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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 20, 1892,

FOR THE

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

IN THE

WATERS -OF BERING SEA,
VOLUME XII.

WASHINGTON:
GOVERNMENT PRINTING OFFICH.
1895.

FURSEAL ARBITRATION.

ORAL ARGUMENTS

or

COUNSEL

ON

exoh AND COUNTER-CASH.

2

- i- veh = }

q

PUR-SEAL ARBITRATION:

ORAL ARGUMENT

OF

JAMES OC. CARTER, Esq.,

ON PEHALF OF THE UNITED STATES.

a —-

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 Pr esident, expressed in appropriate language those aspira-
tions 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 build-
ing 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 feeely, 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 o1der 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 con-
tention 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 respec-
tive 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 ques-
tions of right, and those which concern regulations, 1 shall endeavor
to exactly comply with that recommendation. It will not be entirely
possible altogether to separate those questions, but the direct discus-
sion 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

5

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 Tri-
bunal 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 contro-
versy, of the particular occasions out of which it grew, and the sue-
cessive steps through which it has from time to time passed, until it
has reached the stage at which we now find it. The learned arbitra-
tors 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 appre-
ciate 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
diseuss 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 vis-
ited 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 whith 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 north-

ward 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. é

there was, somewhere, north of the Aleutian chain in the Bering Sea
another great breeding place and resort for these animals. He, there-
fore, expended much labor in endeavoring to discover these resorts
and in the year 1786, I 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, itis said—which proceeds from the countless multi-
tudes 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 wasin 1786. Immediately following that
discovery many Russians, sometimes individually and sometimes asso-
ciated 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 exter-
mination. 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 acertain annual number.
Under that reasonable system, conforming to natural laws, the exist-
ence 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 bene-
ficial 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 con-
tinent 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 Isiands, 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 Govern-
ment 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 indiscrimi-
nate 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 diserimi-
nation 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 had 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 pro-
ductive 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 con-
tained an obligation to pay a large annual sum in the shape of a rey-
enue 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 beneficial to the lessees, for it is to be sup-
posed, 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 enjoy-
ment 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, involv-
ing destruction, necessary destruction, and they soon deprive them-
selves 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 com-
merce, and through the instrumentality of commerce was carried all
over the world to those who desired the sealskins; wherever they might
be on the face 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 indus-
try 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 industr y which had thus been estab-

10 ORAL ARGUMENT OF JAMES C. CARTER, ESQ.

lished, and which it was in the enjoyment of—a peril to the preser-
vation 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, a think, i 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 per-
ceived, 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, accupation of
these islands, there had been no such thing as pelagic ‘sealing, except
in the insignitic ant way already mentioned by the Indians. ‘Those two
nations had enjoyed ae full benefit of this property, the full benefit of
these herds of seals, in as complete a degree as if they had been ree-
ognized 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 i 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 s ay. 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 Gover nments, and to
these pel agic sealers, that the United States had, when they acceded
to the sovereignty over these islands, asserted a similar right, and made
the practice of pel agie 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

ORAL ARGUMENT OF JAMES C. CARTER, ESQ. . 11

to any account; and this successful experiment was, of course, followed
during the succeeding years by many repetitions of the same enter-
prise.

The extent to which pelagic sealing was thus carried on in Bering
Sea, its probable consequences upon the herds which made their homes
upon the Pribilof Islands, was not at first appreciated either by the
United States, or by the lessees of the Islands. There was no means
by which they could easily find out how many vessels made such excur-
sions, and they did not at first seem to suppose that their interests
were particularly threatened by it. Consequently, for the first two or
three years no notice seems to have been taken of these enterprises by
the Government of the United States, although it had laws against
them. But in 1886,.this practice of taking seals at sea became so
largely extended that it excited apprehensions for the safety of the
herd; and it was perhaps thought at that time that there was already
observable in the condition of the herd some damaging, destructive
consequence of that pursuit of them by sea.

The attention of the United States having been called to the prac-
tice, that Government determined to prevent 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 illegaliy under the laws of the United States. They were ear-
ried 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 Amer-
ican Case:

Sir L. S. Sackville West to Mr. Bayard.

WASHINGTON, September 27, 1886. (Received September 28.)

Sir: I have the honor to inform you that Her Majesty’s Government have received
a telegram from the commander-in-chieft of Her Majesty’s naval forces on the Pacific
station respecting the alleged seizure of the three British Columbian seal schooners
by the United States revenue cruiser Corwin, and I am in consequence instructed to
request to be furnished with any particulars which the United States Government
may possess relative to this occurrence.
Ihaveetc., . L. 8. SACKVILLE WEST.

That was the first note addressed by the British Government in con-
sequence of these seizures and, as the learned arbitrators will perceive,
it called only for information. Mr. Bayard, who was then the Ameri-
can Secretary of State, did not immediately respond to this note. He
could not give the requisite information. The locality, as you will per-
ceive, is exceedingly remote from Washington, and communication
with it could only be had on rare oceasions. The opportunities for com-
munication were very few, and therefore it was necessary, it was una-
voidable, that a very considerable period of time would elapse before
the United States could procure the information desired by the British
Government, and acquaint themselves with the particulars. But,
by reason of this demand the United States Government was called
upon to consider questions that would thus be likely to arise and to

12 ,» ORAL ARGUMENT OF JAMES C. CARTER, ESQ.

determine the course it would be best to pursue in reference to those
questions—to consider the exigency with which it was thus confronted.

What was it? Here had been an industry carried on by Russia, before

the acquisition by the United States, for three-fourths of a century. It
had been continued by the United States for twenty years, and contin-
ued with all the benefits to the United States and to the world which
IT have mentioned. It was threatened by this practice, which was rap-
idly extending itself, of pelagic sealing. What was pelagic sealing—
for that was the thing which at first arrested the attention of the
United States Government—what. was pelagic sealing, and what were
its obvious and its necessary consequences?

I must say a word or two upon that point, although it will subse-
quently form a subject of more extended discussion; but right upon
its face, pelagic sealing appeared to be, as it undoubtedly was, simply
a rapid method of destroying the race of seals.

Senator MORGAN. Before you proceed to argue that, I would lke to
ask a question about the sealers in Bering Sea.

Mr. CARTER. Certainly.

Senator MorRGAN. 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 Ameri-
can ship, on July 17th, and then the next seizure was August Ist 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 opera-
tion 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 aw: iy that benefit forever from mankind. So
it seemed to them, and so, therefore, they had no hesitation in giving
the instructions which resulted in the seizure of these vessels; and
those seizures resulted in the demand which I have just read.

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, October 21, 1886. (Received October 22.)

Sir: 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 Corwin, 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-
sation.

I have, etc., L. S. SACKVILLE WEST.

The state of mind in which the representatives of the British Gov-
ernment 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. Iam much obliged to you. It
is a later note, dated October 30th:

Earl of Iddesleigh to Sir L. S. Sackville West.

FOREIGN OFFICE, October 30, 1886.

Sir: Her Majesty’s Government are still awaiting a report on the result of applica-
tion 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 Corwin of three Canadian schooners
while engaged in the pursuit of seals in Behring’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 Ist of August last, by the
United States revenue cutter Corwin—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 5D. 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 still 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 50th of August
last.

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 Caro-
lina 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 jury believe from the evi-
dence, 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

jehring Sea east of 193 degrees of west longitude, the jury should find the defend-
ants 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 imprisonment.

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 sovereignty of that part of Behring Sea lying
east of the westerly boundary of Alaska, as defined in the first article of the treaty
concluded between the United States and Russia in 1867, by which Alaska was ceded
to the United States, and which includes a stretch of sea extending in its widest part
some 600 or 700 miles easterly (westerly?) from the mainland of Alaska.

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

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

I request that you will, on the receipt of this dispatch, seek an interview with
Mr. Bayard, and make him acquainted with the nature of the information with
which Her Majesty’s Government has been furnished respecting this matter, and
state to him that they do not doubt that. if on inquiry it should prove to be correct,
the Government of the United States will, with their well known sense of justice,
at once admit the illegality of the proceedings resorted to against the British vessels

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.

lam, 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 occu-
pation of pelagic sealing is a peaceful and lawful one; second, that out-
side, 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 neces-
sary, 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, April 4, 1887. (Received April 4.)

Str: 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 unmo-
lested 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. 8S. 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 OF STATE, Washington, April 12, 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-seuls, had
been received.

The records of the judicial proceedings in the cases in the district court in Alaska
referred to, were only received at this Department on Saturday last, and are now
under examination.

The remoteness of the scene of the fur-seal fisheries and the special peculiarities
of that industry have unavoidably delayed the Treasury officials in framing appro-
priate regulations and issuing orders to United States yessels to police the Alaskan

16 ORAL ARGUMENT OF JAMES C. CARTER, ESQ.

waters for the protection of the fur seals from indiscriminate slaughter and conse-
quent speedy extermination.

The laws of the United States in this behalf are contained in the Revised Statutes
relating to Alaska, in sections 1956-1971, and have been in force for upwards of seven-
teen years; and prior to the seizures of last summer buta single infraction is known
to have occurred, and that was promptly punished.

The question of 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
visiting the waters in question can govern themselves accordingly.

I have, etc.,
T. F. BAYARD.
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 Sack-
ville West as follows:

Srr: Complying with the request contained in your note of the 8th instant, con-
veyed 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, presum-
ably, in the endeavor to obtain this information. The Marquis of Salis-
bury writes:

FOREIGN OFFICE, September 10, 1887.

Sir: By a dispatch of the 30th October last (No. 214) the late Earl of Iddesleigh
instructed you to call the attention of the United States Secretary of State to the
circumstances of the seizure in Behring’s Sea, by the American cruiser Corwin, of
some British Canadian vessels; and his lordship directed you to state to Mr. Secre-
tary Bayard that Her Majesty’s Government felt sure that if the proceedings which
were reported to have taken place in the United States district court were correctly
described the United States Government would admit their illegality, and would
cause reasonable reparation to be made to the British subjects for the wrongs to
which they had been subjected and for the losses which they had sustained.

By a previous 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. F :

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

ORAL ARGUMENT OF JAMES C. CARTER, ESQ. Air

On the 3d February Mr. Bayard informed you that the record of the judicial pro-
ceedings which he hai called for was shortly expected to reach Washington, and
that, w vithout conclusion at that time of any questions which might be found to be
involved in these cases of seizures, orders had been issued by the President’s direc-
tion for the discontinuance of all pending proceedings, the discharge of the vessels
referred to, and the release of all persons under arrest in connection therewith.

On the 4th of April, under instructions from me, you inquired of Mr. Bayard, in
view of the approaching fishing season in Behring’s Sea, whetherthe owners of British
vessels might rely when not near land on being unmolested by the cruisers of the
United States, and you again asked when the ‘record of the judicial proceedings
might be expected.

Mr. Bayard informed you, in reply (12th April), that the papers referred to had
reached him and were being examined; that there had been 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
en 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 con-
clusion 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 communica-
tion of the 3d February ; ‘and they deeply regret to find a proof of their misinterpre-
tation 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
Pacitice, that several more British vessels engaged in seal hunting in Bebring’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 i in the waters thereof, in violation of section 1956
of the Revised Statutes of the United States; and the United States Naval Com-
mander 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 dis-
tance from land far in excess of the limit of inaritime 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 conntry 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 Kussia rights which they declared to be inadmissible when asserted
by the Russian Government. Nor does it appear from the text of the tieaty 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 and citizens may
he reciprocally conferred on the Russian and American Governments by treaty stipu-
lations, the subjects of Her Majesty can not be thereby affected, except by special
arrangement with this country.

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

In 1821 the bmperor of Russia had issued an edict establishing ‘‘rules for the
limits of navigation and order of communication along the coast of the eastern

BS, PU XIL

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, w haling, 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 Str: Lits to the 51st degree of northern latitude; also from the
Aleutian Islands to the eastern coast of Siberi: i, 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.

And section 2 stated:

it is, therefore, prohibited to all foreign vessels, not only to land on the coast and
islands belonging to Russia, as stated above, but also to approach them within less
than 100 Italian miles. The transgressor’s vessel is subject to confiscation, along
with the whole cargo.

Lord Salisbury then proceeds: (I desire to save reading as far as
possible) to state that copies of these regulations were communicated
to the American Secretary of State, at that time Mr. John Quincy
Adams, of great repute in his day, and great fame since, and that he
asked the Russian Government for an e explanation of the grounds upon
which such action was based. The Russian Minister in his reply, dated
the 28th of February, after explaining how Russia had acquired her
possessions in North America, said:

I ought, in the last place, to request you to consider, Sir, that the Russian posses-
sions in the Pacifie Ocean extend on the northward coast of America from Behring’s
Strait to the 51st degree of north latitude, and on the opposite side of Asia and the
islands adjacent from thé same strait to the 45th degree. The extent of sea of which
these possessions form the limits comprehends all the conditions which are ordinarily
attached to shut seas (‘mers fermées”), and the Russian Government might conse-
quently judge itself authorized to exercise upon this sea the right of sovereignty,
and especially that of entirely interdicting the entrance of foreigners; but it pre-
ferred only asserting its essential rights without taking advantage of localities.

That is the explanation given by the Russian Minister. Lord Salis-
bury continues:

On the 80th March Mr. Adams rephed to the explanations given by the Russian
minister. He stated that, with respect to the pretension adv anced in regard to ter-
ritory, 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 Govern-
ment 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
Milay 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 imiles.” 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 eftect will be given to an
interdiction manifestly incompatible with their rights.

The convention between the United States of America and Russia of the 17th April,
1824, put an end to any further pretension on the part of Russia to restrict naviga-
tion or fishing in Behring Sea so far as American citizens were concerned; for by
Article 1 if was 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 shajl neither be disturbed nor restrained, either in navigation or fishing,
saving certain restrictions which are not material to the present issue; and a similar
stipnlation 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 Kussia
to which I have referred, and which had been entirely repudiated by Her Majesty’s
Government in correspondence with the Russian Government in 1821 and 1822, which
for your more particular information I inclose herein.

Her Majesty’s Government feel sure that, in view of the considerations which I
have set forth in this dispatch, which you will communicate to Mr. Bayard, the
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 JAMES C. CARTER, ESQ. 19

compensation to those who have suffered in consequence, and issue immediate instruc-
tions to their naval officers which will prevent a recurrence of these regrettable
incidents.

Iam, etc., SALISBURY.

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 tbree
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 Russia 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 Russia so many years ago, they protested against 50 vigor-
ously. It will be observed that in this letter Lord Salisbury m: akes 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, bee sause that would be an attempt
to entorce their municipal laws there. He puts himselfuponthe 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 Govern-
ments, and the British Government having made a demand, and Lord
Salisbury having put himself upon this eround, the question ‘ATOSE with
the American Government what it was best to do. What was the situa-
tion? 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 destru ction, 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 cireumstances? There was this
complete and perfect property, as it supposed, in the seals. There was
this destructive character of. pelagic sealing, a manifest, indisputa-
ble 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, taking all the
consequences. It is easy to see what that might have led to. Such a
position, once taken by the United States upon that question, could not
have been receded from. The contrary position taken upon the other
side, by Great Britain, could not perhaps have been receded from; and
the result of that, as the cause of the controversy and the sources of
irritation were present at all times, would have been that the acts
would be continually repeated, and would inevitably lead to hostilities.
Another course was to endeavor to settle the controversy without a
resort to any discussion of the respective rights of the Governments
which were immediately concerned, and to settle it upon the assump-
tion that whatever the rights were, upon the one side or the other, the
effect of this practice of pelagic sealing to which the United States
objected was so manifestly injurious, and the practice so manifestly
wrong, that all Governments would probably assent to its repression,
and thus the difficulty would be aveided.

Mr. Bayard did not believe, could not believe, that the practice of
pelagic sealing was a right one. He did not believe, he could not
believe, that any civilized nation would think it to be right. That was
his view; but the course which statesmen take is, in most instances
perhaps, a good deal eavenied by their particular personal character.
Mr. Bayard, I need not say, is a Statesman of the most enlightened
character and the most humane views. No man had a greater abhor-
rence for war than he. No man had a lower estimate of force as a
mode of adjusting international conflicts; and in respect to a question
upon which, as he viewed it, there ought to be no difference among
enlightened men, there would be no excuse on the part of the Govern-
ment of the United States in so dealing with it as to make a resort to
hostilities even probable. His course, therefor e, at first was a concilia-
tory one. He determined to address the Governments not only of
Great Britain, but the several Governments of the great maritime
nations, put the question before them, and invite them to consider the
matter and come to an agreement in reference to this business of pelagic
sealing—such an agreement as would prevent the extermination of the
seals— without any resort to irritating discussions upon questions of
right. That position of Mr. Bayard is taken by the first note of a
deliberate character respecting this matter which he wrote. Itis found
on page 168 of the volume to which [ have been referring. This par-
ticular note is one from him to Mr. Vignaud; but copies of it were sent
to the American Ministers in Germany, Great Britain, Russia, Swe-
den and Norway and Japan.

Sir CHARLES RuSSELL. I think a copy of this was not sent to Great
Britain.

Mr. CARTER. I think it was.

Sir CHARLES RUSSELL. I think not.

Mr. CARTER. That is my impression.

Mr. Foster. Yes.

Mr. CARTER. I will read this note:

No. 256. ] DEPARTMENT OF STATE, Washington, August 19, 1887.

Suir: Recent occurrences have drawn the attention of this Department to the neces-
sity 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 jor that end, it is deemed advisable—and I am instructed by the President
9 to inform you—to attain tle desired euds by international codperation,

ORAL ARGUMENT OF JAMES C. CARTER, ESQ. ad

It is well known that the nnregulated 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 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 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 extermina-
tion 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. Bayarp.

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 benetits as the seal is may be effectually pre-
served. That was the attitude taken by Mr. Bayard, characteristic of
the man, conciliatory, and, as it seems to me, the one which an enlight-
ened 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, | 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. Me. Carter, if you will allow me, I think that the
diplomatic correspondence shows that Japan and Russia 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 ques-
tion, 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 Russia made
a favorable response to these suggestions; but other nations not par-
ticularly 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 con-
ciliatory suggestions were made to Lord Salisbury they were accepted
by him in the spiritin which they were tendered. The first note which
I shall read upon that point is that of Mr. Phelps to Mr. Bayard, whieh
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 JAMES C. CARTER, ESQ.

(N°. 618.) LEGATION OF THE UNITED StraTEs,
London, November 12, 1887. (Received November 22.)

Sir: Referring to your instructions numbered 685, of August 19, 1887, I have now
to say that owing to the absence from London of Lord Salisbury, secretary of state
for foreign affairs, it has not been in my power to obtain his attention to the subject
until yesterday.

Thad then an interview with him, in which I proposed on the part of the Govern-
ment of the United States that by mutnal agreement of the two Governments a code
of regulations should be adopted for the preservation of the seals in Behring Sea
from destruction at improper times and by improper means by the citizens of either
country; such agreement to be eutirely irrespective of any questions of conflicting
jurisdiction in those waters.

His lordship promptly acquiesced in this proposal on the part of Great Britain
and suggested that I should obtain from my Government and submit to him a sketch
of asystem of regulations which would be adequate for the purpose.

I have therefore to request that [ inay be furnished as early as possible with a
draft of such a code as in your judgment should be adopted.

I would suggest also that copies of it be furnished at the same time to the minis-
ters of the United States in Germany, Sweden and Norway, Russia, France, and
Japan, in order that it may be under consideration by the Governments of those
countries. A mutual agreement between all the Governments interested may thus
be reached at an early day.

T have, ete., E. J. PHELPS.

T 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 RUSSELL. 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 reoul: itions for the restriction of pel igic sealing by citizens of
either country during certain times. The idea was a code of regula-
tions establishing what was called a “close time”; and to that sugges-
tion, which was designed to carry out Mr. Bayard’s object of preserving
the seals by inter national agreement, a prompt assent was given by
Lord Salisbury . What was awaited, therefore, was the framing by the
United States of a code of regulations sufficient to carry out the object
in view. Mr. Phelps upon receiving that communieation, 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. 1 had stated the conciliatory action which Mr. Bayard, the
American Secretary of State had chosen to take, the sending of com-
munications by him to the American Ministers to the various “maritime
nations, and the response which had been received to the communica- |
tion thus made from Lord Salisbury, the British Minister of Foreign
Affairs. I had read, as showing that response, the note of Mr. Phelps
to Mr. Bayard of November 12, 1887,

ORAL ARGUMENT OF JAMES C. CARTER, ESQ. 23

Mr. Bayard having received that communication, was evidently grati-
fied at the prospect of an amicable solution of the difficulty, and he
addressed this note to Mr. Phelps on the 25th of November, 1887:

No. 733. ] DEPARTMENT OF StTaTE, Washington, November 25, 1887.

Str: Your No. 618, of the 12th instant, stating the result of your interviews with
Lord Salisbury on the subject of the seal fisheries in Behring Sea, is received.
The favorable response to our suggestion of mutually agreeing to a code of regu-
lations is very satistactory, and the subject will have immediate attention.
I am, etc.,
TS Eo BAYARD.

You will remember that Mr. Phelps requested of Mr. Bayard a pro-
posed Code of Regulations. Onthe 7th of Fe ebruary, 1838, Mr. Bayard
again addresses Mr. Phelps, and in his communication gives the prin-
cipal features of a proposed Code, and it is somewhat important to con-
sider them. I read from the note:

Mr. Bayard to Mr. Phelps.

No. 782. DEPARTMENT OF Strate, Washington, February 7, 1888.
J g Ys;

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.

Jn response to his lordship’s suggestion that this Government submit as ketch 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 Tmiddle or toward the end
of spring till the middle or end of Octobe r, 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. Geor ge, which constitute the Pribilot 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 ¢ hiefly
to the Pribilof group. During this migration the female seals are so advanced in
pregnancy that they cenerally ¢ vive birth to their young, which are commonly called
pups, within two wee eks 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 ata 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 called, require little food while on
the islands, where they remain guarding their harems, watching the rookeries. and
sustaining existence on the large amount of blubber which they have secreted beneath
their skins and which is gradually absorbed during the five or six succeeding
months.

Moreover, it is impossible to distinguish the male from the female seals in the
water, or pregnant females from those that are not so, When the animals are killed
in the water with firearms many sink at once and are never recovered, and some
authorities state that not more than one out of three of those so slaughtered is ever
secured. This may, however, be an overestimate of the number lost.

It is thus apparent that to permit the destruction of the seals by the use of fire-
arms, nets, or other mischievous means in Behring Sea would result in the speedy
extermination of the race. There appears to be no difference of opinion on this
subject among experts. And the fact is so clearly and forcibly stated in the report
of the inspector of fisheries for British Columbia of the 31st of December, 1886, that
I will quote therefrom the following pertinent passage:

24 ORAL ARGUMENT OF JAMES C. CARTER, ESQ.

There were killed this year, so far, from 40,000 to 50,000 fur-seals, which have been
taken by schooners from San Trancisco 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 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. 16,
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
to prevent their citizens or subjects from killing fur-seals with firearms, or other
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 Kast 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 £70 Kast to 160 West (indicating on map). All North of that
parallel of 50 degrees of latitude, and between 160 Kast 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 RUSSELL. That will exclude, I think, the Commander
Islands?

Mr. CARTER. Apparently it would exclude the Commander Islands.

To prevent the killing within a marine belt of 40 or 50 miles from the islands
during that period would be ineffectual as a preservative measure. This would
clearly be so during the approach of the seals to the islands. And after their arrival
there such a limit of protection wonld also be insufficient, since the rapid progress of
the seals through the water enables them to go great distances from the islands in so
short a time that it has been calculated that an ordinary seal could go to the Aleutian
Islands and back, in all a distance of 360 or 460 miles, in less than two days.

On the Pribilof Islands themselves, where the killing is at present under the
direction of the Alaska Commercial Company, which by the terms of its contract is
not permitted to take over 100,000 skins a year, no females, pups, or old bulls are
ever killed, and thus the breeding of the animals is not interfered with. The old
bulls are the first to reach the islands, where they await the coming of the females.
As the young bulls arrive they are driven away by the old bulls to the sandy part
of the islands, by themselves. And these are the animals that are driven inland and
there killed by clubbing, so that the skins are not perforated, and discrimination is
exercised in each case.

That the extermination of the fur-seals must soon take place unless they are pro-
tected from destruction in Behring Sea is shown by the fate of the animal in other
parts of the world, in the absence of concerted action among the nations interested
for its preservation. Formerly many thousands of seals were obtained annually
from the South Pacific Islands, and from the coasts of Chile and South Africa. They
were also common in the Falkland Islands and the adjacent seas. But in those
islands, where hundreds of thousands of skins were formerly obtained, there have
been taken, according to best statistics, since 1880, less than 1,500 skins. In some
places the indiscriminate slaughter, especially by use of firearms, has in a few years
resulted in completely breaking up extensive rookeries.

At the present time it is estimated that out of an aggregate yearly yield of 185,000
seals from all parts of the globe, over 130,000, or more than two-thirds are obtained
from the rookeries on the American and Russian islands in Behring Sea. Of the
remainder, the larger part are taken in Behring Sea, although such taking, at least
on such a scale, in that quarter is a comparatively recent thing. But if the killing
of the fur-seal there with firearms, nets, and other destructive implements were
permitted, hunters would abandon other and exhausted places of pursuit for the
more productive field of Behring Sea, where extermination of this valuable animal
would also rapidly ensue.

It is manifestly for the interests of all nations that so deplorable a thing should
not be allowed to occur. As has already been stated, on the Pribilof Islands this
Government strictly limits the number of seals that may be killed under its own
lease to an American company; and citizens of the United States have, during the
past year, been arrested and ten American vessels seized for killing fur seals in
Behring Sea.

ORAL ARGUMENT OF JAMES C. CARTER, ESQ. 25

England, however, has an especially great interest in this matter, in addition to
that which she must feel in preventing the extermination of an animal which con-
tributes 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 Cape 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 Jucrative 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 infor-
mation, copy of a letter to me, dated December 3d last, from Mr. Henry W. Hlliott,
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 cail your especial attention to what
is said by Mr. Elliott in respect to the new inethod 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.

I am, etc.,
T. F. BAYARD.

That was Mr. Bayard’s number 782. Mr. Phelps acknowledges this
letter on the 18th of Mebruary 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, rela-
tive to the Alaskan 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.

T 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 attention and I hope
for a favorable result. Meanwhile I 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.,
KE. J. PHELPS.

Subsequently, on the 25th of February, he again addresses Mr. Bay-
ard, and this is his note:

Mr. Phelps to Mr. Bayard.

(Extract. ]
No. 692.]} LEGATION OF THE UNITED STATES,

London, February 25, 1888. (Received March 6.)

Sir: Referring to your instructions, numbered 782, of February 7, 1888, in refer-
ence to the Alaska seal fisheries, and to my reply thereto, numbered 690, of Febru-
ary 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 April 15 and
November 1, and between 160° of longitude west and 170° of longitude east, in the
Behring Sea.

He will also join the United States Government in any preventive measures it 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 coneurs, so far 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 fur-
nished him with copies of instructions 782 for the use of his Government.

I have, etc.,
EK. J. PHELPS.

The learned Arbitrators will perceive from Mr. Phelps’ note that the
proposed close time extending over the area between 170 Kast longi.
tude 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 Ist.

Of course, I do not understand from this note that Mr. Phelps inti-
mated 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 communica-
tions 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 2, 1888.

Str: I have to acknowledge the receipt of your No. 690, of the 18th ultimo, in
relation to the Alaskan seal fisheries, and have pleasure in observing the prompti-
tude 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 govern-
ments 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 codp-
eration.

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 mneh
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 polic-
ing 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 high-
ways 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 con-
tracting parties was provided for. In this convention no l‘nitation 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 visita-
tion 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 shenld be by the naval vessels of the contracting parties.

ORAL ARGUMENT OF JAMES C. CARTER, ESQ. 27

In regard to the trial of offenders for violation of the proposed regulations, pro-
vision might be made for such trial by handing over the alleged offender to the
courts of his own country.

A ig ecedent for sach procedure is found in the treaty signed at the Hague on May
6, 1882, for regulating the police of the North Sea “fisheries, a copy of which is
inclosed.

Iam, etc., T. F. BAYARD.

The Arbitrators will see that, so far, the diplomatic correspondence
has resulted in this; that the first proposal to Great Britain of coneur-
rent regulations was acceded to by Lord Salisbury, and a draft of pro-
posed regulations was requested by Mr. Phelps from Mr. Bayard, in
order that he might more distinctly state the terms of the proposal to
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 Ist.

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 Lon-
don were left in charge of Mr. White. There are some letters from
Mrz White to: Mr: Bay ard which show the further progress of the
negotiations. Mr.W hite, on the 7th of April, 1888, addresses Mr.

jayard. This isa telegram. Mr. White stated that on the following
Thursday he was to meet Lord Salisbury and M. de Staal, ete:

Mr. White to Mr. Bayard.
[Telegram.]

LEGATION OF THE UNITED STATES,
London, April 7, 1888. (Received April 7.)
Mr. White stated that on the following Thursday he was to meet Lord Salisbury
and M. de Staal to discuss the question of the protection of the seals. On April 7
he had had an interview on the subject with M. de Staal, from whom he learned
that the Russian Government wished to include in the proposed arrangement that
part of Behring Sea in which the Commander Islands are situated, and also the sea
of Okhotsk. Mr. White supposed that the United States would not object to this.

On the same day he adresses this letter to Mr. Bayard:
Mr. White to Mr. Bayard.

No. 720.] LEGATION OF THE UNITED STATES,
London, April 7, 1888. (Received April 17.)

Str: Referring to your instructions numbered 782 of February 7 and 810 of Mareh
2, respecting the protection of seals in Behring Sea, I have the honor to acquaint
you that I received a private note from the Marquis of Salisbury this morning
stating that at the request of the Russian embassador he had appointed a meeting
at the foreign office next Wednesday, 11th instant, ‘‘to discuss the question of a
close time for the seal fishery in Behring Sea,” and expressing a hope that I would
make it convenient to be present, and I have replied that I shall be happy to attend.

Subsequently I saw M. de Staal, the Russian embassador, at his request. He
referred to the interviews which Mr. Phelps had had with him, of which I was, of
course, cognizant, and stated that his full instructions on the subject would not
reach London until to-night or to-morrow, and that he was about to leave town
until next Wednesday, but meanwhile he could say that his Government would like
to have the regulations which might be agreed upon for Behring Sea extended to
that portion of the latter in which the Commander Islands are situated, and also to
the Sea of Okhotsk (in which Robben Island is situated).

As both these places are outside the limit laid down in your instruction numbered
782 (170° of longitude east from Greenwich), I have thought it best to send you the
telegram, of which I inclose a copy herewith.

I am, etc., HENRY WHITE.

28 ORAL ARGUMENT OF JAMES C. CARTER, ESQ.

Then on the 20th of April, 1888, Mr. White again writes Mr. Bayard:
Mr. White to Mr. Bayard.

No. 725.] LEGATION OF THE UNITED STATES,
London, April 20, 1888. (Received April 30.)

Sir: Referring to your instructions Nos. 685, 782, and 810, to Mr. Phelps’s dis-
patches Nos. 618 and 690, and to subsequent correspondence, I have the honor to
acquaint you that ft called at the foreign oftice on the 16th instant for the purpose of
discussing with the Marquis of Salisbury and M. de Staal, the Russian embassador,
the details of the proposed conventional arrangement for the protection of seals in
Bering Sea.

M. de Staal expressed a desire, on behalf of bis Government, to include in the area
to be protected by the convention the Sea of Okhotsk, or at least that portion of it
in which Robben Island is situated, there being, he said, in that region large num-
bers of seals, whose destruction is threatened in the same way as those in Behring
Sea.

He also urged that measures be taken by the insertion of a clause in the proposed
con#ention or otherwise, for prohibiting the importation, by merchant vessels, into
the seal-protected area, for sale therein, of alcoholic drinks, firearms, gunpowder,
and dynamite.

Lord Salisbury expressed no opinion with regard to the latter proposal, but, with
a view to meeting the Russian Government’s wishes respecting the waters surronund-
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. Pueups. The suggestion of M. de Staal, you mean.

Mr. CARTER. No, of Lord Salisbury. Lord Salisbury’s suggestion
earried the protected area further South from the 50th parallel of lati-
tude down as far as the point upon which my pointer rests (indicating
on map), and to inciude the whole of that part of the Pacific Ocean, so
as to embrace not only the Commander Islands, but also Robben Island
in the Sea of Okotsk.

His Lordship (that is Lord Salisbury) intimated further that the
period proposed by the United States for a c’ose time from April 15th
to November Ist might interfere with the trade longer than absolutely
necessary for the protection of the seals, ete.

The learned Arbitrators will perceive that at this point the communi-
cating diplomats were so far agreed upon the subject that it was con-
ceived 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.

No. 864.] DEPARTMENT OF State, Washington, May 1, 1888.

Sir: Your dispatch No. 725 of the 20th ultimo stating the result of your interview
with Lord Salisbury and the Russian embassador relative to the protection of seals
in Behring Sea, and requesting further instructions as to their proposals, has been
received,

As you have already been instructed, the Department does not object to the inclu-
sion of the Sea of Okhotsk, or so much of it as may be necessary, in the arrange-
ment for the protection of the seals. Nor is it thought absolutely necessary to insist
on the extension of the close season till the Ist of November.

Only sich a periodis desired as may be requisite for the endin view. Butin order
that suecess may be assured in the efforts of the various Governments interested in
the protection of the seals, it seems advisable to take the 15th of October instead of
the Ist as the date of the close season, although, as lam now advised, the Ist 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, split-
ting 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, 18538, he
thus writes: :

Mr. White to Mr. Bayard.

No. 786. ] LEGATION OF THE UNITED STATES,
London, June 20, 1888. (Received June 30.)

Sir: I have the honor to inform you 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
excellency and | called together at the foreign office for the purpose of discussing
with his lordship the ternis 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 Gov-
ernment. Under these circumstances Lord Salisbury felt bound to await the Cana-
dian 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. Iwas 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 areply 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 con-
dition 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 !ergusson in behalf of the British Govern-
ment with respect to the seal fishing in Behring Sea.

I have, etc., HENRY WHITE.

(For inclosure see Senate Ex. Doc. No. 106, Fiftieth Congress, second session,
p. 103.)

At this point an obstacle was for the first time interposed in the prog-
ress of the negotiations which otherwise would in all probability have
resulted in a final agreement between the two countries for the preser-
vation of the seals by establishing a close season over the area men-
tioned, 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 con-
clusion 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 Salisbur y made the communication to the Canadian
Government, which will be found in the Appendix, Vol. 3 of the Brit-
ish Case, p. 196:

The Marquis of Salisbury to Sir R. Morier.

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 been brought into prominence by the recent action of the United States.

The United States Gov ernment had expressed a desire that some agreement should
be arrived at between the three Governments for the purpose of “prohibiting the

30 ORAL ARGUMENT OF JAMES C. CARTER, ESQ.

slaughter of the seals during thc 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 detinitively 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 Ist Nove mber; 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
shoulid 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, if was a common practice for those engaged in the trade to shoot
all seals they might meet in the open sea, and that of these a great number sank, so
that their skins could not be recovered. ;

I am, etc., SALISBURY.

The learned Arbitrators will now see the manner in which the negoti-
ations pending between the two Governments was notified to the
Canadian Government.

Sir CHARLES RUSSELL. That was toSir Robert Morier. That was
to Russia, not to Canada.

The PRESIDENT. Sir Robert Morier was in St. Petersburg.

Mr. Foster. A copy of the same note was sent to Sir Lionel Sack-
ville West.

Mr. CARTER. What Sir Charles Russell says may be true; but a copy
of the same note was sent to Sir Lionel Sackville West at Washington.

Sir CHARLES Russrevu. Yes; it was sent to Washington, not to

Janada.

The PRESIDENT. That is not a communication made to Canada.
You 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 tiis note of
Saiisbury to Morier, and which was also sent to Sir Lionel Sackville
West. Iain 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. It, 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 Majes-
ty’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 folowing communication from the British
Colonial Office to the Foreign Office:

Colonial Office to Foreign Office.

No. 128.] DOWNING STREET, April 25, 1888. (Received April 26.)

Sir, [am directed by Lord Knutsford to deka lense the receipt of your letter
of the 20th instant, tr: msmitting a2 copy of a dispatch addressed to Her Majesty’s
Ambassador at St. Petersburg respecting the proposed establishment of a close time
for seals in Belring’s Sea.

ORAL ARGUMENT OF JAMES C. CARTER, ESQ. 31

And that dispatch is the same as the one from the Marquis of Salis-
bury to Sir Robert 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
of the extender of a telegram which was sent to the Governor-General of Canada,
on his Lordship’s suggestion, inquiring whether the Dominion Government were
aware of any objection to the proposed arrangement,

Tam also to inclose a copy of a dispatch from Lord Lansdowne, in the two con-
cluding 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 com-
pletely from the rights which they have until lately enjoyed without question or
molestation.

In these circumstances, it is probable that the United States proposals may not
be accepted by Canada without reserve, and Lord Knutsford would suggest that,
pending the receipt of the observations of the Dominion Government in response to
the invitation contained in his dispatch of the 8th March, referred to by Lord Lans-
downe, no final action should be taken in the matter.

I am, etc.,
RoBERT G. W. HERBERT.

Lord Knutsford to the Marquis of Lansdowne,
[Inclosure 1 in N° 128.]

DOWNING STREET, April 21, 1888.
My Lorp, 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 pro-
ceeding 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 parallel of latitude between the coasts
of Russia and America, and inquired whether your Government was aware of an»
objection to the proposed arrangement.
Tadded 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 RussSELL. 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 RUSSELL. 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 Londen:

The Marquis of Lansdowne to Lord Knutsford.
[Inclosure 2 in N° 128.—Extract. ]

GOVERNMENT House, Ottawa, April 9, 1888.

In reference to my despatch of the 29th March, I have the honour to inclose here-
with copy of a telegram, dated the 5th instant, from the Attorney-General of British
Columbia to, Sir John Macdonald, acquainting him that my telegram, of which a
copy was sent to you in the above despatch, had been published in the provincial
press as a warning to sealing-vessels, and that there was reason to believe that these
vessels had, in consequence of the intimation thus given, ceased to arm themselves
for the purpose of resisting the cruizers of the United States.

I have forwarded to you by this mail copies of a telegram received from Sir L.
West in reference to the probable action of these cruizers during the present season,
and of a telegram addressed to him by me in reply.

I observe that the information obtained by Sir Lionel West from Mr. Bayard,
which is the same as that communicated to me in your telegraphic despatch of the
6th instant, is merely to the effect that no orders have been issued by the United
States for the capture of British ships fishing in the Behring’s Sea. I need scarcely
point out that this is not equivalent to an assurance that such vessels will not be

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 iorce.

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 Confi-
dential 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 iirearms, may be killed in great numbers on their breed-
ing grounds by the persons who enjoy the monopoly of the trade under Concessions
from the United States Government. The rest of the year these animals are, accord-
ing to Mr. Bayard’s statement in his despatch of the 7th of February, 1888, ‘‘ supposed
to spend in the open sea south of the Aleutian Islands,” where they are probably
widely scattered and difficult to find. It would appear to follow that, if concurrent
regulations based upon the Americam Law were to be adopted by Great Britain and
the United States, the privileges enjoyed by the citizens of the latter Power would
be little if at all curtailed, while British fishermen would find themselves completely
excluded from the rights which until lately they have enjoyed without question or
molestation.

In making this observation, I do not desire to intimate that my Government would
be averse to entering into a reasonable agreement for protecting the fur-bearing
animals of the Pacific coast from extermination, but merely that a one-sided restric-
tion such as that which appeared to be suggested in your telegram could not be
suddenly and arbitrarily enforced by my Government upon the fishermen of this
country. ;

I have, ete., LANSDOWNE.

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 at 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 [ 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 fam engaged upon—is contained in
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.] LueGATION OF THE UNITED STATES,
London, September 12th, 1888. (Received September 22.

Sin: Referring to the subject of the Alaskan seal fisheries, and to the previous cor-
respondence 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
Russia, which under your instructions had previously been the subject of discussion

ORAL ARGUMENT OF JAMES C. CARTER, ESQ. a5

between the secretary for foreign affairs, the Russian ambassador, and myself. This
convention, as I have before advised you, had been virtually 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 com-
munication by the British Government with the Canadian Government, for which
purpose an interval of several months had been allowed to elapse. During g this time
the attention of Lord Salisbury had been repeatedly recalled 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 comple-
tion 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 iiterest
of its own, but said that the Canadian Government objected to any such restrictions,
and that until its consent could be obtained, Her Majesty’s Government was not will.
ing to enter into the convention; that time would be requisite to bring this about,
and that meanwhile the convention must wait.

It is very apparent to me that the British Government will 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 itis. 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 if 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 meas-
ures 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 clausum. 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 indus-
try, the property of the nations on whose shores it is carried on. It is proposed by
the colony of a foreign nation, in defiance of the joint remonstrance of all the coun-
tries interested, to destroy this business by the indiscriminate slaughter and exter-
mination 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 distance
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 clausum. And
the right of self defense as to person and property prevail there as fully as else-
where. If the fish upon the Canadian coasts could be destroyed by scattering poi-
son 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, Baan and wanton than
this

If precedents are wanting for a defense so necessary and so proper it is because
precedents for such a course of conduct are likewise unknown. The best interna-
tional law has arisen from precedents that have been established when the just occa-
sion 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 con-
stant 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 justi-
fiable 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?

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 init. If further legislation is neces-
sary, it can doubtless be readily obtained.

There need be no fear but that a resolute stand on this subject wil) at once pnt an
end to the mischief complained of. It is not to be reasonably expected that Great

BS; BP XIL 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., E. 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 nego-
tiation and any successful conclusion of it were impossible; and impos-
sible.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 Gov-
ernment. Whether he was right or wrong in that opinion upon his
part is not to my present purpose. It will perhaps be the subject of
future discussion; but it is safe to conclude from the correspondence
that I have read to the Tribunal that the consummation of the negotia-
tion was arrested at this point—arrested by the intervention of Canada,
and I 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 ealled 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 prac-
tices, and th: it, 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.

Tt 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 man-
ner and in the same spirit by Lord Salisbury, British Secretary for For-

eign Affairs; that an agreement was substantially concluded between
those pe wties which would have been carried into effect but for the objec-
tion 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 Gov-
ernment of Canada, but that Canada remained in its condition of sim-
ple 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 British.

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 enti-
tled 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 Gover nment, can interpose to protect British sub-
jects within Canada, against an avowed policy of the British Govern-
ment.

Mr. CARTER. I[ had not supposed that the Canadian Government was
such a Government as could, in any sovereign capacity, or diplomatic-
ally, 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 Govern-
ment, 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 Eriticl subjects Canadians have a
right to express their opinion 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 hap-
pen 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 sup-
pose that.

There were some incidental matters connected with this first stage
of the controversy, and which occurred during the discussions in rela-
tion to it, which make a figure, but an unimportant figure, init. For
instance, there were claims for damages made by the ‘British Govern-
ment 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 RICHARD WEBSTER. You mean 1887, not 1888,

36 ORAL ARGUMENT OF JAMES C. CARTER, ESQ.

Mr. CARTER. I mean1887. 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 RUSSELL. 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. Sayward. She
was carried in, libeled at Sitka, I suppose, and 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 being out-
side 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-
versy, let me.say that while, so far as the representatives of Great
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 Departinent by
Mr. Blaine, and there was a new American Minister to London. Pres-
ident 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, instruc-
tions 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. Bil

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 24, 1889.

Sir: In accordance with instructions which I have received from Her Majesty’s
Principal Secretary of State for Foreign Atiauirs, [have the honor to state to you
that repeated rnmors 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 con-
firmation 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 occur-
rences taking place,

In continuation of my instruction I have the honor to remind you that Her
Majesty’s Government received very clear assurances last year from Mr. Bayard, at
that time Secretary of State, that pending the discussion of the general questions at
issue no further interference should take place with British vessels in Behring Sea,

In conclusion, the Marquis of Salisbury desires me to say that Sir Julian Paunce-
fote, Her Majesty’s Minister, will be prepared on his return to Washington in the
autumn to discuss the whole question, and Her Majesty’s Government wish to point
out to the United States Government that a settlement can not but be hindered by
any measures of force which may be resorted to by the United States.

J have, etc.,
H. G. EDWARDES,

The learned Arbitrators will see what the situation was at this par-
ticular time. The vessels which had been seized in 1887, with the
exception of one, the “Sayward”, 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 irrita-
tion 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,
were 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 renew ed; 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 assur-
ances 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

38 ORAL ARGUMENT OF JAMES C. CARTER, ESQ.

of business, without the expression of some desire or intention of
reopening the negotiations for the adjustment of the matter, and there-
fore the letter also contained this: ‘‘The Marquis of Salisbury desires
me to say that Sir Julian Pauncefote, Her Majesty’s Minister, will be
prepared on his return to Washington in the autumn, to discuss the
whole question, and Her Majesty’s Government wish to point out to the
United States Government that the settlement cannot but be hindered
by any measures of force which may be resorted to by the United
States”.

The business was new to Mr. Blaine, and the whole subject was
doubtless new to him. He answered Mr. Edwardes. His answer is
short:

Mr. Blaine to Mr. Edwardes.

Bar Harsor, August 24, 1889.

Str: I have the honor to acknowledge the receipt of your communication of this
date, conveying to me the intelligence ‘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 the 3-mile limit from the nearest
land.” And you add that, ‘“althongh no official confirmation of these rumors has
reached Her Majesty’s Government, there appears to be no reason to doubt their
authenticity.”

In reply I have the honor to state that the same rumors, probably based on truth,
have reached the Government of the United States, but that up to this date there
has been no official communication received on the subject.

It has been and is the earnest desire of the President of the United States to have
such an adjustment as shall remove all possible ground of misunderstanding with
Her Majesty’s Government concerning the existing troubles in the Behring Sea; and
the President believes that the responsibility for delay in the adjustment can not
be properly charged to the Government of the United States.

I beg you will express to the Marquis of Salisbury the gratification with which
the Government of the United States learns that Sir Julian Pauncefote, Her Majes-
ty’s Minister, will be prepared, on his return to Washington in the autumn, to discuss
the whole question. It gives me pleasure to assure you that the Government of the
United States will endeavor to be prepared for the discussion, and that, in the
opinion of the President, the points at issue between the two Governments are
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 12, 1889.

My Drar Mr. BLAINE: I should be very much obliged if you would kindly let
me know when I may expect an answer to the request of Her Majesty’s Government,
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
British ships in Behring Sea. Her Majesty’s Government are earnestly awaiting the
reply of the United States Government on this subject, as the recent reports of
seizures having taken place are causing much excitement both in England and in
Canada,

J remain, etc., H. G. EDWARDES.

Mr. Blaine answers that:
Mr. Blaine to Mr. Edwardes.

Bar Harpor, September 14, 1889.

Sir: I have the honor to acknowledge the receipt of your personal note of the 12th
instant, written at Washington, in which you desire to know when you may expect
an answer to the request of Her Majesty’s Government, ‘‘that instructions may be
sent to Alaska to prevent the possibility of the seizure of British ships in Behring
Sea,”

ORAL ARGUMENT OF JAMES C. CARTER, ESQ. 39

I had supposed that my note of August 24 would satisfy Her Majesty’s Govern-
ment of the President’s earnest desire to come to a friendly agreement touching all
matters at issue between the two Governments in relation to Behring Sea, and I had
further supposed that your mention of the official instruction to Sir Julian Paunce-
fote to proceed, immediately after his arrival in October, to a full discussion of the
question, removed all necessity of a preliminary correspondence touching its merits.

Referring more particularly to the question of which you repeat the desire of your
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 mis-
leading to the Government of Her Majesty. It was therefore the judgment 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 failed to reach those
waters before the proposed departure of the vessels of the United States.

I 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 RUSSELL. 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 RUSSELL. I wish you would. It is on the same page,
JME

Mr. CARTER. I willdoso. 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 2, 1889.

Sir: At the time when the seizures of British ships hunting seals in Behring’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 admit-
ting 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 legis-
lation 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 instruc-
tions in case the Secretary of State should be willing to enter upon the discussion.

You will read this dispatch and my dispatch No. 205, of this date, to the Secretary
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. Thisis on the 22nd
of January, 1890.

Sir CHARLES RussELL. 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 RUSSELL. 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 22, 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 Rush 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 the attention of this Depart-
ment and have rendered it impossible to give a formal answer to Lord Salisbury
until the present time.

In the opinion of the President, the Canadian vessels arrested and detained in the
Behring Sea were engaged in a pursuit that 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, cer-
tainly 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 the 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 controled 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 com-
mon 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. Al

attention to the improvement of the seal fisheries. Proceeding by a close obedience
to the laws of nature, and rigidly limiting the number to be annually slaughtered,
the Government succeeded in increasing the total number of seals and adding cor-
respondingly and largely to the value of the fisheries. In the course of a few years
of intelligent and interesting experiment the number that could be safely slaugh-
tered was s fixed at 100,000 annually. The Company to which the administration of
the fisheries was intrusted by a lease from this Government has paid a rental of
$50,000 per annum, and in addition thereto $2.62} per skin for the total number
taken. The skins were regularly transported to London to be dressed and prepared
for the markets of the world, and the business had grown so large that the earnings
of English laborers, since rea was transterred to the United States, amount in
the agoregate to more than $12,000,000.

The entire business was ae conducted peacefully, lawfully, and profitably—
profitably to the United States for the rental was yielding a moderate interest on
the large sum which this Government had paid for Alaska, including the rights now
at issue; profitably to the Alaskan Company, which, under governmental direction
and restriction, had given unwearied pains to the care and development of the fish-
eries; protitably to the Aleuts, who were receiving a fair pecuniary reward for their
labors, and were elevated from semisavagery to civilization and to the enjoyinent of
schools and churches provided for their benefit by the Government of the United
States; and, last of all, profitably to a large body of English laborers who had con-
stant employment and received good wages.

This, in brief, was the condition of the Alaska fur-seal fisheries down to the vear
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 unfeiened surprise to the United States that Her M: ujesty’s
Government should immediately interfere to defend and encourage (surely to encour-
age by defending) the course of the Canadians in disturbing an ‘industr y 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 vio-
lation 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’ ’3 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 per-
mitted by ee 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 ‘ New-
foundland 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

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 lakes 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 out-
side of the 3 mile line?

Why are not the two cases parallel? The Canadian vessels 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 usetul to
mankind is totally destroyed in order that temporary and immoral gain may be
acquired by a few persons. By the employment of dynamite on the banks it is not
probable that the total destruction of fish could be accomplished, but a serious
diminution of a valuable food for man might assuredly result. Does Her Majesty’s
Government seriously maintain that the law of nations is powerless to prevent such
violation of the commonrights 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 per-
verted 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 Govern-
ment 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 Govern-
ment 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
judgement of the President, already proposed a solution not only equitable but gen-
erous. 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 Govern-
ment 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 will
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 con-
cede 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
Russia.

I have, etc., JAMES G. BLAINE.

The PRESIDENT. If you please, Mr. Carter, you may continue your
arguinent to-morrow.
Tribunal adjourned until Thursday, April 13th at 11.30 a. m.

EIGHTH DAY, APRIL 13”, 1893.

The Tribunal met pursuant to adjournment.

The PRESIDEN’. Mr. Carter, when you are ready to continue your
argument, we will hear you with pleasure.

Mr. CARTER. Mr. President, when the Tribunal adjournéd 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. JI 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
circumstanees President Harrison felt it his duty to issue the procla-
mation 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 instruc-
tions 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 Pauncetote, 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 Govern-
ment 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 for-
eign 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 Govern-
ment 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 this was an industry advantageous not only to its
lessees but, what was of much more importance, advantageous to man-
kind; 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 follow-
ing 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 Majesty’s Government have had for sometime under their consideration
the suggestion made in the course of our interviews on the question of the seal fish-

eries in ‘Behring’ 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 Loudon in 1888, but was suspended owing to various
causes, should be restuned in Washington,

I now have the honor to inform you that Her Majesty’s Government are willing to
adopt this suggestion, and if agreeable to your Government will take steps concur-
rently with them to invite the participation of Russia in the renewed negotiations.

I have, etc.,
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 sugges-
tion was accepted by Mr. Blaine. After that it appears that some per-
sonal communications had taken place in Washington between Mr.
Biaine 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 com-
munications that he thought it quite improbable that the assent of
Canada would ever be obtained to any regulations, or to any settie-
ment, which would have the effect of protecting the seals from exterm1-
nation. I presume—it seems fairly presumable—that Sir Julian had
answered those suggestions by intimating that he was of a contrary
opinion, and that it was not impossible for some arrangement to be
reached which would be satisfactory to Canada upon the subject. This
rather called upon Sir Julian to submit some proposition that would,
presumably, be agreeable to Canada, and which he might suppose
would not be unacceptable to the American Government; and con-
sequently in April 1890—the date is not given—it appears to have been
received on the 30th of April—Sir Julian addresses Mr. Blaine, thus:

Sir CHARLES RUSSELL. The date is the 29th, I think.

Mr. CARTER. The 29th.

Sir Julian Pauncefote to Mr. Blaine.

WASHINGTON, April —, 1890. (Received April 30.)

Drar 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
Minister of Marine and Fisheries, which by your courtesy has since been printed,
whether any arrangement could be arrived at that would be satisfactory to Canada.

You observed that the proposals of the United States had now been two years
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,
owing to the conflict of opinion and of testimony which has manifested itself in the
course of our discussions, I do not despair of arriving at a solution which will be
satisfactory to all the Governments concerned. It has been admitted, from the com-
mencement, 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.

Teall 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
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.
The great divergence of views which exists as to whether any restrictions on 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 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 arrange-
ment, 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
of all the points in dispute.

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 deci-
sion on the points to be investigated by the commission. Those measures, which I
will explain later on, would effectually remove all reasonable appre hension 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 Gov ernment that the depletion of the fur-seal species
has already commenced, and that even the extermination of the species is threat-
ened within a measurable space of time, the latest reports of the United States agent,
Mr. Tingle, are such as to dissipate all such alarnis.

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:

“T am happy to be able to report that, although late landing, the breeding rook-
eries are filled 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,
aftirms 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 sub-
marine 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 irom the affidavits of prac-
tical 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.

Tbe 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 quiet all apprehension on that score, I would propose the following
Beemislonsl regulations.

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 ‘‘migra-
tion 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 slanghter 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 br eeding islands every day ae food. The follow-
ing is an extract from his evidence:

“These cows go 10 and 15 miles, and even farther. I do not noe 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 if
so, to what distance, are questions in dispute, but pending their solution the regula-
tion which I propose against the approach of sealing vessels within 10 miles ot the
islands for the prevention of surreptitious landing “practically meets Mr. Taylor’s
complaint, be it wellfounded or not, to the fullest “extent; for, owing to the preva-
lence 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 wonld 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 com-
mission 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.

Althoneh 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
T have out of adeference 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 concilia-
tion, 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.

Ihave, etc.,
JULIAN PAUNCEFOTE,

(For inclosures 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 dif-
ferences of opinion as to the extent of the protection which was neces-
sary. 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 been submitted by Sir Julian Pauncefote to Mr. Blaine in
the shape of quite a series of documents on the 9th of March preced-
ing. I read now a letter from Sir Julian Pauncefote to Mr. Blaine
which is contained in Executive Document, House of Representatives,
51st Cong., Iirst 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. Fosrrr. 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 fur-
nished 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 GC. 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 say-
ing, 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 propo-
sition had been submitted and thus provisionally accepted by the Mar-
quis 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 Gov-
ernment. 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 arrange-
ment, 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 dis-
pose 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 difficulty in
coming toanagreement. Wemust recognize the truth as it shall finally
be discovered. Whatever measures of protection the truth thus ascer-
tained 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 removing all doubts and ascertaining what the real
truth about the matter was—was a mixed commission of experts; and,
in saying that they were to be experts, of course it was understood
that they should be gentlemen perfectly 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 (©. CARTER, ESQ.

the truth itself; and that when the report was received from such gen-
tlemen, 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:

Thave 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 pro-
posed is contained in the same part of Volume Three, Appendix to the
British Case, page 457:

Tur NorRTH AMERICAN SEAL FISHERY CONVENTION.

TITLE.

Convention between Great Britain, Russia, and the United States of America, in relation to
the fur-seal fishery in the Behring Sea, the Sea of Ochotsk, and the adjoining waters.

PREAMBLE.

The Governments of Russia and of the United States having represented to the Gov-
ernment 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, with-
out prejudice to the ultimate decision of the questions in difference in relation to the
said fishery.

The said three Governments have appointed as their respective plenipotentiaries.

Who, after having exchanged their tull powers which were found to be in good
and due form, have agreed upon the following articles;

ARTICLE I,
MIXED COMMISSION OF EXPERTS TO BE APPOINTED.

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
months should it embrace ?

5) Ifa close season is necessary outside of the breeding islands as well, what extent
of waters and what period or periods should it embrace?

ARTICLE IT.

ON RECEIPT OF REPORT OF COMMISSION QUESTION OF INTERNATIONAL REGULATIONS
TO BE FORTHWITH DETERMINED.

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 any, are necessary for the
purpose aforesaid, and any regulations so agreed upon shall be embodied in a further
Convention to which the accession of the other power shall be invited.

ORAL ARGUMENT OF JAMES C. CARTER, ESQ. A9

ARTICLE III.
ARBITRATION.

In case the High Contracting Parties should be unable to agree upon the regula-
tions to be adopted, the questions in difference shall be referred to the arbitration
of an impartial government, who shall duly consider the reports hereinbefore men-
tioned, and whose award shall be final, and shall determine the conditions of the
further Convention.

ARTICLE IV.

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 follow-
ing 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 parallel to its point of intersection with the 160th meridian of longitude
west from Greenwich.

ARTICLE VI.

CLOSE TIME.

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 Ist of
October to the 30th of December.

ARTICLE VII.
PREVENTION OF MARAUDERS.

During the intervening period in order more effectively to prevent the surreptitious
landing of marauders on the said breeding islands, vessels engaged in the fur-seal
fishery and belonging to the subjects and citizens of the High Contracting Parties,
shall be prohibited from approaching the said islands within a radius of ten miles.

ARTICLE VIII.

FURTHER PROVISIONAL REGULATIONS.

The High Contracting Parties may, pending the report of the commission, and on
its recommendation or otherwise, make such further temporary regulations as may
be deemed by them expedient for better carrying out the provisions of this conven-
tion and the purposes thereof.

ARTICLE IX.
PENALTY FOR VIOLATION OF PROVISIONAL REGULATIONS.

Every vessel which shall be found engaged in the fur-seal fishery contrary to the
prohibitions provided for in articles 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 officers 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 alone have jurisdiction to try the offence and

B 8, Pi X11——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.

ARTICLE XI.

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 Com-
mission of experts to be appointed under Article I; but its duration may be extended
by consent.

ARTICLE XII.

ACCESSION OF OTHER POWERS.

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 conven-
tion 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 arbitra-
tion 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 shall 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 all sealing vessels should be prohibited from approaching the breeding
islands within a radius of 10 miles.

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
My. 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 22d, 1890.
Sir: I received in due course your dispatch No.9, of the 23d January, inclosing
copy of Mr. Blaine’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
Canadian vessels by the United States revenue-cutter Rush in Belring Sea.

ORAL ARGUMENT OF JAMES C. CARTER, ESQ. 51

The importance of the subject necessitated a reference to the Government of Can-
ada, whose reply has only recently reached Her Majesty’s Government. The nego-
tiations which have taken place between Mr. Blaine and yourself afford strong reason
to hope that the difficulties attending this question are in a fair way towards an
adjustment which will be satisfactory to both Governments. I think it right, how-
ever, to place on record, as briefly as possible, the views of Her Majesty’s Govern-
ment on the principal arguments brought forward on behalf ef the United States.

Mr. Blaine’s note defends the acts compiained 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 bonus mores—a pursuit which of necessity
involves a serious and permanent injury to the rights of the Government and people
of the United States”. 5

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. 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 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.

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 Rus-
sian Empire, they are not disposed to exercise in the possessions acquired from Russia
any less power or authority than they were willing to concede to the Imperial Gov-
ernment of Russia when its 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-
dian vessels in the Behring’s Sea was justified by the fact that they 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”, it is obvions 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
confiscation in time of peace of the private vessels of a friendly nation.

It is an axiom of international maritime law that such action is only admissible
in the case of piracy or in pursuance of special international agreement. ‘This prin-
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 pre-
text whatever, outside the territorial jurisdiction”.

Now, the pursuit of seals in the open sea, under whatever circumstances, has never
hitherto been considered as piracy by any civilized state. Nor, evenif the United
States had gone so far as to make the killing of fur-seals piracy by their municipat
law, would this have justified them in punishing offenses against such law committed
by any persons other than their own citizens outside the territorial jurisdiction of
the United States.

In the case of the slave trade, a practice which the civilized world has agreed to
look upon with abhorrence, the right of arresting the vessels of another country is
exercised only by special international agreement, and no one government has been
allowed that general control of morals in this respect which Mr. Blaine claims on
behalf of the United Statgs in regard to seal-hunting.

But Her Majesty’s Government must question whether this pursuit can of itself be
regarded as contra bonos mores, unless and until, for special reasons, it has been agreed
by international arrangement to forbid it. Fur-seals are indisputably animals fere
nature, and these have universally been regarded by jurists as res nullins until they
are caught; no person, therefore, can have property in them until he has actually
reduced them into possession by capture.

It requires something more than a mere declaration that the Government or eiti-
zens of the United States, or even other countries interested in the seal trade, are
losers by a certain course of proceeding, to render that course an immoral one,

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 all 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:

“Tt 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 ani-

mals, 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. Govern-
ment. 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. Secretar y Boutwell 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 addi-
tion, 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 s abstained from taking part i 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

ORAL ARGUMENT OF JAMES C. CARTER, ESQ. 53

the seals do not reach the Pribilof Islands till June, leaving again by the time the
closing of the ice compels the whalers to return.

The statement that it is ‘‘a fact now held beyond denial or doubt that the taking
of seals in the open sea rapidly leads to their extinction” would admit of reply, and
abundant evidence could be adduced on the other side. But as it is proposed that
this part of the question should be examined by a committee to be appointed by the
two Governments, it is not necessary that I should deal with it here.

Her Majesty’s Government do not deny that if all sealing were stopped in Behring
Sea except on the islands in possession of the lessees of 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 recog-
nized law of nations, are now free to all the world.

It is from no disrespect that I refrain from replying specifically to the subsidiary
questions and arguments put forward by Mr. Blaine. Till the views of the two
Governments as to the obligations attaching, on grounds either of morality or neces-
sity, to the United States Government in this matter, have been brought into closer
harmony, such a course would appear needlessly to extend a controversy which Her
Majesty’s Government are anxious to keep within reasonable limits.

The negotiations now being carried on at Washington prove the readiness of Her
Majesty’s Government to consider whether any special international agreement is
necessary for the protection of the fur-sealing industry. In its absence they are
unable to admit that the case put forward on behalf of the United States affords any
sufficient justification for the forcible action already taken by them against peace-
able subjects of Her Majesty engaged in lawful operations on the high seas.

“The President,” says Mr. Blaine, ‘‘is persuaded that all friendly nations will
concede to the United States the same rights and privileges on the lands and in the
waters of Alaska which the same friendly nations always conceded to the Empire of
Russia.

Her Majesty’s Government have no difficulty in making such a concession. In
strict accord with the views which, previous to the present controversy, were con-
sistently and successfully maintained by the United States, they have, whenever
occasion arose, opposed all claims to exclusive privileges in the non-territorial waters
of Behring Sea. The rights they have demanded have been those of free navigation
and fishing in waters which, previous to their own acquisition of Alaska, the United
States declared to be free and open to all foreign vessels.

That is the extent of their present contention and they trust that, on considera-
tion of the arguments now presented to them, the United States will recognize its
justice and moderation.

I have to request that you will read this dispatch to Mr. Blaine and leave a copy of
it with him should he desire it.

I am, etc., SALISBURY.

{Inclosure.]

In 1870 Collector Phelps reported ‘‘ the barque Cyane has arrived at this port (San
Francisco) from Alaska, having on board 47 seal skins.” (See Ex. Doc. No. 83, Forty-
fourth Congress, first session. )

In 1872 he reported expeditions fitting out in Australia and Victoria for the purpose
of taking seals in Behring Sea, and was informed that it was not expedient to inter-
fere with them.

In 1874, Acting Secretary Sawyer, writing to Mr. Elliott, special agent, said:

“Tt having been officially reported to this Department by the collector of customs
at Port Townsend, from Neah Bay, that British vessels from Victoria cross over into
American waters and engage in taking fur-seals (which he represents are annually
becoming more numerous on our immediate coast) to the great injury of our sealers,
both white and Indian, you will give such proper attention to the examination of
the subject as its importance may seem to you, after careful inquiry, to demand, and
with a view to a report to the Department of all facts ascertained.” (Ditto, May 4,
No. 117, p. 114.)

In 1875, Mr. McIntyre, Treasury agent, described how “ before proceeding to harsh
measures” he had warned the captain of the Cygnet, who was shooting seals in
Zapadnee Bay, and stated that the captain appeared astonished that he was breaking
the law. (Ditto, March 15, 1875, No. 1380, p. 124.)

In 1880, the fur-seal trade of the British Columbia coast was of great importance,
Seven vessels were then engaged in the fishery, of which the greater number were,
in 1886 and 1887, seized by the United States Government in Behring Sea.

In 1884 Daniel and Alexander McLean, both British subjects, took the American
schooner San Diego to Behring Sea, and were so successful that they returned there
in 1885, from Victoria, with the Mary Ellen and the Favourite.

54 ORAL ARGUMENT OF JAMES C. CARTER, ESQ.

There is the answer of the Government of Great Britian, and the
only answer contained in this diplomatie 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 eall ‘the atten-
tion 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: i

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 neces-
sity involves a serious and permanent injury to the rights of the Government and

”

people of the United States.’

That the fisheries had been in the undisturbed possession and under the exclu-
sive controlof 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. 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 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 Jong 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 Salis-
bury 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 cir-
cumstance gave, as he insisted, the authority to the United States Gov-
ernment to interfere and prevent the doing of an injury to its own inter-
ests by acts which were, in themselves, indefensible wrongs.

Lord Salisbury, further considering the point put forth by Mr. Blaine
that pelagic sealing was an oifence 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 pomt 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 timeof 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 indefensi-
ble 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. Iam 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 communie ated to Con-
gress in reference, as I assume from the date, “to negotiations concern-
ing 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
beewholly without foundation. Lord Salisbury must at the time have
failed to bear in mind the circumstance that there had been for a cen-
tury on the statute books of his own nation laws against “hovering”
and Jaws in relation to quarantine, prescribing rules and regulations
purporting to bind foreign vessels as well as national vessels, a viola-
tion 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. his 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 ; Governme nt might sup-
press it, and suppress it upon the high seas: but, it is insisted, “bee ‘AUSE
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 may be suppressed by all 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.

Jn 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 use-
ful and essential to the United States, and useful to mankind. I can-
not 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 Russia;
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 exelusively controlled by the Gov-
ernment 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.’”

The arbitrators will perceive that the contention of Mr. Blaine as
thus stated, did not rest upon any assertion that Russia had an origi-
nal 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 inter-
ference by other Governments during the whole period of her ocecu-
pation, and that the United States, since it had acquired the territory
of Alaska from Russia, 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 Russia, by the
celebrated Ukase of that year, attempted to assert a sovereign juris-
diction over Bering Sea and to exclude the vessels of all other nations
from an area of one hundred miles around the islands, foreign Govern-
ments did not assent to it, but protested against it, and that, among
others, the United States pr ‘otested againstit; and he cites the language
of Mr. John Guiney Adams who was then the American Secretary of
State, protesting against those pretentions of Russia. It will be

remembered that Lord Salisbury had at an earlier stage of the contro-

versy 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 Russia. But I must again
remark that the argument of Mr. Blaine did not put forward the verbal
pretentions of the Russian Government; but it put forward the matter
of fact of the exclusive possession of these fisheries 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. 5T

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 oceasion 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 exceed-
ing 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 Comunission,,
which also carried with it a proposal for an interim period of protec-
tion, protecting seals during the months of May and June, October,
November and December.

Senator MoRGAN. Mr. Carter, are you referring now to the draft con-
vention 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 bad 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: IJ have the honor to inform you that a statement having appeared in the
newspapers to the effect thut 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.,
JULIAN PAUNCEFOTE.

Now, then, the situation which confronted Mr. Blaine was this: Pres-
ident Harrison had felt obliged to take methods for suppressing pelagic
sealing in the Bering Sea, the negotiations having failed. Those meas-
ures for its suppression caused seizures and the seizures caused pro-
tests. There were suggestions contained in the correspondence which
J have read of renewed efforts for an accommodation; but nothing had
been determined upon. The only proposition which was up for consid-
eration 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

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 expi-
ration 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 con-
vention 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 meas-
ures designed to settle the controversy and to preserve the fur-seals from
extermination would bein 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 scems to me a not unreasonable one—this proposi-
tion 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 con-
tents 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 asettlement of this question, but the Russian minister and the American
Secretary of State have had the experiences of Mr. Phelps and the Russian ambassa-
dor in London repeated. In our early interviews there seemed to be as ready a dis-
position on your part to come to a reasonable and friendly adjustment as there has
always been on our part to offer one. Yon will not forget an interview between your-
self, 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 posses-
sion of the Russian minister, and a copy also in my possession, A prompt adjust-
ment seemed practicable—an adjustment which Iam 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 clausum ; no
objection was interposed to the entrance of British ships at all times on all commer-
cial 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 comniission of experts to decide the questions at issue. iS

Your 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 const of the Pribilof Islands. Lord Salisbury’s proposition
of 1888 was that during the same mouths, 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

ORAL ARGUMENT OF JAMES C. CARTER, ESQ. 59

seals going forth to secure food for the hundreds of thousands of their young of which
they have recently been delivered. The destruction of the females which, according
to expert testimony would be 95 per cent of all which the sealing vessels might
readily capture, would inflict deadly loss upon the rookeries. The destruction of
the females would be followed by the destruction of their young on the islands, and
the herds would be diminished the next year by this wholesale slaughter of the pro-
ducing females and their offspring.

The ten-mile limit would give the maranders the vantage ground for killing the
seals that are in the water by tens of thousands searching for food. ‘The oppor-
tunity, under cover of fog and night, for stealing sileutly upon the islands and
slaughtering the seals within a mile or even less of the keeper’s residence would
largely increase the ageregate destruction. Undersuch conditions the British vessels
could evenly divide with the United States, within the three-mile limit of its own
shores and upon the islands themselves, the whole advantage of the seal fisheries.
The respect which the sealing vessels would pay to the ten-mile limit would be the
same that wolves pay to a flock of sheepso placed that no shepherd can guard them.
This arrangement according to your proposal, was to continue for three months of
each year, the best months in the season for depredations upon the seal herd. No
course was left to the United States or to Russia but to reject the proposition.

The propositions made by Lord Salisbury in 1888 and the propositions made by
Her Majesty’s Minister in Washington in 1890, are in significant contrast. The cir-
cumstances are the same, the conditions are the same, the rights of the United States
are the same,in both years. The position of England has changed, because the
wishes of Canada have demanded the change. The result then with which the
United States is expected to be content is that her rights within the Behring Sea
and on the islands thereof are not absolute, but are to be determined by one of Her
Majesty’s provinces.

This proposition was received by Mr. Blaine with some considerable
degree of impatience, as will be observed. He seemed to feel that he
was 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 objec-
tion whatever why Great Britain, before she should come to an arrange-
ment 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. Itis alittle 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 pre-
vented 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 eall
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 MoraGAn. It is very short, and for the purpose of ealling
your attention to the particular language of it 1 will read it:

Sir: [have received your dispatch of the 29th ultimo covering copy of a note in
which you submit to Mr. Blaine the draft convention which has been approved by
the Government of Canada for the settlement of the Behring’s Sea fisheries question,

as well as a copy of the draft convention itself.
The terms of your note are approved by Her Majesty’s Government,

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 Gov-
ernment 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; 1 refer to the discrepancy between that note
and the draft convention.

Sir CHARLES RUSSELL. There is no discrepancy.

Senator MORGAN. We differ about that.

Mr. CARTER. I had assumed that the note from Sir Julian Paunce-
fote to Mr. Blaine containing the draft convention proposed by him
was agreeable to the Government of Canada, and that, because it was
agree able to the Government of Canada, it was approved by the Goy-
ernment of Her Majesty.

Sir CHARLES RussELL. 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 RuSSELL. 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 cau-
tious note of Lord Salisbury he says the Government of Canada has
approved of a draft 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 state-
ments 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 Gov-
ernment 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 Pauncefote
as designed to approve of his conduct in transmitting his note with
the draft convention to the Government of the United States.

Sir CHARLES RUSSELL. 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 MorRGAN. 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. 51

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 Govern-
ment 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 deci-
sions 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. Iam not giving any material con-
sequence 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:

“Tt 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 under-
stood, inferred from that that Her Majesty’s Government had changed
its ground upon the question of the duty of both Governments to pre-
serve the seal herds from extermination.

Mr. CartTER. 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 inten-
tion of mine to make any such assertion. I make the contrary asser-
tion, 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:

62 ORAL ARGUMENT OF JAMES C. CARTER, ESQ.

Mr. Blaine to Sir Julian Pauncefote.

DEPARTMENT OF STATE, Washington, June 2, 1890.
My Dear Sir Jurian: I have had a prolonged interview with the President on
the matters upon which we are endeavoring to come to an agreement touching the
fur-seal question. The President expresses “the opinion that an arbitration ¢ an not
be concluded in time for this season. Arbitration is of little value unless conducted
with the most careful Celiberation. What the President most anxiously desires to
know is whether Lord Salisbury, in order to promote a friendly solution of the
question, will make for a single season the regulation which in i888 he offered to
make permanent. The President reeards that as the step which will lead most
certainly and most promptly to a friendly agreemeut between the two Governments.

Iam, etc.,
JAMES G. BLAINE.

The two Governments how appear to have come to a decided differ-
ence respecting the measures which they were prepared to assent to
providing for an interim preservation of the seal. We have a commu-
nication 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 restrict-
ive provision without an act of Parliament, I willsay, 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 for bidding
pelagic sealing, or requesting vessels to abstain from it. That pro-
posal was answered by Sir Julian on the 27th of June. I read from
page 223 of the first volume of the American Appendix:

Sir Julian Pauncefote to Mr. Blaine.

WASHINGTON, June 27, 1890.

Sir: I did not fail to transmit to the Marquis of Salisbury a copy of your note of
the 11th instant, in which, with reference to his Jordship’s statement that British
legislation would be necessary to enable Her Majesty’s Government to exclude Brit-
ish vessels from any portion of the high seas ‘*even for an hour”, you informed me,
by desire of the President, that the United States Government would be satisfied
“if Lord Salisbury would by public proclamation simply request that vessels sail-
ing under the sritish flag should abstain from entering the Behring Sea during the
pr esent season’

I have now the honor to inform you that I have been instructed by Lord Salisbury
to state to you in reply that the President’s request presents constitutional diffi-
culties which would preclude Her Majesty’s Government from acceding to it, except
as part of a general scheme for the settlement of the Behring Sea controversy, and
on certain conditions which would justify the assumption by Her Majesty’s Govern-
ment of the grave responsibility involved in the proposal.

pee conditions are:

That the two Governments agree forthwith to refer to arbitration the question
a the legality of the action of the United States Government in seizing or other-
wise interfering with British vesseis engaged in the Behring Sea, outside of terri-
torial waters, during the years 1886, 1887, and 1889.

IT. That, pending the award, all interference with British sealing vessels shall
absolutely cease.

III. That the United States Government, if the award should be adverse to them
on the question of legal right, will compensate British subjects for the losses which
they may sustain by reason of their compliance with the British proclamation.

Such are the three conditions on which it is indispensable, in the view of Her
Majesty’s Government, that the issue of the proposed proclamation should be based.

As regards the compensation claimed by Her Majesty’s Government for the losses

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 during the
years 1886, 1887, and 1889, I have already informed Lord Salisbury of your assur-
ance 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 long and

so earnestly labored.
I have, etc., JULIAN PAUNCEFOTE.

The PRESIDENT. If you have come to the end of a branch of this
subject, 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 Govern-
ment would, by proclamation, request an abstention from pelagic seal-
ing 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 sug-
gested, 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 Gov-
ernment 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 arbi-
tration thus suggested by Sir Julian Pauncefote was, you will perceive,
only upon the question of regulations, The arbitration here 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. 1 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.

Mr. Blaine to Sir Julian Pauncefote.

DEPARTMENT OF STATE, JVashington, July 2, 1890.

Str: Your note of the 27th ultimo, covering Lord Salisbury’s reply to the friendly
suggestion of the President was duly receiv ed. It was the design of the President,
if Lord Salisbury had been favorably inclined to his proposition, to submit a form
of settlement for the consideration of Her Majesty’s Government which the Presi-
dent believed would end all dispute touching privileges in Behring Sea. But Lord
Salisbury refused to accept the proposal unless the President should “¢ forthwith”
accept a formal arbitration, which his lordship prescribes.

The President’s request was made in the hope that it might lead to a friendly
basis of agreement, and he can not think that Lord Salisbury’s proposition is
responsive “to his suggestion. Besides, the auswer comes so late that it would be
impossible now to proceed this season with the negotiation the President had
desired.

An agreement to arbitrate requires careful consideration. The United States is,
perhaps, more fully committed to that form of international adjustment than any
other power, but it can not consent that the form in which arbitration shall be
undertaken shall be decided without full consultation and conference between the
two Governments.

I beg further to say that you must have misapprehended what I said touching
British claims for injuries and losses alleged to have been inflicted upon British
vessels in Behring Sea by agents of the United States. My declaration was that
arbitration would logically and necessarily include that point. It is not to be con-
ceded, but decided with other issnes of far greater weight.

Thave the honor to be, sir, etc., JAMES G. BLAINE.

The learned Arbitrators will remember the letter which I read some
time ago, before the recess, from Mr. Blaine to Sir Julian Pauncefote,
written perhaps under some measure of irritation at what he supposed
to be the unreasonable delays of Great Britain and the shifting of
ground by her in respect to taterim measures of protection. To that
letter the Marquis of Salisbury writes an answer, or writes a note
designed to be an answer, to Sir Julian Pauncefote, ‘on the 20th day of
June, 1890. As it does not raise a material point in the discussion, I
will not read it, unless my friends on the other side should deem’ it
essential; but I will attempt a summary of it. It is on page 236 of the
Appendix to the American Case.

The points that he endeavors to make in it are substantially these:
that the agreement which was originally made between him and Mr.
Phelps in reference to the close season was a provisional agreement
only, not designed to be final; and the intimation is that the United
States were hé ardly justified in conceiving it to be a final one. He then
says that it was dependent upon the views which Canada might enter-
tain of it, although he does not state that he, at the time, stated to
Mr. Phelps, or otherwise in such manner that it would reach the
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 i in consequence of the objections of Canada, but that it
was made necessary in consequence of a divergence of views between:

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,
along 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 Trfbunal is the letter of Mr. Blaine to Sir Julian
Pauneefote 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 Arbi-
trators 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, pro-
testing against the pretensions of Russia 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
Russian pretensions in Behring Sea.

If I were permitted, and if it were worth while, to criticise the posi-
tion 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 impreg-
nable 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
him. That was an imprudent step, as it seems to me. The wiser
course would have been to have said to Lord Salisbury: “I do not
think you have answered the positions which I have taken; and the
positions which I have taken are the grounds, the main grounds, upon
which the United States bases its contentions; and [ 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 be took up this
question of the Russian assumptions of authority in Behring Sea and
wrote a long letter in relation to it.

That letter, again, is too long to be read, and not of sufficient impor-
tance 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 Kussian preten-
sions in Behring Sea. It is the answer on the part of the United
States Government, and the first answer that the United States Gov-
ernment ever made, to the argument of Great Britain that Russia had
originally made pretensions similar to the one then made by the United
States; and that these pretensions, when made by Russia in 1521, 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.

BS, PT XI1I——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, Russia had, by prior dis-
covery and prior ocenrpation, g 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 Ber-
ing 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 dis-
covered, 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 prin-
cipal 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 Russia was exclusive,
but to the extension of her assertions of exclusive dominion on the
coast from about the parallel of 54 North latitude down to the parallel
of 51. The point of Mr. Blaine was that the objectionable feature of
the ukase in the eyes of both Great Britain and the United States was
the assumption of exclusive territorial sovereignty over this coast, from
the southern part of Alaska down over a long range of coast which
had been familiarly called in commerce and by merchants and navi-
gators who were engaged in trade there the “Northwest Coast”. It
was the theatre of the rival enterprises of several different nations in
commerce. Merchants in the United States had a large trade up there.
Great Britain had a large trade there, and Russia had a very consider-
able 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 preten-
sions; but San Francisco, I think, was rather below what was com-
monly termed the Northwest Coast. Spain claimed to parallel 60, I
know; but lam speaking of the extent of commerce which she actually
had up there. Ido 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,
principally carried on by three great powers, Great Britain, the United
States and Russia. Mr. Blaine’s argument was that the principal point
of contention between these Governments was the sovereignty assumed
by Russia over that coast, which, if successfully maintained by her, would
exclude both Great Britain and the United States from the benefit of
that trade,

ORAL ARGUMENT OF JAMES C. CARTER, ESQ. 67

According to Mr. Blaine—this was his argument—that contention
was settled between the United States and Russia by the treaty of 1824,
and between Great Britain and Russia by the treaty of 1825, and that
the ukase of 1821, except so far as it was modified and displaced by
these 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 estab-
lished—a southern boundary to the pretensions of Russia, 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 sover-
elgnty of Russia was recognized as complete and perfect; and south of
that boundary, the sovereignty of Russia was excluded by her agree.
ment 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
Bering Sea at all. They had none atthat time. Everything embraced
by those regions was in the undisputed possession ot Russia. There
was no desire to interfere with it, and, consequently—this was the
conclusion of Mr. Blaine.—

The PRESIDENT. You speak of the coasts only.

Mr. CARTER. Well, I speak now of the sea as well. Iam 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 argu-
ment. But this is his argument, that all the pretensions of Russia,
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 Russia, and no contention was
made in reference to them.

Sir CHARLES RUSSELL. North of 54°, 40’ you mean?

Mr. CARTER. No: north of 60°, I mean, at the time when the pro-
tests were made, and the negotiations were entered into. Everything
North of 60° was undisputably the property of Russia, and no conten-
tion was made on the part of either Government in reference to it.
The region of controversy was South of that, between that, and lati-
tude 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 Russia 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 may be 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. Blaine’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 prog-
ress of the negotiations. A letter of the latter cha ‘acter, found on
page 240, I 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 hereto-
fore 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. Iam 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 diplo-
matie controversy on the part of a power like Great Britain—and I can

easily see that there are very serious difficulties attending such a settle-
ment—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 con-
troversy was at hand. He had referred to the fact that the negotia-
tions were first interrupted, then suspended for along 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 Appen-
dix), Lord Salisbury having succeeded in dr awing Mr. Blaine into acon-
troversy respecting these Russian 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 if 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 Russia
over the waters of Bering Sea and over the Northwest Coast. He
states that the pretentions of Russia made by that ukase were to a
sovereignty over the waters from Bering Straits down to latitude 51°
on the ‘American shore, and down to latitude 47° on the Asiatic¢ shore,
thus asserting a sovereignty, not only over Bering Sea, but over a large
part of the ocean south of that sea: and he insists that the principal
point of the objection of Great Britain to this pretention on the part of

ORAL ARGUMENT OF JAMES C. CARTER, ESQ. 69

Russia 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 Russia 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 Russia 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 head been that the words “ Pacifie 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 Russia and Great Britain,
and the similar term of the first article of the treaty between Russia
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 Russia 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 some-
thing 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 posi-
tions 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-

70 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 Russell seized upon the other day. It is
dated the 17th of December, 1890, and in it he says this:

Sir CHARLES RUSSELL. Are you going to read this at length?

Mr. CARTER. No, I am not.

Sir CHARLES RUSSELL. 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. 'Thts 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, tlie Govern-
ment of the United States has no well-grounded complaint against her. If, on the
other haud, 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 sepa-
rate 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 Russian
authority and Russian pretentions, or any right derived by the United
States from Russian authority or Russian pretensions. He then pro-
ceeded 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 them-
selves and useful to mankind—setting forth the destructive nature of
pelagic sealing as carried on by these Canadian sealers and its inde-
fensibility upon moral grounds, thatit 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. den somewhat incautiously,
he has abandoned that view, and chooses to say now that if the Gov-
ernment 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. ie 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 Be ring 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 Pacific 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 Gov-
ernment that there was a distinction between the Bering Sea and the
Sea of Okhotsk and the North Pacific Ocean; but L think he was not

ORAL ARGUMENT OF JAMES C. CARTER, ESQ. 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 many

ears.
‘ Mr. CARTER. It may be that the British Government had acknowl-
edged 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 Russia. 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 assertions that the Government of the United States demands that
the Behring Sea be pronounced mare clausum, are without foundation. The Govern-
ment 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 international law, for holding a small 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 ground-
less an interference with the common law of the sea as is maintained by British
authority to-day in the Indian Ocean. The President does not, however, desire the
long postponement which an examination of legal authorities from Ulpian to Phil-
limore and Kent would involve. He finds his own views well expressed by Mr.
Phelps, our late minister to England, when, after failing to secure a just arrangement
with Great Britain touching the seal fisheries, he wrote the following in his closing
communication to his own Government, September 12, 1888:

“Much learning has been expended upon the discussion of the abstract question of
the right of mare relausum. Ido 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. Itis proposed
by the colony of a foreign nation, in defiance of the joint remonstrance of all the coun-
tries interested, to destroy this business by the indiscriminate slaughter and exter-
mivation 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 itis suggested that we are prevented from
defending ourselves against such depredations because the sea at a certain distance
from the coast is free.

“The same line of argument would take under its protection 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 C: inada, upon the just
principles of international law, be held defenseless in such acase? Yet that process
would be no more destructive, inhuman, and wanton than this.

“Tf precedents are wanting for a defense so necessary and so proper, it is because
precedents for such acourse of conduct arelikewise 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,”

I have the honor to be, sir, with the highest consideration, your obedient servant,

JAMES G. BLAINE,

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. JI 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. contr adictory ; but it is, nevertheless, true that,
inasmuch as the last attitude is taken at the end of his letter, the posi-
tion 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. Herejoined to Mr.
Blaine in a letter dated February 21, 1891.

Sir CHARLES RUSSELL. That is comparatively none

Mr. CARTER. ( Jomparativ ely 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
respecttul statement that the argument of Mr. Blaine on the other side
was not satisfactory; closing, I believ e, aS is usual, with these polite
gentlemen, with ae conciliatory observations, and also containing
some discussion of the points of the proposed arbitration; for the arbi.
trators will remember that while this discussion upon the merits of the
controversy was going on, another discussion was also going on between
the parties, part 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 atten.
tion 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 con-
cerning the shape which the arbitration should take, and all it is nec-
essary 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 expresse d, butit was an implied feature all along. It was
borrowed from the original suggestion of Sir Julian Pauneefote. 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
Russia, and to the rights which the United States may have derived
from Russia 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 Islauds; and then, if the determination of the Tribunal upon

ORAL ARGUMENT OF JAMES C. CARTER, ESQ. 73

those questions which are properly called by my learned friend Sir
Charles “questions of right”, should leave the subject in a condition
where the coneurrence of Great Britain was necessary to the establish-
ment 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 contin-
gency. 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 doit. 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 Febr uary, 1892, these two agr eements, thas far kept separate, were
finally consolidated in the treaty, and the tr eaty 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 admin-
istration of President Harrison; proclamations designed to prohibit
pelagic sealing, instructions to cruisers s 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 renews al of the negotiation for a settlement between
the two Governments, the proposal by Sir Julian of a draft convention,
which contained the erm 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 [ have-styled it,—perhaps that will not be agreed to by my
learned friends on the other side—but an attempt, as ie 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 Russian pretensions in Bering Sea; the Ukase of 1821; the
treaties of 1824 and 1825; 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 the proposal for arbi-
tration 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 arbitra-
tion; the signing of that treaty, and its ratification by both powers.

There is still another stage, but it is a very short one and briefly
told. That is the third stage of the controversy, and has reference to
the action of the two Governments wnder the tr eaty. The Commissioners
were appointed upon both sides. They visited Bering Sea. They
examined the condition of the rookeries there. They made such inves-
tigations as they chose to make, and were able to make, concerning
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 Russia on the Asiatic shore, and
‘ they examined the business of pelagic sealing, its nature, its tendencies,
ete. 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 any
further in harmony are to my mind very plain, but this is not the
moment at which I should state that. It is enough for the present pur-
pose to say that upon all other matters they disagreed, and therefore
the hopes of the two Governments of being able to unite in a conven-
tion in respect to regulations based upon an agreeing joint report of
these commissioners, were disappointed, and it became necessary that
the Arbitratorsshould 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 fail-
ure having occurred the arbitrators were appointed. ‘The parties pro-
ceeded 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 wellas 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 difiiculties which are presented, better
than you otherwise would.

I shall, therefore, proceed with the next step in the argument of the
Case.

Senator MorGaan. Mr. Carter. before you proceed, will you allow me
to call your attention to some dates about which, possibly, there is some
misunderstanding. Iunderstand 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. [ 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 judg-
ment animportant fact. I know it is a fact because the record shows it.

Mr. Foster. They adjourned on the 4th of March, and the conven-
tion 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. (ai

Senator MorGAN. Therefore, there was no treaty at the time they
made that report.

The PRESIDENT. But there was an arrangement between the Gov-
ernments—precisely the arrangement which was signed afterwards, on
the 18th of December, 1891. There was an arrangement made in June,
1891, if Lremember, 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 arrangemeiut 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 Commis-
sioners was made June ist, 1892, and the exchange of ratifications
occurred May 7th, 1892.

Senator MorGAN. I refer to the joint report, after which, as [ under-
stand 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 MorRGAN. 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 MorRGAN. 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; ratitied 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 MorG@an. 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 instru-
ment to be construed in part 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 distinet char-
acter, 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 tle truth is, how-
ever, 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 eae also in writing that this should be
done, although that writing was not in a form inaking it a treaty.
That is plain enough. It was highly important that all of this pre-
liminary 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. J should, indeed, myself be inclined to argue that the

atifications having been exchanged between the Governments with
full knowledge that these proe eedings had already been had before-
hand, and that it was the design of the pending treaty that they should
be had, that the ratifications of the treaty would have an ettect, as we
lawyers say, by relation, and go back and make good these prior pro-
ceedings which otherwise might have been invalid.

Senator MORGAN. If the le arned counsel will allow me, that is pre-
cisely 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 diplomatie corre-
spondence, 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 futuro.

Mr. CARTER. Oh no; I should suppose not. But the view which
is Sue ee by the learned Arbitrator is entirely in accordance with
my own

LT 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 citizeus of different nations, part
belonging to the nations between whom the controversy subsists, and
part coming from other nations. ‘hey 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 ae or some system of law. What
then is the ‘aw 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 con-
troversy is to be governed by some rule of right. What that particular
rule may be, and where it is to be found, is another question; but the
decision is to be governed by some rule of right. J heard with infinite
pleasure my learned friend, Sir Charles Russell, when he was address-
ing 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. (7

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 antici-
pate, 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 individ-
uals it is of far higher importance that the particular dispute should be
in some manner settled and the parties left at peace, than how it shall
be settled; and therefore in such cases the decision is often reached by
some reciprocal process of concession, giving a little on one side and
conceding a little on the other, and so on, until finally an 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 char-
acter. Ifit 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 recon-
cile. 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 con-
stituted of eminent jurists from several distinct nations unless it was
intended that the rules of right should be applied? Why should pro-
vision 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 deci-
sion. 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 there-
fore 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 affirm-
ing 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. Certainly nothing can be more important than a determina-
tion 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 set-
tled, but other aspects of it quite novel—requiring additional explora-
tion, additional elucidation, and additional determination. It is a
question of the gravest and most important character, upon which dif-
ferences of opinion may arise likely to embroil nations in hostilities
and to break up the peace of the world. Then, again, that other ques-
tion, 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
may be resolved—the fundamental principles upon which the institution
of property itself stands?

These are questions, the permanent importance of which far out-
weighs the particular interests of the contending parties to this contro-
versy; 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—l think it is not unbecoming in me to
make that appeal—to discharge and dismiss from his breast every sen-
timent 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 havi ing only in charge,
the general interests of mankind, The promptings of patrioti sm, every-
where 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 determina-
tion of this Tribunal, what is that rule of right, and where is it to be
found? In saying that itis 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 arule adopted by the moral sense; for there are no rules of right
except moral rules. Right and wrong have to do with morality and
with morality alone. The law, whether it be international law, or
municipal law, is but a part of the general 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 of the other, or of any
particular nation. 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 people of all civilized nations, are agreed.

YRAL ARGUMENT OF JAMES C. CARTER, ESQ. re)

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 sucha standard there can be no manner of
doubt. his whole proceeding would be out of place if there were not.
IT could not with any propriety stand up and address an argument to
this Tribunal unless there was some agreed standard between it and
ine 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 jus-
tice and of law, agreed upon among all civilized nations and among the
people of all civilized nations. It is jusf 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 partic-
ular 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 ethies 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 interna-
tional 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 wher-
ever 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 I conceive to be only another term for international law.

The PRESIDENT. Mr. Carter, if you please, we will continue to-
morrow.

Before rising, I beg leave to state that the Tribunal intends taking a
somewhat longer 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. m.]

NINTH DAY, APRIL 14™, 1893.

[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 to 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 whichis only another name for international
law.

International law, therefore, is the rule which is to govern the delib-
erations 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 inter-
national 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 trom legislation, having
no origin in any sovereign legislature—for there is no such legislature—
not derived from human iustitution 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. Thisis true of all munic-
ipal states, and it is equally true of the larger society of nations,
There could be no intercourse among nations; there could be no inter-
course 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. AJL municipal codes
are but attempts on the part of particular societies of men to draw pre-
cepts and rules from the law of nature, and re-enact them for the guid-
ance of its individual members; and in those countries which are not
governed wholly by codes or by statutory enactments; in those coun-
tries 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.

380

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 has in modern
times been styled ‘‘the Law of Nature and Nations.” Under this comprehensive
title are included therules 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 they modify the intercourse of inde-
pendent commonwealths in peace and prescribe hmits 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 govern-
ments where they are planted, though they proceed from the same tountain.

This law of nature, as it is styled, 3s sometimes designated by differ-
ent 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 human 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 hap-
pily and clearly illustrated by those three great maxims which consti-
tute the basis of the jurisprudence of the Roman 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 thus familiar to every lawyer: “-/uris precepta sunt hee:
honeste vivere, alterum non ledere, suum cuique tribuere.”

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 the rules of municipal law upon the individual mem-
bers 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 isenforced, in the first instance, by the sense of right and
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

BS, PT xII——6

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
las 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. Irefer to Sir Robert Phillimore. He
says:

It is sometimes said that there can be no law between nations, because they acknowl-
edge no common superior authority, no international executive capable of enforcing
the precepts of international law. This objection admits of various answers: First,
it isa matter of fact that states and nations recoguize the existence and independence
of each other, and out of a recognized society of nations, as out of a society of indi-
viduals, 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 com-
pelling their performance is, hnmanly speaking, more or less perfect, as they more
or less fall under the cognizance of human law. In like manner, international jus-
tice would not be less deserving of that appellation if the sanctions of it were wholly
incapable of being enforced. .

. . . . . . . . . . e. . . . . . . . . . . . e . . e . e . . e

But irrespectively of any such means of enforcement the law mustremain. 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”.

e . . . . . . . . . . . . . . . . e . . . . . . e. . . . e e e

Lastly, it may be observed on this head, that the history of the world, and espe-
cially of modern times, has been but incuriously and unprofitably read by him who
has not perceived the certain Nemesis which overtakes the transgressors of interna-
tional justice; for, to take but one instance, what an ‘‘ Iliad of woes” did the prece-
dent 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 ulto-
rem”. The commentary of a wise and learned French jurist upon these words is
remarkable and may not inaptly close this lirst part of the work: ‘ Paroles (he says)
quwon peut appliquer également & toute infraction des lois naturelles. La justice de
VAuteur de ces lois n’est pas moins armée contre ceux qui les transgressent que contre
Jes violateurs du serment, qui najoute rien a Vobligation de les observer, ni & la
force de nos engagements, et qui ne sert qwa& nous rappeler le souvenir de cette jus-
tice 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 ot
states, are all parts of one consistent system of universal morality. Between the
most abstract and elementary maxims of moral philosophy, and the most compli-
cated controversies of civil and public law there subsists a connection. The princi-
ple of justice deeply rooted in the nature and interests of man pervades the whole
system and is discoverable in every part of it, even to the minutest ramification in a
legal formality or in the construction of an article in a treaty.—(Sir James Mac-
Intosh, Discourse on the Law of Nature and Nations, sub fine.)

And Mr. Justice Story says in his book on the Conflict of Laws, Ch.
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 doc-
trine, 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. 85

The same great authority when sitting as a judge in the case of La
Jeune Eugénie, in the second of Mason’s Reports, p. 449, says:

But I think it may be unequivocally affirmed that every doctrine that may be
fairly deduced by correct reasoning from the rights and duties of nations and the
nature of moral obligations may theoretically be said to exist in the law of nations;
and, unless it be relaxed or waived by the consent of nations, which may be evi-
denced by their general practice and custom, it may be enforced by a court of justice
wherever it arises in judgment.

The main foundation of international law is, therefore, the law of
nature, and it is a system not evidenced by any written code, but is a
body of moral rules. But it is a body of moral rules, at the same time,
as to all the particulars of which men are not absolutely agreed. There
are differences in the moral convictions of different men, and there are
differences in the moral convictions of the same people and the same
nation at different periods of time. Law isa progressive system advanc-
ing 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 recognized by nations, do not always come up to the
elevated standard of the Jaw of nature. Thatis 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 tie 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 ques-
tion 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 againsg 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 munic-
ipal 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 natious; for the practice
and usages of nations must evidence the points upon which they are
agreed; and where the practice and usages of nations speak we need

84 ORAL ARGUMENT OF JAMES C. CARTER, ESQ.

look no further. But the practice and usages of nations speak in but
a comparatively few cases. They really cover but a very small part o1
the questions which arise, and of the still larger number of questions
which, by possibility, may arise, and which at sometime or other cer.
tainly will arise, in the intercourse of nations. In the municipal law 03
states the case is otherwise. Particular states have a regular establish.
ment 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 munic-
ipal 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. Tor the most part, there-
fore, when new questions arise we are referred at once to the law of
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 Amer-
ican writer, once the head of the law school of the University of Cali-
fornia. He says (Lectures on International Law, ed. 1886, ch. I):

Src. 29.—(3) What is called international law in its general sense, I 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 rela-
tions. These rules have no binding foree 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 80 con-
stantly 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 inde-
pendent states in their corporate political capacities.

Src. 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, how-
ever, 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 pre-
cepts 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 Jaw 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 12th 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 clear-
ness (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 natu-
ral 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 Vattei 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 concerus. 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 car-
ries 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 princi-
ples of right and justice, equally suitable to the government of individuals in astate
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 law-
yers 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
science.

The law of nations, so far as it is founded on the principles of natural law, is
equally binding in every age and upon all mankind.

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 aud 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 tor-
rents 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 itis one for all uations. It governs peace and war, and traces the rights and
duties of every position. The rights which it gives are clear, positive, and absolute;

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 harmony. It can not be other-
wise. 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. III, sec. 21):

Investigating thus this spirit of law, we find the definition of international law
to consist in cerlain rules of conduct which reason, prompted by conscience, deduces as
consonant to justice, with such limitations and modifications as may be established by gen--
eral consent, to meet the exigencies of the present state of society as existing among nations
and which modern civilized states 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 philoscpher, John
Locke, illustrious all over the world, in his treatise on Civil Govern-
ment. 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 upon each
other if they lived in a state of nature, and without any human gov-
ernment whatever. In such a government as that, he says, and anter-
ior 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 aud 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 Ido 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 Ido so. Those are:
the same modes of enforcing justice and protecting rights which men:
would exercise if there were no governments at all. Mr. Locke them
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 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 his-
tory, 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 n 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 jus-
tice. 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 pro-
fess to administer the laws of nations,—such as prize tribunals, which
are sometimes called international tribunals, although, strictly speak-
ing, 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 eall attention to one most useful source to which we may look
for ascertaining what the law of nature is, and which is not so com-
monly pointed out, I think, by writers. I mean the municipallaw.- 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 culti-
vated in every civilized state, as [ have endeavored to point out, most
assiduously for a thousand years by learned experts, either juriscon-
sults, or judges. The efforts of such men extending over such a long —
period of time, in inquiring and determining what justice is in multi.
tudes 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 informa-
tion 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 RUSSELL. 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 toa 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 atten-
tion. That has reference to the rights which may have been gained by
Russia 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 Russia 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 Russia 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 Russia, 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 Russian 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 Yukon River,
on the other side of Bering Sea.

The PRESIDENT. Was not Siberia in possession of Russia?

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 Kussia. 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 discov-
ered also the Commander Islands, which are the breeding place of the
Russian seals; and it was upon one of those islands that he was ship-
wrecked.

This discovery of the Commander Islands by Russia 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 Russian voyages in Bering Sea and along
the Aleutian chain, and in the course of them it was discovered that
there were vast bodies of seals at certain periods of the year migrating
North, and at certain 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 Russians 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 Russian 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 w hich he had observed making these migrations to
the northward. It was a distinet object with him, and he finally satis-
fied his ambition and made the discovery.

ORAL ARGUMENT OF JAMES C. CARTER, ESQ. 89

At a later period, Russian 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 Russian 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 Russian 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 sup-
pose, also, at other places far ther 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 ereater 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 prod-
ucts 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 valuetoman. Subsequently, of course, fisheries were devel-
oped; 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 Russian 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 establish-
ment as high to the northward as where the pointer rests now (indicat-
ing on map), and perhaps others along that coast; but as I now remem-
ber, 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 dis-
covery 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 pri-
ority of right should be determined; and the rule eventually estab-
lished 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 ‘taad 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 aban-
doned, the full and complete foundation of a right was laid.

How far did such a right ae 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:
““T 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 forthe 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 point which
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 dis-
covery. 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 s along the coast.

tussia, 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

ORAL ARGUMENT OF JAMES C. CARTER, ESQ. i

the 54th or 50th degree of north latitude, claimed and asserted a sover-
eign right and dominion to the whole of the territories thus discovered,
founded upon prior discovery. She followed up that assertion by the
establishment of these trading posts, one or more of them, on the
Alaskan shore of Bering Sea, several of them on the Northwest Coast,
south of the peninsula of Alaska, and more or less of them — I do not
know how many —upon the Siberian coast. 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 fairiy claim to exclude other nations of the globe from a par-
ticipation 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 discov-
ered 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 the mere basis of an
occupation at one point, it might be deemed very unreasonable. Other
nations might come in, and say: ‘ You are not fairly improving the dis-
covery 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 its
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, exhausti-
ble in its character, and could be fully reaped and eathered 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
thing to be occupied, and that while acts of occupation in one quarter
of the globe might be sufficient to make good a title to but a very lim-
ited portion, in other portions of the globe they might be sufficient to
make a titie to a very considerable region of the ex arth. Now, I wish
to apply those views to this Bering Sea region, which was the great
theatre of Russian enterprise, and to show, upon all the principles rec-

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 the 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 bene-
fits of this trade in fur-bearing animals, but if they did, there would
not be enough for ali of them, whilst the Russian trade would be
impoverished: and that would be of no advantage to the other nations
of the earth: they would make investments in it which would not be
remunerated, It would be best, therefore, tor the countries immedi-
ately concerned that the reaping of the entire harve est 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 Russia 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 itseli—would be best served by confin-
ing 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, Russia 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 estab-
lishments along that coast, although not to such an extent as Russia
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 Russian 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 Russia had asserted upon the
ground of prior discovery, earlier than the year 1800; that occupation
she had made earlier than i800. She had, in her own view—and I think
justly—done every act necessary to secure to her a complete and exclu-
sive 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 cor-
por tion 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 Russian 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 Russian 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 Russia over the whole
region. The act would have had no significance unless Russia had
entertained the view that she was the sole proprietor, against all other
nations, of that region and of those products. And, except upon that
view, it would have operated, not in favor of Russian citizens, as it was
designed to operate, but against them. If it were allowed that it was
simply designed as a concession in favor of certain Russian subjects to
the exclusion of others, its effect would have been to extend the privi-
lege to all nations and relieve them very largely of Russian 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 Russia 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 Russian subjects, a disastrous competition for the purpose
of reaping the benefits of that region. A trade of this nature, if
engaged in by many Russian 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 Russia at this time, I may read a quotation which
appears on page 15 of our Counter-Case, from a letter from the Russian-
American Company to the Russian Minister of Finance (quoting):

The exclusive right granted to the Company in the year 1799 imposed the prohibi-
tion to trade in those regions, not only upon foreigners, but also upon Russian sub-
jects 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 Russia in relation to this region was the
celebrated Ukase of 1821, which cuts such a figure in this controversy.
This Ukase was of a different character in one 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:

Sxc. 1.—The pursuits of commerce, whaling, and fishery, and of all other industry
on allisiands, 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 Aleu-
tian 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.

Src. 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.

Src. 3.—An exception to this rule is to be made in favor of vessels carried thither
by 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 (S8c. 2).

In this case, however, they must previously be provided with passports from the
Rugsian 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 contisc ations shall be made.

[Quoting again at the request of Sir Charles Russell]:

Sec. 14.—I¢ 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 Russians further south on the American
coast than they were carried by the Charter of 1799, which limited them
to 55°. The ee , therefore, of that public Act of Russia, so far
as the shores were concerned, was unmistakable. It assumed absolute
and entire sovereignty over them, and, as I have already pointed out,
it was perfectly well 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 discover y. 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 assump-
tion of dominion on the part of Russia over the whole of Bering Sea
and of the North Pacifie 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 Russia’s
property and ineluded 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 Russia 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 Aleu-
tian 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 Russia, according to the doctrines of that age,
had a perfect right to do. Nothing was more clearly admitted at that
time, than that every nation had a right to arrogate to itself the exclu-
sive 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.

Src. 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 tri insegressor’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 ©. CARTER, ESQ. 95

Russia 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 the 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—Dbut stillit 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 approach 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 PRESIDENY. 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 pro-
tecting 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 Chureh against
Hubbart, which is reported in the second of Cranch’s Reports, 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
in the situation of the Aurora, and that this seizure is, on that account, a mere
maritime trespass not within the exception, cannot be admitted. ‘lo 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 itis its duty torepel. 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 colonies. Any
attempt to violate the laws made to protect this right is an injury to itself which it
mnay 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 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 Chan-
nel, 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

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 occa-
sioned 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.

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
trom 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.

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 pro-
hibited 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 probibited trade,
and thatif 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 dif-
ferent 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. PuELPs. 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. Carrer. It is our contention, and we suppose that there could
be no dispute on that point.

Sir CHARLES RUSSELL. 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 Regina 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 Russia? Was it an
assertion of general dominion over the seas, of an extension of her ter-
ritory over all the Bering Sea and part of the 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 preten-
sion setup? Notatall. There was a grant to a private company of
the exclusive privilege of colonial trade to which Russia 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 there-
fore 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 remem-
ber the decision of Chief Justice Marshall, just read, that such an exclu-
sion of the vessels of a nation on a frequented coast, the general path-
way 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 Russian entering Bering
Sea in 1821 have? Whaling was at that time very little, if at all, car-
ried 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 theretore the probability was that she was engaged in an
illicit trade. The very circumstance that she was in that Russian 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 Russia to assume
general dominion over those seas. A vessel might be whaling and be
within one hundred miles of the shore without exposing herself to any
suspicion of 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 inter-
dicted?

Mr. CARTER. I think the interdict is confined to what is done on the
coasts (quoting again);

Sec. 1.—The pursuits of commerce, whaling, and fishery, and of all other indus-
try 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 prevent-
ing 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 contriveil for the purpose of securing the grant.

BS, PT X1I——7

98 ORAL ARGUMENT OF JAMES C. CARTER, ESQ.

The grant is one thing, the measure is another. Mere presence there isa
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 opera-
tions in violation of those laws; and one manner of doing this is fora
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 defence-
less against it. And therefore nations must have some manner of pre-
venting 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 Russian 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 Russia.

Mr. CARTER. Well, it is a part of my argument not only to show
that Russia 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 Russia 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 con-
fiscation.

Sir CHARLES RUSSELL. Four leagues.

Mr. CARTER. Four leagues—the penalty is capture and confisca-
tion. 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 Russia operative
over a belt of the sea beyond the limits of three miles is not an excep-
tional 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 regula
tion on the face of it.

I have now to point out to the learned Arbitrators that that was the
view taken of it by Russia at the time; for when it was protested
against by Mr. John Quiney Adams, then Secretary of State of the
United States, this was the explanation, or part of the explanation,

yD

given by the Russian Government. I read trom the note of M. de

ORAL ARGUMENT OF JAMES C. CARTER, ESQ. 99

Poletica to Mr. Adams, on page 133, Volume first of the American
Appendix:

I shall be more succinct, sir, in the exposition of the motives which determined
the Imperial Government to prohibit foreign vessels from approaching the north-
west coast of America belonging to Russia within the distance of at least 100 Italian
miles. This measure, however severe if may at first appear, is, after all, but a
measure of prevention. It is exclusively directed against the culpable enterprises
of foreign adventurers, who, not content with exercising upon the coasts above
mentioned an illicit trade very prejudicial to the rights reserved entirely to the
Russian American Company, take upon them besides to furnish arms and ammuni-
tion to the natives in the Kkussian possessions in America, exciting them likewise in
every manner to resist and revolt against the authorities there established.

The American Government doubtless recollects that the irregular conduct of these
adventurers, the majority of whom was composed of American citizens, has been
the object of the most pressing remonstrances on the part of Russia to the Federal
Government from the time that diplomatic missions were organized between the
countries. These remonstrances, repeated at different times, remain constantly
without effect, and the inconveniences to which they ought to bring a remedy con-
tinue to increase.... Pacific means not having brought any alleviation to the just
erievances of the Russian American Company against foreign navigators in the
waters which environ their establishments on the northwest coasts of America,
the Imperial Government saw itself under the necessity of having recourse to the
means of coercion, and of measuring the rigor according to the inveterate character
of the evil to which it wished to put a stop.....

I ought, in the last place, to request you to consider, sir, that the Russian possessions
in the Pacific Ocean extend, on the northwest coast of America, from Behring’s
Straight to the fifty-first degree of north latitude, aud on the opposite side of Asia
and the islands adjacent, from the same strait to the forty-fifth degree. The extent °
of sea of which these possessions form the limits comprehends all the conditions
which are ordinarily attached to shut seas (mers fermées), and the Russian Gov-
ernment might consequently judge itself authorized to exercise upon this sea the
right of sovereignty, and especially that of entirely interdicting the entrance of
foreigners. But it preferred only asserting its essential rights, without taking any
advantage of localities.

We have not only the fair interpretation of the Ukase itself, but the
express declaration of the Russian Government, that this prohibition
of the entry of foreign vessels within 100 miles along the shores of this
whole coast was not designed as an assertion of sovereign dominion
over the sea, but only to defend the colonial trade of Russia against
illicit invasions of it by foreigners.

Mr. Middleton, the American Minister at St. Petersburg at that time,
addresses a note to Mr. Adamsin which he says that this is the purpose
which the Russian Government had in view in making the declaration
of this Ukase. I read an extract from a letter of Mr. Middleton to Mr,
Adams, found on page 135 of the first volume of our Appendix:

To Mr. Speransky, Governor General of Siberia, who had been one of the commit-
tee originating this measure, I stated my objections at length. He informed me that
the first intention had been (as Mr. Poletica afterwards wrote you) to declare the
northern portion of the Pacific Ocean mare clausum, but that idea being abandoned,
probably on account of its extravagance, they determined to adopt the more moder-
ate measure of establishing limits to the maritime jurisdiction on their coasts, such
as should secure to the Russian American Fur Company the monopoly of the very
luerative traffic they carry on. In order to do this they sought a precedent and
found the distance of 30 leagues, named in treaty of Utrecht, and which may be
calculated at about 100 Italian miles, sufficient for all purposes.

The PRESIDENT. Is there any evidence that you know of that the
Russians at any time previously to that correspondence, had asserted
the right of mare clausum, the right of sovereignty to the Bering Sea?

Mr. CARTER. None whatever, neither before nor since, in my view,
unless this Ukase constitutes an assertion of authority; which I do not
think it does.

The PRESIDENT. It was a position which they might have assumed,
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 182 21, and the nature of it such as it
appears to be from a fair interpretation of the face of it, and from the
declarations made by the Russian 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 upou this i desire to occupy a few moments in dealing
more particularly with the question of the real rights of Russia 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 Russia was by this Ukase of 1821; thatit
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 sortis. I wish to follow up those obser-
vations a little further, for the purpose of fixing in the m‘nds 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 dominiwm eminens. The dominium utile is the right
to use and enjoy; and it is that, and that only, which is vested in pri-
vate 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 i a ecstad and it is that sovereign right of property which I
mean when i say that sovereignty embraces the full property right in
the erat 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
conseque natly the ® power of excluding any foreign nation or its citizens

from any partof the domain which it covers. It embraces the full right
of Government; and that is necessarily exclusive of every other Gov-
ernment. 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 arigid boundary line. That is one

characteristic of sov ereignty; it must be limited by a rigid boundary
line. Property cannot exist unless it is specified and deseribed; and,
of course, the limits of the laws of a Government must be absolutely
and precisely known: they cannot shift and vary according to cireum-
stances. 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 1s 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-protec-
tion may be exercised by a nation wherever the nation has aright to be;
and a nation has a right to beanywhere 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 inter-
ests, and if it could not protect its interests, how could they be pro-
tected 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 highseas. Canitnotbe 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 prop-
erty 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 injur-
ing 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 citi-
zens. Have you not just as much power to protect your citizens on the
high seas as we have? If a trespass was attempted against them, why
did they not resist and beat 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 cit-
izens, 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? Hereis 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 belliger ents; 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 pre-
vent 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. Whatis done?
She is taken and captured because it is necessary. She is attempting
to assist anenemy. That is, she is doing acts w hich would amount to
an assistance and which render the oper ations 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 belliger-
ent 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
ot 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 these 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, for-
bidding. a vessel to hover within four leag ues 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 stat-
ute 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 Govern-
ment, 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 gov-
erning seizures in the case 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 circum-
stances.

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 inter-
ests, 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 inter-
ests 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
allagainst 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 meas-
ures of defense and protection. All reasonable nations will accede to
them, and do accede to them, and, consequently, they have had their
place in all time on the statute books of nations, and have never yet
led to contention except in cases where they were really unreasonable,
or supposed to be so.

Senator MorGaAn. 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 tres-
passes 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 RUSSELL. Certainly she did.

Senator MoRGAN. She did refuse?

Sir CHARLES RUSSELL. Certainly.

Senator MorGAN. And that was the reason why aclaim 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 tres-
pass 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 MorRGAN. In this case 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 RUSSELL. She denied that there was any trespass upon
the property of the United States.

Senator MoRGAN. Iunderstandthat. My questionis 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 thataccount? 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 JAMES C. CARTER, ESQ. 105

Senator MorGAN. I trust I am not too early with the suggestion,
because it is an important matter in the case, and I shall expect to
hear argument upon it on both sides.

Mr. CARTER. I will give to that question the attention which, from
the interrogatory of the learned Arbitrator, it seems to deserve.

I have said that this position, which I am seeking to maintain, of the
right to self-protection as distinguished from any assertion of sover-
eignty, is not in conflict with the ordinary doctrine of the freedom of
the seas in any particular. It admits that doctrine, stands upon it,
asserts itself only as exceptional, justifiable in cases of necessity, and
then justifiable only up to the extent of that necessity; but, in respect
to the free:iom of the seas, the position which we maintain does assert
one thing, with positiveness. That is, that however free the seas may
be in the just sense of the word, they are not free anywhere, in any
quarter of the globe, at any distance from the shore—three miles or
three hundred miles—for the commission of wrong, and whether a
thing is wrong or not when committed on the high seas is just as easily
determinable as it would be if the dominion of some municipal power
extended over it. In other words, our position is that there is no part
of the globe, on the sea or on the land, that is not under the dominion
of law, and under the dominion of a law which the courts of every
nation will take notice ef, even the municipal tribunals, and under the
dominion of a law which this Tribunal, as an international one, wiil
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 consid-
erable confusion about it. There is a confusion in relation to it in the
opinions of writers upon international law. They have not, as a gen-
eral rule, pointed out these two distinct and different species of author-
ity 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 diplo-
matic 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 deserib-
ing 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 gener-
ally; but we sometimes say, also, that a court has jurisdiction to do a

106 ORAL ARGUMENT OF JAMES C. CARTER, ESQ.

certain thing, meaning by it that it has the power to do « 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
Russia in Bering Sea, and of the rights which Russia had gained in
that sea, and the rights the United States has, consequently, gained
by the acquisition of Alaska from her? Has the United States ever
maintained at any time in the course of this controversy that Russia
had acquired a dominion over Bering Sea, as if that sea were a part of
her territory and that the United States had, in consequence, as the
suecessor of Russia, acquired such right as that? Has the United
States ever made any such claim as that? Never. At no time in the
course of this controversy has it ever made any claim of that sort, or
hinted a claim of that sort. It has always put its case upon other and
very different grounds; namely, that Russia had property interests—
interests in the nature of colonial trade and other industries—carried
on on the shores of Bering Sea, which gave her a right to adopt pro-
tective measures which might be operative, indeed, over a reasonable
extent of the sea as defensive measures; and that such a right as that
the United States has also, not because it acquired it from Russia
beeause it would have it without any such acquisition; the only aid
that it has asserted as having been derived from Russia was the fact
that Russia had established these protective regwations in Bering Sea,
and that other nations of the world, including Great Britain, had acqut-
esced 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 Russia 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 154, there is a quite formal state-
ment 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 that the original ground upon which the ves-
sels 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 entirely abandoned, but a claim was then
made to exclusive jurisdiction over one hundred miles from the coast line of the
United States territory: that, 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 refer-
ence to this controversy. It isa 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 amare clausum, an

ORAL ARGUMENT OF JAMES C. CARTER, ESQ. 107

inland sea, and as such had been conveyed in part by Russia to the
United States.”

That does not say that the United States ever took that position. It
only says that that was the ground upon which the vessels had been
condemned. But I think the intent was to convey the notion that that
was the attitude taken by the United States. The paragraph would be
meaningless had it not that intent.

It is literally true that libels were filed, in the cases of the first seiz-
ures, against the British vessels in the United States District Court of
Alaska, and that they were condemned; and the judge in his charge
to the jury, or in his opinion giving judgment, went into the case and
stated that Russia by this Ukase had acquired a territorial dominion in
Bering Sea. Hestated thatas his opinion; but hasa judgein the United
States District Court of Alaska an authority to speak in an interna-
tional 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 land;
which they would be very sorry to be.

Where is the position of the United States in reference to this con-
troversy 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. You 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 U nited States, he would be told that he had no rem-
edy; 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. Hehad had a fair trial; he had had the same oppor-
tunity 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. Iam 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 cer-
tain sense to foreign nations, that their citizens, 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 city
zens of the country. That is the extent of the foreign obligation.

Sir CHARLES RUSSELL. 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 wiil 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 Gov-
ernment did protest to the United States that this course was pursued,
and that it was pursued by the authority of the United States in giv-
ing instructions to her cruisers; and they ask now “ Tell us the author-
ity 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 1 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 18',.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 responsi-
bility 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. I 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 pro-
nounced 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.
itis 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 contains some reference to my
argument of Friday, and in certain respects misrepresented me to such
an extent that I feel hardly at liberty to pass it without notice. I can-
not, of course, think myself called upon to correct.all misrepresenta-
tions 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 repre-
sented meas 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 responsi-
ble 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 obser-
vation might in good taste have been better withheld—of any two-
penny justice of the peace. But, of course, I did not apply that obser-
vation to Judge Dawson, or intend in any manner to make any dis-
paraging reference to him. I did not even say that his judgment was
incorrect. On the contrary, his judgment, so far as related to the con-
demnation of the vessel, was a sound and correct judgment, which in
the due course of my argument, [shall endeavor to defend; and I have
no doubt it would have been affirmed to that extent by the Supreme

109

110 ORAL ARGUMENT OF JAMES C. CARTER, ESQ.

Court of the United States. Nor did J, 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 inti-
mate 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 to other
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 Russia 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 Russian
pretentions, closing that sketch with a statement of the Ukase of 1821
and of its real nature. I then came to consider the view which the
United States take in relation to the Ukase of 1821 and the rights
which might have been acquired under it; and I stated that, according
to the views of the United States, that Ukase never asserted a right of
sovereign dominion over any part of Bering Sea, but that its sole pur-
pose, 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. Isaid 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 [observed that although a somewhat difter-
ent view had been taken by the learned District Judge of Alaska, the
United States had never adopted that view in its diplomatic communica-
tions with Great Britain.

I further said that there was an endeavor in the British Case to
impute to the United States the view that Russia had acquired a sover-
eign dominion over that sea, intimating that the United States had origi-
nally based its position upon that view and had afterwards shifted its
ground. That assertion I denied, and it was at that point that the Tri-
bunal rose. It is my purpese now to support that demal, 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 Salis-
bury’s complaint, which will be found at page 162 of the first volume of
the American Appendix. I have already referred to this ietter, 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 pur-
pose of enforcing the American municipal law which forbade the taking
of seals and by which it appeared also that the seizures had been effected
ata greater distance than three miles fromthe shore. Itis 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 obser-
vations:

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 Gov-
ermment of the United States will admit that the seizure and condemnation of these

ORAL ARGUMENT OF JAMES C. CARTER, ESQ. iat

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 compensation
to those who have suffered in consequence, and issue immediate instructions to their
naval officers which will prevent a recurrence of these regrettable incidents.

Mr. Bayard’s first communication in relation to these seizures will be
found at page 168. He then had before him the letter which I have
just 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 concilia-
tory measures. The terms in which he did this will be found in the let-
ter to which I now eall 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 RuSSELL. My friend has not observed the dates; that
is a month earlier than the date of the communication to Lord Salis-
oury. Lord Salisbury’s letter is in August, and that is in September.

Mr. CARTER. [ 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 whieh 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.

No. 256. ] DEPARTMENT OF STATE, Washington, August 19, 1887.

Str: Recent occurrences have drawn the attention of this Department to the neces-
sity 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 coiperation.

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 number.

Under these circumstances, and in view of the common interest of all nations in
preventing the indiscriminate destruction and consequent extermination of an ani-
mal 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 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

‘ Identic instructions were sent to the United States ministers to Germany, Great
Britain, Japan, Russia, and Sweden and Norway.

112 ORAL ARGUMENT OF JAMES C. CARTER, ESQ.

such methods as at present are pursued, and which threaten the speedy extermina-
tion 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., TE BAYARD s

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 indis-
tinctly 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 adininistration of President Harrison; and
the first statement under that adininistration of the grounds upon which
the United States based the assertion of its rights connected with the
sealing industry was,as the learned Ar uns ators will remember, set forth
by Mr. Blaine in his note of January 22, 1890, which is found on page
200. That letter I have onceread. 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 Russia engaged in the industry of preserving
them, cherishing- them, and taking the annual increase on the Pribylof
Islands at avery 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 Russia 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 sealing 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. Blainein 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 under-
stood, 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 if:

ORAL ARGUMENT OF JAMES C. CARTER, ESQ. 113

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 exclu-
sive 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. Blaine further argues that the Jaw 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
Russian claims in Bering Sea, and undertakes to answer and refute
Lord Salisbury’s view im 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 Brit-
ain, 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 Brit-
ain 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 inten-
tionally 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 possi-
bility 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 Com-
pany, and quite suggestively that name is given to the Company by Lord Salisbury

Bes, CooCEr 3

114 ORAL ARGUMENT OF JAMES C. CARTER, ESQ.

in the dispatch to which lam replying. While, therefore, there may have been a
large amount of lawful whaling and fishing in 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
object was to preserve for the exclusive use and enjoyment by Russian
subjects the benefits of the fur trade, the 100-mile exclusion being an
instrumentality for that purpose.

The next important note in the correspondence is that of August 2,
1890, by Lord Salisbury; but that again is confined to this discussion of
Russian rights; and there is nothing, I believe, pertinent to the point
which I am now upon, namely, that of showing what the distinct atti-
tude of the Government of the United States was. This was in the
course of the correspondence and controversy between Mr. Blaine and —
Lord Salisbury concerning the extent of the Russian pretensions and
the extent to which they had been acquiesced in. To that Mr. Blaine
rejoins in a letter beginning on page 263, and it is that letter which
contains the single observation which might be taken as a justification
for the statement that Mr. Blaine had put the American claims in the
controversy upon the basis of an acquisition by Russia and a transmis-
sion to the United States of a sovereign dominion over Bering Sea.
That observation [ have already alluded to, but I return to it again.
It is found on page 265.

The United States contends that the Behring Sea was not mentioned, or even
referred to, in either treaty, and was in no sense included in the phrase “ Pacific
Ocean”. If Great Britain can maintain her position that the Behring Sea at the
time of the treaties with Russia of 1824 and 1825 was included in the Pacifie Ocean,
the Government of the United States has no well-grounded complaint against her.
If, on the other hand, this Government can prove beyond al]l doubt thatthe 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.

Those observations standing alone might fairly be taken as indicat-
ing that Mr. Blaine had put the whole position of the United States
in “this controversy upon its ability to maintain that Russia had acquired
by the Ukase of 1821, and other acts, sovereign 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
sueceeded in making out her case, the United States, so far as that ques-
tion was concerned, would have no ground of complaint against her;
and so, on the contrary, if the United States succeeded in making out,
her case, Great Britain, so far as that question was concerned, would have
no just ground of complaint against the seizures; but that he did not
mean to change his ground, becomes perfectly apparent from his more
distinct assertions near the close of the same letter; and I must again
read them.

The repeated assertions that the Government of the United States demands that
the Behring Sea be pronounced mare clausum, are without foundation. The Govern-
ment 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 nomeans the equivalent of declaring the sea,
or any part thereof, mareclausum. Wor is it by any means so serious an obstruction
as Great Britain assumed to make in the South Atlantic, nor so groundless an inter-

ference with the common law of the sea as is maintained by British authority to-
day in the Indian Ocean. ‘The President does not, however, desire the long post-

ORAL ARGUMENT OF JAMES ©. CARTER, ESQ. 115

ponement which an examination of legal authorities from Ulpian to Phillimore and
Kent would involve. He finds his own views well expressed by Mr. Phelps, our late
minister to England, when, after failing to secure a just arrangement with Great
Britain touching the seal fisheries, he wrote the following in his closing communi-
cation to his own Government, September 12, 1888:

“Much learning has been expended upon the discussion of the abstract question of
the right of mare clausum. Ido 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 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 itis suggested that we are prevented
from defending ourselves against such depredations because the sea at a certain dis-
tance 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 clausum; and the right
of self-defense as to person and property prevails there as fully as elsewhere. If the
fish upon Canaclian 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 insuch acase? Yet that process
would be no more destructive, inhuman, and wanton than this.

“Tf 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 interna-
tional law has arisen from precedents that have been established when the just occa-
sion 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 lhussian pretentions, instead of upon a principle of property right.
That will be found on page 290. He says in a paragraph near the bot-
tom 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 itis said that this prohibition, worthless in itself,
acquired validity and force against the British Government because that Govern-
ment can be shown to have accepted its provisions, The ukase was a mere usurpa-
tion; 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 correspond-
ence 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 Russia; but he attempts to do it
there, and is very sharply corrected by Mr. Blaine in a subsequent note
of April i4, 1891,which will be found on page 295. LIread from page 298:

In the opinion of the President, Lord Salisbury is wholly and strangely in error in
making the following statement:

“Nor do they [the advisers of the President] rely, as a justification for 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
resorting 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 inci-

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 interest 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 theretufore 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 origi-
nally held by Russia, and while held by Russia had been recognized by
both Great Britain and the United States, and that the possession of
this property interest by the United States gave it the right—a right
which every Government has—to protect its property wherever that
property has the right to be, and by such measures as are necessary
tor the purposes of such protection.

Now then we have out of this case, as far as I am capable of putting
out of it, any argument as to whether Russia ever acquired a sovereign
jurisdiction over any part of Bering Sea, or whether she ever trans-
mitted 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. Wedo not suppose that any such
assertion of jurisdiction was ever made by Russia. But do I mean that
this matter of Russian 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 impor-
tance in this controversy? No; I donotinean 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 ques-
tion mainly turus upon what rights Russia 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
moditied, to what extent. Iam 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 contro-
versy, and therefore I should do injustice to the general argument of the
question if Ishould assign a disproportionate space to it; and I could
not go through with the argument and refer to all the diplomatic com-
munications 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, [ could not implant such an impression of the particular inci-
dents 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 exam-
ine this diplomatic correspondence and to examine the grounds taken

ORAL ARGUMENT OF JAMES C. CARTER, ESQ. Lib4,

by the American Government in the various communications upon this
subject by Mr. Blaine. Icould not lessen that labor 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 Russia with
Bering Sea and its coasts and Islands, and I think that I succeeded in
showing that Russia prior to 1821 had appropriated to herself all the
coasts and islands of that sea and all their resourees 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 appropria-
tion. Wedo not assert an appropriation of the products of the sea
unconnected with the shores. We assert no such appropriation on the
part of Russia. Russia asserted the right to protect her trade and
industries 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 Russia.

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 sufli-
ciently strong.

The inquiry then arises how far the assumption of authority by Rus-
sia in the Ukase of 1821 and her acts in support of it were modiiied 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 allislands, ports, and gulfs including the whole of the northwest coast of America,
beginning from Behring’s Straits to the 51° of northern 1: ititude, also from the Alen-
tian Islands to the eastern coast of Siberi a, 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 MelvilJe on the 26th of December, 1821. I am reading from the
Appendix to the Case of Great Britain, volume 2, page 12:

118 ORAL ARGUMENT OF JAMES C. CARTER, ESQ.

Lord Stowell to Lord Melville.

GRAFTON STREET, LONDON, December 26, 1821.

My Drar Lorp: I have perused 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 acknowledved title of
territorial and exclusive possession of the portions of the globe to which they relate.
Tam myself too slightly acquainted with the tacts 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
Reeulations 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
and large portions of the sea adjoining.

I know too little of the history of their connection with either islands or continents
to say with confidence that such a possession has in this case been acquired. I con-
tent myself with remarking that such possession does not appear in the opinion and
practice of States to be founded exactly upon the same principles in the cases of
islands and continents. In that of islands, discovery alone has usually been held
sufticient to constitute a title. Not so in the case of continents. In the case of
the Sonth American Continent the Spaniards and Portuguese resorted to grants from
an authority which in that age was universally respected, and continued in respect
till subsequent possession had confirmed their title. But I think that it has not been
generally held, and cannot be maintained that the mere discovery of a coast gives
the right to the exclusive possession of a whole extensive continent to which it
belongs, and Jess to the seas that adjoin to a very considerable extent of distance.
An undisputed exercise of sovereignty over a large tract of such a continent and for
a long tract of time would be requisite for such purposes. I am too ignorant of par-
ticular facts to say how far such principles are justly applicable to such cases. I
observe that by these Regulations the commerce in these islands, continents and
adjoining seas is declared to have been granted exclusively to Russian subjects; who
the grantor is, is not expressly declared. If, as is probable, the Autocrat of Russia
is meant, the inquiry then reverts to the question respecting the foundation of such
an authority, and thinking that that question must be first disposed of, I content
myself with observing upon the Regulations theimselves that they are carried to an
extent that appears very unmeasured and insupportable.

I have, etc., c STOWELL.

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 regu-
lations for the purpose of protecting commerce and the industries of a
region over which it was assumed that Russia 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 sover-
eignty of the nation which had issued them over the shore. Right
there I may also quote an opinion by Sir Robert 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 Robert 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-hearing
animals which it produces. Various establishments in different parts of this terri-

tory organized a system for securing the preservation of these animals, and exercised
for these purposes a control over the native population. This was rightly contended

islands—portions of the continent—

ORAL ARGUMENT OF JAMES C. CARTER, ESQ. 19

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 the whole terri-
tory 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 one product, and
one which could be easily gathered by one nation, were fully appropri-
ated by Russia 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, 1822.

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 sub-
jects 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 per-
sons 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 ter-
ritories could by the acknowleged law of nations, be excluded from navigating within
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.

LONDONDERRY,

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 two-fold 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 pro-
test will be found on page 152 of the first volume of the Appendix to
the Case of the United States. It seems that the Ukase was trans-
mitted on the 11th of February, 1822, by Mr. Poletica, the Russian
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 Srate, Washington, February 25, 1822.

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 te the commerce of foreigners in the
waters bordering on the establishments of that company upon the northwest coast
of America.

Iam 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 Jatitude on this continent, and a
regulation interdicting to all commercial vessels other than Russian, upon the penalty
of seizure and confiscation, the approach upon the high seas within 100 Italian
miles of the shores to which that claim 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 them in that state. It
was expected, before any act which should define the boundary between the terri-
tories 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 citi-
zens 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
Russian Minister M. de Poletica, in a note which is found on page
133, Volume I, of the Appendix to the Case of the United States and
which I have already read and will therefore not repeat. I will
observe in regard to it only that the Russian Minister in that note
says that this Ukase is not an attempt to make the Bering Sea, or
any part of it, mare clauswm, but that it is adopted as a measure of
prevention to protect the industries of Russia and her commerce on
that sea.

Sir CHARLES RussELL. We think that answer of de Poletica is very
important, and we do not admit that that is a correct summary of it.

Mr. CarvER. Do you prefer that it should be read in full.

Sir CHARLES RUSSELL. Just as you please about that.

Mr. CARTER. I am quite willing that it should be read now.

Sir CHARLES RUSSELL. Oh no!

Mr. CARTER. Negotiations at once began between Russia Great
Britain and the United States in reference to the assumption of
authority contained in this Ukase and they were at first jointly con-
ducted. 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 North
American continent—a suggestion of a doctrine subsequently known
among statesmen as the Monroe doctrine. Mr. Monroe was then Pres-
ident of the United States. In consequence of that suggestion Great
Britain withdrew trom 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 Russia 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 here-
after 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. Rush, 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. Rush, dated London, January 9, 1824.

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 be 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 this subject.

The resumption of its original course by this Government has arisen chiefly from
the principle which our Government has adopted, of not considering the American
continents as subjects for future colonization by any of the European powers—a
principle to which Great Britian does not accede.

I have informed the Secretary of State of the above intention of this Government.
It will produce no alteration in my endeayors to obtain in negotiation here a settle-
ment of the points as between the United States and Great britain, respecting the
Northwest coast, in manner as my instructions lay. them down to me.

And Mr. Canning’s version of the same affair will be found in the
place just indicated by Mr. Justice Harlan. Mr. Canning says ina
note to Sir Charles Bagot:

These reasons had induced us to hesitate very much as to the expediency of

acceding to the proposition of the United States for a common negotiation between
the three Powers; when the arrival of the Speech of the President of the United

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 coloniza-
tion 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 arguinent 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 eall attention to the
instructions from the United States Government which will be found
in a letter from Mr. John Quincey Adams to Mr. Minister Middleton on
page 141, Vol. I, Appendix to the Case of the United States. 1 think
J ought to read the whole of that letter.

Mr. Adams to Mr. Middleton.

No. 16.] DEPARTMENT OF STaTE, Washington, July 22, 1823.

Sir: [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 inelosed, 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-iifth 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
coust.

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 tar 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 dis-
cussion 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. 1t 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 uncon-
tested 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, Malespier, and Vancouver. No European nation has yet formed

ORAL ARGUMENT OF JAMES C. CARTER, ESQ. 123

an establishment upon the immense extent of coast from Cape Mendocino to the
fifty-ninth degree of latitude. Beyond that limit the Russian factories commence,
most of which are scattered and distant from each other, like the factories estab-
lished by the European nations for the last three centuries on the coast of Africa.
Most of these little Russian colonies communicate with each other only by sea, and
the new denominations of Russian America, or Russian possessions in the new con-
tinent, must not lead us to believe that the coast of Behring’s Bay, the peninsula of
Alaska, or the country of the Ischugatschi have become Russian provinces in the
same sense given to the word when speaking of the Spanish provinces of Sonora or
New Biscay.” (Humboldt’s New Spain, Vol. I, Book 3, chap. 8, p. 496.)

In Mr. Poletica’s letter of 28th February, 1822, to me, he says that when the
Emperor Paul I granted to the present American Company its first charter, in 1799,
he gave it the exclusive possession of the northwest coast of America, which belonged
to Russia, from the fifty-fifth degree of north latitude to Behring Strait.

In his letter of 2d of April, 1822, he says that the charter of the Russian Ameri-
can Company, in 1799, was merely conceding to them a part of the sovereignty, or,
rather, certain exclusive privileges of commerce.

This is the most correct view of the subject. The Emperor Paul granted to the
Russian American Company certain 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
anew settlement at the same place was made in 1804.

In 1808 Count Romanzoff, being then Minister of Foreign Affairs and of Commerce,
addressed to Mr. Harris, consul of the United States at St. Petersburg, a letter com-
plaining 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 disposi-
tion 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 prom-
ontory 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 north west coast, and that the proposal of measures for con-
fining the trade of the citizens of the United States exclusively to the Russian settle-
ment at Kadiak and with the agents of the Russian American Company had been
made by Count Romanzoff under the impression that they would be as advantageous
to the interests of the United 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 claiin of Russia.

This trade has been shared also by the English, French, and Portuguese. In the
prosecution of it the English settlement of Nootka Sound was made, which ocea-
sioned 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 mouth
of the Columbia River was made in 1811, which was taken by the British 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 Octover, 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 of ten 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 con-
tinuity of their possessions from the Atlantic to the Pacific Ocean, but as it offers
their inhabitants the means of establishing -hereafter water cor unications 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 traftic
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 sub-
joined, 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 nego-
tiate 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 forwarded 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.

Tam, 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.

Ant. I. In order to strengthen the bonis 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.

Arr. 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 Sonth 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. III. 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, north,
nor by Russian subjects, or under the authority of Russia, south of the fifty-fifth
degree of north latitude.

(For other inclosures, see American State Papers, Foreign Relations, vol. v, pp.
436-438. )

Now the learned Arbitrators will perceive from that letter, which is
very instructive in reference to the views of the United States Govern-
ment at that time, that the only serious and practical objection on the
part of the United States to whatever pretensions were set up by
Russia in this Ukase of 1521, 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 North-
west coast. 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
ot the Columbia River, 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 Stberia—
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 com-
merce. 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
engaged in trade on that coast; have visited it continually ever since
we were an independent nation, and such rights as we have springing
out of trade with the coast, added to the rights of prior discovery, con-
stitute 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

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 Amer-
ican 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 avery consiil-
erable part of this disputed region. Practically the whole of the
interests that were affected by this dispute centred upon that North-
west coast trade. Aud 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 vefers 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 terri-
tory 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 lairweather; 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 606th 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 mer-
chant 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:

We have no doubt but Russian fur-hunters formed establishments, at an early
period, on the Aleutian Islands and neighboring coast of the continent; but we are
equally 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 state-
ments of Cook, Vancouver, Mears (Mirs), Portlock, a 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 commer-
cial interests. And it appears equally clear that, so far as the posses-
sions 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 com-
plaint on the part of the United States; and that, so far as respects

ORAL ARGUMENT OF JAMES C. CARTER, ESQ. 12%

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 cireum-
stances and with those views on the part of the United States and on
the part of Nussia that the Treaty of 1824 was coneluded, 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 restric-
tions and conditions determined by the following articles.

Art. II. With aview of preventing the rights of navigation and of fishing exer-
cised 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 w here there is a Russian establish-
ment, 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 Northw est coast.

That is the important part of the Treaty of 1824, so far as the pres-
ent discussion is concerned; and the question is, whether the terms
“ Pacitic Ocean” or “South Sea” include Bering Sea or excludeit. 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 circum.
stances 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 interpreta-
tion 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 seuth of the Aleutian Islands,
and which, therefore, washes only this disputed territory along here
(pointing tothe 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 preten-
sion 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 Séa.” 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, Limagine 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 appre-
hend 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
inter that Russia made a surrender without consideration of her un-
questioned 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 Lam 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 per-
ceived, 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 con-
sequence 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 JAMES C. CARTER, ESQ. 129

The communication of June 12, 1824, presented to me by the directors of the com-
pany, containing their remarks on the consequences which may result from the
ratification of the convention concluded April 5, 1824, between our Court and the
North American Republic, was communicated by me at that time in the original to
the minister in charge of the Ministry of loreign Affairs. Having now received
from him the information that the recorded protocol of the proceedings of the special
committee which examined this subject by imperial order has received the full and
entire approval of His Imperial Majesty, 1 think it necessary to communicate to the
board of administration of the Russian American Company, for their information,
copies of the above-mentioned communication of Count Nesselrode to me, and also
the proceedings of the committee of July 21, 1824, inclosed in it, together with a
draft of a communication to me, prepared by His Excellency; which was also read
in the above-named committee and was left unsigned after it had been given final
consideration.

From these documents the board will see that, for the avoidance of all misunder-
standings in the execution of the above-mentioned convention, and in conformity
with the desire of the company, the necessary instructions have already been given
to Baron Tuyll, our minister at Washineton, to the effect that the northwestern
coast of America, along the extent of which, by the provisions of the convention,
free trading and fishing are permitted subjects of the North American States, extends
from 54° 40/ northwards to Yakutat (Bering’s) Bay.

Lieut. Gen. KANKRIN,
Minister of Finance.
Y. DRUSHININ,
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 communicatioa 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:

But seeing, on the other hand, that the restrictions stated in the opinion of the
Minister of Finance and of State Councilor Drushinin put an end to all the com-
plaints of the American Company, the majority of the members of the committee
have found it necessary to investigate the nature of those restrictions, in order to
ascertain how far it is possible to insist upon them without prejudice to the rights
and advantages accruing from the treaty of April 5-17.

As the proposed restrictions refer to two chief points lying under different paral-
lels of latitude, namely:

First. To Yakutat (Bering’s) Bay, under parallel 59° 30’.

Second. To Cross Bay or Sound (Cross Sound) under parallel 57°-—the American
Company desires that subjects of the United States may not be permitted to hunt or
fish in those bays; therefore, the majority of the members of the committee resolve:

That, as regards the first of these points (Bering’s Bay), it lies in a latitude where
the rights of Russia have never formed a subject of dispute, and that this important
circumstance permits us to include it in the general declaration concerning the
Aleutian Islands and the other northern places.

That, as regards the second (Cross Sound), however, as it lies under the fifty-
seventh degree of north latitude, and consequently within the limits of those islands
and regions to which Russia’s right of sovereignty has been disputed, it is imprac-
ticable to apply the same rule or to base the claim, of which it must be the subject,
on any other satisfactory proof.

That apart from this, in order to exhaust all the measures showing the care of the
Government of His Imperial Majé@sty for the interests of the Russian American Com-
pany, it is still possible to instruct Gen. Tuyll to use every effort to persuade the
Washington Cabinet that, by accepting this restriction relating 10 Cross Sound, it
will prevent ail unpleasant collisions between the subjects of the two powers. That
Gen. Tuyll must not, however, make this last proposition until he is convinced that
it will be accepted, and that it will not deter the Government of the United States
trom ratifying the treaty of April 5-17.

This resolution was unanimously adopted by all the members of the committee.

St. Petersburg, July 21, 1824,

NESSELRODE.
G. L. KANKRIN.
SPERANSKY.
DRUSHININ.
POLETICA,

BS, PT x11——9

130 ORAL ARGUMENT OF JAMES C. CARTER, ESQ.

Sir CHARLES RUSSELL. This is the first occasion on which a docu-
ment has been referred to, the correctness of which is impugned. Itis
well that 1 should call the attention of the Tribunal at once to it. My
friend has read “together with a draft of communications to him pre-
pared 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
J 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 Il, Lil 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 w hic th washes that coast. We see
from the papers which I have read, and which emanated from the Rus-
sian Government, the interpretation which that Government put upon
this term.

T read also paragraph 7, on page 157, Proceedings of the Conference
held June 1, 182

That as the sovereignty of Russia over the coasts of Siberia and the Aleutian
Islands has lone 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 Amer-
ican subjects could not by virtue of the second article of the treaty of April 5-17,
land at the maritime places there nor carry on sealing and fishing without the per-
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 Kam-
chatka 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 remem-
bered 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

immediate interview, in consequence of instructions received yesterday from his
Court. He came, and after intimating that he was under some embarrassment in

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 con-
vention, an explanatory note purporting that the Russian Government did not under-
stand 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, I 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 con-
vention could be made no otherwise than by a new convention, and that the con-
struction 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 betore 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 con-
vention..... If, therefore, he would permit me to suggest to him what I thought
would be his 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 Govern-
ment 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 apprehen-
sion 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 head¥, At least the Imperial Government might wait to see
the operation of the convention before taking any further step, and J was confident
they would hear no complaint resulting fromit. 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 forward-
ing is the following: ;

Explanatory note to be presented to the Government of the United States at the
time of the exchange of ratifications, with a view to removing with more certainty
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 in general on the
Northwest Coast of America to 59° 30' of north latitude are positively excepted from
the liberty of hunting, fishing, and commerce stipulated in favor of citizens of the
United States for ten years.

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 occurred 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
instructions upon what he shall definitely do on the subject.

Sir CHARLES RUSSELL. There is a passage following that—the pas-
sage 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 Jan-
uary 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 trans-
action bearing upon the interpretation of the Treaty. What is the sub-
stance of this transaction? It means that members of the fussian-
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 Company had there,
and they instructed their Minister in Washington to make representa-
tions to the United States Government. Baron Tuyill 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 interpreta-
tion 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 Depart-
ment 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 embar-
rassing 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 enter-
tain. The best thing is to say nothing about it, and let this Treaty be
ratified as it stands. Lf, 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 an 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. CARTER, 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: “TI
wiil 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 Gov-
ernment directed him to file his note, and he did—he filed a note which
explicitly stated his interpretation. That 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 after-
wards 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 and 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 ?

Mr. CARTER. It was significant in the way I have stated. Itsaid 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 bind-
ing; for at some other tame 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, vi must confess, would be astonishing on the pait
of Mr. Adains, if he thought that at any time the American Govern-
ment 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 repre-
sentatives of two great nations approaching each other in that way.

Mr. Adams did not put himself upon this ground and say: ‘ You
must not interpret my language, or my silence, beyond what it may
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 different 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
Tr Sede , found on page 39 of the first volume of the American A ppendix—

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 [ 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 ealled the Pacific
Ocean, or South Sea, the respective citizens or subjects of the high contrac ting

_ Powers shall be neither disturbed nor restr ained, 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 tr ading with the natives, saving always the
restrictions and conditious determined by the following articles.

134 ORAL ARGUMENT OF JAMES C. CARTER, ESQ.

Whether the word “ Grand” belongs there before the word ‘‘ Ocean”
or not, is of no consequence; [assume that the same thing was intended
by the Articlesin each Treaty. That was the Treaty negotiated between
Great Britain and Russia. Now, applying the same method of inter-
pretation 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 Gov-
ernments 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 North-
West Coast, they placed special importance on the maritime pretension
of one hundred miles over the sea. The negotiators representing Great
Britain were instructed that that was a point which they must specially
and, primarily, attend to, and that it was of more 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 J inclose you a copy.

1. Of the “projet” which Sir Charles Bagot was authorized to conclude and sign
some months ago, and which we had every reason to expect would have been entirely
satisfactory to the Russian Government.

2. Of a “contre-projet” drawn up by the Russian plenipotentiaries, and presented
to Sir Charles Bagot at their last meeting before Sir Charles Bagot’s departure from
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 man-
ner 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 ques-
tioned, 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 posi-
tive, and that it should stand forth in 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 treaty 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
whole civilized world, protest.

No specification of this sort is found in the convention with the United States of
America; and yet it can not be doubted that the Americans consider themselves as
secured in the right of navigating Behring Straits and the sea beyond them.

It can not be “expected that England Should receive as a boon that which the
United States hold as a right so unquestionable as not to be worth recording.

Perhaps the simplest course, after all, will be to substitute, for all that “part of
the ‘‘ Projet” and ‘‘ Contre-Projet ” which relates to maritime rights, and to naviga-
tion, the first two articles of the convention already concluded by the court of St.
Petersburg with the United States of America, in the order in which they stand in
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 con-
tracting 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 Iam 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 eall
your attention to the apparent omission in the English translation of
the treaty between Russia and Great Britain. The English transla-
tion 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 transl: ition 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 were duplicate dr atts, one in French and one in
English.

Sir CHARLES RUSSELL. There was one in English and one in
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. Lresume, 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 Ameri-
can 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 agree-
meut 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. ate understood it other-
wise 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 tothe United States, we will be satisfied” ; and, he seems to imply,
that the right of British ships to navigate freely in the Bering Sea and
across the Bering Straits is granted in the text of the American tr eaty.

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 PRESIDEN Nr. He made a mistake, in your opinion.

Mr. CaRvTER. I 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. CARTER. He did not construe it as I construe it. I 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 Govern-
ment, and a settlement ‘having been proposed with the Russian Gov-
ernment by adopting the first two articles of the American tre aty, with-
out making any interpretation of them, adopting them as they stood, it
submit that j in alopting that agreement between the United States and
Russia, the interpretation of the United States and Russia was adopted
with it; and if I have sueceeded 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. Le

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 under ‘stood 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 accord-
ing to the significance in which they were understood by the Govern-
ments of Great Britain and Russia: but I have not myself discovered
any evidence here tending to show that the terms of ‘the Treaty were
understood by the Kussian Government and the Government of Great
Britain differently from what they were understood by the Government
of the United States and the Government of Russia.

Something has been said here to the effect that the language of this
treaty as contained in the French original and in the E1 lish original
is different. It may beso. What I mean is that one cannot be claimed
to have any superiority over the other in establishing any particular
interpretation. The Treaty was drawn up in both languages, and signed
in both languages; and if the American is to be regarded as a transla-
tion of the French, it is a translation which is incontestible as between
the parties, as being yr a correct one, because it bears the signatures of
both; and, speaking ¢ on the subject of translation, it brings tor my mind—

Sir CHARLES RUSSELL. I do not think there is any ‘naterial differ-
ence between them.

Mr. CARTER. Perhaps not. Speaking upon the subject of transla-
tions, 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 inexplicable manner by a person whom we had employed to trans-
late these documents, and who had made translations of them, indis-
putably fraudulent, because there were interpolations contained in them
for which there was no corresponding language in the original, the
question arose, what are we to do with these papers? They must be
corrected in some form. Very fortunately for us—although 1 know my
learned friends would not suppose that we were in any manner charge-
able with such fraudulent translations—but I say very fortunately for
the United States, they had incorporated into the same book, that is,
their original Case, which contained these erroneous translations, photo-
graphs of the original Russian documents; and of course we had put
it into the power of our adversary to convict us of any misinterpreta-
tion, or mistranslation, which might have been given to those documents.
We were scarcely the less mortified on that account; and conceived it
to be the best course on the whole to absolutely withdraw the papers

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 commentupon that. Thatexplanation 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 inter-
pretation of this treaty; and I submit, upon the views that I have pre-
sented, that the interpretation of Mr. Blaine, which limits the meaning
of the Pacific Ocean or South Sea, toso 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? Not at
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 182 21, 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 Gov-
ernment 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, wa
not disturbed or displaced by the treaties of 1824 and 1825, and he
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 ‘industr y;

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 legis-
lation 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 peo-
ple; one of them being an assertion of sovereign jurisdiction, the other
110 assertion of sovereign jurisdiction at all, but simply a right of self-
protection and self: detence, 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 ques-
tions which are submitted to the Tribunal.

I 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 follow-
ing 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
detend 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?

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 excep-
tional 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 fish-
eries require the exercise of something which they choose to eall
jurisdiction.

5. 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?

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 ordi-
nary three-mile limit;” and, of course, property thus situated neces-
sarily supposes some power or authority to protect it there, and there-
fore 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 protec-
tion and preservation of the fur-seal in, or habitually resorting to, the Behring Sea,
the Arbitrators shall then determine what concurrent Regulations outside the juris-
dictional 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 con-
templates them as such.

It will therefore be seen that this confusion between these two sub-
jects has found its way into the draft of this treaty.

Having concluded my argument in relation to the rights of jurisdic-
tion 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 te 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” ete., 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 ering Sea, beyond
what are commonly termed territorial waters. She did, at all times since the year

ORAL ARGUMENT OF JAMES C. CARTER, ESQ. 141

1821, assert and enforce an exclusive right in the ‘‘seal fisheries” in said sea, and
also asserted and enforced the right to protect her industries in said “ fisheries” and
her exclusive interests in other industries established and maintained by her upon
the islands and shores of said sea, as well as her exclusive enjoyment of her trade
with her colonial establishments upon said islands and shores, by establishing pro-
hibitive regulations interdicting all foreign vessels, except in certain specified
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 assertion 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 Rehring Sea was not inelnded 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 men-
tioned, 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 f now proceed.

Iam glad to pass from these questions of the interpretation of trea-
ties concluded half a century ago, from questions which involve discus-
sions 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 publie
documents, and recur to rights which rest upon fundamental prin-
ciples; 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;
1 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 depeud upon the same evi-
dence 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:

First, that the United States have a property interest in 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 asser-
tion 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 juris-
prudence, as we know; but they are for the most part such as reiate 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 Ar eument—that
the fur-seals are wild animals—animals fere nature— 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 prop-
erty could not be established outside of municipal law, or that any-
thing, in order to be held as property, must have its characteristics as
property “rooted in municipal law.” Ido 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. Butit 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 accord-
ing 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 deter-
mined 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 interna-
tional 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 deter-
mined 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 prop-
erty and what shall not be property, and w hat 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. There-
fore, 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.]

ELEVENTH DAY, APRIL 19", 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 Lam 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. [had br iefly spoken yesterday to the effect that the rival con-
tentions 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
[ 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 sub-
stance 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, 1s the subject of property, we must go into a closer i inquiry into
its nature and habits; and if it be found that an animal, although com-
monly 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

vareful 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 Iam glad
to say is recognized by my learned friends on the other side, for they
reter to this very passage which I am about to read to the Tribunal,
says (Page 43 of our printed Argument):

Animals fer@ natura, 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 protection of law as any other property, and every invasion of it is redressed in
the same manner. ‘The difficulty of ascertaining with precision the application of

144

ORAL ARGUMENT OF JAMES C. CARTER, ESQ. 145

the law arises from the want of some certain determinate standard or rule by which to
determine when an animal is fere, vel domite nature. If an animal belongs to the
class of tame animals, as, for instance, to the class of horses, sheep, or cattle, he is
then a subject clearly of absolute property; but if he belongs to the class of animals,
which are wild by nature, and owe all their temporary docility to the discipline of
man, such as deer, fish, and several kinds of fowl, then the animal is a subject of
qualified property, and which continues so long only as the tameness and dominion
remain. It is a theory of some naturalists that all animals were originally wild, and
that such as are domestic owe all their docility and all their degeneracy to the hand
of man. This seems to have been the opinion of Count Buffon, and he says that the
dog, the sheep, and the camel have degenerated from the strength, spirit, and beauty
of their natural state, and that one principal cause of their degeneracy was the per-
nicious influence of human power. Grotius, on the other hand, says that savage
animals owe ail their untamed ferocity not to their own natures, but to the violence
of man; but the common law has wisely avoided all perplexing questions and refine-
ments of this kind, and has adopted the test laid down by Puffendorf, by referring
the question whether the animal be wild or tame to owr knowledge of his habits derived
from fact and experience.

In addition to that I will refer the Tribunal to two other authorities;
and those are decisions of British tribunals. The first is the case of
Davies vs. Powell, reported in Willes Reports, page 46.

In that case the question was whether deer caught in an enclosure
and having certain characteristics and used for certain purposes were
distrainable for rent. I may say to those not familiar with the special
doctrines of the common law of England that there was a process by
‘which a landlord might recover his rent by going upon the premises of
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
proots 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
venison from them and furnishing a supply of it to the market, deter-
mined that they were personal property and therefore distrainable for
rent. The ground was that although deer belong to the class of what
are commonly designated “ wild” animals, nevertheless when they are
taken and kept by man for the purposes for which it was proved in that
case they were kept, when they were treated by man in the way in which
they were proved to have been treated in that case, although wild ani-
mais, yet, being used for the same intents and purposes as domestic
animals are used, they should be classed as personal property just as
domestic animals are so classed.

Substantially the same decision was made in reference to the same
animals in the case of Morgan vs. the Earl of Abergavenny, which is
reported in the 8th Common Bench Reports. There the question was,
upon the death of the owner of a park, whether deer contained in the
park went to the heir of the owner, or to his executor; in other words,
it was the question whether they were attached to the soil, and formed a
part of the realty, and therefore were not distinctly personal property,
or whether they went to the executor, as being distinctly personal prop-
erty. In that case a great deal of evidence was gone into upon the trial
for the purpose of showing the habits of those particular deer, and how
they were kept, treated and used in that park. The whole question of
property in live animals was very much gone into and discussed. It
was shown by evidence that there was a large number of deer there;
that they were cared for; that at times they were fed; that they were
in the habit of resorting to particular places in the park; and that from

oS, eeaP SLE 10

146 ORAL ARGUMENT OF JAMES C. CARTER, ESQ.

time to time selections were made from the number for slaughter and
the victims were sold in the market for venison. All that was proved.
There was a verdict in that case for the plaintiff which was based upon
the charge of the judge to the jury that they might take this evidence
into consideration in determining the question whether the deer were
personal property or not; and that verdict for the plaintiff established
that they were the property of the executor; that they went to the
executor instead of to the heir, and were therefore personal property.
On a review by the whole court of that verdict it was decided that this
evidence was all proper and relevant to the question; that it was all
appropriate, and relevant to the point whether the animals were prop-
erty 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 are quite sufficient
to establish the only point for which I at present cite them, namely,
that in order to determine whether an animal commonly designated as
“wild” is the subject of property or not we must institute an inquiry
into the nature and habits of the animal—that the general terms
“wild” and “tame” are not sufficiently significant for the purpose;
that a close inquiry into its nature and habits with the view of seeing
whether such nature and habits and the uses to which the animal is
put are the same as in the case of ordinary domestic aninals. If so,
they are property the same as domestic animals are.

Now, then, what is the case with the fur-seal? So far as respects
municipal law—for I am now examining the question wholly as it is
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 whether animals more or less resembling the seal
may or may not be the subject of property have arisen and been decided
in municipal law. There have been a great many cases decided in
respect to animals as to which it was doubtful whether they belong to
the category of wild or tame—that is if you treat the terms “wild”
and “tame” as a juridical classification—or whether their nature and
habits were such as to make them properly the subjects of property.
Take the case of wild bees, for instance. There is an animal which les
quite near the boundary line which separates wild from tame animals;
and the inquiry was made at an early period in municipal law—a period
so early that tradition does not inform us of the first instance when
the case arose—whether that animal was the subject of property or not.
The same question has arisen in reference to wild geese, and swans.
Those animals belong to the classes commonly designated as “ wild”;
but they lie near the boundary. They may sometimes be reclaimed, as
it is called. The question has arisen and been determined whether,
when 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 munic-
ipal law has dealt with the cases of animals commonly designated as
“wild,” but which still have, in their nature and habits, some charac-
teristics which assimilate them to tame ones, and see what conclusions
municipal law arrives at. In general these conclusions are all exceed-
ingly well stated by the most familiar of authorities in the English law
and one of the most elegant and precise, [ mean Blackstone. I refer
to his treatment of the question., L 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 quali-
Jied, limited, or special property, which is such as is not in its nature permanent, but
mInay 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 fere natura, or of a wild nature, 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 fere natura, either per industriam, propter impotentiam, or
propter privilegium.

1. A qualified property may subsist in animals ferw nature, 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 famili-
arity, and are, therefore, say they, called mansueta, quasi manui assueta. But how-
ever 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 dominate
nature, and such creatures as are usually found at liberty, which are therefore sup-
posed to be more emphatically fere nature, 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
aman 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 revertendi, 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 tune, cum revertendi consuetudinem 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 fere nature; 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 orincluding
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 pro-
prietor; 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 coun-
tenance to this doctrine, that a qualified property may be had in bees, in considera-
tion 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 fere nature again, and are free and open to the first occupant that has
ability to sieze them. But while they thus continue my gualified or defeasible
property, they are as much under the protection ofthe law as if they were absolutely
and indefeasibly mine; and an action will lie against any man that detains them
from me or unlawfully destroys them. It is also as much felony by common law to
steal such of them dS are fit for food as itis to steal tame 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 toa
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 bea relic of the tyranny 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 fine; especially if it belonged to the King’s household, and was the
custos horreiregii, for which there was a very peculiar forteiture. And thus much of
qualified property in wild animals, reclaimed per industriam}.

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 avery 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 [ 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 returuing to their owners, such as pigeons,
hawks in pursuit of game, or bees swarming while pursued by their owners (Iust., 2,
1, 14, 15).

Then again, a very ancient authority in the Roman law, Gaius, says
(“Elements of Roman Law”):

Src. 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 rnle 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 returningis 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, 7. 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 isnot 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. 149

in a yard, because then they may be canght at any moment (lib. 3, sees. 14, 15, de
poss.). Third. Wild beasts, tamed artificially, are likened to domesticated animals
so long as they retain the habit of returning to the spot where their possessor keeps
them (donec animum, i. e., consuetudinem, revertendi habent).

And another very celebrated writer, not upon municipal law, but upon
the law of Nature and Nations, Puftendorf, 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 thatrelates to the body, fame and modesty of man.
So it signifies every injury, corruption, diminution or removal of that which is ours,
or inter ception of that, which in perfect justice we ought to have; whether given by
nature or conceded by an antecedent human act or 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 Bracton 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 tie 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 naturalt
occupanti conceditur. It is founded on the following doctrine: Granting the institu.
tion of the rights of property among mankind, those things are each man’s property
which no other man has a right 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 fere nature is, that it
is absurd to hold anything to be a man’s property which is entirely out of his power.
But Grotius 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 difticult for
the first occupant to retake it. He argues that when a thing has become the prop-
erty of any one, whether it be afterwards taken from him by the act of man, or
whether he lose it from a natural cause, he does net necessarily lose his right to it
together with the possession; but that it is reasonable to presume that the pr oprietor
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, not-
withstanding 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 ison
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-

150 ORAL ARGUMENT OF JAMES C. CARTER, ESQ.

position they become the property of whomsoever secures them, And they must be
held to have lost the animus reverfendi as soon as they have lost the habit of return-
ing. Suchare the doctrines of the Roman law, which are conformable to the English
law, with the qualification of Grotius, which is applicable to the case of all animals
Jere natura, that is to say, that a mark or coliar prevents the rights of the proprietor
of a wild animal being extinguished by its escape from his sight and pursuit.

I eall 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-
erty; but the Supreme Court reversed this judgment, saying:

The geese ought to have been considered as reclaimed so as to be the subject of
property. Their identity was ascertained, they were tame and gentle, and had lost
the power or disposition to fly away. They had been frightened and chased by the
defendant’s son, with the knowledge that they belonged to the plaintiff and the case
affords no color for the inference that the geese had regained their natural liberty as
wild fowl, and that the property in them had ceased. The defendant did not con-
sider them in that light, for he held them in consequence of the lien which he
supposed he had acquired by the pledge. This claim was not well founded, for he
showed no right in the persons who pawned them for the liquor so to pawn them,
and he took them at his peril. Here was clearly an invasion of private right.

I call attention to a later decision by the same Supreme Court of New
York which is reported in 15 Wendell’s Reports. So much as we have
printed of it is on page 117 of the printed Argument. The propositions
which are prefixed to the report in the case as being those which are
decided by it are these:

The owner of bees which have been reclaimed, may bring an action of trespass
against a person who cuts down a tree into which the bees have entered on the soil of
another, destroys the bees and takes the honey.

Where bees take up their abode ina tree, they belong to the owner of the soil, if
they are unreclaimed; but if they have been reclaimed, and. their owner is able to
identify his property, they do not belong to the owner of the soil, but to him who
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 appel-
late court. Mr. Justice Nelson, very celebrated in the United States
as one of the most distinguished judges of his time, delivered the opin-
ion of the court. He says:

ORAL ARGUMENT OF JAMES C. CARTER, ESQ. 151

Animals fere nature, 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 ferw nature, but when hived and
reclaimed, a person may have a qualified prope rty 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 are now a common species of property, and an article of trade, and
the wildness of their nature, by experience and practice, has become essentially sub-
jected to the artand power of man. An unreclaimed swarm, like all other wild ani-
mals, 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, and possesses the power to pursue them. Under
these circumstances, no one else is entitled to take them. (2 Black. Comm., 393; 2
Kent’s Comm., 394.)

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 earlof Abergavenny is pr inted 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 i in order that the Tr ibunal may observe the circum-
stances under which that case arose, and thus ascertain the precise
point which was decided. But Iwill call the attention of the Arbi-
trators to the paragraph near the bottom of page 125. I havesaid 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. Pow ell, 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 over-
looked. 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 inclosures
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 ev ‘idence 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 after-
wards 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,
dittered, as individuals in almost every race of animals are found, under any cireum-
stances 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 fere nature, 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, they were at least part of the thing demised.

(4) Their last ar gument was drawn ab inusitato, because there is no instance in
which deer have been adjudged to be distrainable.

152 ORAL ARGUMENT OF JAMES C.-CARTER, ESQ.

Then the learned judge goes on to say:

First. To support the first objection, and which was principally relied on by the
counsel for the plaintiff, they cited Finch 176; Bro. Abr., tit. ‘‘ Property,” pl. 20;
Keilway, 30 b, Co. Lit. 47 a; 1 Rol. Abr. 666; and several other old books, wherein it
is laid down as a rule that deer are not distrainable; and the case of Matlocke v.
Eastley, 3 Lev. 227, where it was holden that trespess will not lie for deer unless it
appears that they are tame and reclaimed. They likewise cited 3 Inst. 109, 110, and 1
Hawk. P. C. 94 to prove that it is not felony to take away deer, conies, etc., unless
tame and reclaimed.

Ido admit that it is generally laid down as a rule in the old books that deer,
conies, etc., are ferw nature, 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
aman brings an action for chasing and taking away deer, hares, rabbits, etc., he shall
not say swos, because he has them only for his game and pleasure ratione privilegit
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
ipsius A. freyit et intravit, § cwniculos suos cepit.”

The reason given for this opinion in the books why they are not distrinable is
that a man can have no valuable property in them. But the rule is plainly too general,
for the rule in Co. Lit. is extended to dogs, yet it is clear now that a man may have
a valuable property ina 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 prescrip-
tion, and were considered rather as things of pleasure than of profit; but now they
are frequently kept in ineiosed 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 ab 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 asthey are now. But now they are become as much asort 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 protit 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 per-
sonal estates, which were laid down when personal estates were but small in pro-
portion to lands, are quite varied both incourts of lawand 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 con-
trol 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 inten-
tion 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 wild-
ness, they cease to be property and may be taken by any person with-
out an invasion of property right. Imay 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 estab-
lished 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 des-
ignated 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 subject-
ing itself to the custody and control of that person.

Those are doctrines of the municipal law everywhere agreed to. There
is no dissent that I am aware of in reference to them; and being the uni-
versal doctrines of municipal law they may be taken, I apprehend, in
the absence of evidence to the contrary, as being the doctrine of inter-
national law.

Sir CHARLES RUSSELL. You must not assume that I agree to that.
You Say it is universally adinitted.

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 I do not mean to include him. So far as my
knowledge extends these doctrines are universally acceded to.

The PRESIDENT. Mr. Carter, what would be your legal 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 the 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 detini-
tion, 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 respect-
ing 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 deci isions of judicial
tribunals as founded upon the law of nature; that that doctrine is made
to turn upon the existence of an animus rev er tendi; but I may say that
this animus rerertendi must be of itself wholly unimportant. Itis 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 inten-
tion is to be inferred only from its habits. As long as the habit of return-
ing 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,
and is not the subject of property if he has not that habit, and ceases to be
the subject of property when once he has lost that habit? Why should
we say that? ‘There must be some reason for that. Can it be 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 ani-
mals, They are the product of the art, and the industry, and the
labor which is expended upon them; and being that product, the bene-
fit 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 argu-
ment.

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 ani-
mals and to supply the markets of society with venison from them, he
is awarded the rights of property inthem. That is because he is doing a
useful public service; because itis a public service that would not be per-
formed 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 productof honey indefinitely increased.
That is a great service to society. It furnishes it with an article of great
utility w hich otherwise it would uot have, or would not have in any-
thing 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. A155

bees, is rewarded by assiguing to the possessor of the place where the
hives are a right of property in the bees. When a hive swarms he can
pursue it away from his own premises upon the premises of another
man. It remains his property; and, as appears from the decision which
I read to the learned Arbitrators, if the bees go onto the premises of
another person who will not permit the owner of the swarm to go there
and take them, they still remain his property; and if they are appro-
priated by the owner of the land where they take refuge, he is guilty
of a trespass.

All of those privileges are awarded to the owner of bees as a reward
and encouragement to him for protecting the bees. It is an appeal to
the great motive of self-interest so powerful in human nature, and which
is the foundation of a great part of all the blessings of society. It is eall-
ing into activity a care, industry, labor, and diligence which otherwise
would not be exercised.

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. Itis only necessary to allude to a few of the characteristics
of the seal. In the first place he comes upon the Pribilof Islands volun-
tarily, and there submits himself absolutely to the cont: 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
toa 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 hun-
dred 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 indiserimi-
nately, 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 meask 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 those islands—the life of every one of those seals, be they
a thousand, or be they five 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 crea-
tion 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. here is no contradicting that position at all. It is not sus-
ceptible 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 estab-
lished.

Imight properly leave the argument here. The propositions in respect
to proper ty 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 dispo-
sition 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 itis not true, this suggestion that the instinct is
created in the case of the other animals. ‘The instinct to return is nat-
ural 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
instinets, 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 itis 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 atall. No matter how widely they may stray,
no matter how long they may be absent, so long as youcan say that the
animus revertendi remains, so long the property exists and will be pro-
tected.

In respect to seals, we may say, with a certainty and absoluteness
which cannot be declared with reference to other animals, that the ani-
mus revertendt 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 the 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 evi-
dence 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 pur-
poses 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
coast of America belongs to that particular herd and makes those islands

lis home,

158 ORAL ARGUMENT OF JAMES C. CARTER, ESQ.

The PresipEent. Mr. Carter, would you call the Pribilof Islands the
home of those seals. You have explained the animum revertend? 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 par-
ticular about the name which is applied to it. You may call it their
place of resort, their breeding ground, or what not. Whatever you
choose to call it, the fact is clear that they go there for the purposes of
breeding; they stay there five months in the year; they bring forth
their young thére; and you can go there and easily separate the super-
fluous males from the rest of the herd, for the purpose of affording
them to the commerce of the world. The name is of course unimpor-
tant. It is the facts which determine the question.

{ 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 ques-
tion there; because the arguinent can be strengthened. I have said
nothing about the original principles and rules upon which the institu-
tion itself of preperty stands. ‘The institution of property is anterior
to municipal law, or anterior, at least, to any considerable degree of
development of thatlaw. 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 per-
mitted 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, store-
houses, whole magazines of provisions while another is starving for
hunger? Those things eannot be arbitrary. Such an institution can-
not be the result of chance, cannot rest upon any arbitrary reasons. It
must stand upon great social grounds; and therefore it is very perti-
nent to inquire what those social grounds are.

I therefore invite this Tribunal to accompany me in a Somewhat larger
inguiry, 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?

My. Carrer. 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, who said
that property is robbery; and he was right. Property is robbery,
unless you can defend it on some great social grounds, and support it
upon the 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 exclu-
sive enjoyment of a thing; but that rather indicates the jural right
which belongs to it and is attached to it, aud 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. Itis very hard to define what property is. We
can feel it; it is hard to define it.

Savi igny says (page 51 of our printed Argument): ‘ Property accord-
ing 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 per uate

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, ete. (Civil
Government, Ch. V, § 25.)

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; who-
ever 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. (Lhering, 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 deseription 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 pecul-
jarly 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 insti-
tution 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 earry 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 insti-
tution 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 ani-
mal, 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 sup-
ply 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 war-
fare should be prevented. ‘Therefore, property at once becomes a neces-
sity, in order that there may exist peace and order in human society.

We may say, therefore, that the foundation of property, its first and
origina) 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 w ‘ould fre-
quently be found without a preprietor 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 con-
stitutions of positive law have distinguished from the rest by the well known appel-
lation 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
determinate owner.

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 invio-
lability, and when the vast majority of objects of enjoyment have been subjected
to private ownership, that mere possession is allowed to invest the first possessor
with dominion over commodities in which no prior 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 begin-
ning 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 particularthing. (Ancient Law, Ch. VIII, p. 219. )

And Lord Chancellor Chelmsford made use of the ae 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

yas a case where a trespasser entered the rounds 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 ai 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 awn 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 doc-
trine 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. |

he 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 under-
stand 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 every-
one, and there can be no contention respecting the ownership of such
things. Then, thirdly, the thing must be susceptible of exclusive appro-
priation. Take animals called game, for instance. There is no ques-
tion 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, any-
thing 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 uecessity 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

Bisse Pt xi 1g

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 every-
thing 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 hav-
ing 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 asit 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 sug-
gested by the learned President. Autbority 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. Itis 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,
but those prinviples 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 an 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

flicting 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 author-
ity, it was made, against all other European governments, which title might be con-
summated 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 New World were dicovered and there was danger of
so much strife, one of the Popes made a grant to Spain of all undiscov-
ered 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. CARYER. 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 pres-
ent 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 institution of prop-
erty 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 pericds of society, under rude social condi-
tions, 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 Tri-
bunal. 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 estabiish 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 tend-
encies 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 prin-
cipal 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 itis 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 asparse population under these
conditions. Butas 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 imperi-
ous and everywhere present motive of self-interest. No man will cul-
tivate fields, none will sow, if another be permitted to reap the prod-
uce. 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 insti-
tution 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, indi-
vidual, 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 imple-
ments, 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 individ-
ual property, has its origin; and I now wish to saysomething as to the
extent of the dominion over things which is implied by the term ‘prop-
erty”. 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 earthand 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? Itis 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 islands where they have their home. But how
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 intro-
duced, 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 util-
ized, 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 tempo-
rary loss, for the persons so engaged could direct their energies to
other forms of industry. So also of the persons engaged in the manu-
facture 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 par-
ticular 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 obliga-
tion 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 recog-
nizes 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 bless-
ings 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 dis-
position 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 indispensa-
ble 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 com-
merce. Man, impelled by that instinct which leads him to seek perfection, 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 Euro-
pean, and an immense trade is carried on in them. The Americas, 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 human-
ity. 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:

Src. 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 thei to his own use. The introduction
of dominion and property could not deprive men of so essential a right, and, conse-
quently, it can not take place without leaving them, in general, some means of pro-
curing 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 obtain-
ing 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, 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.. Fur-

ther, 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 i 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 Imight greatly amplify this. I will read a passage at the bottom
of page 62 from Félice 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, Dut 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
other. 2.4...
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 com-
merce of the world. It might go so far as to attempt to destroy the
plantations which produce the tree from which the gum is extracted.
Would such an attempt give any right to any other nation? Most
certainly it would! It would give a right to other nations to interfere
and take 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 man-
kind; 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 OF 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 may 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 com-
mits a violation of natural law, and gives other nations a right to
interpose and assert for themselves a claim to those blessings to which
they are entitled under the 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? Eng-
land, 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 man-
kind the duties which the possessors of such blessings ought to dis-
charge. 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 toask 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 man-
kind from an early period of history has been based upon these princi-
ples; 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, forinstance? 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 caseof Peruvian bark. This product iscommonly 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 coun-
tries 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 and 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; Isuppose 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 Govern-
ment 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. Iam 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 inhospit-
able nation, abounds in a blessing sufficient to afford comfort and conven-
ience 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 capableof 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 errone-
ous! 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. Letus 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. Theearth and all that
is therein is given to men for the support and comfort of their being; and though
all the fruits it naturally produces, and beasts it feeds, belong to mankind in com-
mon, as they are produced by the spontaneous hand of nature; aud nobody has
originally a private dominion exclusive of the rest of mankind in 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 Eng-
land, Vol. 1, Book 2, pages 159-165:

In the beginning of the world, as we are informed by Holy Writ, the All Bounti-
ful 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 livi ing 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 com-
mon among them, and that every one took froin 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 mect 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, con-
sequently, 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, ’ ther efore, 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 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.

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 suit-
able case can be enforced.

So much for the first limitation which I have stated property was
subject to, whether heid by nations or by individuals. It is held sub-
ject 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 thatis, 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. 1G

anything that he can be permitted to destroy it? Surely that is not
necessary.

The PRESIDENT. Uti et abuti, say the Romans.

Mr. CARTER. Yes, wti et abuti, so that a man has power not only to
use, but abuse. It is given to us to use; it isnot 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 nomeans. 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 property 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 the voice of com-
mon seuse 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-
jected.

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 exisis for a rational purpose and for a rational use; it is destined to sat-
isfy the various needs of human life; consequently, all arbitrary abuse, all arbitrary
destruction, are contrary to right (droit) and should be prohibited by law (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
reach 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 suppress-
ing abuses, in this language:

The abuse of property, said he, should be suppressed every time it becomes hurt-
ful 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,

All 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—lI will not say it concedes the right; for it does not cencede 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

LY2 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 en 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 destruc-
tion of property, but to increase it. Were-stock therivers; 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 salvor says, “I don’t think youcan 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—
“Tam 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 it—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 thatkind. If Iam unable todiscover it, I will withdraw,
certainly, any assertion to the effect that itis the law, but not the asser-
tion that it ought to be the law, until I can find some authority against
it. It isnot the first time that I have heard the proposition stated, how-
ever. I have heard it stated by professional brethren.

What Ihave 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 ouly 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 legis-
lation 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 destruc-
tion 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 legis-
lation, 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 prop-
erty, 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 employed in the best manner;
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 policyis illustrated. LIcould point out manymore. Ihave
this further suggestion to make upon that point: that it is one of the
duties particularly incumbent upon civilized society to take thesemethods
and meansof preserving property and of preserving the sources 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 hundred years ago, they were
a blessing tributary onlyto barbaric man. A fewhundreds wereall that _
were taken. And those few hundreds—it may have been a few thou
sands—sufficed tosupply 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 com-
merce come in now, and what is the result? The whole world is attack-
ing 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 civiliza-
tion 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 MorG@an. 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 quali-
fied; 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 bar-
barous 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 sugges-
tion of the learned Arbitrator, we can easily see this; tbat 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 sub-
ject 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 conclu-
sions which J 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,
in 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 lim-
ited 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 sit-
ting, which were left out by the 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 num-
ber 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 substi-
tute I can furnish. It is composed, let me say, in part of quite a num-
ber 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,
part I:

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 hnman 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. Nature teaches
the lesson doubly enforced by revelation, that the right of the human race to own
and exercise dominion over the things of this earth in successive generations carries
with it a corresponding moral obligation to use, enjoy, and transmit in due coyrse
for the benefit of the whole human race, not for ourselves only or for those who pre-

ceded us, but for all who are yet to come besides, that the grand purpose of the
Creator and Giver may be fully accomplished.

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. LV, p. 71:

Property is the right of using. The right of property is founded upon its sub-
serviency to the subsistence and well-being of mankind. The institution of prop-
erty 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 improve-
ment; 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 dis-
position; 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 De Rayneval, 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 mure
inherent in human nature than heredity. Originally men did not possess more than
the animals possess to-day. The earth was common to all and belonged to no one.
When agriculture became necessary for the sustenance of man, each was partial
naturally to the earth which he had cleared by the sweat of his brow, and which
offered him the fruit and the recompense of his labor; whence the first idea of pres-
ervation 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. Ithas then been introduced for the maintenance
of peace among men. It has then been the principle of their union and social order,

Krom 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 ingenuity and industry of man were checked. Pre-
occupation 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 Thursday, April 20, 1893,
at 11.30 o’clock a. m.]

TWELFTH DAY, APRIL 207, 1893.

The Tribunal convened pursuant to adjournment. |
he 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 differ-
ences 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 institu-
tion 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 con-
clusion 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 rob-
bery or force, or based upon any arbitrary distinctions, but that it was
established for great social purposes and to satisfy great social neces-
sities; 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 con-
sequently 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 wse 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 cali 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 indi-
viduals would abuse the right of property, in which the state would
prevent that abuse; that the practice of nations still further illustrated
the truth that the title to property was not absolute, and that wher-
ever there was a nation in possession of a great bounty of Providence,

BS, PT X1I——12 ~ 177

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 institu-
tion 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 con-
fess, 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 ascer-
tain fully what has passed into judgment; but I did recur to one or two
text-wriiers, 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 ves-
sel 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. Carver. I think itis. Do you mean to say that Prof. Parsons
does not so intend?

Sir CHARLES RUSSELL. No; he is dealing with the case of the repre-
sentative 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 prop-
erty, 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 gen-
eral 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 | 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 saup-
ply 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
coneeded. 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 Tribu-
nal 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 pos-
sess, and all this may properly be appealed to. Inthe 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 them-
selves 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 neces-
sary 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 deposi-
tions of witnesses whose testimony has been taken, ex parte, of course,
because there was no opportunity for cross-examination; but never-
theless 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 appar-
ent trustworthiness are very different. We have some of great intel-
ligence, 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 consider able weight. Then
we have the evidence of a great number of what I may call common
witnesses—the Indians , the Aleuts, the natives on the islands; the
Indians along the shore; the Indians and whites engaged in pelagic
sealing. There are depositions i in multitude from persous of that char-
acter 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 consid-
erable—a very great—deegree 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 testi-
mony of witnesses on the part of the United States has been success-
fully 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 success-
fully passed such an ordeal as that. All the testimony of this character,
or substantially all, upon which the Goverument 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 hearings 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 circum-
stance 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. Lhave pointed out the difficulties which would attend the mak-
ing 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 tes-
timony, and deal with it—with its weight, its credibility and its trust-
worthiness—by bringing to bear upon it the considerations which |
have now mentioned. In commenting upon its weight and trustworth-
iness 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? J have spoken to that point already
in what I said upon the argument of the motion to which | 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 tie 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 See UOe: men of hee ee men of science—in one word
expert ; make them joint commis-
sioners, Send ‘them out to the islands; have them make an investiga-
tion 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 opin-
ion would be proper regulations designed to preserve the seals from
extermination. The idea, therefore, assumed that these joint commis-
sioners 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 tbat these
Joint Commissioners would furnish these two Governments with the
absolute truth upon the questions which they were appointed to exam-
ine 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 seais
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 neces-
sary 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 pro-
ceedings 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 restric-
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 Feb-
ruary 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

Early in the 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
questions involved.

The instructions under which we acted are contained in Article IX of the Arbi-
tration Convention, and, as far as relates to the nature of the inquiry, are as follows:

‘‘Kach Government shall appoint two Commissioners to investigate conjointly
with the Commissioners of the other Government all the facts having relation to
seal life in Bering Sea, and the measures necessary for its proper protection and
preservation.”

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 col-
leagues 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 detinite enough to allow its consequences to be thought out, conld
be reached by the Joint Commission unless we were willing to surrender absolutely
our opinions as to the eitect 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 require-
ments 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 sub-
mitted 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 accordanée with the further
provision of said Convention, for us to submit in this, our separate report, a tolera-
bly 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 sup-
position 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 possess-
ing 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 Colum-
bia 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 Govern-
ment, together with that of the support of some 300 natives.

It may be noted, however, that some such arrangement would ofter 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 con-
tiol of a single Government, whereas in every other project it heccmes necessary to
face the far more difficult problem of international agreement to some code of regu-
lations involving an accompanying curtailment of rights. In other words, any such
arrangement must be viewed either as a concession of certain rights on the bigh
seas, or a concession of peculiar rights devolving from terfitorial possession of the
breeding islands of the seal, made in each case for the purpose of inducing equiva-
lent concessions on the other side in the common interest.

126. For practical purposes, the main consideration is that any scheme of meas-
ures 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 found, 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 contlict
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
besettled 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 postu-
late 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 them-
selves to be in charge of the interests of pelagic sealing, then, for the
most part, represented by Canada.

They conceived themselves to be in charge of that interest, and bound
to defend it; and consequently their 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 muck as my learned friends on the other side are. They are
detending, 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 Tri-
bunal 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 high-
est 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
whatthefacts were. They sentthese Commissioners there to inquire what
the facts were. Ofcourse they could not ascertain them all, or buta 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 evidenceof 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 impar-
tially, and whether they were acting in accordance with that conception
of their duties under which they were appointed.

The PRESIDEN’. 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 in 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 of
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 Commis-
sioners, although their report contains a mnullitude 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 dis-
sent trom 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; (8) on Robben Reef, belonging to
Russia, and (4) on the Kurile Islands, belonging to Japan. The Pribilof and Comman-
der 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 Islauds 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 Kurile 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 same places to breed. Were it not for this law there would be no such thing
as stability of species for interbreeding and existence under diverse physiographic
conditions would destroy all specific characters.'

The pelage of the Pribilof fur-seals differs so markedly from that of the Com-
mander 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 north-
ward along the coasts of Oregon, Washington, and British Columbia in January,
February, and March, occurring at varying distances from shore, J'ollowing the
Alaska coast northward and westward they leave the North Pacilic 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 rook-
eries, where they await the arrival of the females. Hach 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,

‘The home of a species is the area over which it breeds. It is wel] 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 throughont
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 num-
bers are on the hauling grounds by the end of May or first week of June.

They 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
droves, 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 bulls in compact groups called harems,

The harems are complete earlyin July, at which time the breeding rookeries attain
their maximum size aud compactness.

8. The cows give birth to their young soon after taking their places on the harems
in 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 iu 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 atsea. 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. Onreaching an assemblage of pups, some of which are awake and others
asleep, she rapidly moves about among them, sniifing 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 ery, 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. Notonly 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 a8 many as tifty 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 frem 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.
pote this they are not powerful enough to fight the older bulls for positions on the

arems.

17. Cows when nursing regularly travel long distances to feed. They are frequently
found one hundred or one hundred and fifty miles from the islands, and sometimes
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.)

19. The great majority of cows, pups, and such of the breeding bulls as have not
already gone, leave the islands about the middle of November, the date varying con-
siderably with the season.

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 months
of the year, or from two-thirds to three-fourths of the time, aud in mild winters
sometimes during the entire year. The breeding bulls arrive earliest and 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 Pacilic 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 alon; g the coasts of British Columbia and south-
eastern 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. The 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 condi-
tions 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 Isl: inds, 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, compat ratively speak-
ing, 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 MorRGAN. 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 Fucea.

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 Mora@aAn. 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 testi-
mony 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 state-
ments 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 Com-
missioners 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 pur-
suance of the duties imposed upon them by the terms of the treaty,
and in accordance with that conception of their functions which is con-
tained 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 condi-
tions of seal life upon the islands and the facts attending the migra-
tions 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 found possessing the favor-
able climate and physical requirements above mentioned, and which was not at the
same time exempt from the unvegulated 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 keep-

ing off marauders, are absolutely necessary to the preservation of the species in any
cousiderable numbers,

That statement is, of course, substantiated by what we know respect-
ing 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 ves-
sels 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, they will as contidingly 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 slanghter such a number of non-breeding animals as may be safely taken
without encroaching upon the permanent stock.
That statement, if disputed would be abundantly proved by the evi-
dence. 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 rook-
eries. 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 max-
imum at which they would remain is more fully stated, explained and
justified by the American Commissioners in their report. It is, I sup-
pose, 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 ene-
mies 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 may be true; but I have never heard myself that
the killer-whale was hunted by man. Its means of escape are too great.

Lord HANNEN. Is it really a whale? .

Mr. CARTER. It is suggested to nre 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 pre-
serving 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 cir-
cumstance 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 anywhere 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 rooker-
ies. 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 ani-
mals; for instance, the buffalo—the Amerivan 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 undis-
turbed, 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 fre-
quent in number, and not so fierce and deadly in character.

Take this herd of seals when it has reached its maximum under con-
ditions 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 cir-
cuimstance 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, suf-
fering 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 peace-
making, 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 difter-
ence. You still leave a large number. You still leave a superfluous
number. They are still abundant after you have made your draft from
them.

The PRESIDENT. That is one of the modes of man, of going among
these animals and domesticating them.

Mr. Carter. It is 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 in
any degree diminishing the normal numbers of the herd. You dimin-
ish ib at first, of course. If you have a herd of five millions, male and

T92 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 num-
bers of the herd. It isa 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 substantia-
tion that, taking this particular herd of seals, you can make a draft
upon it of 100,006 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 uot 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 PRESIDEN’. 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 com-
putation would be made; but all accounts now agree that all the
methods now relied upon for the purpose of determining what the pre-
cise 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 Russians 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 indis-
eriminate 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 ©. 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 valuablerace. 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 Russian 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 Russian time before
the American possession ?

Mr. CARTER. Oh, fully established for twenty years before the Ameri-
cans took possession. The Russians 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
Russia—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 PRESIDEN’. They were never taken for their skins?

Mr. CARYTER. 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 ascer-
tained; 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 towar d the close of the Russian 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 dr afts from the herd always regulated
by the Russian Government before the United States got possession
of it?

Mr. CARTER. They were regulated by the company which had con-
trol 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 Russian 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 Russian 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.

BS, 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 188, 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 Russian lessees had no more power?

Mr. CARTER. The Russians had no authority to prevent it. The
United States Government had established no authority.

The PRESIDENT. Was the Russian 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 estab-
lishment of the system and its long maintenance upon the island, of
saving the females, its obvious benefits and utilities, its manifest neces-
sity 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 sover-
eignty 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 circum-
stances. 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. NS)

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 govern-
ment was compensated in two forms; first, by a gross sum paid annu-
ally, 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 parlia-
ment, or whether it was done by the executive.

Mr. CARTER. It was done by the executive department of the gov-
ernment 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, itis 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. |

[ine 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 Russian occupation, and the herd had increased
from a depressed condition, so that at the time when it passed into the
hands of the American Government its numbers were as large as, if
not larger than, ever. I had spoken of the irregular and indiscrim-
inate drafts of 1868, when 240,000 were taken in one year. When the

136 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 dim-
inution 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, [ 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:

The number of seal skins actually recorded as sold as a result of pelagic sealing is
shown in the following table:

No. of No. of
Year syanin Year sitinis
NS Gubis oe.cle coca ma aun wits alee oc ele eG aleigs aes P22 Jal WS Pan eRe SA A Ror ecco mgoa aus o Se 17, 700
SiS 2 Seater cette ateta.o 2 ocak acertere ata a etare Se iale ate Oa WEBS soe. etek se paket Sata adese & eee 195
ABTA 3 2s cet ecnme cece eect cae sie alana am enien A. GAG | CURE on. cewew a ba onda vec these nevas a= alemte *14, 000
ISR eee ciate eiclore wie ola miei are wie ro. ata a o> wieteietatsisicr WAGEG: | WSS. te ciecle ~ -o.s6 = Hele tepals opearntaeeyaloela st iaiarese 13, 000
LY (eee OR te ee 405) 1886 sete c Beee yee ee eee ee ee 388, 907
1 ff Ine: AES ree Sere tore eat 5, 700 SST 2c. Gee mais cre earae alate layers te eee or eerie 33 809
WS 7 Stee betcha arc meas ae tee eetaoneee ON5984 SLSR Stas 6. nck e, Sete sence ae eet eae 37, 789
WSO we ore ene cee es omek Sones se eee THVT | 7889. &2.5° cecwenche wos Seae eee eee 40, 998
1a ee ee ee a a ae ee VS 600 |! S90" oa ee ao et ee Se eee 48,519
SS Le Sues ociee aaa atejaleleke Ate a ares NS S04 ea) CLS ONS hy ere aie w wineee em ate Se area 62, 500

* 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 number. 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; never-
theless I shall state the main grounds upon which that statement 1s
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 con-
trary 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 1885 13,000 were taken in this manner; and, as Ishall 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 exteut of taking five or ten thou-
sand 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 expe-
rience 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 ou 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 num-
bers 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 drafts 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
trom the herd, the taking was stopped when the number of 25,000 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 num-
ber 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 diffi-
culty 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 Pacific Ocean south of the Aleutian Islands. In that
year sealers entered Bering Sea, and from that time onwards the prac-
tice 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 couid be made.

I quote from page 80 of my printed Argument, and continue with
our propositions of fact:

Fifth. Omitting from view, as being inconsiderable, such killing of seals as is
carried on by Indians in small boats from the shore, there are two forms of capture
at present pursued: That carried on under the authority of the United States upon
the Pribilof Islands, and that carried on at sea by vessels with boats and other
appliances.

Sixth. The killing at the Pribilof Islands if confined, as is entirely practicable,

to a properly restricted number of non-breeding males, and if pelagic sealing is
prohibited, does not involve any danger of the extermination of the herd, or of

198 ORAL ARGUMENT OF JAMES C. 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 instruc-
tions, 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 eae drafts. Itis 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 Gov-
ernment 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
qussing ups on the shore. The evidence upon these point is fully discussed in the

ppendix,.

Tiehth. 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 upon that point will be more fully
discussed by my brother Coudert. I have 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 toone. 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 ean 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 evi-
dence 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 recoy-
ered. And the other fact which I have stated as an inseparable feature
of pelagic sealing is thata 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 lirth 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 considera-
tion in determining the question of property embraces the following
propositions which I believe cannot be disputed by the other side:

1. Theseal 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 and
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 Dy 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 indis-
criminate slaughter in one 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 exter-
minated 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
draft of 100,000 young males whichis made upon the islands—that that is
destructive. Now we contend that it will stand a draft of that amount.
There is of course a certain number of young males that may be taken,
and we think it ranges as high as 100,000. If you go beyond that point
you begin to destroy the herd, because you do not leave a sufticient
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 con-
ceive to be evidence tending to show that this is so. They point to the
limited draft which Russia made as being the safer number and they
say that the herd began to diminish under the larger draft made by the
United States before pelagic sealing began; well, according to them,
the herd will not stand a draft of 100,000 young males annually. Then,
if it will not, what draft of females will it stand? Why, under the
system of pelagic 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 in-
cluded?

Mr. CARTER. On page 207 of the Report of the British Commission-
ers 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 commission-
ers. 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.

sa CHARLES RUSSELL. I thought the figures at page 207 embraced
all.

Mr. CARTER. There is a difference, however, between the American
and British Reports 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 Report 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 ©. 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 con-
sequently 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 Report of the American Com-
missioners,

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-seais like these,
as regards keeping up their numbers, and dealing with polygamous
domestic animals of any sort, such as horses, cattle, or fowls. ‘The lat-
ter 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 earried on indefinitely. In refer-
ence 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 rea-
son 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 pro-
duced, we must accept the conditions and content ourselves with them.

Now, having shown the difference between these animals and do-
mestic 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 hus-
bandry and obtain the whole benefit which the animal is capable of
affording without diminishing the stock; but with other wild animals,

202 ORAL ARGUMENT OF JAMES C. CARTER, ESQ.

such as ducks, fishes, wild game, &c., he can practise no such hus-
bandry 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 pro-
vision for the production of prodigious numbers. Take the herring, the
mackerel, the cod; they de not produce one only at a birth, but a million!
They produce enough, not only to supply all the wauts 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 de-
struction of them. There is another mode designed 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 ani-
mals 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 “ 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 area 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 local-
ity 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 ani-
mals, 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

ORAL 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. If they are in dan-
ger 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 accu-
rate knowledge is had of the habits of fishes, it may come to be ascer-
tained 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. Iam glad to see that the learned President catches it.

The consequence of the proved facts is that the fur-seal cannot main-
tain itself against unrestricted human attack. It cannot doit. 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 the 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 tothe 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 [
have already shown, this consequence of the inability of the race to
maintain itself is inseparable from the killing of females. That race
cannot maintain itself unless the slaughter of females is prohibited.
It is a mammal, producing one at a birth. The 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 its 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 kiiling of males,
if it were excessive, would produce the same effect. No doubt about
that. Wedo 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 Jessees of the Pribilot
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 fishermen 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
te prevent that fishing, that pelagic sealing, according to the right
which has been given tothem. 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 ARGUMENT 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 sealing, 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 thatin prohibiting pelagic sealing over the waters
of Alaska—that is the phrase used—it embraced all those waters which
it had acquired from Russia by the cession. The western boundary
was that line which is seen drawn down there (¢ndicating 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. That is not quite my question. My question is, does
the American Company contend, as I understand you to contend, that
the owners whoever they be, of the Pribilof herd, have a right of
property or protection 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 anywhere else wherever the seals may go; for if I under.
stand 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 under-
taken to protect this herd everywhere on the seas. We executed to
you this lease. You knew what the laws were. You knew what pro-
tection you would get. You did not ask for anything more. Having
accepted your lease under those circumstances you must be content
with it.”

The PRESIDENT. 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 condi-
tions. 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 indi-
rect in the question whether we are preserving the seal herds or uot 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. CartTER. 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 you will allow me, the Congress of the United
States which has but recently adjourned has made a provision of law
by which all of the statutes that now apply to the Bering Sea shall be
extended in their full force over any area of waters that might be deter-
mined 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 determineupon. It has done
all that can be done under the circumstances.

Sir CHARLES RUSSELL. That was merely a provision to enable the
United States to give legal effect to any regulations, if any, that should
be enjoined by this Tribunal.

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 ques-
tion 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 posses.
sion 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 prop-
erty here. My next step will be that having that right of property,
they have aright 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 execu-
tive 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. Perbaps the Congress of
the United States may not have gone through all the processes of rea-
soning 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 what-
ever quarter—their own citizens or others. They may 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 Con-
gressmen: ‘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 pro-
tect the seals against attacks by our own citizens if other people are
to be allowed to attack them”.

The PRESIDENT. You want to convince us first and the American
Congress afterwards, while you ought to convince the American Con-
gress first and us 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 Rosebery, in discussing the modus vivendi which is now gov-
erning 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 observa-
tion 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 pos-
sessions, 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 isan 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 dis-
puted 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 kill them upon the

208 ORAL ARGUMENT OF JAMES ©. 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
ionger 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 lim-
ited to that, provided all interference is prevented by sea, provided
pelagic sealing is stopped. That fact—although it appears to be man-
ifest—that there is a superfluity of young males, is one which f 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 overwhelm-
ing experience of one hundred years. It is proved by the fact that
Russia, after her occupation of the islands, and while she did not con-
fine her draft to this superfluity of males, adopted a course which
tended towards the destruction of the herd and came very near destroy-
ing 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 posses-
sion 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 experi-
ence on the islands—an experience extending over a period of one
hundred years. !t 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 of 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.

T 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:

116. It is, moreover, equally clear, from the known facts, that efficient protection
1s much more easily afforded on the breeding islands than at sea. The control of the

ORAL ARGUMENT OF JAMES C. CARTER, ESQ. 209

number of seals killed on shore might easily be made absolute, and, as the area of
the breeding islands is small, it should not be difficult to completely safeguard these
from raiding by outsiders and from other illegal acts.

And Section 327, on page 58:

327. Thus, on the Pribyloff Islands, one particular instance has been recorded,
when, in consequence of the long persistence of field-ice about the islands, the seals
were very greatly depleted. This occurred in 1836, when, according to native count,
the number of adult seals on St. Paul Island was reduced to about 4,000, and the
greater part of the smal] number of seals killed in that year consisted of pups.
Other thought less disastrous instances, of the same kind have occurred since, and
a study of available information respecting the amount and position of the ice in
Behring Sea in various years shows that such adverse conditions may recur in any
year, though probably seldom with the same intensity as in 1836.

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
by 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-
tant exception. ‘This exception related to the number of seals allowed to be killed
annually. The number was at this time suddenly and very largely increased, being
in fact more than doubled, as is elsewhere pointed out in detail; and while the
experience of many former years showed that the Russian system, with a limited
annual killing, might be maintained with a reasonable certainty of the continued
well-being of the breeding grounds, it had in fact, according to the best available
information, resulted in a gradual and nearly steady increase in the number of seals.
The much larger number permitted to be killed under the new regulations at once
removed the new control into the region of experiment.

That shows that the former control, the Russian 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
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. 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
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 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
treated.

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 have. peen continued without general
damage to the seal life of the Pribilof Islands, andvery probably even with a con-
tinued gradual increase in numbers of seals resorting to the islands up to some
unknown maximum point. Such results might have followed, notwithstanding the
practical imperfection which clearly attached in execution to these theoretically
appropriate methods, and in spite of the important change from natural conditions
which any disturbance in proportion of sexes involved, if the demands made in the

BS; Pex ie 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
necessarily in the long run to serious diminution. This decrease continued, on the
whole, in an increasing ratio, being due not only to the actual number of seals
slaughtered, but also to the numbers lost in various ways incidental to the methods
of control and modus operandi on the islands, which loss, though formerly a 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 dim-
inution. 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 maxi
mum annual number of the slaughter under the Russian rule?

Mr. CARTER. At first it was somewhere in the neighborhood of
30,000. In the last years of their occupation, it was increased to some-
where from 50,000 to 70,000.

Sir CHARLES RUSSELL. You will find, sir, a table giving the figures
at page 132 of tle 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 RUSSELL. It purports to be acorrect statement.

Mr. CARTER. It purports to be that; in fact it is not even approxi.
mately correct.

The PRESIDENT. You do not know that the Russian 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. Carrer. 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 pas-
sages which I have read from the British report that there is a full and
unqualified concession that the methods thus employed by the Ameri-
can 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 com-
plaint 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 man-
ner that we may say they are beyond dispute. There are a good many
other particulars in which there is very considerable conflict in the evi-
dence. We have our own assertions in respect to those points upon
which this conflict exists; and we shall endeavor to satisfy the Arbi-
trators that our view is correet; but at this point I choose to say that
in my view they are not material upon this question 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 with-
out considering any of these disputed propositions.

ORAL ARGUMENT OF JAMES C. CARTER, ESQ. ag tek

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 Russian and the Alaskan herds.

There is no evidence that there is the slightest commingling; but as
far as conjectures go, it is only to the effect that there may be a com-
mingling of some few individuals—wholy 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 obedi-
ence 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.]

THIRTEENTH DAY, APRIL 21", 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 stillimproves; 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 ata
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 peces-
sarily 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 discrimi-
nation could be made.

Tam now to eall attention to the inquiry how the question of prop-
erty 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. IL wish to apply those prin-
ciples 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 through-
out, namely this: That the institution of property extends to all things
which embrace these three conditions—first, that they are objects of
human desire, that is to say that they possess utility. Second, that
they are exhaustible, that is to say the supply of them is limited, there
not being enough forall, And, third, that they are capable of exclusive
appropriation. All things of which those three conditions van be pred-
icated are property and nothing which does not unite all those condi-
tions can be regarded as property.

Concerning the first two of these conditions, no debate whatever is
necessary. ‘The utility of the animalis admitted. That they are objects
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. - 2h

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? Isit neces-
sary 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 iden-
tical, or rather they were confounded. There were no recog nized rights
of proper ty, 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 him without an act of force. He
was always present.to defend them; and there were no other subjects
of property. But wesee 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 per-
sonal 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 per rsonality i 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 w ith 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 writ-
ings of avery distinguished English jurist and writer upon general juris-
prudence—Mr. Sheldon Amos. He touches upon 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 atten-
tion 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 cir-
cumstance of possession.

The use of the products of the earth, and still more, the mannfacture 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 inter-
mittently fixed upon rall the several points and stages. The methods of agriculture
and grazing, as well as the simplest applications of “the principle of division of 1: vbor,
similarly presuppose the repeated absencé 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 test whatever of the interests or claims of personsin the things by which
they are surrounded.

214 ORAL ARGUMENT OF JAMES C. CARTER, ESQ.

The extract from a French writer, Toullier, which follows in a note is
so long that I will not read it; but it is to the same effect of marking
the distinction between possession and ownership, and showing that
ownership is a development in the course of civilization of the institu-
tion of property, and that ownership at present no longer depends upon
actual possession at all; it depends upon rights which the law gives.
If the law chooses to stamp the personality of the owner upon any par-
ticular piece of property, however large, or however extended, whether
itis in his possession, or out of his possession, then that object upon
which the law thus stamps the quality of ownership, is the subject of
exclusive appropriation in the law.

It is the law that does this. Originally property depended much
upon individual effort and the power of individual defence. Now, in
the development of civilization, it depends upon law; and whatever the
law regards as the subject of exclusive appropriation is to be regarded
as property provided it presents the other requisites which I have men-
tioned. The inquiry is, therefore, under what circumstances and to what
extent will the law stamp the quality of ownership upon things which either
are not possessed, or cannot be actually possessed, by any owner during
a considerable part of the time. Under what circumstances and to
what extent will the law assign to a man a title to such things and
defend it? That is the interesting question.

The best way to answer that is to see what the law actually does;
and we may take, in the first instance, the case of land. As I have
already said, land may be owned by a private individual to any extent.
He may own a province if he can acquire it. The law places no limit
upon his acquisition and it will defend him in the enjoyment of it.
Why is it? As I have already shown, the institution of property does
not depend upon any arbitrary reasons, but upon great social reasons
and great social necessities; and, therefore, the answer to the question
why ‘the law allows an extent of property to be owned by a man which
he cannot by any possibility actually possess, must be found in some
great social need; and this we quickly see comes from the demands of
Civilization to satisfy which it is necessary that the fruits of the earth
should be increased in order to accommodate the wants of the increas-
ing propulation of mankind. No land will be cultivated unless you
award to the individual the product of his laborin cultivating it. The
motives of self interest are appealed to, and men are told: “ You may
have, and we will defend your title to, as much land as you can acquire.”
That is the only way in which the general cultivation of the earth could
ever be brought about. That is the only way in which it is made to
produce the enormous increase which it now produces; and although
large tracts of land are not capable of direct actual possession by the
owner, yet in view of the prodigious advantages which are ac quired by
stamping the character of ownership upon them, the law concedes that
ownership, assigns the title to an individual, and protects and defends
him in it. A

The same is the ease in reference to all movable property, all products
of manufacture and of labor—agricuitural implements and tools, goods
of all descriptions. A man may Own magazines full of them which he
cannot by any possibility, by his individual arm, protect and defend.
Why is he permitted to do this?) Because the world cannot otherwise
have them They are the price which the world must necessarily pay
for these possessions, or otherwise it must do without them; and it cannot
do without them and support the population which civilization brings
upon the earth.

ORAL ARGUMENT OF JAMES C. CARTER, ESQ. 215

Take the case of useful domestic animals; the same thing is true.
Man may own as many as he can acquire and breed; and they may
roam over almost boundless areas, over his own property or the prop-
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 thesame 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 assigied to him, does not waste it. He does not destroy it.
He does not convert it into a desolation, he does not extract its rich-
ness from it and then leave it incapable of further product. He eul-
tivates it. He manures it. He not ouly 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 pro-
duce. They preserve the stock everywhere, and they increase over-
whelmingly 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 indi-
vidual 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 ean prac-
tice no husbandry in relation to them; and if they maintain their exist-
ence under his attacks it is not because of any effort, art, or labor on
his part, but because nature has made such an epormous provision that
they are practically inexhaustible, or because nature has furnished them
with such facilities for escape that man cannot capture any considera-
ble number of them. Consequently in reference to all of these wild
animals where the award of ownership to an individual man would pro-
duce no great social blessing, in other words, where there are no sovial
reasons for awarding exclusive possession, an exclusive possession is not
awarded, and, the thing is regarded as incapable of exclusive appro-
priation.

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 cus-
tody 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 between the
wild and tame, and it is very interesting to see how the law deals with
these, and how perfectly in accordance with the principle I am endeay-
oring to sustain. Take the case of bees; they are perfectly wild. Noth-
ing can be wilder. Nevertheless man can induce them to return to a
particular spot; and in consequence of that can take from the bees their
product, and can therefore increase the production of honey,—a most
useful article—to an almost indefinite extent. If men were driven for
their supply of honey to find the hives of wild bees in the forest, their
demand could never be supplied, and the bees themselves would
be taken away; but if you award a property to man in such bees as
may take up their abode in the hives prepared for them; permit him to
defend his title to them, and to every swarm that, at the appropriate
season, leaves in order to create a new habitation for itself—if you give
him a title to such bees, enable him to practice a husbandry, allow him
to consider as exclusively appropriated to himself what in its own nature
is absolutely incapable of appropriation,—if the law will step in to the
aid of human infirmity and grant these rights—then you can have this
product of honey multiplied to an indefinite extent. Society does it.
It does it for that purpose. Our municipal law which I have heretofore
shown upon this point is based upon this ground.

The same is true of the wild geese and swans. The breeding of these
is an industry, to be sure, not carried on on so large a scale, but it pre-
sents the same principles. If we were driven for our supply of such
birds to pursue the wild flocks with such means as are adapted for that
purpose, the supply procurable would be extremely small; but if man
by art and industry can so far reclaim them as to wont them to a par-
ticular place, take the annual increase from them and preserve the stock,
then, without taking from others, we greatly multiply the product which
is applicable to the uses of man. In other words, another like occasion
is furnished upon which the law will lend its aid to man, and say that
these animals shall be deemed exclusively appropriated; and it does so.
And yet for the greater part of the time these animals are roaming in
waters not belonging to their owner and would fly from him as quickly as
from others, should he attempt to capture them there.

The case of deer upon which I have already enlarged is the same.
Pigeons the same. The reindeer of Lapland is another instance of an
animal naturally wild, but in which the law assigns to man a property
interest and deems them exclusive property althon ch 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 pos-
session 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 abso-
lutely intangible. Take patents for useful inventions, products of the
mind, and, originally, not the subjects of property at all. As society
ad vances, 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 encour-
aging 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 arts 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 con-
sidered 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, secur.
ing the benefits of ownership in the products of the mind all over the
world i 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 dis-
tinguished 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 nat-
ural law.

What then is the general conclusion in respegt 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 2 ground and every rea-
son which supports the award of property any where and to any extent,
applies to that case, and makes the animal the subject of property.

It onlyremains to apply that conclusion to the particular animal about
which our controversy is concerned, namely, seals. Ineed 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 tle only way in
which the human race 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 owners of the Pribylof
Islands exhibit. and which constitute their title to this award of prop-
erty, it may at first sight appear that they do not have the same sort of
merit that the cultivator of the land has to the bushel of grain that he pro-
duces, 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 meri-
torious, 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 ownets of these islands to
entitle them to say that the seals are their property per industriam?
They remove a population of hundreds of people at great expense to
those islands, feed them, keep them there to protect these animals and
their breeding places against all enemies, and maintain at prodigious
expense a mnarine 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
kill every animal as it arrives and put its skin on the market at once
and get the full benefit of it. Thatis the temptation always to man,
to take the utmost that he can, and to take it at once for present enjoy-
ment. But the owners of the Pribylof Islands practice a self-denial.
They forego present enjoyment. They forbid themselves that enjoyment
and they ‘do it in the hope of obtaining a future and a larger good.
They practice art and self-denial and confine their drafts to the super-
fluous males.

I wish to dwell amoment upon the merits of that particular feature of
self-denial. Ihave given in the printed argument a multitude of cita-
tions which illustrate the merit of this quality of abstinence as a founda-
tion 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
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 pro-
ductive industry, and the whole productive industry of the world
depends upon the savings of the world. If it was not for the practice
of this abstinence which leads to the accumulation of wealth which
may be employed for the purpose of sustaining productive industry,
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):

3ut although human labour and the agency of nature, independently of that of
man, are the primary productive powers, they require the concurrence of a third pro-
ductive principle to give them complete efficiency. The most laborious population
inhabiting the most fertile territory, if they devoted all their labour to the production

of immediate results and consumed its produce as it arose, would soon find their
utmost exertions insufficient to produce even the mere necessaries of existence.

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 the production 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 immedi-
ate 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 prin-
ciple 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 what-
ever 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 abso-
lute, 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 aright against this conclusion, a dif-
ferent case would be made. If any man or set of men, or any nation,
could say: “ This conclusion of yours, plausible enough in itself, defen-
sible 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
with—to contend against this conclusion? As near as I can ascertain
it is asserted to bea 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 2
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?
T cannot conceive that that suggests even the shadow of aright. 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
bea 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 destruc-
tion of the animal. How can you connect the notion of a right with
that? It is aright 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 erime; is it
not? How else ean it by any possibility be correctly described? It is
a crime against nature. It isa 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 character-
istic, and no quality, except those which mark a crime. What good
does it accomplish? Does it give to mankind a single seal which can-
not 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 ina better manner. It does no good in any particular to
mankind. It is possible that seals may be afforded at a less 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 manufac-
turers, 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 oceupation 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. 22k

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 manage-
ment of it have a duty in respect to it. Indeed the whole subject of
rights should be regarded as one dependent upon duties, rights spring-
ing out of duties, rather than duties out of rights. Itis 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 pur-
poses of the world. That is their duty. Why should they not be per-
mitted 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 itthe 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? Ihave 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 aright to interfere, take possession of those islands, and discharge
those duties which the United States were betraying. What duty have
these pelagic sealers in respect to these seals? They have none because
they cannot do anything but mischief with them. The United States
has a duty. It is to cultivate that advantage which in the great parti-
tion 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 monop-
oly when one particular nation, or particular men, own an entire source
of supply. It is not an abselute monopoly, for there is a certain com-
petition on the part of Russia 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 monopoly, 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 some-
times said that they were bought on that account, and there are some
evidences that I have read tending to show that that was one of the main
considerations; but whether that was the real motive or not I cannot
say. Ido 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-
ous to man? It is only when it is an artificial monopoly. If there is a
natural monopoly in a particular product and the whole annual supply
of that particular product is thrown upon the world the price of it will
necessarily depend upon the relation between the supply and the
demand. Sometimes there is a monopoly in a particular region of the
world of a particular article, but the supply is yet so abundant that
if the whole product of that particular region were thrown upon the
market the price of it would be extremely low, and pay but a small
profit and mankind would get it at a very low rate. That is supposed
to have once been the case with the Spice Islands, belonging to Hol
land. If all the pepper and other spices produced upon those islands
were thrown upon the markets of the world, they would be glutted.
The world would get them at a very trifling sum and the producers of
the spices would make no profit at all. What did the proprietors of the
Spice Islands do? They did not simply withhold from the market, for
that would answer no purpose; but they made an artificial scarcity by
destroying half the erop, and the world needing more than half, they
were enabled to exact very high prices and to make a great profit.
‘That is the only way in which a monopoly of a natural production can
be made use of unfairly and disadvantageously to mankind, and be
made the means of exacting an extortionate price. You must artifi-
cially limit the supply. But not only has that never been done here, but
itnever 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 com-
pelled 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 com-
petition among those who want them. If 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 thatis sold; that is to say, the price of the skins

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 Prov-
idence which is placed in their custody and in their control, and for
their labor, their efforts, and their exertions in preserving it and fur-
nishing 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 wholeof 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 tar 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 think we can
do better with the skins next year than this year.” Butin general tiiey
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 seal has 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, ete.

That does not amount to enough to talk about. Itis not an advan-
tage which enables them to deal with the seals in any different way.
They still cannot take them in any other way than by this indiscrimi-
nate pursuit which sacrifices males and females alike—or females to a
larger extent than males. It does not enable them to practice a hus-
bandry 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 truein fact. Itis only acon-
jecture. 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 southern
part of Alaskan territory and of the Aleutian Chain. A winter habitat
along the coast of British Columbia, if it were anything but an imagi-
nation, 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 shoreof 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 inreply 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. Itis from mankind
that they get their sustenance. They takeit 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 ageucy and the instru-
mentality 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 supe-
rior 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 particu-
lar 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 certain 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 remedies 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 theusand 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 PRESIDEN’. 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
a year could be maintained. But I take the statement of these Com-
missioners that “since the Alaska purchase a marked diminution in
the number of seals on and habitually resorting to the Pribylof [slands
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 neces-
sary 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. Ido not say
now whereunregulated. It follows that all unregulated killing is wrong,
because it leads to destruction. We know that there is a mode of regu-
lated killing by which the race can be preserved, and that is by confin-
ing 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 discrimina-
tion 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 Com-
mander Islands. As I have already said, thatis founded upon conjecture.
In dealing with a large subject like this the mere possible circumstance
that there might bea few individuals intermingling is of noconsequence
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 Pri-
bilof 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.

Bi S52 Derr 15

226 ORAL ARGUMENT OF JAMES ©. 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. Itis a pursuit which is prop-
erly classified among the natural sources of danger to the herd just as
much as the killer whale; and I have at an early point in my argument
so considered it. It isinsignificant 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. Thatisa 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 condi-
tion 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 suffi-
cient extent. There is not a large population dependent upon it; but
it will not do, under cover 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 isa 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 gener-
ally not destructive because itis 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 for-
merly 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 diffi-
culties; 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; [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 different 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 trom 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
Jndian goes out and attacks and kills the seals for the purpose of sus-
taining 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-
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 com-
merce of the world. They were not furnishing themselves with cloth-
ing. 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 Russians discovered these regions, they

were inhabited by Indiaus, 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 Russians dis-
covered this countr y, 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 eiviliza-
tion 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 difter-
ence in right, according to your view?

Mr. Carvrur. 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 abso-
lutely a foundation of legal discrimination or legal difference?

Mr. CARTER. You mean that those that are employed on the Priby-
lof 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, sell-
ing 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 meas-
ure, 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 earried 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 per-
mitted 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 aright 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 wander-
ing—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 prac-
tice of nations.

The PRESIDENT. Is it in Canada?

Mr. CARTER. I do not know how it is in Canada.

Mr. TuPPER. Since the President refers to me, I will say that there
is a distinction in all those cases. For instance, 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 Gov-
ernment. 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 sub-
mit 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 govern-
ments 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 fish-
ing and hunting, the Indian is included as well as the white; but an
exception is madein favor of such as may take by fishing and hunting
for his own sustenance.

Mr. CartTER. 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 difticulty does not dispense with the necessity of a proper dealing
with it. How is it to be dealt with? Here were thousands and thou-
sands 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 pressiug
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 shall not 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? Js that the dietate 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 [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
treaties. 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 doin
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 civiliza-
tion 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 sup-
plying 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 prob-
lem 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 themin 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 prac-
tical difficulty in relation to the problem. Of course it is not to be sup-
posed 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?

22 ORAL ARGUMENT OF JAMES ©. 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 oiven to that pursuit.

Mr. Justice HARLAN. When you speak of boats you mean canoes?

The PRESIDENT. Yes; I understand that.

Mr. Carrur. I am told there is one tribe of Indians, at least, the
Makah Indians, who are on American territory, who do practice seal-
ing in boats to a greater or less extent. There may be others.

Let me say in concluding my argument upon this question of prop-
erty—and Iam about to conelude 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. How-
ever, you state that it is property in the sense of article 6, do you?

Mr. CARTER. Itis property in the sense that they are entitled to the
exclusive custody and management of it and to prevent any interfer-
ence with it from any quarter and to the direct profits of it; but when
I speak of the beneficial enjoyment, 1 mean the interest of the whole
world.

The PRESIDENT. So aecording 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
not come up 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 vari-
ous 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 pur-
suit of the animal. That is all they ask.

Assuning 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 whieh a property interest would
give until [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 Report of the British
Commissioners which [ intended to read in the course of my argument,
showing, that a husbandry is possible with the seals, and that it is car-
ried on on the Pribilof Islands. It is found on page 159. It is a news-
paper extract (reading):

The American fur-seal had a narrow escape of sharing the fate of its southern
kindred. Ina paper dealing with this subject, a writer gives the following account:

“arly 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, com-
menced, had not Russia first, and the United States afterwards leased the exclusive
right of kill ng 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 with-
out restrictions. Seals area property the State should jealously guard. On the two
Pribyloff Islands it is computed that 5,000,000 seals resort 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 RICHARD 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 RicHARD WEBSYTER. 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. (Read-
ing 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 con-
tinued 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 accordanée 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 con-
clusions of the compiler of this information. (Reading again:)

The Company who leased the right of sealing in these islands were restricted about
the year 1860 to 50,000 seal-skins annually. From 1821 to 1839, 758,502 \nur-seals were
killed, and 372,894 from 1845 to 1862. From another authority, Mr. Hittel, I find that
when the United States Government took possession of the islands in 1867 several
American 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-tishing 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 indus-
try carried on by it on the Pribilof Islands irrespective of the ques-
tion 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 sub-
stantially undisputed. They are these: that this industry was estab-
lished originally by Russia, 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 super-
fluous increase in order to supply the market; that no interference was
made with Russia 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 con-
tinued 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 Islauds, 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 pro-
tected 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 Russia formerly, and now carried
on by the United States is unquestionably a full and perfect right. That
isnot disputed. Itis 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 pre-
serves these races of animals and applies the benefit to mankind, while
at the same time, preserving the stock. In its several aspects, there-
fore, itis 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 pre-
vent 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 aright.” 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 aright? 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 /ree
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 assump-
tion 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 destray 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 destroy-
ing 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 appro-
priate 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 ?

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 destrue-
tion 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 bene-
fit 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 aword. 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 consti-
tutes 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 man-
kind 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 are free. They say: ‘‘ You cannot interfere on
the high seas with us and our industry, which is a rightful one. That
does not follow. Whether a thing is right or not depends upon its
moral qualities and, not upon the ability to punish it. A great many
wrong things may be done on the sea, because there is no municipal
law 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 pelagie
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 havea
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 par-
ticulars 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 con-
duct, 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, Iam 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, [ have considered the question of property in the
seals themselves and have done with it. Lam 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 indus-
try. Now, where a nation has created an industry by the aid of rules
and regulations which it has established; where it has brought ina
population to engage in that industry, so that the destruction of that
industry would deprive them of their means of subsistence, | 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 dispo-
sition 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 mere facul-
tatis; butit 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
‘sarry on this industry. These Pribilof Islands are one instance, and
there are others. In our Case are given many instances, where people
having aright of legislation have passed laws for the purpose of pro-
tecting 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 pre-
served 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 aright to the fisheries there, because she
had established an industry which had been maintained by her sub-
jects, 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 now as against other nations. But they
were originally, and they tend to illustrate my argument. They illus-
trate 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 ©. 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 indus-
try 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 situ-
ated contiguous to them, and in some instances for the benefit of the
citizens ot those nations only. In the American Case we have referred
to a great number of instances where laws have been passed to estab-
lish 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
terre, and, in certain exceptional cases, parts of the sea not lying inter fauces terre.

The claim applies strictly to the soil under the sea. Such claim may be legiti-
mately 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 asser-
tion upon which such legislation is founded? Why, that the state has,
by the operation of its rules and regulations, created a national indus-
try 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, Iam 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
aright of property in the land 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 a sserted right of
property is founded. Lam going to inquire into the validity of “these
reasons. They say it is a property right to the bottom, and that it exists
wherever the bottom may be occupied, and does not exist where the
bottom cannot be occupied. Well, that amounts to this, then, that
wherever a nation can occupy the bottom, although outside the territo-
rial limits, it may rightfully occupy it and exclude other nations from
it. But how can you occupy the bottom of the sea? Well, you can
occupy it only by taking such possession as is possible. You can buoy
it where you can reach the bottom, and establish a naval force and
exclude the citizens of other nations from it; and that is all the occw-
pation of the bottom that you can effect. The assertion on the part of
my learned friends is, that wherever you can take such possession of
the bottom, you can exclude other nations from it. Now that goes much
further than the argument of the United States, no part of which sup-
ports a general right to thus occupy the sea ‘outside the three-mile
limit. We do not assert any such right, nor do we suppose that any
such right exists; but that is their assertion ; and if it be true, you can
take possession of the bottom of the sea any ‘where; and if there is any
particular piece of coast off Great Britain, twenty miles away, where
the bottom can be easily reached, and which is a particularly favorable
place for carrying on a cod fishery or a herring fishery, Great Britain

an take possession of it and exclude the rest of m mkind from it. If
this bottom theory, upon which they put themselves, has any validity
or foundation, that ean be done. If the right to establish the industry
rest upon an ability to oceupy the bottom, then you can establish one
wherever you can reach bottom; and if you can establish it in one
place, you can establish it in another, I do not suppose it is possible
to defend any right like that over the high seas. Ido not suppose itis
possible to defend any such right as that over the fisheries of the seas.
There must be some other principle which may be called into play.

These regulations are found in the cases of oyster beds, coral beds,
beds where the pearl fishery is carried on, beds which are found in a
certain proximity to the coast of a country, and which can be worked
more conveniently by the citizens of that country than any other. We
find that the industries are confined to such instances, and in those
instances we find rules and regulations passed for the purpose of secur-
ing 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

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 eases, if the particular nation is permitted to establish and
carry out a system of national regulation, it may furnish a regular, con-
stant 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 has placed within our reach, rather thanin yours. We
can turn it to account; you cannot. We can use if so that it may pro-
duce 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 anindustry. There is a particular popu-
lation of ours devoted to the work. Now, you must let us prosecute it
alone. Itis 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 L understand. I donot understand that commerce
can be prohibited over them. Ohno; surelynot. Thereis 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 regu-
lations which it alone has the power to adopt and to enforce. It is con-
ceded 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 out-
side 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 whieh
it can defend from invasion by the citizens of other nations. The
explanation of this which is attempted to be made in the printed argu-
ment 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

BS, PT x1I——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 sheuld 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 ter-
ritory? Certainly not. It has no right todothat. Itis 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. AJl 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 doc-
trine 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 indus-
try 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 and 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. Itis 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 Puftendorf 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 »earl 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.

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
which they have taken to improve them.

IT 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 them-
selves in the enjoyment of such rights.

I must assume, in the first place, that if she has the right of prop-
erty 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
in some manner to enforce such right. Otherwise we should be talk-
ing to no purpose. What is a right which there is no means of enfore-
ing? 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. How 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 sover-
eignty 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 RUSSELL. 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 legisiate for everybody that came
within the limits of that legislative power. We make no such preten-
sion 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 foreign-
ers from it. Over the land 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, | 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 bellig-
erent 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 out-
side 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 reasonabie 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 suc-
cessfully 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.

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 cap-
ture 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 River, 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 con-
flict 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 assertion is 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 allis 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 pro-
tected.

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 asin 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 bellig-
erent conditious 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 pur-
pose of protecting theirrevenue. 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 theland. 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 oppor-
tunity 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 confisca-
tion. 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.
J 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. L| believe cases of that sort have given rise to inter-
national 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 avery 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
Reports, p. 189.) I read from the opinion of Mr. Chief Justice Mar-
shall on page 181 of my printed argument:

That the law of nations prohibits the exercise of any act of authority over a ves-
sel 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 torepel. 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 aright to prohibit any commerce with its colonies. Any attempt
to violate the laws made to protect this right is an injury to itself which it may
prevent and it has a right to use the means necessary for its prevention. ‘These
means do not appear to be limited within any certain marked boundaries, which
remain the same at all times and in all situations. If they are such as unnecessarily
to vex and harrass foreign lawful commerce, foreign nations will resist their exer-
cise. 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. Thug in the Channel,
where a very great part of the commerce to and from all the north of Murope 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 vigi-
lance of the government may be extended somewhat further, and foreign nations sub-
mit 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 occa-
sioned 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, isa 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
Reports. 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 par-
ticularly 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, and, under particular cir-
cumstances, to cases of collision. In the two first, the legislation is altogether
irrespective of the three mile distance, being founded on a totally different princi-
ple, 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. ‘This
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 2%, 1893.

[The 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 { should have answered it at that
time. I 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 sup-
posed 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 hela under other cireum-
stances. It is a full and absolute property, entitled to all the protec-
tions 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 sub-
mitted under the treaty.

I now resume my argument upon the Tecan 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 neces-
sary, 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.

250

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 con-
templating an enterprise of an illicit character, in violation of the exelu-
sive 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 | 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.
Kehbn.

With the citations of those commanding authorities, I might well
leave the subject. That decision in the narrowest view of it fully sus-
tains 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 oftence 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 sus-
picion that she is really contemplating a prohibited trade, if there is a
regulation which makes that conduct, of itself, a crime, that, we must

202 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 e 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 dis-
puted, 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 of a general
authority to legislate over the seas. It is limited strictly to the case
of selfdefence, and is calculated to provide means by which that right
of self-defence may be more efficiently exerted; but, nevertheless, it
dees 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 Rose vs. Himely, which is reported in 4th Cranch, page 241.
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 opin-
ion 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 argu-
ment 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
Rose v. Himely—his dicta to the contrary effect—were overruled; and
therefore, so far as the Supreme Court of the United States is con-
cerned, 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 i in a violation of the right of a nation, and con-
stitute a prohibited area within which a vessel must not go, whether
upon a rightful or a wrongful mission, are in accordance with inter-
national 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 that we can estab-
lish 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 ©. CARTER, ESQ. 253

can punish the officers and crew of such vessel. That would be legis-
lating for the high seas. Wedo 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 prop-
erty 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 in 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 conde-
scended, in the defence aud 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 com-
plaint 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 ander such circum-
stances 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 foree—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, [ 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 sepa-
rated 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 law-
fully 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 per-
sons upon terms of absolute equality. In legal contemplation they are there when-
ever the interests which they are bound to defend, such as their property, their citi-
zens, 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 munici-
pal 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 exer-
cise of the power which exists independently of them. In constitutional govern-
ments, 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
made.

EKighth. 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. 200

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 sov-
ereign 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 John-
son, 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 rights 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
true.

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 run-
ning 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 pro-
vided 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 sub-
jects 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 pre-
scribed 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 par-
taking 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 seal-
ing, nor upon a right to establish any area of exclusion around any part of its terri-
tory. 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 1n the taking of seals
at sea, it would have the right to prevent such taking of seals in the only manner in

or

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 men-
tioned 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 pas-
sage of a law regulating the exercise of such right and providing for a mode of con-
demnation 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 perceivesno particular in which they are 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 condem-
nation otherwise valid,

Sixteenth. The familiar law of piracy illustrates and confirms the foregoing con-
clusions. 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 partof it, to capture tie 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 pre-
vent 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 them-
selves, but has a property interest in the industry which it maintains
upon the Pribilof [slands—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 right-
ful 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; butif 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 employ-
ment 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 char-
acteristics of a right.

We defend it, in the next place, upon the practice and usage of
nations, Wherever a nation is shown to have aright 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-
vy -nt of reasonable force.

Now, Mr. President, I have concluded my argument upon the ques-
tion of the right to employ torce upon the high seas. I must now con-
template 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 con-
demnation 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 RUSSELL. I beg my friend’s- pardon fora 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
VII, 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 obsta-
cle; 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 considera-
tions 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-

BS, PL XU——17

258 ORAL ARGUMENT OF JAMES C. CARTER, ESQ.

ment, according to their own convenience. We have merely asked the
counsel in the proceeding e 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 accord-
ing 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 sepa-

rately 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 bis 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 regula-
tions, I do not concur in that view. And I 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 coneurring 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 other-
wise 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. Ido not understand that there is any differ-
ence 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.

3ut 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 argu-
ment 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 coun-
sel 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 con-
sidered 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 mat-
ter of division of work between themselves. One of them will begin
speaking about legal points; another will continue about legal points
and then afterwar rds resume the argument with reference to the regu-
lations.

ORAL ARGUMENT OF JAMES C. CARTER, ESQ. 259

Sir CHARLES RussELL. If I may with propriety interpose, there is
no reason why I should not explicitly state what we mean. What we
mean is this: That my 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 cali upon us to give a decision upon the
five points before your argument upon the question of regulations?

Sir CHARLES RUSSELL. No, my Lord, I have not suggested that
at all.

Lord HANNEN. That is the only question upon which it is supposed
there is a difference between us, and that will, of course, disappear in
view of your explanation.

Sir CHARLES RUSSELL. I ought to state, perhaps, that I 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 [ think my learned friend will
say that he recognised my suggestion as a reasonable one.

Mr. PHELPS. Yes; the course suggested by Sir Charles Russell will
be quite acceptable to us. The only 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 criti-
cism 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
themselves as they like. The Tribunal have agreed in leaving all liberty
to counsel for either party to argue their case as they like, and the Tri-
bunal 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 sev-
eral 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 out-
set, 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 argu-
ment 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 considera-
tion 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 Tri-
bunal should consider what measures the two nations should take con-
jointly with each other to that end.

There is, or may be, a question as to the interpretation of article VIT
of the 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 coneurrence of
Great Britain is necessary to the establishment of Regulations for the proper pro-
tection 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 cobperate in securing the adhe-
sion of others Powers to such Regulations,

The language which is used in the beginning of this article is “If
the determination of the foregoing questions as to the exclusive juris-
diction of the United States”. There are five foregoing questions and
all the five seem to be embraced by that language. And yet when we
Jook 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 justi-
fies them in exercising aright 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 interpre-
tation, but as L have already said in a former part of my argument, it
is not necessary to go into any nice interpretation of the language in
that particular; for whichever interpretation we adopt, the same result
is practically reached.

I say it is of no practical consequence which view is adopted. The
same result will follow, whatever answer is given to this question of
interpretation; for all the five questions are to be determined before
the Tribunal is called upon to consider the question of regulations; and

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 fowr questions only, and those should be decided
against the United States, it will be necessary for the Tribunal to con-
sider 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 relat-
ing 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 opin-
ion 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 ques-
tion 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. Fitness for the accomplishment of that end is the require-
ment, 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 inter-
pretation may be set up, and that some limitations will be sought to be
imposed upon the regulations which may be recommended by this Tri-
bunal. 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 betaken. It cannot be maintained.

In the first place, it is not expressed in the Treaty. No such limita-
tion 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 cooper-
ate 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 bea 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 counsel 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 1 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, and is not to be an award in full force from the time it
is recorded and delivered here, I will withdraw from this Tribunal,

Mr. CARTER. 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. Iam 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 and the United
States?

Mr. CARTER. Yes. There is further evidence derived from the cor-
respondence which preceded the Treaty that it is subject to no such
interpretation as that. After the Treaty had been reduced substan-
tially to the form in which it now stands, but before it was signed by
the parties, although its phraseology was understood to be complete, a
suggestion came from Lord Salisbury that the award of the Tribunal
upon the subject of regulations should be made conditional upon the
consent of other powers. That suggestion will be found at page 339
of volume I of the Appendix to the Case of the United States ina
note from Sir Julian Pauncefote to Mr. Blaine. He says

British LEGATION, Washingion, November 25, 1891.

Sir: Linformed 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 nade 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, which is as follows:

(The Arbitrators will remember that the present article 7 stood orig-
inally 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 protec-
tion and the preservation of the fur-seal in or habitu: illy 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 evidence as either Government may submit.
The contracting powers furthermore agree to cooperate in securing the adhesion of
other powers to such regulations.

Lord Salisbury desires to make the following two reservations on the
above article:

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 reenlations w ill 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 reser-
vations, 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 OF STATE, Washington, November 27, 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 IJ should sign them, and thus authenticate the points for the Arbitra-
tors 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 wellas 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
meaning.

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 Ist 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.

I have, etc.,
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 the 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 re quest, 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 Pr esident
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 RussELL. 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 RUSSELL. Yes, if you kindly would. It is in the
second paragraph on page 344,

Mr. CARTER. The letter is short. It is from Sir Julian to Mr.
Blaine:

British LeGATION, Washington, December 11, 1891.

Str: J 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 lord-
ship to the following effect: In view of the strong opinion of the President, reiter-
ated 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 Presi-
dent’s : appeal and not press for further discussion at this sti we.

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 under-
stood 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 Depart-
ment 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 OF STATE, Washington, December 14, 1891,

Srr: 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 atfect the decision of the Arbitrators. We under-
stand 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
Governments.

For Lord Salisbury to claim the right to submit this new point to the Arbitrators
is to entirely change the Arbitr ation. The President might in like manner submit
several questions to the Arbitrators, and thus enlarge the subject to such an extent
that it would not be the same arbitration to which we have agreed. The President
claims the right to have the seven points 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.

Iam 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”, ete.

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 contem-
plate that the regulations should | pe 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 con-
ditioned. That was refused. He then wished to reserve the right to
argue before the Arbitrators that the regulations should be so condi-
tioned. 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-

266 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 difficnlty 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 suchas
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 what-
ever regulations are recommended by the Tribunal shall be applicable
to Bering Sea only, and not to the North Pacific Ocean. I do not
know whether that will be persisted in. It may be. The ground sug-
gested is that the whole subject of original controversy was the author-
ity 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 con-
fined 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 ofan 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 orig-
inally placed by Sir Julian Pauncefote; and at every stage of this con-
troversy, it has been the avowal of those who represented Great Britain
that it was her supreme desire that this race of seals should be pre-
served 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 differ-
ence 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 terri-
torial waters. If it turns out, in point of fact, that regulations opera-
tive upon the North Pacific are necessary, I say, it would be imputing
to Great Britain a piece of insincerity to say that, she did not intend
or did not desire, to have the race of fur-seals preserved in such a case
as that. If she is sincere in 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 sub-
mitted by Sir Julian Pauncefote, which will be found in Volume I,
United States Appendix, page 311. The fifth article of that is as fol-
lows:

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 arbitra-
tors, 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 Pacifie
Ocean as well, and designed to protect not only the seals belonging to
the Pribilot Islands, but the seals of Russia 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.)

is disposed to authorize 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 she will

concur in a reference to a joint commission to ascertain what permanent measures

nie necessary for the preservation of the fur-seal species in the Northern Pacitie
cean.

268 ORAL ARGUMENT OF JAMES C. CARTER, ESQ.

There again the Government of Great Britain is pressing the Goy-
ernment of the United States to assent to its idea of the constitution
of a commission for the purpose of making inquiries as to what pro-
tective regulations shall be necessary to preserve the race of seals in
the North Pacifie Ocean, no matter where they belong.

Mr. Wharton’s answer to this was written the same day:

DEPARTMENT OF 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-
ment, to the appointment of a joint commission to ascertain what permanent meas-
ures 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 con-
tains the explicit statement that the measures wore 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
Report of the British Commissioners, page 7. It was signed by the
parties in December.

The PRESIDENT. I think not. “Ratification 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 18th of December.

Mr. CARTER. The two agreements signed by the diplomatic repre-
sentatives of the parties, namely, the agreement for the arbitr: ation,
and the agreement for the appointment of the joint Commission, were
signed December 1sth, 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 instrue-
tions to the British Commissioners. “I read from about the middle of
that letter. Itis 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 Com-
missioners 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 ‘ot exclusive jurisdic-
tion put forward on behalf of the United States. :

The Report is to be presented in the first instance to the two Governments for
their consideration, and is subsequently to be laid by those Governments before the
Arbitrators to assist them in determining the more restricted question as to what,
if any, Regulations are essential for the protection of the fur-bearing seals outside
the territorial jurisdiction of the two countries.

Senator MorGAN. Mr. Carter, have you that clause 6 before you?

Mr. CARTER. Of the Treaty?

Senator MORGAN. No; it does not say the Treaty, as I 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, ESQ. 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 arbitra-
tion 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 aremodeling 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 agree-
ment 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. FosrreR. 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 inter-
pretation 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:

Srr: 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 per-
manent 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 lim-
ited to Bering Sea, is found im 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 regu-
lations for the killing of the fur seal in any part of the waters of Behring Sea, then
it shall be further determined, ete., ete.

You will observe there that the language of the regulation here pro-
posed is: “killing of the fur-seals in any part of the waters of Bering
Sea”, giving some ground for a suggestion that the Regulations were
to be confined to Bering Sea; but, after the correspondence which I
have referred to, and in which it was indicated tpon both sides that
there was a necessity that the Regulations should extend outside Be-

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 protec-
tion and the preservation of the fur seal in, or habitually resorting to, the Behring
Sea, the arbitrators shall then determine, etc., ete.

The words, ‘‘or habitually resorting to,” are now introduced indicat-
ing 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 Regulations ought not to be limited
to Bering Sea, but that they should be extended to the North Pacific,
I point to the Report of the British Commissioners. ‘They think they
should be operative on the Pacific Ocean and not confined to Bering
Sea. The suggestion upon pelagic sealing which they themselves pre-
sent in their Report and which is made part of the British Case is that
it is necessary that the prohibitions shall apply not only to 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 seal-
skins 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, in 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 Govern-
ment, and a Report was made to the Privy Council of that Government
, I z )

lod

which is found on page 75 of the same part of the British Appendix
(reading) :

Report of a Committee of the Honourable the Privy Council, approved by his Excellency
the Governor-General in Council on the 27th June, 1891.

The Committee of the Privy Council have had under consideration certain papers
from the Colonial Office on the subject of the seal fishery in Behring’s Sea.

The Minister of Marine and Fisheries, to whom the matter was referred, observes
that Mr. Hawkins states “since about the year 1885 we have received in this country
(England) large numbers of seal-skins, known in the trade as the north-west coast
skins, the same having been taken in the open sea, and, from appearances that are
unmistakable to the initiated, are exclusively the skins of female seals pregnant;
these are all shot, and I have been informed that for every skin recovered five or six
are lost through sinking when struck by the shot. . .”

Two paragraphs further down the Report proceeds (reading again):

The Minister submits that the testimony produced by Mr. Hawkins in this connec-
tion 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

ORAL ARGUMENT OF JAMES C. CARTER, ESQ. 271

although great 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 opera-
tions 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. Haw-
kins proceeds: ‘We, on the other hand, during my experience have had annually
large numbers of seal-skins from Alaska, and also from the Copper Islands, which
are killed by being clubbed on land, and are selected with 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 any 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 dis-
puted 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, Lread to the same effect passages from the Report
of the British Commission which I have just referred to, page 22, sec-
tion 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 propor-
tion 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, dur-
ing which time it includes a considerable proportion of gravid females, then com-
mencing 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.

(b.) 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 win-
ter 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 addi-
tional provision that no sealing-vessel shall enter Behring Sea before the 1st July in
each year.

So that we see that not only is there no ground for an interpretation
of the Treaty limiting the Regulations to Bering Sea, but we have it
fully recognized on the part of Great Britain that necessity requires
such regulations in the North Pacific as well as in Bering Sea.

272 ORAL ARGUMENT OF JAMES ©. CARTER, ESQ.

Having treated of the limitations sought to be imposed upon the Tri-
bunal in respect to the contriving of Regulations for the preservation
of the seals, | come to the real problem. What is the problem before
this body on this branch of the subject? It is to contrive such Regula-
tions 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 man-
kind 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 con-
sideration 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 cen-
turies, 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 man-
kind the annual increase while at the same time preserving the stock.
How else, can the problem be solved? How can you preserve to man-
kind 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 award-
ing them the benetits of the right of property? If you will allow to
them the reward of their abstinence; if you will induce them to exer-
cise 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 Regulations is the same as that which arises in consid-
ering 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 net 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 Regulations
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 of the animal, and prevent, by Regulations, 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 Regulations which will bring about the same results as
would flow from the institution of property.

Senator MorGAN. Do you regard the words “protection” and
“preservation” in the seventh Article of the Treaty as being strictly
synonymous?

Mr. CARTER. “Proper protection and preservation ;”—I think those
two words are, if not absolutely synonymous, very nearly so. They
were employed in order to more fully 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 ourinquiry. 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 ascer-
tained 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 pur-
suit 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 toacertain point without diminishing the birth-
rate; 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. Sup-
pose 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 pro-
duct which 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 Regulations? Simply that it can propose no Regulation save
one; and that is an absolute prohibition upon the killing of seals any-
where 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, inits entirety. If we were to propose any regu-

BS, PT xJI——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 pelagie 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. Sucha
Regulation 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 Commis-
sioners, to consider what has been proposed. And I suppose we may
say that if there is a possibie 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 pro-
found study of the subject, and if the problem is capable of any solu-
tion which will preserve peijagic sealing at all, they must have found it
out. And 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.

(b) 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 Ist
July in each year.

156. Respec ting the compensatory feature of such spec ific regulations, it is believed
that a just scale of equivalency as between shore and sea se aling wonld be found,
and acomplete 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 measures at sea and ashore sufticiently equiv-
alent for all practic al purposes, and probably embody or provide for regulations as
applied to sealing on the high seas as stringent as w ould be admitted by any maritime
power, whether directly or “only potenti: uly 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 ever y 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 prohibite d on the islands, you might have a protected area of
70 miles in diameter! The British Commissioners do not suggest that
last limitation. 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 kill-
ing of seals in 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 180,000 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 Regulation restricting the United States
upon its own soil; that was never thought of by either of the Govern-
ments when they were engaged in framing the Treaty. But the pro-
posed Regulations 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, and 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,
isruinous. It is admitted that it involves the destruction, and probably
the speedy destruction of the herd. The proposed limitation is sup-
posed 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 be
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 Report, a starting point upon which to operate.
They have said, in Section 60 of their Report, 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 state 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 conse-
quence of the enlarged season of commercial killing and the allowance of ‘‘ food kill-
ing” 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
erttical condition. Of course there is a point beyond “which you cannot
go in the taking of young males. You must leave enough for the pur-
poses of reproduction. Whatis the limit? The British Commissioners

say that 100,600 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 prob-
ably could not carry it much beyond that. Now take the British Com-
missioners 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
arace 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 Commissioners own hypothesis that must betrue. Now,
what assurance have we that, limiting the catch in the manner pro-
posed, there will not continue to be taken 20,000 and even 50,000
temales? No restriction is plaeed 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 Ist 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. Weknow
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 addi-
tion to what the present market price offers. It has been rapidly
increasing all along. But what will be the effeet when the supply from
the islands is cut down to the extent of 50,0002 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
protit. Itis certain that the pelagic sealers would furnish them. They
could doe 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
fromthe Pribilof Islands, which raise the price 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 reduc-
ing 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 the price of a commodity without increasing the outlay
ot the consumer,

ORAL ARGUMENT OF JAMES C. CARTER, ESQ. 277

Then, who is to carry out these Regulations? 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 adozen at least must be sent there by one, or
both, of the Governments for the purpose of enforcing these regula-
tions; and it would cost not 100,000, but many hundreds of thousands
of dollars—perhaps a million w ould be annually required to beexpended
under this scheme in order to enforce these prohibitions. ~

And their enforcement would be most difficult, because the pelagic
sealer has aright 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 pro-
tected 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 destruc-
tive practice which will exterminate the seals inafew 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 conclu-
sion 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 diminish-
ing 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 GC. 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 itis not injurious. Thatis true. It would not be any dam-
age to take barren females; but who ean 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. Hesays there were 250,000! Butno 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.

Whatis their own view of taking females that are not barren? They
have expressed it thus; [ read from section 80 of their report, whichis
on page 13:

80. To assume that the killing of animals of the female sex is in itself reprehen-
sible or inhuman, is to make an assumption affecting all cases where animals are pre-
served 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 per-
missible 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 re ading :]

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 main-
taining 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 agr avid 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 ayear. Theabsolute amount of the injury
is almost the same, not exactfy 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 Jor the
preservation of the fur-seal. Are theseregulations 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 i is consistent with the preservation of the.
herd, and which i is agreeable, as far as the killing of animals can be made

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 destr uc-
tion 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 bleat-
ing young fallon 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 regulations 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 ther -egulations which the civilization and humanity of Europe,
seated on that bench, are expected to approve?

Mr. President, [ 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 perfor m 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 vorld—
history, in making her final award—would have charged all the respon-
sibility 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 unutter able dread, always inclined to
pacific measures, when a Tribunal was offered, made up from the selected
wisdom of the world, for the determination of the rectitude of their con-
tention against Great B ritain, 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 race
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 estab-
lishment 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 con-
sistently 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. If 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 refer-
ence 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, May 2, 1893, at 11.30
o’clock. |

PUR-SHAL ARBIPRA TION:

ORAL ARGUMENT

Or

Hi hint oy. COUDER TL, Hse.

ON BEHALF OF THE UNITED STATES.

ORAL ARGUMENT OF MR. COUDERT.

SIXTEENTH DAY.

Paris, May 3, 1893.—11.30 a, m.

The Tribunal convened pursuant to adjournment.

THE PRESIDENT. Mr. Coudert, we are ready to hear you.

Mr. CouDERT. May it please you, Mr. President, and members of
this high Tribunal, at the close of yesterday’s proceedings, the Presi-
dent of the Tribunal in terms of graceful as well as kind eulogy
expressed his opinion, and I am quite sure the opinion of other members
of the Court, as to the character of my learned brother’s argument, and
congratulated him, as well he might, and also the Court itself, upon the
manner in which these most important topics have been treated ; and
he especially alluded to the lofty grounds which had been assumed and
developed by him. If I may be excused for referring personally to
myself and trying in advance to crave and obtain the indulgence eof the
judges whom T now have the honor to addr ess, I may say in all frank-
ness and without false humility, that I cannot expect from the nature
of things that I shall receive the same honorable compliments at the
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 theargument. ‘To
use an expression which will be familiar to two at least of the arbi-
trators, he has preempted the best locations. He has taken the highest
grounds, as the President has truly said; and 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
side, for their reputation is not bounded by locality, or by the limits of
the seas. I know that they are ingenious, able and experienced enough
to meet any argument, however sound and however excellent; but
unless this argument of my learned friend is based upon fact, then
indeed their contentions must prevail and all the learning and patient
industry, so lavishly bestowed upon his work, will be in vain. Like
the house that we read of, it would be built upon the sand and easily
destroyed. With a substratum of undisputed fact, or fact trium-
phantly demonstrated, like the other building erected upon a rock, it
must resist assault triumphantly.

283

284 ORAL ARGUMENT OF FREDERICK R. COUDERT, ESQ.

After all, then, though my task in discussing the facts does not pos-
sess those intellectual allurements to this Tribnnal, 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 impor-
tant 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 along preface to say that I shall be mainly confined to the
facts; but I shall endeavor—and I shall ask the patience and forbear-
ance 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 experi-
enced 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 1 did not attempt to bring some-
thing 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, every one 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 mis-
fortune 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 sucha people, and you would say that they must be
protected. There must be, in the principles of humanity which regu-
late 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. Itis 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 ourislands. Itis 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 must elect
between the two—between the process of civilization, of economy, of

286 ORAL ARGUMENT OF FREDERICK R. COUDERT, ESQ.

intelligence, of preservé ation, 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
betore 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 civil-
ization and humanity. You are here to declare what right is in these
cases unfettered by statutes, uncontrolled by limited jurisdiction, view-
ing 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: [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 induce-
ments of the United States to pay a large sum of money to Russia was
the fact that there was on the territory ceded a valuable industry, well
settled, well recognized and undisturbed. If prescription means any-
thing, 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*l 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 territor y, isprobable; but
look at the difference; it is one that should not be iost 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 dyn: mite? 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, ‘Fishing by dynamite is
unlawful fishing.” By what principle and upon what reasoning is it
unlawful? It is not by some medieval precedent that you can prove
this; because fortunately, or unfortunately as you please, in those times
meu 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 gun-powder? Are they not both of them for all prac-
tical 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 2 2

To start from a point that is certain, to reach one that may be uncer-
tain, have we any rights of property at all as to these seals? Here for-
tunately 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 RUSSELL. Certainly not.

Mr, COUDERT. Well, I gave you credit, and I take it back. I sup-
posed that when we held the seal in our hand, I supposed that when
we slit its ear, 1 supposed that when we could put a brand upon it, that
it was ours, as much as if was a lamb or aewe. Where the difference
enters I am 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 abso-
lutely 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, with-
out 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, notwith-
standing 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 advan-
tageous 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 law-
fully 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 and 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 con-
cession, but I care very little whether it is a concession or not. I take
it to be plainly true.

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 inefti-
cient; 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 may be 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 inter-
dicted. 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 violat-
ing 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 notissue
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 perishif that mother dies. May a pirate or poacher liein 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 doc-
trine 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, know-
ing 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 destruc-
tion 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 accom-
plish. If you destroy the means whereby I live, do you not take away
iny 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 exist-
ence 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 Brit-
ain. In fact I know of no law which does not interfere to protect use-
ful 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 coun-
tries 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 beneticently
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; he takes no finan-
cial steps which entail responsibility, because of his disposition to dis-
sipate the capital that he owns. Wherethe capital is suttered to perish
the whole source of happiness and prosperity that flows from its proper
use 1S gone.

It is claimed that these are animals fere nature. Ido 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 isone 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 /ere
nature? 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 Cominissiouers,
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. Iam 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. ‘“‘dJ’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 cer-
tain 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 infrac-
tion 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, avout them in this particular is that

BiS5) PE MLE 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! Itis
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 terres-
trial 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 alamb. ‘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 fere nature 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.

ITsubmit that under those circumstances to call those animals fere
nature is a misnomer. Granting, if you please, that they are amphib-
ious 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 ferw nature? They go to sea, it is true, but only because
there they find their food. As one of the witnesses whose deposition
IT 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 ani-
mals. 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 fere nature, 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 ani-
mum revertendi. They are not like wild geese or wild ducks. They are,
if you please, of their own kind. The seal isan 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 y7! it has been said by Buffon that it is not correct
to call the otter an 2:27 sibious animal, because he partakes so largely
of the character of a liod animal.

But however this may be, call the seal, if you please, an amphibious
animal, 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 impor-
tant than the life of the seal. It should not be interfered with. ButI

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
in the language of our Chancellor Kent is meant for “inoffensive pur-
poses,” 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 approach-
ing 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 recog-
nized. In Mr. Phelps’ argument this subject is discussed most care-
fully and clearly. I shall read merely a few extracts in order to give
point and accuracy to my remarks. I read from page 132:

Kven upon the ordinary principles of municipal law, as administered in courts of
justice, such a property would exist under the circumstances stated.

The circumstances, that is, the migration of the seal and the tempo-
rary 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 become by 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 have 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 terri-
tory 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 ani-
mals, 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 exeept by my own act or the superior act
of a superior power; but here my ttle depends, to a great extent, upon
the will of the animal. The animai 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 bylaw, 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. If 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 Sere nature, but yet capable of being partially subjected to the control of

man, as is fully shown by 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 domes-
tic 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 suit generis. As
stated in the argument:

Their home on the American soil is not only of their ownselection, but is a perma-
nent 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 propo-
sition 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 property in 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 ‘territor y, are not inexhaustible

IT 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 w ould 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. Jam not
in the slightest degree disposed here to minimize the force of the argu-
ment 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 Russia 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 Gov ernment as the
foundation of an important national concern, and in which it is assailed by the Cana-
dians 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
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.

“The various uses of the sea,” says Vattel, “near the coasts render
it very susceptible of property. It furnishes fish, sbells, pearls,
amber, ete.; 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 ¢ onveniently 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 lite
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 pi oceeding to read further from Mr, Phelps’
argument an extract which I deem most material; but it is well to
pr eface 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 on
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 Russia 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?

From such a slaughter the United States is not bound to refrain, if the only object
is to preserve the animals long enough to enable them to be exterminated by for-
eigners at sea. If that is to be the result, it would be for the interest of the Gov-
ernment 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 pre-
served. 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 any-
thing is against good morals, it isa practice by its nature calculated to
undermine sound principles of humanity and to contract their growth.
This pursuit directed almost exclusively against that class of animals,
that are the favored children of the law in every civilized country,
must be against good morals. It is not possible that a pursuit which
is likely, nay, which is certain, to exterminate a useful race, can be per-
missible. Some remedy must be found. This high court Will find it,
and must find it; as it is conceded by all that this ris a useful race, as it
is conceded by all that it is being diminished and ruined and destroyed,
surely the result must follow and some remedy must be applied. There-
fore it is said in this brief:

The method of pursuit employed by the Canadian vessels, and against which the

United States Government protests, not only tends to the rapid extermination of the
seal, but is in itself barbarous, inhuman, and wasteful.

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 kill-
ing of female seals at any time is made criminal by the statutes of the
United States.

The destruction during the breeding season of wild animals of any kind which are
in any respect useful to man, is prohibite d, not only by all the instincts of humanity,

but by the laws of every civilized country, and especially by the laws of the United
States and of Great Britain.

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. J read from page 139:

The depredations in question, dignified in the Report of the British Commission-
ers by the name of an ‘industry, ” are the work of individuals who fit out vessels
for this purpose. Their number, though increasing, is not great. The business is
speculative, and as a whole not remuner: ative, though it has instances of large gains
which stimulate the enterprise of those concerned, and make the prospect ‘attract-
ive, like all occupations which have a touch of adventure, an element of gambling,
and a taste of cruelty.

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 repert, 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.
Iam 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 avail-
able 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.

As it is impossible, when seals are hunted in the water, that the sex can ever be
discriminated before the killing takes place, it follows that if what is called ‘pelagic
sealing” is allowed to be carried on, the enormous proportion of pregnant and suckling
females and of nursing young before referred to, must continue to be destroyed.

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 wil-
ling 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 com-
pensate them for the risk. So far as the raids are concerned the United
States asks no help from this high Tribunal, or from any one 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 aright 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 mis-
sion. of destruction. Thbis,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. Raids 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 neigh-
bor’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 ques-
tion 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 estab-
lishment 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 haveexamined 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 pur-
pose without being prohibited?

Mr. CoupERT. I suppose that this is conceded. There is no ques-
tion about it; and when I speak of pelagic sealing I am speaking of a
eriminal act. The seais open to all for innocent purposes; and I might
coneede, for the sake of the argument, that the British sealer has just as
much right to kill seals as the Ainerican 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. CoupERT. No, not on the coast: in the Bering Sea. We have
not yet undertaken to prevent that; and we come to ‘this court to pre-
vent it.

Senator MoRGAN, But if the killing of seals on Jand 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 prop-
erty 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 L 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 it
is. Russia has transferred to us all the right it had. The United
States might have done one of two things. The United States might
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. Ora
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 mininum—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, 1 am glad to say, reluctant to go into any busi-
ness 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
many men something ‘that should be avoided. Then there was only one
other alternative—to form a corporation under the best possible con-
ditions 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 isan 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. COUDER’. 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 ques-
tion has ever arisen on that subject; ‘and [ 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 MorRGAN. 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 Iwas answering one of the learned Arbitrators, and I come back
to the point. Itis a test, an excellent test, as to the question on which
I thought we were agreed; but from Sir Charles Russell’s remark, I
think we are not. Senator 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 ar med with catts and rifles and guns, we know that they are

malefactors. We know that they do not come there to enjoy them-
selves. The climate is not one that permits it; and the social ameni-
ties 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 hos-
pitalities of the place. When men go there in a boat, with certain
appliances, you may be absolutely certain that they are eoing there ona
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. CouDER?. 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 Russia, 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 abso-
lutely 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.
Our 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 permitted
you, 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. CoUDERY’. 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 aright to consult its own safety and conven-
ience, 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 nations is firmly
established.

You will see here the cautious language that this great jurist uses.

Sir CHARLES RUSSELL. That last statement is by: an English jurist,
not Kent.

Mr. COUDERT. Does not Kent adopt it?

Sir CHARLES RusSSELL. 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 RUSSELL. Oh no.

Mr. CoUDERT. Kent says that the vessel in time of peace may pursue
its own course and business on the high seas when it does not violate the
rights of others. Ifit does violate the rights of others, it is not inof-
fensive, and therefore the sentiment is the same. Still, I am obliged
to Sir Charles Russell for correcting me. I was wrong.

So with regard to Mr. Justice Story, another of our most distin-
guished jurists, and long a member of the court to which one of your
‘Arbitr ators 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 wlere tuo ut alienum non ledas.

Are they doing us no injury when they es toy our property by kill-
ing the pups throu gh 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 sac-
rificed 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 pur-
pose 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 the
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 aman is ina ship. Right does not
abdicate because it steps upon the quarter deck of a man-of-war, or of
any other vessel. Right is right, on land and on sea; and the expan-
sion 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 propertyis ours. Itis 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 thecode that 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 govern-
ment of its citizens, we must look to those broad principles which pro-
hibit wrong and encourage right, and are common to all the civilized
nations of the globe. The question is, What is right? Is there any-
thing 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 com-
posed 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 crim-
inal 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 anew case in any sense, except that by the nature
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 toonarrow. We go beyond them. If those illustrations
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 Russia has
insisted upon doing, to say: This is our property; no one shall inter-
fere with it—or, to come before you, not abandoning or waiving one
iota of our original position, but as Mr. Carter so eloquentiy stated
yesterday, to avoid all possibility of collision, submitting our conten-
tions to an impartial and enlightened court, and praying that it may
lay down a principie 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 Iam 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
property is held, that is, all that kind of property that i 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 arbi-
trary 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 tave aluable industr y 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, w ay 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 [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 com-
mon consent of mankind.

VISCONTI DE VrNOSTA. 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 application 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. CoupDERT. 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 Russell 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 [ 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 1563,

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-extensive with the area of land and sea bounded by the following parallels
of latitude and longitude, viz., 33° N., 538° S8.; 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, see. 2).

In 1873 the legislature of NE Zealand passed an act to protect the seal fisheries
of the colony, which provides:

(1) For the establishment of an annual close season for seals, to last from October
1 to June 1.

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. Itis the ciaim 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 Govern-
ment 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. CoupERT.—I intended to say a word upon that, and [ 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 Revenue
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 OF 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 terri-
tory 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 arguinent, 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 1 know for instance under the old Jaws of
Prussia, and to-day, of Germany, the arm of the law will reach a citi-
zen 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 citi-
zens 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 con-
nection with the facts—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, therefor e, | prefer not to rest upon it. Other illustra-
tions are very strong and sufficiently prove the position that I have
endeavoured to take, and 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 regula-
tions, 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 exer-
cised 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 Ameri-
can 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 assump-
tion of right—an exercise of jurisdiction—and it makes very little dif-
ference 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 pas-
sage 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 under-
stands 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 Rome when he could say “I am a Roman citizen,” and, when he had
said that, the hand of the torturer was stayed and the arm of the tor-
turer 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 trying 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 por-
poises 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 ease and in the
case of Chili, Japan, Panama and other nations, that these only apply
to nationals and not to foreigners. I donot 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 forbid-
den 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 and 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
eases. I take it that the ruleis 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. If 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 simi-
lar 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 per-
formance 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 distin-
guished 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. COUDERT, ESQ. 305

upon the bottom of the sea and never frequent the shore? In order to
reach them, must you not go upon the sea? Must you not go below
the sea? Must you not protect the sea? Is not the surface of the sea
the space that you must guard in order to guard the property beneath ?
It is true there is the difference that the oysters never frequent the
land. There is this difference in our favour, because, to that extent,
the seal is a land animal and, to the extent that I have stated, it is a
domestic animal.

I hope that this discussion has not wearied the Court or been entirely
without value if it has shewn, what I take to be the fact, that we do
not really differ upon this question, but that, upon the substance, Great
Britain and the United States are agreed; and France would be agreed,
for her interests are the same and her conduct identical,—that any
national industry, even upon the sea, is to be protected, and that the
right of self-defence may properly, fairly and legitimately be invoked
whenever that industry is attacked. There are only two conditions
attached to that; first, is it necessary to use measures of self-defence?
And, in the second place, are the measures proposed reasonable? If
both those questions are answered in the affirmative, then the executive
act which puts resistance in motion and which vindicates national right
is complete, is justified and is law. And it is law that we want. Law
in its best sense, in its highest sense, in its most moral sense; the law
that would be expected not from a Statutory Tribunal, not the law that
would be expected from one nation or the other, confined within narrow
limitations which sometimes strangle the right; but trom a Tribunal
formed for the very purpose of expanding, enlarging and recognizing
the beauties and greatness of international law.

The legal principles contended for by our friends on the other side
are stated at page 55.

That by the universal usage of nations, the laws of any State have no extra-terri-
torial application to foreigners, even if they have such application to subjects.

With that, subject. to the limitation that I have tried to make clear, I
can find no fault.

That Great Britain has incorporated this principle into her own law by a long-

established usage, and a series of decisions of her Courts; and that the law of the
United States is identical.

With that I find no fault.

That the British Colonies have no power to legislate for foreigners beyond the
colonial limits.

That international law has recognized the right to acquire certain portions of the
waters of the sea and the soil under the sea in bays, and in waters between islands
and the mainland.

This, in its terms, I should not be willing to recognize, because it
recognizes the symptom and not the cause. International law has
recognized the right of Great Britain and other Nations to certain
Fisheries, to certain properties, not because it happens to touch the
soil under the sea, but because, as I endeavoured to show, the protection
of an industry was involved.

That the analogy attempted to be traced by the United States between the claims
to protect seals in Behring Sea, and the principles applicable to coral-reefs and
pearl-beds, is unwarranted.

The only difference is that the case of the seals is so much stronger,—
stronger for the reason that I have given, that it is not necessary, in
order to assert our jurisdiction and to handle our property, that we
should dive down to the bottom of the sea, These animals come of

BS, PT X1I-——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, dur-
ing 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 aright of property either in the seals
outside the territorial lie 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 whic h is assigned tous. It might happen,
perhaps that the United States would underti uke, 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 con-
fident that every Judge on the Bench and perhaps every Jurist on this
Bench has recognized that one of the great difficulties in this case is
due to the absence of what we call ple: Wings—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
thereiore of issues, has injected an element of confusion into the case
which it is very diffic ult 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
on the one side with a denial on the other side—in other words, to pre-
sent tothe Court in the clearest manner possible the various contentions
of 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 every-
thing; 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 clearly 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 ques-
tion 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 Govern-
ment of Her Majesty, had heen met in the fairest way, and a scheme
had been agreed upon, which at that time would have been as satis-
tactory 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 pr ohibition.

We have now reached the point when, through the exertions of both
nations and a willingness to adjust by diplomatic methods the differ-
ences 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 many of the Americans are engaged in this business
in violation ef 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, | will speak of the business simply as Canadian sealing
and 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; per-
haps it would not be possible to present the 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. Itis 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
KK. Foster, Acting Minister of Marine and Fisheries. Of course, the
statements emanating from such a source 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 resist-
ance 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 Marc h, 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 Ist November of each

year, and to be operative in the waters lying north of latitude 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. 8. 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 author-
ities 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 Minis-
ter 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 asa 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 inc luded, 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
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. 39

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
certain citizens of that country known as the Alaska commercial company, for which
monopoly the United States Government is paid a yearly revenue of more than
300,000 dollars.

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 amonopoly. Itis 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 pro-
prietors of the land.

Senator MoRGAN.—I suppose you mean a monopoly as to that herd—
not as to the Japanese herd or Russian herd.

Mr. CoUDER?T.—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 com-
plained 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 eall attention)
Says with Gallic humour, sense, and justice that it is an impot sur les
celibataires. But itis not necessary for me to depart, swerve—or as
Sir Charles Russeli would call it—to “shy”, from my subject. Iam
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 the
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, and to no other persons whatever, is it permitted to kill
a single seal within what is claimed as the limits of the Territory of Alaska.

That is true. Wedo 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 Salis-
bury 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.

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
Pacifie 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 con-
dition of that fishery in the North Pacitie.

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 con-
tent himself, not with denying that there is a pressing and absolute
necessity, but simply that it is not clear from any information then pos-
sessed that that pressing necessity existed? The fact is, that when
the case was well understood and all the facts before the parties inter-
ested, 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. George
Islands showed 6,357,750 seals, exclusive of young males.

That seems to be a very close calculation. Itis not 751”, or “753”—
it is “750”. How that is arrived at, I do not know.

Sir CHARLES RuUSSELL.—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 mor-
tality 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 folowing
year as yearlings to the rookeries leaving thus a total mortality of 45 per cent. from
various causes at sea,

It needs but a slight consideration of these figures to demonstrate that an addi-

tion of millions each year must be made to the surviving seal life in the North Pacitic
Ocean.

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 the rookeries could not
be better?”

This was the condition of things, if this Report 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:

PribilofAslan ds). so. 2ce-22 3. ee ee as oo ee eee eee 94,967
Commander Islands and Robben Reef..-.......-.........--+---- 41,893
Japanelslandsit ai iy ae cee ayes ee ee Sere eee are 4,000
Northwesticoast: of America 22 aoe he ee eee ee eee 25,000

Ora totaliot-¢ 22 222 ses oa eee ee eee ee eee 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 breed-
ing on the Pribilof Islands are preserved.

The time proposed as close months deserves consideration, viz, from the 15th April

to the Ist November. For all practical purposes, so far as Canadian sealers are con-
cerned, it might as well read from the Ist January to the 31st December.

ORAL ARGUMENT OF FREDERICK R. COUDERT, ESQ. 311

I beg that the Tribunal will notice this—that any reasonable curtail-
ment—any curtailment that is not purely nominal might as well be
from the first day of the year until the last. In that, lL entirely agree
with the Commissioner. Abstinence is easier than moderation, D™
Johnson said, as far as drink was concerned; and abstinence is easier
than moderation when it comes to this pelagic slanghter 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 and St. George as

well as in the waters of the Bebring’s Sea, it could at least be said that the ‘close
time would bear equally on all.

Sir CHARLES RUSSELL.—He says;—‘ Even in that case if it were
proposed to make this close season operative for all”—he means opera-
tive on land as well as on the sea.

Mr. COUDERT.

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 Beliring 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, four of the months of the proposed close sea-
son. 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
etfect 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 through-
out 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 gentle-
man attacked a flock of sheep mounted upon his horse, clad in armour,
armed with his good sword, and 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 per mitted me to find which ean 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-

312 ORAL ARGUMENT OF FREDERICK R. COUDERT, ESQ.

sive right of sealing has, during 1886 and 1887, been practicaily maintained by the
United States Government. To this is added a part of the North Pacific Ocean,
north 50° of north latitude, and which commands the approach of the seals to the
passes leading into Behring’s Sea. By the adoption of this area and close season
the United States would ain, by consent, what she has for two years held in
defiance of international law and the protests of Great Britain and Canada.

Whether it is in defiance of international law is a question as to which
the Tribunal may have something to say; but certainly Mr. Bayard did
propose this as the only just and reasonable way of protecting the
rights of the United States.

And while this area would be held closed to all operations except to those of her
own sealers on the Pribylof Islands, the northwest coast of North America up to the
50th parallel of north latitude and the sealing areas on the north-eastern coast of
Asia would be open to her as before.

The device. .

Lint successful, would feed and perpetuate the rookeries on St. Paul and St. George
Islands. . .

That i is true. That is precisely what we ask—that these rookeries,
the only home and place of protection of these animals, should be per-
petuated and fostered and taken care of and increased.

And add immensely to their value, while it cuts off at one blow the most valuable
portion of the high seas from all participation by the sealers of all other nations.

It is to be borne in mind that Canada’s interest in this industry is a vital and
important one, that she has had a very large capital remunerativ ely’ employed in it,
and that while by the proposed plan the other Powers chiefly interested have their
compensations, Canada has none. To herit would mean ruin, so far as the sealing
industry is concerned.

Mr. Bayard appeals to the Government of Great Britain on the grounds of the
labour interested in preparing the seal-skins in London.

It appears in the Case that thousands of hands are employed in London in pre-
paring these skins.

It is not necessary that the Alaska Commercial Company should do the sole catching
of seals in order to retain this advantage to London labourers. The sealskins taken
by Canadian sealers find their way to London to be dressed, just as surely as do
those taken by the United States Company. Solong as the fishery i is not exhausted,
London wili, other things being equal, retain the advantage she now possesses in
this respect. But Mr. Bayard must misapprehend the sense of justice of Her
Majesty’s Government, if he supposes that they would consent to an unjust deprivation
of Canadian rights, because of the alleged prospect of perpetuating some small pecun-
lary advantage to a limited section of her subjectsin London. Under this proposal
Russia would lose nothing. Her vessels do not now pursue seals in that part of
Behring’s Sea ceded by her to the United States in i867. Russia has valuable seal
islands of her own: the Commander Islands in Behring’s Sea, and Robben Reef in the
Okhotsk Sea, on which there are valuable rookeries, and the Russian Government
draws a considerable revenue therefrom, as they are under lease to this same Alaska
Commercial Company. This part of Behring’s Sea does not fall within the proposed
closed area.

It has been already shown that the United States would gain largely by the estab-
lishment of this close period.

The PRESIDENT.—Is that the same Alaska Commercial Company
that had control over the Russian fishery?

Mr. COUDERT.—Not the present lessees—not since the change in the
lease; but at the time this gentleman was writing.

Sir CHARLES RUSSELL.—-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
500,000 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. Itwould be profitable to us to continue thatindustry. 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 pre-
vent 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 rem-
edied 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 Pribilot
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 ani-
mals 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.

Tam 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 prohib-
ited 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 kill-
ing of seals within the area proposed by any methods or by any person except by
the methods employed upon the Pribilot 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 consid-
ering, 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 affi-
davit 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 RuSSELL.—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. CoubDERT.—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
Regulations, as to whether that mode of attacking the seals is to be
prohibited or not.

Mr. CouDER?T.—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 facie it would seem to me to present one dif-
ficulty—the difficulty of discriminating between males and females.

Mr. CoupDERT.—I do not know, your Lordship, how it would discrim-
inate. 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 such 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. CoupERT.—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
never been a practical factor in this seal fishery; that there is an affi-
davit somewhere in the papers by which it appears that some man had
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. CouDER?T.—They would cover the mouth of a bay, and catch the
seals as they passed.

The PRESIDENT.—Stretching from one shore to another?

Mr. CouDERT.—F rom one shore to another.

The PRESIDENT.—Not on the high seas. That would be impossible?

Mr. CoupER?’.—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, certainiy. Wedo 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 obso-
lete. 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 proto-
plasm was the Indian sealer with a hungry belly and aspear 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, enor-
mously, wounding and maiming very often, but very often hitting;
and in many cases the sealis caught. So that the breach-loading shot-
gun is now, I think I may say, the only method that is used by the
pelagic sealer. Thatis the last in evolution.

The PRESIDENT.—Do the shot-guns 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 cer-
tain distance; and these pelagic sealers will come as 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 MorRGAN.—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. COUDER?T.—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, and 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,
nainely the enormous waste not only by virtually killing three animals
when they kill one, but even of losing that one, which frequently hap-
pens; 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 skill-
ful men; and when a man by dint of shooting, wounding and 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; [ have it here. It is very curious.

The PRESIDENT.—And submitted to such rules as you state?

Mr. COUDER’T.—Yes, sir.

The PRESIDEN?T.—I thought it was left to all.

Mr. CoupEeRtT.—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 propor-
tion.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
largely to the number of inexperienced hunters engaged in sealing. It is only neces-
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,
said hunters to be engaged at the scale or lay adopted by this Association, as herein-
before particularly described; and we also agree that all hunters required in excess
of the three hunters above mentioned for each vessel shall be new men at the busi-
ness of seal hunting, and shall be engaged at the same scale or lay hereinbefore men-
tioned, and this clause shall apply to all vessels owned or controlled by the members
of this Association, whether clearing from the port of Victoria or other ports in Can-
ada or the United States, or any port where any vessel owned or controlled by any
member of this Association may be fitting out for sealing on this coast.”

The Case adds practically just what I have stated:

The number of 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 new conducted.

Lord HANNEN.—Does that depend upon whether these rules of
trades-unions are observed or not?

Mr. COUDER?’.—It depends upon the skill of the huntsmen, to a great
degree. Your Lordship will find when I read the evidence, that a dis-
crimination 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, wliat experienced hands are, what the expec-
tation may be of improving in this race for destruction, and as an
explanation for destruction in the past, to show that the means of per-
fecting 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 bethis. 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 experi-
enced men to have an advantage, and brotherhood of the trades asso-
ciation, which clasps them all in its arms, and gives them all an equal
chance.

The PRESIDENT.—It seems to be international; it provides for Ameri-
can ports as well as for Canadian ports.

Mr. COUDERT.—Yes. Oh, we are brothers. There is only an imagi-
nary 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. CouDER’?.—In Victoria; and this is taken, as you will see, from
the British Blue Book.

Sir CHARLES RuSSELL.—I think it is non-existent now.

Mr. CouDER?.—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. COUDER’.—I stated to the learned Tribunal how some of these
seals were lost. Iwill 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, it is 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
taken, because the specific gravity of the seal being greater than water it sinks
before it can be secured. In order to saveas many of the sinking seals as is possible,
each boat carries a gaff, with a handle from four to six feet long, with which to
grapple the carcass, if the point where it sank can be reached in time to do so. Of
course in securing a sinking seal much depends on the distance from which the seal
was shot, the condition of the water, whether rough or smooth, and whether or not
darkened by the blood of the animal, as also the skill of the hunter in marking with
his eye the place where the seal sank. It can, therefore, be seen that the range of
possible and probable loss in case the seal is killed outright is certainly large, though
not so great as when the seal is wounded.

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
is very apparent, and also when they are wounded.

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 we know from hearing their depositions and with-
out seeing the men, they state with entire seriousness, and perhaps
with the intent to tell the truth—that they do not believe that these
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.

SEVENTEENTH DAY, MAY 4", 1893.

The PRESIDENT.—If you are ready to proceed, Mr. Coudert, we are
ready to hear you...

Mr. CouDER’T.—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 plead-
ings 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 aver-
ments 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 Russell, I am
inclined to believe that most of the propositions of fact, which have
been laid down by my Associate Mr. Carter and which TL 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 per-
fectly apprehend the meaning and extent, [cannot forbear going some-
what extensively into the pr oofs.

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 misappr ehension on the part of the counsel on the
other side of the real issues in the case—at least if they do not misap-
prehend them we do. The lawyers who drew this being lawyers, and
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 dif-
ference 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 justified in seizing British vessels engaged in pelagic
sealing in Behring Sea outside territorial w aters?

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 under-
take to discuss the question which our friends on the other side say is
the only question in the case. Ihave 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. W hether the vessels were

318

ORAL ARGUMENT OF FREDERICK R. COUDERT, ESQ. 319

properly arrested or not, whether the decision of our Court in Alaska
when the res was before it is final or not, whether our Government will
consent to abandon the effects of that decision, whether the decision
made by this Tribunal will necessarily decide those issues one way or
the other, for one party or the other—as to that I express no opinion,
for I have no right to obtrude any upon a Court which is not to deal
with the questions involved.

I propose, with the permission of the Court, to enter upon a some-
what detailed examination of the facts. Both my learned friends and
myself have stated to the Court certain propositions, and for the pur-
poses of the argument we should naturally expect that they will be
admitted as facts with the understanding, of course, that they are to
be supported by reference in the Case to the testimony which supports
these propositions. There are many propositions which are admitted,
some which are very imperfectly denied, and as to a few of which it
would appear that my learned friends have taken issue with us.

It is admitted in the case (and it is a very important admission as
bearing on the nature of the fur-seal) that the pup is invariably born
on land. Our Case states it as briefly and tersely and compactly as pos-
sible, and every one of the propositions I am now going to read, will, I
believe, be admitted to be true on the other side. It will save time for
me to read this, for I am unable to state it more succinetly. I am
reading from page 98 of our Case, the Case of the United States.

The pup is born on the breeding grounds during the montis of June or July. Its
birth usually occurs within a day or two after the mother seal arrives on the islands,
and often within a few hours. A young seal at birth weighs from six to eight
pounds, its head being abnormally large for the size of its body; it is almost black
in colour, being covered with a short hair, which changes to a silver-gray colour
after the pup learns to swim. ‘These two grades of pups are distinguished by the

names ‘‘ black pups” and ‘‘gray pups”. The coat of hair is its only covering, the

under-coat of fur not being found on the new-born seal.

That proposition, I take it, is undisputed.

It is also undisputed that there is only one pup born at a birth. It
is stated that there may be exceptional instances, phenomenal instances,
which prove nothing except that there are exceptions to every rule;
that sometimes two are born ata birth. But that may be dismissed
from the consideration of the case; and it will be found that there is no
dispute between the two sides as to the general fact that only one pup
is born at a birth. As the result of a singular phenomenon (and it is a
phenomenon, if the view of the British Commissioners as to the nature
of this animal is true) this aquatic or marine or pelagie animal, if born at
sea, will drown. Birth in its native element, if I may call the native
element the element in which it is never born,—birth, at all events, at
Sea is instantly punished by Nature’s law with death; and a curious
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 statement.

For the first six or eight weeks of its life the pup is confined entirely to the breed-
ing grounds, being unable to swim. Mr. Thomas F. Morgan, for nearly twenty

years located on the Pribilof Islands as one of the agents of the lessees, states that
he has often seen young pups washed off by the surf and drowned. Dr.N. 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 motherreturn. Afterseveral days or so, anew employe of that season
only, and knowing nothing whatever of fur-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. McIntyre, 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. McIntyre,
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 a 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 ifit does not, and finally inculeates 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 at least of its life,
and until education has superseded Nature or at least helped it to the
final effort,—during a period of weeks or of months, for we do not all
agree about the period, the seal is not amphibious but purely a terres-
trial animal. That is the time when, as I said, not supposing there
could be any contradiction to what seemed to me so plain a proposition,
the seal was as much our property as the calf, the ewe, the lamb, or
the colt upon our premises, and was like them subject to our decision
as to its future, we being able to kill it or to preserve it as we chose.

The PRESIDENT.—Would you call that treatment of the young pups
by their mothers weaning?

Mr. CoupDER?’.—Itis 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. CouDER?T.—Rather while the pup is learning to swim; while it is
playing about in the water. Itis along 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. CoupENT.—And then they are weaned, but their mother con-
tinues in milk (there may be 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 neyer would have been

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 rivalry between the Cana-
dian 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 what-
ever to statements in the report.

In another sense, I attach a great deal of importance to the state-
ments in the report, that is whenever they may be construed as admis-
sions. 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 state-
ments 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 [ claim the right to
accept their declaration as an admission, and when I am able to pro-
duce 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 Report 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 adver-
saries, 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 nor-

mal 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, vol-
ume 3 of the 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 founda
femaic? (A) Yes, itis 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
pups 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

BS, PT x1I——21

322 ORAL ARGUMENT OF FREDERICK R. COUDERT, ESQ.

thrown it into the water, and have seen it swim about like a yonng 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 evi-
dence. 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, [ 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 overan 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 Tribu-
nal 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, gen-
erally about the middle of November, but the time depends a great deal upon the
weather.

In fact, I may say that seals have been known to remain in very mild
seasons all through the winter, as I think our 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.

During the entire time the pups remain upon the islands they are dependent solely
upon their mothers for sustenance.

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
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 fourmonths. 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. Hereford 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

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 by the reflection that I am
saving the Arbitrators some labor for when they consider the case they
will have become imbued with the facts and 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 (le 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 con-
clusions 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
near it.

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 nurs-
ing 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 prop-
erty, 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. Iam 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 acure, 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 miti-
gated. The pups might get some little nourishment here and there,
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 col-
lected by man’s hand and used perhaps as a beverage and food by the
natives?

Mr. CoupERT.—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. CoupERT.—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 mis-
statement the probability is he does it intentionally. He says:

Until 1891 we were allowed to kill several thousand pup seals for food in Novem-
ber about the time they were ready to leave the Island. We generally killed ten or

twelve for every person on the Island, and when we killed them they were always
found to be full of milk.

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 evi-
dence 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; and 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,

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. Redpath, 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 s00n 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 exten-
Bive experience, Says:

A mother will at once recognise her pup by its ery, 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 state-
ment of aman 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, Father Kushen, who says on
page 145:

No cow will suckle any pup but her own, and I have often watched a cow driving
pups from her until she found her own. She knows her pup by smelling it.

Then says Mr. MeIntyre

The pups do not appear to recognize theirown dams, but the mother distinguishes
her own offspring with unerring accuracy and allows no other to draw her milk.

And another witness, Anton Melovedoff, who has also had very vast
experience and who has made very full depositions in this case, says:

When the cows return, they go to their own pups, nor will a cow suckle any pup

but her own. The pups "would suck any cow that would let them, for they do not
seem to know one cow from another.

That is the appearance of them.

No cow will nurse any pup but her own, and I have often watched the pups
attempt to suck cows, but they were always driven off; and this fact convinces me
that the cow recognises her own pup and that the pup does not know its dam.

IT 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 Commissioners, however, place great reliance upon the
testimony of Mr. Macoun, a gentleman of character and intelligence,
who visited the Island and was there for a very brief period. He was
there in 1892; that is last year, and spent some time there, no doubt in
a conscientious investigation of seal-life; and, if his testimony should
differ from that of others, I should say that others, being equally
credible, are entitled to be believed because their experience is of the
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 subinit 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 sup-
port, 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.

On St. George Island, 15th July, as I sat on the low cliffs overlooking a part of
North Rookery, I saw three cows come ashore. One of them was still gravid.

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 wasstill 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
from her, 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, attempt-
ing to suck every time she stopped, several times securing the teat, while the cow
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
reached at last a small harem near the back of the rookery, where she lay down on
her side and was soon asleep.

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 down 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.

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 lone 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, if 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 coming 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 cer-
tain 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 outat 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 specu-
lation 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 eiting, a gentleman as to whose intelli-
gence 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 Beh-
ring 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 con-
nection with the statement that indiscriminate slaughter destroyed
them by thousands,

This statement, cited in the United States Case, is direct authority for the Cana-
dian 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.

That when the mothers are killed, the young pups dying in consequence, are
fea on the island,

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 num-
bers 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 cor-
ollary 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 aiso 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 50th 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 ani-
mals, 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 islands, 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 pi art of the coast snrrounding these waters
and my subsequent twenty-four years’ experience on the seal Islands in Behring and
Okhotsk seas, I 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 breed-
ing grounds of the Alaskan fur-seals, and it is here they congregate during the sum-
mer 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 wit-
nesses. This is page 188 of Volume 3 of the British Appendix.

You have never heard of any rookery along the coast? JI never heard of one.
There is a rookery of sea lions off Queen Charlotte Isl: ind, but I never heard of any
of seals.

Here I wish to call attention to another point, and one of consider-
able 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, respectively, are entirely dis-
tinct 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 uncer

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 tt 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.

No large bodies of migrating seals are known to pass near Attu Island, the west-
ernmost of the Aleutians.

That is still further west; the extreme island, nearest to the Com-
mander Islands.

And no young seals have ever within memory been seen there. ‘These cireum-
stances, with others which it is not necessary to detail here, are sufficient to demon-
strate 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, the
migration-routes of the two sides of the North Pacific are essentially distinct.

I beg to call the special attention, of this High Tribunal, to that con-
cession 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 seal-
ing—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
are 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. Itis not believed that any volun-
tary or systematic movement of fur-seals takes place from one group of breeding
islands to the other, but it is probable that a continued harassing of the seals upon
one group might result in the course of years in a corresponding gradual accession to
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 thatis
cited by the British Commissioners is found in their Report 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 Pacitic. I only call attention
to it to say that the Court will see howfar 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 Russia or the
Russian seals to America. What foundation there is for this perhaps
the Tribunal may be careful enough to enquire into. I can give no
light upon such a possibility. Upon whatit 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 tood-
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 Com-
mander 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 dis-
tinct; 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 vet disclosed.

Now to close this branch of my quotations still borrowing from the
British Report 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
snows of winter.

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 be said
‘Tf 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, itis sent to London, which is the great centre where the indus-
try 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 253. 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 testify-
ing 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 Rob-
ben Islands,

are so marked as to enable any person skilled in the business or accustomed to han-
dle 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
state, ——

He is speaking of the Copper skins.

the Copper skins are lighter in colour than either of the other two, and in the
dyed 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 Northwest sking, .

J04 ORAL ARGUMENT OF FREDERICK R. COUDERT, ESQ.

We will now quote Mr. Morgan who was the agent in 1891 of the
Russian 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 abstr acted 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
points have I ever observed seals haul out on land except at the Pribilof Islands,
nor have I been able to obtain any authentic information which causes me to believe
such is the case.

The Alaska fur-seal is migratory, leaving the Pribiloff 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 infermed 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 fact.

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 Isl: nd; that during said examination the ‘Commissioners through an inter-
preter, asked said Sniegeroff if there was any difference between the seals found on
the Pribilotf Islands and the seals found on the Komandorski Islands; that said Snie-
geroff 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 Pribi-
loff 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
seale in business. He is eng caged in dressing and dyeing the skins.
He says at page 236:

The skins belonging to these several catches are catalogued separately, sold sepa-
rately, and are of different values and necessarily, therefore, bring different prices
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 RuUSSELL.—He does not say that on page 236.

Mr. CouDERT.—I am reading from the summary of the evidence.
Then he says:

The differences between these several classes of skins are so marked as to enable
any person skilled in the business to readily distinguish one from the other.

Mr. Justice HARLAN.—You are not reading from the printed Argu-
ment, and we are unable to follow you, Mr. Coudert.

Mr. CouDER?T.—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 s qualifications were
of the best. Heisa subject of Her Majesty and the head of the firm
of P. R. 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. 9335

judgment is entitled to great respect, and he says on page 571 of vol-
ume 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
in the raw state the Copper Island skins have a lighter colour and the fur is rather
shorter in pileand of an inferior quality. The skins of each of the three classes have
different values and command different prices in the market.

NowlI shall read some of the evidence of Mr. George Rice on page 573
of volume 2 of the Appendix to the United States Case. Mr. Rice, I
may say, is another of that class of witnesses entitled to particular
respect. f

[The Tribunal then adjourned for a short time.|

The PRESIDENT.—Mr. Coudert, if you are ready, we are.

Mr. CouDER?.—Thank you, Sir. I propose, may it please you, Mr.
President and the members of this High Tribunal, to close this exami-
nation 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 seals on the Russian side intermingle with those on the
Pacific side?—(A). No, Sir, I do not think so. They are different seals in my
opinion,

I may say with regard to both of these witnesses, that they are
vouched for by the Canadian Inspector of Fisheries in his Reports 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 knowl-
edge of the subject. He says:

There are two great herds or armies of fur-seals that frequent the North Pacific
Ocean and Behring Sea. They are quite distinct from each other, and do not inter-
mingle. 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-

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 Pribilot 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 corrobora-
tive 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’ Asso-
ciation 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 Russian coasts?

Mr. CoupDER’.—He deals in skins—I do not think that he under-
takes to get them on the high seas. His is the safer and more com-
fortable 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, fre-
quenting the two sides of the Ocean.

Mr. COUDERT.— Yes. ;

Mr. GRAmM.—And in the following pages there are reported a good
number of instances.

Mr. CoupERT.—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 sepa-
ration exists between the seals frequenting the two sides of this ocean.
Does it mean anything more than what is stated by the British Com-
missioners 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 expres-
sion 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 Brit-
ish 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 thiuk 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 them-
selves tell us what they mean, and that will come in tiie.

Mr. CoUDERT.—They mean I think what ! 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. GrRAM.—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 Appen-
dix, 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 cross-
ing 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, and on the other side the Com-
mander Island seal will have Alaskan blood?

The PRESIDENT.—I cannot ask you to explain what the other side
mean, and what they intend, but itis enough I think, (and it was impor-
tant) 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 cross-
ing of each others’ lines, and a going to and coming from the water ter-

B 8, PT XII——22

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 abso-
lutely 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, [ 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, Iam 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 I 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 char-
acteristics 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 pro-
ceeding 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 con-
sider it most essential to the administration of justice, and it is essen-
tial probably because it has been habitual, and justice has been con-
ducted 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
we had cited.

Now, in the first place, let me say, when we take such men as Bev-
ington, Poland, and the rest of them, and nobody could charge them
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

ORAL ARGUMENT OF FREDERICK R. COUDERT, ESQ. 339

inter-mingling or inter-mixture of blood. If it is true, that is the end.
It shews that the distinction is there, that it has always been there,
that it continues to exist; and the two herds, or families, are entirely
separate and distinct. Isay our distinguished friends have undertaken
to cross-examine these witnesses, and of course have used nothing but
the methods which we would expect from men of their high character,
and they think that they have shaken the testimony, in some respect,
of these witnesses.

Now this will be a sample—I am referring to page 230 of volume II
of the Appendix to the Counter-Case of Her Britannic Majesty’s Gov-
ernment, These are all cross-examinations, and the Arbitrators will
see at the outset that these gentlemen, on their cross-examination, had
been fully furnished by us in our Case with the testimony that we had
elicited from the witnesses, and upon which we relied. There was no
objection to their putting leading questions, and to informing them of
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 con-
sidered 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 differ-
ence 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 dif:
ference. 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 gen-
tleman says even on his cross examination: there are also other differ-
ences 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 I have
noticed amongst Copper Island consignments, skins which are evidently of the

Alaskan description. I have also noticed skins in both classes which in a lesser
degree resemble the other class.

That is as far, I think, as any witness undertakes to go—that pos-
sibly there may be a mixture; but you will observe that there is not
one single witness who will testify that he ever found a skin which he
would call a Copper skin, in a consignment of Alaskan 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 bet-
ter 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 bea 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. Révillon. Mr. Révillon has been
examined, and I read from Mr. Révillon’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. CouDER?T.—This is the cross-examination. After we submitted to
our friends on the other side our 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 Tri-
bunal that this difference that they now speak of for the first time can-
not 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 dis-
tinguish the skins, that they could distinguish at all times an Alaska
from a Copper skin, and vice versd; 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 cir-
cumstance.

I desire also in connection witb this to draw the inference, which I
think I am right in drawing from the fact, that many of these gentle-
men, 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 IL 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 resem-
blance 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
consigument.

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. 3841

Mr. CoupERT.—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 per-
mit me to say, perhaps, in anticipation of the judgment, we call for
the sake of convenience and the assertion of principle, owr seals, and
that comprises all the Alaska seals and the North-West catch.

The PRESIDENT.—Are you aware which way the Russian seal skins
come to London. Do they intermingle at Victoria with the other seals?

Mr. CouDERT.—They all go to London.

The PRESIDENT.—But which way?

Mr. CouDERT.—Through San Francisco 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 RICHARD 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. Révil-
lon, 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. Révillon 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. Révillon, 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
seals?—[A.] This might be so; Ido 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 gen-

erally I am against monopolies, and in favor of a free market. I think monopolies
injure the progress of business.

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 differ-
ence; 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 inter-
ested 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. COUDER', 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. Rice, 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 & 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 dis-
tinguish the Coppers from the Northwest and Alaska skins, or what I may eall the
Behring Sea sealskins, but the manner in which the skins are distinguished is diffi-
cult 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 dwell-
ing upon or discussing the question whether they are the same afier
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 fur-
rier 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 ARGUMENT OF FREDERICK R. COUDERT, ESQ. 343

In consequence of these facts and of his knowledge of the fur-seal skin business
he has a general and detailed knowledge of the history of the business of dealing in
fur-seal skins in the City of London, and of the character and differences which
distinguishes the several kinds of skins coming on the market.

Then ue goes on:

That for many years last past the fur-seal skins coming on the London market have
been known as the Alaska catch, which are the skins of seals killed upon the Pri-
bilof Islands situated in the Behring sea; second the Copper island catch which are
the skins of seals killed on the Kommandorski and Robben Islands in the Russian
waters.

He then proceeds and I shall read what he says as to distinction:

The skins of these several catches are readily distinguished from each other and
the skins of the different sexes may be as readily distinguished from each other as
skins of the different sexes of any other animal.

I beg your Honors to notice that, although it may not be directly
upon the point that we are now examining, this is material and very
material indeed in the case.

I should estimate the proportion of female skins included within the north west
catch at at least 75 p. cent and I should not be surprised nor feel inclined to contra-
dict an estimate of upwards of 90 per cent.

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 RUSSELL.—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
followed by Russia. We adopted the Russian system, and it is carried
on, as I think, with certain improvements, on the Pribilof Islands; but
it is the same thing—when an Alaska skin is found riddled with shot
or a Commander skin is found riddled with shot, it is known that 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 differ-
ence 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. Itis 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, mate-
rial, 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-
dence shows, until 1890 this was strongly the case, because the lessees
were the same and it was the same company that managed the busi-
ness on both sides; it is fair to assume they did it practically in the
same way.

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 arrange-
ment with Russia?

Mr. CoUDERT.—I think not. The lease expired, and that is all.

The PRESIDENT.—And has not beenrenewed. You stated yesterday
that itis a Russian Company. It is a separate, independent Russian
Company, is it not?

Mr. CouDERT.—Yes, there is a Russian 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 Russians have
taken another Company.

The PRESIDENT.—The American lessees are not the same?

Mr, CouDER'T.—No, it is a new Company.

The PRESIDENT.—Are you aware the old Company ever complained
of pelagic sealing on the Russian side?

Mr. COUDERT.—I think not; I think Russia took care there shouid
be no cause of complaint.

Sir CHARLES RUSSELL.—Oh! no.

Mr. CouDERT.—TIill 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 under-
stand 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 ter-
ritorial seals to-day, if there is pelagic sealing carried on on the Russian
side, westward—lI would infer from that, that the skins from the Copper
islands or Russian 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 RuSSELL.—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 distinet. 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 RuSSELL.—They would come as the North West catch.

‘The PRESIDENT.—That is the question, you know.

Mr. CouDERT.—I understand that those killed by the pelagie oper-
ators on the other side of the Pacific Ocean go as the Japan catch.

Sir RricHARD WEBSTER.—That is quite wrong.

The PRESIDENtT.—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. Thereis 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 RUSSELL.—No, that is not so.

Mr. PHELPS.—They go as the Copper or Commander Islands catch.

Mr. CouDERT.— Well, I willread the evidence on that. Jam 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:

The differences between the Copper and Alaska skins are difficult to describe so
that they can be understood by any person who has no practical knowledge of furs,
but to anyone skilled in the business there are apparent differences in colonr between
the Copper and Alaska skins, and a difference in the length and qualities of the
hairs which compose the fur, and there are also apparent slight differences in the
shape of the skins.

The differences between the skins of the three catches are so marked that they
have always been expressed in the different prices obtained for the skins. I have
attended the sales for many years, and am able to make this statement from my own
knowledge. ‘The average prices obtained at the sales of the last year’s catch, for
instance, were as follows: For the Alaska skins, 125 shillings per skin; for the
Copper skins, 68 shillings per skin; and for the Northwest skins, 53 shillings per skin.

This corroborates what I have already read, and emphasizes the point
I want to make that although the difference in price between a muti-
Jated 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 testi-
mony. 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. Richard 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 fur of the Alaskan seal is of a better quality and denser than that of the
pe as seal, and that the difference makes the latter skins less valuable than the
ormer.

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 testi-
mony of Mr, Alfred Fraser. 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 Fraser 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 nan who had “hundreds of thousands
of skins” going through his hands would have permitted such a phe-
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 diffi-
culty, 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 thinks, from his own personal experience in han-
dling 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:

He would have no difficulty whatever in separating the skins of the North West
catch from the skins of the Alaska catch.

Lord HANNEN.—Will you allow me to put a question to you?

Mr. CouDERT.—I wish you would.

Lord HANNEN.—I observe that Révillion Fréres say that they never
buy or sell by sex. It isnever mentioned in any sale catalogue. ‘We
buy lots which are made up according to sizes,” ete. 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 testi-
mony. 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. CoupERT.—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. CoupDERT.—When they come from the other sources, they say
that they observe—naturally, in taking so important an article of com-
merce, and one of such value, they observe all its characteristics.

Lord HANNEN.—I wanted you to distinguish, if you can, between
Révillon fréres, 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
Révillon 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, thereis no further opportunity for
distinguishing the sex?

Mr. CouDERT.—Oh no, Sir. On the contrary, it can always be dis-
tinguished.

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 mar-
Ket, 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 Arbitra-
tor’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 the question, lately exam-
ined any consignments of north-west seal skins?—A. Yes, last week.

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 RUSSELL.—Will you kindly read the question imme-
diately 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 in
quality and size, and not for the question of sex.

348 ORAL ARGUMENT OF FREDERICK R. COUDERT, 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 ean,

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 inner-
most 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 femaleskins. It was only about
1876, 1878, 1879, 1880 and 1881 that this business began and tuook its
progression, that the three ships grew into fifty, and the fifty into a hun-
dred; 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 hun-
dred thousand skins, and there were only five thousand males”; shall
I not satisfy the Court upon this question, assuming that I shall pro-
duce such testimony ?

The PRESIDEN'T.—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
Révillon. Révillon says:

That all the skins bought by the said firm of Révillon Freres 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 Fréres is by far the largest firm of furriers and fur-dealers in
France; that the greater part of the skins bought by Révillon Freres 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 sealskins by the said firm of Révillon Fréres have amounted for
the last twenty years to about 4,000,000 frances per year.

He knows the skins as tiey 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 seal-
skins 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 signs of the mamme disappear. At any rate the employment of these
skins is much less advantageous to our business because there is a great predomi-
nance 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. Révillon
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. Révillon 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’ Report, 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 per-
mission 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 Arbi-
trators 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 honer 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 ques-
tions 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 infor-
mation 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 busi-
ness 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 influ-
ence 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 capi-
tal 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 per-
sons, receiving on an average a weekly wage of 30 shillings, and most of them hav-
ing 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 ele-
ments 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 before-
hand 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 indus-
try that steps should be taken to preserve the existence of the seal herd inthe 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 author-
ity 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
Pacifie 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 28,
1892; aud 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 gentle-
men, 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-breed-
ing males to the hauling grounds.

Upon this, as those expressions are constantly used in the Case, per-
haps 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. I 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 and 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 respec-

tive islands vary consider ably, 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 prop-
osition 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 Russia, this industry, established by Russia 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 kill-
ing to males, which followed from the discov ery 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 were
disregarded. Where the attack was indiscriminate the result was
obvious. But the Russians 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 itis 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. Butit is not important when
we recollect that the seal is a polygamous animal, and that a Jarge num-
ber of females go with every single male; this makes at once the obvious
necessity of a discrimination. To kill a female, under those circum-
stances, 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 cer-
tain 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 thet estof them. The hauling
place after this presents ~ confused appearance. The nice lines of
demarcation have been obliterated.

The male seal wheu 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 impor-
tant 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 threat-
ened 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 con-
sideration; and in the second place to determine whether the sugges-
tion 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 mol-
luses, 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 neighvor-
jng 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 rook-
eries 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 (which is published in the British Blue
Book, 1890, C-6131, p. 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 twenty miles of shore.

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.
BS, PT Xi 23

EIGHTEENTH DAY, MAY 57, 1893.

Mr. CoUDERT.—I propose, with the permission of the learned Presi-
dent 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 statemeuts 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 ve ry scarce in the
neighbouring waters; this necessitates the cow going many miles in search of her
food.

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), th: at 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, contirmed the above statement by say-
ing: ‘‘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, col-
lector 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 iniles, aut states that seals are found
all along that distance from land in large numbers. Captain Wentworth Evelyn
Baker, master of the Canadian schooner C. I. Tupper, and formerly master of tho
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 Sap-
phire, 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, ’«T have seen the milk come trom 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

354

ORAL ARGUMENT OF FREDERICK R. COUDERT, ESQ. 309

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 busi-
ness 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 sleep-
ing 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 of fish, 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 substanti-
ated not only on its face, as [ 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 zeal-
ous 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 enor-
mous masses of fish congregate ‘and to which the seals resort. When
I say seals, | 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 them-
selves, first go with their enormous facilities of locomotion, —I might
say unparalleled facilities of locomotion,—to these feeding erounds
which they know, and there they are pursued, they are slaughtered.
Hence the overwhelming preponder rance of pelagic destruction is among
the females.

The PRESIDENT.—Is there any evidence that those feeding grounds
are known—tbat they are located in some particular place?

Mr. CouDER'’.—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 RusSELL.—Will my learned friend point to any evi-
dence 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 testi-
mony 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. CoupERT.—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 Kussell)—
they say, certain females in milk are caught at great distances and there-
fore, 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 ail 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 ne again what .
is the distance from the Pribylof Islands to the Alaskan continent.

Mr. CoupER?T.—A little over 200 miles and it is 400 or 500 to Russia
the other side.

Sir CHARLES RuSSELL.—The nearest land is between two and three
hundred miles away.

Mr. CoupERT.—To America that is the nearest land.

Sir CHARLES RuSSELL.—The learned President was asking about
the nearest land.

Mr. CoupERT.—He asked the distance to Alaska.

The PRESIDENT.—I meant to the continent.

Mr. CoupER?T.—It is over 200 miles. Sir Charles Russell 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 Pribi-
lof Islands? Are they towards Russia or America—do you 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

Sir RICHARD WEBSTER.—The President spoke of the continent, my
Lord.

The PRESIDENT.—The continent is the nearest part.

Lord HANNEN.—No, I think you will find that is the nearest. [Indi-
cating. |

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 Pribi-
loff Islands?

Mr. CoUDERT.—No, Sir; it may be 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 testi-
mony 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 killfemales at all. The female that is
killed under pretence or with the justification thatit is not in that con-
dition to day,if itis young and healthy will be in that condition to-mor-
row. Itisthepossibility—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 coun-
try here represented reprobates and condemns, that a female in that con-
dition 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 pre-
eminently 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 Russia, 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 atten-
tion, May I ask the Arbitrators to note—I shall not call special atten-
tion 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.

3858 ORAL 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 itis a table of vessels. Besides that we have the charts showing the
localities in which the vessels were seized. Thereare 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.—lt seems mostly between the Pribilof Islands and
the Aleutian chain.

Mr. CoupDER?T.—Towards the South and West.

Sir CHARLES RuSSELL.—The South and West, I think you mean?

Mr. CoUDER'’.— 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 sugge ests the places where the sealing vessels have been seized
upon or where they have cruised is mostly indicate das 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 night 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 RussELL.—Will my learned friend point to any evi-
dence showing that, because these dates are all given and they are in
July and August. he herd, as my friend calls it, breaks up in July.

Mr. Justice HARLAN.—I did not so understand it.

Sir CHARLES RussELL.—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 RuSSELL.—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 RUSSELL.—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 indicat-
ing what I understood.

Sir CHARLES RussELL.—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 RUSSELL.—No.

Mr. CoupDERT.—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. Thisisa
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. Reaching the land is life; failing to
reach it in time is death. As TI said yesterday, the temporary and acci-
dental 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. Iam 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 FostTER.—In the North Pacific?

Mr. CoupDERT.—In the North Pacific. After they have landed and
established themselves at home and have dropped their pup (and 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 Presi-
dent 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. CouDER?T.— Yes, in the North Pacifie.

Mr. PHELPS.—Perhaps you would ask the learned President to look
at this chart.

3860 ORAL ARGUMENT OF FREDERICK R. COUDERT, ESQ.

The PRESIDEN?T.— Which is that?

Mr. CoUDERT.—It is chart No. 6 which Mr. Phelps has pointed out
to me, in the American case.

Sir CHARLES RUSSELL.—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 the point 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 RICHARD WEBSTER.—Which chart is it?

Mr. COUDERT.—No. 6 of the Counter Case. What I want to eall 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 [ think.

Mr. CouDERT.—The dates are August 11th August 21st July 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 en-
gaged 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. 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. CoupDERT.—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 RUSSELL.—No. 6 is Entitled “‘ Seals observed ” 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. CoupERT.—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. CoUDER?T.—I pass now from that subject. I was begging the
Court to bear in mind the facts I have given as to the distancés 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 informa-
tion 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 some-
what out of the regular order of my argument, to call attention, in
connection with this, to the testimony of Charles H. Townsend, a natu-
ralist 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.

Annexed to the report of Captain Hooper is a table giving the results of the exam-
ination of forty-one seals which were killed in Behring Seain 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 Corwin.

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 accumu-
lated 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 expedi-
tion 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 posi-
tion 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 pos-
sibilities 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 lam 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 br anding of all my calves it 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 sup-
ported by others equally experienced in seal life in the islands. Dr. MeIntyre 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 Melov edoft, 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 Middendortff, 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 I pointed out many years ago,”
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.—|I presume not, why should it be? If we are dealing
with a lawless band of men on the high seas, 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. 3863

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 heipus? ‘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 RuSSELL.—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 if 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
ditference of sex can easily be seen.”

Nowso long as they are on the land, and this goes on, what difference
is there,—what difference can be alleged, between these and domestie
animals? If you take the old expression—the old distinction between
Jere nature and domite nature, that is a nature that is controlled and
reduced to subjection by man, are not these animals domite natura?
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 employ-
ment, 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, domite
nature.

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 conject-
ure, then I leave the British Commissioners to open the door. There-
fore, 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 manage-
ment 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 Jess encour-
age, any interference with its home affairs, such as the management of
this herd upon the Pribilof Islands. While that herd is there we sub-
mit 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 exelusion 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 sub-
mit 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. Theland is ours, and every-
thing there is ours. From the lowest depth below wsque ad celum 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 Com-
missioners, 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 con-
sider it, but so far as Regulations are concerned, T will ask you to hold
that it is outside entirely, that you must hold that this being our prop-
erty, 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 Govern-
ments 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 atis,
in considering the destruction of this race now threatened with exter.
mination, 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 Regulations?

Mr. CouDERT.—I do.

Lord HANNEN.—Conditional upon something done or not done upon
the other side?

Mr. CouDER1?.—I do.

Lord HANNEN.—Very well, that is all I wanted to know.

Mr. CoupERT.—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 Regulations
would conditional ones be? We should have to go into making another
Treaty about them. This is a recommendation made *y Lord Salisbury
to the Commissioners—it is on page vii of the British Commissioners’
Report. 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 facili-
tate 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.

You 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 con-
nected with seal life were and what the elements of this destruetion
were, and therefore it says: “Study the subject.” So far as the juris-
diction 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 pro-
ceeds:

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 Arbi-
trators 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 ter-
ritorial 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 Regulations to protect this animal outside,
and if the United States are incompetent at home to take care 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 man-
agement 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, discrim-
ination, 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 pelagie 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 Russian
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 Russians 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. Itis 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: —Discrimina-
tion 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 ar gument is necessary to show, ‘for itisa
conclusion trom ordinary experience and common sense, that extinction
must ensue.

I will read a short statement froin 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
Dreeders 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 dif-
ferent district on the Islands; so that when Rae take the young males
you do not disturb the breeding: grounds at all; and it is very impor-
tant 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 they?

Mr. COUDERT.— Well, my impression is that smoking near the breed-
ing 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:

The number of seals allowed to be killed annually by the lessees was, from 1871 to
1889 inclusive, 100,000.

That is under the first lease.

But this number is variable, and entirely within the control of the Treasury
Department of the United States.

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 limit, [ 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’ Report, page 114, section
660, with the permission of the court.

Theoretically, and apart from this question of number and other matters inciden-
tal 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.

I will ask, at this point, to have the Arbitrators stop and look at the
statement. An admirably devised system, one that would have pre-
served 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 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.

I think we will all agree that that was a fair and intelligible assump-
tion.

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 young seals thus ‘‘ hauling” apart from the actual breeding
grounds were surrounded by natives and driven off to some convenient place, where
males of suitable size were clubbed 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 sports-
manlike instincts—the atavistic instinets 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 Com-
missioners 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:
“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, 1 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 ont by Dr.

McIntyre. 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, Russia 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. McIntyre. I will not trouble the court
to look at it; I will refer my friends to it. Mr. MeIntyre 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
which each of them covered at ditterent 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. Iam 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. McIntyre’s evidence page 45, I
am reading trom 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 expansion of the rookeries from 1870
up to at least, 1879, which fact I attribute to the careful management of the islands
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 prac-
tical rather than theoretical. I have seen the herds grow and multiply under care-
ful 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
ot the United States is one that we may well meet with abundant tes-
timony 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. McIntyre 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 1s 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:

From 1870 to about 1884 the seal rookeries were always filled out to their limits
and sometimes beyond them.

This witness isa 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 mis-
taken. 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 observation and investigation of the con-
dition at the islands from 1870 to 1878 inclusive, showed that during those years a
steady expansion of the breeding rookeries took place. I am also informed and

believe that such expansion continued up to the year 1882 or 1883. During this
period of general increase it is notable that the destruction of animals from pelagic

B.S, PE XIE 24

370 ORAL ARGUMENT OF FREDERICK R. COUDERT, ESQ.

sealing was comparatively unimportant. But afew 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. CoOUDERT.—AsS I was saying to the Court at the hour of adjourn-
ment, 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 informa-
tion 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: stagna-
tion from 1880 to about 1884: and subsequently to that, the decrease
which it is conceded on all sides exists and now threatens extermina-
tion. 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 vear, both at the
rookeries and in the waters of the Pacific and Behring Sea. The Behring Sea Com-
missioners 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 i 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
Jambs 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
havoe 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 imper-
fect statement of the damage actually realised.

I resort, again, to Mr. McIntyre. 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 1885, 18384 and 1885, I was not
upon the islands; that upon my return to said islands in 1886 I noticed a slight
shrinkave in the breeding areas but am unable to indicate the year of the period of
my absence in which the decrease of breeding seals began; that from the year 1886
to 1889, inclusive, my observation was continuous and that there was a greater
decrease of the seals for each succeeding year of that period, in a cumulative ratio
pec euunenae to the number of seals killed by pelagic sealers.

In 1886 I again assumed personal direction of the work upon the islands, and con-

tinued in charge up to and including 1889. And now, for the first time in my expe-
rience, there was difficulty in securing such skins as we wanted.

That is in 1889.
The trouble was not particularly marked in 1886. *

Mr Justice HARLAN.—That was in 1886, I 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 CouDER?.— Yes.

The trouble was not particularly marked in 1886, but increased from year to year
to an alarming extent, until in 1889, in order to secure the full quota and at the same
time turn back to the rookeries such breeding bulls as they seemed to absolutely
need, we were forced to take fully 50 per cent. of animals under size, which ought to
have been allowed one or two years more growth. Concerning this matter, I reported
to the Alaska Commercial Company under date of July 16, 1889, as follows: “The
contrast between the present condition of seal life, and that ‘of the first decade of the
lease is so marked that the most inexpert cannot fail to notice it.”

Just when the change commenced, I am unable, from personal observation, to say,
for as you will remember I was in ill health and “unable to visit the islands in 1883,
1884 and 1885. I left the rookeries in 1882 in their fullest and best condition, and
found them in 1886 already showing slight falling off, and experienced that year for
the first time some difficulty in securing just the class of animals in every case that
we desired. We, however, obtained the full catch in that and the two following
years, finishing the work from the 24th to the 27th of July, but were obliged, par-

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. [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, thonght best to reject them.
The result of killing from year to year a large and increasing number of small ani-
mals is very apparent. We are simply drawing in advance upon the stock that
should be 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 RUSSELL.—‘“‘ 1890” does not appear there at all.

Senator MORGAN.—Can you state exactly when the first modus vivendt
took effect.

Mr. CoUDERT.—1891.

Senator MoRGAN.—-What time of 1891.

Mr. CouDERT.—-I think it was in June—June 15th 1891.

Senator MorGAN.—lIt covered the fishing season of 1891.

Mr. COUDER?T.—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, Iwill 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. CoupERT.—Yes, I was about to say there were 68,000 in 1891.

Senator MorGAN.—How many for 1892?

Mr. CouDER?T.—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.—Yes, 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. CoupDERT.—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 seal-
ers got 68,000.

Mr. CoupERT.—And the next year, as far as we can get at the figure,
it was 45,009, 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.—Bbut, in fact, they were there?

Mr. COUDERT.—NoO, the seals did not come into our house; the sealers
intercepted them before they got through the door. The report, Gen-
eral 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 RUSSELL.—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 KuSSELL.—Yes.

The PRESIDENT.—That is what Lask, what was the amount of pelagic
sealing previous to the modus vivendi.

Mr. CoupDERT.—I will ask the President to let me take the tables.
T cannot take each year alone. Wehave tables prepared on that point;
I will submit them to the Tribunal in a few minutes.

' Tstated 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 tes-
timony on the subject of pelagic sealing, and I willsubmit it to the high
Court before the close of the argument.

The PRESIDENT.—You will tell us thatin your own time. It is bet-
ter 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 fig-
ures 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 fig-
ures. 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 efiect 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

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 pun sue it by giving
figures. This is from our collated testimony, page 278; Anton Melove-
dott, whom | have quoted before.

(Q.) Have you noticed any perceptible difference in the number of seals on rook-
eries 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 col-
lated testimony :

JT had no difficulty i in getting the size and weight of the skins as ordered, nor had
my predecessors in the oftice, up to and including 1884. The casks in which we
packed thein for shipment were made by the same man for many years and were
always of uniform size. In 1885 these casks aver: iged about 47 1/2 skins each and in
1886 they averaged about 504/5 skins each, as shewn by the records in our ofiice. 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 unex-
ceptionable witness, one upon whom both parties rely, Daniel Webster,
whose testimony is on the next page 281.

In the year 1880 I theught I began to notice a falling off from the year previous
of the number of seals on North Kast Point rookery, but this decrease was so very
slight that probably it would not have been observed by one less familiar with se: l
life and its conditions than 1; but I could not discover or learn that it shewed itself
on any of the other rooke ries. 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 5and 41/2 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 south-
ward 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—espe-
cially 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 culmin-
ated: that from 1880 to 1887, 18838, 1889, and 1890, it kept constantly

ORAL ARGUMENT OF FREDERICK R. COUDERT, ESQ. 375

increasing. Whether that was the only source of the decrease or not
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 sealing in 1891
and 1892?

Mr. CouDERT.—Yes; I intend to produce them, and to give the
names of the vessels and the numbers, and to shew the enormous increase
of this business.

Senator MorGAN.—In 1891 and 1892?

Mr. COoUDERT.—Up to 1891, and even 1892,

Mr. Justice HARLAN.—On page 207 of the British Commissioners
Report there is a Table for 1891, and previous years, which shows that
in 1891 there were 50 Canadian, and 42 American vessels, the approxi-
mate catch for this year being 68,000.

Mr. CouDER?T.— Yes, if Mr. Justice Harlan will pardon me I will come
to that and give those figures with such amendments as we think we
may properly introduce.

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 RuSSELL.—It had no operation outside there.

Senator MorGAN.—For that reason?

Mr. COUDER?T.—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 astimulation to killing sealsin 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 ean 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. CouDER?.—Yes we will give statistics on that point. As I 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 acertain 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 possi-
bly more, offspring. Now calculate the enormous destruction, and how
it would be felt after three or five years; it is enormous—it is almost
incalculable; and I need not argue that even, if it is kept up on a small
scale, it is slow destruction, because it diminishes, as Mr. Carter says,
the birth rate. Nothing can be fatal to the herd that does not dimin-

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 aver-
age 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 avery expensive
expedient to the United States. Instead of killing them in the Beh-
ring 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 Beh-
ring 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 pelagic
sealers were making out of it, and how much money the United States
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 hew 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 inter-
rupted on the North West coast? Perhaps in the Senate of Washing-
ton you had some information about it?

Senator MorGAN.—Not in the modus vivendi, I think not.

Sir CHARLES RUSSELL.—Not at all. A great part of the catch
after the modus vivendi was on the Russian and Japanese side.

General FosTER.—More than on the American side?

Sir CHARLES RuSsSELL.—That I do not know.

General FOSTER.—It was much smaller.

The PRESIDENT.—I was struck by the fact that the American Gov-
ernment 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. SUC

Sir CHARLES RuSSELL.—Their case was not based on that ground
at that time. You wili 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 mat-
ter 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 RUSSELL.— 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 RUSSELL.—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 Tre: ity, “(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 destruc-
tion 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. Conced-
ing 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 RUSSELL.—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 fur-
ther than what you asked for, or what, at least, has been expressed in
the modus vivendi. There is a sort of contradiction between the exten-
sion 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

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. CoupDERT.—I understand we got the best we could in the modus
wivendi.

Mr. PHELPS.—Yes; it was the subject of a great deal of controversy.

Mr. Justice HARLAN.—Perhaps I may refer to the fact that Presi-
dent 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 clain.

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. CoupER?T.—I think this question can be settled by the corre-
spondence, 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 tour 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 Gov-
ernment 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 preserva-
tion 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 Panncefote 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.

Srr, 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. CoupERT.—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 consider-
ation, and as I think we all agree one of capital importance—the sub-
ject 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 tlfreatens 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 piratica] and destructive sealing.

Sir CHARLES RuSSELL.—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 hunters, and where previously the
number of skilled and available sealers had necessarily been limited to a few hun-
dred coast natives, the possibility of large rewards for their laburs 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. Itis 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 and 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. CouDER’?T.—I have not counted them.

Sir CHARLES RussELL.—There is a summary at the botfom 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 Pacifie alone or were their
operations affected by the modus virendi?

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. BLopGErT.—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 PRESIDEN?T.—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. CouDER?T.—There is also this and it is the strongest possible
illustration of what the President stated a minute ago. Notwithstand-
ing this modus vivendi in 1891, 2838588 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 com-
municated. How is it this year?

Mr. BLopGEerrT.—The notification was not made until the 15th of
June. The sealing vessels left Victoria, Port Townsend and San Fran-
cisco 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
vivendé 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 con-
demnation. 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 RuUSSELL.—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 Ene Jine and continued
fishing along the Japan and Russian 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 RuUSSELL.—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 Russian side.

The PRESIDENT.—In the free waters.

Sir CHARLES RusSseLL.—I will not say all of it, because, as Mr. Blod-
gett 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 FosrtER.—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 statis-
tics. 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 KR. WEBSTER.—W hat is the number of that chart?

352 ORAL ARGUMENT OF FREDERICK R. COUDERT, ESQ.

Mr. CouDER’?.—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, [ simply call atten-
tion to it.

Sir CHARLES RUSSELL.—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 Russian domicile to those seal in the main. On the con-
trary, 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 ranging from twenty to one
hundred and fifty tons burden; the average tonnage per v essel for the Victoria fleet
in 1892 being 63.2 tons.

That is the average tonnage per Vessel, 63 and a fraction. Icontinue:

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 num-
ber five or six. In some cases both Indians and whites are employed on the same
vessel. The average number 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 aczompanied some of the Indians in their

canoe during a hunting excursion. The most expert spearsmen are the Makah
Indians of Neah Bay, W ashington. 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 shotgnn being loaded with buckshot. A minute deserip-
tion of the methods employ ed by both white and Indian hunters is given by Capt.
C. L. Hopper, commander of the United States revenue steamer Corwin, who was
many years in the waters of the North Pacific and Behring Sea, and makes his state-
ments 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:

The number of seal skins actually recorded as sold as aresult of pelagic sealing is
shown in the following table:

: No. of ae No. of

Year skins Ghee skins.
TRH. cnet ROM ete, oe Rk 1.080" I 1803.20 coc os cc ee ee ee oe 17, 700
GUSueN Say eee ee ee ee alee ts TBO ocd cin nene edn cies ee 9, 195
TO) Ws ie eg ee ee 4: O49). || BGA assoc has eee eee oc e haem * 14, 000
ABTS tic ce eo Ie ae Ee ees. aetiee Ie. CLG PUR Sh Oe chee ee eek Se eee 13, 000
[S768 cho. fous. n= = ee eee se Bere || 9 0404 ll SUSR Gee ie eee ere tS cco ce teeters 38, 907
TOU cncceeac. een eee fer bee |. 5c 7000ul atOventes cna ee weeks oo eee 33, 800
TRTSeR oe eee a ee pe ae Ss |» 29,508" ||| 188S8nc2 coe eee cee c= cee meee 37, 789
ASTOe Cen ce eco. 6 oe id | 79. 500s Ili eeO ee ssceeel ease os. Bee eee 40, 998
TPSSU BEB ec ae eee eee eo | 18,600 |] 1890..... See oe Gy. et ee see 48, 319
ASST ee Nee Pee ee ea eee se | ASeaa OH se SOT pee Beet cee k Neos Sa ee eae 62, 508

* Number estimated from value given.

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 Russell suggested a moment ago,
that some or many or few were taken from the Russian side.

The PRESIDENT.—The British table that has been mentioned, on
page 207 of the British Commissioners Report, gives the total for 1891
as 68,000.

Mr. CouDERT.—Which makes it still stronger.

The PRESIDENT.—Their figures are stronger than yours?

Mr. CoupDER?.—Yes sir. We are satisfied to take either of those
figures.

Sir CHARLES RUSSELL.—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 RUSSELL.—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 RUSSELL.—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 PRESIDEN?T.—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 pre-
pared by our friends on the other side are impartially drawn, for I do
not believe they are.

The PRESIDENT.—We know your opinion about the British Commis-
sioners, 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 gen-
tlemen, 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, 1895, at 11.30
o’clock A. M.

NINETEENTH DAY, MAY 9g™, 1893.

Mr. COUDERT.—May it please the learned President and the Arbi-
trators.

Before proceeding with the regular course of the argument suchas I
was pursuing at the hour of adjournment, [ 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
vivendi had operated entirely to the disadvantage of the United States,
and that, while the United States had tied up its hands and had pre-
vented 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 Report, 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 80,594.

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; leav-
ing 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-

384

ORAL ARGUMENT OF FREDERICK R. COUDERT, ESQ. 385

ing thus profitable owing to the fact that competition on the part of the
United States had been practically abrogated, we find the vessels
engaged in sealing correspondingly increasing in number. In 1890 the
number of vessels was 61. In 1891 it was 115 and in 1892, 122. What
the effect of a protracted modus vivendi would be it requires no prophet
to tell.

The following is the Table handed in:

Pribilof and pelagic catches for 1890, 1891, and 1892.

1890
Sealsmcilledsontbribilot Islands: oscce-2sso% > ses sae cee sess oe seinen = alone 21, 238
(U. S. Case, vol. II, p. 112).
eelinay@ OSHC +6 54g0 SabEgeber Bes Se Gec Gea DE ec oOSOE Gps Baa Rca Sinaia eee 51, 655
(Br. Com. Report, p. 207).
MotalaC aichmersee see aes sete ee emp eee canlcbic cit aciete Nals eo Ne acic se 72, 893
1891
Sealspailledion Pripilofpislamdssosss Scenes secs laa eine sete is siecle ciecle se eke ees 12, O71
(U. S. Case; vol. I, p. 333).
Tee Engg (CRN iTel Nee Sore cen Sao AOS e AE OSE GCOS UEE Pe OSE ASC EAS Sree cae rele eis 68, 000
(Br. Com. Report, p. 207).
MotaleC aches ster ecese a crea e wer seen ee Sar fae ee te ccrsna ts doen caare 80, 071
1892
Sealseculledsont ribo lelandsizes sets. =o sete ce eset so oe eth spoiale o bicle ets tire 7, 500
(Modus vivendi).
aeRO AU ON ee ae nao seins oelne mite notes Carine ce Aen Me sae aie es ods sie 73, 394
(U.S. Counter Case, p. 458).
TROURIM CEH NG Be Sob eee heias cooheS ape aa Ceo Be eer CTnne cea ce cere neEeaeee 80, 894
AVERAGE PRICE OF SKINS AT VICTORIA.
SSO MPAC enue Eup LIC eNOS kalmpys an Seen ee ete Ser ae ape etl iets nee) s eieisi= Sacra) ace <= $6. 83
UES AVrGrena® (eGo y Ne Sole So eeoses Gane poSoSaee on eseods 6 pBEoe es aeseacrar 10. 70
SONA ETA ON Il COg)) les Holle sete 2 eterctet ea re eaten ase ois nto ate intatoteie aa u= e = ay= aier al 14. 99

(U. S. Case, vol. II, p. 534).

WAGES PAID HUNTERS AT VICTORIA.

RSD; Aas PMG oe? Clahie oe eaaecesecs Sas Sse seE Sea e soe bo peEe poeasosasa pose $2 to $3e
1890-91. Price paid per skin...-...-.- Bee tee hs) ae Re IN cee UE edo eetbans 3.50
SOOM ETI Cel pal Gh eles eimMere spear aot ele oias ais) sials a oe winnie a tase toes eps. 2 8 Ninel oi 4.00

(British Counter Case, vol. I, p. 222).

VESSELS ENGAGED IN SEALING.

OMEN OELO fEVOSSOl See cover Sock co se Seon case a= oie cla else eeioamise tact 61
1891. Number of vessels.......--- SEN AN A HRT oe 7 ae a Cr eS spin as Sea Mee eee Aes 115
TS OUAE NTT OTRO HRGOSHO LS aise oe te ee al cee tee niin ne) Goes crouse neteia se 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’ Report,
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

BS, PT X1II——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. Jrepeat, 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 1 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 num-
ber 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, with-
out further explanation or comment, is sufficient to account for the
decrease which was noticed on the Pribilof Islands in 1834 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 con-
jecture. 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 appurte-
nance 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, discrimi-
nate. 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.

By the pelagic sealers and by the 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.

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 haveno 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 island groups or coast districts
on the mainland, and they were all taken by the one method of indiscriminate
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 con-
venient; 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 Fernan-
dez, 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’Acunha, and Georgia Island. Then the West Coast of Africa,
the Island of Prince Island, Crozet Island, Saint Paul and Amsterdam
Islands, Kergueien 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 temales. 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 arestoration 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 diver-
gence 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 fetus.

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 tiiteen years—

it seems to be almost incaleulable—

besides the added loss of the young born to the female portion of the pups destroyed
which would be an ever increasing quantity.

Now what do our friends on the other side say with regard to that?

Do they say that females are not taken? Not atall. Do they deny
that a large proportion of the seals taken are females? Notatall. Do
they deny thata large proportion are gravid? Notatall. 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, I think they
number in all)—54 said that they took an equal number of inales 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 over. In
iInaking these calculations it has been assumed that those who state that
they took more males than femaies 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 sup-
posed to be their case. It is fair to the British Commissioners them-
selves 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 was 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
between 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 562 The
evil is not quite so great for to-day, but the destruction is just as cer-
tain 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 [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 RUSSELL.—I think it ought to have been handed to us
before now.

Mr. CouDERT.—I will read from the evidence if you prefer it.

Sir CHARLES RuSSELL.—No.

Mr. COUDERT.—It is simply taken from the book. The reason is
this, that as many witnesses are referred to, it would occupy the time
of the Tribnnal to turn over the various pages. It is merely for con-
venience; 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 satis-
factory 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 testi-
mony 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 friendson 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 RuSSELL.—Yes, 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 you to it.

The first witness called is.

H. 8. BEVINGTON.—Head of the firm of Bevington and Morris, Furriers, London.
(Case of the U. S., Appendia, 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 exelusively the skins of the male ani-
mal, 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 depo-
nent 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 be accurate.

Mr. Bevington’s cross-examination appears in the British Counter Case, Appen-
dix, 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, but estimates it to be at least 85 per cent.

The next is

WaLter E. Marvin, 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
annum.

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

wants to minimise as much as his conscience will permit. He was
asked:

What are the names of the brokers to whom they (the sealers) chiefly consign ?—
A. My firm have had the bulk of the consignments. @. Have you ever had to con-
sider 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 in quality and size, and not for the question
of sex. Q. Have you, with the view of informing yourself, on the question, lately
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, estab-
lished in 1785.
(Case of the U. S., Appendix, vol. II, page 571.)

This firm prepared the tables of weights contained in vol. II of the Appendix to
the British Counter Case.

That the Northwest skins are in turn distinguishable from the Copper Island and
Alaska skins, first by reason of the fact that a very large proportion of the adult
skins are obviously the skins of female animals; second, because they are all pierced
with the spear or harpoon or shot in consequence of being killed in open sea,

(Cross-examination by the British Government Sce British Counter Case, Appendix, vol.
II, page 250.)

As regards what is generally known as the Northwest catch I consider that on the
whoie 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 business 30 years. He says:

I should estimate the proportion of female skins included within the Northwest
catch at at least 75 per cent and [should not be surprised nor feel inclined to contra-
dict 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. II,
page 572.)

Referring to the statement made in my said former declaration (namely that con-
tained in volume II, App. to U. 8. 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 acenracy 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 esti-
mate of 80 per cent. Of course they are very few, or small.

392 ORAL ARGUMENT OF FREDERICK R. COUDERT, ESQ.

The next is
GEORGE Rics, Furrier, London.

(Case of the U. S., Appendix, vol. II, page 572.)

Mr. Rice has had 27 years experience. He says:

In the Northwest catch from 85 to 90 per cent of the skins are of the female ani-
mals.

Mr. Rice’s cross-examination appears in the British Counter Case, Appendix, vol-
ume II, page 246. He neither retracts nor modifies anything contained in the above
quotation,

The next is

Emit TEICHMAN, of the firm of C. M. Lampson and Co., Fur Dealers, London,
formed 60 vears 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 Nortkwest 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
Emit 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, ete. That these skins are those of animals caught in the
open sea by persons who apparently derive therefrom large profits, and nearly three-
quarters of them are those of females and pups, these probably being less difticult to
take than the males; that these animals are taken by being shot.

Then we have the evidence of Mr. Révillon, which I alluded to and
partly read the other day, and I will read that:

Lion REVILLON, of the firm of Révillon Fréres, Furriers, Paris.
(Case of the U. S., Appendix, vol. II, p. 589.)

That the said firm of Révillon Freres have bought during the last twenty years
upwards of 400,000 seal-skins.

That deponent believes that the firm of Révillon Fréres 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 (North-
west coast) skins are in the majority the skins of the female seal. The thinness of
the hair upon the flanks—

I want to eall attention to this because I will refer hereafter to this
evidence:

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 signs of the mammez 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 sealskins 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 upen the head,
which does not at all impair the quality of the skin as regards its ultimate uses.

ORAL ARGUMENT OF FREDERICK R. COUDERT, ESQ. 393

Cross-examination by British Government. (See British Counter Case, Appendix, vol. II,
p. 230.)

Q. The first point on which I desire an explanation is as to the statement in your
deposition that you have often heard, and from different sources, that the majority
of the North-west skins are the skins of the female seal. As a matter of fact, Mr.
Révillon, have you, in the course of your business, to consider the question of sex at
all?—A. No; we never buy or sell by sex. It is never mentioned in any sale cata-
logue. We buy in lots, which are made up according to sizes, such as middlings
and smalls, large pups, small pups, etc.

@. 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 otheritems comes inand Mr. Révillon 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. Révillon 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 com-
mon 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 con-
dition 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 raw skins.
(Case of the U. S., Appendix, vol. II, p. 508.)

Mr. Bantle is 53 years old and has been acting as packer an¢ sorter of raw skins
for the last twenty years. In the last ten or twelve years he has handled annually
from 10,000 to 15,000 raw seal-skins.

I have examined and sorted a great many thousand seal skins from sealing
schooners, and have observed that they are nearly all females, a few being old bulls
and yearlings.

Then the next is.

JouN N. LorsrapD, of San Francisco, Furrier, of 28 years experience.

(Case of the U. S. Appendix, vol. II, p. 516.)

Ihave bought and examined the catch of a great many sealing schooners during
the last ten years, and have observed that 85 to 90 per cent of the skins taken were
from female seals.

The next is.

B. H. STEENFELS, 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 and is thor-
oughly familiar with the fur-seal skins in their raw and dressed condition.

In buying the catch of schooners engaged in the sealing business, I have observed
that fully 75 per cent of them were females and had either given birth to their young
or were heavy in pup when killed, which was easily observed by the width of the
skin of the belly and the small head and development of the teat.

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:

Tam of opinion that the nations interested should arrive at some agreement by
which the killing of seals in the water will be stopped. Itis true that the North-
west 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 [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 to by 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:

T have had such experience in handling fur-seal skins 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:

GrorGE 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 been per-.
sonally 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 num-
ber of fur-seal-skin articles. I 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 busi-
ness, 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 dur-
ing 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. Lateron 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 United 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 affi-
davit verified by him on the 18th of June. I agree entirely with what he says con-
cerning his experience in the handling and dressing of skins, and from what I know
of his character and ability I believe that everything stated by him in this affidavit
is correct.
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 distin-
guish, 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 seeing whether any teats can be 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 expert at 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
from female animals. I have spent four days in doing this, working about seven
hours a day.

There were several men who unpacked the skins and laid them before me, so that
all of my time was spent in examining the individualskins. The lot contained 3,550
skins. I found that, with the possible exception of two dried ones, they were taken
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 win-
ter 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. Idivided the skins accord-
ing 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
to sex.

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 bare spots make it absolutely certain that these teats were those of
female skins.

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 [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
poe ous of the skins in any shipmentof North west coast skins are those of female
animals,

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 greatimportance. Hereis
aman who bought a lotof 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 Louse.

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 propor-
tion were skins of female animals. To determine this fact in the case of dressed
skins I see whether there are any teat holes. Inever call askin 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 North-
west Coast skins. In the Case of a shot hole it is always evident that the surrounding
fur has been abruptly cnt off, while around the edge of a teat hole the ftir gradually
shortens as it reaches the edge, and naturally ceases to grow at the edge.
Ihave 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 Commission-
ers 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 in 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, giv-
ing 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 Com-
missioners. So that, after all the only difference is that the furriers
cross-examined by the British Counsel—the furriers whose cross-exain-
ination 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 per-
centage 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. Iam _ pass-
ing 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 author-
ized by the Russian Government to be a witness?

Mr. CouDER?T.—General Foster says that he was.

The PRESIDENT.—His position may be considered official in a certain
Ineasure.

Mr. COUDERT.—Yes, you will find he is a gentleman of high charac- °
ter 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 read-
ing 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 refer-
ences 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.

Lam 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 con-
nection 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. CoUDER?T.—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 para-
graph,—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, particu-
larly as it is unsupported by any details of fact and is entirely in opposition to other
evidence,

Perhaps I ought to comment upon the words that have slipped from
the pen of Counsel when he spoke of this statement being here attrib-
uted 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 RUSSELL.—Is it an affidavit? Ido not understand it
to be an affidavit.

Mr. CoupERT.—I do; and we state here that ‘* he made the following
sworn statement to the United States Government.”

Sir CHARLES RusseELL.—If you look at your own page 362, I do not
think you will find that that is so.

Mr. CoUDER’T.— When Counsel says “it is unsupported by any details
of fact,” I do not precisely know what it means.

Sir CHARLES RUSSELL.—I assure you it is not a sworn statement at
all. Wemake 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 ane declared, under oath, that all the statements con-
tained in the foregoing article, etc.

Iam glad that my learned friends on the other side when they spoke
of attributing had not read this, and evidently were misled by think-
ing of some other paper; or they would not have said it was unsup-
ported by any details of facet because Mr. Grebuitsky gives these details
of counting two lotsof skins. Nothing can be more detatied 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 1 would recommend its perusal to the mem-
bers of the Court, and I think they will be repaid.

Messrs. ©. W. Martin and Sons examined these same skins, or a por-
tion 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 hover-
ing about the islands. I examined the sealskins she had on board, and about 80 per
cent were skins of females. In 1888 or 1880, T 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. H. Lewis was caught near the islands by the Russian gun-
boat 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 oftered 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. I, p. 65.)

Mr. Morgan has resided at the Pribilof Island as agent of the lessees of the Gov-
ernment 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
number 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 schooner and taken to Unalaska,
which numbered 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 Ham-
ilton 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. Revenue Marine,
who says:
(Ldid., 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 Russian fleet or the Impe-
rial Russian Navy. Are you able to give us any information about
that action of the Imperial Russian Navy as to its limits and 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 sei-
zures by the Russian 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
Russian 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 Russian and American
Governments. Itis 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 L shall be happy to give it you.

The PRESIDENT.—If you please.

400 ORAL ARGUMENT OF FREDERICK R. COUDERT, ESQ.

Mr. CoupDERT.—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 itis 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 adinit 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 aclosed zone twenty miles round ourislands. ‘Then the extract from
Volume 3 to Case of Great Britain (page 1) Rear-Admiral Sir Culme-
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 approxi-
mately said to be the fact.

They are killing females with a “shot gun”—it may be 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
Rear-Admiral Hotham of the British Navy to Admiralty.

{Extract.—Warspite, at Esquimalt, Sept. 10, 1890.]

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 sealing-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, but that
after the Ist 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 taken 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. III, U. S., N° 2, 1890, p. 8.)

I, Edward Shields, 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 aroresaid schooner on the 20th May 188s,
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
time 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? Te 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 RussELL.—I do not know I am sure.

Mr. CouDERT.—Now we have an extract from reports of the Depart-
ments of Fisheries of Canada 1886 by Thomas Mowat, Inspector of
Fisheries for British Columbia. This is cited in the British Case
Appendix Volume 3, and therefore is doubly important. He says:

(Page 173. U. S. N° 2, 1890.)

There were killed this year so far, from 40,000 to 50,000 fur-seals, which have been
taken by schooners from San F rancisco- and Victoria. The greater number were
killed in Behring Sea and were nearly all cows or female seals. This enormous catch
with the inerease 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 Reports of the Depart-
ment of Fisheries for British Columbia, and he says:

Cited in U. S. Case, p. 201.

The majority of our 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 60 per 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 Authori-
ties 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 gentle-
men) 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 some-
thing from our accomplished friend Mr Tupper. Iam 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

BS,

402 ORAL ARGUMENT OF FREDERICK R. COUDERT, ESQ.

for the promise; so, if he will pardon ine, I will read a brief extract
which puts the cap upon it,—as you would say, Mr. President, “le
couronnement de Védifice”. Mr. Tupper writes to the Sealers’ Associa-
tion, 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 circum-
stance. Itis evident that they must have made a large profit out of
the modus vivendi, partly because they did not observe it and, there-
fore, 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 soanuch 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 isimportant. 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 Vic-
toria, remonstrating against the proposed modus vivendi in Bebring’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
J 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 tothe testimony of the Victorian Sealers; and a depo-
sition of some 29 witnesses at Victoria was taken.

Sir CHARLES RuSSELL.—You mentioned another page 105.

Mr. CouDER?’.—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 Vic-
toria; 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 onthe Black Diamond, Ariel and Umbrina, all British schooners. He says:

ORAL ARGUMENT OF FREDERICK R. COUDERT, ESQ. 403

The large majority of seals taken on the coast and in Behring Sea are cows with
pups in the Pacific Ocean and with milk in Behring Sea. A few young male seals
are taken in the North Pacific Ocean from two to three years old. Have taken females
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 Pacifie.

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. CouUDERT.—-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 nota case of the Scandinavian flag appearing
on these scenes?

Mr. CoUDERT.—No; there was no Scandinavian flag.

Nirts Bonpg#, 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 them 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 Tuomas 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 months and got about 400 seals, most all females...
We did not enter Behring Sea, and returned to Victoria in April. Our catch was
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 Curist 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-
Ting Sea.

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 fre-
quently seen cow seals cut open and the unborn pups cut out of them, and they would
live for several days. This is afrequent 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 feimales, 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 acdlvanced 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 hun-
dived 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 ayerage, T
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 Seaabout the Ist 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 fish-
ing banks feeding. The hunters used shotguns and rifles. In the Behring Sea we
killed both male and female, but 1 do not know 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 Ist of July were females that had given birth to their
young on the seal Islands and come ont 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... Ihave
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, Sealer.

He has been in the sealing business two years on the British schooner Umbrina.
He says:

Most of the seals are females with pup... Have killed cow seals that were full
of milk over 40 miles from the Pribilof Islands.

Then ALFRED DARDEAN, of Victoria, Sealer.

He went sealing in 1890.

We caught over 900 skins before entering the sea and our whole eatch that year
was 2.159 skins. Of the seals that were caught off the coast fully 90 per cent out of
every hundred had young pups in them. The boats would bring the seals killed on
board the vessel and we 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 Beh-
ring Sea. Most all of them were females that had given birth to their young 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.

Major Williams’ Clerk or secretary gave me $2 for the replies I gave to questions
asked me by the Major at the Driard Hotel.

This is produced by the other side.

Sir CHARLES RussELL.—There is an earlier statement than that.

Mr. CoUDERT.—Shall I read the whole of it.

Sir CHARLES RuSSELL.—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 schooner K. 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 RuSSELL.—That is the point.

Mr. CouDERT.—Yes I beg your pardon. If I had observed it I
would have read it:

Major Williams’ clerk or secretary gave me $2 for the replies I gave to questions

asked me by the Major at the Driard Hotel. I did not read the evidence which I
signed for Major Williams at the Driard Hotel.

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 mana 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
Victoria, who has bought from ten to twenty thousand sealskins per annum.

I believe the majority of seals captured by white hunters in Behring Sea are
females in search of food.

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

males are taken, the ages ranging from one to five years. Once in a while an old
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 presnmably be relied upon. He says:

The female seals go through the passes from the Pacific Ocean into Behring Sea
between June 25th and July 15th. Females killed previous to this time I found
with pup but 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 by 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 about 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 one 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 | 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 and 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; atten-
tion 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 and 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, one; 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
evident.

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 Report, 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 by 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
be 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 deseribed
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. CouDER’.—When this learned Tribunal adjourned for the recess,
I had just read extracts from the British Commissioners’ Reports charg-
ing 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 com-
ment, and I leave it to the Tribunal without criticism.

I proceed now with what we call the American evidence. The Tri-
bunal 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 Cana-
dian sealers. We have given you the evidence of high official gentle-
men 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 pam-
phlet only contains extracts from a part of the depositions.

I will read the evidence of Captain C. F. Hooper, of the United States
Revenue Marine (U. 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.
Of this distance 5,567 miles were steamed in Behring Sea. . . . .. . =. Ifind
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
the 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 aformer report made to the honourable Secretary of the Treasury, that unless
supplemented with protection in the Pacific Ocean, no amount of protection in Beh-
ring 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 oceupied 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 propertion 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.

CHARLES H. TOWNSEND, Naturalist, attached to the U.S. Revenue Cutter ‘‘Corwin”
in 1892.

(Counter case 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 photo-
graphs 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 where I have repeatedly seen pups suckle for half an hour at atime. 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 exami-
nation 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 am 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 Depart-
ment. In command of the revenue steamer Rush, I made three cruises to Behring
Sea in the years 1887, 1888, and 1889 for the purpose of enforcing existing law for

protection of seal life in 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 in 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 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. From this fact, and from the further fact
that I have seen seals in the water over 150 miles from the islands during the sum-
mer, I am convinced that the female, after giving birth to her young on the rook-
eries, 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 bull, 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. McIntyre, Special Agent of the U. 8. 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 thou-
sand seals annually caught on the British Columbian coast are pregnant females
taken in the waters about the Ist of June while apparently proceeding northward
to the Pribilof group.

(This statement is contained in an official report, dated December 9, 1869 and pub-
lished 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.) A

Capt. McLean has been engaged in pelagic sealing for 11 years as master of ves-
sels and deposes in part as follows:

Q. Of what sex are the seals taken by you, or usually killed by hunting vessels in
the North Pacific and Behring Sea?—A. Females.

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 Ist of July.....

Q. Have you noticed any decrease in the quantity of animals in the last few
years?—A. Yes, Sir.

Q. To what do you attribute the cause?—A,. Killing off the females.

Q. If sealing continues as heretofore, is there any danger of exterminating
them?—A. Yes, Sir; they will all be exterminated in three years, and there will be
no more sealing.

Q. Do you think it is absolutely necessary to protect the cows in the Behring
Sea?—A. Yes, Sir.

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 ont fully the foregoing. (Case U. S., Appendia,
vol. II, p. 486.)

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
being 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 cent of those caught each year were
of that sex. I have observed that those killed in the North Pacific were mostly
females carrying their young, and were generally canght 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 excep-
tion 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
cent.

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. 11, 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
cent.

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 Morrau, of San Francisco, sealer.
(Case of the U. S. Appendix, vol. II, 467.)

Q. Have you been 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 7A
per cent were with pup.

This witness was subsequently cross-examined by the British Government. (See
British Counter Case Appendix, vol. I, p. 155.) 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, and 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 Wuitr, 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 tlhe Behring Sea, and cap-
tured 883 seals. I then entered the Behring Sea about the 6th of July, cruising
there until the 29th day of August, and took 2,517 seals more, the whole catch being
3,400 for the year.

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 Unimack Pass 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 busi-
ness it is my conviction that within the last tew 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 practi-
cal 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 possi-
ble to furnish upon this subject—the evidence of Furriers, Sorters of
Furs, Pelagic Sealers, Officers of the United States Government, Ofti-
cers of the British Government, Canadian Officials, and they all concur
upon this subject; and the most that can be said against the conten-
tion of the United States is, that when we insist that they are practi-
cally 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 con-
ceded, 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 merey will forgive you; but nature is inexorable; she moves
with a lame foot sometimes, but always overtakes the man who perpe-
trates 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
Regulations; and this High Tribunal may remember that I stated that
any discussion was irrelevant on the question of Regulations, 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 se als, to know what is done on our islands, as
well as what is done on the high seas; but as I stated then, any Regu-
lation that is made must be exclusive of our territory, because, by the
very terms of the Treaty, no Regulation 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 Report
of the British Commissioners, page 221):

Were you in Behring’s Sea last year, and were you ordered out?—(A) Was ordered
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 impor-
tance 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, [ am founded upon the rock of the evidence that they
themselves quote.

Then

Captain WiLL1AM Cox, Master of the British schooner Sapphire.
Q. What has been the general distance you 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 west-
ward 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 land. The usual distance is about 68 miles.
Sometimes we are inside of that, sometimes outside of it.

Now Andrew Laing has testified. Ido not quote it. It will be found
at page 252.

In the British Case, Appendix, vol. III, (U.S. No.2, 1890), p. 148, 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. The ry are as jollows:

The W. P. SaywakD, July 9, at 58 miles from nearest land.

The Gracr, July 17, at 92 miles from ne arest land.

The ANNA BECK, July 2, at 66 miles from nearest land.

The DoLpuin, July 12, at 42 miles from nearest land.

The ALFRED ADAMS, August 6, at 62 miles from nearest land.

The Aba, 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 best pelagic catches are often
made at great distances from the Pribilef Island, Z

age wre

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 Una-
laska 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 testi-
mony, 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 RUSSELL.—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
gointo any careful examination or balancing of testimony. If we find
aman 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 emaci-
ated, 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 undoubt-
edly 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 Russia in seizing pelagic sealers. In the Case and Counter
Case of the United States and Appendix on pages 201, 202, 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, Ne 201, there is an extract from
the Victoria News of August 31st, 1891. It is rather hysterical in its
general tone and perhaps | ought not to read it in a solemn judicial pro-
ceeding. It talks about “Russian 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 Iussia; 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 not1888. It is probably 1858 or 1859.

Mr. Justice HARLAN.—There was a treaty in 1858.

Mr. CouDER?T.—Then it is probably 1858. We aiso have an extract
from the London Financial Times of September 15, 1892, five days after
this. Itis written from Victoria, British Columbia, on the 13th Sep-
tember but it is published in the London paper on the 15th:

A comparison of the statements made by the captain of the Russian cruiser which
seized a number of Canadian sealers in the Northern Pacifie and the regular charts
prepared by the agents of the marine department shows that the Schooner Jillie
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 con-
fiscated. 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 Vic-
toria to the Canadian Minister of Marine and Fisheries. This is writ-
ten in the same year Ovtober 8th, 1592, and published in the London
Times of November 11th, 1892.

Mr. Justice HARLAN.—That is a letter to the Collector.

Mr. CoupDER?T.—“ From 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 on 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 Posie Olsen, latitude 34°, 24’ N.; longitude 165°, 40’ E., a distance of 38
miles from Behring Island the nearest land.

Schooner dviel, 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 54° 18’ north, longitude 167° 19’ east, is, by correct observation
measured by me, on the United States Coast Survey Chart, Ne 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 inentioned, 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

acting under the authority and by the directions of the said Russian Government:
and I was by said Russian officer ordered to come on board of said cruiser with all the
schooner’s papers; [ accordingly went on board, and the captain of said cruiser,
after examining the schooners papers, arrested me, and then had all the crew of
said schooner, except the mate, brought on board of said cruiser, and I and the crew
of the schooner were kept on said cruiser as prisoners. ‘The said Russian cruiser
then and there seized said schooner C. H. White, and towed it to Michelovsly Bay,
Behring Island, and then placed said schooner under prize crew and sent it to Petro-
paulovsky, and the cruiser, with me and the crew of said schooner as prisoners, sailed
to Petropaulovsky and arrived there on the 20th day of July, A. D. 1892; and while
on board the said cruiser, 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 con-
sequence of said threat and the duress exercised by said Captain of said cruiser,

The Russian Government seized said schooner C. H. White, as hereinbefore set forth,
but I do not know what disposition was made of said schooner, but Iam advised and
believe and therefore allege, that said schooner was repainted and retitted 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
Russian Government in consequence of this seizure.

The PRESIDENT.—What is the consequence of this?

Mr. CouDERT.—So far as we know the Russian 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 Russian 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 Govern-
ments in the two seizures, and our Government would have taken
action certainly if if had not considered that the proceeding was proper
and in accordance with its own view of right.

Sir CHARLES RussELL.—The conclusion of that is the protest of the
captam.

Mr. CoUDERT.—Yes, it is filed in the State Department.

Sir CHARLES RUSSELL.—It says he duly noted the protest.

Mr. COUDERT.— What is the point? Do you wish me to read any-
thing more? I will if you desire it.

Sir CHARLES RUSSELL.—No.

Mr. Justice HARLAN.—It is a regular marine protest.

Mr. COUDER?T.—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’ Report as giving the view most favor-
able to the Government of her Majesty, section 604.

Seals thus met with upon the sea surface are roughly classed by the hunters as
* sleepers” and ‘‘ travellers” and the former are of course, the most easily approached.
Whether in canoes or boats, paddles are employed in preference to oars as they enable
«more noiseless approach to the seals. When a seal is seen, the boat or canoe is
quictly 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 differ much in specific gravity from the water, is
already 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
lightly 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 pro-
portion stated by us of those lost. The British Commissioners pro-
duce 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 shghtly,—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. Itis 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

T have seen several Makah Indians who have been here, and ee 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 exten 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, compris-
ing 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 seal-
ing 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 slant-
ing 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 mnch as 25 per cent of the seals shot. With experienced
hunters the loss is very small. Jt might possibly amount to 5 per cent,

ORAL ARGUMENT OF FREDERICK 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 in 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 the 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 goon. 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:

IT 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 Bebring Sea, where we arrived about July Ist. Shot gun and rifle exclusively
in the boats [ was in, thence I am satisfied that 33 1/3 per cent shot with a shot gun
are lost, and when a rifle is used a Jarger per cent are lost when killed.

That is more than half where arifleis used. Thatisin 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 and 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 cf Victoria, sealer, was out sealing in 1890 and
caught 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 way. 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.

Hunters talk about the seals increasing from year to year, but I know they are
decreasing, and if they keep on killing them the way they do now there will not be
any left in a few years.

BS, PT XII

27

418 ORAL ARGUMENT OF FREDERICK R. COUDERT, ESQ.

James Hayward of Victoria, a sealer has had large experience. Was
out in 1887, 1888, 1890. He says:

I 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 ina boat I wasin, 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 cansed 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
cent is lost.

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-
missioners,

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:

Tam 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 num-
ber of old sealers and experienced men in Victoria is quite contrary, and I am con-
vinced 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 Govern-
ment 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. 419

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; sup-
pose 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 if
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. Iread from the Counter Case of the United States, page 65.

In establishing their assertion that the number 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 insig-
nificant to perceptibly affect seal life, and that any consideration of the manage-
ment 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
of pelagic sealing.

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 trne 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 trom 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 endeayours to establish, that, by means of this license to slaughter
100,000 young 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 herd. To estab-
lish this, the Commissioners refer, among other things, tu the report to the Treasury
Department in 1875 of Captain Charles Bryant. ‘This official did, as stated in the
Report (Sec. 678), advise the Secretary of the Treasury, in view of his observations,
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 various
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, numer-
ous parties sealed on the Islands at will and took about two hundred and fifty
thousand seals. They killed mostly all the product of 1866-77. In making our eal-
culations 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 recom-
mended 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 breed-
ing 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. ‘he 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 pelagic 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 under-
stand what is meant by driving. The animals are carefully selected.
The young seals are driven up like sheep to a certain inclosure or a cer-
tain 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 inter-
ests 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 Pola-
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.

This statement is not in accord with the facts. Prior to 1879 Polavina had been
driven from, every year but two.

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 oceurred, was directly charge-
able 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 any one 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 Russia was an excellent system and that it was con-
tinued by the United States, and that itis 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 sin-
cerity in whichever they like.

It is thus clear that the killing of seals upon the breeding-islands is in itself an
essentially critical and dangerous method of killing, which although established by
long custom can scarcely be otherwise justified,

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
opinions:

Theoretically and apart from this question of number and other matters incidental
to the actual working of the methods implied these were exceedingly proper—

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 putitin 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 pelagie
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 con-
demn 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 } get tle 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. C’est le premier pas qui coute, 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 compara.
tively easy.

But as it has been shown that the smell of the formerly oceupied 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 con-
sideration 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 pro-
ducing asense 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 atfording 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 alsod 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 sup-
pose 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 deter-
mine. I confess lam very much puzzled about it. It is ingenious.
Jules Verne might enjoy it very much, and write a book upon it. Iam
sure he might succeed in populating the islands to his entire satisfaction.

My time 1s 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 RUSSELL.—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 OF FREDERICK R. COUDERT, ESQ. 423

Here is what our friends on the other side say that

Professor HUXLEY says. ;
(Counter Case of Her 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 breed-
ing-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 conplete statement, which our friends did not take
down:

Might be destroyed and driven a.-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 RUSSELL.—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.—Read 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
Pacifie 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 any-
where 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 least, and, if the
system were honestly worked there could be no danger of overfishing.

Sir CHARLES RuSSELL.—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 inter-
national law does not acknowledge Bebring Sea to be a mare clausum, nor recognize
the jurisdiction of a riverain power beyond the 3-mile limit, itis quite clear that this
ideal arrangement is impracticable.

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.

Tread Professor Huxley’s opinion as a naturalist, and not as a man
versed in international law; I do not think, therefore, that makes any
difference. Iam satisfied he can suggest no better system, and accord-
ing 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 same 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 females and young of the fur-seal altogether or as far as possible, and to restrict
the killing of the males to a certain number in each year.

3. The only way he can imagine by which these rules could be carried out is by
killing the seals only in the islands at the breeding time (at which time it appears
that the young males keep apart from the females and old m: ales) 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. C. 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 toread 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 Commis-
sioners.

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 I read
those. They are gentlemen eminent in France, in England, in Ger-
many, 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 Jand, 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 Iam 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 contri-
butions 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 sugges-
tions 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 dis-
criminate 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 ean it
be otherwise? What knowledge is there produced before you that
shows you that it is anything else than what Mr. Phelps called contra
bonos mores, and absolutely destructive? How long willthislast? Sup-
pose this should not be decided by you. Suppose it had not been sub-
mitted 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
oon”.

The United States can afford rather to lose this valuable industry’
than to come into collision with a friendly power; the cause of civili-
zation would suffer jess 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 under-
stand 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 adv ance in the
cause of humanity and fair dealing among nations.

One single word now as to the question of damages. I do not pro-
pose to discuss that. My learned friend, Judge Blodgett, had prepared
a careful brief. As Lunderstand 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 RuUSSELL.—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 pro-
spective 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
nomalice. 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
Sayward 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 mat-
ters 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 prepara-
tion 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 argu-
ment 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 con-
cluding argument.

The PRESIDENT.—We will certainly take heed of your remark.

The Tribunal thereupon adjourned to Wednesday, May 10, 1893, at
11.30 o’elock A. M.

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