; they were a part of what is known as the spring catch. I know this to be the case by the fresh appearance of the blubber and of the skin as a whole. This affords a sure way of telling whether the skin has lain in salt all winter or whether it has been recently salted. I personally inspected each one of these skins by itself and kept an accurate record of the result. I divided the skins according to the three following classes : Males, females, and pups. In the class of pups I placed only the skins of animals less than two years of age, but without reference I found in the lot 395 males, 2,167 females, and 988 pups. Leaving out of account the pups, the percentage of females was therefore about 82. The great majority of what I classed as male skins were taken from animals less than 3 years of age. There was not a single wig in the lot. On the other hand, nearly all of the female skins were those of full-grown animals. On every skin which I classed among the females I found teats, with bare spots about them on the fur side. Such hare spots make it absolutely certain that these teats were those of With regard to the pup skins, I will say that I did not undertake to determine whether they were males or females, because they had a thick coat of blubber, which, in the case of an animal less than 2 years old, makes it very hard to tell the sex. All of the skins that I examined were either shot or speared. I did not keep a close count, but I am of the opinion that about 75 per cent of them were shot. The result of the examination is about what I had expected it would be. The figures only confirm what I have always noticed in a general way, that nearly nine-tenths of the skins in any shipmentof North west coast skins are those of female This examination, in connection with one other of the same'kind, is, I think, of very great importance. There is nothing loose—there is no estimate about it. It is mathematical, and agrees with the testimony of all the men who can be referred to, practically—that is of all those who deal with the Northwest catch, hence it is of great importance. Here is a man who bought a lot of skins without any special object, and for the sole purposes of his business; and when the United States discovered the fact they asked him to count these skins. He takes them one by 396 ORAL ARGUMENT OF FREDERICK R. COUDERT, ESQ. one, occupies four hours to seven hours a day in counting them, and he furnishes this estimate which agrees with the estimates we have already given. He makes the percentage about 82. Mr. Grebnitzky goes as high as 92 per cent. The fact is they are all females—that would be the popular and true way of expressing it—practically they are all females. The next is William Wiepert, sorter of skins. (Case of the U. S. Appendix, vol. II, p. 535.) He is 47 years old ; became foreman of Asch and Jaeckel (one of the leading fur houses of New-York) in 1886, and since that time has been superintendent. of the manufacturing department of that house. I have handled, assorted and closely inspected at least 100,000 dressed and dyed fur-seal skins. During the past two years I have handled large numbers of North west Coast skins (i. e. skins of animals taken in the Pacific Ocean or in Behring Sea). I have assorted all of them, and in doing so have specially noticed the fact that a very large proportion were skins of female animals. To determine this fact in the case of dressed skins I see whether there are any teat holes. I never call a skin a female skin unless I can find two such holes on either side. These holes can generally be distinguished from bullet or buckshot holes, of which there are generally a great number in Northwest Coast skins. In the Case of a shot hole it is always evident that the surrounding fur has been abruptly cut off, while around the edge of a teat hole the fur gradually shortens as it reaches the edge, and naturally ceases to grow at the edge. I have just looked over an original case of ninety dressed and dyed Northwest Coast fur-seal skins, which have been lately received from London, and were still under seals placed on them in London. I found that of these ninety skins only nine were those of male animals. This mode of telling dressed skins is in accord with what the British Commissioners say, sec. 653 of their report : It is also easy, especially after the skins are prepared, to recognize the four teats of the female. But, more especially in the smaller skins, the marks of sex are extremely difficult to trace. For instance, in one parcel examined iu London which was marked "faulty", all the skins, with the exception of three, were female, and most of them badly shot-marked. But the great majority were young females, giving but little or no evidence of having suckled any young. For further evidence by furriers upon this point, see Appendix to Argument of the U. S. pp. 410-419. We ask no better corroboration than this given by the British Commissioners. So that, after all the only difference is that the furriers cross-examined by the British Counsel—the furriers whose cross-examination is deemed of sufficient value, as minimising the value of our evidence, to find a place in the British Counter Case—these gentlemen do not place the percentage of females at less than 75 per cent; so that, upon this evidence that you thus far have, you must find that the percentage of females runs between 75 and 96 per cent. As I said before, the difference between us is a matter of very small consequence. I now read something from Mr. Grebnitzky's testimony. I am passing to a different order of evidence—the examination of the catches of the seized vessels. This of course, is evidence of the highest value. There nobody has an opportunity to deceive, if so inclined, unless it should be charged that the officers of the United States have made misstatements. The President.—Do you know whether Mr. Grebnitzky was authorized by the Eussian Government to be a witness? Mr. Coudert.—General Poster says that he was. The President.—His position may be considered official in a certain measure. Mr. Coudert.—Yes, you will find he is a gentleman of high character and that our friends on the other side speak of him as a reliable ORAL ARGUMENT OF FREDERICK R. COUDERT, ESQ. 397 witness. I might say that I am reminded by my associates that it should not be inferred from all I have read—although the Court may have thought I have gone on the very verge of being tedious in reading so much—that this is more than a part of the testimony of the furriers; and if any doubt whatever remains after this reading the Arbitrators may satisfy themselves because we have given them references to the Appendix to the Argument of the United States, which contain all the testimony upon the point. Mr. Phelps.—The same as to the evidence you are now about to read, in respect to the searches of the vessels—a good deal more there is set out. Mr. Coudert.—Yes. Upon this point there are only extracts from the evidence of some of the witnesses. It would be taxing the patience, of the Court too heavily to read it all. There is an enormous mass of it; we have taken some of it and the Court can judge from this what the nature of the evidence is and what its real meaning may be. I am now going to read from the examination of witnesses as to the catches of the sealing vessels. In the Counter-Case of the United States, will be found the testimony of Mr. Grebnitzky. He makes the following sworn statement: This year I have counted over 3,500 skins seized on poaching vessels and have found 96 per cent to be skins of females. These were skins taken from the Commander Island seals. As to skins taken near Pribilof Islands I counted the skins seized in the Rosa Olsen and found two-thirds of them were skins of females. These were taken as the log book of the Rosa Olsen shows over 88 miles from shore. Now I would like to read—I will not ask the Court to turn to it— from the argument of the British Counsel, a short paragraph in connection with Mr. Grebnitzky's testimony. Mr. Justice Harlan.—What year does this witness refer to? Mr. Coudert.—Mr. Grebnitzky, 1892. The President.—That was the year when poaching went on the other side of the line? Mr. Coudert.—Yes. Of course making it difficult to poach on our side would have the effect of increasing poaching on the other side. It increased what the commissioners call, | the energy of the business". I believe scientifically no man has described what force or energy meant, but we can explain what they mean here. In the British Argument, at page 109 (I say this for my learned friends on the other side, so that they may follow me) is this paragraph,—this is the language of the British Counsel commenting on the statement which I have just read; and I deflect from the course of my reading because it is appropriate here to show how they explain, or what comments they make on, this testimony: Mr. Grebnitsky is next quoted as affirming that 96 per cent of the seals taken at sea are females! And that is followed by a note of exclamation. This gentleman has had long experience as Superintendent of the Commander Islands and any statement made by him must be received with respect ; but we may be pardoned for doubting such a statement as that here attributed to him, particularly as it is unsupported by any details of fact and is entirely in opposition to other Perhaps I ought to comment upon the words that have slipped from the pen of Counsel when he spoke of this statement being here attributed to Mr. Grebnitsky; when the United States produces an affidavit, a paper sworn to with his signature, either they have committed the enormous crime of falsifying and forgery, or the expression ought not to have been used. But it was a slip of the pen perhaps in. copying. 398 ORAL ARGUMENT OF FREDERICK R. COUDERT, ESQ. Sir Charles Eussell.—Is it an affidavit? I do not understand it to be an affidavit. Mr. Coudert.—I do; and we state here that " he made the following sworn statement to the United States Government." Sir Charles Eussell.—If you look at your own page 362,1 do not think you will find that that is so. Mr. Coudert.—When Counsel says | it is unsupported by any details of fact," 1 do not precisely know what it means. Sir Charles Eussell.—I assure you it is not a sworn statement at all. We make no comment upon it. It is, of course, a statement to be received with respect; but it is not sworn to. Mr. Coudert.—Then I will read from page 367 ; and it is best to refer to the passage : I, J. M. Crawford, Consul-general of the United States at St. Petersburgh, do hereby certify that Nichola A. Grebnitzki, military chief of the Commander Islands, appeared before me this day and declared, under oath, that all the statements contained in the foregoing article, etc. I am glad that my learned friends on the other side when they spoke of attributing had not read this, and evidently were misled by thinking of some other paper; or they would not have said it was unsupported by any details of fact because Mr. Grebnitsky gives these details of counting two lots of skins. Nothing can be more detailed than that; and if I were not anxious to save the time of the Tribunal,—it is only my anxiety to save the time of this High Tribunal that prevents my reading the whole of it; but I would recommend its perusal to the mem- • bers of the Court, and I think they will be repaid. Messrs. C. W. Martin and Sons examined these same skins, or a portion of them, after they reached London; and found them to consist of the following: Females, 83.76 per cent; males, 1.66 per cent, and of sex doubtful 14.58 per cent. You will see that they substantially agree if you make a reasonable allowance for what he calls those skins that were doubtful. We then have the testimony of Mr. Loud, the Assistant Treasury Agent of the United States on the Pribilof Islands : In July, 1887, I captured the poaching schooner Angel Dolly while she was hovering about the islands. I examined the sealskins she had on board, and about 80 per cent were skins of females. In 1888 or 1889, I examined something like 5,000 skins at Unalaska which had been taken from schooners engaged in pelagic sealing in Behring Sea, and at least 80 to 85 per cent were skins of females. Then Mr. Malowansky, who is one of the men who has been cited by both sides, or, at all events, commented upon by both sides, and whose opportunities for acquiring knowledge were exceptional. He has resided on the Commander Islands nine years as agent of the lessees, and is well acquainted with all matters pertaining to the sealing business. He says : (Case of the U. S. App., Vol. II, p. 197.) In 1891 the schooner J. E. Lewis was caught near the islands by the Russian gun- hoat Aleut and found to have 416 skins on board. I made a personal examination of these skins, and found that from 90 to 95 per cent were those of female seals. I called the attention of the English Commissioners, Sir George Baden-Powell and Dr. G. M. Dawson, to this fact when they visited the islands in 1891, showing them the skins. I opened a few bundles of the skins for their inspection and offered to show all of them, but they said that they were satisfied without looking at any more than those already opened. I remember that a schooner from Victoria was also seized at the. islands about three years ago by the Russian authorities with 33 skins on board, which were nearly all taken from female seals. Then Mr. Morgan is the next witness, whose testimony we produce. ORAL ARGUMENT OF FREDERICK R. COUDERT, ESQ. 399 (Case of the U. S. App., Vol. II, p. 65.) Mr. Morgan has resided at the Pribilof Island as agent of the lessees of the Government for a great number of years. He was there first in 1868 and 1869 and was there continuously during each sealing season from 1874 to 1887. In 1891 he went to the Commander Islands and spent the sealing season there. This is what he says: I have personally inspected the skins taken upon the three schooners Onward Carolina and Thornton, which skins taken in Behring Sea were landed in Unalaska, and were then personally inspected by me in the month of May, 1887. The total numher of skins so examined by me was about 2,000, and of that number at least 80 per cent were the skins of females. I have also examined the skins taken by the United States revenue cutter Rush from one of the North Pacific Islands, where they had been deposited by what is known as a poaching sshooner and taken to Unalaska, which numhered about 400 skins, and of that 400 skins at least 80 per cent were the skins of female seals. I have also examined the'skins seized from the James Hamilton Lewis in the year 1891, by the Russian gun-boat Aleute, numbering 416, of •which at least 90 per cent were the skins of female seals. Then Captain L.-G. Shepard, an Officer of the U. S. Eevenue Marine, who says : (Ibid., p. 189.) I examined the skins from the sealing vessels seized in 1887 and 1889, over 12,000 skins, and of these at least two-thirds or three-fourths were the skins of females. Of the females taken in the Pacific Ocean, and early in the season in Behring Sea, nearly all are heavy with young, and the death of the female necessarily causes the death of the unborn pup seal; in fact, I have seen on nearly every vessel seized the pelts of unborn pups, which had been taken from their mothers. Of the females taken in Behring Sea nearly all are in milk, and I have seen the milk come from the carcasses of dead females lying on the decks of sealing vessels which were more than 100 miles from the Pribilof Islands. (Ibid., p. 419.) Next Commander Nelson of the United States Navy seized the British schooner Mountain Chief for sealing in Behring Sea in 1892 in violation of the terms of the modus vivendi. In the declaration of seizure he states incidentally that there were found on her deck 7 seals which had not yet been skinned, six of which were females. The President.—Before you pass to another topic, will you allow me to ask you this? There is an allusion in some of the extracts that you have been reading, to the action of the Eussian fleet or the Imperial Eussian Navy. Are you able to give us any information about that action of thelmperial Eussian Navy as to its limits aud origin? Mr. Coudert.—I do not think I have quite caught what the learned President wants to know. The President.—In the deposition of John Malowansky, and I believe also in the deposition of Mr. Morgan, allusion is made to seizures by the Eussian Navy. I would like to know if you are able to give us any information as to the extent of this action of the Imperial Eussian Navy as well in point of date, as in point of locality and also perhaps- as to the ground upon which this action rested, whether it was founded upon some arrangement between the Eussian and American Governments. It is out of our case, I acknowledge, but I would enquire from you the same information on that. , Mr Coudert.—Yes, I have some information on that, and with your permission I will give it you later. I will proceed with the regular line . of my argument, but I will look up the evidence that we have on this, and I shall be happy to give it you. The President.—If you please. . 400 ORAL ARGUMENT OF FREDERICK R. COUDERT, ESQ. Mr. Coudert.—I will now give the learned Court extremely valuable evidence emanating from the best possible source, namely, the British furriers, who are men of very high character, and it is not possible to disparage their testimony either as to its moral quality or legal effect. If that does not establish the point that we have undertaken to prove, then it is not provable, but we have cumulated it and piled Pelion upon Ossa so to say. We have the British testimony; there is an enormous mass of it, and we have the admissions of our friends on the other side which practically admit all we claim, but we are not satisfied with that; we are unreasonable enough to ask for more, and we ask for the patience of the Court while we give some important British declarations on the subject. I want to read you a letter from Sir George Baden-Powell published in the London Times, November 30th, 1889. Sir George Baden-Powell was, as the Court remembers, one of the British Commissioners. He says: As a matter of fact the Canadian Sealers take very few, if any, seals close to the islands. Their main catch is made far out at sea, and is almost entirely composed of females. This is the gentleman who signed the report recommending that there be a closed zone twenty miles round our islands. Then the extract from Volume 3 to Case of Great Britain (page 1) Eear-Admiral Sir Culine- Seymour of the. British Navy to Admiralty. (Telegraphic) Victoria, August 24, 1886. Three British Columbian seal schooners seized by United States Revenue cruizer Corwin Behring Straits, seaward 70 miles from off the land killing females and using fire arms to do it, which they have done for three years without interference although in Company with Corwin. Now you-will see that this blunt sailor who is sending his despatch by telegraph and had no word to waste says just what would be approximately said to be the fact. They are killing females with a "shot gun"—it maybe they were only 90 or 80 per cent, but when it comes so near a totality they would say "they are killing females" and that is the fact, and what they were doing. And that was at sea too. Then we have an extract which is important also of a despatch of Bear-Admiral Hotham of the British Navy to Admiralty. [Extract—Warspite, at Esquimalt, Sept. 10,1890.1 I have to request you will bring to the notice of the Lords Commissioners of the Admiralty this letter with reference to my telegram of the 8th instant. I personally saw the masters of the seaiing-schooners named below, and obtained from them the information herein reported: Captain C. Cox, schooner "Sapphire". Captain Petit, schooner "Mary Taylor". Captain Hackett, schooner "Annie Seymour". Captain W. Cox, schooner "Triumph". They also mentioned that two-thirds of their catch consisted of female seals, hut that after the 1st July, very few indeed were captured "in pup", and that when sealing outside the Behring Sea, round the coast, on the way up, (where this year the heaviest catches were made), they acknowledged that seals " in pup" were frequently captured. Then there is the deposition or an extract from the deposition of Edward Shields a sealer on board the Carolina seized in 1886. This testimony would seem to be worth consideration, for it is takeu by the British Government and offered as testimony that ought to be considered : ORAL ARGUMENT OF FREDERICK R. COUDERT, ESQ. 401 (B. C. App., Vol. Ill, U. S., N° 2,1890, p. 8.) *. h £4TTa;rd fields, of Sooke District, Vancouver Island, a hunter engaged on board the British schooner Carolina of 31.90 registered tonnage, do solemnly and sincerely declare that I left Victoria on board the aforesaid schooner on the 20th May 1885 bound on a voyage to Behring's Sea for the purpose of sealing... We sailed to Behring Sea and commenced sealing on the 15th June, and at that time we were about 300 miles from land, and we continued cruising about for seals and up to the tame the United States' vessel "Corwin" seized us we had 686 seals. During the whole time we were cruising we were in the open sea, out of sight of any land. The seals we obtained were chiefly females. We are not vouching for the veracity of this witness but he is offered to the Court by the other side as a witness whose testimony should be considered. Mr. Justice Harlan.—Does the witness mean that they sailed into Behring sea? He says we sailed to Behring sea. Mr. Coudert.—I presume he meant we entered Behring sea. His vessel was seized there. He commenced on the 15th June to seal in Behring sea. Sir Charles Eussell.—I do not know I am sure. Mr. Coudert.—Now we have an extract from reports of the Departments of Pisheries of Canada 1886 by Thomas Mowat, Inspector of Fisheries for British Columbia. This is cited in the British Case Appendix Yolume 3, and therefore is doubly important. He says: (Pa| > 173. U. S. N°.2, : 0.) There were killed this year so far, from 40,000 to 50,000 fur-seals, which have been taken by schooners from San Francisco and Victoria. The greater number were killed in Behring Sea and were nearly all Cows or female seals. This enormous catch with the increase which will take place when the vessels fitting up every year are ready will, I am afraid soon deplete our fur-seal fishery, and it is a great pity such a valuable industry could not in some way be protected. and two years later—this in the extract from Eeports of the Department of Pisheries for British Columbia, and he says : Cited in U. S. Case, p. 201. The majority of onr hunters contend that there are over 7 per cent of pups in the entire catch of fur-seals on the coast; while in Behring Sea the catch does not exceed one per cent. But, they cannot deny the fact that over 60per cent of the entire catch of Behring Sea is made up of female seals. You will observe, Mr. President, that at this time the British Authorities in Canada were taking the same view that we are, and they were trying to protect not only our seals on the Island, it is true, but the fur business on the sea; and they saw (because they are intelligent gentlemen) that this business was ruinous to the herd upon which these men relied and when they were trying to extract the fact from the sealers, the sealers minimised but were compelled to admit as they say, for they could not deny the fact, that over 60 per cent of the entire catch of the Behring Sea was made up of female seals. One single official extract more, and I will pass from this. The President.—I would first like to ask, Mr. Tupper, is Mr. Mowat still in your Service? Mr. Tupper.—No; Mr. Mowat is dead. Mr Coudert.—Now, I want to complete the reading of official papers, which reading would not be satisfactory if we did not include something from our accomplished friend Mr Tupper. I am bound to say that I had promised him I would not read any more from him; but the temptation is too much for me, and besides there was no consideration B S, PT xii 36 . 402 OEAL ARGUMENT OF FREDERICK R. COUDERT, ESQ. for the promise; so, if he will pardon me, I will read a brief extract which puts the cap upon it,—as you would say, Mr. President, "le couronnement de l'édifice". Mr. Tupper writes to the Sealers' Association. I refer to a letter of the 13th of June at page 195, and also at pages 90 and 91. Let me preface the reading of this brief extract with the remark that it is doubly important not only on the subject I am reading now, but on the question of damages; and we cannot help thinking it is a little ungracious on the part of my friends on the other side to ask us to pay damages to them, after we have surrendered our business to their sealers and they have largely profited by the circumstance. It is evident that they must have made a large profit out of the modus vivendi, partly because they did not observe it and, therefore, it did not hurt them, and partly because we did not put any skins on the market and they had the full control of it, and partly because they intercepted the seals before they entered the Bering Sea which had an appearance of legality; their business was very prosperous, in fact they never made so much money as appears from the Case; and when they ask us to pay damages in addition, we think it is rather an ungracious demand. That is on the question of damages; but, on the question of pelagic sealing, the letter of Mr. Tupper is important. This letter is addressed to the Sealers' Association. Gentlemen : Reverting to my letter to you of the 13th June on the subject of your communication of the 5th of that month, on behalf of the Sealers' Association of Victoria, remonstrating against the proposed modus vivendi in Behring's Sea, I have now the honour to inform you that Her Majesty's Government is of opinion that the total cessation of sealing in Behring's Sea will greatly enhance the value of the produce of the coast fishery, and does not anticipate that British sealers will suffer to any great extent by exclusion from Behring's Sea. The opinion of Her Majesty's Government on this is, of course, of very great value. It is not formed lightly or without information ; and when the Government expressed the opinion, which is reiterated by our friend Mr. Tupper, that the cessation of sealing in Bering Sea would greatly enhance the value of the coast fishery produce, the Government was absolutely right; and the result has shown it, and the tables that I have read demonstrate that Her Majesty's Government exercised a great deal of foresight, just the foresight that we would expect, in the protection of the rights of British citizens. Now, we come to the testimony of the Victorian Sealers; and a deposition of some 29 witnesses at Victoria was taken. Sir Charles Eussell.—You mentioned another page 105. Mr. Coudert.—I said that that was the crown of the edifice; but, if I have time, I will read anything you desire me to read. As I have said, we took the depositions of about 29 witnesses at Victoria; and nothing can better show the strong desire of the United States to reach all sources of knowledge,—they went to Victoria to get information to be used against pelagic sealing, which certainly showed a great deal of boldness. It is not to be presumed that any of them were friendly to the United States. We, as I say, examined 29 of these witnesses. How many were cross-examined by our friends on the other side, we do not know; but we do know that the cross-examination of ten of these witnesses is produced in the case. Why the others were not cross-examined, or why the cross-examination, if taken, was not produced, we can only conjecture. The first of them is Peter Anderson, a boat-steerer. He had sailed in the last three years on the Black Diamond, Ariel and Umbrina, all British, schooners. Be says; ORAL ARGUMENT OF FREDERICK R. COUDERT, ESQ. 403 n females The large majority of seals taken c pups in the Pacific Ocean and with milk in Behrin"- Sea are taken in the North Pacific Ocean from two to three"yeari that were full of milk 60 miles from the Pribilof Islands. And Bernard Bleidner was out in 1887 and 1889. He sealed in the North Pacific. Most all were females and had pups in them. I think fully two-thirds of all we caught were females and a few were bulls. Then Niels Bonde, of Victoria, Sealer, has been for four years in this business. The President.—We are struck by the appearance of Scandinavian names, here. Mr. Coudert.—Yes. Wherever anything is done on the high seas, you will be sure to find their names. They found their way to America before Columbus. The President.—Yes, the successors of the ancient Vikings, no doubt; but I suppose these people did their business under the British or American flags ? It is not a case of the Scandinavian fl ag appearing on these scenes? Mr. Coudert.—No ; there was no Scandinavian flag. Niels Bonde, of Victoria, Sealer, has been out four years on sealing schooners from Victoria, namely from 1887 to 1890 inclusive. He says: The seals caught along the coast after the first of April was mostly pregnant females and those caught in Behring Sea were females that had given birth to their young. I often noticed the milk flowing out of their breasts when being skinned and have seen then» killed more than 100 miles from the seal islands. I have seen live pups cut out of their, mothers and live around on the decks for a week. Then he was crossexamined, and he says this : That on each of said vessels (namely the four he had served on) I had more or less to do with skinning the seals, and would say that about 60 per cent on the coast were females and about 50 per cent in Behring Sea. I distinguish the male skin from the female by the absence of teats. Then Thomas Brown, of Victoria, Sealer, says of 1889 : Most all the seals that we shot and secured were females and had young pups in them and we would sometimes skin them. He says of 1890: We were sealing about three month We did not enter Behring Sea, and r fully 80 per cent females. He says of 1891 : Commenced sealing off Cape Flattery, and all the seals which we caught were pregnant females. So that the Admiral was literally right when he said they were killing females with shot-guns. Then Christ Clausen, of Victoria, Master Mariner. Acted as mate in 1889. Was navigator on schooner Minnie in 1890. My catch that year was 2,600, of which about two thousand were caught in Beh- Acted as navigator on same vessel in 1891. The seals we catch along the coast are nearly all pregnant females. It is seldom we capture an old bull, and what males we get are usually young ones. I have frequently seen cow seals cut open and the unborn pups cut out of them, and they would live for several days. This is a frequent occurrence. It is my experience that fully 85 per cent of the seals I took in Behring Sea were females that had given birth to their pups, and their teats would be full of milk. I have caught seals of this kind from 100 to 150 miles away from the Pribilof Islands. 404 ORAL ARGUMENT OF FREDERICK R. COUDERT, ESQ. Then Greenleaf, a Master Mariner, of Victoria, says : Since 1882 I have been interested in the sealing business, and I am well acquainted with it and the men engaged in it and the methods they employ. I am acquainted with the hunters and masters who sail from this port, and board all incoming and outgoing vessels of that class. These men all acknowledge that nearly all the seals taken off the Pacific Coast are females, and that they are nearly all with young. I have also learned by conversation with Behring Sea hunters that they kill seal cows 20 to 200 miles from the breeding grounds and that these cows had recently given birth to young. I have observed in the skins that the size of the teats show either an advanced state of pregnancy or of recent delivery of young. The British Government has made an attack upon Greenleaf by endeavoring to connect him with smuggling operations. I do not know whether he would object to being connected with smuggling operations, or if any of them would. It is so common, I understand, there that it has almost reached the point of being legitimate. As to the moral difference, which is the better and which is the worse, killing and ripping up gravid females, or smuggling a little whisky into a desolate place to cheer up the natives, I do not know which is the worst, but fortunately it is not my task to enlighten the Court on that. Then Arthur Griffin a sealer. We went sealing in 1890. Began sealing off the northern coast of California, following the sealing herd northward capturing about 700 seals in the North Pacific ocean, two-thirds of which were females with pup, the balance were young seals, both male and female. We entered the Behring Sea on July 31st through Unimak Pass and captured between 900 and 1,000 seals therein, most of which were females in milk. Of the following year which is 1891 he says: We captured between 900 and 1,000 on the coast, most all of which were females with pups. We entered the sea July 12th through Unimak Pass and captured about 800 seals in those waters, about 90 per cent of which were females in milk. .. and we captured females in milk from 20 to 100 miles from the rookeries. The learned Arbitrators will observe that none of these witnesses pretend that they caught seals within 20 miles of the Island. I think there is only one exception to that, where it is spoken of as 15, but as a rule they all say it is beyond 20 miles. Then James Harrison, of Victoria, Sealer. He went out sealing in 1891 and 1892. He relates his experience in 1891 as follows: We commenced sealing right off the coast; went as far south as the California coast and then hunted north to the west coast of Vancouver Islands; caught 500 skins during the season ; almost all of them were pregnant females : out of a hundred seals taken about 90 per cent would be females with young pups in them; I can't tell a male from a female while in the water at a distance. On an average. I think the hunters will save about one out of three that they kill. This is on the question of waste by missing and wounding. But they wound many more that escape and die afterwards. We entered the Behring Sea about the 1st of June, and caught about 200 seals in those waters. They were mostly mothers that had given birth to their young and were around the fishing banks feeding. The hunters used shotguns and rifles. In the Behring Sea we killed both male and female, but I do not knosr the proportion of one to the other. ' Then James Hayward, of Victoria, Sealer. He went out sealing in 1887,1888,1890 and 1891. His vessels appear to have made large catches. He makes the following statement: Most of the seals killed on the coast are pregnant females, while those we killed in the Behring Sea after the 1st of July were females that had given birth to their young on the seal Islands and come out into the sea to feed. Have caught them 150 miles off from the shore of the seal islands, and have skinned them when their breasts were full of milk. Seals travel very fast and go a long way to feed. Then the next witness says : A very large majority of'the seals taken in the North Pacific Ocean are cows with pup, and the majority of seals taken in Behring Sea are cows with milk... I have taken female seals eighty miles off the Pribilof Islands that were full of milk. ORAL ARGUMENT OF FREDERICK R. COUDERT, ESQ. 405 Then Joshua Strickland, of Victoria, Sealei He has been in the sealing business two year! Most of the seals are females with pup... He of milk over 40 miles from the Pribilof Islands. Then Alfred Dardean, of Victoria, Sealer. on the British schoouer Umbri re killed cow seals that were sr 900 skins before entering the sea and our whole catch that year Of the seals that were caught off the coast fully 90 per cent out of ing pups in them. The boats would bring the seals killed on e would take the young pups out and skin them. If the pup is a good, nice one we would skin it and keep it for ourselves. I had eight such skins myself. Four out of five if caught in May or June, would be alive when we cut them out of the mothers. One of them we kept for pretty near three weeks, alive on deck by feeding it on condensed milk. One of the men finally killed it because it cried so pitifully. We only got three seals with pups in them in the Behring Sea. Most all of them were females that had given birth to their younc on the' islands, and the milk would run out of the teats on the deck when we would skin them. We caught female seals in milk more than 100 miles off the Pribilof Islands. This witness had the distinction of being cross-examined by the British Government and we claim he does not deny anything but adds to the weight of our proof. This is produced by the other side. Sir Charles Eussell.—There is an earlier statement than that. Mr. Coudert.—Shall I read the whole of it. Sir Charles Eussell.—If you please. Mr. Coudert.—Certainly. I consider I know as much about sealing as any of the sealers out of this port. I studied the habits of the seals closely while on my sealing voyage. I consider half the seals caught by the schoouer E. B. Marvin during the time I was aboard of her were female seals, and a large portion of those female seals, were barren. Sir Charles Eussell.—That is the point. Mr. Coudert.—Yes I beg your pardon. If I had observed it I would have read it : >r secretary gave me $2 for the replies I g it thé Driard Hotel. I did not read the e t the Driard Hotel. Major Williams' clerk o asked me by the Major a signed for Major Willian The most that can be said of this is if Dardean was bought he was bought cheap but probably it was as much as he is worth. Out of justice to Major Williams it ought to be said that there is nothing unusual in paying a man a fee for his time. It is a witness fee, and the mere fact that it was so small a fee given to a man taken away from his business shows that the transaction was highly honorable and creditable. He does minimise his testimony here in the way I have read and my learned friend was quite right in asking me to read it. Then Morris Moss, Furrier and Vice-President of the Sealers Association of j who has bought from ten to twenty thousand sealskii ;he majority of seals captured by white hunterf ureh of food. î Behring Sea a females ii As Vice-President of the Sealers Association his information must have been of the very best; he would not have spoken without full knowledge of the subject he was talking of. Then J.Johnson, of Victoria, Sealer and Sailing Master, who has spent six years of his life sealing, and been captain of four different schooners : A large majority of the seal taken on the coast are cows with pups. A few young- bull is taken in the North Pacific Ocean. I use no discrimination in killing seals,. 406 ORAL ARGUMENT OF FREDERICK R. COUDERT, ESQ. but kill everything that comes near the boat in the shape of a seal. . . The majority of the seals killed in Behring Sea are females. I have killed female seals 75 miles from the Islands that were full of milk. Then Victor Jacobson. He is a British subject and has been engaged for 11 years in sealing. 10 years as master. He is apparently a reputable man as he appears for the British Government on the question of damages. They have produced him and he may presumably be relied upon. He says : The female seals go through the passes from the Pacific Ocean into Behring Sea hetween June 25th and July 15th. Females killed previous to this time. I found with pup hut none with pups after that latter date. I have killed female seals with milk 200 miles from the Pribiloff Islands. I think of the seals taken hy me that three in five are females, and nearly all with pup. And in connexion with this he is crossexamined and he states: My experience has been that ahout three out of five seals taken on the coast are females, and about the same in Behring Sea. This witness has nothing further to say in his cross-examination on the subject of females. Then we have the testimony of Edwin P. Porter. He says : My experience in four years Sealing is that nearly all the seals taken along the coast are pregnant females, and it is seldom that oue of them is caught that has not a young pup in her. In the fore part of the season the pup is small, but in May and June, when they are taken off the Queen Charlotte and Kodiak Islands the unborn pup is quite large, and we frequently take them out of the mothers alive. I have kept some of them alive for six weeks that we cut out of their mothers by feeding them, on condensed milk. The seals we captured in Behring Sea were fully 80 per cent females that had given birth to their young. A fact that I often noticed was that their teats would be full of milk when 1 skinned them, and I have seen them killed from 20 to 100 miles from the seal islands. Then Charles Petersen, of Victoria, Sealer. He went out sealing in 1886,87,90, and 1891. As to 1887 he says : We entered the Behring Sea about the 15th of August through the Unimak Pass and captured therein 1,404 seals, most of which where cows in milk. On that voyage we caught female seals in milk over eighty miles from the rookeries where they had left their young. .. I have seen the deck almost flooded with milk while we were skinning the seals... Ninety per cent of all the seals we captured in the water were female seals. The testimony I will now read aud which will close this branch of the subject, at least as far as the Victoria testimony is concerned is the testimony of Mr. McManus. He is an intelligent man and a journalist. He spent the summer of 1891 on the schooner Otto which hunted for nine days in Behring Sea. Following are some extracts from the journal he kept. This is the testimony of a man who noted down what he saw and the impressions he had from day to day. He is a British subject and a resident of Victoria : Tuesday, 25 August, rain in morning. Boats and canoe out at half past 9 o'clock; out all day (returning to dinner). Result: First boat, two seals reported, wounded and lost five; seals said to be shy and wary, and not so numerous as formerly; attention called to cow seal being skinned (which I had taken for a young bull). The snow white milk running down blood-stained deck was a sickening sight. Indian canoe, one seal. Total, 3 seals ; 2 mediums and 1 cow. Wednesday, 26 August, cloudy morning; seals floating round schooner. Boats and canoe out all day. Result: First boat, 1 seal; second boat, none; Indian canoe, 10 seals; total, 11 seals; 8 cows in milk, and 3 medium. Skipper in first boat blamed the powder. Second boat said it was too heavy and clumsy for the work. Skipper reported having wounded aud lost 7, and the men in second boat 9 ditto, 16 in all. Skipper said seals not so numerous as formerly, more shy, also blamed the powder. Evidently a great deal of shooting and very few seals to correspond. Saturday, 29 August, ship's cook brought down from deck a large cow seal at 40 yards rise. , Boats and canoe out all day; fine, clear, balmy weather; Aleutian Island in sight. Result; First boat, three seals; second boat, three seals; cook, from deck, oue; Indian canoe, ten ; total catch, seventeen seals, greater proportion cows in milk ; horrid sight, could not stay the ordeal out till all were flayed. A large number reported as wounded and lost. According to appearances, slaughter indiscriminate. | ORAL ARGUMENT OF FREDERICK R. COUDERT, ESQ. 407 Sunday, 30 August. Result of hunt: First boat, two seals; sea-boat, one; Indian canoe seven; total, ten seals, seven of which were cows in milk. Several as usual reported wounded and lost by the boats. The great superiority of the Indian spear I want to say, in connection with this gentleman, that his testimony is confirmed by Mr. King Hall, a son of the British Admiral of that name, Sir William King Hall, who was on board as a correspondent. I have not taken it out, it will be found in the United States Case, volume 2, pages 332 to 334, and the Tribunal will be much interested in reading it. Now that we have given this testimony, it may be proper to read what the British Commissioners, in their Eeport, express as their views with regard to pelagic sealing. Those views may be specially noted in connection with the foregoing descriptions of how gravid nursing females are killed: By the pelagic sealers and hy Indian hunters along the coast, fur-seals of both sexes are killed, and, indeed, it would be unreasonable, under the circumstances, to • expect that a distinction should be made in this respect, any more than that the angler should discriminate between the sexes of the fish he may hook. That I have read before. Then 610. The accusation of butchery laid against those who take the seals on shore cannot he brought against this pelagic method of killing the seal, which is really hunting as distinguished from slaughter, and in which the animal has what may be described as a fair sporting chance for its life. [The Tribunal then adjourned for a short time.] The President.—Mr. Coudert, we are ready to hear you. Mr. Coudert.—When this learned Tribunal adjourned for the recess, I had just read extracts from the British Commissioners' Eeports charging butchery against those who killed the seals on the island, and expressing the opinion that the slaughter which I have described at sea was sportsmanlike in its character in that it gave the animal a fair sporting chance for its life. I could not do justice to that by any coni- ' ment, and I leave it to the Tribunal without criticism. I proceed now with what we call the American evidence. The Tribunal will observe that the United States, in offering this proof to the Tribunal, could give no other evidence of its respect for the nature of the Court than its evident attempt to get all the best evidence on the subject that it was possible to secure. We have produced before you the Furriers of all the nations where these articles are dealt with. We have even given you the testimony of our adversaries the Canadian sealers. We have given you the evidence of high official gentlemen on the other side, and I now propose to read (and not to any great extent), some of the American evidence, repeating that this small pamphlet only contains extracts from a part of the depositions. I will read the evidence of Captain C. P. Hooper, of the United States Eevenue Marine (17". 8. Counter Case, page 214). Captain Hooper made extensive official investigations in regard to seal-life on the Pribiloff Islands, in Bering Sea and the North Pacific Ocean in 1891, and 1892. In the course of these investigations he captured, between July 24 and August 31,1892 forty one seals in Bering sea. Of course, he made no effort to capture any large number, but his effort was to ascertain scientifically what the real condition of things was then, and he secured a sufficiently large number to guess, if you ■please, at what might be the fact with regard to the whole business. He secured 41 seals and examined them, and of those he found that there were of old males only 1, young males 11, nursing cows 22, and virgin cows 7. That is stated in full in the American Counter Case, page 219. 408 ORAL ARGUMENT OF FREDERICK R. COUDERT, ESQ. Now this is his language, on page 213 : Since leaving San Francisco on March 9, the Corwin has steamed 16,200 miles, and 8,713 miles since the date of my reporting for duty as part of the Behring Sea fleet. Ofthis distance 5,567 miles were steamed in Behring Sea I find in general, as one of the results of my investigations, that more than two-thirds of the seal taken are cows now having young or capable of bearing them at no distant day ; that it is impossible to discriminate as to age or sex of seals while in the water, except in the case of young pups and old bulls ; that even under the most favourable conditions a large percentage is lost by sinking or wounding, and that by reason of tho tameness of the nursing cows, which form the larger part of the seals seen, pelagic hunting in Behring Sea is peculiarly destructive and unless stopped will wholly exterminate the already greatly depleted herds. I do not believe that it is possible to indicate any zonal limit in Behring Sea beyond which pelagic sealing could be carried on, and at the same time preserve the seals from complete annihilation. Further, I wish to renew a statement contained in a former report made to the honourable Secretary of the Treasury, that unless supplemented with protection in the Pacific Ocean, no amount of protection in Behring Sea will preserve the herds. Captain Hooper's testimony is commented on in the argument of our friends on the other side, on pages 108-9, and this is what they say : The United States revenue Cutter Corwin Captain Hooper, was occupied for twenty-six days in hunting seals during the summer of 1892. The whole number of seals killed however appears to have been but forty-one, a result small as to evidence either in experience, or in competent hunters. Of this number twenty-nine are stated to have been females, a proportion which does not differ very largely from that given by several of the pelagic sealers, but which upon so small a total number means little as compared with the experience embodied in their statements. ' As far as mere experience is concerned, of course it does not; but I take this to be an acknowledgment that the testimony given by, at least some of the witnesses on the other side,—the pelagic sealers,— agrees with the testimony of Captain Hooper; he made out that some 70 per cent or upwards were females. ue Cutter "Corwin" (Counter ease of the U. S., pp. 392, 394.) As already stated above, I was attached to the steamer Corwin during the past summer, and I made all the examinations of the stomachs of the seals referred to in Captain Hooper's report, covering, in all, thirty-three seals. I annex hereto photographs of two of the seals which were dissected and examined by me on the deck of steamer Corwin. These seals were taken on the 2nd day of August, 1892, at a distance of about 175 miles from the islands. The photographs exhibit the mammary glands and convey a good idea of the considerable size of these glands, which in all cases were filled with milk. The inference is unavoidable that the pup is a voracious feeder, and this inference is in keeping with the observations I have made on the rookeries tfhere I have repeatedly seen pups suckle for half an hour at a time. The milk glands are quite thick and completely charged with milk. The photographs (opposite p. 394) especially the first one, exhibit the milk streaming from the glands on to the deck. Annexed to the report of Captain Hooper is a table giving the results of the examination or forty-one (41) seals which were killed in Bering Sea in 1892. It appears that of this number twenty-two (22) were nursing seals. The photographs hereto annexed show exactly the way all of these nursing female seals looked when cut open on the deck of the Corwin. The next is Captain L. G. Shepard, U. S. Revenue Marine. (Case of the U. S., Appendix, vol. II, p. 187.) I^ain 45 years of age; a resident of Washington, D. C, and am Captain in the U. S. Revenue Marine Service, chief of division Revenue Marine, Treasury Department. In command of the revenue steamer Rush, I made three cruises to Behrine Sea in the years 1887, 1888, and 1889 for the purpose of enforcing existing law fol protection of seal life m Alaska and the waters thereof... I hereby append to and ORAL ARGUMENT OF FREDERICK R. COUDERT, ESQ. 409 make a part of this affidavit a table, (marked A,) giving the names of the vessels seized by me m Behring Sea while violating the law of the United States in relation to the taking of fur-bearing animals. I examined the skins taken from sealing vessels seized in 1887 and 1889, over 12,000 skins and of these at least two-thirds or three-fourths were the skins of females. Of the females taken m the Pacific Ocean, and early in the season in Behrino- Sea nearly all are heavy with young, and the death of the female necessarily causes thé death of the unborn pup seal; in fact, I have seen on nearly every vessel seized the pelts of unborn pups, which had been taken from their mothers. Of the females taken m Behring Sea nearly all are in inilk, and I have seen the milk come from the carcasses of dead females lying on the decks of sealing vessels which were more than 100 miles from the Pribilof Islands. From this fact, and from the further fact that I have seen seals in the water over 150 miles from the islands during the summer, I am convinced that the female, after giving birth to her young on the rookeries, goes at least 150 miles, in many cases, from the islands in search of food. It is impossible to distinguish a male from a female seal in the water, except in the case of a very old bnll, when his size distinguishes him. Therefore open sea sealing is entirely indiscriminate as to sex or age. The next is . Captain Bryant, U. S. Treasury Agent. (Quoted in U. S. Counter Case, p. 84.) Writing of the year 1870 he states : Formerly in March and April the natives of Puget Sound took large numbers of pregnant females. The next is H. H. McLntyre, Special Agent of the U. S. Treasury Department. (Counter Case of the U. S., p. 84.) It may also be stated in support of this supposition that nearly all the five thousand seals annually caught on the British Columbian coast are pregnant females taken in the waters about the 1st of June while apparently proceeding northward to the Pribilof group. (This statement is contained in an official report, dated December 9,1869 and published in Senate Ex. Doc. No. 32,41st Cong, second Sess., p. 35.) We then have the testimony of: Captain Daniel McLean. (Case of U. S., Appendix, vol. II, p. 443.) He is a Nova Scotian by birth, and one of the best known sealing captains. Mr. Thomas Mowat, Canadian Inspector of Fisheries makes the following statements with reference to this witness: "Capt. Donald (Daniel) McLean, one of our most successful sealing captains, and one of the first to enter into the business of tracking seals from California to Behring Sea", etc And again : " Capt. Donald McLean and his brother are expert sealers." (See reports of Department of Fisheries of Canada, 1886, p. 247.) Capt. McLean has been engaged in pelagic sealing for 11 years as master of ves- Q. Of what sex are the seals taken by you, or usually killed by hunting vessels in Q. What percentage of them are cows» Suppose you catch 100 seals, how many males would you have among them?—-A. About 10. Q. What percentage of the cows taken are with pup?—A. The females are mostly •all with pup, that is, up until the 1st of July s . Q. Have you noticed any decrease in the quantity of animals m the last few yeor8To~w'hatedo you attribute the cause?—A. Killing off the females. © If sealino- continues as heretofore, is there any danger of exterminating them?—A. Yes Sir; they will all he exterminated in three years, and there will be n°QIUDoSyoninSlink it is absolutely necessary to protect the cows in the Behring 410 ORAL ARGUMENT OF FREDERICK R. COUDERT, ESQ. Capt. Alexander McLean, brother of the above witness, who is also termed an expert sealer by Mr. Mowat, bears out fully the foregoing. (Case U. S., Appendix, vol. II, p. 436.) The next is James Kiernan, of San Francisco, sealing captain. (Case of the U. S., Appendix, vol. II, p. 449.) He has been engaged in sealing for many years since 1843, his early experience heing in South America where the rookeries have now to a great extent been destroyed. He made his first sealing voyage in the North Pacific in 1868 and has, in more recent years, been in Behring Sea. My experience has been that the sex of the seals usually killed by hunters employed on vessels under my command, both in the ocean and Behring Sea, were cows. ' I should say that not less than 80 per ceut of those caught each year were of that sex. I havo observed that those killed in the North Pacific were mostly females carrying their young, and were generally caught while asleep on the water, while those taken in Behring Sea were nearly all mother seals in milk, that had left their young and were in search of food. The mother does not leave the rookery in search of food until she has dropped her young and become pregnant again, hence when she has been slain, it means the loss of three, as the young pup will unquestionably die for lack of sustenance. Then we have Captain Charles Lutjens, of San Francisco, owner and master of sealing schooner. (Case of the U. S., Appendix, vol. II, p. 121.) He has been engaged in the sealing business as master since 1886, with the exception of two years. Q. Do you know of what sex the seals were that you have taken in the Pacific and Behring Sea?—A. Principally females. Q. What percentage of the skins you have taken were cows?—A. About 90 per Q. What percentage of the cows you have taken were with pup?—A. About 70 per cent, I should say. This witness was subsequently cross-examined by the British Government. (See British Counter Case, Appendix, vol. II, p. 121.) He there states : Of my catch along the coast going north four-fifths would be females, and I think about four-fifths would be carrying pups. That agrees with the testimony, 80 per Very few old bulls are caught. The proportion of males to females in the Behring Sea appears to me to be about the same, but the cows are then in milk, and I have seen the cows caught in milk as far as 150 miles from the islands. About one-fifth of the cows taken are barren. Then we have the testimony of Franck Moreau, of San Francisco, sealer. (Case of the U. S. Appendix, vol. II, 467.) Q. Have youheen engaged in catching seals in the Pacific and Behring Sea, and for how long?—A. For five or six years I have been catching seals. Q. Do you know of what sex the seals were that you have taken in the Pacific and Behring Sea?—A. Mostly females. Q. What percentage of the skins you have taken were cows?—A. I should judge about 90 per cent. Q. What percentage of the cows you have taken were with pup?—A. About 75 per cent were with pup. This witness was subsequently cross-examined by the British Government. (See British Counter Case Appendix, vol. II, p. 135.) He says: We get more females than males. I think there may be 80 per cent of the seals on the coast females; I think that perhaps of the cows 75 per cent carry pups, aud in Behring Sea the same percentage would apply to cows in milk, though I did not pay particular attention to the matter. We get plenty of barren cows. .. I have seen seals taken in milk 100 miles from the rookeries. The next is the testimony of Michael White, of San Francisco, sealing captain. - ORAL ARGUMENT OF FREDERICK R. COUDERT, ESQ. 411 (Case of the U. S., Appendix, vol. II, p. 489.) He is a man who has had large experience. He details it but to save time, I will not read it. I go to the bottom of the page : In 1887 I was master of the schooner Lottie Fairfield, sailing from San Francisco on or about the 17th day of March, and worked northward to the Behrino- Sea and captured 883 seals. I then entered the Behring Sea about the 6th of^Julv cruisine oh^e ?ntll the 29tn day of AuSust, and took 2,517 seals more, the whole catch being 3,400 for the year. fo I skip a few lines and read : In my captures off the coast between here and Sitka 90 per cent of my catch were females, but off the coast of UnimackPass there was a somewhat smaller percentage of females, and nearly all the females were cows heavy with pup, and, in some instances, the period of gestation was so near at hand that I have frequently taken the live pup from the mother's womb.. . I never paid any particular attention to the" exact number of or proportion of each sex killed in the Behring Sea, but I do know that the larger portion of them were females, and were mothers giving milk. I have never hunted within 15 miles of the Pribiloff Islands ; but I have often killed seals in milk at distances of not less than 100 to 200 miles from these islands. From my knowledge and experience in the business it is my conviction that within the last few years, since the sealers have become so numerous in the Pacific and Behring Sea, that not more than one out of three is secured. Our purpose and practice was to take all the seals we could get, regardless of their age or sex, without any discrimination whatever. These few lines following ought to have been printed in different type, this is the conclusion : The foregoing are samples of the many sworn declarations of men, having practical experience in, or knowledge of, pelagic sealing, which declarations, to the number of over 150, will be found at pp. 429 to 447 and 451 to 466 of the Appendix to the Argument of the United States. Mr. Justice Harlan.—You say there, the Appendix to the Argument of the United States. Mr. Coudert.—Yes; that is what we sometimes call the "Collated Testimony". Now this High Tribunal has heard all the evidence which it is possible to furnish upon this subject—the evidence of Furriers, Sorters of Purs, Pelagic Sealers, Officers of the United States Government, Officers of the British Government, Canadian Officials, and they all concur upon this subject; and the most that can be said against the contention of the United States is, that when we insist that they are practically all female seals—that they run up to 85, 90, or as M. Grebnitzky says, 96 per cent—that we exaggerate; but it really is practically conceded, and possibly may be in terms admitted, that the proportion is very large indeed, and that not less than 75 per cent are females. As I said before and I repeat now, so far as our argument before this High Tribunal is concerned, it makes very little difference to us whether it is 75 per cent or 100 per cent, as some of these witnesses have said, who have the intelligence to understand that their business can be only temporary if this destruction proceeds. The whole stock is being rap-, idly depleted and exterminated. The fate of the southern seal which is not a matter that we need argue, is already darkening upon the horizon of the northern seal. There are no two rules and no two laws, one for the north and one for the south. The laws are just the same, and when you interfere with the law of nature, the punishment is swift and certain. It is inexorable. You may violate the laws of man and hope to escape through the errors of judges or the mistakes of juries. You may perhaps violate the commandments of God with the hope that He in His mercy will forgive you; but nature is inexorable; she moves with a lame foot sometimes, but always overtakes the man who perpetrates the wrong. She never fails and does not know how to fail. 412 ORAL ARGUMENT OF FREDERICK R. COUDERT, ESQ. « Now with regard to catching seals and where they are generally caught in Bering Sea. This bears rather upon the question to which I called the attention of the Court a few days ago—the question of Begulations; and this High Tribunal may remember that I stated that any discussion was irrelevant on the question of Begulations, except in so far as the facts connected with the Pribilof Islands and what was done there might have some bearing on the general facts of the Case. I think the High Tribunal is entitled to .know all the facts in the Case, to know all about the seals, to know what is done on our islands, as well as what is done on the high seas; but as I stated then, any Begu- lation that is made must be exclusive of our territory, because, by the very terms of the Treaty, no Begulation affecting our jurisdiction or the jurisdiction of Great Britain can be promulgated. A very few brief extracts further. Captain William Petit, Master of the British schooner "Mischief", says this (and this is from the Beport of the British Commissioners, page 221) : Were you in Behring's Sea last year, and were you ordered out?—(A) Was ordered I out by the United States ship Corwin. (Q) Before being ordered out what was your (usual fishing distance from land?—(A) 60 to 100 miles. (Q) You found seals all along that distance from land?—(A.) Yes, in large numbers. . And let me call attention again to this; I have done it before, and it may be wearisome to the Court, but it is a. matter of very great importance when you consider the recommendations and advice of the British Commissioners that there should be a zonal protection of 20 miles ■ round the islands. They had the testimony before them of all these witnesses showing that there was no slaughter there and that these men all kept outside. When I said to the Court (and I say now) that their recommendations are plainly intended to protect pelagic sealing and not the seal, I am founded upon the rock of the evidence that they themselves quote. Then Captain William Cox, Master of the British schooner Sapphire. Q. What has been the general distance yon have sealed—the distance from the ■seal islands?—A. From 100 to .140 miles. I was within 80 miles of them last year; that was the nearest I was to them. Q. Your principal ground for sealing you found where?—A. About 100 miles westward of the Islands of St. George and St. Paul. I took 1,000 in four days there. Then Captain W. E. Baker, Master of the British schooner C. H. Tupper; this is also from the Report of British, Commissioners, page 224. Q. While in Behring's Sea last year, what would be your usual sealing distance from the land?—A. I was not in Behring's Sea last year, but in previous years it would be from 30 to 90 miles from laud. The usual distance is about 68 miles. Sometimes we are inside of that, sometimes outside of it. Now Andrew Laing has testified. I do not quote it. It will be found at page 232. In the British Case, Appendix, vol. Ill, ( U. S. No. 2,1890), p. 143, we find a Report of a Committee of the Privy Council for Canada, stating the positions of six of the sealing schooners which were seized in 1887. They are as follows : 1. The W. P. Sayward, July 9, at 58 miles from nearest land. 2. The Grace, July 17, at 92 miles from nearest land. 3. The Anna Beck, July 2, at 66 miles from nearest land. 4. The Dolphin, July 12, at 42 miles from nearest land. 5. The Alfred Adams, August 6, at 62 miles from nearest land. 6. The Ada, August 25, about 15 miles northward from Ounalaska Island. The foregoing declarations and Report corroborate the statements of numerous witnesses cited by the United States to show that the hest pelagic catches are often made at great distances from the Pribilof Island. ORAL ARGUMENT OF FREDERICK R. COUDERT, ESQ. 413 Mr. Carter.—These were all in Behring Sea? Mr. Coudert.—Yes. I will now ask Mr. Lansing to point out Unalaska Island. [Mr. Lansing then did so.] Mr. Phelps.—That is, 150 miles from the Pribilof Islands. Mr. Coudert.—Directly in the course of migration. As I have said before, Captain William Cox was 100 miles to the west. The President of the Tribunal will remember that some question was raised the other day as to the number of seals taken by pelagic sealers. Captain Cox is the gentleman who took 1,000 in 4 days, and this testimony, the learned Tribunal will observe, also corroborates the charges thatwe have made. Before dismissing the subject I will call attention to this fact, that nowhere does any one witness, of all this number whose deposition I have read, claim that seals were caught more than 200 miles to the West of the islands. When you consider that the Commander Islands are 800 miles off, you will notice that all these are in the zone of the Pribilof Islands, and are in that particular group. Mr. Justice Harlan.—The Commander Islands are 800 miles to the West, you say. Mr. Coudert.—Yes. Sir Charles Bussell.—I did not know that. Mr. Coudert.—Very nearly, in round figures, 800 miles. Now with regard to the question of dead pups the learned Tribunal will find that considerable space is devoted to the examination of that question, and the origin of their death. Of course these animals will die, as all animals will, and a certain portion of them would perish under the best circumstances, but when there is a large loss, and that loss is coincident with the death of the mother, I do not think we need go into any careful examination or balancing of testimony. If we find a man with a bullet through his brain lying on the ground, even in the hot sun of July, we assume that he was killed by that bullet, and not by sunstroke, and so when we find, at a certain period of the year, that a large number of pups die on the islands, that they are emaciated, and when they are opened there is nothing in their stomachs, or nothing but a very little,milk; and you are shown at the same time that the mothers upon which they depend for sustenance have been killed—unless something can be shown that prima facie appears to account for the death outside these natural causes, we must assume that they died of starvation, and that is what the testimony undoubtedly shows. Therefore, I will not dwell upon that. I prefer to let the matter stand as it is, and hear what arguments our friends on the other side may have to state on the subject. We simply say, the natural cause of death is the death of the mother, and if it were true, as it is not, that, a mother would suckle more than her own, and would take a waif when she found it, from maternal instinct and charity, then the difficulty would be only slightly minimized, because the supply of food would not be sufficient to go around and nourish all the young. I will here interrupt the regular course of my argument to answer a question of the learned President of the Tribunal with regard to the action of Bussia in seizing pelagic sealers. In the Case and Counter Case of the United States and Appendix on pages 201,2.02,203 and 204 is all the information that we have upon the subject. It is imperfect; it is by no means as full as the Tribunal might like to have it; but the learned Arbitrators will understand that that is not a subject upon which we can have any official evidence, and we must let the evidence, such as has appeared in the Case speak for itself. 414 ORAL ARGUMENT OF FREDERICK R. COUDERT, ESQ. On the first page I have pointed out, N° 201, there is an extract from the Victoria News of August 31st, 1891. It is rather hysterical in its general tone aud perhaps I ought not to read it in a solemn judicial proceeding. It talks about "Eussian Piracy", "Startling Story", and it loses a good deal probably by being published as an extract and also by not having the large capital letters that emphasize the wrong committed by Eussia; I will pass that and take the next page 202. The London Standard of September the 10th states the fact in more moderate language: The Minister of Marine is preparing a case to submit to the British Government relative to the seizure of Canadian sealers by the Russian cruisers off Copper Island. He says the seizures were made not in Behring Sea but in the North Pacific, and that they are most glaring violations of the treaty between Russia and Great Britain in 1888. That is a misprint there. It is not 1888. It is probably 1858 or 1859. Mr. Justice Harlan.—There was a treaty in 1858. Mr. Coudert.—Then it is probably 1858. We also have an extract from the London Financial Times of September 15,1892, five days after this. It is written from Victoria, British Columbia, on the 13th September but it is published in the London paper on the 15th : A comparison of the statements made hy the captain of the Russian cruiser which seized a number of Canadian sealers iu the Northern Pacific and the regular charts prepared by the agents of the marine department shows that the Schooner Willie McGowan was 42 1/2 miles from the nearest land when seized. The Rosie Olsen also appears to have been 38 miles and the Ariel 30 miles out at sea. The sealer Agnes Macdonald arrived here to-day and reports that when 20 or 30 miles from Copper Island she put out her boats, which were, however, soon driven in by the Russians. The Vancouver Belle and other vessels have been seized all they contained being confiscated. The Russians are said to have declared that they would seize the British schooners wherever they found them, no matter what distance from the shore. The sealer Libbie will probably make a trip to the southern Pacific. Then we have in the next page a letter from Collector Milne of Victoria to the Canadian Minister of Marine and Pisheries. This is written in the same year October 8th, 1892, and published in the London Times of November 11th, 1892. Mr. Justice Harlan.—That is a letter to the Collector. Mr. Coudert.—"Prom the Collector" it is headed on the top of the page, but I think that must be an error, I think it is to the Collector. Sir, As requested by you, we have measured the distance ou the chart of Behring Sea, as given by you showing the exact places where the three British Schooners were seized by the Russian cruiser Zabiaka and the Russian Fur Company's steamer Kotik. Schooner Willie McGowan, latitude 50°, 50' N., longitude 167°, 50' E., a distance of 42 1/2 miles from Copper Island the nearest land. Schooner Rosie Olsen, latitude 34°, 24' N. ; longitude 165°, 40' E., a distance of 38 miles from Behring Island the nearest land. Schooner Ariel, latitude 54°, 10' N., longitude 167°, 40' E., a distance of 30 miles from Copper Island, the nearest land. Yours respectfully. Then finally, and that is all I have to read on the subject, it may be interesting to the Tribunal to hear a paragraph from page 204 on this subject. The said latitude 54c 18' north, longitude 167° 19' east, is, by correct observation measured by me, on the United States Coast Survey Chart, N° 900, more than 50 miles from Copper or Behring Islands on the high seas, and not in Russian waters; when at said time, and in the latitude and longitude above mentioned, on the 15th day of July, A. D. 1892, as aforesaid, and not being at the time hunting or fishing, and not having at any time fished or hunted seals in Russian waters, but being at said time on my course for the Kurile Islands, as aforesaid, the said schooner was boarded by an officer from the Russian war cruiser Zabiaka, which said war cruiser Zabiaka was at all times herein mentioned, a regularly commissioned war cruiser belonging to the Russian Government, armed for offensive and defensive warfare, and ORAL ARGUMENT OF FREDERICK R. COUDERT, ESQ. 415 and I w schoone after ex nder the au thority and by the dir 3ctions of the said Ri ssian Government: Tsaid Russia nofficer ordered to come on board of said cruiser with all the apers; 1 ling the ordingij papers, arr board, and th ested me, and then i in of said cruiser, ad all the crew of" said sch aone r, excep tth 3 mate, l rought on board of said c and I and the crew lid cruiser as prisoners. The s aid Russian cruiser ner C. E. White, and tov ed it o Michelovsly Bay, nd sent it to Petro- Behring Isla nd, and placed said schooner under prize ndthec >r, with ne and the crew of said s< hoonei as prisoners, sailed *° ^®tro >au ovs.ky a nda rrived tl 1ère on the 20th day of Ji lly, A. D. 1892; and while y"UIMU ""D ou;"1 uiuiser, i was by the Captain of said cruiser forced to sign a paper in Russian, which I did not understand, the said Captain threatening to send me to Siberia unless I signed said paper, and I only signed said paper under protest in consequence of said threat and the duress exercised by said Captain of said cruiser. ^.e .Russian Governmeuc seized said schooner C. E. White, as hereinbefore set forth, but I do not know what disposition was made of said schooner, but I am advised and believe and therefore allege, that said schooner was repainted and refitted and used by said Russian Government, and is now in its possession, and by it used. That is all the testimony that we have on this subject. The President. —There was a protest of the captain. Mr. Coudert.—A deposition in which he filed a claim against the Eussian Government in consequence of this seizure. . The President.—What is the consequence of this? Mr. Coudert.—So far as we know the Eussian Government is using this ship yet. The President.—And your Government said nothing about it. . Mr. Coudert.—No action, as far as we know, was taken. The President.—Do you suppose, as Counsel for the United States, that the Eussian Government was acting in accordance with your principles. Mr. Coudert.—That is only fair to assume. In the first place there is a good deal of similarity between the actions of the two Governments in the two seizures, and our Government would have taken action certainly if it had not considered that the proceeding was proper and in accordance with its own view of right. Sir Charles Eussell.—The conclusion of that is the protest of the captain. Mr. Coudert.—Yes, it is filed in the State Department. Sir Charles Eussell.—It says he duly noted the protest. Mr. Coudert.—What is the point? Do you wish me to read anything more? I will if you desire it. Sir Charles Eussell.—No. Mr. Justice Harlan.—It is a regular marine protest. Mr. Coudert.—There is one point to which I call the attention of the High Tribunal and that is the number of seals lost by wounding, or by killing and losing. In connection with that I would briefly refer to the British Commissioners' Eeport as giving the view most favorable to the Government of her Majesty, section 604. Seals thus met with upon the sea surface are roughly classed by the hnnters as "sleepers" and "travellers" and the former are of course, themost easily approached. Whether in canoes or boats, paddles are employed in preference to oars as they enable .a more noiseless approach to the seals. When a seal is seen, the boat or canoe is quietly but swiftly impelled toward it till the hunter believes that he has arrived within sure range when he fires. If killed, as happens in the majority of cases, especially now that the shot-gun has superseded the rifle, the seal may either remain floating upon the surface, or begin to sink slowly. In either case, the boat or canoe is at once urged forward, and if the carcase which does not difi'er much iu specific gravity from the water, is alreadv partly submerged, it is at once secured with a 15 foot gaff, and hauled on board. If the seal should happen to be merely badly wounded, it either struggles upon the surface until gaffed, or, if retaining strength to do so, dives. If quite liffhtlv wounded, as of course happens in some cases, it may eventually escape; but if severely wounded it is probably killed at the next rise after a short submersion. 416 ORAL ARGUMENT OF FREDERICK R. COUDERT, ESQ. These are some of the chances that an animal has for its life. We are informed that it has been learned by experience that seals may easily be lost if shot in the neck, as in this case the muscular contraction of the body often forces most of the air from the lungs, and the carcase then may sink much more rapidly than usual. How often these animals may be shot in the neck is apparent when you consider that the head is the part which is most exposed in many cases, so that you have all these chances of escape for the seals. In the first place he may escape as a carcase, dead, and go to the bottom, when he does no good to anybody, or he may be badly wounded, or sufficiently wounded, simply, to escape. That there are some lost in this way, of course is admitted. How many, is the question? As I have said, 50 or 60 per cent is the proportion stated by us of those lost. The British Commissioners produce authority to show the number is much smaller; but when the Members of this High Court read the testimony, they will find that the pelagic sealers, when they talk of losing the seals that they shoot, as a general rule, and almost in every case only speak of the' seals that they kill; that is to say, they shoot a seal and they lose it, and they call that a loss; but they say when they wound them slightly,—they get well,—no doubt, they get well. I do not think we are bound to accept their theory; but, certainly, some do get well because they are found with shot in their skins on the Pribilof Islands. But the gravity of the wound is a matter as to which opinion is absolutely worthless. It is enough to say that many of them are wounded, and some of them must naturally die. Judge J. G. Swan of Port Townsend, Washington, is cited by the British Commissioners at section 623, he writes as follows : I have seen several Makah Indians who have been here, and they tell me that Indians lose very few seals, whether they spear or shoot them, as they are always so near the seals such times that they can recover them before they sink. Captain Lavender, formerly of the Schooner "Oscar and Hattie", who is a very fine shot, told me that he secured ninety-five seals out of every hundred that he shot. Now here is a very fine shot, an exceptional shot, who gets 95 out of those that he kills, not that he shoots at. You will find that running all the way through. He says that "poor hunters, of which he had several on his vessel"—of course he had; he was bound by the laws to have them : Would fire away a deal of ammunition and not hit anything, but would be sure to report on their return to the vessel that they had killed a seal each time they fired, but that all the seals sank except the few they brought on board. Captain Lavender was of opinion that not over 7 per cent of seals killed were lost. How many of the seals wounded were lost is a question as to which he gives us no opinion. On a consultation with the members of the Sealers Association of Victoria, comprising owners of sealing vessels and sealing captains, they called special attention and invited inquiry into the matter of the number lost. They explained that when the' seals sink after being killed, as they often do, they sink slowly on a slant, so that it is usually quite easy to gaff them. They further affirmed that the result of the sealing in 1891 was, like that in former years, to show that the loss from this cause averaged below 6 per cent. That is not being able to recover with the gaff those that were slanting off after being killed. The captain of the "Eliza Edwards", interviewed at Vancouver, stated, as the result of his experience, that sealing must be learnt like any other business That green hands might lose as much as 25 per cent of the seals shot. With experienced hunters the loss is very small. It might possibly amount to 5 per cent. ORAL ARGUMENT OF FREDEEICK R. COUDERT, ESQ. 417 And on every one of those ships one-half the men were green hands and this 25 per cent is not 25% of total loss including the wounded but only 25% of those they actually shoot, when they are at a distance of 30 or 40 yards and by the time they get up, particularly if the seal is shot m the neck, it sinks and cannot be recovered. I have here the extract from the agreement of the Sealers Association which I read the other day. It requires that all hunters in excess of three shall be new men in tie business of seal hunting. In each boat there are six or seven men; so that half the men are these green hands who fail to recover one quarter of the seals that they kill. We have the testimony of this journalist, Mr. McManus, who said they would go out and blaze away all day and come back with nothing at all, and say they had killed them but lost them, and that the powder was bad, or the boat was clumsy. There is no reason to suppose that the testimony of this gentleman was not true, and there is no reason to suppose that there were worse shots on his boat than on any other. I will read some very brief extracts. I will not trouble the court to look at the volumes, but will give it to my friends on the other side as I go on. It is so very brief that the court would be troubled to very little purpose. I am about reading from the Case of the United States, Appendix, vol. II, p. 313. [ This is what Peter Andersen of Victoria, a sealer, says: I have been engaged in the last three years in taking seal in the North Pacific Ocean and Behring Sea in capacity of boat-steerer. The vessels I was employed on are as follows : Black Diamond, Ariel, and Umbrina, all British schooners. First saw and took seal off Cape Flattery in March and we followed them clear up the coast into Behring Sea, where we arrived about July 1st. Shot gun and rifle exclusively in the boats I was in, thenoe I am satisfied that 33 1/3 per cent shot with a shot gun are lost, and when a rifle is used a larger per cent are lost when killed. That is more than half where a rifle is used. That is in perfect accord with the British Commissioners who say that the shot gun is much more deadly. They recommend superseding the rifle with the shot gun. Bernard Blaidner, of Victoria, a sealer, says : On an average we saved one out of three that were killed. I want to call the attention of the court to that language used in almost every one of the depositions. I admit that at first I was misled and did not see the point of the distinction. There are two ways, one killing the animal and losing him so that you cannot recover him at any time, and the other wounding him aud allowing him to escape. Mr. Christ Clausen, of Victoria, master mariner, says: The Indian hunters, when they used spears saved nearly every one they struck. It is my observation and experience that an Indian, or a white hunter unless very expert, will kill and destroy many times more than he will save, if he uses firearms. It is our object to take them when asleep on the water, and any attempt to capture a breaching seal, generally ends in failure. Alfred Dardean of Victoria, sealer, was out sealing in 1890 and eaught 2,159 skins. He says : We had seven boats, and a stern boat and three men to a boat. Our hunters used shot guns and were good hunters. They lost a good many seals, but I do not know what proportion was lost to those killed. Some of the hunters would lose four out of every six killed. We tried to shoot them while asleep, but shot all that came in our wav If we killed them too dead a great many would sink before we could get them and were lost. Sometimes we could get some of these that had sunk with the gaff hook, but could not save many that way. A good many are wounded and escape only to die afterwards. _ ^ ^ ^ ^ ^ | ^ ^ are y they do now there will not be 418 ORAL ARGUMENT OF FREDERICK R. COUDERT, ESQ. James Hay ward of Victoria, a sealer has had large experience. Was out in 1887,1888,1890. He says: 1 do not think we got over one half that we killed and wounded. Have seen six out of seven killed sink and were lost before we could get to them. This happened last year in a boat I was in. I think the seals are not near' as plenty as a few years ago, and they are much more shy and harder to catch now than they were when I first went out sealing. I think this is caused by hunting them so much with guns. J. Johnson of Victoria. He was out six years of his life sealing. He says : About 40 per cent shot with a shot gun are lost. When a rifle is used a larger per Morris Moss, Furrier, and Vice-President of the Sealers Association of Victoria, says—this is an opinion, and will go for what it is worth. He says : I cannot say how many seals are killed and wounded but there is no doubt that green hunters lose many while those more experienced in the business lose fewer. There is no doubt about that, and it is conceded by the British Com- missiouers. What Mr. McManus says I have already read. He is the journalist whose diary I have already given to the Court. Mr. King Hall, who is a subject of Her Majesty, a correspondent of the New York Herald, was on the Otto at the same time. He says : I am convinced that at the very least our hunters lose 50 per cent of the seals they hit, and probably the majority of those hit ultimately die. Mr. Daniel McLean whom I have cited before, and who is spoken of as a successful sealer by the Canadian inspector of fisheries is quoted. He is asked the question : According to your experience what percentage of animals that are shot at, are actually taken by the boats? A. That is according to the.amount of ammunition we use. About one third are taken. Charles Peterson says he went out sealing 1886, 1887, 1889, 1890 and 1891. Seals were caught by them (Indians) with spears and but few were lost; but since the shot gun has come into use a great many are destroyed and lost. Henry Moxon of London, Furrier, gives his opinion from common report : Have you not heard it alleged that pelagic sealing is a wasteful method because of the number of seals that are wounded and sink before they can be picked up?— A. I have heard that reported, but the result of my conversation with a large number of old sealers and experienced men in Victoria is quite contrary, and I am convinced that not more than one in seven is lost. Certainly a skilled hunter would not lose more. This is the testimony of our friends on the other side, given, by a gentleman who evidently meant to aid in minimizing the loss. He is convinced—that is as far, evidently as he can go—that not more than one in seven is lost. Michael White of San Francisco, a sealing captain, says that not more than one out of three is secured. It makes no difference whether that is actually correct. It may be five per cent or ten per cent. All we mean by this is, that superadded to the enormous loss by the killing of the males is the loss by killing and losing these females. We have the testimony of over 200 witnesses on this and the high court will find further testimony, if it is required, at pages 469 to 510 of the Appendix to the Argument. One single word more as to the management. The British Government have endeavored to show that too many male seals have been • killed on the Pribilof Islands beginning with the year 1870, and that a -* ORAL ARGUMENT OF FREDERICK R. COUDERT, ESQ. 41 £ gradual deterioration in the herd has been taking place. Even if this could be shown, it would form no justification for pelagic sealing and would therefore be considered irrelevant. Suppose it were true; suppose the United States had been reckless or had employed corrupt and bad agents, the principle is admitted to be good. The property—I will not say is conceded—but is proved to be theirs on the islands; and iï pelagic sealing is destructive, the fact that we must do our sealing on the islands cannot be disputed. Suppose these seals to be under the control of the United States at sea as well as on the islands. Would it make any difference, and would anybody say that we had less right to protect seals at sea because they were not treated properly on the shore. There is no evidence, however—and I shall not pursue the subject in my anxiety to close the argument to-day—to show that any bad results followed upon the killing of a hundred thousand male seals prior to the introduction of pelagic sealing; and that is the point upon which I insist and to which I most strenuously call the attention of the court— that there was no complaint, no loss, no difficulty, and that every thing went on prosperously and satisfactorily until the enormous depreciation in the herd caused by pelagic sealing became manifest. This point has been treated carefully in the Counter Case of the United States, and I will dismiss the subject by reading short extracts from it. I read from the Counter Case of the United States, page 65. " In establishing their assertion that the numher of seals annually killed on the Islands was excessive, it is insisted by the United States that the Commissioners should be confined to the first decade of the lease of the Pribilof Islands to the Alaska Commercial Company (1871-1880), because pelagic sealing was then too insignificant to perceptibly affect seal life, and that any consideration of the management subsequent to the introduction of pelagic sealing, which is admitted to be a factor "tending towards decrease" (Sec. 60), is irrelevant to the question at issue, unless it can be shown that there was a sufficient increase in the number of seals killed on the Islands, or sufficient changes in the methods employed in taking the quota, to materially affect and deplete the seal herd, even without the introduction There is no pretence of that. There is no pretence anywhere that if it had not been for the introduction of pelagic sealing there would have been such a decrease on the islands as to imperil the existence of the herd. The British Commissioners themselves do not so pretend. On page 67 : The United States, however, insist that the failure, if any, to take into account the "new factor" (viz, pelagic sealing) is wholly irrelevant to the true issue, and they have presented testimony in relation to the management on the Islands for the purpose of showing, and which shows, that such management could not, under normal conditions, have caused a decrease in the Pribilof seal herd. The report fails to establish—and we assert this with great confidence—a single instance, where the management on the Islands or the methods employed thereon have been changed since 1880 from the "appropriate and even perfect" system adopted in 1870, or where the number of seals killed annually has been increased beyond the annual quota of the first ten years of the lease. I will read a few lines more and then submit this part of the case to the court. I read from page 69 : The alleged excessive killing of male seals must rest entirely on the proposition, which the Report endeavours to establish, that, by means of this license to slaughter 100,000 youn|males on the Islands, the breeding males have become so depleted as to be unable to fertilize the females, thus creating a decrease in the birth rate sufficient to account for the present condition of the Alaskan seal nera. 10 esxau- lish this, the Commissioners refer, among other things, toJ^e.reP.°ftJ;oc3oI.]r^su^ Department in 1875 of Captain Charles Bryant, this omciai aid, as stateu in tne Report (Sec. 678), advise the Secretary,of the Treasury, in view oi nis ouser\ations to reduce the number of the quota to 85,000 skins; but the true reason of this 420 ORAL ARGUMENT OF FREDERICK R. COUDERT, ESQ. recommendation is obscured in the Report by a collection of quotations from v writings, of which he is the author, and by placing an erroneous interpretation on his language. He is then cited to say this : In the season of 1868, before the prohibitory law was passed and enforced, numerous parties sealed on the Islands at will and took about two hundred and fifty thousand seals. Thev killed mostly all the product of 1866-77. In making our calculations for breeding seals we did not take that loss into consideration, so that in 1872-73, when the crop of 1866-69 would have matured, we were a little short. These seals had been killed. For that reason, to render the matter doubly sure, I recommended to the Secretary a diminution of 15,000 seals for the ten years ensuing. I do not, however, wish to be understood as saying that the seals are all decreasing— that the proportionate number of male seals of the proper age to take is decreasing. Q. The females are increasing? A. Yes, sir; and consequently the number of pups produced annually. On page 73 : The other class of statements or conclusions advanced, to show that the breeding and non-breeding seals decreased during the ten years following the leasing of the Pribilof Islands in 1879, may be divided into three heads, namely, an alleged increased proportion of females to breeding males, an alleged recognition by the lessees of the decrease of male seals, and alleged overdriving and resort to new areas to obtain the quota. The first allegation is based entirely on comparisons between the early years of the lease of 1870 and the last two or three years of the same (1889-1891). The United States insist that such comparisons are irrelevant, for, even if the breeding males were disproportionately few during the latter years, it is the result of a decreased birth rate caused by pelagio sealing. And this the facts will show, and the irresistible inference from the facts that are uncontradicted must establish the proposition, that the births also had diminished from the pelagic sealing during those years under the circumstances stated heretofore. As to the question of driving on page 78. The Tribunal will understand what is meant by driving. The animals are carefully selected. The young seals are driven up like sheep to a certain inclosure or a certain place where they are kept together. Then they are carefully selected. It is stated by the British Commissioners that the drives are too long and that they get exhausted. The question of driving in 1879 from areas, before reserved and untouched, is used in the Report to show that the male seals had decreased to such an extent as to compel the resort to those hauling grounds. The Commissioners refer to this in the following words: "Whatever may have been the detailed history of the seal interests on St. Paul in the intervening years, the fact that in 1879 it became necessary for the first time to extend the area of driving, so as to include Zapadnie and Polà- vina rookeries, or the hauling grounds adjacent to them, shows conclusively that a great change for the worse had already occurred at that date." That is, at that time they were obliged to take in a new area that they had not touched before. So that these gentlemen are mistaken as to the fact. And Zapadnie had supplied its portion to the quota of skins every year of the lease prior to 1879, as is shown in the table cited. It is insisted by the United States that driving and redriving after the introduction of pelagic sealing, if any occurred, was directly chargeable to the condition created by open sea sealing. We do not deny, and we have not denied that pelagic seal hunting introduced a new condition or factor into the business and that what was eminently proper and successful and led to the prosperity of the industry became impossible afterwards; that one hundred thousand were too many; and ORAL ARGUMENT OF FREDERICK R. COUDERT, ESQ. 421 that the United States Government was obliged to restrict its killing because of the killing on high seas and the reduction of the birth-rate. They were no longer born as they were before. Taking 12, 13,14, 15, 20 thousand female seals a year for 4,5,6, 7 or 8 years naturally caused an enormous decrease in the birth-rate so as actually to threaten and begin extermination. Does anyone undertake to justify pelagic sealing? Does any man but the British Commissioners themselves, with their new born zeal in favor of this industry, say that pelagic sealing is a good method and that killing on the islands is a bad method? There are passages in their report in which they speak of this as the : ideal system, the system of the United States. They say the system as commenced by Bussia was an excellent system and that it was continued by the United States, and that it is practically the ideal system; but they say the contrary at section 76, and I will give you both their opinions, and the Arbitrators will choose and attribute to them sincerity in whichever they like. It is thus clear that the killing of seals upon the breeding-islands is in itself an essentially oritioal and dangerous method of killing, which although established by There is a plain statement that killing where you can discriminate is wrong. I now read section 660 of these same gentlemen now giving their That is our methods on the islands which they have just condemned— These were exceedingly proper and well conceived to insure a large continual output of skins from the breeding islands, always under the supposition that the lessees of these islands could have no competitors in the North Pacific. I do not ask to put it in stronger language. I ask for no better mode of expressing our view upon that subject, that these methods were theoretically exceedingly proper and well conceived, not only to keep the herd in good order but to secure a large continual annual output, "always under the supposition that the lessees of these islands could have no competitors in the North Pacific." That is to say, the system on the islands would be an admirable system, would continue to work in the future as it has worked in the past, provided pelagic sealing did not interfere. With that we will agree. We will admit that our system cannot co-exist with the pelagic system, and that you have to condemn the one or the other in your own judgment. There is no circumscribing it. There is no limitation for it. You cannot say to the pelagic sealers you will do this for twenty miles or 30 or 40 or 50 miles beyond the islands. Either you must condemn or you must permit. To say that you are to give us a zone of 20 miles or 50 miles, you might as well apply a bread and milk poultice to the bite of a rattle snake, to cure the man who is suffering. It has to be scotched and killed, the whole business, or let alone. There were a number of paragraphs which I had laid out but shall not undertake to read. But there is a paragraph that I want to read because it may be seriously intended. Whether it is actually serious or is an exhibition of grim humor on the part of these gentlemen, I do not know. . 422 ORAL ARGUMENT OF FREDERICK R. COUDERT, ESQ. After the Tribunal has heard it read, the Tribunal can decide. It is an implied threat that if the United States do not so conduct the killing on land that pelagic sealing will be prosperous, the stream of these animals may be diverted to some other place by the ingenuity and skill of man, just as a water course is tapped and I get the water from your farm and put it upon mine. Thus these ingenious British Commissioners have threatened us, in covert and scientific and polite language with taking all the seals away and putting them on British territory; and all because the seals have such a keen sense of smell. It is section 524 of the British Commissioners report. This is particularly worthy of consideration in the case of the Aleutian Islands, where, in consequence of the now very small and still decreasing number of natives, it would not be difficult to set apart reserves for this purpose, as well as for the propagation of the sea-otter. The greatest difficulty in the case of the fur-seal would doubtless be found in the matter of inducing the first colonization of such new rookery grounds. To that I fully agree. CPest le premier pas qui coûte, as St. Denis said when his head was taken off. So it would be, I undertake to say, if you can get the Pribilof herd to stop at a half way house and rest and refresh themselves there and be happy, the rest would be comparatively easy. But as it has been shown that the smell of the formerly occupied rookeries is one of the chief—if not the chief—attraction to the first-arriving seals, and as this smell is inherent chiefly in the soil of these rookeries, it is perhaps not unworthy of consideration whether the transfer of portions of this seal-impregnated soil, and its scattering over suitable places—particularly such as lie near the migration-route of the seal—might not lead to their occupation. In any case, such reservations would soon be colonized by the more widely wandering sea-lions and hair-seals, and the security and increase of these, would probably after a time have the effect of producing a sense of safety which might induce the fur-seal to take up its abode there at the breeding season. The principal objection to experiments of this kind would be the cost of affording the necessary protection, but if such islands were also stocked with and preserved for the blue-fox, the sale of the skins of this animal might alone, in the course of a few years, be sufficient to cover a large part of this cost. Similar measures would, of course, be also worthy of consideration in the case of various places on the shores of British Columbia, or on the Asiatic coasts of the Pacific. Science has made such progress that I do not think, pursuing this, that it is necessary even to raid our island to get our soil. Of course the United States, if this be so, would not be willing to have ship loads of its soil transferred for the purpose of colonizing foreign countries with seals; but after all, chemistry can do almost anything, and I suppose that chemically this might be imitated, and the sense of smell, however acute, of these animals, might not detect the difference. But whether this is meant seriously or not, I leave the court to determine. I confess I am very much puzzled about it. It is ingenious. Jules Verne might enjoy it very much, and write a book upon it. I am sure he might succeed in populating the islands to his entire satisfaction. My time is so short that I shall call the attention of the Court in conclusion only to some of the opinions of the naturalists. On pages 411, 412, and following, of the Appendix to the Case of the United States are the letters of naturalists. First, we have a statement by Professor Huxley. Sir Charles Bussell.—Will you read the paragraph before that? Mr. Coudert.—I would read it with great pleasure if I did not intend to close the argument this evening. I will leave it to you to read. ORAL ARGUMENT OP FREDERICK R. COUDERT, ESQ. 423 Here is what our friends on the other side say that Professor Huxijsy says. (Counter Case of Eer Britannic Majesty's Government, p. 183.) In his statement, printed in the Appendix to the United States Case, Professor Huxley, on the subject of the possibility of destroying the seals when on the breeding-islands, writes: In the case of the fur-seal fisheries, the destructive agency of man is prepotent on the Pribiloff Islands. It is obvious that the seals might be destroyed and driven away completely in two or three seasons. That is a part, and a very small part, of what he says; and on page 412 you will find a complete statement, which our friends did not take down: Might be destroyed and driven <v .-.ay completly in two or three seasons. Moreover, as the number of "Bachelors" in any given season is easily ascertained, it is possible to keep down the take to such a percentage as shall do no harm to the stock. The conditions for efficient regulation are here quite ideal. That is the tribute that Professor Huxley pays to our system. "The conditions are quite ideal." Sir Charles Bussell.—He then goes on to say it is impracticable. Mr. Coudert.—That may be. I mean to say simply this: that the extract given in this Counter Case gives exactly the reverse of what this eminent gentleman says. Mr. Justice Harlan.—Bead the sixth paragraph there in Professor Huxley's letter. Mr. Coudert.—Yes. But in Behring Sea and on the Northwest coast the case is totally altered. In order to get rid of all complications, let it be supposed that western North America, from Behring Straits to California, is in the possession of one power, and that we have only to consider the question of the regulations which that power should make and enforce in order to preserve the fur-seal fisheries. Suppose, further, that the authority of that power extended over Behring Sea and over all the northwest Pacific east of a line drawn from the Shumagin Islands to California. Under such conditions I should say (looking at nothing but the preservation of the seals) that the best course would be to prohibit the taking of the fur-seals anywhere except on the Pribilof Islands, and to limit the take to such percentage as experience proved to be consistent with the preservation of a good average stock. The furs would be in the best order, the waste of life would be lea.st, and, if the system were honestly worked there could be no danger of overfishing. Sir Charles Bussell.—Will you read No. 7. The Arbitrator has asked you to read No. 6. Mr. Coudert.—I will, out of deference to my learned friend on the other side: However, since northwest America does not belong to one power, and since international law does not acknowledge Behring Sea to be a mare clausum, nor recognize the jurisdiction of a riverain power beyond the 3-mile limit, it is quite clear that this The Case of the fur-seal fisheries is, in fact, even more difficult than that of the Salmon fisheries, in such a river as the Rhine where, the upper waters belong to one power and the lower to another. I read Professor Huxley's opinion as a naturalist, aud not as a man versed in international law; I do not think, therefore, that makes any difference. I am satisfied he can suggest no better system, and according to him, if honestly administered, it is an ideal system on the land. Dr. Sclater says : 1 Unless proper measures are taken to restrict the indiscriminate capture of the fur-seal in the North Pacific, he is of opinion that the extermination of this species will take place in a few years, as it has already done in the case of other species of the 6ame group in other parts of the world. 424 ORAL ARGUMENT OF FREDERICK R. COUDERT, ESQ. 2. It seems to him that the proper way of proceeding would be to stop the killing of femalos and young of the fur-seal altogether or as far as possible, and to restrict tales to a certain number in each year. he can imagine by which these rules could be carried out is by ly in the islands at the breeding time (at which time it appears that the young males keep apart from the females and old males) and by preventing altogether, as far as possible, the destruction of the fur-seals at all other times and in other places. Following this is a circular letter of Dr. 0. Hart Merriam. He was one of the American Commissioners. After having commented as I have upon the testimony of the British Commissioners, I desire to beg this High Tribunal to read the reports of our American Commissioners. I am very much mistaken if they will not find an entirely different, tone and temper from that which is found in that of the British Commissioners. Dr. Merriam's letter is too long to be read. He elicited from some of the most eminent scientists in the world their opinions, nor will 1 read those. They are gentlemen eminent in France, in England, in Germany, in Sweden, in Italy. There is one letter especially, the longest, which I had intended to read, but shall not—that of Professor Giglioli. It is an extremely interesting paper. I can say that, almost without an exception, these gentlemen are of opinion that if the fur-seal is to be protected, it must be protected by prohibiting pelagic sealing, and having the killing done on land. They all say that it must be limited even on land, which of course is precisely what we do. I cannot do justice to this letter of Professor Giglioli if I read it in part. I will ask the Court, as I am anxious to close this argument, that is already too long—I will ask them to read these letters of these gentlemen. They are valuable contributions to science. They are valuable contributions to our case. They are valuable contributions and additions to the knowledge which we have endeavored to bring here before the Court. With this, so far as the merits of this case are concerned, I am ready and willing to submit the case of the United States. I stated to the Court that I would endeavor to show, and I believe that we have shown, that the system of killing on land is the only one that can preserve this threatened race of animals which is now being rapidly exterminated; that the brutality and crime of it alone, ought to stamp it and to prevent its being carried on, even without the serious results that threaten a ! valuable industry. You will see that there is no way of dealing with this except to stop it; that it cannot be dealt with otherwise, for this simple reason, this radical reason, this reason that goes to the very root and heart of the whole system—that is, inability to discriminate. If among the plans suggested—if any plans are suggested—anyone would say: "You could discriminate in such a way that it would be worth considering", it might be different; but whatever plans are brought before this Tribunal are only suggestions as to zones and only suggestions as to time; and when you are told by intelligent men advocating the other side that the pelagic sealer can no more be expected to discriminate as to the sex of the animals that he takes than the fisherman with his hook, the stamp of condemnation is put upon the practice. The judgment of the Court must follow upon those facts. How can it be otherwise? What knowledge is there produced before you that shows you that it is anything else than what Mr. Phelps called contra • bones mores, and absolutely destructive? How long will this last? Suppose this should not be decided by you. Suppose it had not been submitted to you, and in its anxiety to remove all causes of offence with a ORAL ARGUMENT OF FREDERICK R. COUDERT, ESQ. 425 friendly nation, the United States Government had said: "We will goon". The United States can afford rather to lose this valuable industry than to come into collision with a friendly power; the cause of civilization would suffer less than if these two great nations, among those that lead the world, those that are giving the example of this practice that was begun at Geneva and is going on now at Paris, had come into collision. If she had said, " We will let it go on" how long would the seals have lasted. There was a temporary interregnum on the islands one year, and 250,000 of these animals were swept out; and yet these pelagic sealers had scarcely tasted blood, and hardly knew what the. conditions were. Their knowledge is growing every day. The small' fleet of three ships has grown to 122. Even now when I am talking to you, do you not suppose that gravid females are being slaughtered on the way to their homes on the Pribilof Islands? Do you not understand that this Modus Vivendi was simply accepted for a while for the sake of peace, and because we could do no better? The matter is now in the hands of this Tribunal, and to its hands I commit it, hopeful, and I will say confident, that the result will be a step in advance in the cause of humanity and fair dealing among nations. One single word now as to the question of damages. I do not propose to discuss that. My learned friend, Judge Blodgett, had prepared a careful brief, As I understand the Treaty, this Tribunal has no power to pass upon the liability of either nation as against the other. There was some discussion as to that, and Great Britain was unwilling that question should be submitted to this high Court of Arbitration. We had our claims, you had your claims, and we were willing both should be submitted. Sir Charles Bussell.—It was the other way, I think. Mr. Coudert.—The other way, if you please. I think not. But the nations were not willing, and they did not submit this question of liability, simply leaving this Court to find upon the questions of fact. Now, we are divided upon a question of law, and yet to some extent it may control the Court in finding upon the facts. That is, as to intricate and remote damages. We submit to the Court as well settled by the law of Great Britain as by the law of the United States, that the prospective catch of a ship is too remote; that you cannot count upon such a catch as a sure result, nor allow for it especially where there has been no malice. If it were the case of a malicious taking, where individuals were concerned, then you might say the law will be effectual, and the judgment will not only give damages, but inflict chastisement upon the wrong-doer; but I take it to be well settled law, law settled not only in the national municipal tribunals of these two countries, but settled on a precisely similar principle in the great arbitration at Geneva; where it was so held by the judges, all concurring in that result, and all estab: lishing that precedent. There is also a new element of damages asserted here, that of the Say ward Case. That we object to in toto, because it is not in the bill of particulars, and this Court has no power now to examine new matters now brought up, and of which we were not notified in season. This claim first appears in the Counter Case. But even if it were otherwise I should say upon its face that claim cannot be sustained. The learned counsel for Great Britain selected its own Tribunal. It went before the Supreme Court 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 426 ORAL ARGUMENT OF FREDERICK R. COUDERT, ESQ. party, after having been defeated in the Tribunal of his own choice, can call upon the other party to pay all its expenses for the preparation and argument of his case? I submit there is no such precedent, and that this claim must be at once dismissed, and that it should be found as a fact that Great Britain having gone to this Court, the Supreme Court of the United States, of its own option and volition, cannot now make any claim upon the United States. The claim for the money paid to British schooners is for moneys paid, I think, after the submission. At all events, it is only in the Counter Case, and it has come too late. I have nothing now to do in addition, but to thank the Court for its kind and courteous and patient attention. The President.—Mr. Coudert, you have captivated our attention by a remarkable display of talent, and we have to thank you for the great ability, liveliness, and I may say, humor, with which you have carried us over this otherwise rather dreary field of questions of fact. As a Frenchman, allow me to add, I have been happy to notice and to see shine out in your manner some of the best characteristics of the French nation. Mr. Phelps.—Before the Tribunal adjourns, and before the argument on the other side commences, I wish to say for the benefit of the counsel on the other side, that in the concluding argument, I shall rely upon all the authorities that will be found referred to in the printed argument of the United States between pages 130 and 190, and upon all the points that are made in that part of the argument. Many of these authorities have not been referred to, and it might possibly be supposed that we were not intending to depend upon them in the concluding argument. The President.—We will certainly take heed of your remark. The Tribunal thereupon adjourned to Wednesday, May 10, 1893, at 11.30 o'clock A. M.
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Original Format: University of British Columbia. Library. Rare Books and Special Collections. JX238 .F8 1895
Bering Sea controversy
Sealing
Fur seal arbitration. Proceedings of the Tribunal of Arbitration, convened at Paris under the treaty between the United States of America and Great Britain concluded at Washington February 29, 1892, for the determination of questions between the two governments concerning the jurisdictional rights of the United States in the waters of Bering Sea. Volume XII
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